Frank Cook (Stockton North, Labour)

I remind the Committee that with this we are discussing the following: amendment 378, in clause 70, page 42, line 2, at end insert—

‘(9) Where an application either for permission to make an application for a witness anonymity order or for a witness anonymity order is made to a coroner by a party appearing at an inquest that party—

(a) must (unless the coroner directs otherwise) inform the coroner of the identity of the witness, but

(b) is not required to disclose in connection with the application—

(i) the identity of the witness, or

(ii) any information that may enable the witness to be identified,

to any other party to the proceedings or his or her legal representatives.’.

Amendment 380, in clause 70, page 42, line 2, at end insert—

‘(9) The provisions set out in subsections (4) to (8) inclusive apply as appropriate to applications to a coroner as they do to applications in criminal cases.’.

Amendment 381, in clause 71, page 42, line 5, after ‘proceedings’, insert ‘or an inquest’.

Amendment 383, in clause 71, page 42, line 15, after ‘trial’, insert

‘or the inquest being conducted in a manner consistent with the interests of the parties before it being treated fairly.’.

Amendment 384, in clause 72, page 42, line 33, after ‘proceedings’, insert

‘or a party appearing at an inquest’.

Amendment 385, in clause 72, page 42, line 39, after ‘defendant’, insert

‘or resolving the issues in the inquest’.

Amendment 386, in clause 72, page 43, line 1, after ‘case’, insert ‘or inquest’.

Amendment 387, in clause 72, page 43, line 4, after ‘defendant’, insert

‘, or the witness and any party appearing at the inquest or any associates of any party appearing at the inquest’.

Amendment 388, in clause 72, page 43, line 9, after ‘indictment’, insert ‘or at an inquest’.

Amendment 389, in clause 73, page 43, line 12, after second ‘judge’, insert ‘or coroner’.

Amendment 390, in clause 73, page 43, line 14, after ‘defendant’, insert

‘or a party appearing at the inquest’.

Amendment 391, in clause 74, page 43, line 18, after ‘proceedings’, insert ‘or inquest’.

Amendment 392, in clause 74, page 43, line 31, after second ‘proceedings’, insert ‘or party appearing at the inquest’.

Amendment 393, in clause 75, page 43, line 41, after first ‘proceedings’, insert ‘or at an inquest’.

Amendment 394, in clause 75, page 44, line 18, after ‘defendant’, insert ‘or a party appearing’.

Amendment 395, in clause 76, page 44, line 28, after second ‘proceedings”)’, insert ‘or an inquest’.

Amendment 396, in clause 76, page 44, line 33, at end insert ‘or

(c) the verdict or any finding of fact or law by the coroner or inquest jury, as the case may be, is reviewed by the appeal court.’.

Amendment 397, in clause 76, page 44, line 41, after ‘proceedings’, insert ‘or appearing at the inquest’.

Amendment 398, in clause 76, page 45, line 3, after ‘proceedings’, insert

‘or a party appearing at the inquest’.

Amendment 374, in clause 80, page 45, line 34, after ‘court,’, insert ‘a coroner’s court,’.

Amendment 376, in clause 80, page 46, line 1, after ‘court,’, insert ‘a coroner’s court,’.

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

Good afternoon, Mr Cook, and members of the Committee. At our previous sitting, I was just coming to the end of my remarks to persuade the Committee that it is not necessary, as the amendments seek, to extend the provisions for witness anonymity to the coronial system. I had made most of my arguments, and it is not necessary to repeat them.

Those members of the Committee involved in the Criminal Evidence (Witness Anonymity) Act 2008 will recall that the legislation was brought forward to deal with a problem arising from the House of Lords judgment in the case of Davis. It was not enacted, because we sought to replace common-law rules on witness anonymity with statutory rules. Our hand was made to move, as a consequence of that judgment. That did not relate to anything other than common law, and it was clear that the coronial system was perfectly able to cope as it currently works. On that basis, we do not accept amendments that would extend the breach of the statutory provisions to the coronial system. I hope that my explanation has satisfied those who spoke in the debate and that the hon. and learned Gentleman will be able to withdraw the amendment.

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

I will withdraw my amendment, but I want to make some closing remarks. We all know what the House of Lords decided in the case of Davis, and it is fair to say that, if we follow the judgments from the first instance decision  through to the House of Lords, no central reference was made to the coroners’ courts system. The decision concerned a double shooting that involved a defendant who had fled abroad and who was brought back to the United Kingdom and tried. The trial judge made an order that the House of Lords decided was outside the ambit of the common law, and that the common law could no longer be extended in the way in which the judge had sought.

The House of Lords said that Parliament should make up its mind how best to deal with the matter, and we dealt with it in an emergency sitting last July. At least on the evidence that we have received so far, that system has worked reasonably well, despite the many concerns that others who share my views about anonymity and I expressed at the time. However, nowhere were similar proceedings or procedures for coronial courts excluded, either expressly or by implication. Despite what the Minister has said, I disagree with her reasoning, but I shall not push the matter further. I will invite my noble Friends in another place to consider the matter at greater leisure than we have at the moment. I beg to ask leave to withdraw the amendment.

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

I beg to move amendment 196, in clause 70, page 41, line 16, after second ‘court’, insert ‘in writing’.

Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss amendment 202, in clause 70, page 41, line 23, after ‘court’, insert ‘in writing’.

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

I have two short points, which need not detain the Committee too long. Clause 70 deals with applications for witness anonymity orders. Subsection (2) includes a requirement that, if the prosecutor is making the application, he should inform the court of the identity of the witness. Subsection (3) deals with the mirror procedure for a defendant’s application; they, too, must inform the court, and the prosecutor, of the identity of the witness. On subsection (2), we are simply suggesting that the information from the prosecutor to the court should be in writing. A defendant’s application, too, must be made in writing to the court—I have deliberately not suggested that it should be in writing to the prosecutor.

I say that from personal experience. Far too often in the Crown court, applications seem to bounce up and down without anyone really being prepared for them, partly because people do not communicate with each other sufficiently—the Crown Prosecution Service does not talk to the police, the police do not talk to the CPS, no one talks to witnesses and everyone turns up in court, almost by chance, on the same day to deal with the same issues, although sometimes they do not. The amendments are a plea for the Government to urge those who administer the prosecution system to talk to each other through a system that does not lead to confusion by communicating in writing.

It might be suggested that my proposal is too inflexible—I appreciate that sometimes applications have to be made quickly or in unforeseen circumstances. I am not pressing the Committee to vote on the issue; I am simply urging the Government to encourage those engaged in such  activity to speak to each other, to communicate and to prevent unnecessary and foreseeable delays in the administration of particular trials.

Tim Boswell (Daventry, Conservative)

Briefly, I endorse the comments of my hon. and learned Friend, who has much more court experience than almost anyone in the Room—I do not claim to have that.

I am interested in the audit trail of such proceedings. If nothing is said in writing, the basis of what is being done is not at all clear. I presume it would be possible to go back into the CPS file and see what the deliberation was, and it is important that the court should have some tidiness in the matter. I understand the need for urgency and that circumstances might arise at short notice, but the question arising is whether, if not in writing, there should be some record, such as an e-mail, that would be as acceptable as writing. However, a hasty phone call, in which details such as the first name are mistranscribed, is not sufficient.

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

The amendments would require the prosecutor or defence to inform the court of the witness’s true identity in writing when making an application for witness anonymity. I understand the points of the hon. and learned Gentleman and of the hon. Member for Daventry, but, when the prosecutor or defence is making a witness anonymity application, amendments 196 and 202 go too far, because it is not normal or usual for a statute to lay down precise procedures that the court should adopt. Clause 72 already makes it clear that the court must be informed of the witness’s identity unless, in the case of a prosecutor, the court directs otherwise, but the usual way of making sure that the procedures used are correct is for them to be set out either in a judicial practice direction or, more usually, in the rules of the court.

The Committee will recall that the provision was in emergency legislation in its first incarnation, and a judicial practice direction was issued, which has been governing how the courts do what the Act gives them power to do. That is how it has been done since the passage of the emergency legislation. The court determines the application in accordance with the requirements and tests set out.

The criminal procedure rule committee chaired by the Lord Chief Justice is considering draft rules on witness anonymity applications, which are intended to replace the practice directive once the witness anonymity provisions are re-enacted—provided, of course, that they are. The rules will take account of the experience of practitioners when operating the current procedures, and I am sure that the committee will consider such matters as those raised by the hon. and learned Gentleman and any that arise during parliamentary debate. On that basis, I hope that he agrees that such detailed matters of procedure are best left, and can be safely left, to the criminal procedure rule committee, which is the appropriate place for them. Under those circumstances, I hope that he will be happy to withdraw his amendment.

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

Of course I will. I just want to reassure my hon. Friend the Member for Daventry that I was after some communication. It does not matter whether it happens by fax, letter or e-mail, because there is nothing more frustrating than trying to keep a trial moving when it breaks down due to some administrative  Horlicks. If the procedure rule committee can deal with that and take it on board, all well and good, but it is no good our passing all these wonderful pieces of legislation if, in their implementation and administration, they break down. I beg to ask leave to withdraw the amendment.

David Howarth (Cambridge, Liberal Democrat)

I beg to move amendment 100, in clause 70, page 41, line 44, at end insert—

‘(7A) On any application for a witness anonymity order, the court must consider whether the appointment of special counsel to assist the court in deciding whether to grant the order would contribute significantly to the fairness of the proceedings; and if the court decides not to appoint special counsel, the court must give reasons.’.

Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss amendment 379, in clause 70, page 42, line 2, at end insert—

‘(9) The court may in its discretion appoint counsel to assist it when considering an application for permission to make an application for a witness anonymity order or an application for a witness anonymity order.’.

David Howarth (Cambridge, Liberal Democrat)

We come to some unfinished business on the debate about the Criminal Evidence (Witness Anonymity) Act 2008, the emergency legislation to which the Minister has referred. One notable omission from the 2008 Act was any explicit provision for the appointment of independent or special counsel to assist the court in deciding whether there should be an anonymity order. The template for last year’s legislation was, roughly, an Act from New Zealand, the Evidence Act 2006, which allowed and, indeed, encouraged the court to appoint independent counsel to assist it in coming to its decision. In New Zealand, the independent counsel is appointed, undertakes investigations and reports to the court, about both the necessity for anonymity and the credibility of the witness.

Last year, many of us thought that we should make similar provision in this country for two reasons—for the purposes of the defence, normally, but for the purposes of the prosecution, too. From the point of view of the defence, there will be cases in which there is doubt about whether the credibility of the witness really is an issue. The prosecution might think that there is no particular problem with the witness’s credibility, because, in the prosecution’s view, the witness was a bystander who simply saw an event. The question is whether they recall accurately what they saw, as opposed to being a witness who might be hostile to the defendant because of some other relationship.

Cases will occur when it is not clear in advance whether the credibility of the witness is an issue. The hon. and learned Member for Medway (Mr. Marshall-Andrews) made that point vividly in our debates on the Floor of the House last year. In such cases, independent counsel should be able to carry out an investigation on behalf of the court, so that they know the nature of the case before deciding whether to grant an order. The independent counsel would not decide the matter, but they would be able to investigate in a way that would not be possible if the case were to proceed simply on the  basis of what the prosecution said. Obviously, the defence cannot play an active role, which they can only do if they know who the witness is.

On the other side, independent counsel could be a safeguard for the prosecution in cases when a court is uncertain whether it should grant an order and does not have enough evidence before it to do so. In such cases, independent counsel could come in and help the court to decide in favour of an order. There are some cases—not all—in which independent counsel would make the process fairer for both sides.

Last year, the Government resisted all attempts to put a power to appoint independent counsel in statute. Ministers argued that independent counsel were appointed in the Davis case, which the hon. and learned Member for Harborough has mentioned, but made no difference to the outcome or fairness of the proceedings. As we have discovered, the trouble with that argument is that independent counsel were appointed only at Court of Appeal stage—there was no independent counsel at the original trial stage—so the example was not relevant or important.

The debate continued vociferously, especially in the House of Lords and, in the end, the Secretary of State for Justice undertook to give “active and urgent consideration” to providing an explicit power to appoint independent counsel before publishing the permanent replacement Bill, which we are discussing. At that time, Ministers also claimed that the courts already had an inherent power to appoint special counsel, but that turned out to be a power to ask the Attorney-General to do so, which was slightly less direct than a court appointing counsel. Nevertheless, Ministers undertook to remind the judges of the possibility, which they did.

The Attorney-General has issued guidelines on the prosecutor’s role in applications for witness anonymity orders under the Criminal Evidence (Witness Anonymity) Act 2008 that refer to the possibility of independent counsel. However, the guidelines are quite disappointing. They maintain the line that the appointment of special counsel should be exceptional. I am not sure whether “exceptional” is the right test. The test is taken from public interest immunity law, which involves a very different set of circumstances. In PII cases, witness credibility is less important, and it is rarely an issue at all. Frustratingly, the guidelines also assume that, in PII cases, independent counsel somehow represents the defendant. That was never the intention of those of us who proposed independent counsel. The Government claimed that there was some confusion in the proposals, but there never was. We always wanted to follow the New Zealand proposal that the independent counsel should assist the court. That is similar to the situation in a coroner’s court, which we have spent a long time discussing. The counsel is to the court rather than to the defendant, and amendment 100 addresses that problem.

There is a question whether there should be a test for the appointment of special counsel. I originally took the view that there should not be, and that such appointments should be completely at the discretion of the court—there is a Conservative amendment to that effect. However, in the spirit of compromise, I am offering a slightly more restricted test, namely that when an order is applied for,

“the court must consider whether the appointment of special counsel to assist the court in deciding whether to grant the order would contribute significantly to the fairness of the proceedings”.

It has to consider whether independent counsel would

“contribute significantly to the fairness of the proceedings.”

Its only duty is to consider that question and then to give reasons, if it thinks that it is not a case where counsel should be appointed.

That is a compromise proposal involving a more restrictive set of circumstances. The words are deliberately taken from the judgment of Lord Chief Justice Judge in the Mayers Court of Appeal case, which is, I believe, the only Court of Appeal case that has considered the provisions of the 2008 Act in detail. He said that there are cases where independent counsel would contribute significantly to the fairness of proceedings, and that there other cases where the appointment of independent counsel would not contribute in any important way.

I make no apologies for returning to the issue. I ask the Government to say why they have not taken the issue forward as a result of their deliberations and offer them a third way forward.

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

The hon. Gentleman has no need to apologise—that is a perfectly legitimate argument. There is an overhanging controversy from last July which needs to be resolved, and he and I are entirely right to press the matter.

There is a semantic difference between his amendment 100 and amendment 379, which was tabled by me and my hon. Friend the Member for North-West Norfolk. As the hon. Gentleman has correctly pointed out, we expressly used the word “discretion”:

“The court may in its discretion appoint counsel to assist it when considering an application for permission to make an application for a witness anonymity order or an application for a witness anonymity order.”

That aside, we are broadly pushing at the same door and we want the Government to open it.

As the hon. Gentleman also said, there is only one Court of Appeal case so far where the 2008 legislation has been considered. However, similar issues in relation to the appointment, or otherwise, of special advocates have been considered by the House of Lords, although not in relation to anonymity orders, because the statutory regime did not exist until last summer. There is some guidance, however, that is worth considering when looking at the question of the appointment of special advocates in criminal cases.

That learning is not novel to the editors of “Archbold”, but it is novel to me, and it may be entirely novel to others who have not studied the question quite so closely as the editors of “Archbold”. In the case of Regina v. H, a House of Lords decision of 2004, which concerned article 6 of the European convention on human rights in relation to public interest immunity and the absence of someone to speak for the defendant, there is some helpful guidance to be found.

The appointment of a special advocate in appropriate cases may be necessary to ensure that the contentions of the prosecution are attested and that the interests of the defendant are protected. In cases of exceptional difficulty, the court may require the appointment of special counsel to ensure correct answers to questions, such as:

“What is the material which the prosecution seek to withhold? This must be considered by the court in detail.”

Or

“Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should”,

subject to other matters, “be ordered”.

I appreciate that we are dealing with public interest immunity applications, but the hiding or revealing of certain information at the hands of the prosecution is a hugely important question that the court may, in more difficult cases, need assistance with. They will not get it from the defendant’s counsel, because they do not know, and the prosecuting counsel will have a different interest, so independent counsel acting for the court as opposed to the parties can sometimes be of assistance.

The judgment in R v. H said that to contend on the basis of some earlier cases

“that it is automatically incompatible with Article 6...for a judge to rule on a claim to public interest immunity in the absence of adversarial argument on behalf of the accused where the material which the prosecution is seeking to withhold is, or may be, relevant to a disputed issue of fact which the judge has to decide in order to rule on an application which will effectively determine the outcome of the proceedings, was to seek to place the trial judge in a straitjacket; the consistent practice of the European Court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, and to avoid laying down rigid or inflexible rules.”

That is why we built in to our amendment an express reference to discretion.

“The overriding requirement was that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone was to ascertain what justice requires in the circumstances of the particular case. Cases would arise in which the appointment of an approved advocate as special counsel was necessary, but such an appointment should be exceptional, never automatic, and not ordered unless the judge is satisfied that no other courts will adequately meet the overriding requirement of fairness to the defendant. Where the disclosure test...is faithfully applied, the occasions on which a judge will be obliged to recuse himself because he has been privately shown material damning to the defendant will be rare.”

The editors of “Archbold”, in dealing with the case and the speeches of H, then go into more detail in relation to PII, but the overall principles—a need to ensure fairness and that prosecution propositions are properly tested, particularly where they cannot be tested by defence counsel, and a need to protect the interests of the defendant and to ensure the overall interests of justice—are just as key in anonymity applications under these clauses as they are in PII matters. It seems, therefore—I hope that I have not misinterpreted what the hon. Member for Cambridge has said—that this is not just an interesting academic discussion. It is a matter of real procedural practicality, and it is necessary to ensure that justice is done in what I fully accept are very difficult cases.

Davis threw up a very difficult challenge to Parliament. I think that we met it reasonably well, but we missed out on the special advocate point, which I think needs to be resolved. If the Minister can persuade me that there is sufficient discretion within the system already, under the inherent jurisdiction, to allow the appointment of special advocates, I would be interested to hear it.

Greater comfort would be given to those of us who share the arguments that have been put forward so far if something expressly appeared in the Bill, because it is  something that the public need to be assured about, criminal law practitioners need to be clear about and judges would welcome guidance on. Yes, judges have guidance from the higher courts, but if Parliament expressly answered the question put to it by the Law Lords in the case of Davis—that is to say, it is up to Parliament to sort it out—the whole criminal justice system would be advantaged.

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

I am happy to try to deal with the points raised by hon. Members. The matter was discussed at some length—to the extent that “length” is a word that can be applied to the proceedings on the emergency legislation—last year. In relative terms, it was discussed at some length and was clearly a point at issue in both the Commons and in the other place.

The hon. and learned Gentleman has quoted extensively from “Archbold”, which has taken quite a time to make its debut in Committee. However, the matter will not cause a dispute, because the current practice direction that was issued following the passage of the emergency legislation last year, which is the basis on which the court must currently deal with the orders, quotes from R and H and uses the very wording of the case in “Archbold” that he has referred to.

Tim Boswell (Daventry, Conservative)

Will the Minister tell the Committee how many cases have arisen since that judgment?

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

There have been two applications to the Attorney-General for special counsel to assist with an anonymity application. They have both been granted.

Following the implementation of the emergency legislation, the practice direction set out by the then president of the Queen’s bench division quoted some of the same words that the hon. and learned Gentleman has just quoted from R and H. The practice direction said that the court may ask the Attorney-General to appoint special counsel to assist, but that it must be kept in mind that such an appointment will always be exceptional, never automatic, and a course of last and never first resort. In addition, such an appointment should not be ordered unless and until the trial judge is satisfied. No other course will adequately meet the overriding requirement of fairness to the defendant.

There has also been some reference to R v. Mayers, which to my knowledge is the only case—there were a number of cases attached to it—within which these matters have been considered by the Court of Appeal since the passage of the emergency legislation last year. That case sets out an authoritative summary of the law relating to special counsel and the hon. Member for Cambridge made some reference to it. Nothing in the legislation says that the judgment in R v.Mayers is the lead judgment, and we can see no justification for any blanket rules about special counsel, one way or the other. Sometimes special counsel might contribute significantly to the fairness of the process, and sometimes not. Furthermore, the judgment went on to say that if a 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.

However, the services of special counsel may 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 obligation to the prosecution in the context of a witness anonymity application goes much further than the ordinary duties of disclosure. On that basis, the court was saying that the current arrangements are about right; it was not saying that there needs to be a provision that enables—and in the case of amendment 100, requires—a court to consider whether special counsel is appropriate in every single case.

During the passage of the legislation, my right hon. Friend the Justice Secretary clearly undertook to consider this matter in detail. We have done so. On 3 December, my right hon. Friend wrote a letter to Front Benchers. I hope that the hon. Member for Cambridge received that letter, because he did not refer to it in his remarks. The letter set out our reasons for deciding not to include the measure. Having given the matter consideration, we do not agree with the suggestion in the amendments that provision for special counsel should be put in the Bill in respect of every application—or that it should, at least, be considered in respect of every application. We believe that the current arrangements appear to be working well. If special counsel has been requested of the Attorney-General, those requests have been granted.

Amendment 100 tabled by the hon. Member for Cambridge would require a court, before determining all witness anonymity applications, to consider whether the appointment of special counsel would contribute significantly to the fairness of proceedings and if it decides not to appoint special counsel it would be required to give its reasons. Conservative amendment 379 provides, more simply, for the court to appoint special counsel at its discretion. There are problems with both amendments. Courts may already ask the Attorney-General, if they feel that it would be helpful in the circumstances, and there does not seem to be any problem with that. So far, where a special counsel has been requested that request has been granted.

Tim Boswell (Daventry, Conservative)

Will the Minister assure us that that will not give rise to any delay either?

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

No, I am not aware that it does. I am certain that such a request would be handled swiftly by the Attorney-General’s office.

David Howarth (Cambridge, Liberal Democrat)

One possible problem has already arisen during our debate. The test put forward in Mayers, which is the test contained in amendment 100, is arguably different from the one in R v. H., because the latter case talks about “exceptional” and is generally talking about some advantages and disadvantages, whereas Mayers contains a more specific test about significant contribution to fairness. Will the Minister say on record, for future reference, that she does not intend, by re-enacting these provisions, to displace what the Court of Appeal said in Mayers?

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

I have no intention of displacing what the Court of Appeal said in Mayers by re-enacting these provisions. I hope that I have convinced both hon. Gentlemen that the current arrangements work and that if a judge in a particular instance feels that the circumstances are such that special counsel would assist  and would help to do justice, they can request that from the Attorney-General, who will swiftly deal with that request, as we have seen so far, in the affirmative. It would not be helpful to put more prescriptive requirements in this regard into the Bill.

On that basis, I hope that the hon. Member for Cambridge is content and will ask leave to withdraw the amendment.

David Howarth (Cambridge, Liberal Democrat)

I am glad that the Minister was able to say that she does not intend, by what is happening today, that the substantive test advanced by the Court of Appeal in Mayers should in any way be altered. That means that the only difference between us is about procedure, not the substance of the law.

Amendment 100 tries to express in statutory form the test put forward by the Lord Chief Justice in Mayers. Over and above that it would add a procedural element, in stage 1, where the court is required to think about the test and to say why it is has come to a decision not to go for special counsel in stage 2, if that is what it does.

Given that the Minister and I are not apart on the substance of the law and are only divided by a procedural issue—although I reserve the right to come back to the amendment at another stage or to ask my noble Friends in the other place to think about the matter—I beg to ask leave to withdraw the amendment.

Frank Cook (Stockton North, Labour)

With this it will be convenient to discuss new clause 37—Prosecution not to disclose identity of witness to other defendants—

‘Notwithstanding anything in the Criminal Proceedings and Investigations Act 1996 or any other rule of law about disclosure of material by a prosecutor to the defence, where an order is made following an application under section 70(3) in a case in which there is more than one defendant, the prosecutor shall not disclose to the other defendants the identity of the witness covered by the order or any information that might enable the witness to be identified.’.

David Howarth (Cambridge, Liberal Democrat)

The new clause, which is in my name and that of my hon. Friend the Member for Cardiff, Central, relates to a technical matter and refers back to another discussion that occurred during the short debates on the 2008 Act. It starts with the issue of the inequality between a prosecutor applying for an anonymity order for one of the prosecution’s witnesses and the defence applying for an anonymity order on behalf of one of the defence witnesses. The inequality, which was created by the 2008 Act, is still present in clause 70. When the prosecutor applies for an order, they must inform the court, but no one else, of the identity of the proposed anonymous witness. On the other hand, when the defence applies for such an order for a defence witness, they must inform not just the court but the prosecutor of the identity of the witness.

I do not want to go through the debate that we had last time. Arguments that did not stand up were made for the inequality, but one argument in its favour seemed to have at least some merit. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) put forward the justification that in cases involving  multiple defendants, the prosecution has a duty to disclose relevant matters if information comes to their attention that would tend to exonerate the other defendants. Without knowing the identity of the anonymous witness, the prosecution would not be in a position to fulfil that duty.

The problem with that argument, however, is that it does not cover all the circumstances that might arise under the orders. Clause 70 says that the defence does not have to disclose the identity of its anonymous witness directly to the other defendants in a multiple-defendant case. The reason is quite clear. Often, in multiple-defendant cases, the problem of witness intimidation is much more likely to come from the associates of the other defendants than it is from the prosecution or the police. That is the central point.

Clause 70, as it stands, attempts to keep the identity of the anonymous witness away from the other defendants in the normal course of events, but it does not prevent that identity from getting to the other defendants via the prosecution and its obligation to disclose that identity under the normal rules of disclosure in the Criminal Proceedings and Investigations Act 1996. The question, then, is how the clause’s policy, which is that the identity of the anonymous witness should not go to the other defendants, fits with the policy of the 1996 Act, which favours disclosure. The Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston said previously that it was possible under the 1996 Act for the prosecution to apply for an exemption, on the grounds of public interest, in relation to disclosing the identity of the anonymous witness. However, the trouble with that is that it is only a power to apply.

Tim Boswell (Daventry, Conservative)

Does the hon. Gentleman not agree that there is also some distinction between the public interest on the one hand and the defendant’s interest on the other, which is what is supposed to be being addressed?

David Howarth (Cambridge, Liberal Democrat)

Yes, that is a point. The decision whether to allow the information to be withheld might take both into account in different ways. There is only a power to apply, and the application might be refused. What was said previously is some comfort in that sort of case, but it does not quite work: it does not prevent the identity of the anonymous witness from getting to the other defendants via the prosecution. In such cases, the new clause is simple designed to prevent the identity of the anonymous witness reaching the other defendants through an indirect route. The new clause is fully in line with the policy of clause 70, and it is a loophole that I hoped that the Government had found a way of filling—but unfortunately, at the current stage, they have not. I admit that my way of grasping the new clause may not be perfect, but there is a problem that must be solved.

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

I am grateful to the hon. Gentleman for tabling the new clause. The fact that I cannot accept it—for reasons that I will explain—gives me an opportunity to set out our views. It is an important technical issue, and I assure him that since he raised it, we have not been twiddling our thumbs and not bothering to think about it, even though we have not tabled any amendments to the Bill.

As the Committee will be aware, the Criminal Procedure and Investigations Act 1996 requires the prosecutor to disclose to defendants, including every defendant in a multi-handed case, any material that might reasonably be considered capable of undermining the prosecution or assisting the defence. In principle, therefore, the identity of a witness can be disclosed under those rules on occasion in the same way as any other material, depending on the circumstances of the case. The issue that the new clause invites us to address is the extent to which the anonymity order trumps the CPIA disclosure duty—that is a crude way of putting it, but I think that that is issue that the hon. Gentleman raised.

The 2008 Act did not explicitly attempt to combine the anonymity and disclosure laws—it stands alongside the CPIA in the same way in which the common law anonymity rules did before that legislation. The Bill does the same, but not because we have not been thinking about the issue since. As a matter of practice, the prosecutor, in addition to making an application for an anonymity order—I said this last time—may sometimes also decide to make an application to the court to be allowed not to disclose the witness’s identity to one or more defendants on public interest immunity grounds, which involves the multi-handed cases that the hon. Gentleman has mentioned. As I explained to him when he raised the subject in the House, it does not seem sensible to have two different processes trying to cover the same piece of information and have it kept quiet using two different procedures. We have, however, since the 2008 legislation was enacted, looked carefully at the relationship between the anonymity legislation and the CPIA.

The strict conditions for making an anonymity order will encompass the criteria that the court applies before ordering a non-disclosure of prosecution material on the grounds of public interest immunity. Under those circumstances, having two applications does not make sense and will waste the time of the court and the resources of the prosecution and the defence. Our policy is to see that there is no need for unnecessary duplication, and we consider that both the 2008 Act and the Bill achieve that.

Measures directed as part of a witness anonymity order, which provide for the non-disclosure or redaction from materials of identifying details of a witness, will operate to qualify a duty that would otherwise operate under the CPIA. That does not mean that we completely disregard the rules under the CPIA in respect of other kinds of material; we do so only to the extent that the court, on the witness anonymity order application, considers it necessary to do so. That is consistent with the wide discretion available to the court on the directions that it makes in a witness anonymity order.

We have considered placing explicit provisions to that effect on the Bill, which is in effect what the hon. Gentleman’s new clause would do, or amending the CPIA accordingly. But we reached a conclusion that it is unnecessary to do so. In our view, no sensible court—they are all sensible—would conclude that if an anonymity order were made with directions to the protection and non-disclosure of the witness’s identity, that identity should either be passed through to another defendant under the CPIA rules, or it might be necessary to go  through an identical process in determining whether that disclosure should happen. The terms of the witness anonymity order will operate to limit the obligations of the CPIA, although I accept that the hon. Member for Cambridge has spotted an overlap.

I will move on to the detail of the new clause. We are concerned about the use of the wording “the other defendant”, as that might be taken to imply that an anonymity order is necessarily made in respect of a particular defendant—it is not. Neither is it made only in respect of a defendant in whose case the anonymous witness gives evidence. An anonymity order is made in respect of a witness and may apply to all defendants in the case. When the court considers the grant of an anonymity order, it must have regard to the impact on all defendants, and “the defendant” in clause 71(4) is to be construed accordingly. That is why clause 70(6) requires the court to hear representations from all parties following the 2008 legislation. That is reinforced in clause 69 by reference to withholding the identity from

“materials disclosed to any party to the proceedings.”

We will hear in a moment whether that satisfies the hon. Gentleman and whether he moves his new clause. However, on that basis, we do not believe it to be necessary.