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8 July 2008 : Column 1360

Dr. Harris: The right hon. and learned Gentleman will be supported in his argument that the paragraph should be narrower, rather than deleted, by what happened in the Joint Committee on Human Rights this afternoon. I asked Sir Ken Macdonald, the Director of Public Prosecutions, whether he thought that the provision that the right hon. and learned Gentleman seeks to delete in the public interest covered more than, as the organisation Justice has put it, undercover agents—police and other agents—and their ability to go about their work. He did not think that it covered more than that; at least, he did not offer any other factor. In fairness to him, I should say that he did not argue that the provision was too broad. However, I put it to the Committee that it is too broad if it can be narrowed and if, according to the DPP, nothing else needs to be captured.

Mr. Hogg: I am grateful to the hon. Gentleman. If there is a requirement other than to protect undercover agents and officers, it is for the Crown to establish the case. At the moment, the provision is widely drawn and the Crown has not made the case.

Mr. Cox: I propose to my right hon. and learned Friend an example from my own experience. In a case involving the alleged export of a nuclear firing system to Iraq in the early 1990s, the identity of a very senior nuclear weapons designer was deemed by the Old Bailey judge to be an issue to be withheld from the defence. In some circumstances, it may be in the public interest for the identity of somebody of great seniority and significance to the state, such as the designer of a nuclear weapon for this country, to be concealed, although that person’s expertise is required in a criminal case.

Mr. Hogg: My hon. and learned Friend makes a perfectly sound point and a good case. However, the language of subsection (3) goes further:

Then we come to the identity of particular people or otherwise. I am merely saying that the language of the subsection goes very wide. We should be slow to give immunities of that kind. It is for the Crown to prove its case, so let it do so. The burden rests on the Solicitor-General to satisfy the criterion that there is a good cause.

Amendment No. 6 would amend condition B to reinforce the principle that the trial must be fair. The Government’s drafting is slightly flaccid in that it merely requires the court to be satisfied that the order is

I want to elevate the bar so that the court must be satisfied that the defendant is not deprived of a fair trial. This is modelled on the New Zealand legislation and goes higher than the Government’s drafting in protecting the defendant, which is what I want to do.

Amendment No. 7 asserts that the witness’s refusal to testify could be reasonable. I can imagine a lot of circumstances where a witness does not want to testify: because, as the hon. Member for Hendon (Mr. Dismore) suggested, things have been put into their mind by police officers; because they do not want to be cross-examined by difficult counsel such as my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox); or because the situation is altogether difficult. We should legislate so that, first, the refusal to testify must be evidence-based; and, secondly, it must be reasonable when tested by the judge or by the special
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advocate. That is what I want to be done and what the amendment is designed to achieve.

Amendment No. 8 would insert a new condition, namely condition D. It would create another overarching condition—in effect, that there is no reason to doubt the credibility of the witness. The Bill as drafted provides that issues of credibility are relevant considerations in the making of the order, but that such an issue is not an overarching condition, as are conditions A, B and C. The issue of credibility should be an overarching condition, and that is the intention of condition D as contained in the amendment. I commend the amendments to the Committee.

Mr. Garnier: I support, to some extent, the arguments of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), but I will concentrate mainly on the amendments tabled by Conservative Front Benchers.

Amendment No. 21 essentially seeks to redesign subsection (3), which deals with condition A. It would delete the words,

and replace them with,

Our argument is that witness anonymity orders should be made only in cases where there is a genuine and substantial risk of very serious injury, and even death. The expression in the Bill—

is too vague to allow the court to hold to that as a condition. No doubt the safety of the witness is encompassed within the risk of death or serious injury, but we suggest that the condition needs to be much higher.

8.45 pm

On amendment No. 5, is not subsection (3)(b) simply another way of saying what is set out in condition C? I take the point of my right hon. and learned Friend the Member for Sleaford and North Hykeham about undercover police witnesses and so forth, but I would add that the provisions are pretty vaguely drawn. When we get to the point where the criminal law has to relay on expressions such as “or otherwise”, we have a degree of difficulty. Even in emergency legislation that is briefly considered, we should not put the criminal law in that position. Whichever way one looks at it, while it is necessary to prevent real harm to the public interest, whether the carrying on of activities in the public interest or the safety of someone carrying out such activities is affected, it seems entirely proper that the provisions should be much more specific and much clearer. As my right hon. and learned Friend said, the matter is covered by clause 5, “Relevant considerations”, in subsection (1)(a) and (b)—I am getting ahead of myself The matter is largely covered by condition C. The public interest should engage only in the most serious cases where risk of injury to the witness is concerned. I am not sure that that is clear in the drafting of the Bill.

Amendment No. 5 deals with clause 4(6). The provisions in question deal with property, and subsection (6) states:

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I am getting ahead of myself again, because I am actually dealing with amendment No. 31 and the phrase “or serious financial loss”. That is probably an uncontroversial aspect. It may be that the court would hold that property includes financial assets, money and so on, but it may not. In order to be clear about that, the expression “or serious financial loss” should be added.

To return to amendment No. 5, I seek to leave out from—

The Solicitor-General: From “property”.

Mr. Garnier: Thank you very much. I am most grateful to the Solicitor-General. [ Interruption. ] I have argued that already. I am sorry; I am not being very sensible this evening.

I shall get right back on stream. I would now like to talk about amendment No. 22. This amendment does apply to clause 4(6), and it deals with the difference between an objective and a subjective test. We believe that the point at issue is whether the person who alleges anxiety should have a trump card that destroys the ability of others to resist the application.

Our courts are for all and are, and must be seen to be, impartial. The criminal law must do justice and ensure fairness. Of course opinions vary and the facts will be different in each case, but one of the bedrocks of our justice system is that our courts and judges must be dispassionate, disinterested and consistent in the application of the law to the facts of a given case. Objectivity is perhaps the one word that describes those imperatives. Any change to the law, judge made or by statute, must ensure that the application of the change is based objectively, rather than subjectively to suit one party or another.

When we discuss a statute that proposes parliamentary licence for the giving of anonymous evidence in criminal trials, we must be rigorous in ensuring that it is the judge—the arbitrator and guarantor of fairness under the law—who decides and assesses where the balance should lie between, on the one hand, the public and private interest that the defendant should be tried in open court on evidence that is properly and lawfully introduced into the trial and, on the other hand, both the competing private interest of a vital witness that he should be protected from death or serious injury when he performs his public duty to give evidence of a crime, and the public interest that serious criminals should be brought to justice.

That is not an easy task, but it is an essential one. Article 6 of the convention reminds us of our solemn duty to ensure fairness in our trials. Convenience for the police, the prosecuting authorities and the administration of the courts are not the passwords to justice. Therefore, we say that where a witness says that he believes that he will suffer harm if he gives evidence in open court without the protection of a witness anonymity order, his word alone is not enough. The court must decide. The witness cannot produce the ace of personal apprehension to trump the right of the citizen to a fair trial. The Bill as drafted tips the balance too much in favour of anonymity. That needs to be redressed.

Dr. Harris: The hon. and learned Gentleman’s amendment No. 22 proposes inserting the words

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in clause 4(6). Is that because he does not believe that the “reasonable fear” that the clause as drafted refers to is an objective test—it seems to me that it is indeed an objective test for the court to decide—or because of the lack of a requirement for the court to assess it? I would have thought that in order to have regard to such a fear, one would have to assess it. I am therefore not convinced that his amendment adds anything, particularly if the Minister clarifies my understanding when she responds to the debate. Have I missed something in his argument?

Mr. Garnier: I cannot tell what the hon. Gentleman may or may not have missed, but, as far as I am concerned, when the Bill says that the court

it is simply providing a non-exclusive list of things that the court must have regard to. The reasonable fear on the part of the witness might be a reasonable fear in the mind of that witness, but it is not necessarily a reasonable fear in the mind of an objective assessor. Someone can have a fear that is subjectively reasonable to the person with that apprehension, whereas a third party, coming from the outside and assessing it, may find that it is an honest fear, but not a reasonable one.

Dr. Harris: The hon. and learned Gentleman has hit the question. My reading of the provision in other statute is that the test is objective. The fear is not deemed reasonable because a witness is nervous; rather, there is an objective test of whether the fear of that witness under the circumstances is, in the view of the court, reasonable. However, if the hon. and learned Gentleman, who is more learned than me by definition, feels that that is not clear enough—I think that he is saying that in his amendment—perhaps the Minister can provide some clarity in her response and make it clear that the test is an objective test, exactly as he wishes it to be.

Mr. Garnier: It may be—we will find out. If the hon. and medical Gentleman—sometimes curative, but not always—understands what I am saying, which he might not, he may accept from me that clause 4(6) as drafted at least leaves an ambiguity over the test to which the court must have regard.

Mr. Dismore: I tend to agree with the hon. Member for Oxford, West and Abingdon (Dr. Harris) that the test is objective. I do not think the word “reasonable” can be interpreted in any other way. However, that is combined with the requirement for the court to ensure that the anonymity measures are necessary. It is a pretty absolute requirement for the court to be sure that what it is doing is necessary in the light of the objective “reasonable” underlying fear. That can be contrasted with the completely different language in some of the provisions on the self-defence beliefs, which is extremely subjective.

Mr. Garnier: I disagree with the hon. Gentleman’s final point. I think he is confused.

Mr. Cox: Surely the problem is that condition C requires the judge to be satisfied that the witness would not testify if the order were not made. The question for the judge to decide is what standards he should apply if a witness will not testify, and whether it is reasonable
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for him not to testify. Under subsection (6), regard must be had to any fear on his part that he will suffer death or injury.

I commend amendment No. 7, tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). If the wording of clause 4(5)(b) were replaced by the words “the witness could not reasonably be expected to testify if the order were not made,” we could import the objective element without needing to amend subsection (6). Others may have more sophisticated thoughts on the subject.

Mr. Garnier: All those suggestions are helpful. Whereas I have sown confusion, it may well be that my hon. and learned Friend has shone some light. But in so far as I have shone confusion—

Maria Eagle: Shone confusion?

Mr. Garnier: Shone confusion sounds like an Irish female pop singer, does it not? I must confess that my knowledge of Irish pop singers is very limited.

The confusion in my mind, which other Members may not share, concerns what the Government intend, at least by the words that they have used. Their intention may well be that the court should examine condition C objectively, but the impression I gain from subsection (6) is that although the witness may present what to him is a reasonable fear that he will suffer death or injury, that fear will turn out to be unreasonable when it is objectively considered.

It may well be that I have confused myself, and it may well be that I am leading myself up a blind alley, but it is significant that I may have done so. I confess that I am no longer a full-time practitioner at the Bar, still less at the criminal Bar, but it seems to me that the language used by the Government in subsection (6) is confusing enough to warrant clarification, which may be provided either by the Minister who responds to the debate or by the use of alternative wording in the Bill. In any event, I think it essential that we reinforce the need for objectivity. If the hon. Member for Oxford, West and Abingdon (Dr. Harris), the hon. Member for Hendon (Mr. Dismore) and my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) believe either that the subsection does not need to be adjusted or that it can be adjusted by means of amendment No. 7, we shall all go away happy, but the main point is that we need to be assured that it is the objective test with which we are concerned.

I hope that that deals with amendment No. 22. I want the court to have a positive duty to assess the reasonableness of any fear alleged on the part of the witness or another person, and I submit that that is not currently clear in the Bill.

Amendment No. 23 proposes the addition of the word “serious” before the word “injury”. That is self-explanatory, and it ties in with my other concerns in relation to clause 4(3). I have already dealt with—albeit accidentally—my amendment No. 31, which addresses the issue of serious financial loss. The amendments of my right hon. and learned Friend the Member for Sleaford and North Hykeham are more than worthy of the Government’s consideration, and I hope that the Minister will deal with them and with my amendments, and perhaps take up the issues that might, or might not, be raised by the hon. Member for Oxford, West and Abingdon.

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9 pm

Mr. Dismore: I must say that I found the remarks by the hon. and learned Member for Harborough (Mr. Garnier) at the end of his contribution rather confusing, and I think he probably did, too, when he was reading them out.

I rise to speak primarily to my amendment No. 32, but before doing so I would like to address a couple of points that have been made. The hon. and learned Gentleman has got himself into a bit of a mess by trying to see the three conditions of A, B and C as disjunctive rather than conjunctive. If we put them together—I am thinking in particular of condition A, which cross-refers to clause 4(6)—things become a lot clearer. The provisions in subsection (6) are pretty objective in looking at the level of “reasonable fear”, and the word “necessary” makes it clear that the court will apply a high standard in relation to condition A both of itself and in terms of the cross-reference to subsection (6).

I disagree with the hon. and learned Gentleman about adding the word “serious” in front of “injury”, because how do we define “serious”? Are we talking about a grievous bodily harm level, because I suspect most people would be put off from giving evidence as a result of a rather lesser degree of violence? Common assault might, perhaps, create sufficient fear. We have to be realistic about the level of fear involved, and I certainly think it would be rather less than that of the grievous bodily harm level of injury. By putting all the elements of clause 4 together, the way it is phrased leaves it ultimately to the judge to use his good sense to make the decision on the evidence put before him.

My main concern is the question of property. I take issue with the hon. and learned Gentleman on trying to extend the risk to property to include financial loss, because that could be compensated by giving money back. I do not think people can realistically be seen to be fearful of financial loss in these circumstances.

I do see the force of the argument in relation to property, however, but I raise the issue primarily because of what was said about the New Zealand provisions, which the Bill mirrors in relation to the phrasing of the issue as it relates to property. I believe the New Zealand system to be preferable to ours and, unlike here, in New Zealand the advice on compatibility given by the Attorney-General is published. He raised the question of whether the risk of harm to property would be acceptable in international jurisprudence. He particularly drew attention to the fact that physical harm to the person was clearly included, but he went on to say:

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