Mr.
Garnier: Of course I will. I just want to reassure my hon.
Friend the Member for Daventry that I was after some communication. It
does not matter whether it happens by fax, letter or e-mail, because
there is nothing more frustrating than trying to keep a trial moving
when it breaks down due to some administrative
Horlicks. If the procedure rule committee can deal with that and take it
on board, all well and good, but it is no good our passing all these
wonderful pieces of legislation if, in their implementation and
administration, they break down. I beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. David
Howarth (Cambridge) (LD): I beg to move amendment 100, in
clause 70, page 41, line 44, at
end insert— ‘(7A) On any
application for a witness anonymity order, the court must consider
whether the appointment of special counsel to assist the court in
deciding whether to grant the order would contribute significantly to
the fairness of the proceedings; and if the court decides not to
appoint special counsel, the court must give
reasons.’.
The
Chairman: With this it will be convenient to discuss
amendment 379, in
clause 70, page 42, line 2, at
end insert— ‘(9) The court
may in its discretion appoint counsel to assist it when considering an
application for permission to make an application for a witness
anonymity order or an application for a witness anonymity
order.’.
David
Howarth: We come to some unfinished business on the debate
about the Criminal Evidence (Witness Anonymity) Act 2008, the emergency
legislation to which the Minister has referred. One notable omission
from the 2008 Act was any explicit provision for the appointment of
independent or special counsel to assist the court in deciding whether
there should be an anonymity order. The template for last year’s
legislation was, roughly, an Act from New Zealand, the Evidence Act
2006, which allowed and, indeed, encouraged the court to appoint
independent counsel to assist it in coming to its decision. In New
Zealand, the independent counsel is appointed, undertakes
investigations and reports to the court, about both the necessity for
anonymity and the credibility of the witness.
Last
year, many of us thought that we should make similar provision in this
country for two reasons—for the purposes of the defence,
normally, but for the purposes of the prosecution, too. From the point
of view of the defence, there will be cases in which there is doubt
about whether the credibility of the witness really is an issue. The
prosecution might think that there is no particular problem with the
witness’s credibility, because, in the prosecution’s
view, the witness was a bystander who simply saw an event. The question
is whether they recall accurately what they saw, as opposed to being a
witness who might be hostile to the defendant because of some other
relationship. 1.15
pm Cases
will occur when it is not clear in advance whether the credibility of
the witness is an issue. The hon. and learned Member for Medway
(Mr. Marshall-Andrews) made that point vividly in our
debates on the Floor of the House last year. In such cases, independent
counsel should be able to carry out an investigation on behalf of the
court, so that they know the nature of the case before deciding whether
to grant an order. The independent counsel would not decide the matter,
but they would be able to investigate in a way that would not be
possible if the case were to proceed simply on the
basis of what the prosecution said. Obviously, the defence cannot play
an active role, which they can only do if they know who the witness
is. On
the other side, independent counsel could be a safeguard for the
prosecution in cases when a court is uncertain whether it should grant
an order and does not have enough evidence before it to do so. In such
cases, independent counsel could come in and help the court to decide
in favour of an order. There are some cases—not all—in
which independent counsel would make the process fairer for both
sides. Last
year, the Government resisted all attempts to put a power to appoint
independent counsel in statute. Ministers argued that independent
counsel were appointed in the Davis case, which the hon. and learned
Member for Harborough has mentioned, but made no difference to the
outcome or fairness of the proceedings. As we have discovered, the
trouble with that argument is that independent counsel were appointed
only at Court of Appeal stage—there was no independent counsel
at the original trial stage—so the example was not relevant or
important. The
debate continued vociferously, especially in the House of Lords and, in
the end, the Secretary of State for Justice undertook to give
“active and urgent consideration” to providing an
explicit power to appoint independent counsel before publishing the
permanent replacement Bill, which we are discussing. At that time,
Ministers also claimed that the courts already had an inherent power to
appoint special counsel, but that turned out to be a power to ask the
Attorney-General to do so, which was slightly less direct than a court
appointing counsel. Nevertheless, Ministers undertook to remind the
judges of the possibility, which they
did. The
Attorney-General has issued guidelines on the prosecutor’s role
in applications for witness anonymity orders under the Criminal
Evidence (Witness Anonymity) Act 2008 that refer to the possibility of
independent counsel. However, the guidelines are quite disappointing.
They maintain the line that the appointment of special counsel should
be exceptional. I am not sure whether “exceptional” is
the right test. The test is taken from public interest immunity law,
which involves a very different set of circumstances. In PII cases,
witness credibility is less important, and it is rarely an issue at
all. Frustratingly, the guidelines also assume that, in PII cases,
independent counsel somehow represents the defendant. That was never
the intention of those of us who proposed independent counsel. The
Government claimed that there was some confusion in the proposals, but
there never was. We always wanted to follow the New Zealand proposal
that the independent counsel should assist the court. That is similar
to the situation in a coroner’s court, which we have spent a
long time discussing. The counsel is to the court rather than to the
defendant, and amendment 100 addresses that
problem. There
is a question whether there should be a test for the appointment of
special counsel. I originally took the view that there should not be,
and that such appointments should be completely at the discretion of
the court—there is a Conservative amendment to that effect.
However, in the spirit of compromise, I am offering a slightly more
restricted test, namely that when an order is applied for,
“the court must
consider whether the appointment of special counsel to assist the court
in deciding whether to grant the order would contribute significantly
to the fairness of the proceedings”.
It has to consider
whether independent counsel would
“contribute
significantly to the fairness of the proceedings.”
Its only duty is to
consider that question and then to give reasons, if it thinks that it
is not a case where counsel should be appointed.
That is a
compromise proposal involving a more restrictive set of circumstances.
The words are deliberately taken from the judgment of Lord Chief
Justice Judge in the Mayers Court of Appeal case, which is, I believe,
the only Court of Appeal case that has considered the provisions of the
2008 Act in detail. He said that there are cases where independent
counsel would contribute significantly to the fairness of proceedings,
and that there other cases where the appointment
of independent counsel would not contribute in any important
way. I
make no apologies for returning to the issue. I ask the Government to
say why they have not taken the issue forward as a result of their
deliberations and offer them a third way
forward.
Mr.
Garnier: The hon. Gentleman has no need to
apologise—that is a perfectly legitimate argument.
There is an overhanging controversy from last July which
needs to be resolved, and he and I are entirely right to
press the matter.
There is a
semantic difference between his amendment 100 and amendment
379, which was tabled by me and my hon. Friend the Member for
North-West Norfolk. As the hon. Gentleman has correctly pointed out, we
expressly used the word
“discretion”: “The
court may in its discretion appoint counsel to assist it when
considering an application for permission to make an application for a
witness anonymity order or an application for a witness anonymity
order.” That
aside, we are broadly pushing at the same door and we want the
Government to open
it. As the hon.
Gentleman also said, there is only one Court of Appeal case so far
where the 2008 legislation has been considered. However, similar issues
in relation to the appointment, or otherwise, of special advocates have
been considered by the House of Lords, although not in relation to
anonymity orders, because the statutory regime did not exist until last
summer. There is some guidance, however, that is worth considering when
looking at the question of the appointment of special advocates in
criminal cases.
That learning
is not novel to the editors of “Archbold”, but it is
novel to me, and it may be entirely novel to others who have not
studied the question quite so closely as the editors of
“Archbold”. In the case of Regina v. H, a House of
Lords decision of 2004, which concerned article 6 of the European
convention on human rights in relation to public interest immunity and
the absence of someone to speak for the defendant, there is some
helpful guidance to be
found. The
appointment of a special advocate in appropriate cases may be necessary
to ensure that the contentions of the prosecution are attested and that
the interests of the defendant are protected. In cases of
exceptional difficulty, the court may require the appointment of
special counsel to ensure correct answers to questions, such
as: “What
is the material which the prosecution seek to withhold? This must be
considered by the court in detail.”
Or “Is
the material such as may weaken the prosecution case or strengthen that
of the defence? If No, disclosure should not be ordered. If Yes, full
disclosure
should”, subject
to other matters, “be
ordered”. I
appreciate that we are dealing with public interest immunity
applications, but the hiding or revealing of certain information at the
hands of the prosecution is a hugely important question that the court
may, in more difficult cases, need assistance with. They will not get
it from the defendant’s counsel, because they do not know, and
the prosecuting counsel will have a different interest, so independent
counsel acting for the court as opposed to the parties can sometimes be
of assistance.
The judgment
in R v. H said that to contend on the basis of some earlier
cases “that
it is automatically incompatible with Article 6...for a judge to
rule on a claim to public interest immunity in the absence of
adversarial argument on behalf of the accused where the material which
the prosecution is seeking to withhold is, or may be, relevant to a
disputed issue of fact which the judge has to decide in order to rule
on an application which will effectively determine the outcome of the
proceedings, was to seek to place the trial judge in a straitjacket;
the consistent practice of the European Court, in this and other
fields, has been to declare principles, and apply those principles on a
case-by-case basis according to the particular facts of the case before
it, and to avoid laying down rigid or inflexible
rules.” That
is why we built in to our amendment an express reference to
discretion.
“The
overriding requirement was that the guiding principles should be
respected and observed, in the infinitely diverse situations with which
trial judges have to deal, in all of which the touchstone was to
ascertain what justice requires in the circumstances of the particular
case. Cases would arise in which the appointment of an approved
advocate as special counsel was necessary, but such an appointment
should be exceptional, never automatic, and not ordered unless the
judge is satisfied that no other courts will adequately meet the
overriding requirement of fairness to the defendant. Where the
disclosure test...is faithfully applied, the occasions on which a
judge will be obliged to recuse himself because he has been privately
shown material damning to the defendant will be
rare.” The
editors of “Archbold”, in dealing with the case and the
speeches of H, then go into more detail in relation to PII, but the
overall principles—a need to ensure fairness and that
prosecution propositions are properly tested, particularly where they
cannot be tested by defence counsel, and a need to protect the
interests of the defendant and to ensure the overall interests of
justice—are just as key in anonymity applications under these
clauses as they are in PII matters. It seems, therefore—I hope
that I have not misinterpreted what the hon. Member for Cambridge has
said—that this is not just an interesting academic discussion.
It is a matter of real procedural practicality, and it is necessary to
ensure that justice is done in what I fully accept are very difficult
cases. Davis
threw up a very difficult challenge to Parliament. I think that we met
it reasonably well, but we missed out on the special advocate point,
which I think needs to be resolved. If the Minister can persuade me
that there is sufficient discretion within the system already, under
the inherent jurisdiction, to allow the appointment of special
advocates, I would be interested to hear
it. Greater
comfort would be given to those of us who share the arguments that have
been put forward so far if something expressly appeared in the Bill,
because it is
something that the public need to be assured about, criminal law
practitioners need to be clear about and judges would welcome guidance
on. Yes, judges have guidance from the higher courts, but if Parliament
expressly answered the question put to it by the Law Lords in the case
of Davis—that is to say, it is up to Parliament to sort it
out—the whole criminal justice system would be
advantaged. Maria
Eagle: I am happy to try to deal with the points raised by
hon. Members. The matter was discussed at some length—to the
extent that “length” is a word that can be applied to the
proceedings on the emergency legislation—last year. In relative
terms, it was discussed at some length and was clearly a point at issue
in both the Commons and in the other
place. The
hon. and learned Gentleman has quoted extensively from
“Archbold”, which has taken quite a time to make its
debut in Committee. However, the matter will not cause a dispute,
because the current practice direction that was issued following the
passage of the emergency legislation last year, which is the basis on
which the court must currently deal with the orders, quotes from R and
H and uses the very wording of the case in “Archbold”
that he has referred
to. 1.30
pm
Mr.
Boswell: Will the Minister tell the Committee how many
cases have arisen since that
judgment?
Maria
Eagle: There have been two applications to the
Attorney-General for special counsel to assist with an anonymity
application. They have both been granted.
Following the
implementation of the emergency legislation, the practice direction set
out by the then president of the Queen’s bench division quoted
some of the same words that the hon. and learned Gentleman has just
quoted from R and H. The practice direction said that the court may ask
the Attorney-General to appoint special counsel to assist, but that it
must be kept in mind that such an appointment will always be
exceptional, never automatic, and a course of last and never first
resort. In addition, such an appointment should not be ordered unless
and until the trial judge is satisfied. No other course will adequately
meet the overriding requirement of fairness to the
defendant. There
has also been some reference to R v. Mayers, which to my
knowledge is the only case—there were a number of cases attached
to it—within which these matters have been considered by the
Court of Appeal since the passage of the emergency legislation last
year. That case sets out an authoritative summary of the law relating
to special counsel and the hon. Member for Cambridge made some
reference to it. Nothing in the legislation says that the judgment in
R v. Mayers is the lead judgment, and we can see
no justification for any blanket rules about special counsel, one way
or the other. Sometimes special counsel might contribute significantly
to the fairness of the process, and sometimes not. Furthermore, the
judgment went on to say that if a judge entertains reservations about
the good faith of the efforts made by the prosecution investigation
into any relevant consideration bearing on the question of witness
anonymity, an application for witness anonymity will be met with a
point blank refusal.
However,
the services of special counsel may enable the judge to ensure that any
investigative steps specific to the case, and not perhaps otherwise
apparent, have been taken. Our approach to this issue enables us to
highlight that the obligation to the prosecution in the context of a
witness anonymity application goes much further than the ordinary
duties of disclosure. On that basis, the court was saying that the
current arrangements are about right; it was not saying that there
needs to be a provision that enables—and in the case of
amendment 100, requires—a court to consider whether
special counsel is appropriate in every single case.
During the
passage of the legislation, my right hon. Friend the Justice Secretary
clearly undertook to consider this matter in detail. We have done so.
On 3 December, my right hon. Friend wrote a letter to Front Benchers. I
hope that the hon. Member for Cambridge received that letter, because
he did not refer to it in his remarks. The letter set out our reasons
for deciding not to include the measure. Having given the matter
consideration, we do not agree with the suggestion in the amendments
that provision for special counsel should be put in the Bill in respect
of every application—or that it should, at least, be considered
in respect of every application. We believe that the current
arrangements appear to be working well. If special counsel has been
requested of the Attorney-General, those requests have been
granted. Amendment
100 tabled by the hon. Member for Cambridge would require a court,
before determining all witness anonymity applications, to consider
whether the appointment of special counsel would contribute
significantly to the fairness of proceedings and if it decides not to
appoint special counsel it would be required to give its reasons.
Conservative amendment 379 provides, more simply, for the
court to appoint special counsel at its discretion. There are problems
with both amendments. Courts may already ask the Attorney-General, if
they feel that it would be helpful in the circumstances, and there does
not seem to be any problem with that. So far, where a special counsel
has been requested that request has been
granted.
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