Mr.
Boswell: What about a situation in which the threat
is to the person’s business? It might not involve their factory
being burned down with them in it, but it might involve their factory
being burned down in a way that will destroy their livelihood and
materially damage their way of life, without necessarily threatening
their physical safety? Is not that a difficult
borderline?
David
Howarth: It is difficult to burn down a factory without
threatening someone’s life or limb. The situation that we are
worrying about will arise only in very special circumstances, such as
if someone threatens to burn down a lock-up shop at night when no one
is
there.
Maria
Eagle: Suppose that the threat is to disable repeatedly or
to destroy someone’s motor vehicle, which they use to get to
work. Many poor people cannot afford to replace tyres, windscreens and
wing mirrors repeatedly. The vehicle might be parked on the street
overnight, and it might have been clear that no one was in it when it
was being damaged, but any of us might find it difficult to cope with
our car being damaged repeatedly one night after another. That would
destroy some people’s
lives.
David
Howarth: I am glad that the Minister used the phrase
“destroy people’s lives”, because she has talked
about situations in which the threat to property would leave the family
destitute, which would probably be sufficiently serious. That is why we
have moved amendment 452, which would introduce the
destitution test, following the Minister’s suggestion. There is
also a destitution test under human rights law for another obligation
of the state—that the state should not leave people in
destitution. The
Minister’s example is an extreme case, and I am willing to
accept that it is a justifying one, but the problem is whether the
measure would apply in less serious cases in which the witness would
not be left in a state of destitution, but would be left worse off. No
one could deny that that might make them less willing to give evidence,
but is that sufficient to anonymise the witness, which we have all
agreed is an inherent threat to the fairness of a trial? The Joint
Committee on Human Rights has raised that point, and it is still an
issue now.
Mr.
George Howarth (Knowsley, North and Sefton, East) (Lab): I
think that it is naive to say that the examples that my hon. Friend the
Minister has given are so rare. In parts of my constituency, people are
regularly targeted as “grasses”, and their lives are made
intolerable. I am sure that is not unique to my constituency. Would not
the hon. Gentleman consider that to be a case in point that ought to be
addressed?
David
Howarth: The question is where we should draw the line.
The Bill mentions “serious damage to property”, but how
will seriousness be judged? I am perfectly happy to discuss the
seriousness of the examples that have been mentioned. If the hon.
Gentleman is saying that seriousness is not about the value of the
property, but about the degree of disruption to the relevant
person’s life, he might have a point, but the existing
legislation and the clause do not make that clear. The measure could
mean simply that a threat to a valuable vehicle belonging to a rich
person would be considered to be serious damage, whereas a threat to a
vehicle with a low market value belonging to someone on a lower income,
which might be more important to them than the other car to the other
person, would not count as a serious threat. I am not being
absolutist—I accept that threats to property can disrupt
lives—but we have to decide where to draw the line, and the
clause does not do that. How serious a disruption to someone’s
life should justify the use of anonymous evidence? We all admit that
anonymous evidence may lead to injustice or the risk of
injustice. 2
pm Alun
Michael (Cardiff, South and Penarth) (Lab/Co-op): The hon.
Gentleman is making a serious point constructively, but did he not
provide the answer when he talked about judgment? Is it not a matter of
fact that a judgment must be made? He gave a couple of examples of a
judgment having to be made according to principles of where it is
appropriate. The seriousness of a low-value vehicle in a community
where intimidation such as my right hon. Friend the Member for
Knowsley, North and Sefton, East described a few moments ago occurs is
what “seriousness” is supposed to imply, but we cannot
get away from the fact that if we had such an absolute definition in
the law we would unintentionally exclude some examples of places where
the right judgment should be made in the public
interest.
David
Howarth: That is right, but we should not allow a
provision to go through unchallenged, if it could be interpreted in a
completely different way from the one that the right hon. Gentleman has
mentioned, and in a way that would not help people in that condition,
but might help much better-off
people. Jeremy
Wright (Rugby and Kenilworth) (Con): Does the hon.
Gentleman agree that the neatest way of dealing with the problem that
he has identified, and taking account of the points made by Labour
Members, is “to prevent any damage to property with serious
consequences to the
witness”?
David
Howarth: I will have to think about that, because it might
be a way through the problem. The present drafting is not adequate or
satisfactory, even from the
point of view of those who are willing to go further than I would down
the line of allowing property damage to count in the first
place.
Mr.
Boswell: At some risk of turning this into a drafting
committee rather than a Public Bill Committee, may I offer a separate
point for the hon. Gentleman’s consideration? It is not merely
the seriousness, but often the serial nature of the attacks that is
relevant. If someone says that they are going to slash someone’s
tyres every weekend, that is an aggravated
threat.
David
Howarth: Yes. I think that that is the point that the
Minister and the right hon. Gentleman were making, but the clause, as
drafted, does not cover it, because each individual instance may not be
serious. I do not want to say more about this topic, because I think
that we have demonstrated that there is a difficulty in how the law is
drafted at the
moment. Turning
to amendment 454, I think there is a serious problem, which goes back
to the origins of the original 1988 legislation. The Government never
seem to be entirely sure whether the test for granting an order is
based objectively on the safety of the witness—how safe are
they?—or on the fear that they may experience subjectively. We
have a very untidy compromise whereby both seem to be relevant, but it
is not clear which takes precedence. I tabled the amendment simply to
make that point. It is a probing amendment that would take out the last
part of the clause and the fear element, while leaving the safety
element. The
problem is that a witness can be perfectly safe, but have subjective
fear. At the same time, someone may not have fear and may not be
afraid, but may objectively be very unsafe. Which of the
two—safety or fear—will be the real test whether
anonymous witness orders should be
made.
Mr.
Boswell: In fairness, the clause as drafted refers to
“reasonable fear”, and the hon. Gentleman is better
placed than me to define what that reasonableness might
be.
David
Howarth: Unfortunately, we had an uncomfortable five
minutes in the debate last time and came to the conclusion that we did
not know what a reasonable fear would be. This is a halfway house, but
it is still a reasonable fear rather than
safety.
Mr.
Boswell: Is a reasonable fear different from, as, for
example, with asylum legislation, a well-founded
fear?
David
Howarth: That is an interesting technical question that I
would have to think about further, but it still gets us no further down
the line of deciding a serious policy question. Is the purpose of the
anonymity order to protect people who lack safety in their lives and
who are objectively under threat, or is it to help people who are
subjectively in fear? The obvious starting point is fear, because that
is what stops people coming forward, but the clause is drafted in terms
not of fear but of safety. The Government need to be clearer on that
point than they have been so far.
My final point
is about the possibility of obtaining an order to prevent real harm to
the public interest, which seems a very broad category. When challenged
last time, the Under-Secretary of State for Justice, the hon. Member
for Liverpool, Garston said
that “the
purpose of the wording is to capture circumstances in which the
intelligence agencies, or, for example, the police or the Serious
Organised Crime Agency, are doing their
job.” Hon.
Members were discussing an undercover operation, which would be
compromised by allowing the identity of the witness—the
agent—to be known. However, the wording of the clause goes way
beyond the specific circumstances, talking about real harm at large.
So, the Minister went
on: “If
it helps Members...those are the only circumstances intended; I am
aware of no other circumstances, beyond national security and the
undercover work of the police and relevant agencies, that this part of
the Bill is meant to cover. I hope that helps in any Pepper v. Hart
situation that we might run across.”—[Official
Report, 8 July 2008; Vol. 478, c. 1373.]
The policy of the
Government is entirely clear, but in the mean time the opportunity has
not been taken to change the words, so that the words in the Bill
reflect the policy. I am disappointed by that, which is why I have
tabled amendment
453. More
radically, one conclusion that I have come to on the problem of what
one might call official anonymous witnesses, as opposed to civilian
anonymous witnesses, is that such cases are rather different from what
we have been discussing, namely the case of the intimidated witness.
Perhaps it would be better to devise a separate scheme of anonymity for
such
witnesses. Those
are the points that our amendments are intended to
raise.
Mr.
George Howarth: While my hon. Friend the Member for
Wrexham is out of the Room, I shall take advantage of the opportunity.
I would like to kill two birds with one stone. A point about gangs and
gang culture that the hon. and learned Member for Harborough raised
this morning in another context has some bearing on what the hon.
Member for Cambridge is saying now—it is about
context. In
some communities in my constituency and others, the very presence of a
minority—it is always a minority; it sometimes small but
significant—can be intimidating to some members of the
community. I shall quote two recent examples, one from the case of
murder of Rhys Jones the summer before last, which rightfully gained
notoriety nationally.
Mr.
Garnier: That was in the right hon. Gentleman’s
constituency.
Mr.
George Howarth: In fact, it was in the neighbouring
constituency of Liverpool, West Derby, although some of the events that
took place afterwards happened in my constituency. The person who has
now been convicted of the shooting of Rhys Jones drew on the support of
members of the so-called Norris Green gang to help him cover up the
crime. I do not intend to go into detail, because it is on the public
record. The presence of those people in the gang were sufficient for
the person to be able to evade arrest for many months, even though the
police were well aware who he was.
The reason why
the person’s connection to the gang could create a climate in
which he was not arrested and the police did not have sufficient
information was that people were literally terrified of the gang. They
knew its members and were afraid to come forward. Moreover, they were
afraid that the police would not be able to protect their anonymity if
they gave information in a subsequent trial. It therefore took many
months for the police to effect an arrest and make prosecutions. In the
end, the police did an effective job and the young man was convicted,
as were several other members of the gang who contributed to his
evading arrest for so
long. I
am putting the argument into context for the hon. Member for Cambridge.
A person who lives in a community does not have to sit down and work
out matters for themselves. It is obvious that some
people—always a minority—are prepared to use any means
necessary to prevent a prosecution from taking place. That is up to and
including the intimidation of witnesses. If people know that that might
happen, they do not want to engage in the process of
law. About
three years ago in my constituency, a family were branded by one of the
local gangs as “grasses”. Halloween is a peculiar new
concept that we seem to have imported into our culture. It never used
to be here when I was a child. It is an American import, and not one of
the better ones. The cover of Halloween and the chaos that some people
promoted on that evening was used to drive the family out of their
home. They left their home on the advice of the police, because the
pressure that was being put on them was so great. I do not know whether
they were witnesses to a case, but the perception was that they were
providing information to the police, and that was enough for them to be
driven out of their home. They then had to be rehoused in another part
of the area. Everyone understood that it was for the family’s
protection. Such
issues were not in the family’s imagination. Real events were
happening. Lots of people know what is going on in certain areas, and
they fear that, if they co-operate with the police to the extent that
they become witnesses and have their names identified, their lives
would not be worth living—to use the phrase of the
Under-Secretary of State for Justice, my hon. Friend the Member for
Liverpool,
Garston. Alun
Michael: My right hon. Friend’s argument is
extremely telling. He is right, but will he accept that some cases are
dramatic and in which the police are involved, as in his first example,
but that there are also situations when intimidation may be going on
over a long period at a low level, of which perhaps the police and
other authorities are not aware? That is difficult to deal with
adequately, but it is important that people have the confidence to come
forward as
witnesses. 2.15
pm
Mr.
George Howarth: My right hon. Friend makes a strong point.
He is right. In an intervention this morning, I mentioned a case
involving a constituent with whom I had a conversation on Monday
morning. I was urging her to go to the police about the intimidation
that her family is experiencing. I will not go into a lot of detail,
but the woman concerned has a daughter of 16 who, because of
intimidation by gangs of young men, comes
home from school and does not go out of the door until she is taken to
school by car the following morning. Her daughter is a studious young
woman who does not drink or hang around on the street. Those who do
those things have decided to target
her. Her
mother’s solution is to move. I can fully understand that. She
thinks that there is no way out of it for her other than by getting out
of that house to somewhere where the gangs will not target her
daughter. I was trying to persuade her that she ought to go to the
police and tell them what is going on—I said that I would go
with her—and try to get the police to take more seriously the
problem that she was experiencing. “No”, she said,
“if I do that they’ll find out I’ve done it and my
life will be even worse than it is now. More particularly, my
daughter’s life will be even worse than it is now.” That
is the reality of the lives that some people are living. That case fits
into the category that my right hon. Friend
mentioned. More
often than not, those problems are resolved not through the criminal
justice system but through the housing transfer system. That ought not
to be so. We ought not to find it acceptable that people’s fear
of co-operation in a prosecution or with the police is so great that
rather than even engage with it they will move house. That is the
reality of what we are up
against. I
have one point to make to the hon. and learned Member for Harborough,
which has some bearing on this matter. In most of the cases involved,
we are essentially talking about street gangs: groups of
youngsters—perhaps up to 50 or 100 of them—who hang
around on the street and are intimidating, although they do not
necessarily do anything illegal. Within that gang will be some
hard-core criminals. The police will know who they are, and teachers,
social workers and anyone who has regular dealings with young people
will be able to say who they are from when they are as young as seven,
eight or nine. They will know about that because it is pretty
predictable that a certain kid will go through a process and will end
up probably as a criminal. That is the case with street
gangs. I
have some anecdotal evidence, because I have seen things with my own
eyes. The leaders of the criminal gangs—the ones who deliver
drugs in the area and control that, for example—are almost
grooming the street gangs. For example, I was asked by a
residents’ group to chair a public meeting in a school hall in
an area experiencing antisocial behaviour. I had invited someone from
the Crown Prosecution Service, the area commander, who is a chief
superintendent, and other police officers. That was an opportunity for
that group of residents to express their concerns to the people who
could perhaps do something about them. I also invited people from the
magistrates courts. I wish that I shared the great confidence in the
magistrates system of the hon. Member for Daventry. Quite often,
frankly, the community that I represent considers the local magistrate
with
contempt. At
the meeting, a minibus rolled up driven by one of the local drug
barons, who, I am glad to say, is currently detained at Her
Majesty’s pleasure, and out poured a gang of the youngsters who
were causing all the problems. One is a criminal gang, the other is a
street gang, but where was the drug baron’s interest in that?
Why was he ferrying them to a meeting to discuss antisocial behaviour?
This was five or six weeks ago, and, interestingly, one of
the most outspoken youngsters there went on to a criminal career. Most
recently, he was arrested for offences involving firearms, so we can
see the process that takes place. I am straying
from the amendments and the clause, but it is important to tell the
hon. Member for Cambridge that that is the context in which such
protections for potential witnesses are necessary. There are many
places—not just in my constituency—where such activities
take place.
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