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Special advocates are used in cases involving suspected terrorists and control orders, heard by the Special Immigration Appeals Commission. There, they are creatures of statute, not the common law, albeit that in matters affecting disclosure the ordinary courts have an inherent power to appoint special counsel, as my right hon. and learned Friend reminded us. However, they are not the
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same as the amicus, the friend of the court, brought in to help the court on the law, or as counsel to an inquiry such as the Hutton inquiry. They need precise statutory provision to allow them to exist and they cannot be developed from some imprecise, inherent power.

The consensus that I identified in my closing remarks on Second Reading does not quite include the amendments on the need for a special advocate, if the interventions by Ministers so far are a true reflection of their position. I hope that at some point—preferably today—the Government will move towards us, just as we have moved towards them on many of the details of the Bill. I am not sure whether the hon. Member for Cambridge (David Howarth) intends to press amendment No. 35 to a Division. If he does, we will follow him, not because we support it, but because we want to use it as a means to demonstrate our support for the special advocate.

Mr. Robert Marshall-Andrews (Medway) (Lab): I shall not detain the Committee for long, but I wished to address the powers of independent counsel and give a harmless example of how one might be used in a hypothetical case. I have burdened the Solicitor-General with precisely this example already, so I apologise to her for the repetition.

Let us take the not unlikely hypothesis that I am representing somebody in a serious criminal case and anonymity is sought for a witness. The witness, of course, is named with a pseudonym, or simply as A, and we have a statement that is heavily redacted so that everything in it that should give us the identity of that witness has been removed. None the less, the witness is important from our point of view.

It appears from the case papers that the witness does not have an axe to grind and was a bystander or someone who was otherwise innocently involved, but the evidence is still important. I say to my client, “What do we say about this?”, and my client says, “I think that this witness is X. There are things that I see on these papers that lead me to believe that I can identify the witness and I can tell you that the witness is not the innocent bystander that she makes herself out to be.” The client might say that the witness was partisan, for example, because she was married to or related to the main prosecuting witness, and had an axe to grind in some way that was not revealed in the papers.

Without a special advocate, I can put all that in writing and articulate it in court, if necessary. I can give it to the judge and ask him to make his own inquiries about whether I am right or wrong, but I cannot take it to the next stage if the judge says, “Well, you’re right, as a matter of fact.” What can I then do about it? What representations and advocacy will be made to me about the steps that I can take once I have established, as a first fact, that my client has correctly identified the person on the statement? That is when an advocate is required. The advocate will go to the judge’s chambers, with prosecuting counsel, and the judge will say, “You are right. This witness is X, but we do not know at this stage whether the witness is partisan or whether the allegations made by you to me are true.” The special counsel will be acting after a conference with me as defence counsel in which I will have told him all the things that we believe and asked him what he thinks we ought to do. Special counsel will then say to the judge, “You ought to set in train the following inquiries.”

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Mr. Cox: What does the hon. and learned Gentleman think is the difference between the situation that he is outlining and that which frequently arises in the courts when an application is made by the Crown to disguise the identity of an informant? Precisely the same considerations arise, yet no special counsel is allowed. I wonder whether the Government’s concern is that by opening the door in this Bill they will be opening the door for matters relating to disclosure in Crown courts.

Mr. Marshall-Andrews: With great respect, if the hon. and learned Gentleman does not mind, I do not want to go down that interesting diversionary route. Public interest immunity is different. PII judges are armed with different considerations and prosecuting counsel has clear lines of inquiry. The concept of informants is well known. What I am talking about is a witness in a case who might have completely misled the prosecuting authorities about the nature of his role as a witness. I want to concentrate on that for a moment, if the hon. and learned Gentleman does not mind. PII is imperfect, as we all know, but this provision could be very imperfect.

In such cases, what is necessary is an advocate who knows what the facts are, knows the identity of the witness and can advocate what the judge should do in those circumstances. More than hypothetically—almost certainly—they could say, “It is our submission that you should put into train the following inquiries in relation to this witness before you make a decision. If necessary, you must use the prosecution in order to do so.” That would mean that somebody could come back and say, “Yes, on inquiry, they are right. This witness is apparently not the person that he or she appears to be.”

In such circumstances, an advocate is needed. It cannot be done in the abstract. There are two reasons for that. First, advocacy is not a bad idea anyway. Secondly, and more importantly, if the judge says, “I will not do that. I will not put those inquiries in train”, there is cause for appeal based on what the judge has said. If one does not have a special advocate, one does not know the basis on which the judge has arrived at that decision, and one never will. That is a hypothetical example.

Mr. Hogg: Might I suggest to the hon. and learned Gentleman a further advantage? If one is right to think that the protective measures in cases where credibility is the primary issue will, generally speaking, always fall foul of the unfairness rule, the special counsel approach, which he is advocating, will go a long way to meeting the European jurisprudence and satisfying the test of fairness.

Mr. Marshall-Andrews: I agree entirely. That is a strong tangential point to the one that I hope I am making.

I would have thought that if one did not have an advocate in such circumstances, the chances that a number of cases would transgress article 6 and other parts of the convention would be very high indeed. An inquiry would take place extra-territorially, which is extremely undesirable when we ought to be able to do it ourselves.

I have wearied the Committee with this example. I hope that it is thought to be one that is reasonable in the circumstances and likely to occur in a number of serious
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cases. I have thought about a way around that and I can find none. It prompts one particular question, which has something to do with angels and pins: who precisely does the special counsel represent and what is his role? That is not difficult. The special counsel is manifestly a minister of justice in the same way as everybody else. He is there to see that justice is done. One of his roles is precisely the same as that of a Special Immigration Appeals Commission counsel, who talks to the representative of the terrorist or suspected terrorist who is subject to a control order, finds out what his instructions are, and conveys those instructions back to the tribunal, to which he has unique and independent access. I can see nothing wrong with that, but I can see enormous advantages, particularly as it is a power that will be rarely used. It will be used only in the most serious cases and when judges, in accordance with that, perceive the need for that additional power.

I shall listen with interest to see what the Government say is wrong with that. So far, I have heard nothing on it. I dare say that something will come, but this is an attempt to be as helpful as one possibly can be.

Mr. Hogg: I rise briefly to endorse what the hon. and learned Member for Medway (Mr. Marshall-Andrews) has said. His explanation of the circumstances in which the special counsel is likely to be required is entirely accurate and seems to meet the real difficulty that Davis has thrown up. To go back to Davis, the problem that we rarely confront when we discuss the detail of the Bill is not the question of whether the common-law power ever existed, but the question of whether protective measures, when credibility is at issue, can ever be fair or, to go a little further, whether they can ever be compatible with the European jurisprudence. It is important to keep in mind the fact that the Law Lords all held that the protective measures in that case were such as to render the trial unfair and incompatible with the European jurisprudence. We must ask ourselves how, using protective measures as prescribed by the Bill, we can still ensure fairness.

What the hon. and learned Gentleman has suggested seems to me to be the clear way forward. If we do not follow his advice, or accept amendment No. 2, which I have taken the liberty of tabling, I suspect that the measures set out in the Bill will very seldom be invoked when credibility is an issue. The outcome will almost certainly be deemed unfair, either on appeal or when the order is applied for. To endorse the point made by the hon. Member for Cambridge (David Howarth), the presence of a special counsel is a way of ensuring that applications can be made, but also a way of ensuring that they are not made inappropriately. I hope that Ministers will seriously consider putting that provision in the Bill, either today or in the other place.

7.30 pm

Very few practitioners are aware of the latent, inherent power of the court to appoint such counsel. In any event, it is right that we should make statutory provision for it. We have done so in other cases, such as in the Counter-Terrorism Bill, which makes specific reference to special independent counsel. We should not shrink from that simply because there is an inherent power. If it is inherently desirable, statute should say so.

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Mr. Michael Howard (Folkestone and Hythe) (Con): Would not the confusion about the precise role of the special counsel, which has been identified in the debate, be likely to be in the mind of any tribunal seeking to exercise an inherent power that was not set out in statute, as my right hon. and learned Friend suggests it should be?

Mr. Hogg: That is entirely right, although of course confusion does currently arise when an independent or special counsel is appointed in the context of disclosure, for instance. The query that the Solicitor-General raised can arise in that situation. Amendment No. 2, which is based almost word for word on the New Zealand Act, clarifies the point precisely. Under it, the independent counsel would answer to the judge, address the considerations and conditions set out in clauses 4 and 5 and respond to specific queries from the judge. In other words, he would be acting as a minister of justice, as the hon. and learned Member for Medway said. In one sense he would represent the defendant’s interests, but he would also represent those of a court that needed to be better informed. Putting that role in statute would both respond to the point that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) identified, and satisfy the anxieties that the Solicitor-General expressed.

Mr. Garnier: May I remind my right hon. and learned Friend about the specific provisions in the Special Immigration Appeals Commission legislation? It states not that the special advocate is to represent the respondent but that he may represent their best interests.

Mr. Hogg: Yes, indeed. My hon. and learned Friend is quite right. In all the legislation in which special counsel has been provided for, it has been stated explicitly that that he does not answer to the defendant or respondent. He has a special free-standing role, and is a minister of justice, but he is subject to the authority and directions of the judge. That is a way forward, and would ensure that the cases in question had a much better chance of satisfying EU requirements.

Mr. Andrew Dismore (Hendon) (Lab): I rise to speak to new clause 6, which is my proposal on independent counsel. But before doing so, I shall respond to the hon. Member for Cambridge (David Howarth), who asked whether the Joint Committee on Human Rights had considered the point that he raised about article 6(3)(d) of the European convention. We have not considered it specifically, but we did raise it with the Director of Public Prosecutions this afternoon and discuss with him the equality of arms, or otherwise.

We are comparing apples and oranges, because why would a defence witness require anonymity? Their position is rather different from that of a prosecution witness, who might well be afeared of victimisation by the defendant or his associates. What could a defence witness be afeared of? Victimisation by the police, perhaps, but it is rather unlikely.

Mr. Garnier: Will the hon. Gentleman give way?

Mr. Dismore: I shall finish the point and then give way.

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It is probably more likely that defence witnesses would fear victimisation by other criminal associates. In those circumstances, the prosecution must have the opportunity of looking into the antecedents of a defence witness. That is a different kettle of fish entirely from a prosecution witness, who will have different fears. The hon. and learned Gentleman’s point about the need to give the information to the court gets us no further, because the judge knows the anonymous witness’s identity anyway, as would an appeal court. That is the position now, and will continue to be the position.

Rob Marris (Wolverhampton, South-West) (Lab): Might not a witness who has been called by one defendant apply for an order because he is worried about another defendant, represented by a different counsel? The defendant who has called him might say, “It wasn’t me who caused the affray, it was so-and-so, and here’s a witness.”

Mr. Dismore: My hon. Friend is entirely right, and it would be appropriate for the prosecution to be able to investigate that. A defence witness is a completely different kettle of fish from a prosecution witness. As I have said, the JCHR has not discussed the matter in detail and come to a view on it, but I am giving mine, which pretty much relays what the DPP said to us today.

David Howarth: Is not that explanation a further argument for rethinking clause 3(2)? It seems that it is intended to deal with a number of different problems. On one side there is the witness who is afraid of what the police might do, and on the other there is the witness who is afraid of what other defendants might do. It seems entirely wrong for one clause to deal with both those problems. With the latter type of witness in particular, consent will be an issue. They might want the police to investigate, in which case they could say so.

Mr. Dismore: If that is the case, there is no problem. I do not see any significant difficulty with clause 3(2), for the reasons that I have given. I certainly agree with the hon. Gentleman’s more important point that the way to resolve the difficulties is by having an independent counsel, who could get to the bottom of the story.

There has been some loose language in the debate. Hon. Members have talked about independent counsel, special counsel and special advocates. We need to be more precise and tight in our language. I have not used the term “special advocate” in the new clause, because it has certain connotations in our legal system. Special advocates have given evidence to the JCHR on several occasions, both formally and informally, and one of their main concerns is what they call “mission creep” in terms of how the system of special advocates has spread from counter-terrorism. That is why I have used the term “independent counsel”, which I believe is drawn from the New Zealand system.

The new clause is intended to codify the inherent jurisdiction that already exists. It would not create anything new, as I am effectively proposing a type of amicus whose job is to advise the court without specifically representing either party involved in the case.

We need to be careful because, as the Government have said, the provisions could easily get out of hand. I am concentrating on the “civilian cases”, as the DPP puts it—the 50 or so cases that do not involve the police or security services, in which credibility will be the key issue. I have phrased the new clause to exclude public interest cases, such as those involving undercover police,
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and to focus on the key issues: the basis of the witness’s fears and whether the relevant credibility considerations in clause 5(2) are met. The independent counsel would test the evidence for that and advise the court accordingly. It seems to me that that would create a regime limited enough to meet the Government’s concerns and objections and also provide the necessary independence that we all want, yet at the same time one that would not get completely out of hand when it came to the other issues.

Mr. Marshall-Andrews: My hon. Friend may well be coming to this point, but will he deal with what appears to be an immediate and obvious problem? How will the evidence be tested? Will there be a trial-within-a-trial—a voir dire—and, if so, how will that take place? Who will preside over it? Will it be in chambers or open court? I do not want to go on, but is that the sort of trial that he envisages?

Mr. Dismore: The starting point would be a hearing before the judge, as happens now. Government amendment No. 41 proposes an initial ex parte application followed by an inter partes hearing, and the independent counsel would play a role in both aspects.

I do not think that we can achieve perfection, but that is probably the way forward. It may be possible to test some of the evidence on paper initially, but it may ultimately be necessary to have the witness at least on an ex parte basis. That would depend on what the system throws up: we are talking about a relatively small number of cases, and I do not think that what I propose would be unmanageable.

Mr. Hogg: Might I suggest that one answer to the question from the hon. and learned Member for Medway (Mr. Marshall-Andrews) is that there might have to be a voir dire, in which the witness is questioned in front of the judge? The judge would also be able to ask questions. The preliminary research by independent counsel would be made available to the judge, so that there could be informed questioning at the voir dire.

Mr. Dismore: The right hon. and learned Gentleman is right, and what he suggests would have to be on an ex parte basis. That is where the independent counsel comes in, as he would perform any cross-examination of the witness that proved to be necessary.

That approach would be something of a last resort, to be used only when a preliminary inquiry had thrown up real questions of credibility. There may be no credibility problem in many of the 50 cases that we know about. The DPP said that such problems would arise in some of the 30 Operation Trident cases, but that implies that they would not in many others. The approach that I have outlined might be necessary in cases such as the Davis case, but that eventuality would probably turn out to be the exception to the exception to the exception, as it were. The inherent jurisdiction, together with the Government’s proposal for ex parte applications and inter partes representations, starts to achieve the outcome that I have set out.

We are told that there are concerns about costs, but a maximum of 50 or so cases a year will not lead to costs that are unmanageable, given the importance of the cases that we are talking about and the overall interests of justice. I think that the costs should be borne by public funds.

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