Coroners and Justice Bill

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The Committee consisted of the following Members:

Chairmen: † Frank Cook, Mr. Roger Gale

† Bellingham, Mr. Henry (North-West Norfolk) (Con)

† Boswell, Mr. Tim (Daventry) (Con)

† Brown, Mr. Russell (Dumfries and Galloway) (Lab)

† Eagle, Maria (Parliamentary Under-Secretary of State for Justice)

† Garnier, Mr. Edward (Harborough) (Con)

† Gray, Mr. James (North Wiltshire) (Con)

† Hesford, Stephen (Wirral, West) (Lab)

† Howarth, David (Cambridge) (LD)

† Howarth, Mr. George (Knowsley, North and Sefton, East) (Lab)

† Iddon, Dr. Brian (Bolton, South-East) (Lab)

† Kidney, Mr. David (Stafford) (Lab)

† Lucas, Ian (Wrexham) (Lab)

† Michael, Alun (Cardiff, South and Penarth) (Lab/Co-op)

† Moon, Mrs. Madeleine (Bridgend) (Lab)

† Prentice, Bridget (Parliamentary Under-Secretary of State for Justice)

Robertson, Angus (Moray) (SNP)

† Willott, Jenny (Cardiff, Central) (LD)

† Wright, Jeremy (Rugby and Kenilworth) (Con)

Alan Sandall, Committee Clerk

† attended the Committee

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Public Bill Committee

Thursday 5 March 2009

(Afternoon)

[Frank Cook in the Chair]

Coroners and Justice Bill

Clause 70

Applications

Amendment proposed (this day): 377, in clause 70, page 41, line 14, at end insert—

‘(1A) An application for a witness anonymity order to be made in relation to a witness in a coroner’s inquest may be made to the coroner with the coroner’s permission by any party appearing at the inquest.’. —(Mr. Garnier.)

1 pm

Question again proposed, That the amendment be made.

The Chairman: I remind the Committee that with this we are discussing the following: amendment 378, in clause 70, page 42, line 2, at end insert—

‘(9) Where an application either for permission to make an application for a witness anonymity order or for a witness anonymity order is made to a coroner by a party appearing at an inquest that party—

(a) must (unless the coroner directs otherwise) inform the coroner of the identity of the witness, but

(b) is not required to disclose in connection with the application—

(i) the identity of the witness, or

(ii) any information that may enable the witness to be identified,

to any other party to the proceedings or his or her legal representatives.’.

Amendment 380, in clause 70, page 42, line 2, at end insert—

‘(9) The provisions set out in subsections (4) to (8) inclusive apply as appropriate to applications to a coroner as they do to applications in criminal cases.’.

Amendment 381, in clause 71, page 42, line 5, after ‘proceedings’, insert ‘or an inquest’.

Amendment 383, in clause 71, page 42, line 15, after ‘trial’, insert

‘or the inquest being conducted in a manner consistent with the interests of the parties before it being treated fairly.’.

Amendment 384, in clause 72, page 42, line 33, after ‘proceedings’, insert

‘or a party appearing at an inquest’.

Amendment 385, in clause 72, page 42, line 39, after ‘defendant’, insert

‘or resolving the issues in the inquest’.

Amendment 386, in clause 72, page 43, line 1, after ‘case’, insert ‘or inquest’.

Amendment 387, in clause 72, page 43, line 4, after ‘defendant’, insert

‘, or the witness and any party appearing at the inquest or any associates of any party appearing at the inquest’.

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Amendment 388, in clause 72, page 43, line 9, after ‘indictment’, insert ‘or at an inquest’.

Amendment 389, in clause 73, page 43, line 12, after second ‘judge’, insert ‘or coroner’.

Amendment 390, in clause 73, page 43, line 14, after ‘defendant’, insert

‘or a party appearing at the inquest’.

Amendment 391, in clause 74, page 43, line 18, after ‘proceedings’, insert ‘or inquest’.

Amendment 392, in clause 74, page 43, line 31, after second ‘proceedings’, insert ‘or party appearing at the inquest’.

Amendment 393, in clause 75, page 43, line 41, after first ‘proceedings’, insert ‘or at an inquest’.

Amendment 394, in clause 75, page 44, line 18, after ‘defendant’, insert ‘or a party appearing’.

Amendment 395, in clause 76, page 44, line 28, after second ‘proceedings”)’, insert ‘or an inquest’.

Amendment 396, in clause 76, page 44, line 33, at end insert ‘or

(c) the verdict or any finding of fact or law by the coroner or inquest jury, as the case may be, is reviewed by the appeal court.’.

Amendment 397, in clause 76, page 44, line 41, after ‘proceedings’, insert ‘or appearing at the inquest’.

Amendment 398, in clause 76, page 45, line 3, after ‘proceedings’, insert

‘or a party appearing at the inquest’.

Amendment 374, in clause 80, page 45, line 34, after ‘court,’, insert ‘a coroner’s court,’.

Amendment 376, in clause 80, page 46, line 1, after ‘court,’, insert ‘a coroner’s court,’.

The Parliamentary Under-Secretary of State for Justice (Maria Eagle): Good afternoon, Mr Cook, and members of the Committee. At our previous sitting, I was just coming to the end of my remarks to persuade the Committee that it is not necessary, as the amendments seek, to extend the provisions for witness anonymity to the coronial system. I had made most of my arguments, and it is not necessary to repeat them.

Those members of the Committee involved in the Criminal Evidence (Witness Anonymity) Act 2008 will recall that the legislation was brought forward to deal with a problem arising from the House of Lords judgment in the case of Davis. It was not enacted, because we sought to replace common-law rules on witness anonymity with statutory rules. Our hand was made to move, as a consequence of that judgment. That did not relate to anything other than common law, and it was clear that the coronial system was perfectly able to cope as it currently works. On that basis, we do not accept amendments that would extend the breach of the statutory provisions to the coronial system. I hope that my explanation has satisfied those who spoke in the debate and that the hon. and learned Gentleman will be able to withdraw the amendment.

Mr. Edward Garnier (Harborough) (Con): I will withdraw my amendment, but I want to make some closing remarks. We all know what the House of Lords decided in the case of Davis, and it is fair to say that, if we follow the judgments from the first instance decision

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through to the House of Lords, no central reference was made to the coroners’ courts system. The decision concerned a double shooting that involved a defendant who had fled abroad and who was brought back to the United Kingdom and tried. The trial judge made an order that the House of Lords decided was outside the ambit of the common law, and that the common law could no longer be extended in the way in which the judge had sought.

The House of Lords said that Parliament should make up its mind how best to deal with the matter, and we dealt with it in an emergency sitting last July. At least on the evidence that we have received so far, that system has worked reasonably well, despite the many concerns that others who share my views about anonymity and I expressed at the time. However, nowhere were similar proceedings or procedures for coronial courts excluded, either expressly or by implication. Despite what the Minister has said, I disagree with her reasoning, but I shall not push the matter further. I will invite my noble Friends in another place to consider the matter at greater leisure than we have at the moment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mr. Garnier: I beg to move amendment 196, in clause 70, page 41, line 16, after second ‘court’, insert ‘in writing’.

The Chairman: With this it will be convenient to discuss amendment 202, in clause 70, page 41, line 23, after ‘court’, insert ‘in writing’.

Mr. Garnier: I have two short points, which need not detain the Committee too long. Clause 70 deals with applications for witness anonymity orders. Subsection (2) includes a requirement that, if the prosecutor is making the application, he should inform the court of the identity of the witness. Subsection (3) deals with the mirror procedure for a defendant’s application; they, too, must inform the court, and the prosecutor, of the identity of the witness. On subsection (2), we are simply suggesting that the information from the prosecutor to the court should be in writing. A defendant’s application, too, must be made in writing to the court—I have deliberately not suggested that it should be in writing to the prosecutor.

I say that from personal experience. Far too often in the Crown court, applications seem to bounce up and down without anyone really being prepared for them, partly because people do not communicate with each other sufficiently—the Crown Prosecution Service does not talk to the police, the police do not talk to the CPS, no one talks to witnesses and everyone turns up in court, almost by chance, on the same day to deal with the same issues, although sometimes they do not. The amendments are a plea for the Government to urge those who administer the prosecution system to talk to each other through a system that does not lead to confusion by communicating in writing.

It might be suggested that my proposal is too inflexible—I appreciate that sometimes applications have to be made quickly or in unforeseen circumstances. I am not pressing the Committee to vote on the issue; I am simply urging the Government to encourage those engaged in such

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activity to speak to each other, to communicate and to prevent unnecessary and foreseeable delays in the administration of particular trials.

Mr. Tim Boswell (Daventry) (Con): Briefly, I endorse the comments of my hon. and learned Friend, who has much more court experience than almost anyone in the Room—I do not claim to have that.

I am interested in the audit trail of such proceedings. If nothing is said in writing, the basis of what is being done is not at all clear. I presume it would be possible to go back into the CPS file and see what the deliberation was, and it is important that the court should have some tidiness in the matter. I understand the need for urgency and that circumstances might arise at short notice, but the question arising is whether, if not in writing, there should be some record, such as an e-mail, that would be as acceptable as writing. However, a hasty phone call, in which details such as the first name are mistranscribed, is not sufficient.

Maria Eagle: The amendments would require the prosecutor or defence to inform the court of the witness’s true identity in writing when making an application for witness anonymity. I understand the points of the hon. and learned Gentleman and of the hon. Member for Daventry, but, when the prosecutor or defence is making a witness anonymity application, amendments 196 and 202 go too far, because it is not normal or usual for a statute to lay down precise procedures that the court should adopt. Clause 72 already makes it clear that the court must be informed of the witness’s identity unless, in the case of a prosecutor, the court directs otherwise, but the usual way of making sure that the procedures used are correct is for them to be set out either in a judicial practice direction or, more usually, in the rules of the court.

The Committee will recall that the provision was in emergency legislation in its first incarnation, and a judicial practice direction was issued, which has been governing how the courts do what the Act gives them power to do. That is how it has been done since the passage of the emergency legislation. The court determines the application in accordance with the requirements and tests set out.

The criminal procedure rule committee chaired by the Lord Chief Justice is considering draft rules on witness anonymity applications, which are intended to replace the practice directive once the witness anonymity provisions are re-enacted—provided, of course, that they are. The rules will take account of the experience of practitioners when operating the current procedures, and I am sure that the committee will consider such matters as those raised by the hon. and learned Gentleman and any that arise during parliamentary debate. On that basis, I hope that he agrees that such detailed matters of procedure are best left, and can be safely left, to the criminal procedure rule committee, which is the appropriate place for them. Under those circumstances, I hope that he will be happy to withdraw his amendment.

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Prepared 6 March 2009