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Mr. Hogg:
There is another important characteristic— that the police will not as a matter of routine promise anonymity because they will come to realise that the
independent counsel investigating the case will say that the factual basis is not made out. Therefore the anxiety about an extension in the numbers of the orders might be reduced.
David Howarth: That is absolutely correct. This is a way of getting away from the purely paper process that has developed in some courts.
The Government have said that there is an inherent jurisdiction, but their point has two problems. One has already been raised. It is that there does not seem to be any inherent jurisdiction in the magistrates court. The other way out of that problem, of course, is not to extend the power to the magistrates court in the first place. The second problem is that a large number of judges will be surprised to learn that they have that inherent jurisdiction. The best way in which to draw that jurisdiction to the attention of the judiciary is to put it in the Bill.
There is also a problem with the scope of the Bill. I do not want to go into detail about that now, as we will come back to the issue in Committee. However, I have raised one point about it, and I shall mention it again. Why does the procedure extend to the magistrates court? It is not obvious that there are that many such cases in the magistrates court in the first place. If, as the hon. Member for Hendon (Mr. Dismore) mentioned, a case is triable either way, presumably the issue could be one of the factors that can be taken into account in sending the case to the Crown court instead. I admit that there would be problems in respect of youth justice, but those should be faced as a separate issue and should not govern how we deal with the whole problem.
Mr. Straw: I shall only detain the hon. Gentleman for a moment. It is not that many of those cases have arisen in the magistrates court, but some have. One case was about a breach of a control order under the Terrorism Acts. In such a case, a breach is an either-way offence, and the defendant must have consented to the magistrates court’s dealing with the matter and the prosecution must have made no objection. Therefore, the case stayed in the magistrates court. It was entirely appropriate that it should have done and that an anonymous witness order should have been made.
There is also the reported case of R v. Watford Magistrates Court ex parte Lenman and others. The divisional court made a decision, on appeal from the magistrates court, that expressly allowed for witness anonymity orders to be made in the magistrates court in the circumstances of that and similar cases. In that case, the applicants were charged with violent disorder under section 2 of the Public Order Act 1986. A group of youths had rampaged through Watford and violently attacked four persons, one of whom was seriously stabbed. That was also dealt with by the magistrates court and it is entirely appropriate that in such a circumstance the order should be available.
David Howarth:
The opposite point of view is that it is precisely cases of that seriousness that should go to the Crown court in the first place. The anonymity order would still apply, but in the right court. There is no bar against that happening in the adult court; only in the
youth court is there some difficulty about how to proceed. However, as I said, I do not think that that difficulty should determine what happens in the adult court.
There is one further problem, to which I shall return in Committee. It relates to clause 3(2), and I shall just mention it now. Clause 3(2) shows a fundamental inequality between defence and prosecution. It says that if the defence manages to get an anonymity order—it is good that the Bill allows that—it must nevertheless reveal the identity of the witness to the prosecution. However, the same does not apply the other way around. That is still a problem and I have not heard any argument from the Government so far that would justify that stance.
I do not want to end on a negative note. There has been immense progress on the Bill, which has improved during its short existence, including on the sole and decisive evidence point, on which the Government have tabled a reasonable amendment. The transitional provisions have become tighter and clearer, especially in dealing with the part-heard cases. I am especially pleased that the Government have accepted the principle of the sunset clause; they have accepted the idea that the fact that this is temporary legislation should be in the Bill and that we shall return to it in next Session’s law reform, victims and witnesses Bill.
This Bill is necessary, but I am not entirely happy with it as it stands. It has a lot of problems and we have a very short time to put them right—if not here, then in another place. The Bill is, however, moving in the right direction. Witness anonymity is occasionally justified, but it should never become the norm. Practice was moving in that direction before the case of Davis at the House of Lords. The House of Lords has brought us back from the brink. The Bill is starting to strike a better balance.
6.8 pm
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I rise slightly unexpectedly, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) was getting to his feet. I do apologise; my notes were down below, but I now have them in my hand.
Clearly, the Bill is important; it has important implications for the criminal law. I have already expressed this view, but truncating the debate into one day is very undesirable. I agree entirely with what the hon. Member for Cambridge (David Howarth) said: a fundamental principle of the criminal law is that, in general, a defendant should be able to know the identity of the witness against him. That is because, as those of us who practise in the criminal courts well recognise, when credibility is at issue it is extraordinarily difficult to challenge the Crown’s case unless one knows the identity of the witness.
The allegation may be, for example, that the witness has previous convictions, that he has a private grudge against the defendant, that he has a propensity to lie, or that he was somewhere else, as happened in the case of Tadic. One cannot put those suggestions unless one knows who the person is. That is why the courts held for a very long time that the principle of anonymity was wrong; why, no doubt, the American constitution makes that provision in its sixth amendment, as my hon. Friend the Member for Arundel and South Downs
(Nick Herbert) reminded us; why article 6(3)(d) of the European convention on human rights was couched in the terms that it was; and why, when Lord Diplock and Lord Gardiner considered the question of anonymity in the context of Northern Ireland in the 1970s, at a time when there was very considerable violence, they came to the conclusion that it was impossible to abrogate the rule and yet do justice to the defendant.
I have long held the view, although it is not entirely popular, that it is much better that the guilty are not convicted than that the innocent should be convicted. Ultimately one has to take a stand, and that is where I stand. I am perfectly willing to accept, however, that there are a small number of cases in which the intimidation of witnesses is such that it is right and proper to have an anonymity order. It is true that, in view of the Davis case, we need to put that on a statutory basis, but we need to define in our own minds and in statute the principles to which we should adhere. Above all, we must place it in statute that the fairness of the trial is the paramount consideration.
There is another thing to keep in mind, because there is some misunderstanding about the judgment in Davis. I believe that most protective measures taken where the issue is one of credibility will fail the test of fairness and prove to be incompatible with European jurisprudence. I well understand that the criteria will be satisfied where, for example, one is dealing with police officers who are undercover agents or with an old lady whose credibility is not an issue, merely her powers of recollection. However, protective measures in such cases will continue to be unsafe, broadly speaking, unless—this is an important proviso—the defendant himself has been responsible for the intimidation. In that case, as the hon. Member for Hendon (Mr. Dismore) rightly said, he is in no position to complain.
We should set out some criteria in the Bill. I will deal with this very briefly, because I know that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway want to speak. There are some things that should appear on the face of the statute. The order should be confined to exceptional cases. We need to define the test of sureness for when the court has to decide whether the conditions have been made out. There must be a statement that it is a presumption that the identity of the witness before the court is known to the defendant.
Mr. Flello: I am listening to the right hon. and learned Gentleman with great interest. There is a slight dilemma in my mind, and I am wondering about his views on it. In such an exceptional case, would the jury take the view that because the judge had reached the decision to grant anonymity in that particular case, there must therefore almost be a presumption of guilt?
Mr. Hogg: There is always that danger—it arises under existing law in relation to protective measures. If the identity of a witness is screened, it is easy—although it would be wrong—for a jury to come to inappropriate conclusions. It is therefore important that in his or her summing up the judge points out to the jury that the adopting of these measures must not be held against the defendant. To be fair to the Government, there is a specific provision in the Bill saying that that should happen.
Let me turn briefly to the remaining criteria that should be in the Bill. It is important that we should have specific reference to the independent or special counsel. I recognise that the Government will say that that is within the inherent jurisdiction of the court, but, as the Justice Secretary will know, the matter is dealt with in “Archbold”, at chapter 12(80)(d), where he will see that it is described as an exceptional power, to be sparingly used. However, having regard to the witness anonymity orders and their implications, it should be generously employed here—and if that is the case, it should be stated in the Bill. I agree with the hon. Member for Cambridge: I strongly suspect, as I am guilty of this as well, that many practitioners did not know of the existing power, which makes it all the more important that it should appear on the face of the Bill.
Mr. Garnier: We knew, but we needed to be reminded.
Mr. Hogg: That is very generous of my hon. and learned Friend.
The court must be directed always to look at alternatives, although I accept that witness protection schemes have but limited application in a number of cases. Finally, the anxieties of the potential witness must be judged on whether they are evidence-based, not merely introduced into the chap’s mind by a police officer, and whether they are reasonable.
At the end of the day, we are in the business of ensuring a fair trial. There are things that we can do in the Bill to make the situation better, and I very much hope that we will. We do not have enough time—that is my chief objection to what is going on, hence the view that I took on the timetable. The Bill has a sunset clause, and I welcome that; that is why I will not vote against Second Reading.
6.16 pm
Mr. Robert Marshall-Andrews (Medway) (Lab): Let me start, perhaps uncharacteristically, by congratulating my right hon. Friend the Secretary of State on the Bill, which is small but near-perfectly formed.
I do not agree—in fact, I fundamentally disagree—with some of the commentary in the press over the past two or three days, which has come from people who not only should know better, but who do not represent, as we do, real people in the real world. I particularly noted the commentary that said that we managed to convict the Kray brothers and the Richardson brothers without laws relating to anonymity. I well remember the extraordinary difficulty that we had in convicting the Kray brothers and the Richardson brothers, and the mayhem, chaos and pain that was caused during the course of the period when we could not convict them, for precisely those reasons. It is no more than common sense to say that we should have sensible anonymity rules, and enshrined in the Bill are very nearly wholly sensible anonymity rules.
Let me turn to specifics. I hope to take far less than the eight minutes that we have been allotted. I entirely agree that special counsel are wholly appropriate in these circumstances. I was wholly against them when they were mooted in this House, but they have worked very well in terrorism cases, and my experience of them has been nothing but good. The idea has been commendable, and there seems to be no reason why it should not be adopted, particularly in this Bill.
I, too, would favour a clause that refers to the exceptional nature of the power—not that that would do any good, in truth. As my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) pointed out, the word “exceptional” is in the eye of the beholder; it is merely an adjective that can be used by courts as they so wish. However, it does set a climate—it is very important to do so—in having regard to what is happening at the moment in criminal courts, particular in senior criminal courts, in relation to special measures generally. The Bill will simply add another special measure.
It is undoubtedly the case, and it is causing widespread concern, that special measures are now being used to such an extent that we are creating a culture of witness protection rather than necessary witness protection. The effect of that, as has been alluded to many times, is that special measures become a form of inducement used by prosecuting authorities to obtain witnesses when those witnesses do not need them and should not have them. Giving evidence is never a pleasant thing, and it is sometimes hard, but that is what citizens are there to do. To create a culture of this kind is ultimately extremely damaging, because people who hear that such provision is available are less likely to give evidence if they do not get it.
There is another aspect worth considering, if the aim of these measures is, as it undoubtedly is, to obtain more, though just, convictions. Juries do not like them. Juries do not like screening, in particular, and they do not like obtaining evidence by video link when it is plainly unnecessary. Some cases involve the giving of evidence by young people who are as tough as old boots. They may be members of opposing gangs—they often are—and they sit in a separate room, in circumstances of conspicuous comfort, being watched by a jury who are asking themselves time and again, “Why is that man not in this court?” Skilful manipulation of the cross-examination of a witness in those circumstances, by repeated questions such as, “Are you sitting comfortably?”, “Is everything all right?”, “Do you still feel vulnerable?”, “Is this a photograph of you on the top of a bus at the time?” or “Is that your pit bull terrier?” does the cause of justice, in terms of prosecuting people and obtaining convictions, very little good.
I make a plea now, in advance of the Bill into which these measures are bound to be incorporated in due course, that we do not approach them on the basis that witnesses need more protection. At the moment we have too much, and we need to cut into what is becoming an extremely damaging culture.
6.21 pm
Mr. Michael Howard (Folkestone and Hythe) (Con): I welcome the fact that I am following the hon. and learned Member for Medway (Mr. Marshall-Andrews), particularly on this relatively rare occasion when I agree with almost, but not quite entirely, everything he said.
I welcome this Bill. I welcome the fact that the Government have responded quickly to the invitation of the Law Lords to place the practice of allowing anonymous evidence in our criminal courts on a statutory basis. I welcome the way in which my right hon. and hon. Friends on the Front Bench have co-operated with
the Government in facilitating the passing of the legislation through this House on an expedited basis—although it is a bit too expedited, which is why I voted against the programme motion. I disagree, however, with those among my right hon. Friends who have suggested that the time at which the legislation reaches the statute book should be postponed until after the summer recess. It is urgent, and I hope that it will reach the statute book before then.
I welcome the fact that the Law Lords have on this occasion deferred to Parliament; I hope that this is the beginning of a new trend. I have been critical, on more than one occasion, of the tendency of judges to arrogate to themselves decisions which I believe should be taken by Parliament. Of course, in many cases Parliament has only itself to blame. The Human Rights Act expressly invites the courts to take decisions, such as decisions on the proportionality of an Act of Parliament, which seem to me the kind of decisions that democratically accountable parliamentarians should take.
The trend to judicial activism preceded the Human Rights Act, however. It found its expression in the dictum of a very distinguished former Law Lord that if parliamentary opposition was weak, the courts should intervene to fill the gap. That has always seemed to me to be utterly wrong. What we have here is a recognition by the Law Lords, no less, that if what they regard as a fundamental departure from our principles of criminal justice is to be sanctioned, Parliament is the appropriate body to grant that sanction. I very much welcome that recognition by the courts that there are limits to what they can do, and that there are important decisions which can be taken only by Parliament. I hope that we shall see a lot more of that.
I am in no doubt of the need for this measure. Anyone who has experience of the housing estates in our country where so many of our less fortunate citizens live—either directly, through living there, or vicariously, through representing such areas in this House or through visiting them and listening to local residents—knows of the deep misery that crime can cause. The least fortunate of our fellow citizens disproportionately bear the brunt of crime and suffer its consequences, and they need our help. Much of that help will come through the range of measures that the Government, the police, and the criminal justice system seek to provide.
There are many of us, on both sides of the House, who have laboured mightily to try to provide that help. But at the end of it all, that help is useless if criminals cannot be brought to justice. Far too often, that is not possible because of the stranglehold of fear that criminals can exert on their victims and those who could give evidence against them. The tentacles of that fear can reach far and wide. They can often give those who control them effective immunity from prosecution, which is not a state of affairs that we can tolerate. That is why we need to make provision to allow witnesses to give evidence anonymously. It is why we need this legislation.
Of course we need safeguards. There are always dangers in passing legislation too quickly. We are right to probe the Government by tabling amendments and to seek to ensure that proper safeguards are put in place. The arguments have already begun, and will continue over the next few hours, about the precise form those safeguards should take. I welcome the fact that the Government have accepted the need for a sunset
clause. I am impressed by the arguments for a special counsel and for the desirability of including provision for a special counsel in the Bill. I am less persuaded by the argument that the powers in the Bill should not extend to the magistrates court. I agree with the points made by the Justice Secretary to the effect that there was a need for such powers in the magistrates court, and as things stand, at any rate, that is the side on which I would come down. Those arguments will continue in this House and another place. On the need in principle for this legislation, however, I have absolutely no doubt.
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