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As regards the Court of Appeal decision of December 2008, to which the noble Lord, Lord Thomas of Gresford, referred, the judge would have to be satisfied not only as to conditions A, B and C, but to each of the six considerations under Clause 76. It must follow because Clause 76 proves or disproves conditions A, B and C in Clause 75. In other words, is there any way of dealing with this situation, which could be one of grave injustice, without a special counsel? I appreciate that it would be churlish of me to pretend that there is not a problem. Of course there is a problem. There has been a problem with regard to witnesses since the dawn of time.
At Second Reading, I quoted an article written some years ago by my noble friend Lord Pannick on this matter. In 70 BC, when Cicero was about to prosecute the consul general of Sicily, it was maintained that it was impossible to proceed with the trial because it was feared that all the witnesses had been bribed. There is nothing new in this situation. As the House will remember, there were reports on this by Lord Diplock and Lord Gardiner. Indeed, this problem cropped up at the time of the trials of the Kray
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Lord Bach: I thank everyone who has spoken in this debate. Perhaps I may start by giving a few statistics, which may be of use to the Committee. From July 2008 to the end of May 2009, the CPS made 232 anonymity applications to the courts. Of those, 206 were granted and 26 were refused. Of the 206 granted, 79 were for undercover officers, 63 for test purchase officers and 57 were for civilians. The final seven were other investigators or interpreters. Of the 26 applications that were refused, 21 were for civilian witnesses and five were for undercover police officers. Of the 232 applications, 222 were made to the Crown Court, one to the youth court and nine to the magistrates' court. Of the nine applications made to the magistrates' court, five were granted and four were refused. I hope that that is helpful. In that period, two special counsel requests were made to the Attorney-General, both of which she granted.
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These three amendments would make statutory provision for special counsel or, as described in two of the amendments, independent counsel. We consider the amendments to be unnecessary. The Bill makes no provision for special counsel because courts may already ask the Attorney-General to appoint special counsel to assist with applications for witness anonymity orders and can be expected to do so where they consider it necessary. This option is set out in a practice direction issued on 28 August 2008 by the then president of the Queen's Bench Division following the implementation of the emergency legislation. If any party to the proceedings raises the question of special counsel, the court is already in practice bound to consider it.
The tradition is that under current arrangements the court asks the Attorney-General, and it is the Attorney-General who appoints the special counsel. The Attorney-General exercises a general discretion in this area and it would be inappropriate to suggest that, for example, she will normally comply with the court's request, although she has done so on the two occasions where the request has been made so far.
Lord Thomas of Gresford: Would I be right in thinking that the JCHR report said that something like 120 applications were made to the court and that the court should request the Attorney-General, but that the court made only two requests, both of which were granted? I believe that those were the statistics before the JCHR.
Lord Bach: I am having that checked, but my understanding is that that is not right. I will come back to the noble Lord a little later. We have seen no evidence that the current arrangements are not working satisfactorily. Thus, we are not persuaded that there is any need to put them on a statutory footing. As I have said, in two cases, the court has asked the Attorney-
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The Committee will be very grateful to the noble Lord, Lord Thomas, for having analysed the leading case of Mayers, which of course discussed the law relating to special counsel as well as to features of the new statutory anonymity regime enacted last summer. In our view, two things stand out from that case. First, the Court of Appeal did not call for special counsel to be placed on a statutory basis. Secondly, it gave no indication that it considered the present arrangements-or as they had worked until that case-unsatisfactory.
As regards the figures, that quoted by the noble Lord, Lord Thomas, is for applications for witness anonymity orders and not for applications for the appointment of special counsel. If there is some confusion between us about the figures, I will write to the noble Lord.
Lord Thomas of Gresford: I am concerned. The noble Lord, Lord Dubs, has the documentation and I imagine that he will be able to help us. I understood that applications were made to the court but that the court simply did not pass them on.
Lord Dubs: My information is that the concern of the Joint Committee was the very small number of cases in which special counsel have been appointed; that is, two out of a total of 136 applications. There may be other figures. I have not checked all the details of the report, but that is a fairly small number.
Lord Bach: I suspect that that refers to the number of applications for anonymity witness orders, not for special counsel. I shall have that checked and write to noble Lords confirming whether or not I am right. There is a certain ambiguity in what my noble friend has just read out.
In Mayers, the Court of Appeal focused on the duties of the prosecution. The role of special counsel in a particular case may be one where special counsel helps the court probe the evidence. It did not suggest that special counsel carry out a police investigatory role. The noble Lord, Lord Thomas of Gresford, cited the court when he said that there was no justification for any blanket rules, one way or another. The court already has sufficient flexibility to ask the Attorney to appoint special counsel when it considers it necessary. Our approach today is wholly consistent with the Court of Appeal judgment in Mayers.
I do not need to point out that there are significant differences between the three amendments and I hope that none of them will be pressed today. There are obviously differences between special counsel and independent counsel but I do not need to go into detail. I was asked by the noble Lord, Lord Henley, to play the role of Paris in choosing between these
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Lord Dubs: If I have misled the Committee on the figures, I apologise, but I do not think I have. I am relying on the report of the Joint Committee on Human Rights. In its 8th report, House of Lords Paper 57, page 43, paragraph 1.134, dealing with special counsel, it states:
"We are concerned, however, by the very small number of cases in which special counsel has so far been appointed: two out of a total of 136 applications. This suggests that the appointment of special counsel may be being treated as a wholly exceptional course rather than one which fairness may sometimes require on the facts of a particular case. We note that there is no record of the number of times special counsel were requested or applied for by the defence but that request or application was not acceded to by the court".
So there is quite a lot of information. My noble friend the Minister may have more up-to-date information, which he could let us have.
Lord Bach: I shall write with the latest statistics to make the position clear to all noble Lords. I am conscious that I have not really answered the noble Lord, Lord Elystan-Morgan, on the points he makes. I do not think he expects me today to go into the details of the problems that he has always considered arise in cases of this kind. I hope that in the letter that I write to noble Lords I will be able to say something about what he asked me today.
Lord Elystan-Morgan: Could the noble Lord also apply his mind to the question he has already raised: that there is no blanket policy one way or the other? I believe I am right in saying that the learned editor of Archbold, in the current edition, says of special counsel that such an appointment should be very sparingly used. Therefore it does not matter whether the figures given by the noble Lords, Lord Dubs and Lord Thomas of Gresford, are correct; there seems already to be a mentality that accepts that there is a blanket policy.
Lord Dubs: I also understand that the Attorney-General's guidelines state that such an invitation to appoint a special counsel by a court to the Attorney-General should be regarded as exceptional. Whatever the figures, my noble friend may also care to comment on whether the guidelines say what I believe they say: that is, that they should be regarded as exceptional. It does not happen often.
I am not totally convinced by my noble friend's reply. I shall ponder what he said when I read Hansard in detail. For the moment, I beg leave to withdraw the amendment.
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Clause 75 : Conditions for making order
185ZA: Clause 75, page 45, line 34, leave out paragraph (b) and insert-
"(b) in order to avoid compromising the practice of undercover policing or undercover operations by police (or both), law enforcement agencies or the security services, whether in relation to specific operations or generally"
Lord Thomas of Gresford: I want first to address Amendment 185ZE, in the previous group, for the purposes of replying to the Minister-as I am entitled to do. I am rather heartened by the few applications that have been granted. As the noble Lord, Lord Elystan-Morgan, said, these witness anonymity orders were being handed out wholesale. I came to the witness anonymity Bill last year straight from a case in the Old Bailey where no fewer than five witnesses in a murder case had given evidence with their voices changed. Acting on behalf of the defendant, I had no idea who they were and it was impossible to cross-examine them. They were the only witnesses; there was no forensic evidence in support of the prosecution's case. Apart from one young lady, the girlfriend of the deceased, who said, "I am not going to give my evidence anonymously"-even though an order had been made in her favour she refused to give evidence in that way and therefore gave evidence in open court-there was no other evidence against the defendant. It was a wholly unfortunate thing to happen and these must be regarded as exceptional orders.
The framework that was put in place last year seems to be working and the guidance in Mayers-that these are measures of last resort-will be very influential. The practice of the police offering to witnesses that they would all be treated anonymously seems to have ceased and I am pleased about that.
However, it is not satisfactory that special counsel should be appointed by the Attorney-General. The purpose of the amendments was that special counsel should be appointed by the court where the court thinks it is necessary and that the court should not regard it as an exceptional matter when it is required to come to a conclusion on the highest degree of proof-beyond reasonable doubt-and has to take account of all the considerations and conditions that have to be fulfilled. It is a matter for the court to consider whether it has enough information. We will have to return to this on Report and see whether we can have a joint amendment which will perhaps meet with the Government's favour.
I now turn to Amendment 185ZA and a series of amendments that are grouped together that cover quite disparate matters. I apologise to the Committee that they are not being deal with separately. However, I shall endeavour to cover them all.
Amendment 185ZA relates to subsection (3)(b). The first condition to be met for the granting of a witness anonymity order is condition A; that is,
- "in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest".
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That is an extraordinarily wide concept. The purpose of the amendment is to confine that possibility in paragraph (b):
- "in order to avoid compromising the practice of undercover policing or undercover operations by police (or both), law enforcement agencies or the security services, whether in relation to specific operations or generally".
The statistics that were given by the noble Lord in answer to the previous question make the point. By far the bulk of the orders that have been granted have been to undercover policemen or to those who are engaged in investigating food and matters of that sort. That is what we are seeking to confine the public interest to. To prevent real harm to the public interest, as set out in condition A, could mean anything. Subsection (5)(b) introduces the same concept in terms that were not in the original Act of last year, that there would be real harm to the public interest if the witness were to testify without the proposed order being made. What public interest is there? I should be glad to hear from the noble Lord what the Government have in mind.
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Amendments 185ZB and 185ZC are drafting amendments to emphasise that subsection (6) should be redrafted in a way that makes sense. If they were accepted, the provision would read:
"In determining whether the proposed order is necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to"-
- "fear on the part of the witness ... that the witness or another person would suffer death or injury, or ... that there would be serious damage to property ... if the witness were to be identified",
was reasonable. We cannot permit witness orders to be made because a person has a fear for his personal safety which is completely unjustified. The person who applies for such an order needs to satisfy the court that the fear of death or injury or serious damage to property is founded on something and is not just the subjective view of the witness concerned.
Amendment 185ZD would insert a new clause providing that the prosecution should not disclose the identity of a witness to other defendants. The Bill suggests that a defendant may make an application for a witness anonymity order. In such circumstances, if the application is made by the defendant, then it is necessary to have a provision that nothing in the Criminal Procedure and Investigations Act 1996 or any law relating to disclosure of material by a prosecutor to the defence should apply to the identity of an anonymous witness who is made anonymous by the application of the defendant.
These are separate and quite different points. We heard that one application had been made in the youth court-that was the statistic that the noble Lord gave. Nine applications had been made to magistrates' courts, of which five had been granted. When the previous Bill was going through, I pointed out, on behalf of these Benches, that magistrates' courts are not really suited to granting witness anonymity orders. In any event, not all courts have the practical means of disguising someone's voice or identity, or of putting up screens, and so on. Nor is it right as a matter of principle that
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These orders should not be made by justices. If only nine such orders were applied for last year, they will have had very little or no experience of making the determination and considering those conditions and the considerations that are set out in the Bill as well. We suggest that that is far too complicated and that the magistrates' court should be left out of this. However, the youth court-were the defendant an adult, he would have been tried in the Crown Court-is a different matter. In that very specific case, when only one application was made last year, we concede that perhaps an anonymity order could be made but, as a general principle, not otherwise. I beg to move.
Lord Bach: I should like to deal briefly with the three government amendments in this group-218B, 218C and 218D. These are simple, technical amendments to improve the appeal procedures in cases that involve anonymity orders. Amendment 218B would enable a single judge to vary or discharge as well as make an order in the interests of the efficient operation of the Court of Appeal. The power of a single judge of the Court of Appeal to make an order is also available in the service context and in Northern Ireland. Accordingly, Amendments 218C and 218D make a like change. Amendment 218D would also make it clear that a single judge of the Court of Appeal in Northern Ireland cannot discharge or vary an anonymity order where he or she has already made it in the Crown Court. I will move those amendments in due course.
I shall deal with the amendments of the noble Lord, Lord Thomas of Gresford, as briefly as I can. Amendment 185ZA would change the wording of the second limb of condition A to refer explicitly to avoiding compromising the practice of undercover policing or undercover operations by police, or both, law enforcement agencies or the security services. Our view is that the amendment is unnecessary. As we explained during the passage of the emergency legislation last year, the public interest wording is intended to cover two areas-first, national security interests generally and, secondly, the undercover work of the police and relevant agencies. Having done so, we believe that further elaboration is unnecessary. Indeed, to change the wording could cause confusion as to what change was intended, bearing in mind that the 2000 Act contains the same wording as this Bill.
What is now Clause 75(3)(b) has been in force for almost a year without, to our knowledge, any difficulty. It will be noted also that the present amendment covers only undercover operations; it would not cover other circumstances where damage to national security would be caused by identifying a witness.
Amendments 185ZB and 185ZC would, as the noble Lord said, change the order of the words in Clause 75(6). The court will necessarily have to consider any fear of
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Amendment 185ZD deals with the extent to which the anonymity provisions override the prosecution disclosure requirements in the Criminal Procedure and Investigations Act 1996. The concern is that where an order is made on a defence application for an anonymity order in a multi-handed case, the prosecutor may be compelled by the 1996 Act to disclose the identity of the witness to the other defendants, thus defeating the purpose of this legislation. A trial anonymity order overrides any prosecution obligation to disclose material to a defendant under the 1996 Act to the extent the court thinks fit in any particular case. We do not think the amendment spoken to by the noble Lord is necessary.
Finally, Amendment 185ZF would prevent magistrates' courts making a witness anonymity order, which the Bill currently allows. The position at common law was that anonymity orders could be made by the Crown Court and the magistrates' court. This position was preserved in the emergency legislation. Our position is that if anonymity is required to secure justice, it does not matter where the case is heard. We see no convincing reason why magistrates' courts should not be permitted to make such orders provided that the requirements in the Bill are met. As the noble Lord, Lord Thomas of Gresford, reminded us, since the passage of the Bill in the previous Session, nine orders have been sought in the magistrates' court, of which five have been granted and four refused, which shows that the magistrates seem to have a pretty robust way of dealing with applications that they do not think to be good applications.
In the light of the explanations I have attempted to give, I invite the noble Lord to withdraw his amendment.
Lord Thomas of Gresford: I have heard the explanations that the Minister gave on behalf of the Government. I shall consider them. For the moment, I beg leave to withdraw the amendment.
Amendments 185ZB and 185ZC not moved.
Amendments 185ZD and 185ZE not moved.
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Clause 84 : Interpretation of this Chapter
Clause 86 : Eligibility for special measures: offences involving weapons
185A: Clause 86, page 50, line 34, leave out subsection (3) and insert-
"(3) In section 64(3) (orders subject to affirmative resolution procedure), in paragraph (a) after "section" insert "17(7),"."
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