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“Having regard to the approach of the European Court to these matters generally, if faced with an anonymity order made on the basis of risk of damage to property only, it is highly likely that the court would find that the accused’s convention rights were breached.”
He said in conclusion that whereas it would be an exceptional case for the risk of property damage without any accompanying risk to persons to be the basis of a witness anonymity order,
“in most cases there will need to be some kind of risk to persons for the damage to property to be serious.”
If that analysis is right, it calls into question the way in which the Bill is currently phrased. We put this to the Director of Public Prosecutions earlier today, and he disagreed with that analysis. He gave an example, saying,
“Well, what happens if I’m told by an associate of the suspect that my house will be fire-bombed?” That may or may not raise the risk of injury to person as well, but it certainly would be a very real threat in relation to property, and I think we ought to be able to take that into account.
Dr. Evan Harris: I do not think that that is the best argument. As the hon. Gentleman knows, in a case such as the Attorney-General of New Zealand had in mind, there would be some risk to persons for the damage to property to be serious, and fire-bombing a residence clearly contains that risk. So the question—this also relates to my amendment—is whether damage to property alone, without risk to person, is sufficient. I do not know what that might be, but perhaps the hon. Gentleman can come up with an example.
Mr. Dismore: I was about to make that point. I think that I just said that if a house is fire-bombed, there would clearly be a risk to person anyway. However, let us suppose that there was a threat to torch a car. My car is not worth a great deal, but some people’s are. Suppose that the car in question is worth £5,000 or £10,000. It is not just a question of buying a new car—there is all the inconvenience that goes with it, and the fear that that threat creates. There is an argument for saying that threat to property ought to be included in the Bill. My amendment, however, attempts to limit that a little by specifying that it should be the property of the witness or a close relative. That might help to square the circle to a degree by reducing the very broad nature of the test currently before us.
I hope that my hon. Friend the Minister will address this issue when she responds and bear in mind the points that the New Zealand Attorney-General made in his published advice. It is a pity that advice on compatibility is not published here, because that would make our job an awful lot easier.
Dr. Harris: I am pleased to have the opportunity to address the Committee. I had an amendment in the previous group, but given that it was subsumed entirely in amendments pre-tabled through a feat of nimbleness, by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), of which I am not capable in reaching the Public Bill Office—
Mr. Hogg: It is called a fax machine.
Dr. Harris: As a result of that, I was able to fulfil another engagement and leave it to him to put the case, as I know he did.
On this group of amendments, the hon. Member for Hendon (Mr. Dismore) made the preamble that I wished to make about the comparison with New Zealand and serious damage to property. There is a published opinion on the Strasbourg jurisprudence, which we did not get on this issue from the otherwise pretty comprehensive opinion of Lord Mance in the Davis case. However, the key question, which is probably best dealt with by my amendment No. 17—it would delete subsection (6)(b), rather than only addressing clause 4(3)(a)—is whether the phrase “serious damage to property” is appropriate. Serious damage to property might not necessarily lead to serious financial loss.
The hon. Gentleman made an interesting point about serious financial loss being recompensed. I would have thought that insurance applies in most cases of damage to property, such as torching his car or, indeed, a warehouse, which is clearly not a residence and therefore would not be caught by the provision on risk of injury or death to person. I urge the Minister and the House of Lords to consider modifying the property provision. It could say, “Where there would be serious damage to property, leading to serious financial loss”, which implies, I think, financial loss not otherwise compensated for through insurance. If the phrase is left as “serious financial loss”, it could apply to uncompensated time spent in court by witnesses who are no longer able to work because they have been summoned to give evidence.
Mr. Garnier: Will the hon. Gentleman give me an example—I am looking at clause 4(6)(b)—of “serious damage to property” that does not involve a serious financial loss? Is he thinking of the destruction of a derelict building, or does he have something else in mind?
Dr. Harris: I am not an expert in this area, and I am warned by my hon. Friend the Member for Cambridge (David Howarth) that tort law has a lot to say on it. However, I would have thought that if something is insured and one knows that it is, that is not going to lead to serious financial loss, although it might lead to other losses and inconvenience. I do not know if the question of whether the financial loss is serious is dealt with after an insurance claim, or otherwise.
Mr. Garnier: But surely public policy cannot allow a person who wishes to intimidate a witness out of giving evidence to get away with it on the basis that an insurance company would take the hit? We must accept loss wherever it is, and the fact that the owner of the property is covered by insurance is not a relevant consideration.
Dr. Harris: I think that it is, because we have to draw the line on threats somewhere. Public policy perhaps should not distinguish between something that is listed in the Bill and something that is not. For example, financial loss, intimidation and serious damage to property are not listed, but unless there is an exhaustive list, public policy will have to draw a line somewhere. The overall impact on the person—the coercive nature of what is happening—is the critical factor, and that should be borne in mind. I have made my point about my view and I started from the position of the hon. and learned Member for Harborough on subsection (6) being objective. We await the Minister’s view on that.
The issue of real harm to the public interest was introduced by the right hon. and learned Member for Sleaford and North Hykeham, and the question was whether subsection (3)(b) is too broad. My understanding is that it is intended to cover the ability of undercover agents to be safe and to continue their work. It may also have something to do with national security issues. I have been unable to identify other matters that the provision is designed to cover. The understanding of the issue of real harm to the public interest might be broader—as the other words are in parentheses—in the sense that it is used with respect to public interest immunity. It is much broader than national security and the ability of undercover agents to do their work.
I am supported in that view by representations from Justice, which reminded us of the citing by Lord Mance in his opinion of the recommendations of the Committee of Ministers of the Council of Europe. It stated:
“Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that...the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened.”
That is an alternative wording.
Liberty is also concerned that the provision is rather wide. The Bar Council, in its representations on this point, felt that the public interest category should be narrow and limited to serious concerns such as threats to national security or prejudice to a serious criminal investigation. It suggests that the wording should reflect a real risk of serious harm to the public interest, such as a threat to national security or prejudice to an ongoing investigation into serious crime.
I put it to the Minister that a combination of those wordings might be reassuring to policy makers who fear that the provision might be read rather too widely. The more I examined clause 4—I started from a sceptical position—the more I was pleased with how strict it is, with the exceptions that I have mentioned, especially backed by the Government’s amendment to clause 5.
I shall be interested to hear from the Minister about the points that I have raised.
David Howarth: I have not tabled any of the amendments in this group, but I want to make a couple of comments on some of them. I commend the lead amendment, amendment No. 3. The word “satisfied” is simply half a test—one can be satisfied on the balance of probability, on the preponderance of evidence or on some other basis. The question for the Government is whether they intend to leave the second half of the phrase in the hands of the courts, which is one possible approach, or whether they intend something else. That phrase needs to be cleaned up.
9.15 pm
Secondly, amendment No. 5, which concerns the public interest test, seems to leave the clause too broadly drafted. Undercover operations are specifically dealt with in New Zealand statute as undercover operations. In any case, the exposure of most undercover operations would endanger the safety of those operatives. We are looking at the exceptional cases where revelations would endanger undercover agents when what they were trying to do was to prevent serious crime that was not physically dangerous to anyone else, or to them if it was revealed who they were. There is probably therefore some need for a clause, but not that one. It needs to be more narrowly drawn.
On amendment No. 6, I see the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). His draft could be construed as more narrow. It is certainly what the New Zealand statute says, and for that reason it has an advantage. The distinction seems to be very fine. I could see a circumstance in which one might even do it the other way around. However, I will be interested to hear what the Minister says on that.
I am not certain about amendments Nos. 8 and 4, which are about making credibility a condition rather than a factor. Credibility appears to me to be a matter
of degree rather than an on/off matter. What would happen in a case where there was some doubt about credibility but also corroboration? For that reason, it is probably better as a factor than as a condition, but again I would be interested to hear what the Minister has to say about it.
On the Conservative amendment No. 21, which would put in “death or serious injury” rather than “safety”, I am unsure whether I agree with the point made by the hon. Member for Hendon (Mr. Dismore) about “serious” being a cause of confusion. Indeed, that word might offer some advantage. However, there is a question about somebody who is threatened with abduction. Is that a matter of their safety, whether or not they are threatened with an injury or an assault? There is some argument for the Government’s draft as it is — [ Interruption. ] The hon. and learned Member for Harborough (Mr. Garnier) says that there are grounds for both, and that implies some sort of redraft to ensure that both are included.
On amendment No. 22, which is about reasonableness, I am convinced by the argument made by the hon. Member for Hendon. Clause 4(6) plainly refers back to condition A and to nothing else. In so far as it is an objective or subjective test, it is about any reasonable fear. To decide whether a fear is reasonable, one has to assess the reasonableness of the fears. I do not see what would be added by the amendment.
Mr. Cox: The first two lines of clause 4(6) state:
“In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard...to any reasonable fear”,
whereas subsection (3)(a) states that the measures to be specified in the order are to be necessary
“in order to protect the safety of the witness or another person or to prevent any serious damage to property”.
That is manifestly an objective test. How, in applying an objective test, is it necessary to protect that person’s safety? Does one apply what may be the subjective test of fear, even if it is reasonable? The measure is either necessary for safety or it is not. The reasonable fear seems irrelevant.
David Howarth: That is a better point, because courts are being asked to judge fear as a way of helping to judge safety. I do not want to take on the role of the Minister, but one answer would be that fear is not the only factor. There are both objective and subjective elements to safety, and fear is a more subjective part than the clause as a whole covers. I remember spending 20 years of teaching law telling my students not to use the words “objective” and “subjective” until they were at least third-years, because they are inherently confusing.
Mr. Garnier: May I line myself up for an undergraduate bashing from the hon. Gentleman? I do not want to destroy his argument, but to follow on from what my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox) said about the words “any reasonable fear”, is there not a difficulty in the use of the word “reasonable”? It imports subjectivity. Would it not be safer for us to use a term such as “honestly held fear” or “honestly apprehended fear”, which would be plainly and honestly subjective? The court could then subjectively assess the honesty or reasonableness of that fear.
David Howarth: I think that it will work by the court taking the witness’s set of fears and eliminating the unreasonable ones. It will then take the reasonable fears that are left and assess them against what clause 4(3) says about safety. I think that that is what it means, but the Government might have to examine this debate and decide whether it needs some adjustment.
Rob Marris: I only did two years of academic law study—I did not get to the third year. Does the hon. Gentleman see the test in clause 4(6) about
“reasonable fear on the part of the witness”
as a subjective or an objective test, or an unholy mixture of the two? If, as I suspect, it is the last of those, how does that mixture play out? I confess that I did not quite understand what he was saying about taking some reasonableness, looking at what we have left over, doubling the number we first thought of and all that.
David Howarth: Fear is inherently an internal state. Some fears can be judged by others to be reasonable and some to be unreasonable, and the use of the word “subjective” is part of the problem, which is why it is probably better avoided. Once a court has decided what a witness’s internal state is and how reasonable it is, the question is how it uses that information to judge safety. However, safety itself can plausibly have objective and subjective elements, because it is both an internal feeling and an external state. Some further drafting work on the clause might well be needed.
I do not want to comment on amendment No. 31, except to say that those of us who have spent many years trying to work out the difference between property damage, financial loss and pure economic loss would not want the term “financial loss” to be used in statute without further definition.
I turn finally to amendment No. 17, tabled by my hon. Friend the Member for Oxford, West and Abingdon (Dr. Harris), which would remove the reference to property damage. Usually, the threat of serious property damage such as arson, or even the threat to the hon. Member for Hendon’s car, would carry some threat of personal injury, but not necessarily. As my hon. Friend said, the question is what cases are envisaged in which it would not carry that threat, which would mean that something is added by the reference in the clause to “serious damage to property”. It would have to be something like a threat to burn down a lock-up shop at night when the witness would not be there.
What are we trying to get at here? Is that enough of a reasonable fear to justify making an anonymity order? The clause lacks a test to decide whether the threat is serious enough. Whether injury is threatened to property or the person is not the most important matter.
Mr. Hogg: Ultimately, condition C is the test to determine the seriousness of a threat. It asks whether
“it is necessary to make the order”
to ensure that “the witness should testify”. The importance of the evidence is then material, and the next question—whether the witness will turn up—is addressed by my amendment No. 7.
David Howarth:
That is a good point. The question is whether the degree of coercion is great enough to justify the order, and that is what condition C in particular is trying to capture. The right hon. and learned Gentleman
is right that his amendment on that point would change the nature of that clause in an interesting and perhaps useful way.
Finally, amendment No. 32, in the name of the hon. Member for Hendon, deals with the property of the witness or a close relative. I do not think that the property condition in its unamended form can be retained but, if it were retained, the amendment would be an improvement.
The Parliamentary Under-Secretary of State for Justice (Maria Eagle): We have had an extensive debate on this group of amendments. At times it has been confusing, at others illuminating, but all the amendments would change, in one way or another, the conditions for making the witness anonymity order set out in clause 4.
As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) explained in his commendably succinct remarks, amendment No. 3 would require the court to be “sure”, rather than “satisfied”, that the conditions for making a witness anonymity order were met. In many areas of criminal legislation, a court is required to be satisfied that the applicable conditions are met before an order is made. The right hon. and learned Gentleman said that the word “satisfied” did not have a clear meaning, and he tried to anticipate the arguments that I might use, on the basis that he had heard them before in other contexts. He thought that I might say that the word did have a clear meaning, and so he produced the case that he had spotted in a bid to trump that argument.
Fortunately, I was not going to focus on that approach, so in a sense the right hon. and learned Gentleman did his research for nothing. However, people have mulled over the various conditions in clause 4 during the debate, and it is important to remember the statutory framework that we are setting out. In the past, judges have granted orders on the basis of what they thought was their power in common law. They used their common sense to assess the facts of the case in front of them, but it is inherently difficult to legislate for the common sense of judges. That is one reason why there has been no statutory provision in respect of order making in the past, but an examination of the overarching framework might help us to deal with some of the points made in the amendments.
All three conditions for a witness anonymity order must be satisfied: they are conjunctive rather than disjunctive, as my hon. Friend the Member for Hendon (Mr. Dismore) noted. An order must be necessary. It must—this is tremendously important—have regard to all the circumstances consistent with the defendant getting a fair trial. Finally, it must be in the interests of justice. The right hon. and learned Member for Sleaford and North Hykeham was right to say, in response to the hon. Member for Cambridge (David Howarth), that in the interests of justice it is important that a witness with something to say about a case must be able to testify. The whole edifice of the Government’s proposals is designed to deal with the fear that might prevent him from doing so.
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