Mr.
Garnier: There is a great deal in what both my hon. Friend
the Member for Rugby and Kenilworth and the Minister have said, but
there may be a confusion in the Minister’s mind. She partly
answered the question, but she used the word “evidence”.
The subsection uses “information”. There is a world of
difference between information and evidence. That may sound overly
technical, but it is clear to us that there is a real
distinction. I
rather agree with my hon. Friend. If the Minister does not want to
spray around investigation anonymity orders, we need higher hurdles or
stricter tests in order to prevent that. Surely it would be better and
in line with the Government’s policy—I think that my hon.
Friend would agree—to use what I call an “unless”
test rather than the balance of probabilities test outlined in
subsection (8).
Under such a
test, the person specified in the order would have to be able
to provide information that would assist the criminal investigation,
and it would have to be the case that they would not give it
unless the order were made. We then come to the discussion
about the distinction between information and evidence, but surely, if
the Minister is right about not wanting to spray the orders around, we
must not give them automatically: “All right, I’d rather
have one, and then I’ll be very helpful.” We need to be
disciplined about it.
Maria
Eagle: I understand the point that the hon. and learned
Gentleman is making. I probably did mean to say
“information” rather than “evidence”. We
are talking about the early stage—possibly the very early
stage—of an investigation into a serious crime. Information may
appear to be important evidence when it is given and end up not being
important at all by the time the investigation is completed. We are
talking about information that might end up as evidence. I accept that
point.
In that
sense, it is a matter of pragmatism for the investigators—the
police, in most instances—to follow their investigatory prowess
in getting what information they can in a particular set of
circumstances. We can be pragmatic about it because we are discussing
not trials but investigations, which might or might not lead to
charges, justice being done and individuals who have committed homicide
being caught. We hope that they will lead to those things, but they
might not. We do not need to start applying at that early
stage the kind of tough judicial test that one would expect to
be met in trials.
We are trying
to assist those who have information to feel able to come forward with
it and give it to the police. An assurance from the police that their
anonymity will be retained may facilitate that process in the
circumstances of gun and knife homicide in gang-infested hotspots where
we know that there is a problem. Those are particular circumstances,
and we need to retain pragmatism on the part of the police. Those of us
who have been involved in trials of various kinds should not become too
legalistic about precisely what the test ought to be. We are simply
trying to reassure those who have information that might be relevant to
a gun or knife homicide in a gang-infested area, to come
forward and give information that they otherwise might
not provide. I believe that we should be relatively pragmatic
about that.
Jeremy
Wright: The Minister is broadening out my point beyond
where I intended it to go. I am asking what subsection (8)(b) adds. I
do not suggest that an investigation anonymity order should be
available to everyone whenever they want it, because the rest of the
clause deals with other restrictions on the issuing of such orders. It
is hard to conceive of anyone who would not be more likely to give
information if they have anonymity than if they do not. I wonder why we
need the subsection.
Maria
Eagle: Most people might prefer to have anonymity than not
have it, but there are some tough, robust characters out
there—we have all met them—who are willing to come
forward at any time if they feel that that will help to rid their area
of what they acknowledge to be a problem. This measure might not make a
difference to such individuals, who would come forward anyway. I do not
believe that it is a killer one way or the other—if you will
forgive the terrible pun, Mr. Cook.
Let me deal
with the point made by the hon. and learned Member for Harborough who
tabled the amendments, and by the hon. Member for Cambridge about the
strange definition of “gang”. That is an attempt to
define a gang in a way that, although it appears odd on first reading,
is based on evidence and seems to work as well as any other
way.
Police
working in these areas know from intelligence and their own experiences
what is going on and who these people are. Analysis of 770 known gang
members across London, Liverpool, Manchester and Birmingham—four
of the hot-spot areas where this kind of problem has taken a
hold—has shown that 97 per cent. are under the age of 30. That
confirms the anecdotal evidence provided by the hon. Member for
Cambridge and the hon. and learned Member for Harborough, who have been
visiting prisons and have noticed the ages involved. Studies indicate
that their anecdotal evidence is accurate; the average age of gang
members is 20.
Half the
total number of gun and gang homicides are estimated to have been
committed by those aged 11 to 29. A study of gun crime in Manchester
showed that overall, the most serious injuries were associated with
shootings in which gang members were involved. Eighty per cent. of
deaths and 70 per cent. of the most serious injuries result from
shootings that involved gang members. Such evidence has led us to
believe that by using what appear to be somewhat strange definitions,
we will catch the mischief that we intend to catch. I assure the
Committee that that is based not only on anecdote and assumption, but
on research and study.
The hon. and
learned Gentleman made a point about numbers—two and one; I will
not rehearse his point. We do not believe that it will be necessary to
show that all members of a group appeared to engage in criminal
activities—only a sufficient number to indicate the existence of
a discernible group, which is more than one person, with at least one
involved in criminal activity. That is the explanation. It is also not
necessary to show that members of a group engaged in criminal
activities together, as long as we can show that there is a gang and
that somebody has committed an offence.
I hope that
those explanations have helped, and that the hon. and learned Gentleman
will be satisfied enough to withdraw his
amendment.
10
am
Mr.
Garnier: Yes, I will, if the Committee gives me permission
to do so. The answer to this might well lie in guidelines. If that is
the case, perhaps the Attorney-General or the Director of Public
Prosecutions might find it appropriate to issue guidelines to the
police about how to carry out these sorts of investigations.
I am always
acutely conscious of the different experience in our constituencies: I
have been concerned about that point for the past 10 years or so. I
remember listening to the right hon. Member for Salford (Hazel Blears),
who, as a Back Bencher, when we were discussing the legislation to do
with antisocial behaviour orders and other related criminal offences in
the 1997 Parliament, described in a speech the criminal statistics for
her constituency in a fortnight. Those statistics were the same as
those in my constituency for a decade. It is important that we
understand the different experiences in our constituencies. The
problems that affect the estates in the constituencies of the right
hon. Members for Salford and for Knowsley, North and Sefton, East, and
those of other hon. Members, may be rather different from those that
affect the sort of estates that my hon. Friend the Member for
North-West Norfolk and I represent. I am not unaware of the patchwork
quilt that is England and Wales and how our different constituency
experiences influence our approach to these
discussions. I
gained some experience of this matter both through my practice at the
Bar and through my work as a shadow Minister visiting prisons. I was
told by the governor of one prison in Surrey that there was a gang in
there called the DSN gang. I said, “What on earth does that
mean?” He said it was the “Don’t Say
Nothing” gang, which works on the streets of inner London. That
gang works in prison and outside it and has controllers inside and
outside. The prison authorities do their best to break up and mitigate
the consequences of gangs existing inside prisons, but it is inevitable
that the gangs manage to do a lot of bad work inside prison, just as
they do
outside. Committee
members should not think that, because Conservatives sometimes
represent different places we do not understand that gangland warfare
and misbehaviour are a big problem across England and Wales. We do know
that and we agree with the Government that something sensible needs to
be done about it. We are edging towards an agreed route down which to
travel to prevent these terrible happenings occurring. I beg to ask
leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Amendment
made: 277, in
clause 63, page 38, line 1, leave
out ‘willing to assist or as having assisted’ and
insert ‘a person who is or was able or
willing to assist’.—(Maria
Eagle.) Clause
63, as amended, ordered to stand part of the
Bill.
Clause
64Appeal
against refusal of
order
Maria
Eagle: I beg to move amendment 278, in
clause 64, page 38, line 32, leave
out subsection (5) and
insert— ‘(5) The judge to
whom an appeal is made must consider afresh the application for an
investigation anonymity order and section 62(3) to (5) applies
accordingly to the determination of the application by the
judge. (6) In the application
of section 62(5) by virtue of subsection (5), the reference in section
62(5) to the designated officer in relation to a justice of the peace
is to be read— (a) in
the case of an appeal made in England and Wales, as a reference to the
appropriate officer of the Crown
Court; (b) in the case of an
appeal made in Northern Ireland, as a reference to the chief clerk of
the county court division in which the appeal is
made.’. This
minor amendment is simply about making it clear that appeals against a
refusal to grant an investigation anonymity order, as provided for in
the clause, may be dealt with on the papers, because an oral re-hearing
will not be necessary in every
case. Amendment
278 agreed
to. Clause
64, as amended, ordered to stand part of the
Bill.
Clause
65Discharge
of
order
Maria
Eagle: I beg to move amendment 279, in
clause 65, page 39, line 3, leave
out ‘may’ and insert ‘is entitled
to’.
The
Chairman: With this it will be convenient to discuss
Government amendments 280 to
284.
Maria
Eagle: We would normally expect an investigation anonymity
order to remain in force indefinitely. However, there may, on occasion,
be circumstances in which an order should no longer remain in force.
Clause 65 therefore allows a justice of the peace to discharge an
investigation anonymity order if it seems appropriate to do so in the
light of changed circumstances. However, it does not follow that
because circumstances change, the order should or must be discharged.
For example, we would not want an order to be discharged just because
it subsequently comes to light that the ages of most of the gang
members are outside the prescribed age limit—some of the 3 per
cent. It may be appropriate in such cases that the order remains in
force.
Mr.
Boswell: Perhaps it would be helpful if the Minister
explained the articulation between the investigation anonymity order
and the upcoming witness anonymity order, because they are presumably
not the same. If the evidence is sound for one, will it be applicable
to the second, and what will the transition process be, if
required?
Maria
Eagle: With your indulgence, Mr. Cook, I will
deal with that briefly. They are certainly not the same. The main
difference is that the investigation anonymity order is available on
appropriate application to a JP or the court at an early
stage—perhaps before anyone has been arrested, or immediately
after the crime has been committed—to bring forth information
from members of the public who may feel unable to give the information
or to tell the police what they saw or what they know without the extra
reassurance of anonymity protection in the limited circumstances that
we have
discussed. The
witness anonymity order is about what happens at trial when someone has
been charged and criminal proceedings have started. It protects the
identity of a witness who is giving evidence at the trial, and a
separate application must be made to the court. There are similarities,
but one does not imply the other. When the police give assurances to
the giver of information at an early stage of the investigation, they
cannot guarantee that a witness anonymity order would be made if
evidence were required to be given at trial, because there is not
necessarily a causal link between them. They are separate processes.
One is to bring forward information, and the other is to protect
identity at
trial. Because
of the importance of what is involved, the clause grants a right of
appeal to the Crown court against the JP’s decision. Pending the
outcome of the appeal, Government amendment 282 requires a justice to
delay the discharge of the investigation anonymity order because,
clearly, if the beneficiary of the order is opposed to it being
discharged, one would not want it to be so discharged before an appeal
had been heard. The clause pays close attention to the rights and
interests of the witness or information giver, and it may be that
person who wants the order to be
discharged. Subsection
(2)(c) specifically permits the recipient of the order to apply for a
discharge. Subsection (4) grants the witness or information
giver—it is probably better to refer to the information giver to
avoid confusion with the witness anonymity order—discretion to
be party to any application for discharge by the police or
other authority who might have applied for the order in the
first place. In accordance with Government amendment 280, a JP may not
discharge the order unless the person concerned has had the opportunity
to oppose such an application, or it was not reasonably practicable to
communicate with the beneficiary of the order to alert them that an
application for discharge was being
made. Subsection
(5) enables the beneficiary of the order to appeal against a
JP’s decision, whether the application for discharge is made by
the enforcement authority, or the beneficiary of the order, and whether
the decision is to grant or to refuse the application. Those are
safeguards to ensure that the person whose anonymity has been
guaranteed in respect of the order has a full chance to oppose it or to
appeal. The intention is to protect the individual
concerned. The
clause allows the prosecutor, as well as the person who applied for the
order, to apply for discharge. It might well be that if everybody
agrees that discharge is a good idea, it is appropriate for the
prosecutor to deal with the application, rather than leave it to the
individual who has been the beneficiary of the order. That is the
substance of the amendments. They would tidy things up and make sure
that there are no procedural slips that
would allow somebody’s identity to become known before the
discharge has been made, if there is to be a
discharge. Mr.
Henry Bellingham (North-West Norfolk) (Con): The
Government amendments are logical and sensible, but why were they not
included in the original Bill? When the Bill was being discussed, it
had been around for a while and the Department has had a long time to
prepare it. I refer to one important amendment in particular.
The
Government are introducing quite a few amendments at this stage. Those
amendments are neither in response to what was discussed on Second
Reading, nor to representations made by either the official Opposition
or the Liberal Democrats. Will the Minister enlighten the Committee
about where the amendments are coming from and why the Bill was not 100
per cent. right the first time? Of course, it must be got 100 per cent.
right and I take on board the point that she has made that it is a
moving target and we are talking about work in progress. However, one
of the amendments in particular is an important one and it is
surprising, to say the least, that it was not included in the original
Bill.
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