Mr.
Boswell: Will the Minister assure us that that will not
give rise to any delay
either?
Maria
Eagle: No, I am not aware that it does. I am certain that
such a request would be handled swiftly by the
Attorney-General’s
office.
David
Howarth: One possible problem has already arisen during
our debate. The test put forward in Mayers, which is the test contained
in amendment 100, is arguably different from the one in R v. H.,
because the latter case talks about “exceptional” and is
generally talking about some advantages and disadvantages, whereas
Mayers contains a more specific test about significant contribution to
fairness. Will the Minister say on record, for future reference, that
she does not intend, by re-enacting these provisions, to displace what
the Court of Appeal said in
Mayers?
Maria
Eagle: I have no intention of displacing what the Court of
Appeal said in Mayers by re-enacting these provisions. I hope that I
have convinced both hon. Gentlemen that the current arrangements work
and that if a judge in a particular instance feels that the
circumstances are such that special counsel would assist
and would help to do justice, they can request that from the
Attorney-General, who will swiftly deal with that request, as we have
seen so far, in the affirmative. It would not be helpful to put more
prescriptive requirements in this regard into the
Bill. On
that basis, I hope that the hon. Member for Cambridge is content and
will ask leave to withdraw the
amendment.
David
Howarth: I am glad that the Minister was able to say that
she does not intend, by what is happening today, that the substantive
test advanced by the Court of Appeal in Mayers should in any way be
altered. That means that the only difference between us is about
procedure, not the substance of the
law. Amendment
100 tries to express in statutory form the test put forward by the Lord
Chief Justice in Mayers. Over and above that it would add a procedural
element, in stage 1, where the court is required to think about the
test and to say why it is has come to a decision not to go for special
counsel in stage 2, if that is what it
does. Given
that the Minister and I are not apart on the substance of the law and
are only divided by a procedural issue—although I reserve the
right to come back to the amendment at another stage or to ask my noble
Friends in the other place to think about the matter—I beg to
ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Question
proposed, That the clause stand part of the
Bill.
The
Chairman: With this it will be convenient to discuss new
clause 37— Prosecution not to disclose identity of witness to
other
defendants— ‘Notwithstanding
anything in the Criminal Proceedings and Investigations Act 1996 or any
other rule of law about disclosure of material by a prosecutor to the
defence, where an order is made following an application under section
70(3) in a case in which there is more than one defendant, the
prosecutor shall not disclose to the other defendants the identity of
the witness covered by the order or any information that might enable
the witness to be
identified.’.
David
Howarth: The new clause, which is in my name and that of
my hon. Friend the Member for Cardiff, Central, relates to a technical
matter and refers back to another discussion that occurred during the
short debates on the 2008 Act. It starts with the issue of the
inequality between a prosecutor applying for an anonymity order for one
of the prosecution’s witnesses and the defence applying for an
anonymity order on behalf of one of the defence witnesses. The
inequality, which was created by the 2008 Act, is still present in
clause 70. When the prosecutor applies for an order, they must inform
the court, but no one else, of the identity of the proposed anonymous
witness. On the other hand, when the defence applies for such an order
for a defence witness, they must inform not just the court but the
prosecutor of the identity of the witness.
I do not want
to go through the debate that we had last time. Arguments that did not
stand up were made for the inequality, but one argument in its favour
seemed to have at least some merit. The right hon. and learned Member
for Sleaford and North Hykeham (Mr. Hogg) put forward the
justification that in cases involving
multiple defendants, the prosecution has a duty to disclose relevant
matters if information comes to their attention that would tend to
exonerate the other defendants. Without knowing the identity of the
anonymous witness, the prosecution would not be in a position to fulfil
that
duty. The
problem with that argument, however, is that it does not cover all the
circumstances that might arise under the orders. Clause 70 says that
the defence does not have to disclose the identity of its anonymous
witness directly to the other defendants in a multiple-defendant case.
The reason is quite clear. Often, in multiple-defendant cases, the
problem of witness intimidation is much more likely to come from the
associates of the other defendants than it is from the prosecution or
the police. That is the central point.
Clause 70, as
it stands, attempts to keep the identity of the anonymous witness away
from the other defendants in the normal course of events, but it does
not prevent that identity from getting to the other defendants via the
prosecution and its obligation to disclose that identity under the
normal rules of disclosure in the Criminal Proceedings and
Investigations Act 1996. The question, then, is how the clause’s
policy, which is that the identity of the anonymous witness should not
go to the other defendants, fits with the policy of the 1996 Act, which
favours disclosure. The Under-Secretary of State for Justice, the hon.
Member for Liverpool, Garston said previously that it was possible
under the 1996 Act for the prosecution to apply for an exemption, on
the grounds of public interest, in relation to disclosing the identity
of the anonymous witness. However, the trouble with that is that it is
only a power to apply.
Mr.
Boswell: Does the hon. Gentleman not agree that there is
also some distinction between the public interest on the one hand and
the defendant’s interest on the other, which is what is supposed
to be being
addressed?
David
Howarth: Yes, that is a point. The decision whether to
allow the information to be withheld might take both into account in
different ways. There is only a power to apply, and the application
might be refused. What was said previously is some comfort in that sort
of case, but it does not quite work: it does not prevent the identity
of the anonymous witness from getting to the other defendants via the
prosecution. In such cases, the new clause is simple designed to
prevent the identity of the anonymous witness reaching the other
defendants through an indirect route. The new clause is fully in line
with the policy of clause 70, and it is a loophole that I hoped that
the Government had found a way of filling—but unfortunately, at
the current stage, they have not. I admit that my way of grasping the
new clause may not be perfect, but there is a problem that must be
solved. 1.45
pm
Maria
Eagle: I am grateful to the hon. Gentleman for tabling the
new clause. The fact that I cannot accept it—for reasons that I
will explain—gives me an opportunity to set out our views. It is
an important technical issue, and I assure him that since he raised it,
we have not been twiddling our thumbs and not bothering to think about
it, even though we have not tabled any amendments to the
Bill.
As the
Committee will be aware, the Criminal Procedure and Investigations Act
1996 requires the prosecutor to disclose to defendants, including every
defendant in a multi-handed case, any material that might reasonably be
considered capable of undermining the prosecution or assisting the
defence. In principle, therefore, the identity of a witness can be
disclosed under those rules on occasion in the same way as any other
material, depending on the circumstances of the case. The issue that
the new clause invites us to address is the extent to which the
anonymity order trumps the CPIA disclosure duty—that is a crude
way of putting it, but I think that that is issue that the hon.
Gentleman
raised. The
2008 Act did not explicitly attempt to combine the anonymity and
disclosure laws—it stands alongside the CPIA in the same way in
which the common law anonymity rules did before that legislation. The
Bill does the same, but not because we have not been thinking about the
issue since. As a matter of practice, the prosecutor, in addition to
making an application for an anonymity order—I said this last
time—may sometimes also decide to make an application to the
court to be allowed not to disclose the witness’s identity to
one or more defendants on public interest immunity grounds, which
involves the multi-handed cases that the hon. Gentleman has mentioned.
As I explained to him when he raised the subject in the House, it does
not seem sensible to have two different processes trying to cover the
same piece of information and have it kept quiet using two different
procedures. We have, however, since the 2008 legislation was enacted,
looked carefully at the relationship between the anonymity legislation
and the
CPIA. The
strict conditions for making an anonymity order will encompass the
criteria that the court applies before ordering a non-disclosure of
prosecution material on the grounds of public interest immunity. Under
those circumstances, having two applications does not make sense and
will waste the time of the court and the resources of the prosecution
and the defence. Our policy is to see that there is no need for
unnecessary duplication, and we consider that both the 2008 Act and the
Bill achieve
that. Measures
directed as part of a witness anonymity order, which provide for the
non-disclosure or redaction from materials of identifying details of a
witness, will operate to qualify a duty that would otherwise operate
under the CPIA. That does not mean that we completely disregard the
rules under the CPIA in respect of other kinds of material; we do so
only to the extent that the court, on the witness anonymity order
application, considers it necessary to do so. That is consistent with
the wide discretion available to the court on the directions that it
makes in a witness anonymity
order. We
have considered placing explicit provisions to that effect on the Bill,
which is in effect what the hon. Gentleman’s new clause would
do, or amending the CPIA accordingly. But we reached a conclusion that
it is unnecessary to do so. In our view, no sensible court—they
are all sensible—would conclude that if an anonymity order were
made with directions to the protection and non-disclosure of the
witness’s identity, that identity should either be passed
through to another defendant under the CPIA rules, or it might be
necessary to go
through an identical process in determining whether that disclosure
should happen. The terms of the witness anonymity order will operate to
limit the obligations of the CPIA, although I accept that the hon.
Member for Cambridge has spotted an overlap. I will move
on to the detail of the new clause. We are concerned about the use of
the wording “the other defendant”, as that might be taken
to imply that an anonymity order is necessarily made in respect of a
particular defendant—it is not. Neither is it made only in
respect of a defendant in whose case the anonymous witness gives
evidence. An anonymity order is made in respect of a witness and may
apply to all defendants in the case. When the court considers the grant
of an anonymity order, it must have regard to the impact on all
defendants, and “the defendant” in clause 71(4) is to be
construed accordingly. That is why clause 70(6) requires the court to
hear representations from all parties following the 2008 legislation.
That is reinforced in clause 69 by reference to withholding the
identity
from “materials
disclosed to any party to the
proceedings.” We
will hear in a moment whether that satisfies the hon. Gentleman and
whether he moves his new clause. However, on that basis, we do not
believe it to be necessary.
Question
put and agreed
to. Clause
70 accordingly ordered to stand part of the
Bill.
Clause
71Conditions
for making
order
David
Howarth: I beg to move amendment 451, in
clause 71, page 42, line 9, leave
out from ‘person’ to ‘or’ in line
10.
The
Chairman: With this it will be convenient to discuss the
following: amendment 452, in clause 71, page 42, line 10, leave out
‘any serious damage to property’ and insert
‘damage to property so serious that it would leave the
witness or another person in a state of
destitution.’. Amendment
453, in
clause 71, page 42, line 11, leave
out paragraph (b) and
insert— ‘(b) in order to
prevent serious harm to the functioning of a properly authorised
undercover
operation.’. Amendment
197, in
clause 71, page 42, line 11, leave
out paragraph
(b). Amendment
198, in
clause 71, page 42, line 13, leave
out ‘or
otherwise’. Amendment
446, in
clause 71, page 42, line 19, leave
out paragraph
(b). Amendment
454, in
clause 71, page 42, line 21, leave
out subsection
(6). Amendment
199, in
clause 71, page 42, line 22, leave
out ‘(in
particular)’.
David
Howarth: We now come to a series of difficulties with the
existing legislation that the Bill does not resolve or change in any
significant way. I shall talk first about amendments 451 and 452, then
amendment 454 and finally amendment 453. Amendments 451 and 452 are
about the extent to which threats to property could be sufficient to
justify an anonymity order. Members of
the Committee might remember that a number of hon.
Members felt that in principle threats to property would be
insufficient to justify anonymity, if they are not accompanied by a
threat to a human being. A further point was raised by the Joint
Committee on Human Rights, which doubted whether the property
justification was consistent with the European convention on human
rights. It cited an opinion given by the Attorney-General of New
Zealand to the effect that the equivalent provision in New Zealand
statute was highly likely to be in breach of the European convention on
human rights standard. The Government at the time insisted that in
their view the use of property damage to justify these orders continued
to be compliant with human rights requirements.
The central
question is not whether a threat of property damage that also threatens
people would be sufficient for an order, as that is obvious. A threat
to burn down someone’s house is a threat to the people who live
in that house. We are not talking about threats to humans that are
carried out through a threat to property—such a case is not
difficult and is clear justification for an
order.
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