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Mr. Boswell: If the provision goes through, will the Minister at least undertake to monitor its operation effectively, to see whether the advantages in speed and localism that she has identified outweigh any alleged disadvantage from consistency of practice or some other judicial failing?
Maria Eagle: Yes. We would do that in any event, and the CPS and the police will be collecting statistics. However, we will keep the workings of the order under review, were the Committee and the House to put it on the statute book as we wish.
I do not believe that the potential drawbacks mentioned by the Committee will become real. I have every confidence that the magistracy and JPs are perfectly capable, and that they have more experience of dealing with such matters than the Crown court. We therefore believe that the advantages will outweigh the disadvantages. However, the proof will be in what happens, so we will keep an eye on things. None the less, I do not believe that the concerns raised by the hon. and learned Gentleman are such that we should consider accepting his amendment. I hope that he agrees, and that he will find it possible to withdraw it.
Mr. Garnier: This has been a short debate, and deliberately so. I was almost amused a moment ago, thinking that the Minister was about to say that the proof of the pudding is in the eating.
Maria Eagle: Plum duff.
Mr. Garnier: The Minister saw the horrors of plum duff appearing before her, but she resisted the temptation. Nevertheless, she was right to think of plum duff, because it is an apt analogy for the Bill.
I wish to calm the fears of my hon. Friend the Member for Daventry and others. The Conservative party is a doughty supporter, defender and promoter of the ancient office and functions of the lay magistracy. When the Minister said that the advantage of keeping the applications before the magistrate is that it can provide a speedy local service, I was reminded of the number of magistrates courts that have been closed or threatened with closure under this Government. As a result, it may not be all that speedy, and it may not be all that local. However, I have every confidence that such magistrates as remain will provide an excellent service.
As the Minister correctly pointed out—if she did not, the hon. Member for Cambridge did, based on his wife’s experience on the bench—lay magistrates and district judges already deal with highly sensitive applications, including search warrants. Other applications, such as those under terrorism legislation or those relating to searching bank accounts and the production of bank records, are made to the Crown court. However, that does not matter; I am not sufficiently anxious about clause 61 to keep these issues away from the lay bench, and I am content to let the matter rest.
9.15 am
Finally, I want to deal, in so far as it needs to be dealt with, with a point made by the hon. Member for Cambridge about the number of people in the know. As he will perhaps appreciate, applications under the public interest immunity system are made in private to the Crown court judge, and the number of people in the know is determined on a need-to-know basis. Were applications under clause 61 reserved to the Crown court, a procedure operating on a similar need-to-know basis would be set up, although that will not happen as a result of my arguments. None the less, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman: Before we come to the next group of amendments, I remind the Committee that my job is to listen to every word that is spoken. Under certain circumstances, I might choose not to hear them, but I have to listen to them. If I am to hear them clearly, however, it is better for them to be addressed in my direction, because my hearing is slightly impaired.
Maria Eagle: I beg to move amendment 268, in clause 61, page 35, line 16, leave out ‘assisted or was’ and insert ‘is or was able or’.
The Chairman: With this it will be convenient to discuss the following: amendment 463, in clause 61, page 35, line 23, after ‘information’, insert ‘is a police officer or’.
Government amendments 269 to 274.
Amendment 440, in clause 61, page 36, line 8, leave out paragraph (a).
Amendment 441, in clause 61, page 36, line 12, leave out paragraph (c).
Amendment 442, in clause 61, page 36, line 15, leave out paragraph (d).
Government amendment 275.
Amendment 79, in clause 61, page 36, line 24, at end insert
‘and on summary conviction to a fine not exceeding level 5 on the standard scale or to a term of imprisonment not exceeding 6 months or to both.’.
Government amendment 276.
Clause stand part.
Government amendments 277 and 344.
Maria Eagle: Clause 61 provides that an investigation anonymity order is not contravened in certain specified circumstances, including where the disclosure of information is to a person employed in public administration. Following further consultation with the Association of Chief Police Officers and the CPS on how the order will operate in practice, we have concluded that that exemption is no longer required. Government amendments 271, 274 and 276 therefore remove it.
ACPO intends that knowledge of a witness who is subject to an investigation anonymity order should, as one would hope, be kept within a very tight group, whose members need to know that information for the purpose of the investigation. We have been advised that the latest procedures in homicide investigations mean that there should be no contact with local authorities or others in public administration, certainly not in a form that would give away the witness’s details. In view of that, we have decided that the exemption in the original draft Bill is not necessary.
Government amendments 275 and 344 would remedy an administrative oversight, which the hon. and learned Member for Harborough has clearly spotted, given that his amendment 79 is on the same issue, and I am happy to answer any points that arise out of his exposition on that amendment.
Clause 61(11) provides for penalties for a person guilty of breaching an investigation anonymity order. Although it covers a person convicted on indictment, we have neglected to provide a penalty for a person on summary conviction. The offence is to be triable either way, so that is a bit of an oversight.
Government amendments 268 to 270, 272, 273 and 277 are minor drafting amendments.
Mr. Garnier: I am grateful to the Minister for acknowledging the thrust of amendment 79, which seeks to add to subsection (11) the appropriate way of dealing with a summary conviction, in addition to the conviction on indictment. It is appropriate that it should be restored to the Bill, given the discussions that we have just had on the Government’s and our own support for the magistrates system, so I do not need to say any more about that.
I am not sure to what extent the Minister anticipated or dealt with my amendments 440 to 442, but essentially what we want to find out from the Government why a person employed in public administration should be immune from the discipline of the scheme. I appreciate that paragraphs (8)(a) to (8)(d) are all wrapped up into one:
“A person who discloses information to which an investigation anonymity order relates does not contravene the order if—
(a) the person is employed in public administration,
(b) the information had been disclosed to the person for a purpose connected with the specified qualifying criminal investigation...
(c) the disclosure was made to another person who at the time of the disclosure was employed in public administration...and
(d) such disclosure was made for the purpose referred to in paragraph (b).”
I can understand that. There may be officials within the police, the Crown Prosecution Service and other arms of the—
Maria Eagle: It may have assisted the hon. and learned Gentleman if I had been clearer in moving the Government amendments, which remove those sections, which are not necessary. ACPO has explained in more detail the procedures that it intends to adopt, and so those exemptions are no longer necessary.
Mr. Garnier: That serves me right for half listening to the Minister and half preparing the next four clauses. Thank you.
David Howarth: I want to speak to amendment 463, which is in my and my hon. Friend’s name. It is a deliberate probing amendment that asks a simple question: to whom will the offences in this part of the Bill apply? If, as the probing amendment proposes, police officers were immune from prosecution, who else would be liable to be found guilty of the offences? My reason for asking goes to the heart of my doubts about this part of the Bill. They are not doubts about the underlying severe problems with witness intimidation by gangs, especially in localised areas. My problem is whether the provisions will make any difference or any practical change as a result of passing these clauses, or whether it is a bit of symbolic legislation or yet another idea from ACPO that has not been properly thought through.
As I see it, it is envisaged that the police will say to a potential witness, “We will protect your identity from being released to the target of the investigation.” An order will then be made, and if the order is breached, that is a criminal offence. The question is, how is that different from what happens now? In reality, the police give assurances to potential witnesses and say, “Your name will not come out as part of the investigation. Later on, we might have to apply for a witness anonymity order to keep your name out of the court, but while it is going on we will not let your name out.” In fact, as a matter of law, even if, obviously, it is not often used, there is already civil liability, if the police give an assurance to a potential witness or a victim and then negligently allow their name to come out. Swinney v. Chief Constable of Northumbria Police Force 1996 shows clearly, at least in theory, that there is liability for negligence in such circumstances.
Maria Eagle: At the moment, witnesses do not come forward because they feel that they cannot be given any assurances about anonymity at such an early stage of an investigation. They realise that there might be anonymity at trial, but that is a long way off in the circumstances that we are talking about. Therefore, in practice, at the moment, witnesses do not come forward, and evidence that may help solve the crime is not given.
David Howarth: I still doubt whether the availability of the orders will be widely known to the general public and whether the orders will encourage anyone to come forward, given the circumstances in which assurances will be advanced by the police.
Mr. Boswell: Does the hon. Gentleman agree that in too many cases in the past Governments have worthily aspired to some public good and legislated for it, but the legislation has not ipso facto removed the problem?
David Howarth: I completely agree with the hon. Gentleman. Too often, the Government imagine that passing a law will automatically solve a problem in the real world, but there is a difference between real world events and laws. Members of the public do not spend any time in their ordinary daily lives reading Acts of Parliament.
Mr. George Howarth (Knowsley, North and Sefton, East) (Lab): People may not notice the change in the law, but they will notice the change in practice. I had a conversation with a constituent on Monday morning who was under some stress because of attacks by local yobs. Her experience is that people do not allow themselves to become a witness in court, if they are unprotected. If she felt that the protections provided were sufficient to enable her to go to court, I am sure that she would do so.
David Howarth: I agree with the right hon. Gentleman, and I think he supports what I have said.
Mr. George Howarth: I do not.
David Howarth: The right hon. Gentleman thinks that he is not supporting what I have said, but in reality he is. What matters is the protection that witnesses believe that they will receive in reality, which is the key to the situation. Do people feel safe going to the police? Legislation does not make them feel safe, but the experience of other people on their estate in similar circumstances will.
Mr. George Howarth: It is not the change in the law that is important, but the practice that follows. That is a simple point, and I am at a loss why he cannot understand me.
David Howarth: I cannot understand the right hon. Gentleman because I do not think that any change of practice will automatically follow from the Bill, or that there will be any change of practice that could not be achieved without the Bill.
Jeremy Wright (Rugby and Kenilworth) (Con): May I put the point made by the right hon. Member for Knowsley, North and Sefton, East a different way? At the moment, the police are not in a position to tell a prospective witness at investigation stage that protection of their anonymity will be provided at that point. The Bill will mean that the police will be in a position to say at the investigation stage, “Anonymity is available to you.” That is the change in practice that I think the right hon. Gentleman is describing.
David Howarth: Absolutely, but what difference would that make? That is the point of amendment 463. Who are the potential offenders under the clause? The only plausible offenders are police officers. If members of the public do not trust the police to keep their names out of the public eye and away from the alleged offenders who might intimidate them, why would they do so under the provisions? That is why I do not think that it makes a lot of difference.
9.30 am
There have been cases where the police have a close relationship with journalists and the names go to the journalists, who then publish them, but that is rare. The Minister is making a facial expression to show that she agrees that it is not rare enough and that there is too much of that sort of thing going on. Nevertheless, even in that case, the offence will have been committed by police officers, because the information would have been given to the journalists by police officers. I suppose that in theory, it might, in some cases, be a police civilian employee, but it is usually a police officer who commits the offence.
The underlying question is why do the Government believe that members of the public, who do not trust the police now, will trust them any more if the only protection that they are being offered is a criminal offence that the police, and virtually no-one else, commit? The police will then have to take proceedings against themselves. If one has little confidence in the police, then I cannot see what practical difference the provision will, in reality, make—even though I hope that it does.
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