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There is no practical difficulty in doing precisely what the noble Lord, Lord Dubs, says. It would be satisfactory that, before going before a justice of the peace, the chief officer should take the advice of the CPS representative who is advising.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Bach): I turn first to Amendment 183AA in the name of the noble Lord, Lord Henley, and say in passing how much we appreciate the suddenness with which he has had to take on this major responsibility. I thank him very much for doing so straight away. All of us around the House are extremely sad about the circumstances which led the noble Lord to have to take command, as it were, at this stage.
We have some sympathy with the thinking underlying the amendment. Investigation and anonymity orders are a novel measure designed to address the serious problem of gang-related gun and knife crime. As with everything new, it is uncertain exactly how the orders will operate in practice. Of course it is right that their operation is closely monitored and we made it clear in another place that we intend to keep their working under close review.
Whether a formal report to Parliament, as envisaged by the amendment, is required is for us another matter. We do not think it is necessary because, as I have said, we intend to review the provisions anyway and keep a close watch on how they are working. So it is not necessary for such an amendment to be in the Bill.
Amendment 184 would require the Director of Public Prosecutions to consent to all applications for an investigation anonymity order. It would therefore prevent police officers and other prosecuting authorities applying for such an order without his or her consent. The amendment would restrict the power to give consent to the DPP, but we take the point that under Section 1(7) of the Prosecution of Offences Act 1985 the DPP automatically delegates his or her consent functions to Crown prosecutors who would presumably also be able to give consent.
Clause 65 makes it clear who can apply for an investigation anonymity order. It would not be appropriate for the DPP to have to consent to every investigation anonymity order application. As was said in another place, these new orders are an investigative tool which should be available to the police during the early stages of an investigation-perhaps on an urgent basis. Furthermore, any specified prosecuting authority should be capable of deciding whether or not to exercise the powers without reference to the DPP. These orders are not linked to witness anonymity orders; they are an independent tool.
With regard to the suggestion in the Joint Committee's report that there is a risk of a disproportionately large number of applications if the director does not have to give consent, perhaps I may answer by saying that these orders are available only in relation to a narrow class of gang-related homicides. It is difficult to imagine applications being made in disproportionately large numbers. More significantly, the Joint Committee's observation overlooks a fundamental aspect of these orders; namely, that they are intended to protect witnesses in criminal investigations. Unlike at the trial stage, no one's liberty is at issue.
The Joint Committee also seems to be saying that, if the DPP gives his consent to the application for an investigation order, he will have then made a decision on, or will be likelier to know, whether he will apply also for a trial order later on. The implication seems to be that this will address the practical problem raised by the Joint Committee, and in Committee this afternoon, of informants being reluctant to come forward unless they know that they will get a trial anonymity order. However, I have to be frank with the Committee: the police, the CPS and the DPP can give absolutely no guarantee that a court will grant a trial anonymity order at any stage of a case; nor will the DPP be able to say with any certainty that the informant will indeed be required to provide evidence at trial at these very early stages of an investigation. I repeat that in our view investigation anonymity orders and trial anonymity orders are quite separate tools and they serve different purposes. There may well be examples of where it is impracticable for the CPS to provide cover for urgent police applications, and that is why we ask noble Lords not to press Amendment 184.
The noble Lord, Lord Thomas, spoke to his Amendments 183B and 183C. The first proposes the deletion of subsection (8) but Amendment 183C suggests the insertion of additional paragraph (c) to supplement existing paragraphs (a) and (b). One of the preconditions for the grant of an order is that the witness has useful information to give, but the deletion of subsection (8) would remove that requirement. There is no point in making orders in respect of people who have no information or who would be willing to provide information without anonymity, and that is why, if the noble Lord had argued for Amendment 183B, we would have rejected it.
New paragraph (c) proposed in Amendment 183C would require the police to prove that the witness would be unwilling or unable to provide information without an order. We think that that is too closely related to our existing paragraph (b), which, with the
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Lord Henley: I thank the Minister for his very kind opening remarks in his response to the amendments. I also thank him for the assurance that the department will keep these matters under review. I expected him to make that clear and, for that reason, I shall in due course withdraw my amendment.
Perhaps if I had been more on the ball this morning when I first started looking at these amendments, I would have suggested that they were not very appropriately grouped, in that I think that those in the names of the noble Lords, Lord Dubs and Lord Thomas of Gresford, deal with slightly different matters from the ones that I was getting at. We all know that in an ideal world the Government Whips Office would like to group all amendments into one supergroup, thereby facilitating debate and getting through matters somewhat more quickly. We all know that we spend our time undoing the Government's attempts to put things together. On this occasion, I think that they got it wrong, so I suggest to noble Lords that, when in due course they come to their amendments, they consider doing with them as they think fit. However, as I said I would, I beg leave to withdraw my amendment.
Clause 66 : Conditions for making order
Amendments 183AB to 184 not moved.
185: Clause 74, page 45, line 23, at end insert-
"(7A) The court has the power to appoint special counsel to represent the interests of the defendant in his or her absence, if it appears to the court to be appropriate to do so in the circumstances of the case."
Lord Dubs: Amendment 185 also stems from a report by the Joint Committee on Human Rights. The Joint Committee recommended in the report that the Bill should be amended to give the trial judge a discretion to appoint special counsel to represent the interests of the defendant in his or her absence if it appears to the court to be appropriate to do so in the circumstances of the case. In the Government's view, there are rarely cases where special counsel might be required, and they believe that the present arrangements permitting judges to invite the Attorney-General to request the appointment of special counsel are adequate. The Attorney-General's guidelines state that such an invitation by a court should be regarded as exceptional. I wonder whether it ought to be that exceptional. It should not be commonplace, but to date there appears to have been only two applications to the Attorney-General for special counsel to assist the court with a witness anonymity application, both of which have been granted.
Of course, fairness does not require special counsel to be appointed in every case where an application for an anonymity order is made; it will depend on the circumstances. As I said, however, only two have been granted so far, out of a total of 136 applications. It is quite possible that the defence has requested the appointment of special counsel many more times than the two occasions on which they have been requested by the court.
There is a certain uncertainty about whether magistrates' courts have the power to invite the appointment of special counsel, because they are creatures of statute and therefore do not possess inherent jurisdiction. We on the Joint Committee noted that although the vast majority of applications for witness anonymity orders have been made in the Crown Court, three orders have been made in the magistrates' court. As long as there is the possibility of applications for anonymity being made in the magistrates' court, it is undesirable that uncertainty should remain about whether there is power to appoint special counsel in such cases.
Finally I note that at the time of the passage of the 2008 Act, the Government told Parliament that courts had powers under their inherent jurisdiction to appoint special counsel as and when the court considered it appropriate. Since that date, however, the Attorney-General seems to have adopted a different position about the power of the courts to appoint special advocates, arguing that it is the Attorney-General and not the court that has the power to appoint. There is some doubt here-the situation is uncertain-and some clarity from the Minister would be helpful.
Courts can request the Attorney-General to appoint special advocates, but whether or not to do so is a matter for the Attorney-General. In our view, that further strengthens the case for putting the power of the court to appoint special counsel on to an express statutory footing. We on the Joint Committee remain of the view that the legislation should be amended to place on an express statutory footing the trial judge's discretion to appoint special counsel, and the right of the defence to request the appointment of such special counsel. I beg to move.
Lord Henley: We have tabled Amendment 185ZZA, which would do something similar to the amendment in the name of the noble Lord, Lord Dubs. We will also hear later from the noble Lord, Lord Thomas, about his Amendment 185ZE, which pursues the same track.
We all remember the witness anonymity orders that were pushed through Parliament last year in response to a court ruling that made an expedited legislative procedure necessary. As a responsible Opposition, we agreed to truncated intervals between stages of the Criminal Evidence (Witness Anonymity) Bill, something that is only rarely considered, as the noble Lord will be aware as a result of tomorrow's business. We resisted the temptation to amend it at the time. The Government, to their credit, worked closely with us to draft a new law. With the inclusion of a sunset provision, we were, if not wholly content, at least persuaded by the circumstances to allow the Bill to pass.
Now that we have had the opportunity to give the powers proper scrutiny, we have been able to dust off some of our old arguments. One issue on which there was widespread feeling around the House was the need for an independent figure who would assess the information provided to the court to determine whether anonymity was granted. In order to assess the need for an order to be granted, a great deal of information may be laid at the feet of the court. A judge will, most likely, not have the resources at his disposal to establish the background matters in respect of a proposal that a witness be given anonymity. However, through the appointment of an independent counsel, the court could properly analyse the necessary information, and that person would be able to make inquiries to establish if the conditions in Clause 75 and the considerations in Clause 76 had been fully satisfied.
It seemed to us a year ago, and it still seems to us now, that the best way to support the conflicting interests of defence and prosecution is to appoint an independent counsel, who will have at his disposal certain inquisitorial powers to determine the claims of the witness who seeks protection. The principle that anonymity in criminal trials should be so exceptional from the norm demands that exceptional steps are taken to safeguard the rigour and the fairness of the process.
We have before us three different ways of achieving that. I suppose that we could invite the Government, like Paris, to decide which is the fairest of them all.
Lord Thomas of Gresford: The amendment to which the noble Lord, Lord Henley, spoke, is really a rehash of what I proposed last year in relation to the witness anonymity Bill-the Committee will see mine repeated as Amendment 185ZE. Somehow they managed to get theirs first on to the Marshalled List today. I said then that the role of independent counsel would be to examine or cross-examine a witness who claims that he is in fear, if there is any doubt about that, or to test the circumstances he refers to or his honesty or dishonesty generally, for the purposes of assisting the court in coming to its conclusions.
I remind your Lordships about the scheme for an application for a witness anonymity order. Under Clause 75(2), as now drafted:
"The court may make such an order only if it is satisfied that Conditions A to C below are met".
In coming to its conclusion, the court must, under Clause 76(1), have regard to the considerations set out in subsection (2)-six of them. As drafted, all that the judge can do is look at the person in front of him and think, "Do I like this chap? Am I told by the policeman who is making this application something that makes me satisfied as to conditions A, B and C? Have I taken into account all those considerations?". That is a very difficult task for a judge to undertake.
The wording in the clause is now almost the same as it was in the witness anonymity Act of last year, which came under the close scrutiny of the Court of Appeal in the case of Mayers, Glasgow and others in the judgment delivered on 12 December 2008 by the Lord Chief Justice. The Lord Chief Justice made some interesting comments in his judgment about the drafting of the Act and the need for special counsel. He said:
"Notwithstanding the abolition of the common law rules, it is abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained".
"It is ... clear that an anonymity order should be regarded as the special measure of last practicable resort".
In paragraph 10 of the judgment, the Lord Chief Justice set out principles to enable the judge to come to the conclusion to which he must come. He said:
"The principles which govern the use of special counsel to protect the overall fairness of the trial when the question whether information should be withheld from the defence is being addressed should be adapted when its possible use arises in the context of witness anonymity. Nothing in the legislation suggests, and we can see no justification for any blanket rules, one way or the other. Sometimes special counsel may contribute significantly to the fairness of the process, sometimes not. There is however one significant difference between the use of special counsel for public interest immunity purposes, and such use for the purposes of witness anonymity. The former is concerned with the circumstances in which non-disclosure to the defence may be appropriate, the latter with whether sufficient and complete investigation and consequent disclosure have taken place".
It is clear that he had been reading what I said about this amendment earlier.
The Lord Chief Justice continued:
"If the 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. The services of special counsel may however 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 obligations of the prosecution in the context of a witness anonymity application go much further in the ordinary duties of disclosure. As we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required".
What detailed investigation into the background of each potential anonymous witness did he have in mind-that the judge should get off the bench and carry out an investigation himself, or that there should be a mechanism, such as the one in my amendment,
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The Lord Chief Justice came back to the issue of the special counsel at a number of points in his judgment. In paragraph 21, for example, he said:
"The defence statement provides the benchmark against which the disclosure process must be examined. So, for example, a defendant who believes that he may be the victim of a malevolent plot to incriminate him when he is innocent should normally be able to give some indication of his concerns in his defence statement, and to indicate the identity of anyone who he believes may have a malign motive to incriminate him. It can then, if raised by him, be the subject of further inquiries, perhaps indeed with the use of special counsel".
Again, he referred in paragraph 35 to considering the considerations, and said:
"The difficulties are well within the knowledge and experience of trial judges. Sometimes, of course, specific evidence may be required by the judge so that he can probe it, and indeed if necessary, he can seek the assistance of special counsel".
The Lord Chief Justice finally concluded:
"The use of the word 'necessary' requires that the court must be satisfied to the highest standard that",
conditions A, B and C have been satisfied. He said that it was not enough to satisfy two of the three conditions; all must be satisfied. He continued:
"'Probably' necessary will not do. Even if the 'necessity' foundations for conditions A and C are established, the order cannot be made unless the court is also satisfied that the forthcoming trial, or the current trial, would be, or continues to be fair".
A five-judge court of the Court of Appeal, with highly experienced judges who are versed in the criminal law, came to that analysis of the previous Act. As I say, the provisions are in the Bill. If the Lord Chief Justice points out the utility of special counsel and seeks to underline my argument, which I advanced on a previous occasion, how much more must the Government be satisfied before they make a provision, whether it is expressed in the terms of the noble Lords, Lord Dubs or Lord Henley, or my amendment, and how much more important is it that the Government take this on board and table a proper amendment on Report?
Lord Elystan-Morgan: I support the spirit of the amendments and in so doing remind myself of the issue that led to the 2008 Act, which was passed almost exactly 12 months ago. The case of Davis had been decided, if I remember rightly, on 18 June last year, and spelt out that the practice that had developed very gradually over the years of allowing anonymity was wholly illegal. Parliament had to intervene to legitimate something that was illegal under common law. The mechanics of that were not difficult because of the sovereignty of Parliament, but there was a second question: how does one remove the injustice which this legitimatisation could bring about? That is very much more complicated.
The provisions of Clauses 75 and 76 are very similar, as has already been pointed out, to the wording of the 2008 Act. If the six matters, which are set out in Clause 76(2) and establish whether conditions A, B and C under Clause 75 have been satisfied, are no more than what a conscientious careful judge would have been doing over the past 15 years or so, how do they protect the position of a person who may have to
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One further consideration is that this matter has not been finally adjudicated on in Strasbourg, which was mentioned at Second Reading. If the Strasbourg court was of the view that these conditions, which were the very minimum necessary to bring about a just conclusion for the defendant, have not been satisfied, all that we are doing is rendered utterly nugatory.
I do not for a moment argue that there is anything sacrosanct in the issue of a special counsel. If there are other ways of doing it, so be it. It is not the special counsel that is important, but the principle that a person should not face grave accusations without knowing who his or her accuser might be. But is there any other way? That is the experience of other countries which have gone down this path. I understand that it is the experience of New Zealand and Netherlands. I think I am right in saying that nearly the whole structure of the 2008 Act was culled from the New Zealand Evidence Act 2006. Under that Act, a specific section, which I seem to remember was Section 115, deals with special counsel. Is there any other way that the result for which I have argued can be achieved; that is, that a judge should have a factual matrix on which to determine conditions A, B and C in Clause 75, and paragraphs (a) to (f) in Clause 76(2)?
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