In a snapshot survey, the CPS identified around 580 cases that it considered current. Of those, 290 involved undercover police officers completing test purchases of drugs, approximately 40 were live cases involving undercover police in other investigations and 50 were live cases involving members of the public as witnesses. The balance, of approximately 200 further cases, include those in which the defendant either has been convicted but not
yet sentenced or is still able to appeal under the 28-day limit. It is the live cases that will attract the greatest concern if we do not legislate immediately. It is essential that we legislate, for those cases typically involve the gravest of crimescrimes relating to guns, gangs and drugs, for examplewhich give greatest cause for public concern.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Does the right hon. Gentleman know in how many of the live cases the defendants are in custody or on bail, which may make a difference to the Houses view?
Mr. Straw: I do not have that information offhand, but I shall seek to find out whether it can be provided to the House later today. However, judging by the seriousness of the offences involved, there is a high probability that almost all those defendants will be in custody.
There is much else that we are doing to tackle those crimes, which strike so much fear among the public. We have upped the minimum sentence for knife crime, from two years to four, and established a minimum sentence for the carrying of guns. Last September, my right hon. Friend the Home Secretary set up a guns and gangs action programme in parts of four citiesLondon, Birmingham, Liverpool and Manchesterwhere the problem has been most prevalent. Since the announcement, there has been a 51 per cent. drop in firearms-related injuries and a 27 per cent. drop in all recorded firearms offences in those four areas. In the programme area in London, there has been a 53 per cent. drop in firearms offences and a 68 per cent. drop in such injuries. Sentence lengths generally have increased, too. One key driver of the dramatic increase in the prison population over the past 11 years has been a 60 per cent. increase in the number of serious and violent offenders brought to justice and then incarcerated for long periods.
Anonymised evidence and the safety of key witnesses are fundamental to getting the nasty, greedy and ruthless criminals who perpetrate those crimes off the streets. Assistant commissioner of the Metropolitan police, John Yates, said in an article in The Daily Telegraph on 21 June responding to the Davis judgment that, as a result of the provision for anonymised evidence taking, the detection rate for such murdersyardie, Operation Trident murdershad risen to about 85 per cent., up from, he said, around 40 per cent. in the mid to late 1990s.
However, the proportionate use of such evidence goes much wider than that. Undercover police officers and agents need protection if, for example, drug dealers and terrorists are to be brought to trial. So do communities where criminality and intimidation may not have quite the same life-threatening consequences, but can still ruin the lives of decent people. Closing down an off-licence that is selling drink to juveniles and acting as a magnet for drug dealing and disorder could be dismissed as trivial from the comfort of a leafy part of town, but not if it is down your street. The Bill seeks to ensure that when there is witness intimidation of a serious kind, and when other measures of witness protection, many of which have been put on to the statute book in recent years, are not adequate for the task, the evidence of the witness can be anonymised if the court accepts it and it is regarded as fair.
Jeremy Corbyn (Islington, North) (Lab): Like the Secretary of State, I do not want to see any more knife or gun crime on our streets, and I understand the serious problem of witness intimidation. However, will he address a problem that many people have raised: that an anonymised witness system makes it possible for old scores to be settled in a totally different way, and for a miscarriage of justice to take place? That will create two problems. First, the wrong person is in prison; secondly, the wrong personthe wrong unis outside causing mayhem in the future. We could end up with something worse than the present system.
Mr. Straw: My hon. Friend is entirely right to draw attention to one of the dangers of taking anonymised evidence. It would serve no purpose for us to pretend otherwise. In principle, as the Law Lords acceptalong with everyone elseit must be right, and fundamental to a fair trial, for someone accused of any crime, particularly a serious crime but self-evidently and by extension a trivial one, to have the right to confront his or her accuser, to know the accusers identity and to challenge his or her motives.
One of the challenges with which the courts have had to deal in the past, having established before the Law Lords judgment that in certain circumstances it was permissible in common law to use anonymised witnesses, and also the key challenge that we faced in drafting the Bill, is the need to ensure as far as possible first that a witness anonymity order is not granted unless and until the judge considers it necessary under the scheme of the Bill, and secondly that the circumstances in which it is granted give the defendant the maximum opportunity to challenge the credibility of the witness, although the identity of that witness has been kept from him or her. It is not unusual in some of the very serious cases with which we are dealing for the witness for the prosecution to have a grudge, and he or she may well have previous convictions for violence. That does not necessarily render his or her evidence unworthy or untrue, but of course it raises questions about it, and we must be very careful for that reason.
Let me explain the scheme of the Bill; this may give my hon. Friend the Member for Islington, North (Jeremy Corbyn) some reassurance. Clause 1 introduces the concept of statutory witness anonymity orders and abolishes the common-law rules. The Bill deals only with criminal proceedings because the House of Lords judgment in Davis concerned criminal proceedings alone. There is no change in the position in relation to civil proceedings. Clauses 2 to 8 set out the nature of the orders and who can make them. As I told the hon. and learned Member for Torridge and West Devon (Mr. Cox) after my statement on 26 June, they can be sought by either the prosecution or the defence.
A key part of the Bill is contained in clauses 4 and 5, which relate to the conditions and considerations involved in the making of an order. Clause 4 sets out the three conditions: that the order is necessary to protect the safety of the witness or other person or to prevent any serious damage to property or real harm to the public interest; that the measures would be consistent with the defendants receiving a fair trial; and that it is necessary to make the order in the interests of justice.
Clause 5 sets out the considerations to which the court must have regard. These include whether the witnesss evidence could be properly tested without his
or her identity being discloseda point I make to my hon. Friend the Member for Islington, North; whether there are reasons to believe that the witness may not be credible; and whether alternative means short of a witness anonymity order could be used to protect the witnesss identity.
Lynne Jones (Birmingham, Selly Oak) (Lab): Would it be possible for the anonymity not to be complete? For example, if the witness were to be screened, would it be possible for the screen to apply only to the defendant, or certain people in the court, but not to the judge and jury, who may need to take into account the demeanour of the witness in deciding on the truthfulness of their evidence?
Mr. Straw: I can reassure my hon. Friend on that. In all the cases that I am aware of, the identity of the witness is known to the judge, and the screeningand, for example, the mechanical disguising of the voiceis for the defendant and his representatives, but the jury can see the witness. Therefore, such special measures are put in placeand precisely those arrangements were put in place in the case of Davis, which was the subject of the Law Lords judgment. [Interruption.] My hon. and learned Friend the Solicitor-General points out that clause 2(4) sets out the conditions. It states: Nothing in this sectionor, indeed, in the Bill
authorises the court to require
(a) the witness to be screened to such an extent that the witness cannot be seen by
(i) the judge or other members of the court (if any);
(ii) the jury (if there is one); or
(iii) any interpreter or other person appointed by the court to assist the witness,
In addition to the five conditions in clause 5(2), following suggestions I have received, an amendment tabled in my name proposes that courts must act so as to have regard to whether the evidence might be the sole or decisive evidence before granting anonymity. That was a concern for the Opposition parties and others, and it was central to the judgment in Davis. This is not a bar on the granting of an anonymity order, but it will be stated as a consideration in the legislation.
The Bill will come into force on Royal Assent, hopefully before the summer recess. The House, however, is well aware that there are a number of cases in the pipeline, and that there may well be defendants who have already been convicted who would seek to make out-of-time appeals, either directly or via the Criminal Cases Review Commission, in the light of their lordships judgment. Clauses 10 and 11 will therefore ensure that the new law can also apply to any proceedings in cases of this kind.
Clause 10 applies to proceedings and trials that are already under way. In essence, the judge has to look at existing common-law orders, which are already made, and decide whether they could have been made under the new law. If the witness has already given, or has started giving, his or her evidence and the judge concludes that the defendant cannot receive a fair trial, subsection (7) tells the judge that he must make suitable directions for bringing the trial or hearing to a conclusion, and that includes the possibility of a retrial.
Clause 11 applies to proceedings that have been completed. The appellate court then has to consider whether the new statutory anonymity order could have been made under the new law. It must treat the conviction as unsafe if it concludes that the defendant had not received a fair trial.
Mr. Straw: They do things differently, and they always have done. The right hon. and learned Member for North-East Fife (Sir Menzies Campbell), who is present, is a good Scots lawyer, and one of the things I learned on almost the first day I began studying English law was that I would gradually become acquainted with the legal systems of Ireland, Australia, Canada and Malta, but never of Scotland. [Interruption.] Yes, and of Essex, too. My hon. Friend will therefore forgive me if I do not go down a path
The Bill will cover England, Wales and Northern Ireland, and Scotland and the Crown dependencies as well in respect of the service courts. We have, by the way, asked the Scottish Administration whether they would like us to include reference in this Bill for themthey are fully entitled to do sobut their current view is that that is not necessary.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): A week ago, a leading Queens counsel opined that far too many of these anonymity orders are being made. He said that between 500 and 600 are being made, and that the police are routinely going a bit over the top. Ken Jones of the Association of Chief Police Officers said that the figure is only a handful a year. Under this legislation, does the right hon. Gentleman foresee fewer applications than 500 or 600 a year, or does he think that figure will be about the same or even that there will be an increase?
Mr. Straw: I think it inherently improbable that there will be an increase in the number of orders, because we are now laying down a statutory scheme that is broadly based on past practice, subject to this really important caveat: we have also had to take account of what their lordships said in the Davis judgment, particularly in respect of Strasbourg jurisprudence. Time will tell, but I suspect that the figure will almost certainly not be more, and could be fewer. The courts and the prosecutors will be looking at whether, in certain cases where a witness anonymity order has been made in the past, it would be adequate for the task for a witness protection order to be made.
The Bill will not generate new costs. It aims to restore the law to, broadly, the position it was believed to be prior to Davis.
Frank Dobson (Holborn and St. Pancras) (Lab): Virtually everyone recognises the unfortunate necessity for anonymity in a very limited number of cases, and a lot of people will have been rather disturbed to discover just how many cases there have been under the common-law arrangements. Will my right hon. Friend undertake to make sure that every single order issued under the new legislation will be logged, and that there will be regular reports to the House on the numbers? We certainly would not want this legislation to allow the police to start using what is proposed as a routine response in the odd difficult case.
Mr. Straw: The Crown Prosecution Service has collected a good deal of information so far about the number of cases. There is a very strong argument for its keeping a proper log of all of them, and it is important that the House should know what has happened, not least when we come to debate the Bill later in the year or early next Session. I will therefore raise that matter with my right hon. Friend the Attorney-General, because it will be a matter for the CPS.
If my right hon. Friend the Member for Holborn and St. Pancras (Frank Dobson) looks not at the explanatory notes but at the background note on the number of cases, which we published alongside the Bill, he will see that the number that raised a concern of the sort raised by my hon. Friend the Member for Islington, Northcases in which the credibility of witnesses is an issue, because they could well have been accomplices to other crimes and could have as criminal a past as the defendants in the dockis relatively small. It is thought to be about 40 or 50. Of the total, a large proportion involve undercover police officers or agents, and I do not think that anybody would argue that we should not routinely protect their identity.
Mr. Andrew Dismore (Hendon) (Lab): The Director of Public Prosecutions gave evidence to my Committee this afternoon, and he said that the CPS is now logging the cases, the reasons for the applications and the outcomes. It had no reason to do so before, because the procedure was considered lawful. He also told us that he expected to see roughly the same number concerning undercover operations, but fewer instances relating to what he called the civilian cases, especially those involving gun crime under Operation Trident.
I said in my statement of 26 Juneit is repeated in the explanatory notesthat it is our intention that this emergency legislation will be repealed by legislation that is to be included in next Sessions law reform, victims and witnesses Bill. The Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool,
Garston (Maria Eagle), has already referred to the representations that have been made that this undertaking should be reflected in the Bill, and we have tabled amendments to that end, so there will be a sunset clause.
Chris Huhne (Eastleigh) (LD): On the issue of testing the credibility of witnesses, which is germane to the Human Rights Act 1998, is it the Lord Chancellors understanding that under the terms of this Bill, judges will be able to appoint an independent counsel to investigate the credibility of a witness before granting an anonymity order? If that is the case, why has he resisted adding such a provision to the Bill?
Mr. Straw: It is certainly the case that courts have an inherent jurisdiction to appoint special counsel or advocates, and they have used that in the past. Indeed, one was used in the case of Davis. That inherent jurisdiction will continue. Given the time constraints on Second Reading, I will explain when we come to the amendments on that issue why the Government intend to resist its inclusion in the Bill at this stage.
Mr. Edward Garnier (Harborough) (Con): Not for the first time, the Lord Chancellor alleges that the courts have an inherent jurisdiction to appoint a special advocate, as distinct from an amicus or counsel to an inquiry, for example. When he deals with the special advocate proposals, will he please arm himself with some authority for that view? I know that he mentioned the Davis case [ Interruption. ]
Further background in relation to our ECHR responsibilities is included in the explanatory notes accompanying the Bill, but permit me to quote Lord Mance from the House of Lords judgment. He noted that
it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence...that there is scope within the Human Rights Convention for such modification.
it is not certain that there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence.
For good measure, I might add that I found out from the ever-helpful Library research paper that there is international supportwith conditionsfor accepting anonymised evidence, described in the United Nations good practice guide.
in the very pursuit of Justice our keenness may outrun our sureness and we may trip and fall.