I beg to move amendment No. 35, page 2, line 26, leave out subsection (2).
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With this it will be convenient to discuss the following:
Government amendment No. 40.
No. 20, page 2, line 27, leave out 'prosecutor' and insert 'court'.
Government amendment No. 41.
Amendment No. 2, page 2, line 27, at end add—
'(3) The court must give every party to the proceedings the opportunity to be heard on the application.
(4) For the purpose of considering an application for a witness anonymity order the court may appoint an independent counsel to assist the court, and, without limiting the directions that the court may make, the court may direct the independent counsel—
(a) to inquire into the matters that are set out in sections 4 and 5 and any other matters that the court may think relevant, and
(b) to report his findings to the court.
(5) Where an independent counsel has been appointed, the party who applied for the witness anonymity order must make available to the independent counsel all information in relation to the proceeding that is in the party's possession.'.
Amendment No. 18, page 2, line 27, at end add—
'(3) For the purposes of considering an application for a witness anonymity order the judge may appoint a special advocate to represent the interests of the party not present.'.
Amendment No. 19, page 2, line 27, at end add—
'(3) Any application for a witness anonymity order must be made to the court at the earliest opportunity.'.
Amendment No. 36, page 2, line 27, at end insert—
'(3) The application must be heard by the court in chambers and determined on evidence admissible in a criminal trial.'.
New clause 6— Independent counsel—
'The court may appoint independent counsel to test any evidence of, and to advise it upon, the witness's fears under section 4(6) and the relevant considerations under section 5(2).'.
New clause 7— Independent counsel (No. 2)—
'(1) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.
(2) The court may direct the independent counsel to investigate on the court's behalf any matter the court thinks fit, subject to any instruction the court thinks fit, and in particular to inquire into any matter referred to in section 4(3), 4(6) or 5(2)(d).
(3) The party applying for the witness anonymity order must make available to the independent counsel all information relating to the proceeding that is in that party's possession.
(4) The party applying for the witness anonymity order is responsible for paying the fees of the independent counsel.'.
Amendment No. 35 relates to clause 3(2), but many other amendments and new clauses tabled by Members on both sides of the House deal with the important issue of the independent counsel, and I expect the debate to concentrate more on that than on amendment No. 35. The group also includes amendments concerning procedure requirements, including Government amendment No. 41, which I very much welcome.
Clause 3(2) builds on the provision earlier in the Bill that anonymous witness orders may be sought not just by the prosecution but by the defence. It goes on to say, however, that if the defence obtain an order, the prosecutor will still get to know the identity of the witness. However, it is a fundamental aspect of the Bill that if the prosecution obtains an anonymity order for one of its witnesses, the defence team does not learn the identity of the witness. This is a bad idea for a reason that goes to the heart of the problem with anonymous witnesses. If one knows the identity of a witness, one can research their background and record, and with that information one can conduct a far more effective cross-examination than one can without it. The prosecution will, therefore, be in a far better position if the defence obtains an anonymous witness order than the defence will be in the opposite circumstances. The defence cannot know the identity of the anonymous witness, so it cannot conduct effective research into that witness. It will, therefore, be in an unequal and unfair position compared with the prosecution. The amendment therefore seeks simply to strike out subsection (2).
There is also a fundamental human rights problem, which I do not think the Government have properly addressed so far—and I wonder whether it has been addressed by the Joint Committee on Human Rights. Article 6(3)(d) of the European convention on human rights says that defendants are entitled to examine witnesses on their
"behalf under the same conditions as witnesses against" them. It is clear to me that subsection (2) violates that rule. What will happen in a case where both the defence and the prosecution obtain witness anonymity orders? It will not be true that the two sides are operating under the same conditions; they will be operating under fundamentally different conditions.
The Government have said that this is not a problem because the prosecution will not tell the police the identity of the witness. It is technically true that the police are not the prosecution's client, but how will the prosecution investigate the background of an anonymous defence witness, whose name they will often know, other than through the police? In the television programmes where lawyers go gallivanting around the countryside doing their own investigations lawyers might look into the background of witnesses themselves, but in the real world the police carry out the investigations. Furthermore, simply saying that the information will not go to the police, which I do not think is true, does not meet the point about fairness and unequal treatment; in fact, it reinforces it.
The obvious way out of the clause 3(2) problem is the independent counsel—an institution that could be used not just in the ordinary case of a prosecution anonymous witness, but in the opposite case of a defence anonymous witness. That way out of the problem is much better than the Government's.
I hear what the hon. Gentleman says, but is there none the less not a difficulty in that if the independent counsel is to investigate the witness, they will have to know who the witness is and something about them, and that information can very often only come from the police, who have access to intelligence and other material not known to anybody else?
That is a problem, but it is one that arises in the ordinary case in any event, because in most cases the police are not the primary investigatory tool of the defence. One hopes in a perfect world that they might be, but, as I understand it, that is not how things actually work.
The problem can be overcome by having one or two independent counsel, depending on whether both sides obtain witness anonymity orders, and for each side to be treated exactly the same. One cannot, however, overcome the problem that the prosecution has at its disposal the forces of the state. It is one of the fundamental problems with criminal prosecution that the state always—or nearly always—has more resources than the defence. That is one of the reasons why I agree with the right hon. and learned Gentleman's view about the balance between convicting the innocent and acquitting the guilty.
I hope that the Government will listen to the case that will be made for having the independent counsel. One view, which I have heard Ministers allude to, is that the judge can do the investigatory work. That is implausible given the judge's other tasks, and it is also implausible to expect a judge who was, for example, a commercial silk suddenly to turn into a criminal defence or prosecution lawyer. [Interruption.] Rob Marris mentions French television. He is right that one of the fundamental aspects of the independent counsel idea is that it introduces an investigatory element into our system, but it does so in a way that preserves some basic adversarial aspects, in so far as the questioning is by a lawyer, not a judge.
I constantly return to the point that the independent counsel system will protect not only the defendant, in being a safeguard against a miscarriage of justice, but the process itself when otherwise the court might decide not to grant an anonymity order, or an appeal would be successfully lodged. In the most difficult case of all—the "sole" or "decisive" case—where credibility is an issue, the only hope of getting through the human rights standard is the independent counsel. Therefore, if the Government turn down this method, in effect they will be saying that in future fewer cases will have a chance of succeeding than do now.
The Government asked how the system would work: what process do its proponents envisage? It is true that it is a hybrid between what happens now and what might happen in a more continental system, but fundamentally the independent counsel, as it says in the New Zealand statute, assists the court. The job is to assist the court in deciding whether to grant the order.
Independent counsel will investigate two matters and report to the judge: whether the need for an anonymity order has been established—whether there is evidence of threat to the safety of the witness, or of the other criteria laid down in statute—and whether the witness lacks credibility. Independent counsel would therefore be of great assistance to the court with both those tasks.
As I understand it, the Government object to the idea, first, on the ground that it seems complicated. That is true, I suppose, but it does not seem too complicated for the New Zealand courts to operate. Another possible objection is that it might be expensive, but it seems obvious to me that it would be less expensive than fighting appeals—and especially losing appeals.
As the hon. and learned Gentleman says, it would also be less expensive than fighting retrials. In any case, the current position whereby independent counsel can be appointed seems a parallel one, although, as we said in an earlier debate, whether the current judiciary know that they have such power seems unclear.
What does the hon. Gentleman think should be the test for the judge in listening to the report of the special counsel? That the witness is capable of belief? That he is prima facie telling the truth? What burden should the judge impose on the special counsel to convince him—if the task is to convince him—that someone is not to be called as an anonymous witness?
That is an issue for a future debate on a later clause, and I would prefer not to spend the Committee's time on it now. The answer with regard to the independent counsel is that the task is investigating according to the standard in the statute—whatever standard that is—and is therefore governed by what the statute says.
With great respect to the hon. Gentleman, the question that Mr. Cox has just asked him is very germane to this debate. It is incumbent on those moving that these provisions should be included in this emergency Bill to be clear about what the exact implications are. I beg to suggest that the hon. Gentleman is not all that clear.
I do not want to be accused of anticipating a future debate, but this issue is precisely that raised by the amendment of Mr. Hogg, on whether the standard should be that the court may make an order if it is satisfied about the conditions, or only if it is sure. The independent counsel would work to whichever of those standards was in the statute, and I do not see how that issue is at all relevant to the question of whether we should have an independent counsel system in the first place.
The other point that the Government seem to be making is that this issue could be dealt with by issuing guidance on the existing power. The trouble with that is that the existing power appears, first, not to apply to the magistrates court. Secondly, it seems to be exceptional, and, as we have already discussed, it ought to be exercised rather more often than exceptionally. Thirdly, on a practical matter, it is not clear under the existing system exactly who pays and how much. That issue should be dealt with by the statute.
I doubt whether the situation is as the hon. Gentleman says. As I understand it, magistrates would be able to write to the Attorney-General to ask for a special counsel to be appointed, just as a judge would do, I think, using the more ordinary route. They would not just appoint under inherent jurisdiction, but would write to the Attorney-General asking for an appointment to be made in that fashion. I do not think, therefore, that there is a bar on magistrates courts having such assistance—if assistance it be—but it is very difficult to get a clear view of what special counsel is intended to be at all in this case. Is it to be a person who represents the defence, so that there are no secret things that the defence counsel cannot know, because he must pass them on to his own client? Alternatively, is it, as Mr. Hogg suggested, really an aid to the judge; or is it, as Mr. Garnier suggested, somebody who susses out whether the witness is really frightened or not? All three conflict with each other. Is that not the problem with trying to get a provision such as this into legislation now, rather than waiting until we have sorted out what we really want?
On the hon. and learned Lady's point about magistrates courts, this seems to add yet another problem to the existing arrangements, in that one has to apply to the Government to get a special counsel. I suggest that that is not the right thing to do; there should be a more direct route. On her second point, it seems clear to me that the independent counsel assists the court and thereby protects the defendant, but also thereby protects the process itself from challenge. That seems perfectly straightforward.
I really cannot understand the Government's argument that there is a lack of clarity about the counsel's role, given that it is set out explicitly in new clause 7, in my hon. Friend's name. What could be more explicit than the phrase
"an independent counsel to assist the court", followed by a reference to the independent counsel's acting on the direction of the court in such a way as the court may see fit?
That is precisely right. Our new clause is explicit, but my impression is that the amendments and new clauses proposed by other Members have the same intention—that the purpose is to assist the court in coming to the decision that it is given by the statute to make.
Does the hon. Gentleman not agree that the purpose of the amendments and new clauses drafted by him and by me is in no sense to relieve the judge of the obligation of determining whether he or she is satisfied that the conditions and the criteria are laid out, but to investigate things preparatory to their making that adjudication, and that the judge can ask questions of the relevant witnesses, informed by a prior report from the special counsel?
That appears to be what happens in the New Zealand example, and it is one way in which I would expect the system to work here. This is a way of getting better, higher-quality and more defensible decisions from the court when it is required to make the decision that the statute requires it to make.
I agree with the hon. Gentleman's argument. When I questioned the Justice Secretary earlier, he shook his head violently at the idea that there is not equality of arms in this clause. This provision would deal with that problem, but it would presumably keep the whole matter in-house, as well, and there would be a report specifically to the judge—be it regarding anonymity of a prosecution witness, a defence witness or both. This is a good example of a practical solution.
That is precisely right. This idea solves a lot of problems, which is why I am confused and unclear about why the Government seem to be resisting it.
I hope that the hon. Gentleman will forgive my observing that if we had had more time, we would be getting in touch with the New Zealand authorities to ask them about their experience. That might have resolved all the problems raised by the Solicitor-General.
I am sure that e-mail works rather better than ordinary mail did in the old days, but in principle I agree with the right hon. and learned Gentleman.
I want to let other Members speak and there are a number of other amendments in this group, but I want to finish by referring briefly to an issue on which the Government have moved, for which I thank them. Regarding the group of amendments on the procedure for deciding whether to grant an order, there was concern that no procedural provisions were being made in the Bill. The Government have now moved amendment No. 41, which goes a long way towards removing those concerns. I still have one small worry, however, about the standard of evidence admissible in the hearing before the judge. That is why I have moved amendment No. 36—just to test the issue and to ask the Government how they see that question being answered. On the basis that amendment No. 41 shows that the Government are listening, I welcome it. I just hope that they will also listen on the central issue of the independent counsel.
I largely agree with the broad thrust of what David Howarth has said and I do not share the confusion that appears to have arisen in the mind of the Solicitor-General. I also accept the point made by my right hon. and learned Friend Mr. Hogg that if we had more time, these niggles could be ironed out, but we do not, so we will have to do the best that we can.
While I accept what the hon. Gentleman said about the need for a special advocate, I approach his arguments about amendment No. 35 somewhat differently. Our suggestion is not that the whole of subsection (2) should be deleted, but that the equality of arms that we seek should be achieved through amendment No. 20, which requires the insertion of the word "court" instead of the word "prosecutor" in clause 3(2), so that the court, not the prosecutor, would have to be informed about the identity of the witness.
I shall not rehearse the arguments about the links between the police and the prosecution system, because that would be tedious and repetitious, but those arguments are important. The Bill and the system of justice would be strengthened were the information to be given to the court, not the prosecutor. If the Government accept amendments relating to the appointment of special counsel or advocates, it would be sensible for the court to include the special prosecutor, because he would be conducting himself for the benefit of the court, albeit by collateral advantage—if he did his job properly, it would be to the benefit of both the warring parties, the prosecution and the defence in any given case.
I, too, am pleased to note the Government's amendments in relation to the process by which the applications will be made. It must be sensible that those interested should be given an opportunity to be heard and to explain their case—or their resistance to the case—on the application as appropriate. I accept that on some occasions the application will be made, at least initially, ex parte, but it may on occasion be right and just that the matter should be contested inter partes at a later stage.
However, we urge that any application—this is the thrust of amendment No. 19—for a witness anonymity order must be made to the court at the earliest opportunity. That may be an obvious request, but far too often advocates or lawyers advising either the prosecution or the defence do not apply their minds to the marshalling of the necessary administrative orders until far too late a stage, which delays the speed at which the trial can progress. I urge that any change to the Bill should include a requirement along the lines of amendment No. 19.
None of the amendments on special advocates were tabled by me or my colleagues on the Front Bench, but I do not think that that matters. What is important is that we get the Bill right. Amendment No. 2, tabled by my right hon. and learned Friend, is an attractive attempt to address the problem, although I do not suggest that he has every dot and comma in the right place or that an inclusion in the Bill of a provision on special counsel should necessarily be in this form. For my part, I dealt with it as a relevant consideration in amendment No. 24 (ai) to clause 5.
In any case, we all have the same aim—to try to produce a system that preserves fairness as much as possible. Special advocates or independent counsel are no more than a compromise solution, and are by no means ideal. They must surely offend the principle that we expect fearless independent representation for the defendant, untrammelled by interference from the Government, Parliament or other mighty influences. If we are to have anonymous evidence, the court needs assistance in finding the facts on which to make its decision whether to grant an application for an order or not. Necessarily, the respondent to an application under clause 2 cannot know the details of the witness, which, if published, would negate the purpose of the application.
The prosecution cannot protect, or be seen to be protecting, the rights and interests of the respondent, albeit that as a matter of professional duty they try to do that. The defendant, or defence witness, has no obvious interest in being open with the prosecution, albeit that those who represent them would, in line with their professional duties, endeavour to be so. We agree that the courts should have the discretion to appoint a special advocate under the Bill, to ensure some fairness in an area of procedure in which unfairness is undeniable and unavoidable. If we are to take away the defendant's fundamental right to know and freely to cross-examine his accuser, we must build into the system mitigating measures, and the special advocate would be one such—albeit imperfect—measure.
Special advocates are used in cases involving suspected terrorists and control orders, heard by the Special Immigration Appeals Commission. There, they are creatures of statute, not the common law, albeit that in matters affecting disclosure the ordinary courts have an inherent power to appoint special counsel, as my right hon. and learned Friend reminded us. However, they are not the same as the amicus, the friend of the court, brought in to help the court on the law, or as counsel to an inquiry such as the Hutton inquiry. They need precise statutory provision to allow them to exist and they cannot be developed from some imprecise, inherent power.
The consensus that I identified in my closing remarks on Second Reading does not quite include the amendments on the need for a special advocate, if the interventions by Ministers so far are a true reflection of their position. I hope that at some point—preferably today—the Government will move towards us, just as we have moved towards them on many of the details of the Bill. I am not sure whether David Howarth intends to press amendment No. 35 to a Division. If he does, we will follow him, not because we support it, but because we want to use it as a means to demonstrate our support for the special advocate.
I shall not detain the Committee for long, but I wished to address the powers of independent counsel and give a harmless example of how one might be used in a hypothetical case. I have burdened the Solicitor-General with precisely this example already, so I apologise to her for the repetition.
Let us take the not unlikely hypothesis that I am representing somebody in a serious criminal case and anonymity is sought for a witness. The witness, of course, is named with a pseudonym, or simply as A, and we have a statement that is heavily redacted so that everything in it that should give us the identity of that witness has been removed. None the less, the witness is important from our point of view.
It appears from the case papers that the witness does not have an axe to grind and was a bystander or someone who was otherwise innocently involved, but the evidence is still important. I say to my client, "What do we say about this?", and my client says, "I think that this witness is X. There are things that I see on these papers that lead me to believe that I can identify the witness and I can tell you that the witness is not the innocent bystander that she makes herself out to be." The client might say that the witness was partisan, for example, because she was married to or related to the main prosecuting witness, and had an axe to grind in some way that was not revealed in the papers.
Without a special advocate, I can put all that in writing and articulate it in court, if necessary. I can give it to the judge and ask him to make his own inquiries about whether I am right or wrong, but I cannot take it to the next stage if the judge says, "Well, you're right, as a matter of fact." What can I then do about it? What representations and advocacy will be made to me about the steps that I can take once I have established, as a first fact, that my client has correctly identified the person on the statement? That is when an advocate is required. The advocate will go to the judge's chambers, with prosecuting counsel, and the judge will say, "You are right. This witness is X, but we do not know at this stage whether the witness is partisan or whether the allegations made by you to me are true." The special counsel will be acting after a conference with me as defence counsel in which I will have told him all the things that we believe and asked him what he thinks we ought to do. Special counsel will then say to the judge, "You ought to set in train the following inquiries."
What does the hon. and learned Gentleman think is the difference between the situation that he is outlining and that which frequently arises in the courts when an application is made by the Crown to disguise the identity of an informant? Precisely the same considerations arise, yet no special counsel is allowed. I wonder whether the Government's concern is that by opening the door in this Bill they will be opening the door for matters relating to disclosure in Crown courts.
With great respect, if the hon. and learned Gentleman does not mind, I do not want to go down that interesting diversionary route. Public interest immunity is different. PII judges are armed with different considerations and prosecuting counsel has clear lines of inquiry. The concept of informants is well known. What I am talking about is a witness in a case who might have completely misled the prosecuting authorities about the nature of his role as a witness. I want to concentrate on that for a moment, if the hon. and learned Gentleman does not mind. PII is imperfect, as we all know, but this provision could be very imperfect.
In such cases, what is necessary is an advocate who knows what the facts are, knows the identity of the witness and can advocate what the judge should do in those circumstances. More than hypothetically—almost certainly—they could say, "It is our submission that you should put into train the following inquiries in relation to this witness before you make a decision. If necessary, you must use the prosecution in order to do so." That would mean that somebody could come back and say, "Yes, on inquiry, they are right. This witness is apparently not the person that he or she appears to be."
In such circumstances, an advocate is needed. It cannot be done in the abstract. There are two reasons for that. First, advocacy is not a bad idea anyway. Secondly, and more importantly, if the judge says, "I will not do that. I will not put those inquiries in train", there is cause for appeal based on what the judge has said. If one does not have a special advocate, one does not know the basis on which the judge has arrived at that decision, and one never will. That is a hypothetical example.
Might I suggest to the hon. and learned Gentleman a further advantage? If one is right to think that the protective measures in cases where credibility is the primary issue will, generally speaking, always fall foul of the unfairness rule, the special counsel approach, which he is advocating, will go a long way to meeting the European jurisprudence and satisfying the test of fairness.
I agree entirely. That is a strong tangential point to the one that I hope I am making.
I would have thought that if one did not have an advocate in such circumstances, the chances that a number of cases would transgress article 6 and other parts of the convention would be very high indeed. An inquiry would take place extra-territorially, which is extremely undesirable when we ought to be able to do it ourselves.
I have wearied the Committee with this example. I hope that it is thought to be one that is reasonable in the circumstances and likely to occur in a number of serious cases. I have thought about a way around that and I can find none. It prompts one particular question, which has something to do with angels and pins: who precisely does the special counsel represent and what is his role? That is not difficult. The special counsel is manifestly a minister of justice in the same way as everybody else. He is there to see that justice is done. One of his roles is precisely the same as that of a Special Immigration Appeals Commission counsel, who talks to the representative of the terrorist or suspected terrorist who is subject to a control order, finds out what his instructions are, and conveys those instructions back to the tribunal, to which he has unique and independent access. I can see nothing wrong with that, but I can see enormous advantages, particularly as it is a power that will be rarely used. It will be used only in the most serious cases and when judges, in accordance with that, perceive the need for that additional power.
I shall listen with interest to see what the Government say is wrong with that. So far, I have heard nothing on it. I dare say that something will come, but this is an attempt to be as helpful as one possibly can be.
I rise briefly to endorse what Mr. Marshall-Andrews has said. His explanation of the circumstances in which the special counsel is likely to be required is entirely accurate and seems to meet the real difficulty that Davis has thrown up. To go back to Davis, the problem that we rarely confront when we discuss the detail of the Bill is not the question of whether the common-law power ever existed, but the question of whether protective measures, when credibility is at issue, can ever be fair or, to go a little further, whether they can ever be compatible with the European jurisprudence. It is important to keep in mind the fact that the Law Lords all held that the protective measures in that case were such as to render the trial unfair and incompatible with the European jurisprudence. We must ask ourselves how, using protective measures as prescribed by the Bill, we can still ensure fairness.
What the hon. and learned Gentleman has suggested seems to me to be the clear way forward. If we do not follow his advice, or accept amendment No. 2, which I have taken the liberty of tabling, I suspect that the measures set out in the Bill will very seldom be invoked when credibility is an issue. The outcome will almost certainly be deemed unfair, either on appeal or when the order is applied for. To endorse the point made by David Howarth, the presence of a special counsel is a way of ensuring that applications can be made, but also a way of ensuring that they are not made inappropriately. I hope that Ministers will seriously consider putting that provision in the Bill, either today or in the other place.
Very few practitioners are aware of the latent, inherent power of the court to appoint such counsel. In any event, it is right that we should make statutory provision for it. We have done so in other cases, such as in the Counter-Terrorism Bill, which makes specific reference to special independent counsel. We should not shrink from that simply because there is an inherent power. If it is inherently desirable, statute should say so.
Would not the confusion about the precise role of the special counsel, which has been identified in the debate, be likely to be in the mind of any tribunal seeking to exercise an inherent power that was not set out in statute, as my right hon. and learned Friend suggests it should be?
That is entirely right, although of course confusion does currently arise when an independent or special counsel is appointed in the context of disclosure, for instance. The query that the Solicitor-General raised can arise in that situation. Amendment No. 2, which is based almost word for word on the New Zealand Act, clarifies the point precisely. Under it, the independent counsel would answer to the judge, address the considerations and conditions set out in clauses 4 and 5 and respond to specific queries from the judge. In other words, he would be acting as a minister of justice, as the hon. and learned Member for Medway said. In one sense he would represent the defendant's interests, but he would also represent those of a court that needed to be better informed. Putting that role in statute would both respond to the point that my right hon. and learned Friend Mr. Howard identified, and satisfy the anxieties that the Solicitor-General expressed.
May I remind my right hon. and learned Friend about the specific provisions in the Special Immigration Appeals Commission legislation? It states not that the special advocate is to represent the respondent but that he may represent their best interests.
Yes, indeed. My hon. and learned Friend is quite right. In all the legislation in which special counsel has been provided for, it has been stated explicitly that that he does not answer to the defendant or respondent. He has a special free-standing role, and is a minister of justice, but he is subject to the authority and directions of the judge. That is a way forward, and would ensure that the cases in question had a much better chance of satisfying EU requirements.
I rise to speak to new clause 6, which is my proposal on independent counsel. But before doing so, I shall respond to David Howarth, who asked whether the Joint Committee on Human Rights had considered the point that he raised about article 6(3)(d) of the European convention. We have not considered it specifically, but we did raise it with the Director of Public Prosecutions this afternoon and discuss with him the equality of arms, or otherwise.
We are comparing apples and oranges, because why would a defence witness require anonymity? Their position is rather different from that of a prosecution witness, who might well be afeared of victimisation by the defendant or his associates. What could a defence witness be afeared of? Victimisation by the police, perhaps, but it is rather unlikely.
I shall finish the point and then give way.
It is probably more likely that defence witnesses would fear victimisation by other criminal associates. In those circumstances, the prosecution must have the opportunity of looking into the antecedents of a defence witness. That is a different kettle of fish entirely from a prosecution witness, who will have different fears. The hon. and learned Gentleman's point about the need to give the information to the court gets us no further, because the judge knows the anonymous witness's identity anyway, as would an appeal court. That is the position now, and will continue to be the position.
Might not a witness who has been called by one defendant apply for an order because he is worried about another defendant, represented by a different counsel? The defendant who has called him might say, "It wasn't me who caused the affray, it was so-and-so, and here's a witness."
My hon. Friend is entirely right, and it would be appropriate for the prosecution to be able to investigate that. A defence witness is a completely different kettle of fish from a prosecution witness. As I have said, the JCHR has not discussed the matter in detail and come to a view on it, but I am giving mine, which pretty much relays what the DPP said to us today.
Is not that explanation a further argument for rethinking clause 3(2)? It seems that it is intended to deal with a number of different problems. On one side there is the witness who is afraid of what the police might do, and on the other there is the witness who is afraid of what other defendants might do. It seems entirely wrong for one clause to deal with both those problems. With the latter type of witness in particular, consent will be an issue. They might want the police to investigate, in which case they could say so.
If that is the case, there is no problem. I do not see any significant difficulty with clause 3(2), for the reasons that I have given. I certainly agree with the hon. Gentleman's more important point that the way to resolve the difficulties is by having an independent counsel, who could get to the bottom of the story.
There has been some loose language in the debate. Hon. Members have talked about independent counsel, special counsel and special advocates. We need to be more precise and tight in our language. I have not used the term "special advocate" in the new clause, because it has certain connotations in our legal system. Special advocates have given evidence to the JCHR on several occasions, both formally and informally, and one of their main concerns is what they call "mission creep" in terms of how the system of special advocates has spread from counter-terrorism. That is why I have used the term "independent counsel", which I believe is drawn from the New Zealand system.
The new clause is intended to codify the inherent jurisdiction that already exists. It would not create anything new, as I am effectively proposing a type of amicus whose job is to advise the court without specifically representing either party involved in the case.
We need to be careful because, as the Government have said, the provisions could easily get out of hand. I am concentrating on the "civilian cases", as the DPP puts it—the 50 or so cases that do not involve the police or security services, in which credibility will be the key issue. I have phrased the new clause to exclude public interest cases, such as those involving undercover police, and to focus on the key issues: the basis of the witness's fears and whether the relevant credibility considerations in clause 5(2) are met. The independent counsel would test the evidence for that and advise the court accordingly. It seems to me that that would create a regime limited enough to meet the Government's concerns and objections and also provide the necessary independence that we all want, yet at the same time one that would not get completely out of hand when it came to the other issues.
My hon. Friend may well be coming to this point, but will he deal with what appears to be an immediate and obvious problem? How will the evidence be tested? Will there be a trial-within-a-trial—a voir dire—and, if so, how will that take place? Who will preside over it? Will it be in chambers or open court? I do not want to go on, but is that the sort of trial that he envisages?
The starting point would be a hearing before the judge, as happens now. Government amendment No. 41 proposes an initial ex parte application followed by an inter partes hearing, and the independent counsel would play a role in both aspects.
I do not think that we can achieve perfection, but that is probably the way forward. It may be possible to test some of the evidence on paper initially, but it may ultimately be necessary to have the witness at least on an ex parte basis. That would depend on what the system throws up: we are talking about a relatively small number of cases, and I do not think that what I propose would be unmanageable.
Might I suggest that one answer to the question from Mr. Marshall-Andrews is that there might have to be a voir dire, in which the witness is questioned in front of the judge? The judge would also be able to ask questions. The preliminary research by independent counsel would be made available to the judge, so that there could be informed questioning at the voir dire.
The right hon. and learned Gentleman is right, and what he suggests would have to be on an ex parte basis. That is where the independent counsel comes in, as he would perform any cross-examination of the witness that proved to be necessary.
That approach would be something of a last resort, to be used only when a preliminary inquiry had thrown up real questions of credibility. There may be no credibility problem in many of the 50 cases that we know about. The DPP said that such problems would arise in some of the 30 Operation Trident cases, but that implies that they would not in many others. The approach that I have outlined might be necessary in cases such as the Davis case, but that eventuality would probably turn out to be the exception to the exception to the exception, as it were. The inherent jurisdiction, together with the Government's proposal for ex parte applications and inter partes representations, starts to achieve the outcome that I have set out.
We are told that there are concerns about costs, but a maximum of 50 or so cases a year will not lead to costs that are unmanageable, given the importance of the cases that we are talking about and the overall interests of justice. I think that the costs should be borne by public funds.
As for magistrates courts, it is presumably within the Attorney-General's discretion to grant any application made to him. The process is extremely complicated, whereas it would be simpler to allow the magistrates to have a similar jurisdiction. I put that to the DPP earlier today: he agreed that if magistrates did not have that inherent power, the suggestion to give it to them had merit.
There seems to be consensus around the House, if not in the Government, about the importance of independent counsel. I hope that Ministers have listened to the debate and that, if they cannot resolve the matter this evening, they might introduce amendments to this Bill in the other place. If that is not possible, I hope that they will bring forward suitable proposals to resolve the problem in the long term in the more substantive Bill that we will see in the next Session.
I thank the Government for Government amendment No. 41, which makes it clear that there has to be a hearing, and that no trial will be held entirely on paper, unless that is what all the parties involved agree to.
I want to make some remarks about the independent counsel. I am quite attracted to amendment No. 2 and new clause 7. I hope that the Government can make some movement on those proposals or persuade me that there is no need for an independent counsel. As a lay person—I am a solicitor, but I have not done much criminal law, and even then not for many years—it seems to me that fairness demands that there should be an independent counsel. I understand from the helpful remarks made by my hon. and learned Friend Mr. Marshall-Andrews that similar systems are in place elsewhere. I remember the discussions that we had with the Special Immigration Appeals Commission about what should be done in respect of terrorist and other cases, and it seems to me that an independent counsel could be of great assistance both for fairness and the for appearance of fairness.
The appearance of fairness is of particular importance in our criminal system. We in this House must always be careful when we are dealing with matters such as these. Many of our constituents see terrible behaviour in their communities. They would like to be witnesses, but think it only right that they should have anonymity. Quite understandably, they overlook the existence of the balance that we have been talking about—that is, that a defendant should have some idea of the case being made against him and of who is assisting that case, most likely as a prosecution witness.
As we have noted, it is very important that the system should not be stacked in such a way that innocent people end up being convicted because they cannot test the evidence against them properly. When that happens, we have a double problem: an innocent goes to prison—that is not desirable at all—while the person who committed the crime and created the mayhem is allowed to run around outside.
We need a fair and properly balanced system, one in which evidence is tested in favour of anonymity, and to that end, an independent counsel who would "assist the court", as both amendment No. 2 and new clause 7 propose, would be desirable. I hope that, if the Lord Chancellor is replying to this debate—
I am grateful to my right hon. Friend for that sedentary clarification. If the Government do not think that the amendments are appropriate, I hope that he will elucidate why. Mr. Hogg has said that amendment No. 2 is very similar to the provisions in the New Zealand legislation on which the Bill is broadly based. I think that it is a good idea, and I hope that the Lord Chancellor will show some movement on the proposals. Failing that, I hope that he will present some cogent arguments as to why the amendment would not be appropriate. He needs to explain why it would merely be a fig leaf when it comes to giving an appearance of fairness, and why it would have other negative effects. As I have said, it sounds rather attractive to several of us on the Government Benches.
This has been a measured debate, and I thank hon. Members of all parties for their contributions. I shall deal with the various amendments that we are considering before I come to the special advocate proposal which, given the weight of opinion in the House, is the most important proposal before us.
Government amendments Nos. 40 and 41, and part of amendment No. 2, relate to a party's right to be heard and the need to put it on to a statutory footing. I am glad that the Government amendments have been generally welcomed on both sides of the House. That is one of the benefits of our detailed consultation with the Opposition parties, even though that inevitably took place in a very short space of time.
Amendment No. 19, moved by Mr. Garnier, would require that an application for an order be made at the earliest opportunity. I accept that in principle, but I ask the hon. and learned Gentleman to accept that the criminal procedure rules are the right place for such a provision. Indeed, the phrase "earliest opportunity" begs a question: it is improbable that the prosecution would delay applying for such an order, as any such application would disrupt the trial process. Exactly at what point they are able to do that, however, will depend on the merits of the individual case.
Amendment No. 36 would place in the Bill a requirement that the application for a witness anonymity order must be heard in chambers and determined on evidence admissible in a criminal trial. I ask the House to consider for a moment what the implications of that proposal would be. The applications will take place before a judge in chambers, away from the jury. We have exclusionary rules of evidence in England and Wales precisely because of the nature of the jury system. Applications are made without the jury on all sorts of matters that, by definition, may be held by the judge to be outwith our exclusionary rules of evidence and therefore are not to be brought out in evidence to the jury, but have to be before the judge when he is hearing the application. Otherwise, the whole process would end up being risible. As I read the amendment, which refers to the rules of criminal evidence, it would greatly restrict the power of the court in chambers, without the jury present, to consider all kinds of evidence.
Some of the evidence that a court will need to consider in determining whether to make the order will be evidence that the prosecution might wish to adduce, but the judge has held that it cannot, and some will be evidence that the prosecution most certainly does not wish to bring out in open court, such as police and security services intelligence reports, which are the subject of a public interest immunity application but are germane to consideration of the order. Given that explanation, I hope that those who tabled the amendment will not press it too far.
I should say to the Lord Chancellor that I do not intend to press that amendment. One of its main purposes was to probe the Government on what sort of evidence they thought should be used in the hearings. It seems to me from what he has just said that it looks like evidence that is usually inadmissible put in ex parte. Is that not yet another reason why there should be an independent counsel to make sure that both sides are heard?
I will come to that in a moment. Current practitioners in the House at the moment have far more experience than my zero experience of handling cases of this kind. My understanding is that, where applications are being made, the judge has to be satisfied that there is a reason for withholding what would otherwise be fundamental evidence from the defence—for example, the witness's identity and aspects of the witness's background that could lead to his identity. The court has to be satisfied as to the reasons. That may well be police intelligence reports, and indeed Government amendments Nos. 40 and 41 allow for that possibility. I will come to the issue of the special counsel in a moment.
Next, and penultimately, I shall deal with amendment No. 20, which would allow, where there is a defence application, for an order to be made for the witness's real identity to be given to the court but not to the prosecutor. The argument is that there has to be equality of arms between prosecution and defence. It is a straightforward truth in any system of justice worthy of its name that there has to be such equality, but a moment's thought will explain to us that equality of arms does not mean complete symmetry between the role and predicament of the defendant and the role and predicament, if any, of the prosecutor. The vested interests are completely different. It is the defendant who is in the dock. The prosecutor is not in the dock. There is not an either-way verdict which will lead to either the defendant or the prosecutor going to jail. As soon as one points that out—if I may say so, it is a statement of the blindingly obvious, but—
That may be so, but the point was absent from the argument of those who said that the importance of the principle of equality of arms closed the argument as to whether, where an application for an order was made by the defence, the real identity of the witness for the defence should be disclosed to the court but not to the prosecution.
There may well be cases, but I have never heard of one, in which the character of the prosecutor is called into account. It would be extraordinary were that to be the case. Moreover, those acting down the years on behalf of defendants quite properly and rightly have argued that there should be no equality of treatment when it comes to the provision of evidence to the other side. So we have rules under our system whereby not only does the prosecution obviously have to lay the full details of the case that it is going to make in open court before the defence, but it has to disclose sometimes mountains of unused prosecution evidence to the defence. No such equivalent duty is on the defendant, and notwithstanding efforts that have been made by the previous Administration and this one to deal with the situation in which the defence ambushes the prosecution, and the increasing concerns of the courts to see those rules properly applied, there is not, and can never be, equality there.
I will deal with what is at the heart of amendment No. 20. There will be rare cases in which the defence properly feels that it should make an application for a witness anonymity order for a defence witness. I guess that the most likely example that could arise is where there is an argument between co-accused. The defence will come forward with its application to the court. It is of great importance that the court knows who the person is. That will be disclosed to the courts even under amendment No. 20, but the court also has to know a good deal about the witness before it can come to a view. The court has no information about the witness. How could it? The only way in which the court could obtain that information is from the prosecutors, who in turn would have to obtain it from the police. On what other basis could the court learn about the antecedents of the witness, who may well have kept them from the defendant? The antecedents may be incomplete.
Those of us who have to deal routinely, as we all do in the House, with constituents who have criminal records never cease to be amazed at the way in which they forget about the most egregious convictions on their record.
They remember only convictions of the most trivial nature. Indeed, recently I met a man who was applying for a job in the public service. He had a conviction years ago for being drunk and disorderly and he told me in front of a witness, who does not need to remain anonymous, that it was his sole conviction, so I wrote a gentle, but non-committal, letter. Upon further inquiry by me, it turned out that he did indeed have a conviction for being drunk and disorderly a long time ago, but he also had a recent conviction for quite a serious robbery. When he came back to see me, aggrieved that I had not been able to get him the post in the public service, he said that he had forgotten about that conviction and that in any event it was rather trivial. That sort of thing goes on frequently, so the police would have to make inquiries in such cases.
I am fascinated by the Secretary of State's story.
In the absence of a special counsel, I would accept the thrust of what the Secretary of State is saying, but as that would be the purpose of a special counsel he cannot dismiss my arguments—or rather those I borrowed—in relation to amendment No. 20 without bringing into the picture the need for a special counsel. Once a special counsel was doing the job that the Secretary of State did in his surgery, or that somebody else might do for the court, much of his objection would fall away.
The answer to the hon. and learned Gentleman's point was given earlier in the debate. For sure, the special counsel has a role that is different from that of the judge or the prosecutor, but no information is directly available to special counsel; they, too, would have to go to the police. One of the arguments raised about that is that the police could leak the name of the witness. That is an inherent problem in any such case, but I know of no example where the clear order of a court requiring that the identity of a witness be prohibited has been broken. If it was, it would be contempt of court and the police officer would find himself in prison rather quickly.
I take a position that is slightly different from that of my hon. and learned Friend Mr. Garnier and that of the Liberal Democrats. It seems to me that where a defendant who has a co-defendant wishes to have a witness anonymity order made in respect of a witness, the Crown ultimately has a duty to the co-defendant to inform them of any criminal antecedents or other considerations that may make the evidence of the to-be-anonymised witness prejudicial to the co-defendant. The Crown can discharge that obligation only if they know the identity of the anonymised witness.
I am extremely grateful to the right hon. and learned Gentleman for making my point in a rather more elegant way. That is exactly the point. I understand why the amendment was tabled. It is not that there will not be equality of arms—there will—but there cannot be symmetry in a criminal trial, and thankfully no one has suggested that there would be. The amendment reflects concern to ensure that the protected identity of a defence witness is not somehow leaked. However, another area of no symmetry is that it is inherently improbable that if the prosecutor, or even the police, knew the identity of the defence witness whose identity was being protected they would go round and put the witness's windows in, set fire to their motor car or intimidate their children at school, yet all those things could occur in the opposite situation, where the identity of the prosecution witness is being kept quiet.
I turn to the major issue in respect of this group of amendments—the argument contained in amendments Nos. 2 and 18 and new clauses 6 and 7 that the Bill should include a provision that a special counsel be appointed. I shall set out why I ask the House to accept not that there is a profound case against having special counsel—that is not my argument—but that there is insufficient time, not only today but in the limited time of a week that we have to bring the Bill's proceedings to a conclusion, to pin down exactly how a statutory scheme could work. As we have already heard, there is at least one statutory scheme for the appointment of a special advocate. My hon. Friend Mr. Dismore was right to make the important distinction about the appointment of a special advocate in respect of the proceedings of the Special Immigration Appeals Commission, which some of us have come to know and love only too well. It was established by Mr. Howard. I got it going and it has been enhanced since.
In addition, as we have heard, there is an inherent power for the court to appoint a special counsel. It is not used often and Mr. Hogg, who drew our attention to an entry in "Archbold", was correct in saying that it is used only exceptionally. As it happens, the Court of Appeal, in the Davis appeal, sought and was granted the appointment of a special counsel. Those who believe that the appointment of a special counsel is a stay in jail card as far as the prosecution is concerned, and a guarantee against any breach of article 6, might bear in mind the fact that, notwithstanding the appointment of special counsel and the extensive use of special counsel by the Court of Appeal in the Davis case, although the Court of Appeal found in favour of the prosecution in Davis, that was not a particularly persuasive point when the case went to the House of Lords Appellate Committee. The fact that there had been special counsel was of no consequence when the Committee reached its 5:0 judgment on whether there was common-law authority and, to a degree, article 6 authority.
I do not dismiss any of the arguments made this evening by my hon. and learned Friend Mr. Marshall-Andrews—I was about to say "Maidstone" but that was a Freudian slip. Both constituencies begin with "M" and both are in Kent; both are close to the very first constituency I fought, which was Tunbridge and Malling— [ Interruption. ] I lost. Indeed, I came third and took a pound off the Liberal candidate who was convinced it would be him, so at least I came away from the count with something.
I listened with great care to what my hon. and learned Friend the Member for Medway said, as I did to the other right hon. and hon. Members on both sides of the House. We have to pin down some serious issues— [ Interruption. ] I gently point out to those who say we should do it now that the matter is really quite complicated and the proposal is not absolutely necessary because, as everybody has accepted, the court already has an inherent power. Those who say we should do it now are also talking about the dangers of legislating too fast and without proper thought.
My right hon. Friend said that there was not enough time to introduce a statutory scheme under the Bill. The Bill will be subsumed into the law reform, victims and witnesses Bill in the next Session of Parliament. Will he give an indication—or, I hope, an undertaking—that he will seriously consider including a statutory scheme for an independent counsel on the witness anonymity programme, as it were, in that Bill, if not in the Bill that we are discussing tonight?
Yes, of course. My undertaking is that before we publish that Bill, I will indeed give active and urgent consideration to whether a scheme is feasible and necessary, together with my right hon. and learned Friend the Attorney-General and my hon. and learned Friend the Solicitor-General, others within the court system, the Crown Prosecution Service, defence lawyers and right hon. and hon. Members of the House. I do not for a second rule out such a scheme, but I want to get it right.
Will the Lord Chancellor go one stage further than that? The Bill is an uncovenanted bonus, in that it gives us months in which to see whether or not the system works, although I am not suggesting that that is a good way to make criminal justice legislation. Will the Lord Chancellor consider indicating to the judiciary that in that interim period they should consider, in light of the cases that come before them, whether the existence of independent counsel would be of use to them? We could then be given some indication of the answer, possibly through the Lord Chief Justice, when the Bill comes back before the House.
Yes, that is a very sensible suggestion; I will do that. I do not know whether the possibility of courts appointing independent counsel in such cases is less well known than it should be. I am quite clear that it will become better known, not least as a result of these debates, and also through efforts that I will make. That certainly will be factored into the work of the Crown Prosecution Service.
There are issues that we need to consider very carefully to get the measures right. First, there is the question of the kind of witness anonymity order to which a power in respect of special counsel would apply. My hon. Friend the Member for Hendon believes that, in practice, use of the power would be confined to so-called civilian cases, in which civilians—not police officers or intelligence officers—were witnesses to really awful crimes. Some would be innocent bystanders, and some would be far from being innocent bystanders. We need to consider whether to exclude altogether, or provide a presumption against, such special counsel ever being applied for where undercover police officers are used—there are 40 such cases indicated in the CPS's current analysis—or in the case of undercover test purchases; there are currently 290 such cases. We have to pin the matter down before we come through with a legislative scheme. The facility should certainly not be available in the case of test purchases, and probably not in the case of undercover police officers, but we have to look very carefully at the circumstances.
There was debate—and, frankly, uncertainty—about the exact role of special counsel. Mr. Cox asked David Howarth some really pertinent questions on the subject, and they remain unanswered. They are not really questions that can be answered in the Chamber. We have to think very carefully about them.
The hon. Member for Cambridge said that the cost of special counsel, which would be considerable if such counsel were used extensively, would be lower than the cost of convictions being aborted, the implication being that the guilty would walk free. He would be right, if those circumstances came about, but as the Crown Prosecution Service, which pays for special counsel, has a limited budget, voted by the House, we need to have an idea of the potential cost, not least given that special counsel are not used on that many occasions. There is also a practical matter: the number of counsel considered qualified to act as special counsel is fewer than 20. That is really important, too.
I think that my right hon. Friend is in danger of mixing up the special advocate process with the independent counsel process that we are discussing. Special advocates are limited in number because they have to be security-cleared. They perform a different function. Perhaps independent counsel do not have to have the same level of clearance, particularly if we are talking about civilian cases, not undercover or secret service cases. Those are the ones for which security clearance is needed, not the ordinary, bog-standard criminal trial.
I was doing my best not to confuse myself, and I hope that I did not do so on that occasion. We can continue this discussion outside the House, because Mr. Soames—
On amendment No. 35, we have heard that clause 3(2) is not fit for purpose. It tries to deal with too many different sorts of cases. It tries to deal with cases in which the witness does not want information to be passed to the police; cases where the same person is effectively witness for the prosecution and witness for the defence; and cases where the witness is afraid of the other defendants. That confirms my view that the obligation in the clause goes too far. The Government could well think about the clause again and redraft it, but at the moment it seems to be entirely badly drafted.
I accept the offer from the official Opposition to vote for our amendment on the grounds that, if it were carried, the only plausible way out of the situation—and I think that it is the only plausible way anyway—would be to adopt the independent counsel system. It is on that issue that most of the debate has concentrated. Having heard Mr. Marshall-Andrews, Mr. Hogg, Rob Marris and other contributors, I believe that there is an overwhelming case for using that institution. The Lord Chancellor said that it was no guarantee that cases would be able to proceed that would otherwise not be able to proceed, because in the Davis case, at a late stage, there was an attempt to use special counsel. However, that was not the perfect use of an institution that did not have any statutory basis, and there was a lack of clarity about how it would be used. That makes it all the more important that it should be given a statutory basis.
Nevertheless, the argument is not that independent counsel would guarantee better results, but that it would simply make it less likely that cases that would not otherwise go ahead would disappear from the list. All the arguments effectively come down to time. There is not enough time to get this right, but if we do not do anything, it is quite possible that we will make the situation worse. The Lord Chancellor's argument came down to saying that doing nothing can have no consequences, whereas doing something always has bad consequences. With that in mind, we should vote on amendment No. 35.
Question accordingly negatived.
Amendments made: No. 40, page 2, line 26, leave out 'the application' and insert
'an application under this section'.
No. 41, line 27, at end insert—
'(3) The court must give every party to the proceedings the opportunity to be heard on an application under this section.
(4) But subsection (3) does not prevent the court from hearing one or more parties in the absence of a defendant and his or her legal representatives, if it appears to the court to be appropriate to do so in the circumstances of the case.'.— [Mr. Watts.]
Clause 3, as amended, ordered to stand part of the Bill .