Q
13David
Howarth: May I ask about loss of control? That is the
standard problem in battered wives cases. They find it difficult to
come within the existing defence of provocation, because of the
requirement of loss of control. The obvious way to reform the law to
help battered wives is to get rid of the idea of loss of control. The
Government have kept that idea in the Bill, but how does that help?
Clause 41(2) talks about “loss of control” not being
“sudden”, but it is not the suddenness of the loss of
control that matters; it is having to prove some sort of loss of
control. Maria
Eagle: I understand the point. After looking
carefully at the matter, we decided that there might be a small number
of cases at the top end where a loss of
control occurs and that we would still want to be capable of reducing
what would otherwise be murder to manslaughter. That would be a much
smaller number of cases, which is why we have tried to capture the
small number of cases envisaged using the new
formulations. It
might be helpful if I give an example of some instances of loss of
control, where we would all reasonably think that what had happened had
pushed the person beyond the very high threshold, such that it ought
still to count to reduce murder to manslaughter. For
example—this is not a real case—suppose a survivor of
genocide came across one of the perpetrators in the street, which is
not unknown and has happened. Suppose the victim recognised the
perpetrator, and after confronting them and being laughed at or
taunted, lost self-control and killed them. We would still want that
kind of case to be defended by the concept of a loss of self-control.
There are a small number of cases at the top end where that is still a
useable concept that adds something to the
law. In
these changes, we are trying to lift the bar, so that there are far
fewer cases, while extending the law to incorporate the fear of
violence that battered wives cases first raised as an issue. Those
cases tended to make critics think that the way the current law of
provocation works is not fair to those who kill out of fear, but it is
perhaps overly generous to those who kill out of anger. That is why we
still have that element of loss of self-control. If we did not believe
that there were such cases, we would seek to abolish the concept
completely in law. However, there are some instances where it might
still be justifiable which is why it is
there.
Q
14David
Howarth: But the fear of serious violence requirement is
about not only the fear of serious violence, but cases where the
defendant’s loss of self-control was attributable to serious
violence. There still needs to be that loss of self-control. That leads
to the central example in the battered wives case. Suppose a wife is
abused for a long time, and after a particularly bad incident of being
beaten up she waits for her husband to go to sleep and kills him. I do
not see the loss of control in that case, but I think that under the
Bill that person would be convicted of
murder. Maria
Eagle: It depends whether they fitted into the fear
of violence element.
David
Howarth: But they had to lose control.
Maria
Eagle: The proposed changes mean that the loss of
control does not have to be sudden. Some of the battered wives cases
were at the stretch of the statutory wording but fitted into the
current law, because they were able to show battered-wife syndrome or
psychological effects proving that a loss of self-control had occurred,
albeit on a slower basis. It is the removal of the requirement for it
to be sudden that has allowed those cases to fit in. Without the
requirement in the reformed partial defence for some self-control, we
would open the door to cold-blooded killings fitting into the defence.
There has to be a loss of self-control.
David
Howarth: Mr Cook, do you want me to go on to data
protection
now?
The
Chairman: No, I want to stick to this section if you do
not mind.
Dr.
Brian Iddon (Bolton, South-East) (Lab): I have a question
on death certification. I hope that it is in order.
The
Chairman: No. We had you down on murder, infanticide and
suicide. Assisted suicide is at the end.
Dr.
Iddon: Then I will wait.
The
Chairman: Okay. So if we have finished the first section,
we will move on to the possession of a prohibited image of a child. If
nobody is interested in that, we will move on swiftly to witness
anonymity. Alun Michael.
Q
15Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): On the
issue of the possession of images, rather than not being interested in
it, it is that we do not feel a need to probe it at this stage. It will
come up in later evidence.
Alun
Michael: Very important
semantics.
The
Chairman: Yes indeed, carry
on.
Alun
Michael: It is easy to argue on either side about witness
anonymity, and to show examples where not knowing where evidence is
coming from makes it difficult for an innocent accused to provide a
defence. However, most MPs will have had experience of places where
intimidation of people within a community for an extended period means
that the protection of witnesses is the only way that can be tackled
and issues can be brought before the court. How will the drafting of
the clauses ensure no unintended consequences on either side of that
difficult
balance? Maria
Eagle: The Bill re-enacts effectively with slight
modification the provisions of the Criminal Evidence (Witness
Anonymity) Act 2008. Many members of the Committee will remember that
as a swift and in many ways exemplary piece of parliamentary activity
to deal with a problem that had arisen suddenly, thanks to a House of
Lords judgment that had many practical implications for the confidence
of the public in the criminal justice system. As in any proceedings,
witness anonymity has implications for fairness to the defendant and
for the ancient rights of the defendant to confront their accuser,
which was what the whole issue was
about. The
legislation came into force on 21 July and, from what we can see, it
appears to be working relatively well. Some members of the Committee
who practise in the criminal courts may have their own view about
whether it is working well, but it seems to us to be working well and
to strike a correct balance between protecting the rights of the
defendant and making sure that witnesses who come forward to give what
can be vital evidence to make sure that justice is done in some pretty
difficult and serious cases will be fully protected, when that is
appropriate, and have their anonymity
guaranteed.
Q
16Alun
Michael: Some people have criticised the fact that an
order may be granted to prevent serious damage to property. How would
you justify that?
Maria
Eagle: If, in the course of an intimidatory tactic,
someone threatened to burn down a person’s house if that person
gave evidence, that might be damage to property, but that might well be
enough to stop a witness coming forward and be willing to give
evidence, just as much as the threat of physical violence might be.
Such matters are not for me, as a Minister, to decide on, but very much
for the judge in the case to bear in mind when the prosecution makes an
application to the court to protect a witness by the use of anonymity.
It is something that a judge in a particular case with the
circumstances that he is looking at will make a judgment
about. It
might be helpful to the Committee if I gave some statistics about what
has happened since that legislation came into force, because they might
be illuminating. The Crown Prosecution Service told me that 135
anonymity applications had been made to the courts up to the end of
December following the passage of the legislation, of which 129 were
granted and six refused. Of the applications granted, 43 were
civilians; 35 were undercover officers; 49 were test purchase officers;
and two were other police officers. All six applications that were
refused were for civilian witnesses and, of those cases, three were in
the magistrates court, one was in the youth court and the rest were in
the higher court.
Q
17Mr.
Garnier: May I interrupt and ask the Minister a question
about the figures, which were very helpful? How many cases in the list
were ongoing prior to the passage of the emergency
legislation? Maria
Eagle: That I cannot say without trying to find
out.
Mr.
Garnier: Do you think that you could?
Maria
Eagle: I shall do my utmost. Whether or not that
information is available, I do not know, but I shall certainly come
back to the Committee with a follow-up in that
respect.
Q
18Alun
Michael: Those figures show that a majority of
non-civilian cases have come up. One of the queries was that clause
71(3)(b) provides that a witness anonymity order may be granted in
cases where there
is “real
harm to the public interest (whether affecting the carrying on of any
activities in the public interest or the safety of a person involved in
carrying on such activities, or
otherwise).” That
has been interpreted as being intended to protect undercover officers.
The Minister suggests that that protection is being afforded in a large
number of the cases when an application is made. Why is that clause
necessary? If it is to protect undercover officers, why does it not
actually say
so? Maria
Eagle: That is what it is for. I made that clear
during the passage of the legislation. I suspect that it is like that
because the Bill had to be done very quickly. I made it clear that that
provision meant national security and undercover work of the police and
relevant agencies, and that the reason behind such anonymity was to
enable the re-use of undercover officers. That is specifically
mentioned in the Strasbourg jurisprudence as an acceptable reason as
well. It is always important in any application before a judge that the
judge can choose whether or not it is appropriate in the individual
circumstances of the case, and he or she would certainly be able to do
that.
Q
19Alun
Michael: Given the helpful and illuminating figures that
you have put before us, are you satisfied that sufficient use is
successfully being made of the cases that I have mentioned of community
terrorisation or intimidation, which I think were in the minds of many
MPs in supporting the legislation previously and
now? Maria
Eagle: As far as we know, it is. It certainly would
not be for us to suggest that there ought to be an increase in those
sorts of order. We shall try to make it as easy as possible for
witnesses to extremely serious crimes, such as homicides either
involving the use of guns and knives or related to gang-based crime, by
bringing forward in this legislation the earlier order—the
investigation anonymity order. That might reassure witnesses to such
serious crimes enough to make them come forward to give their evidence
in the first place, long before a case gets to court. In such
instances, if that evidence were to be given at a trial, it would be
for the court or the judge to decide whether to make a witness
anonymity
order. By
including provision for the investigation anonymity order, the
legislation seeks to provide extra reassurance to members of the public
who see a serious crime of homicide relating to gang activity or
involving the use of knives or guns that they can come forward and that
their identity will be protected. It is well known—as many
Members who have such problems in their constituencies are
aware—what a climate of fear can be created by gangs trying to
control geographical
areas.
The
Chairman: You tapped a vein of gold there, Mr.
Michael.
Q
20Mr.
Tim Boswell (Daventry) (Con): The statistics are very
useful, Minister, and I understand what you are trying to do. In the
failed cases, of which there were six, can you indicate whether there
is any evidence as to the nature of the failure? For example, were
there cases where it was impossible to establish a threat to personal
safety, but where there might have been a real threat to
property—something that would be brought in under the new
law—as that would seem to be justification for what you are
proposing? Equally, although it is more difficult to get a handle on
this, were there cases where applications may not have been made or
were frustrated, because, although you could go as far as the threat to
property test, you could not actually demonstrate at the time that
there was a direct threat to the individual’s personal safety? I
just want to get a handle on how valuable it would be extend the
existing
provisions. Maria
Eagle: I will have to go back to the criminal justice
agencies, and the Crown Prosecution Service in particular, for more
specific detail about the applications that were refused. I shall do my
utmost to find that out if it is possible, and will come back to the
Committee. I do not have the information at present, but it would be
helpful if it was available. I will bring it back to the
Committee.
Q
21David
Howarth: That will be very helpful. I have two other
questions about the numbers cited. First, how many times were special
independent counsel appointed in any of those cases? That was one of
the big substantive problems in the Bill—there were lots of
technical problems in the Bill, which we shall have to come back to,
because we do not want to go into them now—but that was the
one area of policy on which there was some disagreement. Secondly, how
many appeals have there been and what kind of appeal activity has there
been? What have the appellate courts said about the
provisions? Maria
Eagle: There have been two requests for special
counsel made and granted during the relevant period. Of all the
requests made, and there have been two, they have been granted. In
respect of appeals, there is the Myers case, is there
not?
Q
22David
Howarth: That was a transitional case though, was it
not? Maria
Eagle: Yes. I shall have to come back to the hon.
Gentleman on appeals beyond those that we know about. It may be a
little soon to have huge numbers in that respect, but I shall see what
is available and include that in my further letter to the
Committee.
The
Chairman: Now, for practical purposes and out of sequence,
I shall go immediately to
coroners.
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