New Clause 12 — Special counsel in proceedings concerning witness anonymity orders
Pension Credit and Personal Expense Allowance (Duty of Consultation and Review)
Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)
I shall deal briefly with the two technical Government amendments in this group. Amendment 142 refines the anonymity provisions to take into account those rare situations where the duty of non-disclosure imposed by an investigation anonymity order may come into conflict with a duty to disclose an anonymous informant's identity that happens to arise by virtue of some other legislation or the common law. Indeed, David Howarth alluded to that. The new provision is intended to clarify in what circumstances disclosure of information in pursuance of a conflicting duty to disclose would amount to an offence. Government amendment 131 simply extends the provisions of the Criminal Evidence (Witness Anonymity) Act 2008, which are to be repealed following the commencement of the replacement provisions in this Bill.
I shall now deal, at least in part, with the amendments and new clauses tabled by the hon. Member for Cambridge, and if I can in the time remaining, I shall at least refer to some of the amendments tabled by Mr. Hogg. On new clause 12, as the Under-Secretary of State for Justice, my hon. Friend Maria Eagle, explained in Committee, there is no evidence that the current non-statutory arrangements are not working well. Mr. Garnier asked how many cases there had been. There have been two since the enactment of the emergency legislation where the court asked the Attorney-General to appoint special counsel, and the request was granted in both cases. As the House will be well aware, special counsel is already available in anonymity applications under the common law. We do not see any reason to change that.
New clause 13 follows a similar new clause tabled in Committee and it relates to the effect of trial anonymity orders in relation to disclosure obligations under the Criminal Procedure and Investigations Act 1996. As the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston, made clear in Committee, a trial anonymity order overrides prosecution obligations to disclose material to the defence to the extent the trial court thinks fit in any particular case. We therefore consider the new clause unnecessary.
Clauses 62 and 63 make it clear who can apply for an investigation anonymity order. It would not be appropriate for the Director of Public Prosecutions to have to consent to every investigation anonymity order application, first because the orders are an investigative tool that should be available to the police, and secondly because the police and any prosecuting authority specified in the Bill are capable of deciding whether to exercise the powers or not without reference to the DPP. The orders are not linked to trial anonymity orders; they are an independent tool. It might not be appropriate for the prosecuting authority, in the form of the DPP, to be party to an investigative order that would be pursued by the police. There will, however, be close co-operation between the police and the Crown Prosecution Service in any case, under the guidelines.
The hon. Member for Cambridge also tabled amendments 160 and 19, which would alter the nature of the test that in clause 72 the court applies when assessing whether an anonymity order is necessary to prevent any serious damage to property. My concern is that such a change would make the value of the property relative to the total wealth of the witness relevant in considering whether the witness's fear is reasonable.
I would think it odd to suggest that someone's personal wealth should somehow affect how intimidated they might reasonably feel if their house were deliberately burned down. I believe that the amendment is unnecessary because the clause will require the court to have regard to any reasonable fear on the part of the witness that there would be serious damage to property if they were identified. The intimidating effect of damage to property is therefore already captured.
On the series of amendments tabled by the right hon. and learned Member for Sleaford and North Hykeham, we are not far apart on the principles behind some of the things that he wants, but the sort of detail that he requests in his amendments is not appropriate in primary legislation. We believe that the criminal procedure rules are the right venue for dealing with such detail. As an intermediate measure pending the making of those rules, the judiciary issued a practice direction on
"An application for a witness anonymity order should be made as early as possible and within any period directed by the court."
The criminal procedure rule committee is currently working on detailed provision for the procedures governing applications for witness anonymity orders. In the meantime, we are content for the courts to operate in accordance with the practice direction.
I assume that the intention behind amendment 60 is to require the court to be satisfied to the criminal standard—that is, beyond reasonable doubt—that the conditions for making a witness anonymity order have been met. We debated that in detail during the passage of the emergency legislation. There are many contexts in criminal legislation in which a court is required to be "satisfied" that applicable conditions are met. It is the function of the court to exercise its judicial judgment about that. It will either be satisfied or it will not, and I believe that that is the right term to use. It is commonly applied by the courts in this country.
Amendment 62 would redraft condition B to replace the reference to anonymity being consistent with a fair trial with a reference to anonymity not depriving the defendant of a fair trial. I agree with the right hon. and learned Gentleman that it is of paramount concern that defendants receive a fair trial, but we believe that the current wording guarantees that they will. The amendment would also replace the reference to "the defendant" with a reference that explicitly covers multi-handed cases. I am happy to confirm that the Bill already covers such cases. When the court considers granting an anonymity order, it must have regard to the impact on all the defendants, and the term "the defendant" in clause 72(4) is to be construed accordingly.
Amendment 63 would mean that in deciding whether condition C is met, the court must believe not only that a witness would not be prepared to testify without an order but that he could not reasonably be expected to do so. In other words, it would add a new objective criterion for condition C to be satisfied. My starting point is that clause 72(5)(a) essentially reproduces section 4(5)(b) of the emergency legislation, which is working well in practice. I would therefore need to be persuaded that such detail is needed in an amendment. In applying the consideration in clause 73(2)(f) of whether it is reasonably practicable to protect the witness by measures other than the anonymity order, the court is likely to consider whether it is reasonable to expect the witness to testify. It will also be able to take into consideration such other matters as it considers relevant, including the reasonableness of the witness's fear. We therefore do not consider it necessary to change the current framework.
Amendment 64 would make the witness's honesty, which is currently set out in clause 73(2)(e) as a consideration that the court must have regard to, a fourth condition for making a witness anonymity order. Again, we debated that subject during the passage of the emergency legislation. The amendment is unnecessary because it goes to the question of whether the defendant will have a fair trial. That, of course, is already catered for in condition B.
On that basis I cannot accept the amendments, but I hope that I have clarified to some extent the Government's position on them. I hope that hon. Members will not press their amendments and that they will support the Government amendments.