Previous Section | Index | Home Page |
The hon. Member for Cambridge said that the cost of special counsel, which would be considerable if such counsel were used extensively, would be lower than the cost of convictions being aborted, the implication being that the guilty would walk free. He would be right, if those circumstances came about, but as the Crown Prosecution Service, which pays for special counsel, has a limited budget, voted by the House, we need to have an idea of the potential cost, not least given that special counsel are not used on that many occasions. There is also a practical matter: the number of counsel considered qualified to act as special counsel is fewer than 20. That is really important, too.
Mr. Dismore:
I think that my right hon. Friend is in danger of mixing up the special advocate process with the independent counsel process that we are discussing. Special advocates are limited in number because they have to be security-cleared. They perform a different function. Perhaps independent counsel do not have to have the same level of clearance, particularly if we are talking about civilian cases, not undercover or secret
service cases. Those are the ones for which security clearance is needed, not the ordinary, bog-standard criminal trial.
Mr. Straw: I was doing my best not to confuse myself, and I hope that I did not do so on that occasion. We can continue this discussion outside the House, because the hon. Member for Mid-Sussex (Mr. Soames)
Mr. Straw: Yes, and it is always dangerous to keep him away from his dinner, so I commend the amendments in my name.
David Howarth: On amendment No. 35, we have heard that clause 3(2) is not fit for purpose. It tries to deal with too many different sorts of cases. It tries to deal with cases in which the witness does not want information to be passed to the police; cases where the same person is effectively witness for the prosecution and witness for the defence; and cases where the witness is afraid of the other defendants. That confirms my view that the obligation in the clause goes too far. The Government could well think about the clause again and redraft it, but at the moment it seems to be entirely badly drafted.
I accept the offer from the official Opposition to vote for our amendment on the grounds that, if it were carried, the only plausible way out of the situationand I think that it is the only plausible way anywaywould be to adopt the independent counsel system. It is on that issue that most of the debate has concentrated. Having heard the hon. and learned Member for Medway (Mr. Marshall-Andrews), the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. Member for Wolverhampton, South-West (Rob Marris) and other contributors, I believe that there is an overwhelming case for using that institution. The Lord Chancellor said that it was no guarantee that cases would be able to proceed that would otherwise not be able to proceed, because in the Davis case, at a late stage, there was an attempt to use special counsel. However, that was not the perfect use of an institution that did not have any statutory basis, and there was a lack of clarity about how it would be used. That makes it all the more important that it should be given a statutory basis.
Nevertheless, the argument is not that independent counsel would guarantee better results, but that it would simply make it less likely that cases that would not otherwise go ahead would disappear from the list. All the arguments effectively come down to time. There is not enough time to get this right, but if we do not do anything, it is quite possible that we will make the situation worse. The Lord Chancellors argument came down to saying that doing nothing can have no consequences, whereas doing something always has bad consequences. With that in mind, we should vote on amendment No. 35.
Question put, That the amendment be made:
Amendments made: No. 40, page 2, line 26, leave out the application and insert
an application under this section.
No. 41, line 27, at end insert
(3) The court must give every party to the proceedings the opportunity to be heard on an application under this section.
(4) But subsection (3) does not prevent the court from hearing one or more parties in the absence of a defendant and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.. [Mr. Watts.]
Clause 3, as amended, ordered to stand part of the Bill .
Mr. Hogg: I beg to move amendment No. 3, in page 2, line 31, leave out satisfied and insert sure.
The Second Deputy Chairman of Ways and Means (Sir Michael Lord): With this it will be convenient to discuss the following amendments:
No. 4, page 2, line 31, leave out C and insert D.
No. 21, page 2, line 34, leave out safety of the witness or another person and insert
witness or another person from death or serious injury..
No. 5, page 2, line 35, leave out from property to end of line 38.
No. 6, page 2, line 39, leave out subsection (4) and insert
(4) Condition B is that the making of the witness anonymity order would not deprive the defendant of a fair trial..
No. 7, page 3, line 1, after not, insert
, and could not reasonably be expected to,.
No. 8, page 3, line 1, at end insert
(5A) Condition D is that there is no reason to believe that the witness has a motive or a tendency to be dishonest, having regard to the circumstances of the case and (where applicable) to the witnesss previous convictions or the witnesss relationship with the accused or any associates of the accused, and to any other consideration that may be relevant to that issue that the court may think appropriate..
No. 22, page 3, line 3, leave out from must to end of line 4 and insert
assess the reasonableness of any fear alleged on the part of the witness or another person..
No. 23, page 3, line 5, after second or, insert serious.
No. 17, page 3, line 5, leave out from injury to the end of line 6.
No. 32, page 3, line 6, leave out property and insert
his property, or the property of a close relative of his.
No. 31, page 3, line 6, at end insert or serious financial loss.
No. 9, in clause 5, page 3, line 9, leave out C and insert D.
No. 11, page 3, line 22, leave out paragraph (d).
Mr. Hogg:
I rise to speakI hope fairly brieflyto amendments Nos. 3 to 8, which stand in my name. I shall take the Committee of the whole House through them swiftly. Amendment No. 3 would substitute sure
for satisfied. May I explain why? It seems right that the standard of proof required to satisfy the conditions should be the criminal standardbeyond reasonable doubt. I know that the phrase is satisfied is often used in legislation, but standing by itself it does not have a clear meaning. The word sure does have a clear meaning. I tried to make precisely the same substitution in the Counter-Terrorism Bill, but that was met by the argument that the word sure is not readily recognised in statutory language and that the courts gave a fairly clear interpretation to the word satisfied. However, that argument is not correct.
The Committee will remember a Court of Appeal decision in the case of Daviesthat name is indeed a coincidencethis year. It was reported in The Times of 19 May. The Court of Appeal was required to adjudicate on whether a court, when setting a sentence in a homicide case, had to be satisfied beyond reasonable doubt or on the balance of probabilities about the existence of aggravating factors. In other words, notwithstanding the fact that the word satisfied is well known to the courts, the Court of Appeal was asked to define what it meant in that context. Given that, we should use language that makes our meaning clear, and our meaning should be that the court is satisfied beyond reasonable doubthence the word sure in this context.
Mr. Llwyd: To bolster his argument as he sums up to the jury, the judge tells them that they should come to a conclusion about which they are sure; the judge does not say that they should be satisfied beyond reasonable doubt any more. That reinforces the right hon. and learned Gentlemans argument.
Mr. Hogg: I believe in using language that says exactly what is meant. The danger is that the word satisfied will result in further litigation down the track when the Court of Appeal is asked to determine by what standard the court must be satisfiedhence the suggestion that we should use sure, which at least makes the point absolutely plain.
Amendment No. 5 would delete clause 4(3)(b). It goes a little further than I should have done; I am perfectly willing to accept that in respect of undercover officers and so on there is a case for protecting the identity of the witnesses. However, the language used in paragraph (b) goes far beyond that and erects the concept of the public interest, damage to the state and this and that to such a point that I can see the Crown seeking to shelter a whole lot of nefarious activities behind the rubric of the paragraph.
Dr. Evan Harris (Oxford, West and Abingdon) (LD) rose
Mr. Hogg: I shall finish my point, then of course I shall give way.
I would like to confine anonymity protection to a narrow class; I certainly accept that undercover officers come into that class. Perhaps another class of individuals should be included, but the burden rests on the Solicitor-General to make the case.
Mr. Cox: Will my right hon. and learned Friend give way?
Mr. Hogg: I shall give way first to the hon. Member for Oxford, West and Abingdon (Dr. Harris).
Next Section | Index | Home Page |