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We had some exchanges about which fears are subjective and which objective. A witness who tells the prosecutor or the police that he is worried about having his house burned down is obviously expressing a subjective fear.
He goes along and says, “I’m worried. I’m fearful because of where I live, and because of the person who I know is behind all this.” That is obviously subjective. The points made by the hon. Member for Oxford, West and Abingdon (Dr. Harris), by my hon. Friend the Member for Hendon (Mr. Dismore) and, in the early part of his remarks, by the hon. Member for Cambridge are correct.
We do not need to get too het up about which bit is subjective and which objective. The point here is that the judge will be empowered to make a common-sense judgment in any particular set of circumstances about whether the fear of a witness is reasonable. No sensible judge would make an anonymity order if a witness had a completely irrational fear and there was absolutely no chance of any danger to safety or risk of damage to property. He would have to be convinced that there was at least something to it. This is what we are trying to capture generally.
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In respect of the point that the right hon. and learned Member for Sleaford and North Hykeham made about using the word “sure” rather than the word “satisfied”, the court is being asked to make a judgment about whether conditions A to C are satisfied. It is not finding on the facts, when a test according to the criminal standard of “beyond reasonable doubt” would be appropriate. In that sense, it is a concept that is relatively well known in the criminal law.
Mr. Hogg: The judge has to say, “To what standard am I satisfied?”
Maria Eagle: He is making a common-sense assessment on the basis of the statutory framework that we are offering to him in lieu of the now no longer existing common-law good sense that he was applying before Davis. He is having a general look at the facts of the case and asking, “Does this seem reasonable? Am I satisfied?” I do not think that judges would find that unusual or alien to the way in which they do their job.
Mr. Garnier: We need a clearer answer from the Minister in response to my right hon. and learned Friend’s question. Judges frequently say out loud, “I am satisfied to the criminal standard of proof,” about this, that or the other during an interlocutory application. I know that the Solicitor-General is nodding her head—
Maria Eagle: She is shaking it.
Mr. Garnier: Moving her head. I am reasonably sure—I am satisfied—that the Solicitor-General was moving her head. Often the question will be asked during the course of argument before a judge, “What is the burden and what is the standard of proof?” I appreciate that many cases are not necessarily decided on the standard or burden of proof, but we are making criminal justice legislation here and it is incumbent on us not to rush this through simply because it is getting late. It is important that we lay out clearly to the courts how we expect them to apply the legislation.
Maria Eagle:
The judge is not making a finding of fact that is germane to the outcome of the trial. He is deciding whether he ought to grant a witness anonymity order in the circumstances and the case before him. We
are not seeking to turn this into some kind of mini-trial of everything before the judge gets on with the trial. He will use his common sense.
I have heard what hon. Members have said about some of this. I want to make some points on some of the amendments, but I am obviously not going to be able to satisfy the hon. and learned Member for Harborough (Mr. Garnier) about the tightness with which the provision is drawn. I understand if the hon. and learned Gentleman is not satisfied, but I hope that he will allow me to go on and deal with some of the other amendments.
Amendment No. 21, which is one of those tabled by the hon. and learned Member for Harborough, would change the first condition for granting a witness anonymity order from one based on the
“safety of the witness or another person”
to one based on the risk of “death or serious injury”. The main impact of the change of the wording that he has proposed would be to require the court to decide if the risk of injury was serious enough to justify granting an order. Safety is a relatively broad concept—enough to cover any risk of harm to the witness—but the test with which the hon. and learned Gentleman proposes to replace the current wording appears to be inappropriate. It is undesirable for witnesses to be exposed to any risk of harm. However, whether the harm to which a witness is exposed in any particular set of circumstances in a particular case is sufficient to justify the making of an order has to be a matter for the court when it addresses the three conditions set out in the Bill and the framework that we seek to create for that purpose.
Amendment No. 5 would remove the second limb of the necessity test provided for under condition A—the prevention of real harm to the public interest, which was raised by a number of Members in their contributions to this part of the debate. I need to make it absolutely clear that the purpose of the wording is to capture circumstances in which the intelligence agencies, or, for example, the police or the Serious Organised Crime Agency, are doing their job. Many Members accepted that that was what the wording was getting at, but suggested that it was too wide. If it helps Members, I can say that those are the only circumstances intended; I am aware of no other circumstances, beyond national security and the undercover work of the police and relevant agencies, that this part of the Bill is meant to cover. I hope that helps in any Pepper v. Hart situation that we might run across. There is no other intention in that part of the Bill. The Strasbourg jurisprudence specifically mentioned the reuse of undercover agents as one of the purposes that might justify the grant of anonymity, so we are not outwith wider arrangements in other jurisdictions in that respect.
Amendment No. 6 would amend the fair trial test with the intention of ensuring—I think—that the defendant is not deprived of a fair trial. I think everybody would accept that that is overwhelmingly the most important purpose of the work we are doing in respect of the Bill, but we believe that the current wording already guarantees it. I know that the right hon. and learned Member for Sleaford and North Hykeham was not too keen on the wording of condition B, which he thought a bit bland. However, condition B has the merit, along with conditions A and C—all of which have to be met—of making it absolutely clear that for the anonymity order to be granted it has to be necessary in the interests of justice
and consistent with the defendant receiving a fair trial. In addition, there are article 6 considerations. Although I realise that the right hon. and learned Gentleman is not too keen on the current wording, we believe that it does the job it is meant to do.
Amendment No. 7 would require the court to take into account before deciding whether it was necessary in the interests of justice to make an anonymity order not only the fact that a witness would not be prepared to testify without an order, but that they could not reasonably be expected to testify without an order. The additional reasonableness test is unnecessary because clause 5(2)(e) already requires the court to consider whether it is reasonably practicable to protect the witness’s identity by means other than a witness anonymity order.
On amendment No. 8, there was some debate about the witness’s credibility, which is currently a consideration that the judge should have in mind when deciding whether the three conditions are met before granting the order. The right hon. and learned Gentleman made it clear that the amendment would elevate that consideration to another condition, and move it up a tier in the framework. The amendment is unnecessary because it goes into the question of whether the defendant will have a fair trial, which is already secured by condition B for the making of an order as set out in clause 4(4). The high-level principles of the conditions—necessity, fairness of trial and the interests of justice—are for the court to apply, whereas the credibility of a witness is an aspect in assessing to what extent the trial is fair in the circumstances of the case before the judge who is making the decision. We think that it sits correctly among considerations, rather than being important enough to be a condition, although I understand from the right hon. and learned Gentleman’s remarks that he was trying to emphasise the importance of a fair trial. We do not disagree about the importance of a fair trial, but we think that the current framework achieves it.
Amendments Nos. 17, 22, 23, 31 and 32 would all amend clause 4(6), about which there has been a bit of debate. It sets out the matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purposes mentioned in subsection (3)(a)—in other words, to protect the safety of the witness or another person, or to prevent serious damage to property.
Mr. Cox: I wonder whether the Minister could answer a question for me. How does the “reasonable fear” of injury relate to the decision that the judge must make under clause 4(3) about the necessity of protecting the witness’s safety? Either the measures are necessary to protect their safety or they are not. Whether I have a “reasonable fear” is not relevant to whether the measures are necessary to protect my safety, is it?
Maria Eagle: Before a judge can make an order under the scheme, he will have to be of the opinion that whatever measures are specified in the order—they may vary—are necessary, that the order is commensurate with the defendant having a fair trial, and that the order is in the interests of justice.
Mr. Cox: I am talking about safety.
Maria Eagle: Yes. The order may be in the interests of justice if the witness opines that he will not testify because he fears either for—
Maria Eagle: The hon. and learned Gentleman is not letting me finish.
Mr. Cox: Perhaps I can propose a helpful solution. It may be that what is meant in subsection (6) is whether the measures are necessary. Perhaps the “reasonable fear” relates to subsection (5) and whether
“the witness would not testify if the order were not made.”
Perhaps that is what “reasonable fear” relates to, and not whether the measures are necessary
“to protect the safety of the witness”.
Maria Eagle: I am certainly willing to go away, put a wet towel around my head and have another think about the issue.
Mr. Cox: I am not trying to be difficult.
Maria Eagle: I am sure that the hon. and learned Gentleman is not trying to be difficult; I have never met a lawyer who tried to be difficult.
Mr. Straw: Speak for yourself!
Maria Eagle: I always speak for myself. I am perfectly happy to go away and have a think about what the hon. and learned Member for Torridge and West Devon (Mr. Cox) says. I am not convinced that he is correct, but I am willing to take another look at what he has had to say.
Let me swiftly move through the other amendments. Amendment No. 22 would import into subsection (6) a requirement for the court to assess the reasonableness of the witness’s fear. I put it to the Committee that the objective is achieved just as effectively by the present wording. It is not clear why fear on the part of another person needs to be added, although my hon. Friend the Member for Hendon made some remarks about his amendment. The risk of harm to another is already caught if it causes fear to the witness. Obviously, the witness may feel that family members would be threatened if they gave evidence. Realistically, if a witness’s spouse is in fear, the witness himself or herself might share some of that fear for another family member.
The significance of fear in this context is the extent to which it inhibits the giving of evidence; it does not relate to whether there is cause for fear, objectively or subjectively. Fear that is experienced only by a third party, and not by the witness, is completely immaterial to whether an anonymity order ought to be granted in a particular case.
One or two people have queried whether the reference to serious property damage in subsection (6) ought to be there. The protection of property is not the reason for the provision. It is there because a risk of serious damage would in most cases be likely to have an effect on the witness’s safety, and certainly on his perception of his safety. That may in turn affect the witness’s willingness to give evidence. For that reason, the subsection as drafted covers a reasonable fear on the part of the witness that there would be serious damage to property, as well as fear that he or another would suffer death or injury.
Amendment No. 17 would remove the reference to the requirement for the court to have regard to the witness’s fear that there would be serious property damage. To the extent that such a fear is likely to have a bearing on the witness’s willingness to give evidence, we believe that it is appropriate for the court to take that into account when deciding whether an order is necessary.
There has been some discussion of the opinion of the Attorney-General of New Zealand, who considered the compatibility of New Zealand’s “fair trial” provision in that country’s Evidence Act 2006 with the corresponding provision in clause 4(3)(a) of the Bill. He concluded that
“it would be an exceptional case where the risk of property damage, without any accompanying risk to persons, could be the basis for a witness anonymity order”.
We agree that the number of cases in which that would be appropriate might be limited, and that the appropriateness would be assessed by the courts on a case-by-case basis, but the vital point is that the Attorney- General of New Zealand did not suggest that the provision itself was incompatible with a fair trial. We are satisfied that the provision is compatible with convention requirements.
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Some cases involve the safety of the witness or another person, and others will involve serious damage to property and engage the safety of the witness or another person. There may be others in which the risk is to property only—for example, threats to blow up the family home—and the risk is destitution for the witness’s family, rather than physical injury, but that is not a reason to remove those threats completely from the coverage of anonymity orders. It is down to the judge’s discretion, on the facts at the end of the day, and that is how it ought to be.
Amendment No. 32 provides that the property mentioned in clause 4(6)(b) has to be the witness’s own property or that of a close relative, and my hon. Friend the Member for Hendon gave clear reasons for that. I understand his objective in requiring a close link between the property and the witness, but we are not persuaded that it is necessary, as it might prevent the clause from working properly. The condition is that the court is satisfied that the order is necessary to prevent serious damage to property, and the court must have regard to the witness’s fear that such serious damage would occur if he were identified.
I have just about managed to scoot through the amendments, and I hope that on that basis, the wording in the clause will be accepted.
The Second Deputy Chairman: Does Mr. Hogg wish to respond?
Mr. Garnier: On a point of order, Sir Michael. We have less than a minute to deal with the rest of the business with which the Committee was tasked to deal. You will be invited to report that the House has considered the Bill in Committee, but clearly we will not have done so.
The Second Deputy Chairman: Order. I understand the point of order that the hon. and learned Gentleman is seeking to make, but first we must deal with the amendment.
It being six hours after the commencement of proceedings, The Chairman put forthwith the Question already proposed from the Chair, pursuant to Order [this day].
The Chairman then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
Clause 4 ordered to stand part of the Bill.
Amendment made: No. 42, page 3, line 18, at end insert—
‘(ba) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;’. — [Mr. Michael Foster.]
Clause 5, as amended, ordered to stand part of the Bill.
Amendment made: No. 43, page 3, line 35, leave out ‘section 4’ and insert ‘sections 4 and 5’.— [Mr. Michael Foster.]
Clause 6, as amended, ordered to stand part of the Bill.
Amendment made: No. 44, page 4, line 2, after ‘indictment’, insert ‘with a jury’.— [Mr. Michael Foster.]
Clause 7, as amended, ordered to stand part of the Bill.
Clauses 8 to 14 ordered to stand part of the Bill.
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