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.
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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