Criminal Evidence (Witness Anonymity) Bill

Orders of the Day — Consolidated Fund (Appropriation) (No. 2) Bill – in the House of Commons at 4:32 pm on 8 July 2008.

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Order for Second Reading read.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice 4:49, 8 July 2008

I beg to move, That the Bill be now read a Second time.

In my statement to this House on 26 June, I set out the reasons why the Government found it necessary to bring forward this emergency legislation following the Law Lords' judgment in the case of Davis. There is no need for me to rehearse at length the arguments that I presented to the House on that occasion. I will just outline briefly the background. It is as follows.

On 18 June, the Appellate Committee of the House of Lords—the Law Lords—unanimously overturned an earlier and also unanimous decision of the Court of Appeal criminal division that had allowed the use of anonymised witness evidence in certain criminal trials. The senior Law Lord, the noble Lord Bingham, looked at the common law and found that the courts had arrived at a position on anonymised evidence that was

"irreconcilable with long standing principle".

Their lordships also held that the processes used in the particular circumstances of Davis had rendered the trial unfair under article 6 of the European convention on human rights, although they accepted that, in principle, anonymised evidence was not inconsistent with article 6.

Overall, Lord Bingham said that the matter may now

"very well call for urgent attention by Parliament".

Lord Mance endorsed that approach, to deal with what he said was

"the undoubted—and there is reason to think growing—threat to the administration of justice posed by victim intimidation".

The Government—and, I am glad to say, the House—have accepted their lordships' invitation urgently to consider filling the void that was left by their judgment of 18 June. Although many points were raised when I made my statement on 26 June, there was widespread approbation across the Chamber for the necessity of introducing an emergency Bill.

There has been an intensive period of consultation since my statement, the product of which is reflected both in the Bill as introduced and in the Government amendments standing in my name. I am very grateful indeed to the spokesman for the official Opposition and to the Liberal Democrats for the constructive approach that they have adopted in the course of the consultation. In the intervening period, too, we have sought the most up-to-date information available from the Crown Prosecution Service regarding the scale of the use of anonymous witness evidence. A paper including that information was published Thursday last alongside the Bill.

In a snapshot survey, the CPS identified around 580 cases that it considered current. Of those, 290 involved undercover police officers completing test purchases of drugs, approximately 40 were live cases involving undercover police in other investigations and 50 were live cases involving members of the public as witnesses. The balance, of approximately 200 further cases, include those in which the defendant either has been convicted but not yet sentenced or is still able to appeal under the 28-day limit. It is the live cases that will attract the greatest concern if we do not legislate immediately. It is essential that we legislate, for those cases typically involve the gravest of crimes—crimes relating to guns, gangs and drugs, for example—which give greatest cause for public concern.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does the right hon. Gentleman know in how many of the live cases the defendants are in custody or on bail, which may make a difference to the House's view?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I do not have that information offhand, but I shall seek to find out whether it can be provided to the House later today. However, judging by the seriousness of the offences involved, there is a high probability that almost all those defendants will be in custody.

There is much else that we are doing to tackle those crimes, which strike so much fear among the public. We have upped the minimum sentence for knife crime, from two years to four, and established a minimum sentence for the carrying of guns. Last September, my right hon. Friend the Home Secretary set up a guns and gangs action programme in parts of four cities—London, Birmingham, Liverpool and Manchester—where the problem has been most prevalent. Since the announcement, there has been a 51 per cent. drop in firearms-related injuries and a 27 per cent. drop in all recorded firearms offences in those four areas. In the programme area in London, there has been a 53 per cent. drop in firearms offences and a 68 per cent. drop in such injuries. Sentence lengths generally have increased, too. One key driver of the dramatic increase in the prison population over the past 11 years has been a 60 per cent. increase in the number of serious and violent offenders brought to justice and then incarcerated for long periods.

Anonymised evidence and the safety of key witnesses are fundamental to getting the nasty, greedy and ruthless criminals who perpetrate those crimes off the streets. Assistant commissioner of the Metropolitan police, John Yates, said in an article in The Daily Telegraph on 21 June responding to the Davis judgment that, as a result of the provision for anonymised evidence taking, the detection rate for such murders—yardie, Operation Trident murders—had risen to about 85 per cent., up from, he said, around 40 per cent. in the mid to late 1990s.

However, the proportionate use of such evidence goes much wider than that. Undercover police officers and agents need protection if, for example, drug dealers and terrorists are to be brought to trial. So do communities where criminality and intimidation may not have quite the same life-threatening consequences, but can still ruin the lives of decent people. Closing down an off-licence that is selling drink to juveniles and acting as a magnet for drug dealing and disorder could be dismissed as trivial from the comfort of a leafy part of town, but not if it is down your street. The Bill seeks to ensure that when there is witness intimidation of a serious kind, and when other measures of witness protection, many of which have been put on to the statute book in recent years, are not adequate for the task, the evidence of the witness can be anonymised if the court accepts it and it is regarded as fair.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Like the Secretary of State, I do not want to see any more knife or gun crime on our streets, and I understand the serious problem of witness intimidation. However, will he address a problem that many people have raised: that an anonymised witness system makes it possible for old scores to be settled in a totally different way, and for a miscarriage of justice to take place? That will create two problems. First, the wrong person is in prison; secondly, the wrong person—the wrong 'un—is outside causing mayhem in the future. We could end up with something worse than the present system.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

My hon. Friend is entirely right to draw attention to one of the dangers of taking anonymised evidence. It would serve no purpose for us to pretend otherwise. In principle, as the Law Lords accept—along with everyone else—it must be right, and fundamental to a fair trial, for someone accused of any crime, particularly a serious crime but self-evidently and by extension a trivial one, to have the right to confront his or her accuser, to know the accuser's identity and to challenge his or her motives.

One of the challenges with which the courts have had to deal in the past, having established before the Law Lords' judgment that in certain circumstances it was permissible in common law to use anonymised witnesses, and also the key challenge that we faced in drafting the Bill, is the need to ensure as far as possible first that a witness anonymity order is not granted unless and until the judge considers it necessary under the scheme of the Bill, and secondly that the circumstances in which it is granted give the defendant the maximum opportunity to challenge the credibility of the witness, although the identity of that witness has been kept from him or her. It is not unusual in some of the very serious cases with which we are dealing for the witness for the prosecution to have a grudge, and he or she may well have previous convictions for violence. That does not necessarily render his or her evidence unworthy or untrue, but of course it raises questions about it, and we must be very careful for that reason.

Let me explain the scheme of the Bill; this may give my hon. Friend Jeremy Corbyn some reassurance. Clause 1 introduces the concept of statutory "witness anonymity orders" and abolishes the common-law rules. The Bill deals only with criminal proceedings because the House of Lords judgment in Davis concerned criminal proceedings alone. There is no change in the position in relation to civil proceedings. Clauses 2 to 8 set out the nature of the orders and who can make them. As I told Mr. Cox after my statement on 26 June, they can be sought by either the prosecution or the defence.

A key part of the Bill is contained in clauses 4 and 5, which relate to the conditions and considerations involved in the making of an order. Clause 4 sets out the three conditions: that the order is necessary to protect the safety of the witness or other person or to prevent any serious damage to property or real harm to the public interest; that the measures would be consistent with the defendant's receiving a fair trial; and that it is necessary to make the order in the interests of justice.

Clause 5 sets out the considerations to which the court must have regard. These include whether the witness's evidence could be properly tested without his or her identity being disclosed—a point I make to my hon. Friend the Member for Islington, North; whether there are reasons to believe that the witness may not be credible; and whether alternative means short of a witness anonymity order could be used to protect the witness's identity.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

Would it be possible for the anonymity not to be complete? For example, if the witness were to be screened, would it be possible for the screen to apply only to the defendant, or certain people in the court, but not to the judge and jury, who may need to take into account the demeanour of the witness in deciding on the truthfulness of their evidence?

J

A very good question. Congratulations!

John Nightingale

Submitted by John Nightingale

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I can reassure my hon. Friend on that. In all the cases that I am aware of, the identity of the witness is known to the judge, and the screening—and, for example, the mechanical disguising of the voice—is for the defendant and his representatives, but the jury can see the witness. Therefore, such special measures are put in place—and precisely those arrangements were put in place in the case of Davis, which was the subject of the Law Lords' judgment. [Interruption.] My hon. and learned Friend the Solicitor-General points out that clause 2(4) sets out the conditions. It states: "Nothing in this section"—or, indeed, in the Bill—

"authorises the court to require—

(a) the witness to be screened to such an extent that the witness cannot be seen by—

(i) the judge or other members of the court (if any);

(ii) the jury (if there is one); or

(iii) any interpreter or other person appointed by the court to assist the witness", and the witness's natural voice has to be heard by those three.

In addition to the five conditions in clause 5(2), following suggestions I have received, an amendment tabled in my name proposes that courts must act so as to have regard to whether the evidence might be the sole or decisive evidence before granting anonymity. That was a concern for the Opposition parties and others, and it was central to the judgment in Davis. This is not a bar on the granting of an anonymity order, but it will be stated as a consideration in the legislation.

The Bill will come into force on Royal Assent, hopefully before the summer recess. The House, however, is well aware that there are a number of cases in the pipeline, and that there may well be defendants who have already been convicted who would seek to make out-of-time appeals, either directly or via the Criminal Cases Review Commission, in the light of their lordships' judgment. Clauses 10 and 11 will therefore ensure that the new law can also apply to any proceedings in cases of this kind.

Clause 10 applies to proceedings and trials that are already under way. In essence, the judge has to look at existing common-law orders, which are already made, and decide whether they could have been made under the new law. If the witness has already given, or has started giving, his or her evidence and the judge concludes that the defendant cannot receive a fair trial, subsection (7) tells the judge that he must make suitable directions for bringing the trial or hearing to a conclusion, and that includes the possibility of a retrial.

Clause 11 applies to proceedings that have been completed. The appellate court then has to consider whether the new statutory anonymity order could have been made under the new law. It must treat the conviction as unsafe if it concludes that the defendant had not received a fair trial.

The remaining clauses relate to interpretation, commencement and extent.

Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

Will the Secretary of State briefly explain why most of the Bill does not apply to Scotland, and what they do there?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

They do things differently, and they always have done. Sir Menzies Campbell, who is present, is a good Scots lawyer, and one of the things I learned on almost the first day I began studying English law was that I would gradually become acquainted with the legal systems of Ireland, Australia, Canada and Malta, but never of Scotland. [Interruption.] Yes, and of Essex, too. My hon. Friend will therefore forgive me if I do not go down a path—

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I refer the right hon. and learned Gentleman to the interesting report produced by Mr. Clarke.

The Bill will cover England, Wales and Northern Ireland, and Scotland and the Crown dependencies as well in respect of the service courts. We have, by the way, asked the Scottish Administration whether they would like us to include reference in this Bill for them—they are fully entitled to do so—but their current view is that that is not necessary.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice)

A week ago, a leading Queen's counsel opined that far too many of these anonymity orders are being made. He said that between 500 and 600 are being made, and that the police are routinely going a bit over the top. Ken Jones of the Association of Chief Police Officers said that the figure is only a handful a year. Under this legislation, does the right hon. Gentleman foresee fewer applications than 500 or 600 a year, or does he think that figure will be about the same or even that there will be an increase?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I think it inherently improbable that there will be an increase in the number of orders, because we are now laying down a statutory scheme that is broadly based on past practice, subject to this really important caveat: we have also had to take account of what their lordships said in the Davis judgment, particularly in respect of Strasbourg jurisprudence. Time will tell, but I suspect that the figure will almost certainly not be more, and could be fewer. The courts and the prosecutors will be looking at whether, in certain cases where a witness anonymity order has been made in the past, it would be adequate for the task for a witness protection order to be made.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

I was very glad to hear what the Lord Chancellor just said. Would he therefore care to comment on paragraph 50 of the explanatory notes? It states:

"The Bill will not generate new costs. It aims to restore the law to, broadly, the position it was believed to be prior to Davis."

Surely it cannot go back to the position prior to Davis, precisely because of the point that the right hon. Gentleman made about the human rights position.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

In that respect, the hon. Gentleman is entirely right. Happily, those are just explanatory notes.

Photo of Frank Dobson Frank Dobson Labour, Holborn and St Pancras

Virtually everyone recognises the unfortunate necessity for anonymity in a very limited number of cases, and a lot of people will have been rather disturbed to discover just how many cases there have been under the common-law arrangements. Will my right hon. Friend undertake to make sure that every single order issued under the new legislation will be logged, and that there will be regular reports to the House on the numbers? We certainly would not want this legislation to allow the police to start using what is proposed as a routine response in the odd difficult case.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

The Crown Prosecution Service has collected a good deal of information so far about the number of cases. There is a very strong argument for its keeping a proper log of all of them, and it is important that the House should know what has happened, not least when we come to debate the Bill later in the year or early next Session. I will therefore raise that matter with my right hon. Friend the Attorney-General, because it will be a matter for the CPS.

If my right hon. Friend Frank Dobson looks not at the explanatory notes but at the background note on the number of cases, which we published alongside the Bill, he will see that the number that raised a concern of the sort raised by my hon. Friend the Member for Islington, North—cases in which the credibility of witnesses is an issue, because they could well have been accomplices to other crimes and could have as criminal a past as the defendants in the dock—is relatively small. It is thought to be about 40 or 50. Of the total, a large proportion involve undercover police officers or agents, and I do not think that anybody would argue that we should not routinely protect their identity.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

The Director of Public Prosecutions gave evidence to my Committee this afternoon, and he said that the CPS is now logging the cases, the reasons for the applications and the outcomes. It had no reason to do so before, because the procedure was considered lawful. He also told us that he expected to see roughly the same number concerning undercover operations, but fewer instances relating to what he called the civilian cases, especially those involving gun crime under Operation Trident.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

That is extremely helpful information, fresh from an evidence session, and I am grateful to my hon. Friend.

I said in my statement of 26 June—it is repeated in the explanatory notes—that it is our intention that this emergency legislation will be repealed by legislation that is to be included in next Session's law reform, victims and witnesses Bill. The Under-Secretary of State for Justice, my hon. Friend Maria Eagle, has already referred to the representations that have been made that this undertaking should be reflected in the Bill, and we have tabled amendments to that end, so there will be a sunset clause.

I have signed a statement under section 19 of the Human Rights Act 1998 that in my opinion the provisions of the Bill are compatible with the European convention on human rights.

Photo of Christopher Huhne Christopher Huhne Shadow Secretary of State for Home Affairs, Home Affairs, Shadow Secretary of State for Justice & Lord Chancellor, Ministry of Justice

On the issue of testing the credibility of witnesses, which is germane to the Human Rights Act 1998, is it the Lord Chancellor's understanding that under the terms of this Bill, judges will be able to appoint an independent counsel to investigate the credibility of a witness before granting an anonymity order? If that is the case, why has he resisted adding such a provision to the Bill?

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

It is certainly the case that courts have an inherent jurisdiction to appoint special counsel or advocates, and they have used that in the past. Indeed, one was used in the case of Davis. That inherent jurisdiction will continue. Given the time constraints on Second Reading, I will explain when we come to the amendments on that issue why the Government intend to resist its inclusion in the Bill at this stage.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

Not for the first time, the Lord Chancellor alleges that the courts have an inherent jurisdiction to appoint a special advocate, as distinct from an amicus or counsel to an inquiry, for example. When he deals with the special advocate proposals, will he please arm himself with some authority for that view? I know that he mentioned the Davis case— [ Interruption. ]

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I shall do my best to do so. I see that the hon. and learned Gentleman has been given "Archbold" to read on the subject: perhaps we can share the page.

Further background in relation to our ECHR responsibilities is included in the explanatory notes accompanying the Bill, but permit me to quote Lord Mance from the House of Lords judgment. He noted that

"it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence...that there is scope within the Human Rights Convention for such modification".

He went on to say that

"it is not certain that there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence".

For good measure, I might add that I found out from the ever-helpful Library research paper that there is international support—with conditions—for accepting anonymised evidence, described in the United Nations good practice guide.

The late Lord Denning once warned that

"in the very pursuit of Justice our keenness may outrun our sureness and we may trip and fall".

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway

My right hon. Friend has mentioned the law reform, witnesses and victims Bill, which will shortly come before Parliament and will act as the sunset for these provisions. The Bill that we are considering is creating new special measures. Is he aware that there is considerable and widespread concern in the legal profession, on both sides—prosecution and defence—that all special measures are widely overused to the point of abuse, particularly screening and the use of video links for younger witnesses, who can be as hard as any witnesses in a court? Juries do not like those measures, and they are having a contrary effect to that which was originally intended.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I am aware of that, not least because of representations that my hon. and learned Friend has made to me. I do not have a sense at the moment of the extent to which special measures, which are distinct from witness anonymity orders, are used. I am happy and ready to follow that up, as we ought to, with my right hon. and learned Friend the Attorney-General, the prosecuting authorities and others. It is important that the measures should be used as an exception and not as the rule.

In conclusion, I have quoted Lord Denning's warning that too much haste can lead to mistakes. Hon. Members from all parts of the House are well aware of the significance of the legislation and the short time in which it has been prepared and introduced. There is a practical need for it to be passed as soon as possible in order to prevent some of society's most dangerous criminals from escaping justice.

I am mindful of the principles at stake. More prosecutions do not necessarily mean more justice unless those prosecutions are fair. That is the balance that the legislation seeks to strike. In the time available, we have done our very best with the Bill. I am clear that it is consistent with the European convention on human rights and will ensure a fair trial for the defendant while ensuring protection for victims and the public, which is also very important. I commend the Bill to the House.

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice) 5:17, 8 July 2008

The House finds itself in an invidious position. In June, the House of Lords held in the case of Davis that measures taken to protect the identities of witnesses were incompatible with common law. As a consequence, a number of current criminal cases have been thrown into doubt and, whatever view one takes, that uncertainty needs to be addressed quickly.

The Law Lords made it clear, however, that subject to the overriding need for a fair trial, there is scope for Parliament to legislate to allow by statute greater use of anonymous evidence than common law permits. The legislation must be consistent with the right to fair trial, not least because it would otherwise be incompatible with article 6 of the European convention on human rights.

As I said in the House two weeks ago:

"We recognise our constitutional duty to scrutinise as best we can all legislation...and not to attempt to hinder the Government improperly...My party is committed to working with the Government in a constructive way to deal with this problem".—[ Hansard, 26 June 2008; Vol. 478, c. 517.]

That is what we have sought to do, and I am grateful to the Justice Secretary for his approach. Accordingly, we support the principle behind the Bill, but we have concerns about its scope.

Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

The hon. Gentleman and Mr. Garnier, who spoke before, have said that the official Opposition support in principle the reasons behind the Bill. Does not the hon. Gentleman see a contradiction in a party in official opposition wrapping itself in the Magna Carta on the issue of 42 days but discarding it when it comes to this Bill?

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

I shall address the balance that we need to achieve. I shall not dignify that intervention to any greater extent.

Even if circumstances dictate that we must legislate swiftly, that does not mean that we should do so lightly. As the Secretary of State said, important principles are at stake. As long ago as 1720, the English courts recognised confrontation as

"the most effectual method of establishing the truth".

In 1641, this House moved to abolish the Court of Star Chamber, which, once praised for its speed and flexibility, gradually evolved into a body in which the interests of justice were subjugated to the convenience of the Crown. In the United States of America, a defendant's right to confront his accusers is recognised explicitly in the sixth amendment to the constitution. Like much of the US Bill of Rights, that provision merely reflected contemporary English law.

The right of defendants to confront their accusers is not a mere historical nicety. It was developed in our common law precisely to ensure that justice was done. The overriding principles of justice are clear and simple: to convict the guilty and acquit the innocent. It is in no one's interests if, in the interests of securing convictions, we risk convicting the innocent. Miscarriages of justice result in the truly guilty going unpunished and leave the public at risk. There can be no utilitarian argument for setting aside the principles of justice. That is why, with all due respect to Assistant Commissioner Bob Quick of the Metropolitan police, for whom I have the highest personal regard, his call for emergency legislation on the grounds that there is

"too much principle and not enough pragmatism in the criminal justice system" is seriously misplaced.

Nevertheless, we recognise that a consequence of the Law Lords' judgment may well be that the guilty go free. That, too, would be contrary to the principles of justice. If justice can be done only through the use of anonymous evidence, the courts should have the power to hear that evidence. However, it should be used out of necessity to secure justice, not out of convenience to secure convictions. Its use should be exceptional, not routine, and the court must decide whether the risk of intimidation justifies it. The assessment must be objective, and it cannot be left to the defendant. That is a weakness in the Bill and needs addressing.

Photo of Michael Ancram Michael Ancram Conservative, Devizes

I have been listening carefully to the arguments that have been advanced. One problem that I have is that both the Secretary of State and my hon. Friend talk about the need to have a fair trial. How can an accused person have a fair trial if he does not know the identity of his accuser?

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

That goes to the heart of the dilemma that we are confronting. The principle set out in the Bill is that a judge must be satisfied about a number of considerations, including a defendant's general right to know the identity of a witness, before allowing the use of anonymous evidence. Those tests are in the Bill precisely to restrict the use of such evidence. Some may disagree, but I think that most Members agree that the use of anonymous evidence will not necessarily be a bar to a fair trial. The Opposition believe that it is right to allow judges to make the decision, subject to the tests that Parliament will set out.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

Does the hon. Gentleman accept that article 6 of the European convention on human rights provides a long-stop defence to ensure that judges do not abuse anonymity orders? Like him, I am concerned that we must not repeat the most ghastly miscarriages of justice of the past through the misuse of those orders.

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

The hon. Gentleman will know that the Law Lords made it clear in their judgment that there would be circumstances in which anonymous evidence could be used in a way that is consistent with article 6 of the convention. The Government are introducing this Bill to try to ensure that consistency, but they accept that challenges to it are very likely.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does my hon. Friend agree that the real problem with the Bill, and it is a problem that affects us all, is that the Davis judgment will be examined to determine witness credibility? The judgment makes it plain that the Davis case was sent back to the Court of Appeal because the common-law power that had previously been thought to exist did not in fact exist. Another reason why the case was sent to the Court of Appeal was that the exercise of the protective measures—they were precisely the same as those contemplated in the Bill—made the trial unfair. That problem will arise very often when the credibility of witnesses is at stake. It may stand in the way of the use of the protective measures, because Davis shows that they render a case unsafe.

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

The Law Lords also invited Parliament to set out a statutory framework, which we are seeking to do. It is likely that the Davis case will fall and that it will not be saved by the statutory provisions in the Bill.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I am sorry, but my hon. Friend is wrong about that. The case will fall to the extent that the common-law power will be replaced by statute, in a sense, so the fact that judges hitherto have made orders that they were not entitled to make will not by itself be grounds for appeal. However, if the protective measures render a trial unfair—as was the case in Davis—the orders will not be made. If they were made, the convictions would be quashed.

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

I invite my right hon. and learned Friend to make those points in greater detail during the Committee stage—not least so that my hon. and learned Friend Mr. Garnier can answer them. I am afraid that he has lost me.

I turn now to the weight of the provisions in the Bill, and the considerations against which the court must judge the acceptability of anonymous evidence. The explanatory notes concede that the Bill's statutory framework draws on the model provided by New Zealand's Evidence Act 2006. However, there are a number of significant omissions from the conditions that that legislation set out. The Government have moved already to correct one. Government amendment No. 42 adds a consideration that the court must have regard to whether the evidence from the anonymous witness might be the "sole or decisive" evidence. We pressed for that inclusion: we welcome it and are grateful for the Government's concessions.

That leaves two considerations that are present in the New Zealand legislation but absent from the Bill—first, that the court should have regard to the gravity of the offence and, secondly, that it should have regard to the principle that witness anonymity orders are justified only in exceptional circumstances.

It is important for the House to know why the Government have excluded those tests. The Law Society has urged us

"to ensure that the legislation is robust enough to prevent witness anonymity becoming a routine request that is made in ordinary cases without very good reason. We are very concerned to ensure that these orders will only be used in the most exceptional of cases."

That is precisely the wording used in the New Zealand legislation.

Similarly, the chairman of the Bar Council, Tim Dutton, has agreed that allowances must be made where witnesses are in genuine fear for their lives, but warned:

"We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall...that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances".

That shows that the Bar Council supports the provisions, but only in "exceptional circumstances".

The Justice Secretary quoted the article by Assistant Commissioner John Yates in The Daily Telegraph of 21 June, in which he called for emergency legislation. But Assistant Commissioner Yates also said that special measures to allow witness anonymity

"should be confined only to the most serious cases."

We have been told that 580 cases will be adversely affected if we do not continue to allow anonymous evidence, but the Government have confirmed now that only 50 cases involve members of the public as witnesses. Half of the 580 cases involve test purchasers of illicit substances, with only a minority of the 580 representing the most acute cases in terms of timing and risk. The question is, therefore, how many of the cases will, and should, be saved by the legislation? Are we being asked to legislate to secure witness anonymity in the most serious cases, or more widely than that? Clearly, it matters whether the legislation is designed to allow for anonymous evidence in drug cases, where the gravity of the offence is relatively less serious, or whether it should apply only in much more serious cases involving, for instance, terrorism, murder and gang violence, where people's lives may be at stake.

It is also important that we understand the scale of witness intimidation and whether it is a growing trend. Such intimidation is, after all, not new. Nor has the criminal justice system in this country had problems securing very high-profile convictions in the past without resorting to witness anonymity provisions. As the Law Society has observed,

"in the past convictions have been achieved without this legislation in notorious cases", for example, the Kray and Richardson cases. Furthermore, Members of this House on both sides will be only too aware of the scale of witness intimidation confronting police and prosecutors in Northern Ireland during the troubles—a period in which witness anonymity was explicitly rejected as a solution to the problem of intimidation.

No one should doubt the effect of witness intimidation in serious criminal cases involving gangs and organised crime. We all want to see violent criminals successfully prosecuted in the interests of public safety, and few want to outlaw anonymity procedures entirely. Certainly, both the Bar Council and the Law Society recognise its importance. Nor do we question the many practical difficulties that the police have in encouraging witnesses—many of them young and vulnerable—to co-operate in giving evidence at a trial, but the Law Society has also noted

"concern among prosecutors that police officers are too ready to make promises of anonymity pre-trial in circumstances where it is not, or will not be, appropriate."

Today, the Director of Public Prosecutions, I think in evidence to the Joint Committee on Human Rights, chaired by Mr. Dismore, has said that evidence that witness intimidation is growing is "anecdotal". We need a proper assessment of the growth and nature of witness intimidation, and if that is not possible now, the Government should produce it ahead of the law reform, victims and witnesses Bill. We need to ensure that the use of anonymous evidence is proportionate to that assessed threat.

It is common ground that alternatives to witness anonymity should be preferred. The question is how effective they are. In its briefing on the Bill, Justice emphasises the importance of witness protection. It highlights the fact that in the United States, the Marshal Service boasts that it has never lost a witness under its protection.

Photo of Jeremy Corbyn Jeremy Corbyn Labour, Islington North

The hon. Gentleman must be aware that where there is a problem of knife crime among young people and gangs, it is very difficult for the police to get anyone to give evidence unless they can offer some pretty cast-iron guarantees of the safety of witnesses. Otherwise, the police simply will not get any evidence: result—no prosecution, no conviction, and someone who is the leader of a gang that has treated people abominably gets off scot-free and continues to cause mayhem in an area.

Photo of Nick Herbert Nick Herbert Shadow Secretary of State (Justice)

I understand the hon. Gentleman's point. I was going on to give the counter view to the point that Justice was making about the reliability of witness protection schemes as an alternative to the use of anonymous evidence. There are limits to the use of witness protection schemes. As the Court of Appeal noted in its judgment in the case of Davis

"in reality, and certainly for the individual of good character, with established roots, this kind of programme is unacceptable".

The judgment added that

"this process is grossly invasive of the right of the witness and his family to private and family life".

As Danielle Cable, the fiancée of Kenneth Noye's victim, Stephen Cameron—herself in witness protection—said:

"I have lost twice—Stephen and my old life."

Witness protection may not be an alternative to using anonymous evidence, but it is an important means of bringing some cases to justice. At present, there is no statutory witness protection scheme, and provision across police forces is still patchy and sometimes inconsistent. I hope that the law reform, victims and witnesses Bill will address those concerns where this emergency Bill plainly cannot.

In conclusion, I remind the House of what I said in my response to the Justice Secretary's statement on 26 June. I asked him if he would

"consider carefully whether it is wise to rush through all stages of the Bill in this place in one day".—[ Hansard, 26 June 2008; Vol. 478, c. 517.]

I regret that it is exactly what is happening. We have been allocated only six hours to consider these matters as every stage of the Bill is pushed through the House in a single day. We accept the need for legislation to deal with the problem swiftly, but we do not accept that it is necessary to truncate debate and rush consideration in this way. The Government have already tabled amendments to a Bill that they introduced only days ago.

I welcome the Government's concession that a sunset clause will be written into the Bill to ensure that the provisions are replaced in the forthcoming law reform, victims and witnesses Bill. We pressed for such a provision and I am grateful to the Justice Secretary for conceding it, as it will give the opportunity for more considered legislation and discussion of proposals such as the use of special advocates and special measures. Nevertheless, driving laws through the House in a single day is unwise and unnecessary. It will only add to concerns about the measure, not least in the other place, and is bound to increase the risk that we will get something wrong. When both the safety of our communities and the liberty of individuals are involved, that is a serious matter.

The Bar Council has said:

"The criminal process is not a static one; its procedures are not frozen in a past era of mythic perfection. But its commitment to a proper balance between the various interests and rights of those caught up in the process remains the same: to do justice in a way that serves the public interest while protecting the rights of the victims of crime, the witnesses in criminal proceedings and those suspected of serious criminal wrongdoing."

We support the use of anonymous evidence where it can be accepted without prejudicing a fair trial. We understand the need to legislate swiftly to ensure that some serious cases do not fall, but we must ensure that the correct balance is struck. I am grateful to the Government for addressing a number of the concerns we have expressed, and I hope that spirit of constructive debate will continue. Above all, however, we should be concerned that the Bill is properly scrutinised so that justice can be done.

Several hon. Members:

rose —

Photo of Alan Haselhurst Alan Haselhurst Deputy Speaker and Chairman of Ways and Means

Order. I remind the House that Mr. Speaker has placed an eight-minute limit on Back-Bench speeches, which operates from now.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon 5:38, 8 July 2008

My right hon. Friend the Secretary of State for Justice obviously faced a difficult task in producing the Bill in such a short time, and he has done a pretty good job.

The Joint Committee on Human Rights, which I chair, has not yet had the opportunity to report on the Bill, although this afternoon we held an evidence session with the Director of Public Prosecutions and Mr. Paddy O'Connor, QC, who gave the defence perspective, so we heard arguments on both sides of the coin and we hope to be able to report before the Bill completes its passage in the other place. My remarks today are my own, although on the basis of the work we have been able to do so far I should be very surprised if there was dissent from other members of the Committee to what I have to say.

The Bill is broadly to be welcomed from a human rights perspective. It does not purport to prescribe what constitutes a fair trial when anonymous evidence is given, but provides a general framework for the making of discretionary anonymity orders by courts, setting out the sort of considerations that are relevant to the exercise of the court's discretion. The right to a fair trial is adequately guaranteed under the Bill's provisions. In view of the express protection of the right to a fair trial, and the discretion left to the trial judge to determine that question, I accept the analysis in the explanatory notes that the Bill is compatible with article 6 of the European convention on human rights. Having said that, there is always the possibility of improving the Bill, and I hope that we can make some improvements today. I fully accept that the Government amendments that have been tabled make significant improvements, too.

The Director of Public Prosecutions told us today that convictions principally based on anonymous evidence are not automatically in breach of the article 6 right to a fair trial, and I agree. Strasbourg has not had difficulties with anonymous witness evidence. The real issue is the parameters and the scheme in which the evidence is used. The right to a fair trial is a fundamental one, and not a balanced one, as may have been suggested in some of the remarks that we have heard. Clause 4(4) guarantees that fundamental right. Under the Bill, the right to a fair trial trumps everything else.

We were told by the DPP that there are 1.3 million prosecutions a year in this country. That gives us perspective, and shows us that witness anonymity is used exceptionally; we are talking about several hundred cases. They are mainly undercover police cases involving drugs or conspiracies. If the suggestion is that such cases are not sufficiently serious, I think that the suggestion is wrong. Clearly, if a drugs officer has his identity revealed in court, he can no longer be effective as a drugs officer in any future case. That may not be a problem for the case in question, but it will certainly affect the police's ability to combat drugs in future.

The real issue is what the DPP called the civilian cases, in which members of the public are involved; there are 50 of them a year. The DPP stressed the urgency of the issue, and even Mr. O'Connor was not absolute in his opposition to, or criticism of, the need for such anonymous witnesses. Of course it is important that we prosecute those who wish to intimidate witnesses. We should bring cases of conspiracy to pervert the course of justice. Mr. O'Connor believes that convictions for intimidation have doubled. The real issues are the accuracy of the evidence and the credibility of the witness. Those issues do not really arise in undercover police cases or, for example, in cases in which an old lady has accurately recorded the registration number of a getaway vehicle after a bank robbery. A problem arises with witnesses who may themselves be involved in criminality—they may be involved with a rival gang, for example—and the Bill provides for a judge to take that credibility issue into account when deciding whether to grant an anonymity order.

The DPP told us that there would be fewer cases involving anonymity. The undercover cases would be largely unaffected, but in Trident cases—he thought that there were about 30 Trident cases a year—the criminality of witnesses means that we may well not be able to prosecute all of them, as we do now. He could not give an estimate of how many cases might not be brought. The DPP thought that the process provided by the Bill would throw up cases where credibility would be an issue, particularly as both the judge and any appeal court would know the identity of the witness concerned.

One of the key issues raised by Mr. O'Connor was the question of where the witness's fear came from. He was concerned—there is possibly some merit in this—that the fear came from police suggestion, rather than being volunteered by the witness. We need to look into police procedure to ensure that the witness is expressing his fear, rather than having fear put into his mind by the police, as that would undermine the whole process. The witness might not be afraid at all until that point.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That, of course, rather argues for the existence of special counsel, who could, for example, question the witness on precisely the source of the fear.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I agree, and one of my amendments provides for independent counsel for that reason. I understand that it is inherent in the jurisdiction of the Crown court to appoint counsel. However, that is not the case in the magistrates court. The evidence that we were given today suggested they did not have that inherent jurisdiction, primarily because when magistrates judge cases, they are also finders of fact, with a jury role. That creates certain complications.

Photo of Rob Flello Rob Flello PPS (Rt Hon Hazel Blears, Secretary of State), Department for Communities and Local Government

Does my hon. Friend recognise that there is a general perception of concern among our constituents when it comes to giving evidence about something that has been witnessed, particularly if there is an issue with a serious drug dealer in an area, and that there is a need to address that concern?

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

I fully accept that, and it is a very valid point, but the concern should be expressed by the witness. The police should not suggest it to the witness, as that might create fear that had not previously existed. That would actually feed the climate of fear to which my hon. Friend rightly refers. We should not make it worse than it is.

Photo of Sammy Wilson Sammy Wilson Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Education)

Does the hon. Gentleman not accept that the police have a duty of care to witnesses, so if they believe that someone with a violent record may try to interfere with a witness, that witness should at least be warned? There is no point a witness dropping out later in a case. The police should try to test how strong they are at the very beginning.

Photo of Andrew Dismore Andrew Dismore Labour, Hendon

My concern is that that would become a routine, rather than the exception. However, in those very dangerous cases, the point that the hon. Gentleman makes is a fair one.

It has been said that we did not have this procedure in the trials of the Richardsons or the Krays, but those gangs were around for years and years, intimidating the east end. If it had been available then, we might well have been able to deal with them at an earlier stage. As far as the Director of Public Prosecutions has been able to establish, there has not been one anonymity case in a magistrates court, and only one in the juvenile courts. It has been suggested that magistrates courts should be excluded, but the fact remains that under counter-terrorism laws, some cases are triable either way, so it is dangerous to suggest that magistrates courts should be entirely excluded.

As for the relevant considerations, the Government have tabled an important amendment on the "sole or decisive" issue, which satisfies a key concern of the European Court of Human Rights. However, we must also consider the issue of the defendant being responsible for intimidation. Mr. O'Connor considered that point, and if the defendant is responsible for intimidation, he can hardly complain about witness anonymity interfering with his article 6 rights. For that very reason, that should be one of the relevant considerations, and it sends a clear message that those who become involved in intimidation should not expect witnesses to give evidence openly against them.

A number of hon. Members wish to speak, so I shall conclude. As far as I am concerned, the Bill complies with article 6. The Government have moved significantly in their amendments, although there are one or two things we can do to tweak the Bill today and in the other place. Broadly, however, my right hon. Friend the Justice Secretary has done a very good job in dealing with a very difficult set of circumstances with which he has been faced in a very urgent way.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice 5:47, 8 July 2008

I fully accept what Mr. Dismore has said, and that overall the Bill complies with human rights law. However, that does not mean that there are no difficulties—not just practical ones but human rights difficulties—with some of its provisions, and I shall return to that.

As we are here because of the Davis case, it is important to understand what the court said, and more importantly, did not say. It did not say that anonymous witnesses should never be contemplated, or that anonymity always means that the trial is unfair, although some people at the criminal defence Bar seem to believe that that is so. They think that credibility is always a potential issue, so there is always a problem of that sort. However, the court did not believe that, and I do not believe it.

There is a balance to be struck between two serious threats to the rule of law. First, we have heard a great deal about the intimidation of witnesses—and I do not want to repeat earlier remarks—which goes to the heart of the judicial system itself. If we cannot get people into court to decide a matter, there is no point having a law in the first place. Therefore, it is a fundamental question about the rule of law. Secondly, on the other hand, unfair trials are themselves a threat to the rule of law. If trials simply become mechanisms for locking up people whom the state wants to lock up, we cease to have law even if we might have some order.

There has been discussion about whether the problem of the intimidation of witnesses has become worse, and we have discussed the Kray twins, the Richardsons and so on. In other discussions, reference was made to the fact that the problem of witness intimidation goes back to ancient times. It is very difficult to judge whether the problem is getting worse, but it is likely to be growing where gang culture is growing. Whether growing or not, intimidation is a sufficiently serious problem, because it strikes at the heart of the system, for us to take it very seriously indeed. I am with those who say that witness protection is not sufficient, because it is not enough to say to a potential witness, "You have to completely change your entire life—to give up your entire life—just because of this one case." Not many people are going to take up that offer, so we must have measures that fall short of full witness protection.

Some commentators have said that the issue is not one of balance—that we cannot balance the right to a fair trial against anything else, because it is an absolute right. Even David Pannick, QC, said so in The Times last week, but I do not think that that is correct. The human right to a fair trial is absolute, but whether that right has been violated in a particular case is a matter of degree. Going beyond that and to echo what has already been said, human rights legislation and the human rights system set a limit on what can be done, but that before we reach it, there is a balance to be struck. The Pannick view is correct only if anonymity always and automatically violates human rights. I do not think that it does.

In the Davis case, the House of Lords did not lay down a bright-line test or say, "If X, Y and Z happened, there must have been a violation of the human rights standard." However, the House of Lords did say—this is the hard case that we all must consider—that in a case in which anonymous witness evidence was the sole or decisive evidence, and in which witness credibility is a real issue, not an issue that the lawyers have made up, it is very unlikely that the granting of a witness anonymity order will pass muster. That is because if credibility is an issue, it strikes at the heart of the trial. It is almost impossible to cross-examine a witness about credibility if one does not know who they are, or one does not know about their tendency to lie or to exaggerate, or about any animus against the defendant. All those things depend ultimately on knowing who the witness is.

The House of Lords was clear on another matter, too, and we will have to discuss it in detail in Committee of the whole House. The Lords said that if we are to have anonymous witness orders in some circumstances, we must have a clear procedure—a much clearer procedure than that which has grown up in the courts, in the prosecution service and in the police up to now. As Mr. Dismore said, it cannot be right for the police to offer anonymity as a matter of course in certain cases. It becomes an issue in cases in which a threatening atmosphere has developed on an estate, but as he said, the police offering anonymity can make matters worse because it fuels the existing fear. The idea that anonymity orders should be exceptional is an important one, and I am still anxious because the idea is not in the Bill.

Photo of Rob Marris Rob Marris PPS (Rt Hon Shaun Woodward, Secretary of State), Northern Ireland Office

May I caution the hon. Gentleman? I understand and have some sympathy with his argument, but the House passed legislation whereby mere possession of a firearm carried a mandatory five-year sentence, save in exceptional circumstances. When the legislation went to the courts, judges adjudged almost two thirds of cases to be exceptional, which to my mind, mathematically, is not possible.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The hon. Gentleman is of course absolutely correct to say that, arithmetically, the majority of cases cannot constitute an exception to the rule. However, other aspects of the existing procedure need to be corrected, such as the idea that applications for witness anonymity orders can be made purely on paper, without any opportunity to question whether the case has been made out of necessity. Judges are often told that either they grant the order or the case will collapse on the spot, so they are coerced into granting orders or put in a position whereby the case itself does not succeed. That is not good enough, and we owe a debt of gratitude to the House of Lords for pointing it out and making us go back to first principles in respect of hearing the other side as a standard of justice.

There is a very important passage at paragraph 79 of the judgment, in which Lord Mance discusses what the Equality and Human Rights Commission said about such circumstances. He says that the standard is a proper verification process, so that the anonymity order is tested between both sides and the court can come to a conclusion about what to do on the basis of argument, not assertion.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

Does that not reinforce the proposition that the appointment of special or independent counsel should be liberally undertaken in such cases? In the disclosure procedure to which I referred my hon. and learned Friend Mr. Garnier briefly, it is exceptional that the special counsel is instructed to help the court, but does the hon. Gentleman agree that on witness anonymity orders, the special counsel should generally be instructed?

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Yes, I completely agree. The special counsel procedure is a way out of a range of difficulties with the proposal, and I urge the Government to reconsider the idea. I shall return to it in a few moments and in Committee.

Photo of Mark Durkan Mark Durkan Leader of the Social Democratic & Labour Party

The hon. Gentleman referred to the point about the need for verification, but how can there be verification of the second aspect of condition A, which relates to

"real harm to the public interest"?

We know that public interest considerations are often played like jokers in situations in which no one can question, challenge or demonstrate what is involved, so how can verification apply to "the public interest"? It seems to have been tailgated on to the Bill on the back of the issues that the Davis judgment raised.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

Yes, I am concerned about how that aspect of the Bill is worded. The Government are quite right to say that there must be protection for undercover police work and for other undercover work, but the Bill does not include it. It refers very generally to "the public interest", as the hon. Gentleman says. That is over-broad, and the Government should reconsider how that aspect of the Bill has been designed.

The question is whether the Bill has met the difficult challenge—created by the situation—of striking the right balance between two fundamental problems with, and threats to, the rule of law, within the limits of human rights legislation. The answer is: not quite yet. A good deal of progress has been made, but there are still serious problems with the Bill.

I have mentioned the problems with procedure, and I shall add one other point about that. What standard should the evidence meet to be admitted when a decision is made about an order? I think that it should be admissibility in the trial itself, but there is nothing in the Bill to say whether that is the case. The biggest problem of all is that raised by Mr. Hogg about the lack of independent counsel procedure. Such procedure is in the New Zealand legislation. It is too early to say whether it has been a success in New Zealand, but it seems a good bet for resolving a number of the problems in the Bill.

Photo of Mark Fisher Mark Fisher Labour, Stoke-on-Trent Central

The hon. Gentleman talks about evidence. Does he consider the singularity and crucial importance of the evidence to be relevant? Lord Bingham used the words "sole" and "decisive". Are those considerations not as crucial as all the other factors that we are talking about? Are not the nature and particularity of the evidence key if we are to get the balance right?

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

That is right. However, there is no suggestion in their lordships' speeches that the sole or decisive test is a bright-line test. It is simply part of an overall concept of what, as a matter of degree, would amount to an unfair trial. The Government are right to give way on putting that test in the Bill, but also right to make it a factor rather than a condition. That is the right way in which to go forward.

I return to the independent counsel idea. The counsel would be there primarily to investigate two things. The first would be whether the necessity for the order had been made out—whether there was evidence to suggest that the conditions under which an order should be made had been reached. The second would be whether there was a serious problem with the credibility of the witness, and the counsel would assist the court in coming to a conclusion about that.

It is important to bear in mind that having the independent counsel system is a protection not only for the defence. It is not just a safeguard for the defendant, but a way of safeguarding the prosecution's case—either against, as the right hon. and learned Gentleman said, the order not being made in the first place and the case not succeeding, or against the case being appealed and quashed.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

There is another important characteristic— that the police will not as a matter of routine promise anonymity because they will come to realise that the independent counsel investigating the case will say that the factual basis is not made out. Therefore the anxiety about an extension in the numbers of the orders might be reduced.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

That is absolutely correct. This is a way of getting away from the purely paper process that has developed in some courts.

The Government have said that there is an inherent jurisdiction, but their point has two problems. One has already been raised. It is that there does not seem to be any inherent jurisdiction in the magistrates court. The other way out of that problem, of course, is not to extend the power to the magistrates court in the first place. The second problem is that a large number of judges will be surprised to learn that they have that inherent jurisdiction. The best way in which to draw that jurisdiction to the attention of the judiciary is to put it in the Bill.

There is also a problem with the scope of the Bill. I do not want to go into detail about that now, as we will come back to the issue in Committee. However, I have raised one point about it, and I shall mention it again. Why does the procedure extend to the magistrates court? It is not obvious that there are that many such cases in the magistrates court in the first place. If, as Mr. Dismore mentioned, a case is triable either way, presumably the issue could be one of the factors that can be taken into account in sending the case to the Crown court instead. I admit that there would be problems in respect of youth justice, but those should be faced as a separate issue and should not govern how we deal with the whole problem.

Photo of Jack Straw Jack Straw The Lord Chancellor and Secretary of State for Justice

I shall only detain the hon. Gentleman for a moment. It is not that many of those cases have arisen in the magistrates court, but some have. One case was about a breach of a control order under the Terrorism Acts. In such a case, a breach is an either-way offence, and the defendant must have consented to the magistrates court's dealing with the matter and the prosecution must have made no objection. Therefore, the case stayed in the magistrates court. It was entirely appropriate that it should have done and that an anonymous witness order should have been made.

There is also the reported case of R v. Watford Magistrates Court ex parte Lenman and others. The divisional court made a decision, on appeal from the magistrates court, that expressly allowed for witness anonymity orders to be made in the magistrates court in the circumstances of that and similar cases. In that case, the applicants were charged with violent disorder under section 2 of the Public Order Act 1986. A group of youths had rampaged through Watford and violently attacked four persons, one of whom was seriously stabbed. That was also dealt with by the magistrates court and it is entirely appropriate that in such a circumstance the order should be available.

Photo of David Howarth David Howarth Shadow Solicitor General, Ministry of Justice

The opposite point of view is that it is precisely cases of that seriousness that should go to the Crown court in the first place. The anonymity order would still apply, but in the right court. There is no bar against that happening in the adult court; only in the youth court is there some difficulty about how to proceed. However, as I said, I do not think that that difficulty should determine what happens in the adult court.

There is one further problem, to which I shall return in Committee. It relates to clause 3(2), and I shall just mention it now. Clause 3(2) shows a fundamental inequality between defence and prosecution. It says that if the defence manages to get an anonymity order—it is good that the Bill allows that—it must nevertheless reveal the identity of the witness to the prosecution. However, the same does not apply the other way around. That is still a problem and I have not heard any argument from the Government so far that would justify that stance.

I do not want to end on a negative note. There has been immense progress on the Bill, which has improved during its short existence, including on the sole and decisive evidence point, on which the Government have tabled a reasonable amendment. The transitional provisions have become tighter and clearer, especially in dealing with the part-heard cases. I am especially pleased that the Government have accepted the principle of the sunset clause; they have accepted the idea that the fact that this is temporary legislation should be in the Bill and that we shall return to it in next Session's law reform, victims and witnesses Bill.

This Bill is necessary, but I am not entirely happy with it as it stands. It has a lot of problems and we have a very short time to put them right—if not here, then in another place. The Bill is, however, moving in the right direction. Witness anonymity is occasionally justified, but it should never become the norm. Practice was moving in that direction before the case of Davis at the House of Lords. The House of Lords has brought us back from the brink. The Bill is starting to strike a better balance.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 6:08, 8 July 2008

I rise slightly unexpectedly, as Mr. Marshall-Andrews was getting to his feet. I do apologise; my notes were down below, but I now have them in my hand.

Clearly, the Bill is important; it has important implications for the criminal law. I have already expressed this view, but truncating the debate into one day is very undesirable. I agree entirely with what David Howarth said: a fundamental principle of the criminal law is that, in general, a defendant should be able to know the identity of the witness against him. That is because, as those of us who practise in the criminal courts well recognise, when credibility is at issue it is extraordinarily difficult to challenge the Crown's case unless one knows the identity of the witness.

The allegation may be, for example, that the witness has previous convictions, that he has a private grudge against the defendant, that he has a propensity to lie, or that he was somewhere else, as happened in the case of Tadic. One cannot put those suggestions unless one knows who the person is. That is why the courts held for a very long time that the principle of anonymity was wrong; why, no doubt, the American constitution makes that provision in its sixth amendment, as my hon. Friend Nick Herbert reminded us; why article 6(3)(d) of the European convention on human rights was couched in the terms that it was; and why, when Lord Diplock and Lord Gardiner considered the question of anonymity in the context of Northern Ireland in the 1970s, at a time when there was very considerable violence, they came to the conclusion that it was impossible to abrogate the rule and yet do justice to the defendant.

I have long held the view, although it is not entirely popular, that it is much better that the guilty are not convicted than that the innocent should be convicted. Ultimately one has to take a stand, and that is where I stand. I am perfectly willing to accept, however, that there are a small number of cases in which the intimidation of witnesses is such that it is right and proper to have an anonymity order. It is true that, in view of the Davis case, we need to put that on a statutory basis, but we need to define in our own minds and in statute the principles to which we should adhere. Above all, we must place it in statute that the fairness of the trial is the paramount consideration.

There is another thing to keep in mind, because there is some misunderstanding about the judgment in Davis. I believe that most protective measures taken where the issue is one of credibility will fail the test of fairness and prove to be incompatible with European jurisprudence. I well understand that the criteria will be satisfied where, for example, one is dealing with police officers who are undercover agents or with an old lady whose credibility is not an issue, merely her powers of recollection. However, protective measures in such cases will continue to be unsafe, broadly speaking, unless—this is an important proviso—the defendant himself has been responsible for the intimidation. In that case, as Mr. Dismore rightly said, he is in no position to complain.

We should set out some criteria in the Bill. I will deal with this very briefly, because I know that my right hon. and learned Friend Mr. Howard and the hon. and learned Member for Medway want to speak. There are some things that should appear on the face of the statute. The order should be confined to exceptional cases. We need to define the test of sureness for when the court has to decide whether the conditions have been made out. There must be a statement that it is a presumption that the identity of the witness before the court is known to the defendant.

Photo of Rob Flello Rob Flello PPS (Rt Hon Hazel Blears, Secretary of State), Department for Communities and Local Government

I am listening to the right hon. and learned Gentleman with great interest. There is a slight dilemma in my mind, and I am wondering about his views on it. In such an exceptional case, would the jury take the view that because the judge had reached the decision to grant anonymity in that particular case, there must therefore almost be a presumption of guilt?

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

There is always that danger—it arises under existing law in relation to protective measures. If the identity of a witness is screened, it is easy—although it would be wrong—for a jury to come to inappropriate conclusions. It is therefore important that in his or her summing up the judge points out to the jury that the adopting of these measures must not be held against the defendant. To be fair to the Government, there is a specific provision in the Bill saying that that should happen.

Let me turn briefly to the remaining criteria that should be in the Bill. It is important that we should have specific reference to the independent or special counsel. I recognise that the Government will say that that is within the inherent jurisdiction of the court, but, as the Justice Secretary will know, the matter is dealt with in "Archbold", at chapter 12(80)(d), where he will see that it is described as an exceptional power, to be sparingly used. However, having regard to the witness anonymity orders and their implications, it should be generously employed here—and if that is the case, it should be stated in the Bill. I agree with the hon. Member for Cambridge: I strongly suspect, as I am guilty of this as well, that many practitioners did not know of the existing power, which makes it all the more important that it should appear on the face of the Bill.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

We knew, but we needed to be reminded.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

That is very generous of my hon. and learned Friend.

The court must be directed always to look at alternatives, although I accept that witness protection schemes have but limited application in a number of cases. Finally, the anxieties of the potential witness must be judged on whether they are evidence-based, not merely introduced into the chap's mind by a police officer, and whether they are reasonable.

At the end of the day, we are in the business of ensuring a fair trial. There are things that we can do in the Bill to make the situation better, and I very much hope that we will. We do not have enough time—that is my chief objection to what is going on, hence the view that I took on the timetable. The Bill has a sunset clause, and I welcome that; that is why I will not vote against Second Reading.

Photo of Robert Marshall-Andrews Robert Marshall-Andrews Labour, Medway 6:16, 8 July 2008

Let me start, perhaps uncharacteristically, by congratulating my right hon. Friend the Secretary of State on the Bill, which is small but near-perfectly formed.

I do not agree—in fact, I fundamentally disagree—with some of the commentary in the press over the past two or three days, which has come from people who not only should know better, but who do not represent, as we do, real people in the real world. I particularly noted the commentary that said that we managed to convict the Kray brothers and the Richardson brothers without laws relating to anonymity. I well remember the extraordinary difficulty that we had in convicting the Kray brothers and the Richardson brothers, and the mayhem, chaos and pain that was caused during the course of the period when we could not convict them, for precisely those reasons. It is no more than common sense to say that we should have sensible anonymity rules, and enshrined in the Bill are very nearly wholly sensible anonymity rules.

Let me turn to specifics. I hope to take far less than the eight minutes that we have been allotted. I entirely agree that special counsel are wholly appropriate in these circumstances. I was wholly against them when they were mooted in this House, but they have worked very well in terrorism cases, and my experience of them has been nothing but good. The idea has been commendable, and there seems to be no reason why it should not be adopted, particularly in this Bill.

I, too, would favour a clause that refers to the exceptional nature of the power—not that that would do any good, in truth. As my hon. Friend Rob Marris pointed out, the word "exceptional" is in the eye of the beholder; it is merely an adjective that can be used by courts as they so wish. However, it does set a climate—it is very important to do so—in having regard to what is happening at the moment in criminal courts, particular in senior criminal courts, in relation to special measures generally. The Bill will simply add another special measure.

It is undoubtedly the case, and it is causing widespread concern, that special measures are now being used to such an extent that we are creating a culture of witness protection rather than necessary witness protection. The effect of that, as has been alluded to many times, is that special measures become a form of inducement used by prosecuting authorities to obtain witnesses when those witnesses do not need them and should not have them. Giving evidence is never a pleasant thing, and it is sometimes hard, but that is what citizens are there to do. To create a culture of this kind is ultimately extremely damaging, because people who hear that such provision is available are less likely to give evidence if they do not get it.

There is another aspect worth considering, if the aim of these measures is, as it undoubtedly is, to obtain more, though just, convictions. Juries do not like them. Juries do not like screening, in particular, and they do not like obtaining evidence by video link when it is plainly unnecessary. Some cases involve the giving of evidence by young people who are as tough as old boots. They may be members of opposing gangs—they often are—and they sit in a separate room, in circumstances of conspicuous comfort, being watched by a jury who are asking themselves time and again, "Why is that man not in this court?" Skilful manipulation of the cross-examination of a witness in those circumstances, by repeated questions such as, "Are you sitting comfortably?", "Is everything all right?", "Do you still feel vulnerable?", "Is this a photograph of you on the top of a bus at the time?" or "Is that your pit bull terrier?" does the cause of justice, in terms of prosecuting people and obtaining convictions, very little good.

I make a plea now, in advance of the Bill into which these measures are bound to be incorporated in due course, that we do not approach them on the basis that witnesses need more protection. At the moment we have too much, and we need to cut into what is becoming an extremely damaging culture.

Photo of Michael Howard Michael Howard Conservative, Folkestone and Hythe 6:21, 8 July 2008

I welcome the fact that I am following Mr. Marshall-Andrews, particularly on this relatively rare occasion when I agree with almost, but not quite entirely, everything he said.

I welcome this Bill. I welcome the fact that the Government have responded quickly to the invitation of the Law Lords to place the practice of allowing anonymous evidence in our criminal courts on a statutory basis. I welcome the way in which my right hon. and hon. Friends on the Front Bench have co-operated with the Government in facilitating the passing of the legislation through this House on an expedited basis—although it is a bit too expedited, which is why I voted against the programme motion. I disagree, however, with those among my right hon. Friends who have suggested that the time at which the legislation reaches the statute book should be postponed until after the summer recess. It is urgent, and I hope that it will reach the statute book before then.

I welcome the fact that the Law Lords have on this occasion deferred to Parliament; I hope that this is the beginning of a new trend. I have been critical, on more than one occasion, of the tendency of judges to arrogate to themselves decisions which I believe should be taken by Parliament. Of course, in many cases Parliament has only itself to blame. The Human Rights Act expressly invites the courts to take decisions, such as decisions on the proportionality of an Act of Parliament, which seem to me the kind of decisions that democratically accountable parliamentarians should take.

The trend to judicial activism preceded the Human Rights Act, however. It found its expression in the dictum of a very distinguished former Law Lord that if parliamentary opposition was weak, the courts should intervene to fill the gap. That has always seemed to me to be utterly wrong. What we have here is a recognition by the Law Lords, no less, that if what they regard as a fundamental departure from our principles of criminal justice is to be sanctioned, Parliament is the appropriate body to grant that sanction. I very much welcome that recognition by the courts that there are limits to what they can do, and that there are important decisions which can be taken only by Parliament. I hope that we shall see a lot more of that.

I am in no doubt of the need for this measure. Anyone who has experience of the housing estates in our country where so many of our less fortunate citizens live—either directly, through living there, or vicariously, through representing such areas in this House or through visiting them and listening to local residents—knows of the deep misery that crime can cause. The least fortunate of our fellow citizens disproportionately bear the brunt of crime and suffer its consequences, and they need our help. Much of that help will come through the range of measures that the Government, the police, and the criminal justice system seek to provide.

There are many of us, on both sides of the House, who have laboured mightily to try to provide that help. But at the end of it all, that help is useless if criminals cannot be brought to justice. Far too often, that is not possible because of the stranglehold of fear that criminals can exert on their victims and those who could give evidence against them. The tentacles of that fear can reach far and wide. They can often give those who control them effective immunity from prosecution, which is not a state of affairs that we can tolerate. That is why we need to make provision to allow witnesses to give evidence anonymously. It is why we need this legislation.

Of course we need safeguards. There are always dangers in passing legislation too quickly. We are right to probe the Government by tabling amendments and to seek to ensure that proper safeguards are put in place. The arguments have already begun, and will continue over the next few hours, about the precise form those safeguards should take. I welcome the fact that the Government have accepted the need for a sunset clause. I am impressed by the arguments for a special counsel and for the desirability of including provision for a special counsel in the Bill. I am less persuaded by the argument that the powers in the Bill should not extend to the magistrates court. I agree with the points made by the Justice Secretary to the effect that there was a need for such powers in the magistrates court, and as things stand, at any rate, that is the side on which I would come down. Those arguments will continue in this House and another place. On the need in principle for this legislation, however, I have absolutely no doubt.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow Spokesperson (Innovation, Universities and Skills), Shadow PC Spokesperson (Home Affairs), Shadow Chief Whip (Commons), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Foreign and Commonwealth Affairs), Shadow Spokesperson (Justice) 6:27, 8 July 2008

It is a pleasure to follow Mr. Howard and Mr. Marshall-Andrews. We have heard several good speeches today, which have been interesting and informative.

Since the Bill became common knowledge a few days ago, we have all rather been rushing into it. Like the right hon. and learned Member for Folkestone and Hythe, I feel a little uncomfortable with the time given to ensure that we get a proper Bill. I would also say that the Secretary of State for Justice has a difficult job in front of him, with little time to spare. I accept that point. However, David Howarth said that he saw this Bill as having been improved in the past few days. If we had a few more days, no doubt it would be greatly improved; it would be a wonderful Bill in about four or five weeks' time. Let us not run away with that idea, however. Although we sometimes get legislation wrong when we rush it through, we took four years on the Hunting Bill and still got it wrong—it is now an unenforceable Act—so we do not always get it right when we take a long time, either.

I agree broadly that we need some form of statutory footing for anonymity. There is no question about that. The Davis judgment has brought matters to a head, and they had been simmering for some time. As the hon. and learned Member for Medway said, there has been widespread misuse of special measures. In any preliminary hearing, in any Crown court, on any day of the week, the judge will turn to counsel and say, "Any special measures required in this case?" Whether it is a relatively minor case in the Crown court or a serious one, that is a regular occurrence. People are asked whether they want special measures. They might think, in passing, "Yes, I'll have some special measures," and get up and ask for them—and more often than not, they will be granted.

I am afraid that the practice is falling into misuse. Things have reached the stage where something has to be done. Coming to the Davis judgment and where we are now with the Bill, I hope that all those issues can be brought into sharp focus and that we can look again into what special measures, are for. They are measures for special occurrences to be used just as I hope the Bill will be used—infrequently.

Mr. Bob Jones of the Association of Chief Police Officers says that such occurrences will be very rare. However, the same ACPO presides over a situation in which applications for anonymity are made in 500 to 600 cases a year. They include huge drugs cases, murder cases and so on, and I fully understand all that, but I am sure that in many cases such applications are not necessary. If the Bill is properly implemented, as I hope it will be, it should limit the number of anonymity applications to cases in which they are strictly necessary, to ensure that the interests of justice are met.

What Mr. Hogg said about special counsel is quite right, and his suggestion was very useful. He referred to "Archbold", showing immense recollection of the exact provision; he has been there many times in practice, and he assisted us today. What he said is important. If we are to make the Bill work, special counsel should be a core consideration. That will undoubtedly assist the judge and the interests of justice; indeed, it will assist everybody. I hope that the right hon. and learned Gentleman's suggestion, which he advanced very well, will be taken seriously by the Government, although I do not know whether amendments could be introduced in the other place.

Useful reference has been made to New Zealand's Evidence Act 2006. The criteria that the court must have regard to in making an anonymity order under that legislation are as follows. First, witness anonymity orders are justified only in exceptional circumstances. Secondly, the gravity of the offence must be taken into account. The third criterion—this is interesting; I wonder why there is no reference to this in the Bill—is whether there is other evidence that corroborates the witness's evidence. That is a consideration; it is not necessarily a veto on making the order, but it is an important factor to consider. The judge must have regard to that consideration under the New Zealand Act in making an anonymity order or not doing so.

In the few minutes left, let me say how grateful I am that the Government have accepted a sunset clause. I hope that we will have some further information about the numbers of applications at that later stage, since the CPS is now keeping a record of all applications made, those granted, those refused and the reasons why, and so on, as Mr. Dismore helpfully told us. That information will undoubtedly inform the debate when the matter next comes before the House.

Finally, the amendments that the hon. Member for Cambridge has tabled to clause 3(2) are sensible. In effect, clause 3(2) says that if a defendant wants anonymity for a witness, they have to give full details to the prosecution. Why should the prosecution not do the same for the defence? [ Interruption. ] The Secretary of State for Justice shakes his head; no doubt he will address that point in due course. If we are serious about the scales of justice and so on, there is an important principle at stake: the equality of arms principle.

For example, what if the name of the person is leaked by a police source? I am not impugning the police; my brother is a serving officer, as was my father. I am not anti-police in any way, but there are bad apples in every barrel. We have seen several police leaks recently that have caused mayhem here and there. I am concerned that a defendant has to give full details, which could end up anywhere, whereas the prosecution does not. [ Interruption. ] The Secretary of State will no doubt address that point, so I will not dwell on it.

In broad terms, the Bill is necessary, but there are improvements that we need to make—and, given more time, I am sure that we would make even more. At the end of the day, as we are on a tight schedule, I hope that we do not create a situation of injustice. That is the last thing that anybody in the Chamber would want. I hope that those in the other place will have slightly more time to reflect on the Bill and that we will be able to introduce some necessary amendments.

Photo of Edward Garnier Edward Garnier Shadow Minister (Justice) 6:35, 8 July 2008

As Mr. Llwyd said at the outset of his remarks, this has been an informative debate, and we are the better for it. However, where there is broad agreement, there is a need for additional caution. It is in debates on Bills such as this that the other place comes into its own. I hope that we will learn from and be advised by its deliberations later this week and next.

The consensus that has emerged, both from our discussions before this debate and, in particular, during this debate, has not only been consolidated, but has moved subtly on the following issues—issues that I shall come to describe, although they have already been usefully described and considered not only by the Secretary of State and my hon. Friend the shadow Secretary of State, but by Mr. Dismore, who had the advantage of listening to the Director of Public Prosecutions this morning, David Howarth, who gave us another highly considered contribution, my right hon. and learned Friend Mr. Hogg, who as ever came armed with a textbook, Mr. Marshall-Andrews, my right hon. and learned Friend Mr. Howard and, most recently, the hon. Member for Meirionnydd Nant Conwy.

The consensus that I would draw out from all those contributions centres on the following points. First, we do not want anonymity orders to be used routinely—they should be the exception—and we do not want to encourage lazy policing, lazy prosecuting or an informal process to emerge under which such orders become the norm. My experience in the Crown court as a recorder is not quite the same as the experience of the hon. Member for Meirionnydd Nant Conwy. It may just be the luck of the draw, but I find that applications for special measures are quite rare, and those that are made I rarely grant, but there we are.

We all want sensible and proportionate rules in place for the judges to consider and apply. We want a presumption in favour of openness, because open justice leads to fair justice, and fairness is required under the European convention—and was required under common law—and, whether under common law or the convention, was recognised by the Judicial Committee in the Davis case as essential.

I suggest—the Government might want to consider my suggestion, both this evening and between now and the Bill's arrival in the other place—that there is also a consensus on special counsel. My right hon. and learned Friend the Member for Sleaford and North Hykeham spoke about that point in interventions and at further length in his speech. I suggest—I am sure that the hon. and learned Member for Medway, who has considerable criminal justice experience as a barrister, would make the same suggestion—that we need to employ special counsel in such cases.

I would add to the list the need for an objective test of anxiety—that is, an objective assessment of the risk to the anxious witness or those associated with him. We should not allow a witness simply to assert that he is anxious for his safety, his life or his property. I suggest that the judge would be assisted by the intervention of special counsel dispassionately to lay out the facts and help him to reach a just conclusion.

A consensus has formed on the introduction of a sunset clause, too. A number of amendments and new clauses have been tabled that propose different dates and mechanisms, but the House has come to an agreement—and, through their new clause, the Government have joined that agreement—that a sunset clause is imperative.

My right hon. and learned Friend the Member for Folkestone and Hythe congratulated the Judicial Committee on not asserting some form of supremacy over this place, but inviting us to do what we should do—legislate to fill the vacuum that its decision has created. Too often nowadays the response to judicial activism is parliamentary abuse, but my right hon. and learned Friend's speech was an exception. Indeed, in all parts of the House today there has been a proper recognition of the need to respect the wisdom and advice of the Law Lords, and to fulfil our duties in dealing with the problem that they have set us. It is now up to us, in the period that remains to us this evening—I trust that it is not controversial to say that we have not enough time in which to scrutinise the Bill properly—to produce a scheme for the provision of anonymous witness orders that meets the requirement for justice in each case, and provides fairness under the rule of law.

Photo of Maria Eagle Maria Eagle The Parliamentary Under-Secretary of State for Justice 6:42, 8 July 2008

I shall respond briefly, given that I shall deal in more detail in Committee with some of the points that have been raised.

I welcome the constructive way in which Members in all parts of the House have dealt with the Bill so far. There has been wide agreement on much of it. My hon. and learned Friend Mr. Marshall-Andrews observed that it was small but perfectly formed. I do not think I have ever heard him say that about a Bill before. Between all of us, we must be doing something right. I am also grateful to the Front Benchers in all parties for the constructive way in which they have worked during the short period available to produce the Bill in its current form. We are all determined to produce a Bill that is fair to the defendant, protects the public from dangerous offenders, and ensures that witnesses receive the protection that they need from intimidation and violence in appropriate cases.

Many of those who have spoken in this short debate have raised issues of concern that remain. I can assure them that, as far as the Government are concerned, the granting of witness anonymity should be an exception and should not become routine. Some Members who are legal practitioners clearly feel that it has become rather too routine. However, as my hon. Friend Mr. Dismore, who made an erudite and helpful contribution with the benefit of having heard the Director of Public Prosecutions give evidence to his Committee earlier today, pointed out, according to a snap survey conducted by the Crown Prosecution Service, witness anonymity has been attached to some 580 of 1.3 million cases in the courts over the past year. That indicates that it is exceptional rather than routine, and we certainly do not intend to turn it into a routine procedure.

I think we all agree that sensible and proportionate arrangements are needed for the granting of anonymous witness orders, and that there must be a presumption of openness. Open justice is the most important element, and the article 6 rights of the defendant must be the primary consideration in ensuring a fair trial. That requirement is at the core of the Bill.

A number of Members approved of the proposal for a special counsel. A group of amendments deals with that issue, but I will say now that it is not absolutely clear from either the amendments or the comments that have already been made what role is envisaged for the special counsel—whether, for instance, he or she might be a friend of the court or a protector of the rights of the defendant. We must be clear about that if we are to proceed, but if we are not able to consider it during the passage of this Bill, it may be possible for us to do so when we debate the replacement legislation later in the year.

I am glad that there has been general agreement on both sides of the House, although not in every detail, as the new clauses show, that the provision of a sunset clause is right in the particular circumstances of the Bill. I am glad that, having discussed the issue with Opposition Front Benchers and others with an interest, the Government have been able to reach a view that is acceptable to all.

I enjoyed the speech of Mr. Howard. I know how bruising it can be to be Home Secretary, and to have to hold one's tongue when judicial reviews are flying around and decisions are being made with which one may not agree. Revenge is a dish best served cold, and the right hon. and learned Gentleman clearly enjoyed that aspect. What I particularly enjoyed was the irony that judicial activism of an extreme nature has led the judges to set out the boundaries of their capacity to influence these matters. They have certainly alerted us to the existence of an issue that needs to be resolved.

I agree with all Members who have accepted that the Government are acting in good faith. The matter needs to be dealt with swiftly, and we are grateful for the co-operation that we have received. I understand the point made by Mr. Hogg about the undesirability of speed. I hope that, whatever goes on to the statue book at the end of July, we can return to the issue more fully and at rather more leisure in debating the fourth Session Bill.

Question put and agreed to.

Bill accordingly read a Second time.

Bill immediately considered in Committee, pursuant to Order [this day].

[Sylvia Heal in the Chair]

Clauses 1 and 2 ordered to stand part of the Bill.