Coroners and Justice Bill

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The Chairman: Are there any further questions on assisted suicide?
Q 253Dr. Iddon: May I add something? Does the DPP have a policy, or anything to say, following Mrs. Moon’s question on whether these sites should stand, or if legislation should be brought in to take them down? It is the same question, posed in a slightly different way.
Keir Starmer: No fixed view, other than that in so far as offences may be committed under this provision, we would obviously consider prosecuting in those cases and would anticipate doing so.
Q 254Mrs. Moon: This follows up Ms Willott’s issue about watching videos. Videos have been posted, in relation to young people who have taken their lives, on YouTube. With regard to the text and conversations taking place underneath the videos, there have been definite conversations inducing someone to take their life. Words are said to the effect of, “Your brother was a waste of space, we were better off without him and we would be better off without you too”. Would that conversation be covered by this legislation, where someone was actively saying, “You should take your life because you are a waste of space”? Would that be seen as encouraging?
Keir Starmer: I imagine that it would be.
The Chairman: Are there any further questions on assisted suicide? I know Mr. Michael wants to ask about witness anonymity, but in his absence I am going to take live links next and come back to witness anonymity.
Q 255Mr. David Kidney (Stafford) (Lab): Mr. Starmer, I hope you do not mind, but I used in aid your reported views about television cameras in courts on Tuesday, when I urged the Lord Chancellor to let them in. Coincidentally, I am asking you about a different kind of cameras in courts now with live links—clause 89. What would be the considerations if we removed the safeguard of the accused being able to decline appearing by live link for the practice of prosecutors in future?
Keir Starmer: The removal of the consent provision will make the use of live link much more effective. There are obvious concerns about the fairness of proceedings, but there are a number of safeguards in the provisions which are important in that respect. First, they do not apply to trials. Secondly, they do not affect the right to be represented by a solicitor. Thirdly, the court has to be satisfied as to the interests of justice. Finally, and overarchingly, there is always the safeguard that the scheme must comply with article 6 of the European convention, and be adjusted in any way that makes that necessary, on a case by case basis.
Q 256Mr. Kidney: Whose responsibility do you understand it would be under the Bill to determine whether it was in the interests of justice to proceed by live link? It is not very clear whether the defence are supposed to raise this or whether the prosecutor should consider it.
Keir Starmer: It is the court’s responsibility. It would fall on us as a prosecuting authority to consider that, but it would also fall on the defence to raise it. Ultimately, it is a matter for the court.
Q 257Mr. Kidney: You relied on article 6, but in its representation Liberty thought that several articles of the convention were potentially breached by that. It mentioned article 6, the right to a fair trial; article 5, the right to liberty; and article 3, which concerns degrading treatment. Are you satisfied that the provision in the Bill at the present time is compliant with the Human Rights Act 1998?
Keir Starmer: On the face of it, yes. As far as article 5 is concerned, if an individual is in custody they are within article 5—whether they are in a police station or in the courtroom, they would still be considered under article 5. I am not sure how the argument is put that article 3 is engaged by this process.
The Chairman: Are there any further questions on live links? We move on to witness anonymity.
Q 258Alun Michael: On the one hand, how do you ensure that witness anonymity orders do not become routine? On the other hand, how do you deal with the question of anonymity, not in the high-profile cases that seem to be the majority where witness anonymity orders are being used—protecting undercover officers and that sort of thing—but in the situation where severe intimidation and low-level nuisance activity, including activities against property, can cause real problems within a local community? Could you give us some idea of how you think that will work?
Keir Starmer: To ensure that the orders do not become routine, there are a number of safeguards. An application is identified by the police and passed to the Crown Prosecution Service. We then consider that. That is done at a high level by the heads of our complex casework units or the specialist divisions in London—they are all senior lawyers and they have to personally sign off on that. The application then goes to the court, which applies the criteria and either allows the application or not, according to the legislation. In the cases so far, it appears that that works well and provides the necessary safeguards. We then have, as it were, an after-the-event safeguard, which is that we collate the figures monthly. They are all shown to me month-on-month so that we have a proper view of the working of the system.
Q 259Alun Michael: In some ways it is easy to see how those judgments are made when you are dealing with, for instance, undercover officers, but more difficult to see how the process operates when you are dealing with local levels of intimidation—which most MPs are used to dealing with through our casework experience, and which can be quite worrying.
Keir Starmer: Where that occurs it is identified by the police. They take a view on whether it qualifies or not. If it does not qualify, then these provisions obviously do not apply. If it does, then it goes through the process that I described.
Q 260Alun Michael: Are you satisfied that in the current process those move through that system adequately and that the proposals in the Bill will enhance the working of that system?
Keir Starmer: Yes, I am. It is working very well.
Q 261Mr. Garnier: May I ask about both witness anonymity and anonymity in investigations—which comes slightly before that in the Bill? In relation to anonymity in investigations, which starts at clause 59, do you understand the reasons for, and if you do understand, do you agree with, the Government’s decision to limit the qualifying offences to murder and manslaughter? Is there not an argument for extending that to offences of serious violence, such as section 18 of the Offences Against the Person Act 1861? We are dealing with gangs and trying to proceed more effectively against gang members. If we limit it to murder and manslaughter, surely we may miss out some of the nasty things that those gangs do.
Keir Starmer: Those are exceptional in their nature. I understand that the provisions have been drafted with a view to achieving a balance between what would be the usual procedures and the exceptional procedures. A line has been drawn in in clause 59(2). It is to achieve that balance and to ensure that it operates at least in those cases.
Q 262Mr. Garnier: Do you have any concerns about the age limits that have been imposed for these sorts of matters—I think it is 18 to 30?
Keir Starmer: It is 11 to 30.
Q 263Mr. Garnier: Forget the lower level; let us think about those above 30.
Keir Starmer: The intention is to deal with gangs that have certain characteristics. That is why the age limit is there. It means that we will have to consider carefully the evidence that we have before making applications on our own behalf or, where relevant, advising the police on such applications. Again, this is an attempt to balance what in some ways is quite an exceptional measure with other cases.
Q 264Mr. Garnier: Am I misleading myself? You and the Crown Prosecution Service are not an investigating authority within the terms of clause 60(2) on page 35. Presumably, it will be your representatives who make the application to the court. Is that right?
Keir Starmer: No. A number of bodies can make that application and we are one of them. Applications can be made separately by the police and probably will be at the pre-charge stage. We are more likely to make an application at the post-charge stage or in a case where we have been involved in the pre-charge investigation. I anticipate that many such applications will come through the police.
Q 265Mr. Garnier: Let me ask you about the anonymity of witnesses in clause 69 and following on page 40. As you will recall, Parliament introduced the emergency legislation at the end of last July when your predecessor was in post. To what extent has emergency legislation been used in the intervening period between now and then, and have you found it of practical use? Would you like to see any differences in the legislation that we passed then, compared with what is in the Bill?
Keir Starmer: I will try and give an indication. We have the full figures for the period of July to December 2007 and the position is as follows.
During that period, the police identified 137 cases for application. Within each case, there may be more than one witness. Therefore, within those 137 cases, 346 witnesses were referred to us. We considered those witnesses and made applications in 135 individual cases—that is 135 of 346, not 135 of 137. Of those 135, 129 applications were granted: 43 for civilians; 35 for undercover police; 49 for police test purchase officers; and two for other investigators.
Six were rejected and we have analysed those rejections. All the cases were rejected in the Crown court and all involved civilians. In the main, they involved the court’s opinion that what are now conditions B and C in clause 71 were not satisfied. The cases generally turned on questions that arose during the course of the proceedings, where a different light was put on the overall situation, and/or it was considered that the witness did not add sufficiently to the prosecution case to warrant the making of an order. None of the cases involved threats to property.
In that sense, it appears that the measure is working well. In the cases that we have considered, there is a high success rate when they are put before the court. We have analysed the refusals for any patterns or difficulties and there are none, apart from things that are thrown up on a case-by-case basis. The only difficulty has been dealt with by the amendment to condition C, which ensures that it reflects the public harm or public interest rather than the witness not being likely to give evidence. From analysing the cases month by month over the six months, it appears that the system works well, that the safeguards are in place and that there is a good correlation between the applications we make and their success in court.
Q 266Mr. Garnier: Are the applications made predominantly in the magistrates court or the Crown court?
Keir Starmer: Predominantly in the Crown court. I will try to give you the figures. Of the 137 cases that have been passed to us for consideration, 133 were in the Crown court, three were in the magistrates court and one was in the youth court. That batch is still in the pipeline so I cannot give an overall figure. Not all of those applications will necessarily be made because we act as a filter, as do the courts. I hope that that information gives a sense of the proportions over the six months. The cases are predominantly in the Crown court and all the refusals have been from Crown court cases.
Q 267Mr. Garnier: Are the cases in the magistrates court in front of district judges?
Keir Starmer: I am not aware of the individual cases before the magistrates court because the 137 cases are all in the pipeline. Which of those cases have got to a magistrates court at the end of the process has not been analysed. I can certainly try to ascertain whether any of those have passed up to the court level yet and received a decision, and if so, what the composition of the bench was. I will try to make that available.
Q 268Mr. Garnier: I am not just trying to throw tedious questions at you. I am interested in how this is applied. We all agreed last summer that this is a required amendment to criminal law. The Bill requires the investigation element of the orders to go before a justice of the peace. From your experience of witness anonymity orders, which were mostly in front of the Crown court apart from three that were in front of magistrates, would it be more appropriate as a matter of practice for investigatory anonymity orders also to go in front of the Crown court?
Keir Starmer: The two are different and they apply at different stages. They are different in their nature and in their extent. Let me make it clear that three cases have not necessarily gone before the magistrates court yet. Three have been put up for consideration that would be in the magistrates court. It is difficult to say what the experience in the magistrates court is because we do not have that hard evidence. We might not consider those three cases to be suitable, in which case they would never be put up. It may be that they are and at that point we will have information on how the magistrates approach them. I am sorry that we do not have that evidence now.
The Chairman: The next question will be brief.
Q 269Jeremy Wright (Rugby and Kenilworth) (Con): I have a point of detail on clause 71(3), which outlines the first condition of which the court must be satisfied to make a witness anonymity order. Much of it is fairly clear. We understand what is meant by,
“in order to protect the safety of a witness”.
Paragraph (b) appears to relate to the activities of undercover officers of various sorts:
“in order to prevent 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).”
I would be grateful for your help in understanding the meaning of “or otherwise”, which is less clear. What situations would your authority use “or otherwise” to cover in applying for a witness anonymity order?
Keir Starmer: I think that it would be sensible if I came back to you on that. The records we keep are quite detailed. Rather than attempt it sitting here I might be able to give some meaningful evidence about that, which I will attempt to do.
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