New Clause 12 — Special counsel in proceedings concerning witness anonymity orders

Pension Credit and Personal Expense Allowance (Duty of Consultation and Review) – in the House of Commons at 8:15 pm on 24th March 2009.

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'(1) On any application for a witness anonymity order, the court must consider whether the appointment of special counsel to assist the court in deciding whether to grant the order would contribute significantly to the fairness of the proceedings, and must apply to the Attorney General for the appointment of such counsel if it decides that such an appointment would so contribute.

(2) No witness anonymity order may be granted where the court has applied to the Attorney General for the appointment of special counsel under subsection (1) until the Attorney General makes such an appointment, and if the Attorney General refuses to appoint special counsel on such an application by the court, the application for the witness anonymity order shall be refused forthwith.'.— (David Howarth.)

Brought up, and read the First time.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

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

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Photo of Sylvia Heal Sylvia Heal Deputy Speaker

With this it will be convenient to discuss the following:

New clause 13— Effect of order on disclosure obligations—

'A witness anonymity order takes precedence over any obligation of a prosecutor to disclose material to the defence, and, accordingly, no such obligation shall require a prosecutor to reveal the identity of the witness or information that might enable the witness to be identified.'.

Government amendment 142.

Amendment 155, clause 63, page 37, line 16, leave out '(8)' and insert '(8A)'.

Amendment 141, page 37, line 40, at end insert—

'(8A) The condition in this subsection is that the Director of Public Prosecutions has given his consent to the application.'.

Amendment 58, clause 71, page 41, line 20, at end insert

'and must be made as early as is reasonably possible.'.

Amendment 140, page 42, line 5, at end insert—

'(7A) The court has the power to appoint special counsel to represent the interests of the defendant in his or her absence, if it appears to the court to be appropriate to do so in circumstances of the case.'.

Amendment 59, page 42, line 7, at end insert—

'(9) 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 direct the independent counsel—

(a) to enquire into the matters that are set out in sections 72 and 73 and any other matter that the court may deem relevant, and

(b) to report his findings to the court.

(10) Where an independent counsel has been appointed, the party who applied for a witness anonymity order shall make available to the independent counsel all the information that is relevant to the proceedings that is in the possession of that party.

(11) Where an independent counsel has been appointed, provision shall be made by order for the fees for the professional services of the independent counsel together with reasonable expenses to be determined and paid from money appropriated by Parliament for that purpose.'.

Amendment 60, clause 72, page 42, line 11, leave out 'satisfied' and insert 'sure'.

Amendment 61, page 42, line 11, leave out 'C' and insert 'D'.

Amendment 160, page 42, line 15, leave out 'serious damage to property' and insert

'damage to property serious enough, either in itself or cumulatively (taken with other threats to property or to the welfare of persons), for a reasonable person with the resources of the witness to be intimidated into refusing to give evidence'.

Amendment 62, page 42, line 19, leave out subsection (4) and insert—

'(4) Condition B is that the making of a witness anonymity order would not deprive the defendant or (where there is more than one defendant) any defendant of a fair trial.'.

Amendment 63, page 42, line 23, after first 'not', insert

'and could not reasonably be expected to'.

Amendment 64, page 42, line 25, at end insert—

'(5A) Condition D is that there is no reason to believe that the witness has a motive or a tendency to be dishonest, having regard to all the circumstances of the case and (where applicable) to the witness's previous convictions or the witness's relationship with the defendant or if more than one with any defendant, of any associates of the defendant or if more than one, any defendant or with any witness to be called in the proceedings and to any other consideration that may be relevant to the issue as the court may think appropriate.'.

Amendment 19, page 42, leave out line 30 and insert—

'(b) that there would be damage to property serious enough, either in itself or cumulatively (taken with other threats to property or to the welfare of persons), for a reasonable person with the resources of the witness to be intimidated into refusing to give evidence,'.

Amendment 65, clause 73, page 42, line 33, leave out 'C' and insert 'D'.

Amendment 66, page 42, line 39, at end insert—

'(aa) the principle that witness anonymity orders are justified only in exceptional cases;'.

Amendment 67, page 42, line 39, at end insert—

'(aa) the gravity of the offence;'.

Amendment 68, page 42, line 42, at end insert

'and whether there is other evidence that corroborates the witness's evidence'.

Amendment 69, page 43, line 6, leave out paragraph (e).

Amendment 70, clause 75, page 43, line 44, at end insert—

'(6) For the purposes of considering whether to discharge, vary or further vary the order the courts 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 enquire into any matter that may be relevant to any issue set out in subsections (1) and (2), and

(b) to report his findings to the court.

(7) Where an independent counsel has been appointed, the party who applied for the order to discharge or to vary or further vary the existing order must make available to the independent counsel all the information in relation to the proceedings that is in the party's possession, and where the court is acting on its own initiative the independent counsel shall be provided with all such information as the court may think appropriate.

(8) Where an independent counsel has been appointed, provisions shall be made by order for the fees for the professional services of the independent counsel together with reasonable expenses to be determined and paid from money appropriated by Parliament for that purpose.'.

Amendment 71, clause 77, page 45, line 9, at end insert—

'(4A) For the purposes of considering whether to discharge or vary the order the appeal court may appoint an independent counsel to assist the appeal court and, without limiting the directions that the appeal court may give, the appeal court may direct the independent counsel—

(a) to enquire into any matter that may be relevant to any issue as is set out in subsection (2), and

(b) to report his findings to the appeal court.

(4B) Where an independent counsel has been appointed, the appeal court may direct that the independent counsel shall be provided with such information as the appeal court shall deem appropriate.

(4C) Where an independent counsel has been appointed, provisions shall be made for the fees of the independent counsel together with reasonable expenses to be determined and paid from money appropriated by Parliament for that purpose.'.

Government amendment 131.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

We come to the anonymous witnesses part of the Bill. Members will recall that the anonymous witness provisions in the existing law passed through the House in one day last year, and through the other place in two days. At that point, we were promised proper consideration of the provisions in a full debate, in a full Bill. We are now left with a Report stage, effectively on that Bill, of 21 minutes, which is entirely unsatisfactory.

Let me go through three of the main problems that subsist in the provisions. The first is dealt with by new clause 12; it is that the Government have resisted putting in the Bill the mechanism under which independent or special counsel are brought in to advise or help the court as it decides whether to make a witness anonymity order. One of the problems is that an anonymous witness might be prejudiced against the defendant in a way that would become clear only if the defence were able to cross examine them with the benefit of knowing who they were. The person might seem to be only a witness to some external fact in the world at the time of the crime—to something that they saw or heard, rather than to what they thought the defendant did or said. The issue of possible prejudice against the defendant might not be obvious at the time, but that person—even if apparently only a witness to an external event—might turn out to be associated with an enemy or rival of the defendant.

In such circumstances, making a witness anonymity order might well be the wrong thing to do, but that point would not come out unless someone other than the prosecution had access to all the papers and could ask pertinent questions. Given the circumstances, that job clearly could not be done by the defence; that raises the possibility and in many cases the necessity of appointing special counsel to assist the court to do it.

In addition, there might well be cases in which the judge was uncertain whether to grant an order, because the status and credibility of the witness were unclear. In such a case the judge might be tempted to deny a witness anonymity order when further inquiries by independent counsel would have revealed that there was nothing to worry about. In such a case, independent counsel would strengthen the case for such an order.

I am not claiming that special counsel should be appointed in all cases. In the Mayers case, the Lord Chief Justice said that there were cases in which special counsel would help and cases in which they would not. The test that I suggest in new clause 12 for the appointment of special counsel is based on the words of the Lord Chief Justice in that case:

"whether the appointment of special counsel...would contribute significantly to the fairness of the proceedings".

All I suggest is that the appointment of special counsel should be thought about—no more than that—in every case.

New clause 12 also deals with a possible problem with how the system works now. Special counsel are not appointed by the court, but by the Attorney-General after an application from the judge. So far, special counsel have always been appointed when requested, but what happens if the Attorney-General refuses? There is no provision for that situation, but new clause 12 settles the matter by saying that if the judge asks for special counsel and the Attorney-General delays or refuses, there cannot be a witness anonymity order at that time.

The second problem is more technical and is dealt with by new clause 13. It is the problem of what happens in multiple-defendant cases when a defendant, rather than the prosecution, asks for a witness anonymity order. The Bill says that the other defendants should not discover the identity of the witness, but adds that the defendant has to tell the prosecution the identity of the witness. The problem is that the prosecution have duties of disclosure to the other defendants and it is possible that the identity of the witness, who was supposed to be anonymous, would be revealed indirectly to the other defendants via the prosecution's duties to disclose. Nothing in the relevant legislation—the Criminal Procedure and Investigations Act 1996—definitively rules out that possibility. In Committee, the Minister said that there was no problem because the witness anonymity order took precedence over any duties to disclose, but nothing in the Bill says that and new clause 13 simply puts into it what the Minister said in Committee.

The third problem identified in Committee has resulted in amendments 160 and 19. It is the problem of what to do about cases in which the witness is not threatened with personal injury—there is no threat to life or limb—but there is a threat to property not linked to such injury, such as a threat to burn down a lock-up shop or to damage a parked car.

The debate in Committee was initially about whether property damage should be included at all. There are doubts about whether property threats that are entirely separate from threats of personal injury meet human rights standards. As the debate developed, however, it became clear that there were plausible circumstances on particular estates where such threats, in combination with a general atmosphere of threat and intimidation, would be all too effective in intimidating potential witnesses. The issue then became how the Bill dealt with that problem and whether it properly captured the real-life situation. The Bill as it stands simply talks about serious damage to property, but the question is what that means. Does it mean merely expensive property? If the test relates merely to how valuable the property is, it would tend to favour rich witnesses over poor ones. In any case, that test is not related to the main issue, which is intimidation, not the seriousness of the damage in terms of the value of the property.

Amendments 160 and 19 are tabled in a spirit of compromise to try to clarify the situation. They suggest that the threat to property counts as serious enough if it means that a reasonable person in the position of the witness is intimidated into not giving evidence. The seriousness of the damage to the witness's property would be judged in terms of their resources, so that damage to the modest property of an impoverished witness would be taken more seriously than damage to the valuable property of a very rich witness.

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Photo of Evan Harris Evan Harris Shadow Science Minister 8:45 pm, 24th March 2009

I want to let my hon. Friend know that in our report, the Joint Committee on Human Rights is wholly with him on what he has said on having, if not statutory clarification, at least guidance on the threshold of what serious damage to property is on human rights grounds, and on the need for special counsel.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I thank my hon. Friend for that news. I do not wish to take up more than half the time on Report for this very important matter, so I will now sit down.

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Photo of Edward Garnier Edward Garnier Shadow Minister (Justice)

I will be brief, because we are really up against the knives. I fully endorse what David Howarth said about the restricted timetable. I would repeat what I said yesterday, when we had an even more egregious example of ridiculous timetabling, with the result that seven and a half separate subject areas were denied debate.

This group of amendments is divided into two parts, the first of which relates to the need for special advocates. The hon. Gentleman and I advanced that in Committee. My right hon. and learned Friend Mr. Hogg has tabled amendments that reflect not only what we discussed in Committee but what was discussed last July during the passage of the Criminal Evidence (Witness Anonymity) Act 2008. When we debated these provisions under the emergency legislation last summer, the Government promised that they would much more closely examine the process and procedure for the appointment of special advocates or counsel in cases of this type. There have now been several cases that have gone to the Crown court and, to a lesser extent, to the magistrates court, in which applications for witness anonymity orders have been sought. Of that number, many have been granted, while some have not. However, if I remember correctly our deliberations in Committee, the Government were unable to tell us in how many cases the courts, using their own inherent powers, granted leave for a special advocate to appear on behalf of the court itself or to assist one or other of the parties.

That is an important omission, and the last few minutes of debate on Report are inadequate to deal with the matter. If the hon. Member for Cambridge or my right hon. and learned Friend the Member for Sleaford and North Hykeham are inclined to press their amendments to a Division, we will support them.

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Photo of Bridget Prentice Bridget Prentice Parliamentary Under-Secretary, Ministry of Justice

I shall deal briefly with the two technical Government amendments in this group. Amendment 142 refines the anonymity provisions to take into account those rare situations where the duty of non-disclosure imposed by an investigation anonymity order may come into conflict with a duty to disclose an anonymous informant's identity that happens to arise by virtue of some other legislation or the common law. Indeed, David Howarth alluded to that. The new provision is intended to clarify in what circumstances disclosure of information in pursuance of a conflicting duty to disclose would amount to an offence. Government amendment 131 simply extends the provisions of the Criminal Evidence (Witness Anonymity) Act 2008, which are to be repealed following the commencement of the replacement provisions in this Bill.

I shall now deal, at least in part, with the amendments and new clauses tabled by the hon. Member for Cambridge, and if I can in the time remaining, I shall at least refer to some of the amendments tabled by Mr. Hogg. On new clause 12, as the Under-Secretary of State for Justice, my hon. Friend Maria Eagle, explained in Committee, there is no evidence that the current non-statutory arrangements are not working well. Mr. Garnier asked how many cases there had been. There have been two since the enactment of the emergency legislation where the court asked the Attorney-General to appoint special counsel, and the request was granted in both cases. As the House will be well aware, special counsel is already available in anonymity applications under the common law. We do not see any reason to change that.

New clause 13 follows a similar new clause tabled in Committee and it relates to the effect of trial anonymity orders in relation to disclosure obligations under the Criminal Procedure and Investigations Act 1996. As the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston, made clear in Committee, a trial anonymity order overrides prosecution obligations to disclose material to the defence to the extent the trial court thinks fit in any particular case. We therefore consider the new clause unnecessary.

Clauses 62 and 63 make it clear who can apply for an investigation anonymity order. It would not be appropriate for the Director of Public Prosecutions to have to consent to every investigation anonymity order application, first because the orders are an investigative tool that should be available to the police, and secondly because the police and any prosecuting authority specified in the Bill are capable of deciding whether to exercise the powers or not without reference to the DPP. The orders are not linked to trial anonymity orders; they are an independent tool. It might not be appropriate for the prosecuting authority, in the form of the DPP, to be party to an investigative order that would be pursued by the police. There will, however, be close co-operation between the police and the Crown Prosecution Service in any case, under the guidelines.

The hon. Member for Cambridge also tabled amendments 160 and 19, which would alter the nature of the test that in clause 72 the court applies when assessing whether an anonymity order is necessary to prevent any serious damage to property. My concern is that such a change would make the value of the property relative to the total wealth of the witness relevant in considering whether the witness's fear is reasonable.

I would think it odd to suggest that someone's personal wealth should somehow affect how intimidated they might reasonably feel if their house were deliberately burned down. I believe that the amendment is unnecessary because the clause will require the court to have regard to any reasonable fear on the part of the witness that there would be serious damage to property if they were identified. The intimidating effect of damage to property is therefore already captured.

On the series of amendments tabled by the right hon. and learned Member for Sleaford and North Hykeham, we are not far apart on the principles behind some of the things that he wants, but the sort of detail that he requests in his amendments is not appropriate in primary legislation. We believe that the criminal procedure rules are the right venue for dealing with such detail. As an intermediate measure pending the making of those rules, the judiciary issued a practice direction on 28 July last year. The relevant passage stated:

"An application for a witness anonymity order should be made as early as possible and within any period directed by the court."

The criminal procedure rule committee is currently working on detailed provision for the procedures governing applications for witness anonymity orders. In the meantime, we are content for the courts to operate in accordance with the practice direction.

I assume that the intention behind amendment 60 is to require the court to be satisfied to the criminal standard—that is, beyond reasonable doubt—that the conditions for making a witness anonymity order have been met. We debated that in detail during the passage of the emergency legislation. There are many contexts in criminal legislation in which a court is required to be "satisfied" that applicable conditions are met. It is the function of the court to exercise its judicial judgment about that. It will either be satisfied or it will not, and I believe that that is the right term to use. It is commonly applied by the courts in this country.

Amendment 62 would redraft condition B to replace the reference to anonymity being consistent with a fair trial with a reference to anonymity not depriving the defendant of a fair trial. I agree with the right hon. and learned Gentleman that it is of paramount concern that defendants receive a fair trial, but we believe that the current wording guarantees that they will. The amendment would also replace the reference to "the defendant" with a reference that explicitly covers multi-handed cases. I am happy to confirm that the Bill already covers such cases. When the court considers granting an anonymity order, it must have regard to the impact on all the defendants, and the term "the defendant" in clause 72(4) is to be construed accordingly.

Amendment 63 would mean that in deciding whether condition C is met, the court must believe not only that a witness would not be prepared to testify without an order but that he could not reasonably be expected to do so. In other words, it would add a new objective criterion for condition C to be satisfied. My starting point is that clause 72(5)(a) essentially reproduces section 4(5)(b) of the emergency legislation, which is working well in practice. I would therefore need to be persuaded that such detail is needed in an amendment. In applying the consideration in clause 73(2)(f) of whether it is reasonably practicable to protect the witness by measures other than the anonymity order, the court is likely to consider whether it is reasonable to expect the witness to testify. It will also be able to take into consideration such other matters as it considers relevant, including the reasonableness of the witness's fear. We therefore do not consider it necessary to change the current framework.

Amendment 64 would make the witness's honesty, which is currently set out in clause 73(2)(e) as a consideration that the court must have regard to, a fourth condition for making a witness anonymity order. Again, we debated that subject during the passage of the emergency legislation. The amendment is unnecessary because it goes to the question of whether the defendant will have a fair trial. That, of course, is already catered for in condition B.

On that basis I cannot accept the amendments, but I hope that I have clarified to some extent the Government's position on them. I hope that hon. Members will not press their amendments and that they will support the Government amendments.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice

I am not satisfied with the Government's responses. On property, the Under-Secretary gave an example of a house in a personal injury case, whereas I referred to property unrelated to personal injury. In those circumstances, the wealth of the witness is immensely important.

I am afraid that the current guidelines maintain that independent counsel is exceptional, but that is not enough. They are also confused about the role of independent counsel, who are there to work for the court, not—

Debate interrupted (Programme Order, 23 March).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

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The House divided: Ayes 151, Noes 278.

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Division number 86 Pension Credit and Personal Expense Allowance (Duty of Consultation and Review) — New Clause 12 — Special counsel in proceedings concerning witness anonymity orders

Aye: 151 MPs

No: 278 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

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Question accordingly negatived.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E) .

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