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6.27 pm

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): It is a pleasure to follow the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway (Mr. Marshall-Andrews). We have heard several good speeches today, which have been interesting and informative.

Since the Bill became common knowledge a few days ago, we have all rather been rushing into it. Like the right hon. and learned Member for Folkestone and Hythe, I feel a little uncomfortable with the time given to ensure that we get a proper Bill. I would also say that the Secretary of State for Justice has a difficult job in front of him, with little time to spare. I accept that point. However, the hon. Member for Cambridge (David Howarth) said that he saw this Bill as having been improved in the past few days. If we had a few more days, no doubt it would be greatly improved; it would be a wonderful Bill in about four or five weeks’ time. Let us not run away with that idea, however. Although we sometimes get legislation wrong when we rush it through, we took four years on the Hunting Bill and still got it wrong—it is now an unenforceable Act—so we do not always get it right when we take a long time, either.

I agree broadly that we need some form of statutory footing for anonymity. There is no question about that. The Davis judgment has brought matters to a head, and they had been simmering for some time. As the hon. and learned Member for Medway said, there has been widespread misuse of special measures. In any preliminary hearing, in any Crown court, on any day of the week, the judge will turn to counsel and say, “Any special measures required in this case?” Whether it is a relatively minor case in the Crown court or a serious one, that is a regular occurrence. People are asked whether they want special measures. They might think, in passing, “Yes, I’ll have some special measures,” and get up and ask for them—and more often than not, they will be granted.

I am afraid that the practice is falling into misuse. Things have reached the stage where something has to be done. Coming to the Davis judgment and where we are now with the Bill, I hope that all those issues can be brought into sharp focus and that we can look again into what special measures, are for. They are measures for special occurrences to be used just as I hope the Bill will be used—infrequently.

Mr. Bob Jones of the Association of Chief Police Officers says that such occurrences will be very rare. However, the same ACPO presides over a situation in which applications for anonymity are made in 500 to 600 cases a year. They include huge drugs cases, murder cases and so on, and I fully understand all that, but I am sure that in many cases such applications are not necessary.
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If the Bill is properly implemented, as I hope it will be, it should limit the number of anonymity applications to cases in which they are strictly necessary, to ensure that the interests of justice are met.

What the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said about special counsel is quite right, and his suggestion was very useful. He referred to “Archbold”, showing immense recollection of the exact provision; he has been there many times in practice, and he assisted us today. What he said is important. If we are to make the Bill work, special counsel should be a core consideration. That will undoubtedly assist the judge and the interests of justice; indeed, it will assist everybody. I hope that the right hon. and learned Gentleman’s suggestion, which he advanced very well, will be taken seriously by the Government, although I do not know whether amendments could be introduced in the other place.

Useful reference has been made to New Zealand’s Evidence Act 2006. The criteria that the court must have regard to in making an anonymity order under that legislation are as follows. First, witness anonymity orders are justified only in exceptional circumstances. Secondly, the gravity of the offence must be taken into account. The third criterion—this is interesting; I wonder why there is no reference to this in the Bill—is whether there is other evidence that corroborates the witness’s evidence. That is a consideration; it is not necessarily a veto on making the order, but it is an important factor to consider. The judge must have regard to that consideration under the New Zealand Act in making an anonymity order or not doing so.

In the few minutes left, let me say how grateful I am that the Government have accepted a sunset clause. I hope that we will have some further information about the numbers of applications at that later stage, since the CPS is now keeping a record of all applications made, those granted, those refused and the reasons why, and so on, as the hon. Member for Hendon (Mr. Dismore) helpfully told us. That information will undoubtedly inform the debate when the matter next comes before the House.

Finally, the amendments that the hon. Member for Cambridge has tabled to clause 3(2) are sensible. In effect, clause 3(2) says that if a defendant wants anonymity for a witness, they have to give full details to the prosecution. Why should the prosecution not do the same for the defence? [ Interruption. ] The Secretary of State for Justice shakes his head; no doubt he will address that point in due course. If we are serious about the scales of justice and so on, there is an important principle at stake: the equality of arms principle.

For example, what if the name of the person is leaked by a police source? I am not impugning the police; my brother is a serving officer, as was my father. I am not anti-police in any way, but there are bad apples in every barrel. We have seen several police leaks recently that have caused mayhem here and there. I am concerned that a defendant has to give full details, which could end up anywhere, whereas the prosecution does not. [ Interruption. ] The Secretary of State will no doubt address that point, so I will not dwell on it.

In broad terms, the Bill is necessary, but there are improvements that we need to make—and, given more time, I am sure that we would make even more. At the end of the day, as we are on a tight schedule, I hope that we do not create a situation of injustice. That is the last
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thing that anybody in the Chamber would want. I hope that those in the other place will have slightly more time to reflect on the Bill and that we will be able to introduce some necessary amendments.

6.35 pm

Mr. Edward Garnier (Harborough) (Con): As the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said at the outset of his remarks, this has been an informative debate, and we are the better for it. However, where there is broad agreement, there is a need for additional caution. It is in debates on Bills such as this that the other place comes into its own. I hope that we will learn from and be advised by its deliberations later this week and next.

The consensus that has emerged, both from our discussions before this debate and, in particular, during this debate, has not only been consolidated, but has moved subtly on the following issues—issues that I shall come to describe, although they have already been usefully described and considered not only by the Secretary of State and my hon. Friend the shadow Secretary of State, but by the hon. Member for Hendon (Mr. Dismore), who had the advantage of listening to the Director of Public Prosecutions this morning, the hon. Member for Cambridge (David Howarth), who gave us another highly considered contribution, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who as ever came armed with a textbook, the hon. and learned Member for Medway (Mr. Marshall-Andrews), my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and, most recently, the hon. Member for Meirionnydd Nant Conwy.

The consensus that I would draw out from all those contributions centres on the following points. First, we do not want anonymity orders to be used routinely—they should be the exception—and we do not want to encourage lazy policing, lazy prosecuting or an informal process to emerge under which such orders become the norm. My experience in the Crown court as a recorder is not quite the same as the experience of the hon. Member for Meirionnydd Nant Conwy. It may just be the luck of the draw, but I find that applications for special measures are quite rare, and those that are made I rarely grant, but there we are.

We all want sensible and proportionate rules in place for the judges to consider and apply. We want a presumption in favour of openness, because open justice leads to fair justice, and fairness is required under the European convention—and was required under common law—and, whether under common law or the convention, was recognised by the Judicial Committee in the Davis case as essential.

I suggest—the Government might want to consider my suggestion, both this evening and between now and the Bill’s arrival in the other place—that there is also a consensus on special counsel. My right hon. and learned Friend the Member for Sleaford and North Hykeham spoke about that point in interventions and at further length in his speech. I suggest—I am sure that the hon. and learned Member for Medway, who has considerable criminal justice experience as a barrister, would make the same suggestion—that we need to employ special counsel in such cases.

8 July 2008 : Column 1332

I would add to the list the need for an objective test of anxiety—that is, an objective assessment of the risk to the anxious witness or those associated with him. We should not allow a witness simply to assert that he is anxious for his safety, his life or his property. I suggest that the judge would be assisted by the intervention of special counsel dispassionately to lay out the facts and help him to reach a just conclusion.

A consensus has formed on the introduction of a sunset clause, too. A number of amendments and new clauses have been tabled that propose different dates and mechanisms, but the House has come to an agreement—and, through their new clause, the Government have joined that agreement—that a sunset clause is imperative.

My right hon. and learned Friend the Member for Folkestone and Hythe congratulated the Judicial Committee on not asserting some form of supremacy over this place, but inviting us to do what we should do—legislate to fill the vacuum that its decision has created. Too often nowadays the response to judicial activism is parliamentary abuse, but my right hon. and learned Friend’s speech was an exception. Indeed, in all parts of the House today there has been a proper recognition of the need to respect the wisdom and advice of the Law Lords, and to fulfil our duties in dealing with the problem that they have set us. It is now up to us, in the period that remains to us this evening—I trust that it is not controversial to say that we have not enough time in which to scrutinise the Bill properly—to produce a scheme for the provision of anonymous witness orders that meets the requirement for justice in each case, and provides fairness under the rule of law.

6.42 pm

The Parliamentary Under-Secretary of State for Justice (Maria Eagle): I shall respond briefly, given that I shall deal in more detail in Committee with some of the points that have been raised.

I welcome the constructive way in which Members in all parts of the House have dealt with the Bill so far. There has been wide agreement on much of it. My hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) observed that it was small but perfectly formed. I do not think I have ever heard him say that about a Bill before. Between all of us, we must be doing something right. I am also grateful to the Front Benchers in all parties for the constructive way in which they have worked during the short period available to produce the Bill in its current form. We are all determined to produce a Bill that is fair to the defendant, protects the public from dangerous offenders, and ensures that witnesses receive the protection that they need from intimidation and violence in appropriate cases.

Many of those who have spoken in this short debate have raised issues of concern that remain. I can assure them that, as far as the Government are concerned, the granting of witness anonymity should be an exception and should not become routine. Some Members who are legal practitioners clearly feel that it has become rather too routine. However, as my hon. Friend the Member for Hendon (Mr. Dismore), who made an erudite and helpful contribution with the benefit of having heard the Director of Public Prosecutions give evidence to his Committee earlier today, pointed out, according to a snap survey conducted by the Crown Prosecution Service, witness anonymity has been attached
8 July 2008 : Column 1333
to some 580 of 1.3 million cases in the courts over the past year. That indicates that it is exceptional rather than routine, and we certainly do not intend to turn it into a routine procedure.

I think we all agree that sensible and proportionate arrangements are needed for the granting of anonymous witness orders, and that there must be a presumption of openness. Open justice is the most important element, and the article 6 rights of the defendant must be the primary consideration in ensuring a fair trial. That requirement is at the core of the Bill.

A number of Members approved of the proposal for a special counsel. A group of amendments deals with that issue, but I will say now that it is not absolutely clear from either the amendments or the comments that have already been made what role is envisaged for the special counsel—whether, for instance, he or she might be a friend of the court or a protector of the rights of the defendant. We must be clear about that if we are to proceed, but if we are not able to consider it during the passage of this Bill, it may be possible for us to do so when we debate the replacement legislation later in the year.

I am glad that there has been general agreement on both sides of the House, although not in every detail, as the new clauses show, that the provision of a sunset clause is right in the particular circumstances of the Bill. I am glad that, having discussed the issue with Opposition Front Benchers and others with an interest, the Government have been able to reach a view that is acceptable to all.

I enjoyed the speech of the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I know how bruising it can be to be Home Secretary, and to have to hold one’s tongue when judicial reviews are flying around and decisions are being made with which one may not agree. Revenge is a dish best served cold, and the right hon. and learned Gentleman clearly enjoyed that aspect. What I particularly enjoyed was the irony that judicial activism of an extreme nature has led the judges to set out the boundaries of their capacity to influence these matters. They have certainly alerted us to the existence of an issue that needs to be resolved.

I agree with all Members who have accepted that the Government are acting in good faith. The matter needs to be dealt with swiftly, and we are grateful for the co-operation that we have received. I understand the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) about the undesirability of speed. I hope that, whatever goes on to the statue book at the end of July, we can return to the issue more fully and at rather more leisure in debating the fourth Session Bill.

Question put and agreed to.

Bill accordingly read a Second time.

Bill immediately considered in Committee, pursuant to Order [this day].

[Sylvia Heal in the Chair]

Clauses 1 and 2 ordered to stand part of the Bill.

Clause 3


6.48 pm

David Howarth (Cambridge) (LD): I beg to move amendment No. 35, page 2, line 26, leave out subsection (2).

8 July 2008 : Column 1334

The First Deputy Chairman of Ways and Means (Sylvia Heal): With this it will be convenient to discuss the following:

Government amendment No. 40.

No. 20, page 2, line 27, leave out ‘prosecutor’ and insert ‘court’.

Government amendment No. 41.

Amendment No. 2, page 2, line 27, at end add—

‘(3) The court must give every party to the proceedings the opportunity to be heard on the application.

(4) For the purpose of considering an application for a witness anonymity order the court may appoint an independent counsel to assist the court, and, without limiting the directions that the court may make, the court may direct the independent counsel—

(a) to inquire into the matters that are set out in sections 4 and 5 and any other matters that the court may think relevant, and

(b) to report his findings to the court.

(5) Where an independent counsel has been appointed, the party who applied for the witness anonymity order must make available to the independent counsel all information in relation to the proceeding that is in the party’s possession.’.

Amendment No. 18, page 2, line 27, at end add—

‘(3) For the purposes of considering an application for a witness anonymity order the judge may appoint a special advocate to represent the interests of the party not present.’.

Amendment No. 19, page 2, line 27, at end add—

‘(3) Any application for a witness anonymity order must be made to the court at the earliest opportunity.’.

Amendment No. 36, page 2, line 27, at end insert—

‘(3) The application must be heard by the court in chambers and determined on evidence admissible in a criminal trial.’.

New clause 6— Independent counsel—

‘The court may appoint independent counsel to test any evidence of, and to advise it upon, the witness’s fears under section 4(6) and the relevant considerations under section 5(2).’.

New clause 7— Independent counsel (No. 2)—

‘(1) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.

(2) The court may direct the independent counsel to investigate on the court’s behalf any matter the court thinks fit, subject to any instruction the court thinks fit, and in particular to inquire into any matter referred to in section 4(3), 4(6) or 5(2)(d).

(3) The party applying for the witness anonymity order must make available to the independent counsel all information relating to the proceeding that is in that party’s possession.

(4) The party applying for the witness anonymity order is responsible for paying the fees of the independent counsel.’.

David Howarth: Amendment No. 35 relates to clause 3(2), but many other amendments and new clauses tabled by Members on both sides of the House deal with the important issue of the independent counsel, and I expect the debate to concentrate more on that than on amendment No. 35. The group also includes amendments concerning procedure requirements, including Government amendment No. 41, which I very much welcome.

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