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As for magistrates courts, it is presumably within the Attorney-General’s discretion to grant any application made to him. The process is extremely complicated, whereas it would be simpler to allow the magistrates to have a similar jurisdiction. I put that to the DPP earlier today: he agreed that if magistrates did not have that inherent power, the suggestion to give it to them had merit.

There seems to be consensus around the House, if not in the Government, about the importance of independent counsel. I hope that Ministers have listened to the debate and that, if they cannot resolve the matter this evening, they might introduce amendments to this Bill in the other place. If that is not possible, I hope that they will bring forward suitable proposals to resolve the problem in the long term in the more substantive Bill that we will see in the next Session.

Rob Marris: I thank the Government for Government amendment No. 41, which makes it clear that there has to be a hearing, and that no trial will be held entirely on paper, unless that is what all the parties involved agree to.

I want to make some remarks about the independent counsel. I am quite attracted to amendment No. 2 and new clause 7. I hope that the Government can make some movement on those proposals or persuade me that there is no need for an independent counsel. As a lay person—I am a solicitor, but I have not done much criminal law, and even then not for many years—it seems to me that fairness demands that there should be an independent counsel. I understand from the helpful remarks made by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) that similar systems are in place elsewhere. I remember the discussions that we had with the Special Immigration Appeals Commission about what should be done in respect of terrorist and other cases, and it seems to me that an independent counsel could be of great assistance both for fairness and the for appearance of fairness.

7.45 pm

The appearance of fairness is of particular importance in our criminal system. We in this House must always be careful when we are dealing with matters such as these. Many of our constituents see terrible behaviour in their communities. They would like to be witnesses, but think it only right that they should have anonymity. Quite understandably, they overlook the existence of the balance that we have been talking about—that is, that a defendant should have some idea of the case being made against him and of who is assisting that case, most likely as a prosecution witness.

As we have noted, it is very important that the system should not be stacked in such a way that innocent people end up being convicted because they cannot test the evidence against them properly. When that happens, we have a double problem: an innocent goes to prison—that is not desirable at all—while the person who committed the crime and created the mayhem is allowed to run around outside.

We need a fair and properly balanced system, one in which evidence is tested in favour of anonymity, and to that end, an independent counsel who would “assist the
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court”, as both amendment No. 2 and new clause 7 propose, would be desirable. I hope that, if the Lord Chancellor is replying to this debate—

Mr. Straw: He is.

Rob Marris: I am grateful to my right hon. Friend for that sedentary clarification. If the Government do not think that the amendments are appropriate, I hope that he will elucidate why. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) has said that amendment No. 2 is very similar to the provisions in the New Zealand legislation on which the Bill is broadly based. I think that it is a good idea, and I hope that the Lord Chancellor will show some movement on the proposals. Failing that, I hope that he will present some cogent arguments as to why the amendment would not be appropriate. He needs to explain why it would merely be a fig leaf when it comes to giving an appearance of fairness, and why it would have other negative effects. As I have said, it sounds rather attractive to several of us on the Government Benches.

Mr. Straw: This has been a measured debate, and I thank hon. Members of all parties for their contributions. I shall deal with the various amendments that we are considering before I come to the special advocate proposal which, given the weight of opinion in the House, is the most important proposal before us.

Government amendments Nos. 40 and 41, and part of amendment No. 2, relate to a party’s right to be heard and the need to put it on to a statutory footing. I am glad that the Government amendments have been generally welcomed on both sides of the House. That is one of the benefits of our detailed consultation with the Opposition parties, even though that inevitably took place in a very short space of time.

Amendment No. 19, moved by the hon. and learned Member for Harborough (Mr. Garnier), would require that an application for an order be made at the earliest opportunity. I accept that in principle, but I ask the hon. and learned Gentleman to accept that the criminal procedure rules are the right place for such a provision. Indeed, the phrase “earliest opportunity” begs a question: it is improbable that the prosecution would delay applying for such an order, as any such application would disrupt the trial process. Exactly at what point they are able to do that, however, will depend on the merits of the individual case.

Amendment No. 36 would place in the Bill a requirement that the application for a witness anonymity order must be heard in chambers and determined on evidence admissible in a criminal trial. I ask the House to consider for a moment what the implications of that proposal would be. The applications will take place before a judge in chambers, away from the jury. We have exclusionary rules of evidence in England and Wales precisely because of the nature of the jury system. Applications are made without the jury on all sorts of matters that, by definition, may be held by the judge to be outwith our exclusionary rules of evidence and therefore are not to be brought out in evidence to the jury, but have to be before the judge when he is hearing the application. Otherwise, the whole process would end up being risible. As I read the amendment, which refers to the rules of criminal evidence, it would greatly restrict the power of the court in chambers, without the jury present, to consider all kinds of evidence.

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Some of the evidence that a court will need to consider in determining whether to make the order will be evidence that the prosecution might wish to adduce, but the judge has held that it cannot, and some will be evidence that the prosecution most certainly does not wish to bring out in open court, such as police and security services intelligence reports, which are the subject of a public interest immunity application but are germane to consideration of the order. Given that explanation, I hope that those who tabled the amendment will not press it too far.

David Howarth: I should say to the Lord Chancellor that I do not intend to press that amendment. One of its main purposes was to probe the Government on what sort of evidence they thought should be used in the hearings. It seems to me from what he has just said that it looks like evidence that is usually inadmissible put in ex parte. Is that not yet another reason why there should be an independent counsel to make sure that both sides are heard?

Mr. Straw: I will come to that in a moment. Current practitioners in the House at the moment have far more experience than my zero experience of handling cases of this kind. My understanding is that, where applications are being made, the judge has to be satisfied that there is a reason for withholding what would otherwise be fundamental evidence from the defence—for example, the witness’s identity and aspects of the witness’s background that could lead to his identity. The court has to be satisfied as to the reasons. That may well be police intelligence reports, and indeed Government amendments Nos. 40 and 41 allow for that possibility. I will come to the issue of the special counsel in a moment.

Next, and penultimately, I shall deal with amendment No. 20, which would allow, where there is a defence application, for an order to be made for the witness’s real identity to be given to the court but not to the prosecutor. The argument is that there has to be equality of arms between prosecution and defence. It is a straightforward truth in any system of justice worthy of its name that there has to be such equality, but a moment’s thought will explain to us that equality of arms does not mean complete symmetry between the role and predicament of the defendant and the role and predicament, if any, of the prosecutor. The vested interests are completely different. It is the defendant who is in the dock. The prosecutor is not in the dock. There is not an either-way verdict which will lead to either the defendant or the prosecutor going to jail. As soon as one points that out—if I may say so, it is a statement of the blindingly obvious, but—

Mr. Garnier: It has never stopped the right hon. Gentleman in the past.

Mr. Straw: That may be so, but the point was absent from the argument of those who said that the importance of the principle of equality of arms closed the argument as to whether, where an application for an order was made by the defence, the real identity of the witness for the defence should be disclosed to the court but not to the prosecution.

There may well be cases, but I have never heard of one, in which the character of the prosecutor is called into account. It would be extraordinary were that to be the case. Moreover, those acting down the years on
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behalf of defendants quite properly and rightly have argued that there should be no equality of treatment when it comes to the provision of evidence to the other side. So we have rules under our system whereby not only does the prosecution obviously have to lay the full details of the case that it is going to make in open court before the defence, but it has to disclose sometimes mountains of unused prosecution evidence to the defence. No such equivalent duty is on the defendant, and notwithstanding efforts that have been made by the previous Administration and this one to deal with the situation in which the defence ambushes the prosecution, and the increasing concerns of the courts to see those rules properly applied, there is not, and can never be, equality there.

I will deal with what is at the heart of amendment No. 20. There will be rare cases in which the defence properly feels that it should make an application for a witness anonymity order for a defence witness. I guess that the most likely example that could arise is where there is an argument between co-accused. The defence will come forward with its application to the court. It is of great importance that the court knows who the person is. That will be disclosed to the courts even under amendment No. 20, but the court also has to know a good deal about the witness before it can come to a view. The court has no information about the witness. How could it? The only way in which the court could obtain that information is from the prosecutors, who in turn would have to obtain it from the police. On what other basis could the court learn about the antecedents of the witness, who may well have kept them from the defendant? The antecedents may be incomplete.

Those of us who have to deal routinely, as we all do in the House, with constituents who have criminal records never cease to be amazed at the way in which they forget about the most egregious convictions on their record.

They remember only convictions of the most trivial nature. Indeed, recently I met a man who was applying for a job in the public service. He had a conviction years ago for being drunk and disorderly and he told me in front of a witness, who does not need to remain anonymous, that it was his sole conviction, so I wrote a gentle, but non-committal, letter. Upon further inquiry by me, it turned out that he did indeed have a conviction for being drunk and disorderly a long time ago, but he also had a recent conviction for quite a serious robbery. When he came back to see me, aggrieved that I had not been able to get him the post in the public service, he said that he had forgotten about that conviction and that in any event it was rather trivial. That sort of thing goes on frequently, so the police would have to make inquiries in such cases.

8 pm

Mr. Garnier: I am fascinated by the Secretary of State’s story.

In the absence of a special counsel, I would accept the thrust of what the Secretary of State is saying, but as that would be the purpose of a special counsel he cannot dismiss my arguments—or rather those I borrowed—in relation to amendment No. 20 without bringing into the picture the need for a special counsel. Once a special counsel was doing the job that the Secretary of State did in his surgery, or that somebody else might do for the court, much of his objection would fall away.

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Mr. Straw: The answer to the hon. and learned Gentleman’s point was given earlier in the debate. For sure, the special counsel has a role that is different from that of the judge or the prosecutor, but no information is directly available to special counsel; they, too, would have to go to the police. One of the arguments raised about that is that the police could leak the name of the witness. That is an inherent problem in any such case, but I know of no example where the clear order of a court requiring that the identity of a witness be prohibited has been broken. If it was, it would be contempt of court and the police officer would find himself in prison rather quickly.

Mr. Hogg: I take a position that is slightly different from that of my hon. and learned Friend the Member for Harborough (Mr. Garnier) and that of the Liberal Democrats. It seems to me that where a defendant who has a co-defendant wishes to have a witness anonymity order made in respect of a witness, the Crown ultimately has a duty to the co-defendant to inform them of any criminal antecedents or other considerations that may make the evidence of the to-be-anonymised witness prejudicial to the co-defendant. The Crown can discharge that obligation only if they know the identity of the anonymised witness.

Mr. Straw: I am extremely grateful to the right hon. and learned Gentleman for making my point in a rather more elegant way. That is exactly the point. I understand why the amendment was tabled. It is not that there will not be equality of arms—there will—but there cannot be symmetry in a criminal trial, and thankfully no one has suggested that there would be. The amendment reflects concern to ensure that the protected identity of a defence witness is not somehow leaked. However, another area of no symmetry is that it is inherently improbable that if the prosecutor, or even the police, knew the identity of the defence witness whose identity was being protected they would go round and put the witness’s windows in, set fire to their motor car or intimidate their children at school, yet all those things could occur in the opposite situation, where the identity of the prosecution witness is being kept quiet.

I turn to the major issue in respect of this group of amendments—the argument contained in amendments Nos. 2 and 18 and new clauses 6 and 7 that the Bill should include a provision that a special counsel be appointed. I shall set out why I ask the House to accept not that there is a profound case against having special counsel—that is not my argument—but that there is insufficient time, not only today but in the limited time of a week that we have to bring the Bill’s proceedings to a conclusion, to pin down exactly how a statutory scheme could work. As we have already heard, there is at least one statutory scheme for the appointment of a special advocate. My hon. Friend the Member for Hendon (Mr. Dismore) was right to make the important distinction about the appointment of a special advocate in respect of the proceedings of the Special Immigration Appeals Commission, which some of us have come to know and love only too well. It was established by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I got it going and it has been enhanced since.

In addition, as we have heard, there is an inherent power for the court to appoint a special counsel. It is not used often and the right hon. and learned Member
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for Sleaford and North Hykeham (Mr. Hogg), who drew our attention to an entry in “Archbold”, was correct in saying that it is used only exceptionally. As it happens, the Court of Appeal, in the Davis appeal, sought and was granted the appointment of a special counsel. Those who believe that the appointment of a special counsel is a stay in jail card as far as the prosecution is concerned, and a guarantee against any breach of article 6, might bear in mind the fact that, notwithstanding the appointment of special counsel and the extensive use of special counsel by the Court of Appeal in the Davis case, although the Court of Appeal found in favour of the prosecution in Davis, that was not a particularly persuasive point when the case went to the House of Lords Appellate Committee. The fact that there had been special counsel was of no consequence when the Committee reached its 5:0 judgment on whether there was common-law authority and, to a degree, article 6 authority.

I do not dismiss any of the arguments made this evening by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—I was about to say “Maidstone” but that was a Freudian slip. Both constituencies begin with “M” and both are in Kent; both are close to the very first constituency I fought, which was Tunbridge and Malling— [ Interruption. ] I lost. Indeed, I came third and took a pound off the Liberal candidate who was convinced it would be him, so at least I came away from the count with something.

I listened with great care to what my hon. and learned Friend the Member for Medway said, as I did to the other right hon. and hon. Members on both sides of the House. We have to pin down some serious issues— [ Interruption. ] I gently point out to those who say we should do it now that the matter is really quite complicated and the proposal is not absolutely necessary because, as everybody has accepted, the court already has an inherent power. Those who say we should do it now are also talking about the dangers of legislating too fast and without proper thought.

Rob Marris: My right hon. Friend said that there was not enough time to introduce a statutory scheme under the Bill. The Bill will be subsumed into the law reform, victims and witnesses Bill in the next Session of Parliament. Will he give an indication—or, I hope, an undertaking—that he will seriously consider including a statutory scheme for an independent counsel on the witness anonymity programme, as it were, in that Bill, if not in the Bill that we are discussing tonight?

Mr. Straw: Yes, of course. My undertaking is that before we publish that Bill, I will indeed give active and urgent consideration to whether a scheme is feasible and necessary, together with my right hon. and learned Friend the Attorney-General and my hon. and learned Friend the Solicitor-General, others within the court system, the Crown Prosecution Service, defence lawyers and right hon. and hon. Members of the House. I do not for a second rule out such a scheme, but I want to get it right.

Mr. Marshall-Andrews: Will the Lord Chancellor go one stage further than that? The Bill is an uncovenanted bonus, in that it gives us months in which to see whether or not the system works, although I am not suggesting that that is a good way to make criminal justice legislation. Will the Lord Chancellor consider indicating to the
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judiciary that in that interim period they should consider, in light of the cases that come before them, whether the existence of independent counsel would be of use to them? We could then be given some indication of the answer, possibly through the Lord Chief Justice, when the Bill comes back before the House.

Mr. Straw: Yes, that is a very sensible suggestion; I will do that. I do not know whether the possibility of courts appointing independent counsel in such cases is less well known than it should be. I am quite clear that it will become better known, not least as a result of these debates, and also through efforts that I will make. That certainly will be factored into the work of the Crown Prosecution Service.

There are issues that we need to consider very carefully to get the measures right. First, there is the question of the kind of witness anonymity order to which a power in respect of special counsel would apply. My hon. Friend the Member for Hendon believes that, in practice, use of the power would be confined to so-called civilian cases, in which civilians—not police officers or intelligence officers—were witnesses to really awful crimes. Some would be innocent bystanders, and some would be far from being innocent bystanders. We need to consider whether to exclude altogether, or provide a presumption against, such special counsel ever being applied for where undercover police officers are used—there are 40 such cases indicated in the CPS’s current analysis—or in the case of undercover test purchases; there are currently 290 such cases. We have to pin the matter down before we come through with a legislative scheme. The facility should certainly not be available in the case of test purchases, and probably not in the case of undercover police officers, but we have to look very carefully at the circumstances.

There was debate—and, frankly, uncertainty—about the exact role of special counsel. The hon. and learned Member for Torridge and West Devon (Mr. Cox) asked the hon. Member for Cambridge (David Howarth) some really pertinent questions on the subject, and they remain unanswered. They are not really questions that can be answered in the Chamber. We have to think very carefully about them.

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