Clause 59
Coroners and Justice Bill
9:30 pm

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I beg to move amendment 403, in clause 59, page 34, line 16, at beginning insert

‘in relation to the offences listed in subsection (2)(a) to (d),’.

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss the following: amendment 404, in clause 59, page 34, line 18, at end insert ‘or attempted murder’.

Amendment 74, in clause 59, page 34, line 19, at end insert—

‘(c) grievous bodily harm with intent contrary to Section 18 of the Offences Against the Person Act 1861.’.

Amendment 406, in clause 59, page 34, line 19, at end insert—

‘(c) an offence under section 18 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm with intent);

(d) an offence under section 20 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm);

(e) an offence under section 16 of the Firearms Act 1968 (possession of firearm with intent to endanger life);

(f) an offence under section 16A of the Firearms Act 1968 (possession of firearm or imitation firearm with intent to cause fear of violence);

(g) an offence under section 18 of the Firearms Act 1968 (carrying firearm or imitation firearm with intent to commit an indictable offence or to resist arrest);

(h) an offence under section 19 of the Firearms Act 1968 (carrying firearm in public place).’.

Amendment 75, in clause 59, page 34, line 20, after ‘death’, insert ‘or injury’.

Amendment 405, in clause 59, page 34, line 20, after ‘death’, insert ‘, wound, or grievous bodily harm’.

Amendment 76, in clause 59, page 34, line 20, leave out ‘or both’.

Amendment 77, in clause 59, page 34, line 23, at end insert—

‘(c) any other weapon or means of causing injury including but not limited to hands and feet.’.

Clause stand part.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

We can return to business as usual and deal with some criminal law, which may or may not attract greater public interest.

The amendments can be described briefly, because they all seek to achieve the same purpose, which is to widen the ambit of the qualifying offences set out in clause 59(2). We are talking about investigations of criminal offences in which it is thought appropriate that those helping with the investigation should be provided with some form of anonymity during the course of the qualifying criminal investigation. That relates to clause 61, which we will deal with shortly. Applications can be made to the court to secure an investigation anonymity order.

The intentions behind clause 59 were explained to us, I think, on Second Reading and perhaps also during the evidence session featuring Government Ministers. The Government are concerned that gang crime is going undetected or is not being prosecuted because people are scared to come forward and identify themselves as potential witnesses; that is, as people who have seen, heard or have other relevant evidence to give in relation to offences and to identifying the people who have committed them.

At the moment, under clause 59(2) the Government restrict themselves to outlining the offences of murder and manslaughter. It seems to me that if it is right to have investigation anonymity orders, it is right to extend their ambit beyond offences of murder and manslaughter. Gangs do not just kill people; they also hurt them and inflict non-fatal injuries.

That is why in amendments 404, 74, 406, 75, 405, 76 and 77 we are attempting to increase the types of offence that are covered within this chapter of the Bill. Amendment 406 is probably the widest example, but the others follow the same pattern. Of course, some of the amendments are consequential and adjust the language of the clause to fit the amendment.

Let me go through amendment 406 to explain broadly the principles behind our thinking. What we intend to do through this amendment is to add, at the bottom of clause 59(2)(b), the following subsections. Beyond murder and manslaughter—amendment 404 already seeks to insert “attempted murder”—we suggest:

“(c) under section 18 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm with intent);

(d) an offence under section 20 of the Offences Against the Person Act 1861 (wounding or inflicting grievous bodily harm);

(e) an offence under section 16 of the Firearms Act 1968 (possession of firearm with intent to endanger life);

(f) an offence under section 16A of the Firearms Act 1968 (possession of firearm or imitation firearm with intent to cause fear of violence);

(g) an offence under section 18 of the Firearms Act 1968 (carrying firearm or imitation firearm with intent to commit an indictable offence or to resist arrest);

(h) an offence under section 19 of the Firearms Act 1968 (carrying firearm in public place).’.

All those offences are the sorts of things that, in addition to murder and manslaughter, disobliging members of gangs occasionally do, so it would be sensible to add to subsection (2) if not in those exact terms, then in something similar to them.

Amendment 77 deals with the same clause, of which subsection (3) states:

“The condition in this subsection is that the death was caused by one or both of the following”.

Our amendments would change the provision so that it reads that

“the death or injury was caused by one or both the following—

(a) being shot with a firearm;

(b) being injured with a knife;”—

and thirdly, by including amendment 77—

“(c) any other weapon or means of causing injury including but not limited to hands and feet.”

I have had the misfortune to try any number of cases where people have been severely beaten up by people kicking and punching them, and, beyond guns and knives, there are other forms of weapons, too, such as blunt instruments and domestic appliances—saucepans, frying pans, you name it, Mr. Gale, these unattractive people will lay their hands on anything that they can get hold of to wreak terror. It strikes me that if the clause is to do what it is supposed to do, which is make it easier to prosecute and to bring adducible and relevant evidence to court, it would be sensible not to limit it to murder, manslaughter, firearms and knives, but to extend it as I have suggested.

George Howarth (Knowsley North and Sefton East, Labour)

I have listened to what the hon. and learned Gentleman has to say, and I have a great deal of sympathy with it. From personal experience in my part of the world, I must say that, often, the most lethal weapon is a baseball bat.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

Yes, and at the moment, one cannot get an investigation anonymity order when the terror on the estate or in the locality has been caused by gangs riding around on motorbikes swinging baseball bats. I entirely take on board the right hon. Gentleman’s point, and I hope that, if the Government resist my amendment, he will be able to twist their arm—possibly with a baseball bat.

David Howarth (Cambridge, Liberal Democrat)

My main concern about the provisions is whether they will work—whether they will change behaviour. But, if the Committee will forgive me, I shall reserve my remarks about that until we reach amendment 463 later in the process.

At this point, I want to express my concern about the way in which the clause, in particular, but this whole chapter in general, seem to work. The Bill, as drafted, means that the investigation anonymity order applies in only a very narrow set of cases—only to the most serious crime, only with regard to a very specific group of offenders and only to so-called gang offenders, although the definition of gang is not entirely satisfactory, so we will deal with that later on. It seems that the narrowness is somewhat arbitrary, which is the main thrust of the amendments tabled by the hon. and learned Member for Harborough. Why does the Bill provide only for those specific offences and not for the offences that he  proposes? And why does it provide only for those particular groups of potential offenders? Further on in the clause, we see that apparently arbitrary narrowness is combined with enormous powers to expand the scope of the legislation later.

We will discuss that specifically when we discuss the next group of amendments, but I want to say something about the conjunction of the immense arbitrary narrowness and the power to introduce much broader powers. That is not a good way to legislate, unless there is some sort of pilot to test it out and see whether it works. However, nowhere along the line have the Government said that that is how the measure will operate. I am interested in the Minister’s view on how the legislation will develop in the next few years, and why the Government have chosen such a method.

The amendments tabled by the hon. and learned Member for Harborough have several origins, including the suggestions put forward by Justice. However, Justice’s suggestions did not stop at the measures that he has proposed. They also included proposals to narrow the power to expand the scope of the legislation, which we will propose in the next group of amendments. I am addressing the same problem that Justice is addressing. Why is there a combination of arbitrary narrowness and a great power to expand?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Clause 59 creates, along with other clauses in the chapter, a new tool in the battle against witness intimidation. The clauses underline our determination to get to grips with gang and gun crime. The purpose of the new investigation anonymity order is to encourage witnesses who are in fear of reprisals to come forward at an early stage of an investigation, safe in the knowledge that their identity will be kept hidden.

Some members of the Committee, including my right hon. Friend the Member for Knowsley, North and Sefton, East and I, have come across such problems and will have gang-related crime issues in their constituencies. Of a number of characteristics, gang-related crime tends to be localised to estates or is otherwise geographically limited. Some of us are concerned that if the authorities, especially the police, do not get a grip of it, it will be possible for entire geographical areas to be effectively outwith their control within a few years.

I know of a number of cases. One case from the other side of Liverpool from my constituency—the killing of Rhys Jones—hit the national headlines. It illustrated well that the climate of fear that can be created in a place by the rise of gang-based intimidation and killing can have a real impact on the capacity of the police to bring to justice those engaged in such behaviour.

The hon. and learned Member for Harborough and the hon. Member for Cambridge both asked why the proposed new investigation anonymity order is limited in the Bill. The reason is that we do not want to see them extended to the entire criminal justice system. During the passage of the emergency legislation on witness anonymity last year, which, as promised, we are re-enacting in this Bill, a big concern expressed in the House and in Committee was that introducing anonymity as a matter of course into criminal proceedings was not desirable from the viewpoint of doing justice to the defendant, or from the viewpoint of the fine old common  law principles that have been in existence for a very long time to ensure that defendants can confront their accusers.

We always have to get the balance right, but we are talking about a stage before a case gets to a court or is anywhere near being tried. As this tool is novel, we want to ensure that we introduce it carefully and that it has a useful purpose to fulfil. We hope that it will work, and we think that it will contribute. Obviously, we have not yet tried it in practice. If it does not work, we will not suggest that its use should be extended. We want to ensure that we do not introduce provisions that might leave potential defendants without proper safeguards.

There are already a number of constraints on the authorities’ ability to disclose sensitive information about witnesses, such as data protection legislation and common law confidentiality duties. However, they are not strong enough to address the severe consequences faced by potential witnesses when they are in an area in which a violent gang has committed a crime. We need to ensure that we can extend proper safeguards to witnesses coming forward to give evidence.

What sets the new order apart from the existing arrangements is a new common law offence of breaching the order. The offence is intended to reassure witnesses that they can safely offer their evidence at the beginning of an investigation when it really matters and when witness intimidation is often an issue. It will provide a persuasive reminder that at no time must information that might reveal the witnesses’ identity be disclosed outside the small circle of people who need to know about it. It is that prohibition backed up by criminal sanctions that will give witnesses the confidence to come forward at an early stage to ensure that the police can do their best to bring the perpetrators to justice.

I am glad to say that gang-related homicides remain proportionately rare and tend to be a localised problem in the country as a whole. None the less, for the communities and families affected they create a real problem. The target of the new order will be the area in which the greatest problems lie, including homicide cases that involve guns and gangs. That is why we have applied the order to those offences. The Bill targets the most obvious mischief. The offences may make available investigations into other offences in the future. If they work, it may be something that is considered. That is why the order-making power is there. I am perfectly happy to discuss with the hon. Member for Cambridge the ambit of the order-making power and whether it is appropriate.

The amendment before us greatly broadens the qualifying offences for the new investigation anonymity order. As explained by the hon. and learned Member for Harborough, we do not want, at present, a wider range of cases to be caught by the measures. During the passage of the emergency legislation last year, there was concern about the impact of anonymity becoming too widespread in the criminal justice system, and that is a concern that we all have to have. We want to focus the provisions on these particular offences at present and see whether it works. That is the explanation. We are not seeking to deny that gangs may commit other serious offences in other ways. That is clearly true and the hon. and learned Gentleman knows that from his experience; we all know that. The provisions are new, and are designed to target  a specific problem. We want to see whether they work before we consider extending them.

George Howarth (Knowsley North and Sefton East, Labour)

It may be that the Minister is coming on to this point. If she is, she will forgive me for raising it.

The hon. and learned Gentleman’s amendment, which I indicated that I was quite attracted to when he discussed it, seeks to insert paragraph (c) into subsection (3). It is oddly worded and says,

“any other weapon or means of causing injury including but not limited to hands and feet.”

I agree with the principle behind it; there are other forms of weapon that could be used. Will the Minister commit herself to giving some thought to whether that provision could be widened to take into account other weapons? I am not necessarily talking about today, but could she give it some more thought before we consider the Bill on Report?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I am happy to give some thought to that, but I am conscious of not wishing to extend the ambit of the orders too far before knowing how effective they might prove to be.

Jeremy Wright (Whip, Whips; Rugby and Kenilworth, Conservative)

I understand why the Minister does not want to extend that too broadly, but could she comment on one possible anomaly? She will be aware, as those of us who have practised in the criminal courts are aware, of cases that begin as assaults but end as murder or manslaughter, because the victims have been in hospital and, sadly, died as a result of injuries caused. As I read the clause, during the investigation stage the police would not be able to apply for an investigation anonymity order in such a circumstance. Is there a policy reason why a distinction should be made between cases in which a serious assault later results in death and cases in which a serious assault results immediately in death?

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

Not really; it is about a line—when one has to draw a line, one has to decide where to draw it. The hon. Gentleman might draw it in a slightly different place to where we have chosen to draw it in the Bill as drafted. I am happy to consider the matter further, but I am not making any undertakings to change our current view.

I expected that I might get attacked for introducing anonymity into the criminal justice system in an unjustified way and for too wide a range of offences. Now I am being told that the range of offences is not wide enough. C’est la vie, I suppose. Perhaps we shall come to such criticism at a later stage in our consideration of this part of the Bill. I understand the points made by the amendments. Obviously it is possible to draw a line in a different place, and I am happy to consider the matter further, but I am not promising to change my mind by Report.

I hope that, on the basis of those explanations, the hon. and learned Gentleman might consider withdrawing his amendment.

Edward Garnier (Shadow Minister, Justice; Harborough, Conservative)

I shall certainly consider that—by the time I get to the end of the sentence, I shall have reached a conclusion.

I have two points. In case Justice feels that it has been traduced by my amendments, it is coincidental—I did not see the Justice brief until after tabling the amendments. We were, broadly, testing the same area of law.

On the Minister’s final point about being teased about introducing more anonymity into the criminal law, she is right to be wary of doing so. It is fair to say that, based on how the emergency legislation has been used in the six months since it was passed and on what we heard from those witnesses who spoke about it in the evidence session, it seems at least in relation to anonymous evidence that, despite one or two rough edges, it is working. For our part, we are prepared to see how investigation anonymity orders work too.

I shall not push the matter further. The Minister has said that she does not have a totally closed mind on this issue at least. On that basis, I beg to ask leave to withdraw the amendment.

David Howarth (Cambridge, Liberal Democrat)

I beg to move amendment 461, in clause 59, page 34, line 24, leave out subsection (4).

Roger Gale (North Thanet, Conservative)

With this it will be convenient to discuss amendment 462, in clause 82, page 47, leave out lines 16 and 17.

David Howarth (Cambridge, Liberal Democrat)

The amendments concern the order-making powers. Amendment 461 is most relevant to where we are in the Bill at the moment. Amendment 462 is about clause 82, which is a long way further on but raises a similar issue. However, I do not want to go into any detail about clause 82 at this point—it is probably better to discuss that when we reach it.

I shall focus on amendment 461. The order-making power in clause 59 is, simply put, very broad. In effect, it allows the Secretary of State to add any offences to the list in subsection (2)—parking offences or anything could be added. However, in effect, it also allows the Secretary of State to repeal the section by making an order omitting the two offences in place already, which seems to be a rather extraordinary power.

Clause 59(4) goes on to state that the

“Secretary of State may...amend...so as to add, omit or modify a condition to be satisfied in relation to an offence.”

I am interested in how that relates to the first line of subsection (4), which states that the

“Secretary of State may by order amend this section”.

Clause 59(4)(b) seems to imply that an amendment could be made, not just to clause 59, but to any related clause in the rest of the chapter. There seems to be a contradiction between the way in which the first line is expressed and what is actually in paragraph (b). If, as I suspect, the intention of the paragraph is to allow modification of anything else in the rest of the chapter, it would allow different offences to have entirely different conditions attached to them. For example, the definition of “gang” could differ from one offence to another. That seems to be far too broad, and to allow far too much arbitrariness in the scheme.

If one looks through chapter 1, one will find over and over again, in different clauses, similarly broad order-making powers. It seems to me that the whole of part 3, chapter 1 could have been replaced by a provision stating simply  that the Secretary of State may make provision about anonymity in an investigation. That would be equivalent to what we have. The Minister said that she would be willing to engage in a debate about the broadness of the order-making powers, and I now invite her to do so.

Maria Eagle (Parliamentary Secretary, Government Equalities Office; Liverpool, Garston, Labour)

I understand the hon. Gentleman’s points. His amendment 461 would remove the order-making power, effectively preventing the amendment of clause 59 in the future so as to include further offences. We envisage possible scope for widening the use of the new investigation anonymity order in the future. I myself would not consider widening it very much, which he might find hard to believe, given his points about the extent of the power. Obviously, we would want to widen it only if we found that the orders work, and do something useful in respect of the purposes for which we are putting it on the statute book. Any extension will be considered on a case-by-case basis, and any statutory instrument made under it would be by affirmative resolution, which I hope will give some reassurance to Members that there will be parliamentary scrutiny of any change to the list of qualifying offences.

The hon. Gentleman’s amendment 462 to clause 82 would extend automatic eligibility for special measures to witnesses to certain gun and knife crime offences. That amendment would remove the Secretary of State’s powers to add to, or otherwise amend, the offences in schedule 12. That provision is a sensible precaution to  provide flexibility and to ensure that we do not always require primary legislation to extend the provision to cover future possible offences involving the use of knives and guns. Alongside the Bill is a delegated powers memorandum, and obviously we will give careful consideration to any recommendations by the Delegated Powers and Regulatory Reform Committee in the other place. I have some sympathy with what the hon. Gentleman has said about the breadth of the power and am prepared to look at that. On that basis, I hope that he will withdraw the amendment.

David Howarth (Cambridge, Liberal Democrat)

In the light of the Minister’s final comments, I beg to ask leave to withdraw the amendment.