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Clause 3(2) builds on the provision earlier in the Bill that anonymous witness orders may be sought not just by the prosecution but by the defence. It goes on to say, however, that if the defence obtain an order, the prosecutor will still get to know the identity of the witness. However, it is a fundamental aspect of the Bill that if the prosecution obtains an anonymity order for one of its witnesses, the
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defence team does not learn the identity of the witness. This is a bad idea for a reason that goes to the heart of the problem with anonymous witnesses. If one knows the identity of a witness, one can research their background and record, and with that information one can conduct a far more effective cross-examination than one can without it. The prosecution will, therefore, be in a far better position if the defence obtains an anonymous witness order than the defence will be in the opposite circumstances. The defence cannot know the identity of the anonymous witness, so it cannot conduct effective research into that witness. It will, therefore, be in an unequal and unfair position compared with the prosecution. The amendment therefore seeks simply to strike out subsection (2).

There is also a fundamental human rights problem, which I do not think the Government have properly addressed so far—and I wonder whether it has been addressed by the Joint Committee on Human Rights. Article 6(3)(d) of the European convention on human rights says that defendants are entitled to examine witnesses on their

them. It is clear to me that subsection (2) violates that rule. What will happen in a case where both the defence and the prosecution obtain witness anonymity orders? It will not be true that the two sides are operating under the same conditions; they will be operating under fundamentally different conditions.

The Government have said that this is not a problem because the prosecution will not tell the police the identity of the witness. It is technically true that the police are not the prosecution’s client, but how will the prosecution investigate the background of an anonymous defence witness, whose name they will often know, other than through the police? In the television programmes where lawyers go gallivanting around the countryside doing their own investigations lawyers might look into the background of witnesses themselves, but in the real world the police carry out the investigations. Furthermore, simply saying that the information will not go to the police, which I do not think is true, does not meet the point about fairness and unequal treatment; in fact, it reinforces it.

The obvious way out of the clause 3(2) problem is the independent counsel—an institution that could be used not just in the ordinary case of a prosecution anonymous witness, but in the opposite case of a defence anonymous witness. That way out of the problem is much better than the Government’s.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): I hear what the hon. Gentleman says, but is there none the less not a difficulty in that if the independent counsel is to investigate the witness, they will have to know who the witness is and something about them, and that information can very often only come from the police, who have access to intelligence and other material not known to anybody else?

David Howarth: That is a problem, but it is one that arises in the ordinary case in any event, because in most cases the police are not the primary investigatory tool of the defence. One hopes in a perfect world that they might be, but, as I understand it, that is not how things actually work.

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The problem can be overcome by having one or two independent counsel, depending on whether both sides obtain witness anonymity orders, and for each side to be treated exactly the same. One cannot, however, overcome the problem that the prosecution has at its disposal the forces of the state. It is one of the fundamental problems with criminal prosecution that the state always—or nearly always—has more resources than the defence. That is one of the reasons why I agree with the right hon. and learned Gentleman’s view about the balance between convicting the innocent and acquitting the guilty.

I hope that the Government will listen to the case that will be made for having the independent counsel. One view, which I have heard Ministers allude to, is that the judge can do the investigatory work. That is implausible given the judge’s other tasks, and it is also implausible to expect a judge who was, for example, a commercial silk suddenly to turn into a criminal defence or prosecution lawyer. [Interruption.] The hon. Member for Wolverhampton, South-West (Rob Marris) mentions French television. He is right that one of the fundamental aspects of the independent counsel idea is that it introduces an investigatory element into our system, but it does so in a way that preserves some basic adversarial aspects, in so far as the questioning is by a lawyer, not a judge.

I constantly return to the point that the independent counsel system will protect not only the defendant, in being a safeguard against a miscarriage of justice, but the process itself when otherwise the court might decide not to grant an anonymity order, or an appeal would be successfully lodged. In the most difficult case of all—the “sole” or “decisive” case—where credibility is an issue, the only hope of getting through the human rights standard is the independent counsel. Therefore, if the Government turn down this method, in effect they will be saying that in future fewer cases will have a chance of succeeding than do now.

The Government asked how the system would work: what process do its proponents envisage? It is true that it is a hybrid between what happens now and what might happen in a more continental system, but fundamentally the independent counsel, as it says in the New Zealand statute, assists the court. The job is to assist the court in deciding whether to grant the order.

Independent counsel will investigate two matters and report to the judge: whether the need for an anonymity order has been established—whether there is evidence of threat to the safety of the witness, or of the other criteria laid down in statute—and whether the witness lacks credibility. Independent counsel would therefore be of great assistance to the court with both those tasks.

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As I understand it, the Government object to the idea, first, on the ground that it seems complicated. That is true, I suppose, but it does not seem too complicated for the New Zealand courts to operate. Another possible objection is that it might be expensive, but it seems obvious to me that it would be less expensive than fighting appeals—and especially losing appeals.

Mr. Edward Garnier (Harborough) (Con): Or retrials.

David Howarth: As the hon. and learned Gentleman says, it would also be less expensive than fighting retrials. In any case, the current position whereby independent
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counsel can be appointed seems a parallel one, although, as we said in an earlier debate, whether the current judiciary know that they have such power seems unclear.

Mr. Geoffrey Cox (Torridge and West Devon) (Con): What does the hon. Gentleman think should be the test for the judge in listening to the report of the special counsel? That the witness is capable of belief? That he is prima facie telling the truth? What burden should the judge impose on the special counsel to convince him—if the task is to convince him—that someone is not to be called as an anonymous witness?

David Howarth: That is an issue for a future debate on a later clause, and I would prefer not to spend the Committee’s time on it now. The answer with regard to the independent counsel is that the task is investigating according to the standard in the statute—whatever standard that is—and is therefore governed by what the statute says.

The Secretary of State for Justice and Lord Chancellor (Mr. Jack Straw): With great respect to the hon. Gentleman, the question that the hon. and learned Member for Torridge and West Devon (Mr. Cox) has just asked him is very germane to this debate. It is incumbent on those moving that these provisions should be included in this emergency Bill to be clear about what the exact implications are. I beg to suggest that the hon. Gentleman is not all that clear.

David Howarth: I do not want to be accused of anticipating a future debate, but this issue is precisely that raised by the amendment of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), on whether the standard should be that the court may make an order if it is satisfied about the conditions, or only if it is sure. The independent counsel would work to whichever of those standards was in the statute, and I do not see how that issue is at all relevant to the question of whether we should have an independent counsel system in the first place.

The other point that the Government seem to be making is that this issue could be dealt with by issuing guidance on the existing power. The trouble with that is that the existing power appears, first, not to apply to the magistrates court. Secondly, it seems to be exceptional, and, as we have already discussed, it ought to be exercised rather more often than exceptionally. Thirdly, on a practical matter, it is not clear under the existing system exactly who pays and how much. That issue should be dealt with by the statute.

The Solicitor-General (Vera Baird): I doubt whether the situation is as the hon. Gentleman says. As I understand it, magistrates would be able to write to the Attorney-General to ask for a special counsel to be appointed, just as a judge would do, I think, using the more ordinary route. They would not just appoint under inherent jurisdiction, but would write to the Attorney-General asking for an appointment to be made in that fashion. I do not think, therefore, that there is a bar on magistrates courts having such assistance—if assistance it be—but it is very difficult to get a clear view of what special counsel is intended to be at all in this case. Is it to be a person who represents the defence, so that there are no secret things that the defence counsel cannot know, because he must pass them on to his own client? Alternatively, is it, as the right hon. and learned Member
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for Sleaford and North Hykeham (Mr. Hogg) suggested, really an aid to the judge; or is it, as the hon. and learned Member for Harborough (Mr. Garnier) suggested, somebody who susses out whether the witness is really frightened or not? All three conflict with each other. Is that not the problem with trying to get a provision such as this into legislation now, rather than waiting until we have sorted out what we really want?

David Howarth: On the hon. and learned Lady’s point about magistrates courts, this seems to add yet another problem to the existing arrangements, in that one has to apply to the Government to get a special counsel. I suggest that that is not the right thing to do; there should be a more direct route. On her second point, it seems clear to me that the independent counsel assists the court and thereby protects the defendant, but also thereby protects the process itself from challenge. That seems perfectly straightforward.

Mr. David Heath (Somerton and Frome) (LD): I really cannot understand the Government’s argument that there is a lack of clarity about the counsel’s role, given that it is set out explicitly in new clause 7, in my hon. Friend’s name. What could be more explicit than the phrase

followed by a reference to the independent counsel’s acting on the direction of the court in such a way as the court may see fit?

David Howarth: That is precisely right. Our new clause is explicit, but my impression is that the amendments and new clauses proposed by other Members have the same intention—that the purpose is to assist the court in coming to the decision that it is given by the statute to make.

Mr. Hogg: Does the hon. Gentleman not agree that the purpose of the amendments and new clauses drafted by him and by me is in no sense to relieve the judge of the obligation of determining whether he or she is satisfied that the conditions and the criteria are laid out, but to investigate things preparatory to their making that adjudication, and that the judge can ask questions of the relevant witnesses, informed by a prior report from the special counsel?

David Howarth: That appears to be what happens in the New Zealand example, and it is one way in which I would expect the system to work here. This is a way of getting better, higher-quality and more defensible decisions from the court when it is required to make the decision that the statute requires it to make.

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I agree with the hon. Gentleman’s argument. When I questioned the Justice Secretary earlier, he shook his head violently at the idea that there is not equality of arms in this clause. This provision would deal with that problem, but it would presumably keep the whole matter in-house, as well, and there would be a report specifically to the judge—be it regarding anonymity of a prosecution witness, a defence witness or both. This is a good example of a practical solution.

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David Howarth: That is precisely right. This idea solves a lot of problems, which is why I am confused and unclear about why the Government seem to be resisting it.

Mr. Hogg: I hope that the hon. Gentleman will forgive my observing that if we had had more time, we would be getting in touch with the New Zealand authorities to ask them about their experience. That might have resolved all the problems raised by the Solicitor-General.

David Howarth: I am sure that e-mail works rather better than ordinary mail did in the old days, but in principle I agree with the right hon. and learned Gentleman.

I want to let other Members speak and there are a number of other amendments in this group, but I want to finish by referring briefly to an issue on which the Government have moved, for which I thank them. Regarding the group of amendments on the procedure for deciding whether to grant an order, there was concern that no procedural provisions were being made in the Bill. The Government have now moved amendment No. 41, which goes a long way towards removing those concerns. I still have one small worry, however, about the standard of evidence admissible in the hearing before the judge. That is why I have moved amendment No. 36—just to test the issue and to ask the Government how they see that question being answered. On the basis that amendment No. 41 shows that the Government are listening, I welcome it. I just hope that they will also listen on the central issue of the independent counsel.

Mr. Garnier: I largely agree with the broad thrust of what the hon. Member for Cambridge (David Howarth) has said and I do not share the confusion that appears to have arisen in the mind of the Solicitor-General. I also accept the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that if we had more time, these niggles could be ironed out, but we do not, so we will have to do the best that we can.

While I accept what the hon. Gentleman said about the need for a special advocate, I approach his arguments about amendment No. 35 somewhat differently. Our suggestion is not that the whole of subsection (2) should be deleted, but that the equality of arms that we seek should be achieved through amendment No. 20, which requires the insertion of the word “court” instead of the word “prosecutor” in clause 3(2), so that the court, not the prosecutor, would have to be informed about the identity of the witness.

I shall not rehearse the arguments about the links between the police and the prosecution system, because that would be tedious and repetitious, but those arguments are important. The Bill and the system of justice would be strengthened were the information to be given to the court, not the prosecutor. If the Government accept amendments relating to the appointment of special counsel or advocates, it would be sensible for the court to include the special prosecutor, because he would be conducting himself for the benefit of the court, albeit by collateral advantage—if he did his job properly, it would be to the benefit of both the warring parties, the prosecution and the defence in any given case.

I, too, am pleased to note the Government’s amendments in relation to the process by which the applications will be made. It must be sensible that those interested should
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be given an opportunity to be heard and to explain their case—or their resistance to the case—on the application as appropriate. I accept that on some occasions the application will be made, at least initially, ex parte, but it may on occasion be right and just that the matter should be contested inter partes at a later stage.

However, we urge that any application—this is the thrust of amendment No. 19—for a witness anonymity order must be made to the court at the earliest opportunity. That may be an obvious request, but far too often advocates or lawyers advising either the prosecution or the defence do not apply their minds to the marshalling of the necessary administrative orders until far too late a stage, which delays the speed at which the trial can progress. I urge that any change to the Bill should include a requirement along the lines of amendment No. 19.

None of the amendments on special advocates were tabled by me or my colleagues on the Front Bench, but I do not think that that matters. What is important is that we get the Bill right. Amendment No. 2, tabled by my right hon. and learned Friend, is an attractive attempt to address the problem, although I do not suggest that he has every dot and comma in the right place or that an inclusion in the Bill of a provision on special counsel should necessarily be in this form. For my part, I dealt with it as a relevant consideration in amendment No. 24 (ai) to clause 5.

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In any case, we all have the same aim—to try to produce a system that preserves fairness as much as possible. Special advocates or independent counsel are no more than a compromise solution, and are by no means ideal. They must surely offend the principle that we expect fearless independent representation for the defendant, untrammelled by interference from the Government, Parliament or other mighty influences. If we are to have anonymous evidence, the court needs assistance in finding the facts on which to make its decision whether to grant an application for an order or not. Necessarily, the respondent to an application under clause 2 cannot know the details of the witness, which, if published, would negate the purpose of the application.

The prosecution cannot protect, or be seen to be protecting, the rights and interests of the respondent, albeit that as a matter of professional duty they try to do that. The defendant, or defence witness, has no obvious interest in being open with the prosecution, albeit that those who represent them would, in line with their professional duties, endeavour to be so. We agree that the courts should have the discretion to appoint a special advocate under the Bill, to ensure some fairness in an area of procedure in which unfairness is undeniable and unavoidable. If we are to take away the defendant’s fundamental right to know and freely to cross-examine his accuser, we must build into the system mitigating measures, and the special advocate would be one such—albeit imperfect—measure.

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