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To my mind, that would be some precaution against the granting of the investigation anonymity orders too
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5.15 pm
Lord Tunnicliffe: My Lords, to refresh our memories briefly, the new investigation anonymity orders are designed to assist in the fight against gang-related gun and knife crime. I wrote to the Opposition Front Bench in the summer describing the orders in detail. People who come forward to help the police in criminal investigations are protected from having their identities exposed only by the limited constraints to which the police and other investigators are subject at present, such as data protection legislation and common law confidentiality rules. The new orders will make it a criminal offence to divulge the identity of the informant. In the Bill, we have limited the orders to gang-related gun and knife homicides, where the greatest concern lies, but the Bill contains an enabling power that would permit the scheme to be applied to other offences if that were appropriate.
Amendment 76 would remove the order-making powers from Clause 65 and thus prevent further offences being added to the investigation anonymity order scheme other than by primary legislation. In principle, any criminal investigation can give rise to witness intimidation. If the orders work well in practice, it would be entirely proper to use secondary legislation to add other offences to the scheme, rather than having to enact new primary legislation. I remind the House that the affirmative resolution procedure applies to this order-making power and that the Delegated Powers and Regulatory Reform Committee considered that this provided an appropriate level of parliamentary scrutiny.
Any future extension of the scope of the scheme would be considered on a case-by-case basis. I can assure noble Lords that we have no plans to add swathes of new offences to the scheme. Moreover, any proposals to extend the list of offences would be subject to consultation.
Amendments 76A to 76D and 76F to 76Mwould delete the entire investigation anonymity order scheme. It will come as no surprise to the noble Lord, Lord Thomas of Gresford, that I cannot accept the amendments. I am aware that doubts have been raised in some quarters as to the likely efficacy of the investigation anonymity order scheme, but gang-related gun and knife crime continues to be a pressing problem. It would be a dereliction of duty on the Government's part if we were to fail to pursue every possible way of combating that menace.
My response to those amendments brings me neatly to Amendment 76CA. I commented in Committee that we had some sympathy with the amendment. I noted that it was uncertain exactly how the orders would operate in practice and that their operation should be closely monitored. However, as we were proposing to carry out a review of the provisions anyway, I said that the amendment was unnecessary.
Given the continuing doubts which have been expressed as to the overall nature and scope of the scheme, I am now prepared to accept Amendment 76CA in principle.
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Moving now to Amendment 76E, I am grateful to the noble Lord, Lord Thomas, for clarifying the purpose of the amendment. This amendment would allow an investigation anonymity order to be made only where the police can satisfy a magistrate or district judge that the potential informant would be unwilling or unable to give information without one. That would make it more difficult to make an order than is envisaged in the Bill, which requires that the potential informant be more likely than not to provide information. We do not wish to make the requirements for obtaining an investigation anonymity order unduly onerous. At the very early stage of an investigation, the police may have only very limited information, but to take the investigation forward it may be vital for them to obtain an order.
Amendment 76E would require the police to satisfy the court that the informant was flatly unwilling or unable to assist without an order in place. In our view, this unduly restricts the range of cases in which the order may be made. It turns the order from an encouragement mechanism into a prerequisite for the provision of information. That cannot be right.
Having secured one of his two amendments, I hope that the noble Lord, Lord Henley, is satisfied and that he will agree to withdraw Amendment 76. I hope also that the noble Lord, Lord Thomas, will be sufficiently reassured. As well as accepting in principle Amendment 76CA, I can assure the noble Lord, Lord Henley, that the Government will not bring forward an order under subsection (4) of Clause 65 until the Justice Secretary has reported to Parliament on the operation of investigation anonymity orders. I hope that that will provide further assurance that we are not bringing forward an unnecessary swathe of offences.
Lord Henley: My Lords, I am, as always, grateful to the Minister for his response and particularly so because he has said that he is in principle prepared to accept the second of my two amendments or that he will come forward with proposals to cover it.
As regards my first amendment, I was tempted to say that the Government are unlikely to be in office long enough to do much about Clause 65 or for the Secretary of State to amend it. However, I thought that I had better have a quick look at the commencement provisions. I should offer further advice to the Government: if they are to bring forward a Bill of this sort: they must remember that the commencement provisions will become complicated. If the Minister looks at Clause 171, he will discover that the commencement provisions go on for a page and a half. We must begin by manfully-or should I say "personfully"-going through the whole of that clause desperately trying to find when and if Clause 65 is likely to be commenced. It may be covered by Clause 171(1)(j)(iii), relating to Part 3, but I am not sure whether Part 3-
- "the repeals relating to the Administration of Justice (Miscellaneous Provisions) Act 1933 (c. 36) and the Supreme Court Act 1981 (c. 54)"-
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covers it, or whether it may be covered by subsection (5) of Clause 171, whereby:
"The other provisions of this Act come into force on such day as the Secretary of State may by order appoint".
In other words, we are left completely unclear as to when and if Clause 65, particularly subsection (4), will come into effect.
However, I am grateful to the noble Lord for giving us an assurance that the Government have no plans to bring it into effect or to make any changes until the Secretary of State has had time to-did the noble Lord say "consult", because we all know what consultation means in the Ministry of Justice? If not consult, at least to consider matters further. If that is the case, it is extremely unlikely that the Government will get a chance to make any amendments to Clause 65 under subsection (4).
There is no need for the noble Lord to respond, unless he happens to have an answer. I intend to withdraw my Amendment 76 and I thank him for what he said about Amendment 76A. I hope that he will at some point write to me, in particular about the commencement clause. I beg leave to withdraw the amendment.
Clause 66 : Qualifying criminal investigations
Clause 67 : Investigation anonymity orders
Amendments 76C and 76CA not moved.
Clause 69 : Conditions for making order
Amendments 76E and 76F not moved.
Clause 70 : Appeal against refusal of order
Clause 71 : Discharge of order
Clause 72 : Delegation of functions
Clause 73 : Public interest immunity
Clause 74 : Application to armed forces
Clause 75 : Interpretation of this Chapter
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76N: Clause 77, page 45, line 25, at end insert-
"( ) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.
( ) In deciding whether to grant the order, the court shall consider whether the appointment of an independent counsel would contribute significantly to the fairness of the proceedings; and if the court decides not to appoint an independent counsel the court must give reasons.
( ) The court may direct the independent counsel to scrutinise on the court's behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit.
( ) The party applying for the witness anonymity order must disclose to the independent counsel all information relating to the proceedings that is in that party's possession.
( ) The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate and report to him whether there are any matters relevant to the considerations set out in section 76(2)(d) and (e) which should be drawn to the attention of the court.
( ) The independent counsel shall be entitled to examine witnesses in the absence of a prosecutor, or in the absence of a defendant and his legal representative.
( ) The independent counsel shall assist the court in its consideration of Conditions A to C in section 78."
Lord Thomas of Gresford: My Lords, we move on to witness anonymity orders in Chapter 2 of Part 3. In particular, we need to look at the machinery by which witness anonymity orders may be made. It is, of course, extremely difficult for the defendant to challenge the evidence of an anonymous witness. I have already told your Lordships of my personal experience in this field. If the defence counsel does not know the name or identity of a witness-certainly if the defendant does not know-it is impossible to take instructions in such a way as effectively to challenge the evidence that he gives or to explore further the reasons why he should give the evidence that he does.
The machinery under Clause 77 is that an application may be made to the court by the prosecutor or, indeed, by the defendant. Clause 77(2) states:
"Where an application is made by the prosecutor, the prosecutor ... must inform the court of the identity of the witness".
However, the clause goes on to say:
"Where an application is made by the defendant, the defendant ... must inform the court and the prosecutor of the identity of the witness".
There is an imbalance straightaway in the way in which these applications are made. The prosecution does not suffer from the same problem to which I referred your Lordships earlier. The prosecution knows who the witness is; it can make investigations into the background, challenge the evidence that that person gives and explore the reasons why he has come forward to give evidence on behalf of the defendant. That is a very different situation from that of the defence.
When the application is made, the judge has to consider whether to grant it. Clause 78(2) says:
"The court may make such an order only if it is satisfied that Conditions A to C ... are met ... Condition A is that the proposed order is necessary ... to protect the safety of the witness or ... to prevent any serious damage to property, or ... in order to prevent
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That is interesting. In the previous debate on investigation anonymity orders, my amendment, which would have inserted the same idea, was not accepted by the Government. The final condition is that,
When it comes to the application that is made by the prosecution, the judge has to guess. All that he is told is the name of the person concerned. There is no possibility of his making any inquiries of his own. When the defendant applies for an order, the prosecution can say, "This chap is not worthy of belief", that the order is not necessary to protect his safety and that there would be no real harm to the public interest; indeed, it can raise all the matters set out in conditions A to C. The judge has information when the defence counsel makes the application, but when the prosecution makes the application the judge has no idea; all he can do is guess. The prosecution can put forward whatever grounds it wishes and there is no means of testing the bona fides of the witness.
5.30 pm
Amendment 76N proposes that, in circumstances where a judge is not entirely satisfied with what the prosecutor tells him, he could appoint an independent counsel to assist him. The independent counsel would have the power to,
- "scrutinise on the court's behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit".
The party applying for the witness anonymity order-let us say the prosecution-is required to disclose to the independent counsel all the information in their possession that relates to the proceedings. The independent counsel, if he thinks fit-we are moving on to situations that are less likely-would have the,
- "power to require police officers unconnected with the relevant trial to investigate and report to him whether there are any matters relevant to the considerations set out",
- "entitled to examine witnesses in the absence of the prosecutor, or in the absence of a defendant and his legal representative".
Having carried out the inquiry, the independent counsel would be in a position to assist the court in its consideration of the conditions, the effect of which I have already read out to noble Lords.
The amendment seeks to balance the defendant's and prosecution's interests in a way that the Bill does not. We in this country are still interested in a fair trial. We are interested in equality of arms-one side should not have a considerable advantage over another. Since witness anonymity orders are likely to become more frequent, the way things have been moving over the past 10 or 20 years, it is right that this power should be there-to be exercised not in every case, but only where the judge feels that something about the application needs an investigation that he personally could not carry out, for obvious reasons, and so requires the assistance of independent police officers
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Lord Henley: My Lords, I will speak briefly to the amendment of the noble Lord, Lord Thomas, as I have added my name to it. He has spoken to it most ably, and therefore brevity is certainly the order of the day.
This is not a new issue. We debated it during the passage of the then Criminal Evidence (Witness Anonymity) Bill last year. In Committee, we considered a similar amendment seeking to achieve broadly the same thing-namely, for a court that is considering an application for a witness anonymity order to be able to appoint a special, independent counsel to deal with the evidence surrounding such an application.
We are more than content with the terms of the amendment, and add our support. Since it looks as though the noble Lord, Lord Bach, himself will be answering on this occasion, perhaps he will be able to assist me with the questions that I was asking earlier about commencement, which also apply to this section. We are now considering Chapter 2 of Part 3. When is commencement likely to come into force under Clause 171?
Lord Carlile of Berriew: My Lords, I will speak briefly in support of the proposal that special advocates should be available in the type of case that is under consideration. Perhaps it is worth reminding noble Lords that special advocates have proved not only useful but very effective in control order cases involving terrorism suspects that have gone before the High Court. There are a number of cases-a number increasing almost day by day as we speak-in which special advocates have been able to persuade the court that there are circumstances militating against either the control order itself or certain conditions under it.
I apprehend that special advocates in witness anonymity cases will be used very rarely; nevertheless, it is my view that some of these cases are extremely complicated evidentially and that there is justification in scrutinising the circumstances in which what amounts to secrecy is being imposed. I therefore urge the Minister when he replies to consider whether, in a residue of cases where there are circumstances that require special inquiry, the power should be provided so that special advocates can be appointed. I think that it needs to be put in statutory form because, if it is not, they will suffer the indignity if appointed under an inherent power, if it exists, of not being paid.
Lord Bach: My Lords, Amendment 76N brings us back to the topic of special counsel, or "independent counsel" as the amendment would have it, which has featured on a number of occasions during the passage of the emergency legislation and again in this Bill. I say at once that we remain to be persuaded that it serves any useful purpose to make provision for special or independent counsel in the Bill; indeed, we see significant disadvantages in doing so for a number of reasons.
Our starting point is that the appointment of special counsel may already be addressed under the common law across the whole range of criminal proceedings.
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Our argument is that, if the position of special counsel is to be placed on a statutory basis, it should be for criminal proceedings in general, not just witness anonymity applications. This Bill is not the place to put special counsel in criminal proceedings on a statutory footing. Furthermore, we believe that the common-law arrangements are working perfectly adequately and we have seen no evidence to the contrary. The courts have not called for special counsel to be placed on a statutory basis. In the anonymity context, the courts have given no indication that they consider the present common-law arrangements unsatisfactory.
It may be helpful if I set out our position a little more fully by reference to the detail of the amendment. First, under the terms of the amendment, the power to appoint special counsel would be given to the court. This would be a significant change from the current position at common law, under which it is always the Attorney-General who makes the appointment at the request of the court. In the 2004 case of R v H&C, the Judicial Committee of this House indicated that the current procedure had no plausible alternative, and we can see no good reason to change it now.
Secondly, the grounds for appointment-namely, that there should be a significant contribution to the fairness of the proceedings-do not reflect the common-law position and practice that special counsel should be appointed only where no other course will adequately meet the overriding requirement of fairness to the defendant. In the case of H&C, this House, in its judicial capacity, emphasised that the appointment of special counsel should be an exceptional course of last resort. We feel that the amendment threatens to undermine that guidance, which has always been regarded as valid. In doing so, the amendment could lead to the routine appointment of special counsel in witness anonymity cases, and we have to be mindful of the significant resource implications that would flow from that.
The amendment would make the function of independent counsel one of assistance to the court. In representing the interests of the defendant in proceedings, special counsel naturally assists the court but that is not his or her specific role. This would go significantly beyond the role currently undertaken by special counsel in criminal proceedings, and widen it in a way that would lead to problems.
The broad function of assisting the court might involve duties that are significantly different from that of a special counsel. These duties are not required of a special counsel where they are used in existing criminal proceedings involving witness anonymity, and indeed there is no need for them. Our real concern is in the power to examine witnesses in the absence of prosecutor and defendant or defendant's representative. That suggestion in the amendment represents a significant change in the existing position on special counsel. This proposal, if taken to its natural extent, would be tantamount to the appointment of a second judge in
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