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“The criminal process is not a static one; its procedures are not frozen in a past era of mythic perfection. But its commitment to a proper balance between the various interests and rights of those caught up in the process remains the same: to do justice in a way that serves the public interest while protecting the rights of the victims of crime, the witnesses in criminal proceedings and those suspected of serious criminal wrongdoing.”
We support the use of anonymous evidence where it can be accepted without prejudicing a fair trial. We understand the need to legislate swiftly to ensure that some serious cases do not fall, but we must ensure that the correct balance is struck. I am grateful to the Government for addressing a number of the concerns we have expressed, and I hope that spirit of constructive debate will continue. Above all, however, we should be concerned that the Bill is properly scrutinised so that justice can be done.
Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I remind the House that Mr. Speaker has placed an eight-minute limit on Back-Bench speeches, which operates from now.
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Mr. Andrew Dismore (Hendon) (Lab): My right hon. Friend the Secretary of State for Justice obviously faced a difficult task in producing the Bill in such a short time, and he has done a pretty good job.
The Joint Committee on Human Rights, which I chair, has not yet had the opportunity to report on the Bill, although this afternoon we held an evidence session with the Director of Public Prosecutions and Mr. Paddy O’Connor, QC, who gave the defence perspective, so we heard arguments on both sides of the coin and we hope to be able to report before the Bill completes its passage in the other place. My remarks today are my own, although on the basis of the work we have been able to do so far I should be very surprised if there was dissent from other members of the Committee to what I have to say.
The Bill is broadly to be welcomed from a human rights perspective. It does not purport to prescribe what constitutes a fair trial when anonymous evidence is given, but provides a general framework for the making of discretionary anonymity orders by courts, setting out the sort of considerations that are relevant to the exercise of the court’s discretion. The right to a fair trial is adequately guaranteed under the Bill’s provisions. In view of the express protection of the right to a fair trial, and the discretion left to the trial judge to determine that question, I accept the analysis in the explanatory notes that the Bill is compatible with article 6 of the European convention on human rights. Having said that, there is always the possibility of improving the Bill, and I hope that we can make some improvements today. I fully accept that the Government amendments that have been tabled make significant improvements, too.
The Director of Public Prosecutions told us today that convictions principally based on anonymous evidence are not automatically in breach of the article 6 right to a fair trial, and I agree. Strasbourg has not had difficulties with anonymous witness evidence. The real issue is the parameters and the scheme in which the evidence is used. The right to a fair trial is a fundamental one, and not a balanced one, as may have been suggested in some of the remarks that we have heard. Clause 4(4) guarantees that fundamental right. Under the Bill, the right to a fair trial trumps everything else.
We were told by the DPP that there are 1.3 million prosecutions a year in this country. That gives us perspective, and shows us that witness anonymity is used exceptionally; we are talking about several hundred cases. They are mainly undercover police cases involving drugs or conspiracies. If the suggestion is that such cases are not sufficiently serious, I think that the suggestion is wrong. Clearly, if a drugs officer has his identity revealed in court, he can no longer be effective as a drugs officer in any future case. That may not be a problem for the case in question, but it will certainly affect the police’s ability to combat drugs in future.
The real issue is what the DPP called the civilian cases, in which members of the public are involved; there are 50 of them a year. The DPP stressed the urgency of the issue, and even Mr. O’Connor was not absolute in his opposition to, or criticism of, the need for such anonymous witnesses. Of course it is important that we prosecute those who wish to intimidate witnesses. We should bring cases of conspiracy to pervert the
course of justice. Mr. O’Connor believes that convictions for intimidation have doubled. The real issues are the accuracy of the evidence and the credibility of the witness. Those issues do not really arise in undercover police cases or, for example, in cases in which an old lady has accurately recorded the registration number of a getaway vehicle after a bank robbery. A problem arises with witnesses who may themselves be involved in criminality—they may be involved with a rival gang, for example—and the Bill provides for a judge to take that credibility issue into account when deciding whether to grant an anonymity order.
The DPP told us that there would be fewer cases involving anonymity. The undercover cases would be largely unaffected, but in Trident cases—he thought that there were about 30 Trident cases a year—the criminality of witnesses means that we may well not be able to prosecute all of them, as we do now. He could not give an estimate of how many cases might not be brought. The DPP thought that the process provided by the Bill would throw up cases where credibility would be an issue, particularly as both the judge and any appeal court would know the identity of the witness concerned.
One of the key issues raised by Mr. O’Connor was the question of where the witness’s fear came from. He was concerned—there is possibly some merit in this—that the fear came from police suggestion, rather than being volunteered by the witness. We need to look into police procedure to ensure that the witness is expressing his fear, rather than having fear put into his mind by the police, as that would undermine the whole process. The witness might not be afraid at all until that point.
Mr. Hogg: That, of course, rather argues for the existence of special counsel, who could, for example, question the witness on precisely the source of the fear.
Mr. Dismore: I agree, and one of my amendments provides for independent counsel for that reason. I understand that it is inherent in the jurisdiction of the Crown court to appoint counsel. However, that is not the case in the magistrates court. The evidence that we were given today suggested they did not have that inherent jurisdiction, primarily because when magistrates judge cases, they are also finders of fact, with a jury role. That creates certain complications.
Mr. Robert Flello (Stoke-on-Trent, South) (Lab): Does my hon. Friend recognise that there is a general perception of concern among our constituents when it comes to giving evidence about something that has been witnessed, particularly if there is an issue with a serious drug dealer in an area, and that there is a need to address that concern?
Mr. Dismore: I fully accept that, and it is a very valid point, but the concern should be expressed by the witness. The police should not suggest it to the witness, as that might create fear that had not previously existed. That would actually feed the climate of fear to which my hon. Friend rightly refers. We should not make it worse than it is.
Sammy Wilson (East Antrim) (DUP):
Does the hon. Gentleman not accept that the police have a duty of care to witnesses, so if they believe that someone with a violent record may try to interfere with a witness, that
witness should at least be warned? There is no point a witness dropping out later in a case. The police should try to test how strong they are at the very beginning.
Mr. Dismore: My concern is that that would become a routine, rather than the exception. However, in those very dangerous cases, the point that the hon. Gentleman makes is a fair one.
It has been said that we did not have this procedure in the trials of the Richardsons or the Krays, but those gangs were around for years and years, intimidating the east end. If it had been available then, we might well have been able to deal with them at an earlier stage. As far as the Director of Public Prosecutions has been able to establish, there has not been one anonymity case in a magistrates court, and only one in the juvenile courts. It has been suggested that magistrates courts should be excluded, but the fact remains that under counter-terrorism laws, some cases are triable either way, so it is dangerous to suggest that magistrates courts should be entirely excluded.
As for the relevant considerations, the Government have tabled an important amendment on the “sole or decisive” issue, which satisfies a key concern of the European Court of Human Rights. However, we must also consider the issue of the defendant being responsible for intimidation. Mr. O’Connor considered that point, and if the defendant is responsible for intimidation, he can hardly complain about witness anonymity interfering with his article 6 rights. For that very reason, that should be one of the relevant considerations, and it sends a clear message that those who become involved in intimidation should not expect witnesses to give evidence openly against them.
A number of hon. Members wish to speak, so I shall conclude. As far as I am concerned, the Bill complies with article 6. The Government have moved significantly in their amendments, although there are one or two things we can do to tweak the Bill today and in the other place. Broadly, however, my right hon. Friend the Justice Secretary has done a very good job in dealing with a very difficult set of circumstances with which he has been faced in a very urgent way.
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David Howarth (Cambridge) (LD): I fully accept what the hon. Member for Hendon (Mr. Dismore) has said, and that overall the Bill complies with human rights law. However, that does not mean that there are no difficulties—not just practical ones but human rights difficulties—with some of its provisions, and I shall return to that.
As we are here because of the Davis case, it is important to understand what the court said, and more importantly, did not say. It did not say that anonymous witnesses should never be contemplated, or that anonymity always means that the trial is unfair, although some people at the criminal defence Bar seem to believe that that is so. They think that credibility is always a potential issue, so there is always a problem of that sort. However, the court did not believe that, and I do not believe it.
There is a balance to be struck between two serious threats to the rule of law. First, we have heard a great deal about the intimidation of witnesses—and I do not
want to repeat earlier remarks—which goes to the heart of the judicial system itself. If we cannot get people into court to decide a matter, there is no point having a law in the first place. Therefore, it is a fundamental question about the rule of law. Secondly, on the other hand, unfair trials are themselves a threat to the rule of law. If trials simply become mechanisms for locking up people whom the state wants to lock up, we cease to have law even if we might have some order.
There has been discussion about whether the problem of the intimidation of witnesses has become worse, and we have discussed the Kray twins, the Richardsons and so on. In other discussions, reference was made to the fact that the problem of witness intimidation goes back to ancient times. It is very difficult to judge whether the problem is getting worse, but it is likely to be growing where gang culture is growing. Whether growing or not, intimidation is a sufficiently serious problem, because it strikes at the heart of the system, for us to take it very seriously indeed. I am with those who say that witness protection is not sufficient, because it is not enough to say to a potential witness, “You have to completely change your entire life—to give up your entire life—just because of this one case.” Not many people are going to take up that offer, so we must have measures that fall short of full witness protection.
Some commentators have said that the issue is not one of balance—that we cannot balance the right to a fair trial against anything else, because it is an absolute right. Even David Pannick, QC, said so in The Times last week, but I do not think that that is correct. The human right to a fair trial is absolute, but whether that right has been violated in a particular case is a matter of degree. Going beyond that and to echo what has already been said, human rights legislation and the human rights system set a limit on what can be done, but that before we reach it, there is a balance to be struck. The Pannick view is correct only if anonymity always and automatically violates human rights. I do not think that it does.
In the Davis case, the House of Lords did not lay down a bright-line test or say, “If X, Y and Z happened, there must have been a violation of the human rights standard.” However, the House of Lords did say—this is the hard case that we all must consider—that in a case in which anonymous witness evidence was the sole or decisive evidence, and in which witness credibility is a real issue, not an issue that the lawyers have made up, it is very unlikely that the granting of a witness anonymity order will pass muster. That is because if credibility is an issue, it strikes at the heart of the trial. It is almost impossible to cross-examine a witness about credibility if one does not know who they are, or one does not know about their tendency to lie or to exaggerate, or about any animus against the defendant. All those things depend ultimately on knowing who the witness is.
The House of Lords was clear on another matter, too, and we will have to discuss it in detail in Committee of the whole House. The Lords said that if we are to have anonymous witness orders in some circumstances, we must have a clear procedure—a much clearer procedure than that which has grown up in the courts, in the prosecution service and in the police up to now. As the hon. Member for Hendon (Mr. Dismore) said, it cannot be right for the police to offer anonymity as a matter of course in certain cases. It becomes an issue in cases in
which a threatening atmosphere has developed on an estate, but as he said, the police offering anonymity can make matters worse because it fuels the existing fear. The idea that anonymity orders should be exceptional is an important one, and I am still anxious because the idea is not in the Bill.
Rob Marris: May I caution the hon. Gentleman? I understand and have some sympathy with his argument, but the House passed legislation whereby mere possession of a firearm carried a mandatory five-year sentence, save in exceptional circumstances. When the legislation went to the courts, judges adjudged almost two thirds of cases to be exceptional, which to my mind, mathematically, is not possible.
David Howarth: The hon. Gentleman is of course absolutely correct to say that, arithmetically, the majority of cases cannot constitute an exception to the rule. However, other aspects of the existing procedure need to be corrected, such as the idea that applications for witness anonymity orders can be made purely on paper, without any opportunity to question whether the case has been made out of necessity. Judges are often told that either they grant the order or the case will collapse on the spot, so they are coerced into granting orders or put in a position whereby the case itself does not succeed. That is not good enough, and we owe a debt of gratitude to the House of Lords for pointing it out and making us go back to first principles in respect of hearing the other side as a standard of justice.
There is a very important passage at paragraph 79 of the judgment, in which Lord Mance discusses what the Equality and Human Rights Commission said about such circumstances. He says that the standard is a proper verification process, so that the anonymity order is tested between both sides and the court can come to a conclusion about what to do on the basis of argument, not assertion.
Mr. Hogg: Does that not reinforce the proposition that the appointment of special or independent counsel should be liberally undertaken in such cases? In the disclosure procedure to which I referred my hon. and learned Friend the Member for Harborough (Mr. Garnier) briefly, it is exceptional that the special counsel is instructed to help the court, but does the hon. Gentleman agree that on witness anonymity orders, the special counsel should generally be instructed?
David Howarth: Yes, I completely agree. The special counsel procedure is a way out of a range of difficulties with the proposal, and I urge the Government to reconsider the idea. I shall return to it in a few moments and in Committee.
Mark Durkan (Foyle) (SDLP): The hon. Gentleman referred to the point about the need for verification, but how can there be verification of the second aspect of condition A, which relates to
“real harm to the public interest”?
We know that public interest considerations are often played like jokers in situations in which no one can question, challenge or demonstrate what is involved, so how can verification apply to “the public interest”? It seems to have been tailgated on to the Bill on the back of the issues that the Davis judgment raised.
David Howarth: Yes, I am concerned about how that aspect of the Bill is worded. The Government are quite right to say that there must be protection for undercover police work and for other undercover work, but the Bill does not include it. It refers very generally to “the public interest”, as the hon. Gentleman says. That is over-broad, and the Government should reconsider how that aspect of the Bill has been designed.
The question is whether the Bill has met the difficult challenge—created by the situation—of striking the right balance between two fundamental problems with, and threats to, the rule of law, within the limits of human rights legislation. The answer is: not quite yet. A good deal of progress has been made, but there are still serious problems with the Bill.
I have mentioned the problems with procedure, and I shall add one other point about that. What standard should the evidence meet to be admitted when a decision is made about an order? I think that it should be admissibility in the trial itself, but there is nothing in the Bill to say whether that is the case. The biggest problem of all is that raised by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) about the lack of independent counsel procedure. Such procedure is in the New Zealand legislation. It is too early to say whether it has been a success in New Zealand, but it seems a good bet for resolving a number of the problems in the Bill.
Mark Fisher (Stoke-on-Trent, Central) (Lab): The hon. Gentleman talks about evidence. Does he consider the singularity and crucial importance of the evidence to be relevant? Lord Bingham used the words “sole” and “decisive”. Are those considerations not as crucial as all the other factors that we are talking about? Are not the nature and particularity of the evidence key if we are to get the balance right?
David Howarth: That is right. However, there is no suggestion in their lordships’ speeches that the sole or decisive test is a bright-line test. It is simply part of an overall concept of what, as a matter of degree, would amount to an unfair trial. The Government are right to give way on putting that test in the Bill, but also right to make it a factor rather than a condition. That is the right way in which to go forward.
I return to the independent counsel idea. The counsel would be there primarily to investigate two things. The first would be whether the necessity for the order had been made out—whether there was evidence to suggest that the conditions under which an order should be made had been reached. The second would be whether there was a serious problem with the credibility of the witness, and the counsel would assist the court in coming to a conclusion about that.
It is important to bear in mind that having the independent counsel system is a protection not only for the defence. It is not just a safeguard for the defendant, but a way of safeguarding the prosecution’s case—either against, as the right hon. and learned Gentleman said, the order not being made in the first place and the case not succeeding, or against the case being appealed and quashed.
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