Criminal Evidence (Witness Anonymity) Bill

– in the House of Lords at 3:07 pm on 15th July 2008.

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Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 3:07 pm, 15th July 2008

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee on the Bill.—(Lord Hunt of Kings Heath.)

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

My Lords, I do not intend to oppose the Committee stage of the Bill, or to object to its remaining stages being taken today. I have intervened at this juncture because a significant and lengthy amendment was tabled last night by the Government. No warning was forthcoming, and the amendment was not seen until it appeared in the Printed Paper Office this morning.

I am aware that this is emergency legislation. We, for our part, have accepted the need for speed, although we believe that, even in the context of emergency legislation, the time allowed for parliamentary scrutiny in this case has been too truncated, especially in the context of a measure that goes to the heart of the principle of a fair trial and the liberty of the individual.

I also recognise that, within the exacting timetable that the Government have set, they have presented us with a number of welcome opportunities to discuss the Bill. It was, therefore, all the more bewildering to be taken by surprise this morning. When I asked for an emergency meeting with the noble Lord, Lord Hunt, he and his team responded with characteristic and commendable promptitude. Nevertheless, I have had no chance to discuss the matter properly with my colleagues in another place, let alone formulate a considered manuscript amendment.

This state of affairs further undermines the effectiveness of scrutiny, which is already restricted by the severe curtailment of normal Bill procedures in your Lordships' House. Such conduct is constitutionally counterproductive. It simply lends support to those who take the view that emergency legislative procedures are little or no more than government by decree.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

My Lords, I support the noble Lord, Lord Kingsland, in his protest at the late setting down of these amendments. Amendment No. 4A states:

"Nothing in this section is to be taken as restricting any power to make rules of court".

It is crucial to our debates today to know whether the Government intend to make rules of court, in which case many of our objections might be properly addressed at that stage. If we are being presented with something just to paper over the cracks, as opposed to a positive commitment from the Government to make rules of court covering this extremely difficult area of procedural criminal law, it is a disgrace to Parliament that this procedure is adopted.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

My Lords, the Front Bench has said that we will proceed straight away to the Report and Third Reading stages. What will happen if anyone wants to put down amendments for Report stage or later?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I thank the noble Lords, Lord Kingsland and Lord Thomas of Gresford, for giving me this opportunity to apologise unreservedly to the House for the late tabling of two government amendments last night. I do so apologise. We have attempted at all stages of this Bill to work as closely as we can with both Opposition Front Benches. I want to place on record my appreciation of the co-operation that we have had from the noble Lords, Lord Kingsland and Lord Thomas of Gresford, and their Front Bench colleagues in the other place.

The House will understand from the Statement made to your Lordships and from our Second Reading debate that we have had to draft this Bill at a very rapid pace, following the judgment in Davis, which was delivered just four weeks ago. We identified a potential loophole only in the past few days and we concluded that it would be highly desirable to make changes in the Bill to avoid that potential loophole being exploited. I apologise that, in the rush to prepare the amendments, it was not possible to provide the Opposition with adequate notice or a fuller explanation.

The noble and learned Baroness the Attorney-General will set out the need for these amendments when we reach the relevant stage in our proceedings in Committee. The Bill should be seen as an interim measure until the next Session. Last Tuesday we made an undertaking to the Commons that further legislation would be introduced in the next Session. The Law Reform, Victims and Witnesses Bill will subsume the contents of this Bill and will enable full parliamentary scrutiny.

Again, I apologise to the House for what has happened. I beg your Lordships' tolerance on the understanding that we will have a full opportunity in the next Session to debate these matters again. We intend to invite the Criminal Rules Committee to make rules of court. Of course, it will be up to it to make its own decision.

I should say to the noble Viscount, Lord Bledisloe, that these matters have been discussed in the usual channels, but of course it is open to any noble Lord to move an amendment at any stage in the Bill's proceedings.

Photo of Lord Strathclyde Lord Strathclyde Leader of Opposition In the House of Lords, Parliament

My Lords, is this not a very sorry tale? It has one benefit in that it demonstrates how wise we were in this House to pass this legislation over two days when another place had to rush it through in a matter of hours. Can the Minister explain why these amendments were tabled so late last night, why my noble friend Lord Kingsland was not given copies of them, and when the Government were made aware that amendments would be required? I do not know if the noble and learned Baroness the Attorney-General would be the right person to offer that advice. Further, when were Ministers first advised that amendments would be required, and could this not easily have been done before the weekend?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 3:15 pm, 15th July 2008

My Lords, I am grateful to the noble Lord, Lord Strathclyde, for his comments. I accept that having a gap between Second Reading and the remaining stages of this Bill has proved to be a wise decision. As he will know, it followed discussions in the usual channels. I cannot tell him the exact moment when Ministers knew of the issue, but I have told the House that, as work had to be done rapidly, notification for the noble Lords, Lord Kingsland and Lord Thomas of Gresford, was left until very late. I can only apologise for that. We should have done better and I wish we had, but I hope that the House will be tolerant on the basis that in a few months' time we will have an opportunity to come back to the clauses that, it is hoped, will be enacted today. The new Bill will allow for further thorough scrutiny, as your Lordships' House is wont to do.

Photo of Lord Tebbit Lord Tebbit Conservative

My Lords, I can well understand how difficult it would be to define the precise moment when Ministers became aware of the need for these amendments, but can the noble Lord tell us when officials were instructed to start drafting them?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I cannot give an exact audit trail for when a particular instruction was given. As a senior Minister for many years, the noble Lord has great experience of the business of government, and what I can tell him is that the drafting of the Bill took place over a short period, in the light of the judgment by your Lordships' House; we had to move very rapidly. However, we held a series of meetings with noble Lords and the Front Bench representatives of both major parties in this House and the other place.

When officials identified that there was the possibility of problems in the original drafting, it was their responsibility to draw them to the attention of Ministers, and in turn Ministers had to take responsibility for the decision to bring forward government amendments. That has happened. Of course I am happy to look into the timing, but I do not have the details with me today. I reiterate my apology to the House and my determination to ensure that we will have every opportunity to discuss these matters in full during the next Session.

Photo of Lord King of Bridgwater Lord King of Bridgwater Conservative

My Lords, one recognises that there are occasions over the years when emergency legislation is required, and that it can cause problems. While the Minister offers the encouragement that new proposals will be brought forward in a couple of months' time, is not the reality that the law of the land will be determined by the passage of this legislation today? It will become the law, probably for the coming year. This is not quite as large a concession or amelioration of the situation as he suggests.

I have no authority to speak on this and I will probably be shot by my Front Bench, but why is not the Third Reading postponed to give my noble friend the opportunity to carry out at least some consultation? This, as the Minister rightly says, is important legislation that goes to the heart of the justice system of our country, but is there not some suggestion that it is being passed with one part of the House not being fully informed about the implications?

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I suggest that discussions now take place with the usual channels. I am sure it will then be possible to report back to the House on this matter.

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD SPEAKER in the Chair.]

Clause 1 [New rules relating to anonymity of witnesses]:

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

moved Amendment No. A1:

Clause 1, page 1, line 8, leave out "abolished" and insert "are to be interpreted in accordance with the provisions of this Act."

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

The amendment relates to the common law rules and seeks to leave out that they should be "abolished" and to insert instead that they,

"are to be interpreted in accordance with the provisions of this Act".

Its purpose is not to abolish these rules, which are an important part of our common law principle of open justice, but to retain their substance—subject, of course, to the broadly sensible modifications set out in the Bill.

The starting point must be, as it has always been, that as far as possible criminal trials under our adversarial system should be conducted on the basis that the accused person is openly confronted by his accusers, with the chance to cross-examine them on the basis of full disclosure by the prosecution. In the vast majority of cases, even in times as difficult as the Troubles in Northern Ireland, these rules have retained public confidence and stood the test of time. There is, however, a real problem of witness intimidation today, which has led to modifications by the courts, up to the Court of Appeal. The Judicial Committee of the House of Lords, in R v Davis, ruled that these modifications went too far. The Law Lords have rightly restated the common law and, directly or indirectly, invited Parliament to address the problem, which we are today continuing to do.

As I said, the object of the Bill should not be to abolish the common law rules which helped to save England and Wales from the iniquities of the Spanish Inquisition—I am quoting the noble and learned Lord, Lord Bingham—and to underpin the abolition of the Court of Star Chamber by the Long Parliament in 1649, and which have stood the test of time since then. It should be to modify them where necessary to combat the current problems of witness intimidation whilst scrupulously maintaining the right to a fair trial for both the prosecution and defence sides.

The rules also form the foundation of Article 6.3(d) of the European Convention on Human Rights. Although the incorporation of the convention into our law has done a great deal of good, it is something of a back stop and, in certain areas, as the House well knows—for example, the Regulatory Enforcement and Sanctions Bill—it has led to some lowering of standards. It is to be regretted that we simply go for the back stop and not for our traditional rights.

The Government and the cause of justice have nothing to fear from the amendment or from making clear that the common law rules, now to be modified by the Bill, still form the starting point and underpin most of its provisions and safeguards. In Clause 5(2)(c) the question of whether evidence given by the witness might be the sole or decisive evidence implicating the defendant is a consideration which the court must "have regard to", according to Clause 5(1). But the words "have regard to" are not a very strong injunction in themselves when it is remembered that in R v Davis the noble and learned Lord, Lord Bingham, emphasised twice, at paragraphs 34 and 25 of the judgment, that it formed the key reason for his overturning of the Court of Appeal's judgment. He said:

"At no point in its judgment does the Court of Appeal acknowledge that the right to be confronted by one's accusers is a right recognised by the common law for centuries".

With regard to Strasbourg, the noble and learned Lord said, at paragraph 25, that,

"no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses".

The reason is that such a conviction results from a trial that cannot be regarded as fair. That is the view traditionally taken, as the noble and learned Lord says, by the common law of England.

It is some comfort that Strasbourg, as so carefully analysed by the noble and learned Lord, Lord Manse, would probably have reached the same result in R v Davis, but my point here is that our common law tradition remains of basic, huge importance, in the protection of our liberties and the right to a fair trial, even—perhaps especially—for the most heinous offenders. Let us therefore build upon that common law principle and modify it carefully where the court can be satisfied that it is fair, just and necessary so to do, but let us not abolish it. I beg to move.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

I support my noble and learned friend. I have one point of principle and one of practicality. The point of principle is that we should look very closely at any proposal in emergency legislation to abolish any common law rule whatsoever, especially one that has persisted, as my noble and learned friend has reminded us, over many centuries and to great effect. The amendment proposes to leave out "abolished" and insert that the common law rules,

"are to be interpreted in accordance with the provisions of this Act".

That says all that is necessary.

Clause 5(2)(a) asserts,

"the general right of a defendant in criminal proceedings to know the identity of a witness in those proceedings"— not "a" general right, but "the" general right. Such a general right derives only from the common law rules. If we are going to have in one clause the abolition of the common law rules and in another clause an assertion of their persistence, the result is a legislative and drafting muddle. I support my noble and learned friend and I hope the Government will too.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I also support my noble and learned friend's amendment. There are many statutory rules, many texts containing guidance and many conventions that have grown up to support the common law rules as they were at the time of Davis. What is to be the fate of those now? Are they still to remain, or are they part of the common law rules that are, to quote Clause 1(1), to be "abolished"? In my submission, the expression "common law rules" is too vague to indicate whether the answer is one way or the other.

As I understand it, one of the reasons why the Government tabled the late amendment that was the subject of the earlier debate was that they were nervous that Clause 1(2) abolished not only the common law rule itself but that plethora of subordinate rules, many of which relate to procedure and evidence, that have grown up with it. If the Government have that fear, there must be other matters, in addition to the one that they sought to cover with the amendment, that might be abolished by Clause 1(2). In that case, we would expect the Government to have tabled many more amendments than they have done.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 3:30 pm, 15th July 2008

We support the amendment of the noble and learned Lord, Lord Lyell. The mistake is to refer to common law rules at all. We are considering a principle rather than rules. You cannot look in a book and see what the common law rules are. In their judgments and opinions in Davis, their Lordships made it clear that they were talking about fundamental principle. The noble and learned Lord, Lord Bingham, said:

"It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. This principle originated in ancient Rome".

The noble and learned Lord, Lord Rodger of Earlsferry, said:

"Your Lordships were not referred to any Scottish authorities on the point. But, as in England, the principle is so deeply embedded that it scarcely needs stating by the Scottish courts".

The noble and learned Lord, Lord Mance, having referred to all the European jurisprudence on this matter, said, again, that it was a matter of principle that comes from the history of the law of England and Wales and from its roots in other systems of law in the past.

What does abolishing the common law rules mean? I accept entirely the criticism of the noble Lord, Lord Kingsland—the phrase is vague. Is the principle being abolished or is it to be upheld but within a statutory framework? If it is the latter, that is precisely what the noble and learned Lord, Lord Lyell, is aiming at in his amendment. It would make it quite clear that the principle remains but that it must be construed within the statutory framework.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I had not intended to intervene on this amendment, but surely there is a distinction between the principle involved here and the rules. The principle that a person is entitled to be confronted by his accusers is still preserved by the Bill. The rules we are talking about are an exception to that principle. Those are the rules which are to be abolished, and it seems a good thing that they should be.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I have a great deal of sympathy with the views expressed by each and every noble and learned Lord who has contributed to the debate so far. It seems to me that everyone's intentions are noble and honourable. The question, however, is whether the amendment can achieve what it seeks to achieve. I may be looking at the matter much too rigidly, but one could mount this argument: either the common law is preserved or it is overruled by statute and replaced by statute. You cannot, effectively—and certainly not without a great deal of danger—have statute told how to interpret in accordance with the rules of common law. The two realms are mutually exclusive.

I hope and trust that the Government say that the principle has been maintained and that it is spelt out clearly in Clause 5(2), which refers to,

"the general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings".

I hope that they can say, "That is exactly what Blackstone in his commentaries in 1794, Bentham in 1827 and Sir Matthew Hale in 1820 were talking about". The judgment in Davis said of Bentham:

"The latter regarded the cross-examination of adverse witnesses as 'the indefeasible right of each party, in all sorts of causes'".

If Clause 5(2) is intended to do that and no less, there does not seem to be a problem. If there is a problem, I accept that it has to be tackled in some way, but, with the greatest respect to the noble and learned Lord, I doubt whether it should be by way of this mechanism.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I thank both the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Elystan-Morgan, for precisely explaining the position. However, I say straightaway to the noble and learned Lords, Lord Lyell and Lord Mayhew of Twysden, that I absolutely understand their anxiety about this matter, which was echoed by the noble Lords, Lord Kingsland and Lord Thomas of Gresford. The Judicial Committee in the House of Lords sought to change, and said that it had to change, the way in which we were using the common law because it was being used inappropriately. We are abolishing only the common law rules relating to the power of a court to make an order for securing the identity of a witness. We are not changing anything else in criminal proceedings. It is important for us to recognise that. The important principle is being retained.

The amendment seeks to preserve the common law rules on witness anonymity, and to transform the Bill into a gloss on those rules. Thus, witness anonymity would remain a common law matter, but would be interpreted by the Bill. That is what the House of Lords Judicial Committee expressly said that we could not do. The House of Lords judgment in R v Davis declared that there is no common law power, except in a narrow category of cases, for courts to allow evidence to be given anonymously at trial. Therefore, the only way in which we can deal with that matter is through statute, which is what we now propose.

It is important that we are clear about this matter, because courts throughout our country will need to understand precisely what we have done and how we have sought to answer the Judicial Committee so that they have a solid basis on which to go forward. Seeking to preserve the common law in the way suggested by the amendment would risk creating uncertainty for the courts and parties to criminal proceedings, which would not be desirable—I do not think that any noble Lords who have spoken in support of the amendment would want that. However, I am grateful to them, because we have been able to put on record our clear understanding of what is and what is not being dealt with. We are dealing only with the common law ability to grant anonymity orders, which the Judicial Committee said we cannot use, and we are substituting a statutory framework by way of the provision. I hope that noble Lords will accept that clarification and be content, because I absolutely understood the noble and learned Lords, Lord Mayhew of Twysden and Lord Lyell, who said that we have to deal with this matter.

I reassure the Committee that the court in Davis made it clear that this part of the process is not an ancient common law rule. At best, it goes back to about 1990, as, I hope, if one looks at the judgment, the review in the case of Davis on the development of the common law made clear. The general right under common law of a defendant to know the identity of a witness is not being abolished; it is being maintained.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

Does the noble and learned Baroness agree that, once the principle is established, the worst solution would be to have common-law rules and statutory rules running side by side? That always leads to confusion.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I agree with the noble and learned Lord. If there is one thing that we need now it is clarity. Many of us believed that the common law could be used as the noble and learned Lords, Lord Lyell and Lord Mayhew, said. We thought that that which was being done was being well done, and that we could use the common law to good effect in this way. We all have to accept that the Judicial Committee of the House of Lords disagreed with us and with the Court of Appeal Criminal Division, which was unanimously of that view. So we bow with, I hope, good grace, to its wisdom. This provision seeks to give voice to what it says we should do.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I am most grateful to noble and learned Baroness the Attorney-General and to all who have taken part in this debate. I am quite confident of one thing—that there is a common search after truth and good sense in this Chamber. I hope that I will not be thought cavalier if I say that the noble and learned Baroness's statement that there is now a clear understanding might not be as crystal clear as, I hope, it will become. I have to confess that I am not absolutely clear which common-law rules are being abolished and which long-standing common-law principles are being retained. I am most grateful to the noble Lord, Lord Thomas of Gresford, for emphasising that distinction, because we certainly do not wish to lose those principles.

We are all seeking to make progress, so I merely ask the noble and learned Baroness—I hope that this is not asking too much—whether she would be kind enough to undertake to look at this matter extremely carefully before we come back in October and before the Government introduce a properly considered Bill on this matter.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I would be very happy to do that. I said during the previous debate—and I am very happy to repeat it now—that one good thing that has come out of this debate is real comity on how, across the House, we have tried to work together to craft something that will do what we would all like it to do. So I am very happy to say that we will look at this matter again. When we do, the noble and learned Lord, Lord Lyell, may find that he is with us in thinking that this has been well done.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

I am most grateful to the noble and learned Baroness. At this stage, I cannot ask for more. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 agreed to.

Clause 2 [Witness anonymity orders]:

Photo of Baroness Mallalieu Baroness Mallalieu Labour

moved Amendment No. 1:

Clause 2, page 2, line 13, at end insert—

"( ) the legal representatives;"

Photo of Baroness Mallalieu Baroness Mallalieu Labour

In moving Amendment No. 1, I hope to continue the spirit of comity that was initiated under the first amendment. Clause 2(4) caused a considerable amount of alarm among practitioners at the criminal Bar and was the basis of part of the briefing from the Bar Council. I am not alone in reading the provisions in this way, as I learnt from a letter, of which I received a copy this morning, sent yesterday by my noble and learned friend this morning to the noble Lord, Lord Kingsland. The reality is that we are both trying to achieve the same thing, but I am not sure that the present wording of this clause does that.

Under Clause 2(4) the court cannot order a witness to be screened so that he or she cannot be seen by,

"the judge or other members of the court (if any)"— who are presumably magistrates—

"the jury (if there is one); or ... any interpreter or other person appointed by the court to assist the witness".

The clause sets out similar provisions for modulation of the voice so that it cannot be identified.

My amendment seeks to add "the legal representatives", whether barristers or solicitors, to that list as the clause leaves open the possibility that the court could order that a witness is screened and that his or her voice is disguised from prosecution and defence lawyers. The Explanatory Notes confirm that interpretation and make it clear that—quite deliberately it seems; and certainly the letter confirms it—legal representatives have been excluded. I come in a moment to the explanation for that by the Government. I contend that it is wrong if, in addition to anonymity so that a defence counsel does not know who he or she is cross-examining, he is also unable, because of an order of the court, to assess the demeanour of the witness as he gives his evidence. He is therefore in a less advantageous position than the judge or the jury. He cannot assess gestures, laughing, grinning, hesitancy, plain lying, arrogance or defensiveness—all matters which counsel need to know to cross-examine effectively, and, particularly, are matters on which he may need to comment to the jury at the end of the trial.

Counsel may take the view, as defence counsel did in the case of Davis, that he should not be put into a position where he is able to see material that his client cannot. Counsel in that case took the view that he did not wish to be in that position and therefore did not wish to see the witness, and prosecuting counsel felt that if defence counsel was not doing it neither should he.

Obviously circumstances vary from case to case. I am aware that many counsel take a different view. They feel that if their client consents, it is their duty to use all available means and opportunity to see and hear the witness without screening and without distortion of voice—the better to cross examine.

As I understand the noble Baroness's letter, it is her intention that where an anonymity order is made, counsel should still be free to make the decision whether they wish to see and hear the witness. We are both in agreement about that. However, the way the clause is currently worded means that it is open—academically perhaps—for a court to make an order excluding them. It may be that my present amendment is not quite as it should be. Perhaps if it simply read "legal representatives unless they wished to do so" could not be ordered to be screened. Both I and those from the Bar Council who looked at the provision took alarm because it appeared that defence counsel and, indeed, therefore prosecuting counsel might be excluded from performing an important part of their job. I am sure that is not the Government's intention. I very much hope that the Minister will feel that an amendment like the one I have tabled is helpful. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 3:45 pm, 15th July 2008

In her letter to the noble Lord, Lord Kingsland, the noble and learned Baroness, Lady Scotland, suggests that it is still open to the defence counsel to see a witness if they want to. Does the court have power to prevent the defence counsel or the prosecution counsel from seeing a witness in any circumstances? I would like an answer to that question, as that is what I am interested in.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

This has been an interesting discussion. I say to my noble friend that I listened with great care to her powerful speech at Second Reading when she outlined her determination to stand up for the right to a fair trial. I echo that, which is why the various safeguards are built into the Bill as it is constituted.

I of course understand the noble Baroness's concerns on the position of defence counsel. In answer, I refer to the Court of Appeal decision in the case of Davis, where it had the benefit of written submissions from the Bar Council. As a starting point, the Court of Appeal considered that, in certain circumstances, defence counsel may find himself or herself with a conflict of duty where witness anonymity orders are made. They are bound by the order not to disclose the identity of the witness to anybody, in particular to the defendant. On the other hand, they are bound by their professional duty to provide relevant information to their clients.

The court took the view that defence counsel may see and hear an anonymous witness's real appearance and voice but would be bound by the anonymity ruling and would, indeed, be in contempt of court if they disobeyed it. If the defendant instructs counsel that counsel should inform him of the appearance of the witness or if counsel believes that the professional relationship with the client may be damaged if he were unable to communicate information that his client wanted from him, then it is open to the court to order that defence counsel should be screened from the witness. The Court of Appeal said that, in such an event, counsel for the Crown should be in the same position as counsel for the defendant.

The Appellate Committee of your Lordships' House in Davis did not address that point. The decision not to make provision for this in the Bill is deliberate. In some cases, defence counsel may decide after taking instructions that they should also be screened from the witness, so that they will be in the same position as the defendant. In such a case, the court will order that prosecuting counsel will also be screened from the witness. It would be for defence counsel to decide on a case-by-case basis, after taking instructions, whether they will volunteer to be prevented from seeing the witness. The Bill does not alter this practice and allows for the flexibility required to continue. However, there is nothing to prevent the court from allowing a barrister to see an anonymous witness in any case. It is for the court to decide on a case-by-case basis.

The Court of Appeal on Davis commented on these matters at paragraph 72:

"We cannot legislate in advance for all the possible case specific problems which may arise".

Anonymity orders may give rise to myriad different situations, including where the parties' legal representatives are concerned. That is why the Bill allows for flexibility and discretion. I take my noble friend's point in seeking to ensure that the rights of defendants are appropriately dealt with. However, from the Court of Appeal's view on this, there is a case for the flexibility that the Bill allows.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Does the Minister accept that the screening of a witness from the defence counsel might be fair in one case but not in another? The issue of a fair trial does not depend on whether defence or prosecuting counsel is screened from the witness at all. All the circumstances will have to be looked at. You could have apparently similar circumstances where one set leads to unfairness and another set to fairness.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Is not that the most powerful case for having the flexibility that is in the Bill, alongside the Court of Appeal's judgment as regards the level playing field between defence counsel and prosecution counsel if the witness is screened from defence counsel?

Photo of Baroness Mallalieu Baroness Mallalieu Labour

I fear that the comity goes straightaway. On the one hand, my noble friend seems to be saying that it is for defence counsel to decide—that is what is contained in the letter, as I understand it—but that, on the other, there will be flexibility, which, according to the wording of the clause, means that the court could bar defence counsel from seeing a witness. That seems to me the straight answer to the short point that the noble Lord, Lord Thomas of Gresford, raised, and it gives me enormous anxiety. Although one does not want to be so prescriptive that one cannot be flexible when circumstances arise that require it, essential matters of principle are involved. As the Court of Appeal said, requiring counsel to cross-examine an anonymous witness is like punching at air. What we are doing here is not just punching in the air; we are turning counsel round, facing him in the wrong direction and blindfolding him as well.

In my submission there must be restraint in the wide, unfettered discretion that this clause gives. It gives me little confidence to know that that power remains in the Bill. I hope that in the 10 minutes between the end of the Committee stage and when we start the next stage of the Bill, there may yet be a chance for the noble and learned Baroness, who wrote the letter, to look again at this matter to see whether minor adjustments to the relevant wording could be made to alleviate the anxiety that I and the General Council of the Bar feel about the clause as it is drafted. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 3 [Applications]:

Photo of Lord Boston of Faversham Lord Boston of Faversham Crossbench

In calling Amendment No. 2, in view of the groupings I must point out to the Committee at this early stage that, if either Amendment No. 2A or Amendment No. 3 is agreed to, I cannot call Amendment No. 3A.

Photo of Baroness Mallalieu Baroness Mallalieu Labour

moved Amendment No. 2:

Clause 3, page 2, line 25, at end insert—

"( ) Where an application is made under this section, the court must be informed of the identity of the witness."

Photo of Baroness Mallalieu Baroness Mallalieu Labour

Since I tabled this amendment, the government amendment to plug the gap has been tabled. Despite what was said shortly before we began this Committee stage, I am bound to say that it was not just the Government who failed to notice that there was a rather large gap. All those who spoke at Second Reading and who practise at the criminal Bar should have noticed that there was no provision in the Bill for circumstances in which the defence wished to call a witness with anonymity where there were co-defendants as well. I am grateful that that is being dealt with in the way that it is.

When I tabled this amendment, I was concerned that nowhere in the Bill—whether in relation to the conditions for making the order, the applications or the relevant considerations—was it expressly spelt out that the court must be informed of the identity of the witness. That ought to appear in the Bill as a safeguard for the defendant. At the very least, the defendant must have the safeguard of knowing that someone other than just the prosecuting authorities knows the true identity of the witness against him. Therefore, I am grateful that the Government tabled their amendment, which deals precisely with that point in its first new subsection. As I said, I am also grateful for the tabling of the longer, more detailed amendments that follow it, which seem to me to make sense.

The amendment in the name of the noble Lord, Lord Kingsland, which is grouped with Amendment No 2, appears to indicate that defence making an application in relation to an anonymous witness should notify the court but not the prosecutor. There seem to me to be difficulties with that, as the court will not be in possession of the large amount of undisclosed material that will be available to the Crown. It may benefit the defence if the prosecutor is aware of the identity of the witness whom the defence proposes to call, who may hold material of importance to the trial. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 4:00 pm, 15th July 2008

As the noble Baroness referred to my amendment in this group, I feel compelled to say something about it. She was quite right to describe my amendment as one that requires information from the defendant to be given to the court alone and not to the prosecutor. She went on to say that that would be a rather overinhibiting requirement, because the court would not be in a position to make an appropriate assessment without information that would come from the prosecutor.

I agree with that; but, on the other hand, there would be great dangers in the defendant supplying the appropriate information to the prosecutor, because the prosecutor would almost inevitably pass it on to the police. In those circumstances, it would be almost impossible to keep the defendant's witness in a state of anonymity.

This problem may be in part to do with the groupings. I passed my eye over them this morning and did not make any adverse observations, and it could well be my fault that my amendment has been misconstrued. It ought to be looked at in the context of my Amendment No. 4B, or Amendment No. 4C in the name of the noble Lord, Lord Lester of Herne Hill, or Amendment No. 9 in the name of the noble Lord, Lord Thomas of Gresford.

We shall come to those amendments in another group; but they have a bearing on my Amendment No. 4 because, if the evidence goes directly to the judge, he will, as the noble Baroness rightly observed, in most circumstances. not have the resources at his disposal to establish the antecedents and other background matters in respect of the defence's proposal that one of its witnesses be given anonymity.

This problem is solved in Amendments Nos. 4B, 4C or 9. If the judge can appoint an independent counsel to whom he can authorise the appropriate analysis of the defence information, including requiring all information relating to the proceedings that the defence is in a position to yield, in my submission the problem would be solved.

There is a particularly apposite subsection in the new clause proposed in the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Elystan-Morgan, which, I confess, adds much to my amendment. It states:

"The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate".

That seems an extremely perspicacious observation and I am delighted to see it in the amendment in the name of the noble Lord, Lord Thomas of Gresford—which is not just by way of saying that I am not being party political.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

Perhaps I may ask the noble Lord a question, as he has raised the issue that we shall come to later. He said that there would be one independent counsel, but, as he will see in Amendment No. 4C, the Joint Committee on Human Rights has indicated that in some circumstances one might, because of conflicts of interest, need a special counsel from the Attorney-General's panel to represent the interests of the defendant and a separate special counsel to represent the interests of the witness who is the subject of the application. Is the noble Lord including the possible need, in order to deal with that point, for two independent counsels?

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I apologise to the noble Lord, Lord Lester, for not making a more specific reference to his amendment. The proposal is extremely interesting. One might say that my amendment and that of the noble Lord, Lord Thomas of Gresford, could be described as having something of an inquisitorial nature. The amendment in the name of the noble Lord, Lord Lester of Herne Hill, sticks more traditionally to the adversarial system, for which there is much to be said.

I would not want the noble Lord, Lord Lester, to think that I in any way underestimated his amendment by not mentioning it in detail. I shall have an opportunity to do so, if there is anything left to say, when we consider it in the context of the appropriate group.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

If the principle that we discussed in debating the amendment of the noble and learned Lord, Lord Lyell, is accepted by the Government—namely, that there should be open trial—the issue at the heart of all these amendments concerning getting a proper framework is the validation procedure referred to by the noble and learned Lords in the case of Davis. Is it enough for a witness to come forward and say, "I am frightened", and for the judge, perhaps not knowing his identity, to simply accept that, possibly on the basis of something that a police officer says about the circumstances in the area where the witness lives? Is that to be what the Bill is about or is it to be about rather more than that? Is it to be about an exception to the principle—the validation of the fears of the witness and a decision as to the circumstances that he puts forward for his fears, which the judge can then objectively assess?

As I said at Second Reading, this problem has arisen because in small stages we had reached a point where, in effect, anonymity was being offered to witnesses by the police. I know that the noble and learned Baroness, Lady Scotland, has disputed that in her letter but—at times I try to speak from experience—it appears to me that the police do offer anonymity. Your Lordships will recall that I pointed out a headline that appeared in the Guardian a week last Saturday saying that the police guaranteed anonymity to a witness in relation to a specific case currently under investigation.

We are told today that rules will be made about the validation procedure. We look forward to seeing those rules and to finding out how a fair validation procedure will develop. In an amendment, I objected to subsection (2) and simply inserted in its place:

"The application shall be heard in Chambers".

One assumes that, in any event, any such application will be heard in chambers, in camera or in some way, but that clearly has to be one of the procedural rules that are put forward. Because of that, I have no great reason to support my own amendment, as it will be covered by one of the rules.

Then we have to consider the fairness as between prosecution and defence, to which the noble Lord, Lord Kingsland, referred. So far as I can see—and we have now been considering this matter in some depth and have had discussions about it over two or three weeks—the only way in which the respective interests of prosecution and defence can be properly supported is by the appointment of independent counsel, who can, as the noble Lord, Lord Kingsland, said, take a virtually inquisitorial role regarding the claims of the witness. They should not go through on the nod without any admissible evidence but simply on hearsay evidence or matters of that sort. The breach of principle is so serious a matter and so exceptional—the word used by the noble and learned Lords—that they should be properly investigated. They are to be investigated by proper procedures, which the rules that we are promised will set out, and we hope that they will be investigated by someone independent of both prosecutor and defence.

The noble Lord will undoubtedly say—it is what his amendment says—that the prosecution has to know in order to instruct the police. That is not necessary. I am grateful to the noble Lord for supporting subsection (4) of the new clause proposed in my Amendment No. 9. It provides that police officers unconnected with the trial should be instructed by independent counsel to carry out investigation. Either we treat this as a serious, exceptional matter, contrary to principle, or we will return to the practice, which noble and learned Lords condemned in Davis as being contrary to the European convention, of allowing simple pieces of paper and unsubstantiated claims to result in defence counsel being completely unable to cross-examine witnesses because they do not know who they are, where they come from, what connections they have and so forth.

All the amendments are interrelated in that way. At the core of it all is the validation procedure for a claim that a witness is in fear and requires anonymity and special measures. To that degree, I support the amendment.

Photo of Lord Marlesford Lord Marlesford Conservative

I am worried about the timing of the rules, which are clearly important. Will they be available immediately? Will Parliament look at them? Perhaps the noble and learned Baroness the Attorney-General could explain that to us.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I thank my noble friend Lady Mallalieu for tabling the amendment. She has highlighted a number of issues and has given us the opportunity to look at them and to give a better and proper explanation. I say straightaway that I agree with her on the importance of the prosecutor knowing the identity of each witness. Members of the Committee will know that the prosecutor's role is to present to the court any relevant information that may be available pertaining to the issues under discussion—both those which assist the defendant and those which assist the prosecutor. It would be very important for the prosecutor to be aware of the defence witness, as my noble friend Lady Mallalieu says, in order to make available any unused material that may assist the parties in the trial.

Amendment No. 2 will require the court to be informed of the identity of the anonymous witness in all cases. We are clear that in the overwhelming majority of cases the court will be informed of the identity of the person in respect of whom an application for an anonymity order has been made. However, there will be the rare case in which the identity of, for example, an undercover agent—particularly a member of the Security Service—should be divulged to as few people as possible. In such cases, the prosecution will explain the circumstances to the court, and it would then be open to it to direct, if the judge so wished, that in that instance the application did not need to identify the witness concerned. It would be entirely up to the court to determine whether that disclosure should take place. I hope that that clarifies the position.

The amendment overlaps with government Amendment No. 2A, and I thank my noble friend for understanding that in bringing it forward the Government were seeking to be helpful. We listened very carefully to the tenor and substance of the debate in the other place and here, and we were anxious to do the best we could to ensure that we had the appropriate level of coverage.

Amendments Nos. 3 and 4, in the name of the noble Lord, Lord Thomas of Gresford, would require applications for anonymity orders to be heard in chambers. That means that the press and public would be excluded, but it does not mean that automatically a witness's identity would be protected from any other party. I am just pausing for a moment because this group included Amendments Nos. 3 and 4, but I am conscious that the noble Lord, Lord Thomas of Gresford, has not spoken to them.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 4:15 pm, 15th July 2008

I indicated that in the light of the undertaking by the Government to bring forward rules of procedure, matters of this sort will be properly dealt with by the Criminal Procedure Rules Committee. I am satisfied that it would rule that applications should be heard by the judge alone or in whatever circumstances he thought fit. I virtually abandoned my Amendment No. 3 in the course of my remarks, and my Amendment No. 4 becomes otiose in the light of the Government's amendment.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I respectfully agree with the noble Lord, but I wanted to make sure that I was not presumptuously disregarding giving him the longer answer that he might have desired.

Government Amendment No. 2A was largely designed for the avoidance of doubt and to prevent unnecessary legal argument about the effect of the emergency legislation that will come into force on Royal Assent. This amendment puts that matter beyond doubt, even following the abolition of the common law in relation to such applications. The identity of witnesses can be withheld from the defence before and during the making of an application for a witness anonymity order.

To deal with the issue raised by the noble Lord, Lord Marlesford, there is separate procedure for court rules. I am sure they will be promulgated as quickly as the rules committee can make them. These detailed issues will be considered in due course. The rules committee has on occasion done things remarkably speedily if it has felt the matter is pressing. I would not like to speak on its behalf, but I am confident that it will use its best endeavours to get whatever rules may be appropriate out as speedily and as efficaciously as humanly possible.

We then looked at how we deal with these matters practically. I have already explained the importance of dealing with the prosecution knowing the content of the witness identity. In these sorts of circumstances, it is not possible to get total parity of treatment because there is no duty on behalf of the defendant to disclose all unused and other material in the interests of justice to ensure that he is validly dealt with under the procedure.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

The fact that the defendant does not have a similar duty to the prosecution has never been the basis for an allegation that a trial is unfair—because the defendant has an advantage that the prosecution does not.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

Absolutely not. I was simply underlining why they cannot be treated exactly the same. The duty that a prosecutor has to, in effect, be the Minister of Justice in proceedings and to make sure that all relevant issues are brought before the court differs markedly from the position that one properly should hold as defence counsel properly defending a defendant. That duty is very different.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I completely accept that statement. Our contention—I say "our" because I assume that the noble Lords, Lord Thomas of Gresford and Lord Lester of Herne Hill, would agree with what I am about to say—is that the equality of arms would break down if subsection (1B) of government Amendment No. 2A were to go on the statute book—because of the obligation of the defendant in those circumstances to, in effect, reveal his identity to the prosecutor. That is the point at issue and is the basis for the proposals that all three of us have made in our amendments introducing an independent counsel.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

We will turn to deal with the issue of special independent counsel in due course. The last time that this matter was before the House, I indicated that this question has wide ramification. The noble Lord, Lord Lester, asked: are we talking about one counsel or two? What is the role of that counsel? Will it have an investigative function? Which species of cases should special counsel apply to? All of those are interesting and complex issues and, in due course, we will be able to explore them but, for the moment, as I indicated last time we spoke about this, the case of H and C provides for an application of special counsel. Right away, these are complex issues; I very much doubt whether we will be able to resolve them finally within this emergency legislation; but we can have a good discussion about that when we come to the provisions in their place.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I am grateful to the Attorney-General. As she knows, at Second Reading I gave pretty broad support, as has the Joint Committee on Human Rights, to the Bill. I have this puzzlement, which is probably capable of being dealt with now. If we get this wrong and there are lots of mistrials and then a lot of applications under the Human Rights Act, we will have failed rather seriously.

The principle of legal certainty means that the rules must be made and the guidance given to the trial judge in all the pending cases that have been stayed. We know that the rule committee acts swiftly, but I do not understand how any cases can go forward until the rules have been prescribed, in order that there is reasonable legal certainty and that the poor old trial judge will understand procedurally what she or he is to do.

Therefore, what is to happen, given that it is clear from what the Attorney-General has told us that the draft rules are not ready for us to consider? What is to happen during the hiatus when no rules have been made and there are those pending cases? That is part of the concern of the noble Lord, Lord Marlesford, in his question. It seems to me to be not theoretical but urgent practically that we know exactly what will happen about the rules and what is to happen to the pending cases. Otherwise, we are into the territory not only of equality of arms, which has been raised by the noble Lord, Lord Kingsland, but the principle of legal certainty. The principle of legal certainty, as the noble and learned Baroness knows, is especially important in criminal justice. Can we get some clarification of that now?

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Before the noble and learned Baroness replies, may I add that the solution put forward at the moment about special counsel is that the court has the power to do that now; the noble and learned Baroness referred to the particular case. A judge in one case may appoint a special counsel to do one thing and in another may appoint special counsel under this common law provision to do something else. There is no guidance or certainty as to the role of the special counsel, if appointed under the common law power. Surely, as my noble friend says, certainty is the important thing. The judge who is trying the case should know what are the circumstances in which it is appropriate and what are the bounds of the duties that he is to lay on counsel.

I know that we shall come to this later, but it is so much a part of everything, as the noble Lord, Lord Kingsland, said.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I apologise for testing the noble and learned Baroness's legendary patience once more. Following on from what the noble Lord, Lord Thomas, said about the existence of an inherent rule—which I accept is used only rarely—for the court to appoint an independent or special counsel; and given his concern about different judges taking different decisions about this in similar circumstances; or even the same decisions where the judges may give very different instructions about the procedures which the court should follow, does the noble and learned Baroness believe that it is within the power of the Criminal Procedure Rule Committee, which was established under Section 70 of the Courts Act 2003, to establish a system of independent counsel, of its own volition, with a set of common rules on the procedure to be followed?

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I have a point to make that is quite apposite to the matter before the House. The Treasury Solicitor's A Guide to the Role of Special Advocates and the Special Advocates Support Office sets out the statutory and other bases for the use of special advocates. It says:

UKHL 3, [2004] 2 AC 134 held that 'special counsel' (in effect a Special Advocate) might exceptionally be appointed in a criminal case. The House held however that such an appointment will always be exceptional, never automatic; a course of last and never first resort; and should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant".

There is some dubiety about the role of special advocate—I pointed out at Second Reading the passage in Archbold in which the learned editor says that this discretion should be used sparingly—but the situation is even worse than that. It seems that the House of Lords has circumscribed the very circumstances in which such a discretion should be used.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I thank the noble Lord, Lord Elystan-Morgan, for bringing that to our attention, and I put on record my apology to him for not dealing with his erudite and thoughtful comments at Second Reading, particularly on this issue.

I do think that we have a perfectly sound way forward, but my understanding of this issue is as follows. The rule committee will be asked to look urgently at this matter, as I indicated earlier. I understand that it is to meet on Friday. In the mean time, there is sufficient power under Rule 3.5, the current criminal procedure rule that deals with the court's case management powers, to enable the courts to give case management directions now to deal with applications pending the making of further rules. In addition, the courts now have the power to ask the Attorney-General—in this instance, me—to appoint a special counsel to assist where necessary. We will of course take into account the strictures which the Judicial Committee properly made about its sparing use and propriety.

To return to the point made by the noble Lord, Lord Lester, we must of course bear in mind that the fairness of trials is of primary importance. If the court were to conclude that special counsel was necessary, it would have to be carefully and appropriately considered case by case.

In answer to the noble Lord, Lord Kingsland, the rule committee has the power to make rules governing practice and procedure in the criminal courts, and it appears that if the court felt it appropriate, that power would extend to an express power to ask the Attorney-General to appoint special counsel. But that would be a matter for the committee and would depend on the precise functions of those counsel. We have an interesting issue with which to grapple at the moment, which was amply explored earlier in this debate by the noble Lord, Lord Lester, who asked whether it could be one or two counsel, and by others who asked about the framework within which this would be looked at. We would have to consider what type of cases might need special counsel.

As I said earlier, I do not think it would be likely that many would consider the test purchase case to need special counsel. We may need to talk together about the ambit of any such rule, not that I am at this stage giving any indication about what our final position may be. It is absolutely clear that this issue needs discussion, thought and debate.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I am sorry again to tax the Committee's patience, but we are replacing the flexible common law judicial discretion case by case with a system of statutory rules. But we do not have any statutory rules on procedure yet. Will what the noble and learned Baroness has said apply to magistrates' courts? Are the powers sufficient to deal with them?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

The Criminal Procedure Rules now deal with rules in relation to all courts, so I am sure that these issues will be looked at. My reasonable expectation is that it will be the rare case that is likely to be dealt with in the magistrates' court; perhaps a control order case, et cetera. The noble Lord will know that quite often in those cases we already have special counsel for other reasons. I do not think in the ordinary case that that would happen, but in those special cases that might need to be dealt with, it would probably be covered.

I believe that we have a basis to go forward immediately because of Rule 3.5 and the case management. I would remind the Committee that in the case of Davis the court had the benefit in the Court of Appeal of special counsel because it was considered to be merited. It is unfortunate that no reference appears to have been made to that facility having been given to the Court of Appeal and it is not referred to in the House of Lords' Judicial Committee's judgment. I sincerely hope that it was aware of that benefit when it made its judgment.

Photo of Lord Richard Lord Richard Labour

Perhaps my noble and learned friend could help me. What amendment are we supposed to be discussing? It seems that the groupings have got so muddled that I at least am totally lost.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I take very much to heart my noble friend's stricture. We are discussing Amendment No. 2A, on which, I would respectfully say, we are all in agreement. But we have trespassed way into special counsel and the groups have merged. I apologise wholeheartedly for having been seduced into that error by the noble Lords, Lord Kingsland, Lord Lester and Lord Thomas of Gresford. I should have been far more wary.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I just hope that we will not have to discuss those matters again.

Photo of Baroness Mallalieu Baroness Mallalieu Labour

It is scarcely surprising that we have strayed from the grouping. It is necessary to grasp at straws, such as the special counsel, in order to begin to make this legislation look fair to the defence. I do not want to sound churlish because my Amendment No. 2 effectively is covered by government Amendment No. 2A, although I would have preferred the words,

"unless the court directs otherwise", to have been omitted. It must be the very first principle of this legislation. I do not want to go back to our debate on Second Reading; the noble and learned Baroness knows well my views on the Bill as a whole, which are that we should not be doing it in the first place. But as we are, the first principle should be that the judge is in possession of all the facts. For my part, I cannot imagine a situation in which a judge worth his salt would say, "I don't want to know", although I suppose it is possible that such a thing might happen at a theoretical point in the future. I therefore welcome the government amendments and beg leave to withdraw Amendment No. 2.

Amendment, by leave, withdrawn.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

moved Amendment No. 2A:

Clause 3, page 2, line 26, leave out subsection (2) and insert—

"(1A) Where an application is made by the prosecutor, the prosecutor—

(a) must (unless the court directs otherwise) inform the court of the identity of the witness, but(b) is not required to disclose in connection with the application—(i) the identity of the witness, or(ii) any information that might enable the witness to be identified,to any other party to the proceedings or his or her legal representatives.

(1B) Where an application is made by the defendant, the defendant—

(a) must inform the court and the prosecutor of the identity of the witness, but(b) (if there is more than one defendant) is not required to disclose in connection with the application—(i) the identity of the witness, or(ii) any information that might enable the witness to be identified, to any other defendant or his or her legal representatives.

(1C) Accordingly, where the prosecutor or the defendant proposes to make an application under this section in respect of a witness, any relevant material which is disclosed by or on behalf of that party before the determination of the application may be disclosed in such a way as to prevent—

(a) the identity of the witness, or(b) any information that might enable the witness to be identified,from being disclosed except as required by subsection (1A)(a) or (1B)(a).

(1D) "Relevant material" means any document or other material which falls to be disclosed, or is sought to be relied on, by or on behalf of the party concerned in connection with the proceedings or proceedings preliminary to them."

On Question, amendment agreed to.

[Amendments Nos. 3 to 4 not moved.]

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

moved Amendment No. 4A:

Clause 3, page 2, line 32, at end insert—

"( ) Nothing in this section is to be taken as restricting any power to make rules of court."

On Question, amendment agreed to.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

moved Amendment No. 4B:

Clause 3, page 2, line 32, at end insert—

"( ) For the purposes 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.

( ) 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 proceedings that is in the party's possession.

( ) The Criminal Procedure Rule Committee, established under section 70 of the Courts Act 2003 (c. 39), may make rules of court for inquiries to be made by independent counsel."

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I have said everything that I need to say in support of this amendment. There are, however, two other amendments in this group whose promoters may not share my view of this amendment with respect to theirs. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

In speaking to this amendment, perhaps I may speak at the same time to Amendments Nos. 4C and 9. Amendment No. 4C is tabled in my name and in the names of the noble Baroness, Lady Stern, and the noble Lord, Lord Morris of Handsworth, both of whom are very sorry that they cannot be here today. We have tabled the amendment as members of the Joint Committee on Human Rights. Thanks to the industry and skill of its staff, the committee has managed to produce at record speed a report on this Bill which became available this morning. I shall not go through it, but I refer to noble Lords to it.

The report as a whole essentially follows what was said in the other place by the chair of the committee, Andrew Dismore, MP, and by myself at Second Reading in this House. None of that needs to be repeated, but paragraph 1.33 states:

"We recommend that the Bill should be amended to give the trial judge a discretion to appoint special counsel to represent the interests of both the accused and the witness at hearings for anonymity orders. This would also address the problem that the magistrates' court may have no power to appoint special counsel".

I hope that the committee gets high marks for brevity and that similarly the amendment gets high marks for lack of prescriptive detail. The idea behind it is to ensure that there is a broad discretion, leaving it essentially to the Criminal Procedure Rule Committee to fashion particular rules. We do not have any particular dogmatic preference for the amendment moved by the noble Lord, Lord Kingsland, for the amendment tabled by my noble friend Lord Thomas of Gresford, or even, for that matter, for this one—as long as the pith and substance of what is proposed in the three amendments is given effect.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I shall speak to Amendment No. 9. I think that I have already fully outlined the principles I wish to support, but I want to draw attention to the detail. My amendment would require that:

"The party applying for the witness anonymity order must disclose to the independent counsel all information relating to the proceedings that is in that party's possession".

There should be a duty on that person to make full disclosure. As we have commented before, the question of the investigation by the independent counsel includes a,

"power to require police officers unconnected with the relevant trial to investigate and to report to him whether there are any matters ... which should be drawn to the attention of the court".

That is really what an independent counsel should do in its role.

We suggest that the role of independent counsel would be to examine or cross-examine a witness who claims that he is in fear if there is any doubt about it, or about the circumstances he refers to, or about his honesty or dishonesty generally, for the purposes of assisting the court in coming to its conclusion. It is necessary to repeat that paper applications, which became prevalent, must cease. This is exceptional and it must be treated in an exceptional way. Proper investigation should be carried out and the verification procedure should be set out in the Bill.

I also repeat that leaving it to the judge to invent his own procedure under some common law inherent power to appoint special counsel is unsatisfactory. The procedure could vary from judge to judge and could be ultimately the subject matter of appeals.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

I agree with the remarks of the noble Lord, Lord Thomas of Gresford. The basic sacrosanct principle is not of necessity the question of special counsel or any other special power given to the judge; it is that no judge should be expected to decide on such weighty measures without being thoroughly apprised of the factual matrix upon which he is making his decision. If that can be achieved in a way other than by appointing special counsel, that would be splendid. However, the appointment of special counsel would serve a dual role. One role would be advocatory—in other words, at a preliminary stage in the trial it would be possible to conduct such advocatory measures as are required—and at the same time it would arm the court with powers of an investigatory nature.

I am sure that the Government could do worse than to study in detail—I appreciate time is short—Section 115 of the New Zealand Evidence Act 2006, where this is all set out. Much of the Bill comes from that Act and it would have been appropriate for that to have been incorporated as well. In relation to special counsel, we should ask ourselves not whether such an appointment should be exceptional but whether there is any reason why it should not be done in each and every case if the judge is to be apprised of the information which is so vital to the decisions that he has to make under Clauses 4 and 5. Put another way, can you imagine, before the decision in the Queen and Davis last month, any conscientious judge—I have no doubt that every judge is conscientious—looking at the situation and coming to a conclusion without having studied each and every one of those headings seriatim? If the judge has to arrive at some of these decisions—and inevitably it would be the case—to some extent by way of judicial guesswork, that is not good enough. To leave a judge without the wherewithal to obtain this information would be like making a ship without a keel and a bottom. It is essential that that machinery is there at the judge's discretion and disposal.

All we are doing in the first instance is legitimating by way of statute what was illegitimate under common law and had been for the past 15 years or so. We can do that because we are sovereign. The old saying is that you can do anything by an Act of Parliament except make a man a woman or a woman a man, although I am not sure that that stricture applies in all cases nowadays. All we would be doing would be placing on a technical basis what had been unjust previously; we would not be curing the injustice. The injustice is cured not by the grist of the provisions in the Bill but by the willingness to give the judge the necessary tools for the proper administration of justice in such cases.

Photo of Baroness Mallalieu Baroness Mallalieu Labour

I support what the noble Lord, Lord Elystan-Morgan, has just said. We should not lose sight of the fact that the Bill comes into force on the day it is passed, which could be very swiftly. Judges will have to deal, under the provisions of Clause 10, with proceedings that are already part-way through. No doubt there is going to be a flood of applications to review the orders that have already been made. Judges will be under pressure to deal with them as soon as possible so that people can prepare for the trials that are in the pipeline, and they are going to be asked to do it well before the rules committee has begun to produce the necessary guidelines. If we pass this emergency legislation without giving the judiciary the tools they will undoubtedly need desperately in the next few months, then in my view we are not doing the job we should be doing.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I thank noble Lords for their brevity, particularly the noble Lord, Lord Kingsland, for his telegraphic delivery with regard to this amendment, which we have spent some time discussing. I say to the noble Lord, Lord Lester, that indeed the committee gets extremely high marks for brevity and the lack of prescription in the detail—albeit that I am not able to assent to the amendment at this stage.

The noble Lord, Lord Elystan-Morgan, makes a good point when he says that we need to look at making sure that the information before the judge is such as to enable him to make an informed decision, that it may not necessarily be that the special counsel is the only way forward, and that there may be other ways and we need to consider that. I assure him that we are looking at the provisions of the New Zealand legislation on which the amendments are based and trying to find out how they operate in practice. I told the House at Second Reading that I had the privilege of meeting New Zealand Associate Minister of Justice Lianne Dalziel in Edinburgh, and we are seeking to get as much information as we can about how the legislation operates in that country.

It is important that we understand that these amendments seek to establish a statutory scheme for the appointment of special counsel in relation to witness anonymity applications. In Amendments Nos. 4B and 9 the scheme is based on the New Zealand model, but the structure that is adopted there is significantly different from our own. Therefore, we need to be appropriately cautious about that. The wording of the amendments themselves and our earlier debate demonstrate the difference there may be in the way in which we approach this matter, and what may or may not be necessary. It is important to acknowledge that this is not the only situation in which a statutory scheme is present. The appointment of special counsel in this situation is therefore particularly complex because at present we have at least one statutory scheme alongside the common law. Before bringing forward any statutory provision we will want to be satisfied about the correct role of a special advocate in anonymity proceedings. As I said, it was worth pointing out the difference between the way in which the noble Lord, Lord Lester, put forward the role and the noble Lord, Lord Thomas of Gresford, expressed the role. There is no reluctance at all to introduce a statutory scheme if that scheme would appear to be the most appropriate, but we need to give the matter further careful consideration.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

The noble and learned Baroness the Attorney-General has not explained what is wrong with Amendment No. 4C. She has simply said that the Government do not accept it. From what she has said so far, I do not understand why. The amendment does not prescribe a statutory scheme; all it does is give the court an express power to appoint special counsel from the Attorney-General's panel. What is wrong with that? Is it that it is unnecessary because there is ample power to do it already, and therefore this is, as lawyers say, otiose? Or is it that in some way it conflicts with settled government policy, or that the Government have not decided the policy? We need to know so that I can tell the committee why the Government do not accept the amendment.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

We believe that at the moment, as a result of H and C and the current framework, it is possible—the court has the power—to invite the Attorney-General to appoint a special counsel if it is deemed that that is necessary and appropriate. We can already do that. Now we have the opportunity to look at special counsel, it is important to consider the nature of when they should be appointed, what the nature of the appointment should be and how it should be contained. There will be some not inconsiderable cost implications; I am not suggesting that that will be in any way determinative, but we will have to consider the best way of using these facilities and hone down, if we can, when and the type of case that might be necessary.

Let me say as gently as I can that this is emergency legislation. We are incredibly grateful for the speed with which the committee has considered it. We will take carefully into consideration what is said; we notice the nuanced differences between what the committee, the noble Lord, Lord Thomas of Gresford, and, indeed, the noble Lord, Lord Kingsland, have said. Quite frankly, we want to get this right.

If we did not have H and C as well as a power for the court to invite the appointment of special counsel, we would consider whether the sort of amendment proposed by the noble Lord, Lord Lester, would be the way forward, because it would be appropriate for us to meet that gap. However, we do not have such a gap at the moment; we have a little more time to look at this and when we do, we will be able to discover whether the current scheme, which is non-statutory, suffices and can be expanded. Alternatively, we may come to the conclusion—bearing in mind that in part we have a statutory scheme and in part a common law scheme—whether a different arrangement and configuration might be necessary. That is all we are saying at this stage. Because this is emergency legislation, we should pause and get it right in case it is misconstrued that what we have done under the cloak of the legislation is create a statutory scheme which would then put in question whether in other circumstances—other criminal proceedings—the common law opportunity for the court to appoint a special counsel was no longer there. I know that that is not what the committee or the noble Lord, Lord Lester, would wish.

The noble Lord, Lord Elystan-Morgan, is right that it is not necessarily a question of this course and no other. There may be other things we can do better to inform the court. In later amendments we will look at the guidelines that the DPP may wish to put forward and the guidance that I, as Attorney-General, may wish to give. There may be a number of things we should do to make sure that these cases are properly dealt with.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I do not know what the noble Lord, Lord Kingsland, will do, but I shall seek the opinion of the Committee on my amendment in any event. It is necessary to have a proper framework rather than leaving it to the individual judge to decide the scope and powers of the special counsel that he seeks to appoint.

I have made this point before and I do not need to repeat it. It is very important to give guidance to judges on how to operate this common law power and not leave it in mid-air. Better to have a scheme that is clear now and change it if it proves ineffective or leads to an unfair trial, or even if it is too expensive. We can change it when we are considering the new provisions to be introduced rather than leave it up in the air, in the way that the noble and learned Baroness suggests that the Government will do.

Photo of Lord Richard Lord Richard Labour

Not for the first time in my political life, I am absolutely bemused by the attitude of the Liberal party. Is the noble Lord seriously suggesting that he will divide the Committee on an amendment when we have had a discussion whose main feature has been comity across the party lines and consensus? Does he not consider that this is emergency legislation? Does he also not consider that if his amendment were passed—I do not think that it will be; he does not think that it will be either, in which case it is an exercise in demonstration rather than anything else—it would have to go down the other end again and come back up here? We might even be playing ping-pong between the Houses when this is urgent legislation which everybody is agreed is needed. The noble Lord would be doing himself and his party a grave disservice, let alone that which he would be doing to the country.

Photo of Lord Elystan-Morgan Lord Elystan-Morgan Crossbench

While I have every sympathy with the amendment, which has been drafted very carefully by the noble Lord, Lord Thomas of Gresford, and to which I was very proud to attach my name, given in the circumstances, and bearing in mind the way in which the noble and learned Baroness the Attorney-General has reacted to this matter, I would not dream of supporting him in a Division.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I was given an interesting rebuke by the noble Lord, Lord Richard, and I understand the position from which he speaks, but there are times when we in our party wish to make it clear where we stand on a particular interest, of which this is one. We are perfectly entitled to do that. He shakes his head impatiently, but he is playing a different kind of politics from that which we practise on our side of the Committee.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

In the debate on this group of amendments, I have become something of an innocent bystander—at least, some might say that it is in my self-interest to portray myself in that disguise.

As the noble and learned Baroness must know, I am extremely sympathetic to the amendments of both the noble Lords, Lord Thomas of Gresford and Lord Lester of Herne Hill. However, as I said on Second Reading, due to the undertakings that the Government gave then, and have reinforced during debate on this group, I shall not feel able to support the noble Lord, Lord Thomas, in the Lobby when he puts forward his Amendment No. 9; but he should not deduce from that in any way that I do not agree with it in every respect. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

had given notice of his intention to move Amendment No. 4C:

Clause 3, page 2, line 32, at end insert—

"( ) For the purposes of considering an application for a witness anonymity order the court may appoint special counsel from the Attorney General's Panel of Special Counsel to represent the interests of the defendant and separate special counsel to represent the interests of the witness who is the subject of the application."

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

I shall not move the amendment. I say that on behalf of my committee and I shall act in accordance with what I think is its view.

[Amendment No. 4C not moved.]

Clause 3, as amended, agreed to.

Clause 4 [Conditions for making order]:

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

moved Amendment No. 4D:

Clause 4, page 2, line 36, leave out "C" and insert "D"

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I shall speak also to the other amendments in this line. The operative amendment in it is Amendment No. 6A. Amendments Nos. 4D, 7D and 8B are consequential upon it.

The amendment would add a further condition, D, to the conditions for making an order for anonymity set out in Clause 4. Your Lordships will recall that condition A refers to making an order for anonymity only if it is necessary to protect the safety of the witness or to prevent real harm to the public interest. Condition B is that,

"having regard to all the circumstances, the taking of those measures"— the anonymity measures—

"would be consistent with the defendant receiving a fair trial".

Condition C is that,

"it is necessary to make the order in the interests of justice".

Clause 5 has the heading "Relevant considerations" and states that when the judge is,

"deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to", certain considerations, which are,

"the considerations mentioned in subsection (2) below, and ... such other matters as the court considers relevant".

If noble Lords run their eyes down Clause 5(2)(e), they will see, in effect, the text for my Amendment No. 6A. I am seeking to take paragraph (e) out of Clause 5 and promote it to Clause 4—and my reason for doing so is by now, I think, very obvious. If the court has,

"reason to believe that the witness ... has a tendency to be dishonest, or ... has any motive to be dishonest in the circumstances of the case, having regard", to certain factors, that should be that. It should be one of the conditions that is required to be met before an order for anonymity is granted. I do not think that I need to add anything to what I have said. I beg to move.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 5:00 pm, 15th July 2008

I am slightly puzzled by this amendment. I fully accept that if the court has a reason to believe the things set out in Amendment No. 6A, that would certainly be a reason why the order should not be made. But surely the main problem about anonymity is that one will not know that there is any motive to be dishonest or what the relationship is between the witness and the defendant or his associates. That is the problem that anonymity creates.

I am worried whether, if this condition is in the Bill and the court says that there is no reason to believe this, it will be taken by implication as a finding that, in fact, there is no reason to believe that the witness is dishonest or has motive to be dishonest, when, if only the accused knew who it was, he would be able to say, "Well, of course he has a reason for doing me in—he is sleeping with my wife! He wants me away in prison so he can get on and do that with impunity". That is just an example. Until he knows who the witness is, he cannot say things like that. What worries me is whether that makes it any more likely that someone will say that the court considered that and saw no reason to believe these things, and that therefore they do not exist.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I understand the noble Viscount's concerns. I do not think that the amendment proposed by the noble Lord, Lord Kingsland, assists.

These amendments would change the conditions for making a witness anonymity order, which are set out in Clause 4. Amendment No. 6A would make the witness's credibility—currently a consideration that the court must take into account, as set out in Clause 5(2)(e)—into a fourth condition for making a witness anonymity order. I accept that Amendments Nos. 4D, 7D and 8B are consequential.

I suggest to the noble Lord, Lord Kingsland, that the amendment is unnecessary because the consideration of credibility goes to the question of whether the defendant will have a fair trial. That is already secured by condition B in making an order, as set out in Clause 4(4). Furthermore, conditions A to C set out the high-level principles—necessity, fair trial and interests of justice—for the court to apply, whereas the credibility of a witness is an aspect of assessing the second condition, which is fair trial. We believe that it sits correctly among the considerations in Clause 5.

We do not think that the amendment does what the noble Lord wishes and that the way it is expressed does precisely what he wants in terms of spearing the mischief that he is most concerned about. Therefore, we believe that the clause as currently expressed accurately enables justice to be done and a fair trial to be obtained, and makes it clear that the safety of the witness is the primary consideration, or certainly comes first in terms of necessity. I remind the noble Lord that Clause 4 starts with "necessary" and then establishes conditions A, B and C. Subsection (6) in relation to fear relates to condition A.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I am most grateful to the noble Viscount, Lord Bledisloe, and the noble and learned Baroness for their responses. I agree with him that if a judge is not in a position to make that assessment, and there may be circumstances in which he is not, that poses a difficulty to my amendment. However, if we assume that the proposals put forward by the noble Lord, Lord Thomas of Gresford, and myself become part of the procedures of the future Act, then it is highly unlikely that the judge will ever find himself in that position.

I must say that I am surprised at the noble and learned Baroness's response. The judge is obliged to consider considerations (a) to (e) but the weight he puts on them is entirely a matter for him. The judge may have reason to believe that the witness is a liar, but he may conclude that in the context of a fair trial this is of little consequence. I would be extremely surprised if that were the case. However, there is no doubt that that will be the case from time to time if the Bill becomes law in its present form. If a judge reaches a conclusion that a witness is capable of lying or likely to lie, it should be inconceivable that a witness be granted anonymity. That is the reason I tabled my amendment.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I am puzzled by a small drafting point in the amendment. Presumably it should read "Condition D is that the judge has no reason to believe". Perhaps I have an out-of-date copy, but it does not make much sense as it stands. I am trying to be helpful.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I quite understand. The noble and learned Lord may have pointed out a valid drafting point. I always hope that the merits of any amendment that one tables overcome the technical incompetence in the drafting. However, my experience in your Lordships' House, at least as far as the Government are concerned, is that hope springs eternal.

My amendment does not seem to have excited great interest among those who have been intervening consistently in the course of the other groups. I feel strongly that this consideration ought to be promoted to a condition. However, in the circumstances in which we find ourselves, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

moved Amendment No. 4E:

Clause 4, page 2, line 39, leave out "safety of the witness or another person" and insert "witness or another person from death or serious injury"

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

The amendment takes us into the territory of Clause 4 in a little more detail. It would recast Clause 4(3)(a), which states:

"Condition A"— we are back to conditions—

"is that the measures to be specified in the order are necessary ... in order to protect the safety of the witness or another person".

It goes on with the subject of my second amendment,

"or to prevent any serious damage to property".

My recollection is that when the Government produced an initial draft of the Bill, they had inserted the words of my own amendment,

"or another person from death or serious injury".

That is the expression used in the New Zealand legislation of 2006. Whether I am correct or incorrect about this, I submit that the correct expression is,

"or another person from death or serious injury".

The expression "safety of the witness" is in any case too vague and, moreover, too low a hurdle in the context of Clause 4.

Amendment No. 4F refers to the other part of subsection (3)(a),

"or to prevent any serious damage to property", and adds, "or serious financial loss". Amendment No. 7A, the other amendment of real substance to which I shall refer, takes us to Clause 4(6):

"In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness—

(a) that the witness or another person would suffer death or injury, or(b) that there would be serious damage to property".

The noble and learned Baroness may help me on a matter of interpretation here. My concern is that, under the subsection as drafted, there is no sufficient guarantee of objectivity when assessing whether the witness's fears are reasonable. Therefore, I tabled Amendment No. 7A to make it absolutely clear that the court must assess the reasonableness of any fear alleged on the part of a witness or another person. The noble and learned Baroness may be able to reassure me that that is the effect of subsection (6). However, I should be most grateful if she could clarify it, either in that direction or otherwise. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 5:15 pm, 15th July 2008

I wish to speak to Amendments Nos. 6 and 7, which stand in my name. The noble Lord, Lord Richard, was uncharacteristically uncharitable when he failed to appreciate the time that the noble Lord, Lord Kingsland, I and other members of our parties have put in to try to get this framework right. We attended meetings, and significant developments and changes to the Bill have occurred as a result of those discussions, as, indeed, the noble Lord, Lord Hunt—

Photo of Lord Richard Lord Richard Labour

I am delighted to see that the noble Lord is a bit more emollient. Perhaps I can be as emollient as he is. Of course, I am not suggesting that he has not done a lot of work, as he clearly has. I am suggesting that he should not vote. That is all.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

We differ on that. I give that introduction as this is an attempt to improve the Bill. Clause 4(6) states that,

"the court must have regard (in particular) to any reasonable fear on the part of the witness".

I do not understand why that should be included in subsection (6) as a consideration for the court when Clause 5 sets out a whole series of relevant considerations. It seems to me that it is preferable to take out subsection (6) and to add the heart of it to subsection (5), so that subsection (5)(b) would read,

"the witness would not testify if the order were not made by reason of a well-founded fear on the part of the witness that—

(i) the witness or other person would suffer significant injury, or

(ii) that there would be serious damage to property, if the witness were to be identified".

To use the words of the noble Lord, Lord Kingsland, this would merely promote the concept of concern or fear on the part of the witness to a different position in the Bill.

One can argue about the concept of reasonable fear. I suggest to the noble and learned Baroness the Attorney-General that well-founded fear, which suggests that there is an objective basis for that fear, is perhaps a better way of expressing what we are trying to get at; that it should be a fear founded on something, not an irrational fear. I do not see any point in including death in the concept of fear. Surely it is enough if a person fears suffering significant injury, as I propose in paragraph (i) of Amendment No. 6. My purpose is to try to improve the Bill. I hope that the noble and learned Baroness will take it in that spirit.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

I strongly support either Amendment No. 6 or Amendment No. 7A. I shall not enter into any comparative beauty contest between the noble Lords who spoke to them, but what is undoubtedly needed is a requirement that the witness has not only a fear, but has a justified, well-founded and reasonable fear. Whichever words are used, one certainly needs one amendment or the other.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I certainly accept that the amendments spoken to by the noble Lords, Lord Thomas and Lord Kingsland, are meant to inform and be helpful. Let me say at once that although the Bill as it presently stands meets the points perfectly clearly, I understand the safeguards that noble Lords are seeking.

Amendment No. 4E, as the noble Lord, Lord Kingsland, suggested, would change the first limb of condition A for granting a witness anonymity order from protecting the safety of the witness or other person to protecting a witness or another person from "death or serious injury". The main impact of the change would be to require the court to decide if the type of injury from which the witness might be at risk was serious enough to justify granting an order, whereas "safety" is broad enough to cover any form of risk of harm to the safety of the witness.

I understand the point that the noble Lord, Lord Kingsland, raised about his fear of definitions that may be too vague or provide a hurdle that is too low. I would say to him that witnesses should not be exposed to the risk of any form of harm. Whether the risk of a particular level of harm to which the witness is exposed in any particular case is sufficient to compromise their safety, and thus justify the making of an order, is surely a matter for the court when it addresses the critical three conditions set out in this clause. I fully understand the risk of frivolous fears or the lack of objectivity that might be made in such a judgment. The critical importance of Clause 4(6) in relation to condition A, as the noble Lord, Lord Thomas, said, is that the court,

"must have regard (in particular) to any reasonable fear on the part of the witness".

The term "reasonable" gives the comfort that noble Lords require.

Amendment No. 4F adds "serious financial loss" to the reference to serious damage to property in condition A, and Amendment No. 7C makes a similar change to the reference in subsection (6) to the witness's fear that there would be serious damage to property. I am not sure that there are ways in which a witness could be put in fear of financial loss that would not involve serious damage to property. If there are, we certainly have not thought it necessary to include them in the current Bill. The reference in condition A to "serious damage to property" is intended to capture physical damage to physical property; for example, the fire bombing of a witness's house or car. I can see there may be an argument for extending this to cover "serious financial loss", but the issue is not straightforward. There is a balance to be struck, and it is noticeable that the JCHR in its report flagged up questions as to whether the property consideration should be in the Bill at all. Perhaps I can invite the noble Lord, Lord Kingsland, to look again at the property limb of condition A before legislating afresh in the fourth Session.

The amendment in the name of the noble Lord, Lord Thomas of Gresford, would leave out subsection (6) of Clause 4, which sets out matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purpose in subsection (3)(a). As we have already discussed, that purpose is the necessity,

"to protect the safety of the witness or another person or to prevent any serious damage to property".

Amendment No. 6 adds well founded fear of death, serious injury or serious damage to property as considerations to which the court is to have regard in deciding whether condition C—whether the witness would not testify—is met. As the noble Lord, Lord Thomas, has observed, we have structured the Bill rather differently. Condition A requires the court to consider whether it is necessary to make the order to protect the safety of the witness. We believe that that clearly requires the court to draw an objective conclusion about the safety of the witness. It is clear that in order to reach such a decision the judge will need to access information about the safety of the witness.

As I have said, Clause 4(6) provides that, in reaching a decision, the judge must have regard to any reasonable fear on the part of the witness relating to his safety. This simply means that the court must take account of information from the witness relating to his fear that he would suffer death or injury if his identity were revealed. We have used the term "reasonable fear" to allow the court to disregard irrational fear expressed by the witness. It will of course be for the court to make a judgment and, if it is satisfied that the fear expressed by the witness is reasonable, that will be taken into account by the judge in deciding whether it is necessary to protect the witness or another person or to prevent serious damage to property.

Clause 4(6) expressly relates to Clause 4(3)(a) and not to Clause 5 and condition C. The reason is that in Clause 4(6) we are talking about the witness's fear of death or injury or of serious damage to property if his identity is revealed and not about his fear of giving evidence per se. Therefore, we think that the Bill's current construct is satisfactory. It is also important to recognise that condition A has to be taken in conjunction with Clause 4(6) and the fact that the court has to have regard to any reasonable fear on the part of the witness.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I am most grateful for the response of the noble Lord, Lord Hunt. Our view is simply that Clause 4(3)(a), even in the context of subsection (6), is, as I said in my opening remarks, too low a test for the court to apply. Indeed, that is true not just of the expression in Clause 4(3)(a) but of the expression in Clause 4(6)(a), which refers not to "serious injury" but just to "injury".

I am grateful to the Minister for agreeing to consider the words "or financial loss" at some later legislative stage. It is not hard for me to find examples of serious financial loss. For example, someone may be in possession of a very valuable item belonging to the witness—a picture or an item of furniture—and may threaten either to destroy it or to sell it into the market. I admit that destruction would be covered but not disposal by any other means. Alternatively, the person threatening the witness may owe the witness a great deal of money, which he says he will refuse to pay if the witness gives evidence. In my submission, those are serious considerations.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I do not doubt that those matters require careful consideration. I pray in aid the report of the JCHR; we are rather cautious about widening the definition at this stage. I hope that the noble Lord will allow us to undertake further work in this area and discuss it with him and other noble Lords.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament 5:30 pm, 15th July 2008

I am most grateful to the Minister. I find the Government overcautious in some parts of the Bill and overambitious in others. My concern is that they may not have them in the right order.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

Surely not. The most important matter that I am seeking to establish in this group of amendments is that contained in Amendment No. 7A. From what the Minister has said in reply, my understanding is that, in effect, the expression,

"the court must have regard (in particular) to any reasonable fear on the part of the witness", would require the court to make an assessment of reasonableness. That would have to be an important component in what the court undertakes. The Minister appears to me to have confirmed that already; but he may wish to confirm it again. I take it that he said that and, in those circumstances, I beg leave to withdraw the amendment, satisfied that discussions on this line have not been in vain.

Amendment, by leave, withdrawn.

[Amendment No. 4F not moved.]

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

moved Amendment No. 5:

Clause 4, page 3, line 2, after "measures" insert ", whether on their own or in combination with the measures specified in other witness anonymity orders made or applied for in those proceedings,"

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

I shall speak also to Amendments Nos. 8 and 12, which deal with the same mischief, a lacuna in the Bill, which is not at all surprising in light of the speed with which it has had to be drafted.

In the Davis case, there were to be three witnesses, each of whom said that they had seen the accused shoot. A single application was made for anonymity in respect of all three witnesses and it was granted. When your Lordships' Appellate Committee was considering the matter, it looked at the cumulative effect of anonymity given to the three witnesses who comprised the totality of the evidence against the accused. Not surprisingly, it came to the conclusion that, if the totality of the evidence was to be given by anonymous witnesses, of whom one had no opportunity to find out why they might choose to implicate the defendant, that inevitably would lead to an unfair trial.

I am dealing with the situation where there are two or three witnesses but where separate anonymity orders have been made. In a moment, I shall come to how that could easily happen without any evil intent on the part of the prosecution. Of course, there could also be prosecutions that did that deliberately. We are concerned with several witnesses testifying under anonymity but several orders in respect of those witnesses.

Under Clause 5(2), one has to decide whether considerations (a) to (c) are met in an application for a witness anonymity order. The consideration in (2)(c) is,

"whether evidence given by the witness"— for example, the witness in respect of whom anonymity is applied for—

"might be the sole or decisive evidence implicating the defendant".

If in the case of Davis there had been three separate orders, the evidence of any one witness against whom one was objecting would not be the sole or decisive evidence implicating the defendant. The same factors apply in Clause 4(4). One has to decide whether taking the measures contained in the order will be consistent with a fair trial. One has the same consideration with Amendment No. 12, where the question is whether, as a result of the order, the defendant did not receive a fair trial. I am saying, as all my amendments say, that one has to look at the effect of the orders cumulatively and not at the orders individually.

To give an example of how it might arise that there was more than one order, let us assume that at the commencement of the prosecution there are only two relevant witnesses who can identify the defendant. One of those goes to the police and says, "I'm scared out of my mind about this. Can you do something for me?". The police say, "Yes, we'll apply for a witness anonymity order". The other person has never heard of witness anonymity orders or protection and does not raise the matter at that stage. A witness anonymity order is made in relation to witness A and, when witness B hears about that, he suddenly realises that protection could be given to him. He is equally and genuinely scared, so he asks for protection and another application is made.

Another likely scenario is that, as one gets closer to trial, suddenly a third witness is found. No one may have known about him, or he may have been known but, as he had emigrated to South America, it was thought highly unlikely that he would reappear. However, he reappears and is asked, "Will you give evidence?". He says, "I will only give evidence if I'm protected". Again, an anonymity order is applied for and one is made. In this case, there are three orders, but my example is just as good with only two orders. Anyone objecting to those orders has to look at one order and object to it, when in fact what he is complaining about is the cumulative effect of the three orders.

My amendment simply says that, in deciding these questions, one should look at the anonymity orders in the round and decide whether a trial would be unfair. I venture to hope that the noble Lord will find that amendment wholly unobjectionable and perhaps even think that it is rather useful that I have thought of it. I beg to move.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I have had the benefit of listening to the noble Viscount, Lord Bledisloe, and I have nothing to add, save to say that I entirely concur.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Everything that the noble Viscount, Lord Bledisloe, has said is common sense. I expect to hear an assurance from the Minister, even if the amendment is not accepted.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

The Committee will be grateful to the noble Viscount for his amendments, which are concerned with what should happen in a case where more than one witness anonymity order is made or applied for. His amendments provide for the court to consider whether the measures in the orders taken together would be consistent with the defendants receiving a fair trial, for the Court of Appeal to do the same when looking back at the effect of a pre-commencement order and for the trial judge, when deciding whether to make more than one order in a case, to consider whether the evidence of all the witnesses covered by them would be sole or decisive. I say to him, with the greatest respect, that we believe that the Bill as it stands has sufficient safeguards to deal with the situation that he so articulately put to us a few minutes ago and that therefore his amendment is unnecessary.

The Bill provides that on each application for a witness anonymity order the conditions in Clause 4 should be met and that, in deciding that, the court must take into account the considerations in Clause 5, together with any other factor that it considers relevant. If more than one application is made in a particular case, the court will have to take that fact into account when making its decision on the conditions in the application before it, particularly condition B—whether the measures would be consistent with the defendant receiving a fair trial—and condition C, which is that it is necessary in the interests of justice, as well as a relevant factor under Clause 5(1)(b). All those provisions represent safeguards against the judge taking a view merely because the orders were made at separate times during the course of the hearing. He has to look at the overall position on each occasion.

A further safeguard is provided by the court's powers in Clause 6 to discharge, vary or further vary any witness anonymity order made on its own initiative or on a party's application. That means that the court could reassess and vary, if necessary, the original order if a second or further application were to be made. We believe that the Court of Appeal or trial court would take the same approach in reviewing pre-commencement anonymity orders, as it is required to decide whether the order could be made under the provisions of the Act. The biggest safeguard of all is that the net result of the court's deliberations must be compatible with the defendant's right to a fair trial, which is guaranteed by Article 6 of the convention.

The judge has an overriding obligation to ensure that the defendant has a fair trial. If he does not have a fair trial, any conviction is unsafe, which is the test that the Court of Appeal sets itself in these cases. The judge would be obliged at all times to see whether the defendant was getting a fair trial. One of the factors of which he would take notice is the number of anonymity orders that had been allowed in a particular trial. If he has already made one decision, he can always vary it using his statutory powers under Clause 6.

I mean it when I say that I am grateful to the noble Viscount, who is trying to help the Committee, but we are not sure that the proposed words would make the task of the trial judge any easier. We think that they are unnecessary and I hope that the noble Viscount will consider withdrawing his amendment.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

In conclusion, the Minister said, "we are not sure" that these amendments are necessary. He pointed to rather ingenious ways—

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I apologise for interrupting when the noble Viscount has only just started his reply, but when I said, "we are not sure", it was meant to be a courteous way of saying that we do not think that his amendments would be of assistance. That is what I meant. I do not want him to be under any misapprehension about what I said.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

Now that the Minister has been reasonably discourteous and made himself plain, it is a great deal better. In dealing with me, he should never think that courtesy is necessary, but clarity is.

Photo of Baroness Mallalieu Baroness Mallalieu Labour 5:45 pm, 15th July 2008

I am increasingly troubled about what we are doing in this Committee stage and I wonder whether the Minister will reassure me. A number of careful amendments have been tabled from all sides of the House and there are more to come. Every one of them has been turned down. I understand that there is to be no opportunity at the conclusion of this Committee stage for any further amendments to be put down or considered by this House. If it is the view of the Government that every amendment that is put down and debated this afternoon is to be rejected, what is the purpose of today's Committee stage, other than cosmetic? I would be grateful if the Minister could help me.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

We will want to look very carefully at the amendments that have been moved here before we come to the Bill in the new Session to see whether the arguments that I am putting forward today as forcefully and courteously as I can have merit. No view was taken about the amendments before they were looked at carefully. Everything that has been said today will be relevant to the Bill that will come in in the next Session. If at the moment we thought that, for example, the noble Viscount's amendments made the Bill better, we would agree to them.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

I am grateful to the noble Baroness and to the Minister, but although the Minister suggested—I do not find it very convincing—that these amendments are not necessary, he has not suggested that they do any harm. They provide total clarity, as opposed to people having to fish around in various other sections to try to find ways in which the court might be able to get round my difficulty. In answer to the point made by the noble Baroness, I do not think that any reason has been advanced, so far, for rejecting these amendments. Unless the Minister can do better, I shall have to consider taking the opinion of the Committee.

On Question, amendment negatived.

[Amendments Nos. 6 to 7C not moved.]

Clause 4 agreed to.

Clause 5 [Relevant considerations]:

[Amendment No. 7D not moved.]

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

moved Amendment No. 7E:

Clause 5, page 3, line 20, at end insert—

"( ) the principle that witness anonymity orders are justified only in exceptional cases;( ) the gravity of the offence;"

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I shall speak also to Amendment No. 8A which, on reflection, really belongs in an earlier group because it deals with the list of considerations set out in Clause 5.

I feel somewhat in the same position as the noble Viscount, Lord Bledisloe, when moving his previous amendment. In my view, it is desirable for the judge, when making his decision about whether to award witness anonymity, to take into account, particularly where the issue is evidence as to credibility, whether there is any corroboration for the witness's evidence. That is the purpose of Amendment No. 8A, but I readily accept that it bears little relationship to Amendment No. 7E. I would be grateful if, when the Minister replies, he would deal with Amendment No. 8A in the context of its proper place, which is Clause 5.

I will not disguise the fact that Amendment No. 7E is derived from New Zealand legislation. Of course I accept that New Zealand is not a country which, in its numbers or type of litigation, necessarily has great relevance to the situation that we face in this country; I shall not be surprised if the noble Lord makes that point in reply. However, he will be aware that among those highly principled organisations that have made submissions on the Bill, the Bar Council, for one, has urged the Government to include a provision that anonymity orders should be made only in exceptional cases.

An easy way to deal with this is to say that half the cases where anonymity is granted are about drugs and, in particular, about undercover agents acting as buyers or sellers and then giving evidence against the relevant party; and that, if "exceptional" in the amendment were to appear in the Bill, it might be misunderstood in the context of those applications. I readily admit that, in that sense, the amendment would require some tweaking.

On the other hand, the Bar Council, and many other organisations with intimate day-to-day experience of these matters, will tell the Minister that, on too many occasions now, especially in certain areas of the country, requests for witness anonymity are made by the police as a matter of course. Moreover, many are accepted by the court without the application of any objective tests—one of the reasons for that being that the judge is not put in possession of sufficient evidence to make an objective judgment.

It is in that context that the first paragraph of Amendment No. 7E is advanced. It would be quite wrong for any court to take the view that, in criminal cases, awards of witness anonymity orders should be made regularly. I see that the Minister is nodding and, when he replies, I hope that he will not only repeat that evident assurance in words but, if he is not prepared to put something of this nature in the Bill, at least give encouragement to the Criminal Procedure Rule Committee to make it clear in its stipulations, when crafting the rules of court, that applications for orders ought to be granted only in exceptional circumstances.

I know that the noble Lord, Lord Lester of Herne Hill, took me to task on Second Reading for suggesting that it should be only in grave offences that witness anonymity orders were made. I readily accept that there may be some circumstances in magistrates' courts when it is necessary to make anonymity orders. However, I hope that the Minister will agree that, generally speaking, it will be only in cases where indictments contain offences of the most serious nature that the orders are contemplated. I beg to move.

Photo of Lord Richard Lord Richard Labour

I listened to the noble Lord, Lord Kingsland, with the greatest attention, as I always do when he is on his feet, and I agreed with 99 per cent of what he said. Somehow, it is necessary for us to establish—in legislation, by a strong statement from the Government or in the rules—that the orders should be used only in exceptional circumstances and in grave offences. I know the argument about gravity and the magistrates' court; I accept all that, but that is really a matter for drafting. The issue of principle here is the circumstances in which these exceptional orders—they are exceptional—should be applied for and granted by judges. I hope that my noble friend will be able, in one form or another, to make a clear declaration to that effect.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I am in total agreement with everything that the noble Lords, Lord Richard and Lord Kingsland, said.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am grateful to the noble Lord, Lord Kingsland, for tabling the amendments. Clearly, this is a very important matter to which the Joint Committee invited your Lordships' House to give attention.

Let me say at once that I very much understand the concerns expressed by noble Lords and the fear that anonymity has been granted as a matter of course and that the power has been overused. My noble and learned friend the Attorney-General has already made clear that one of the advantages of having to deal with the consequences of the Judicial Committee's judgment and having to consider emergency legislation, guidance and rules is that it enables us to ensure, as far as possible, that anonymity orders are used in the proper way.

I say to my noble friend Lady Mallalieu that, although she is disappointed by the response of the Government to the amendments, this debate is extremely valuable in feeding into our understanding, in the drafting of the substantive Bill and in the various elements of guidance that will need to be given to those who will have to operate the system. I hope that she will take that assurance that we are listening very carefully to what is being said in your Lordships' House on these important matters. Our discussion on Clause 5 very much relates to Clause 4 and the conditions in paragraphs (a) to (c) that have to be met, but we believe that that ought to give a great deal of assurance to noble Lords on these matters.

Amendment No. 7E, in the name of the noble Lord, Lord Kingsland, would require the court to make an order only in exceptional cases. The conditions in Clause 4 already make it clear that the court must be satisfied that the order is necessary, consistent with a fair trial and in the interests of justice. In addition, Clause 5(2)(a) already requires the court to have regard to the general right of a defendant to know the witness's identity. As I have suggested, that should ensure that courts should not turn lightly to anonymous evidence, but should make an order only where it is necessary for justice to be done.

Our worry is that a requirement that anonymous evidence be used in exceptional cases, in addition to the existing safeguards, could set the bar so high that it might excessively restrict the availability of the orders. The noble Lord, Lord Kingsland, himself has suggested that this would undermine the ability of the police to use undercover officers to conduct test purchases of drugs. I suggest that the admission of anonymous evidence is not exceptional in this narrow category of cases.

Amendment No. 7E would also require the court to have regard to the gravity of the offence. Surely the noble Lord, Lord Kingsland, agrees that the important question is whether the witness's anonymity is crucial to ensuring that justice is done in each case. Again, I use the example of test purchases of drugs by undercover police officers. These cases are not in the category of the most serious and violent of offences, but I am not convinced that the Committee would want to undermine police efforts in this area.

The noble Lord referred to New Zealand legislation, and suggested that I might say that, although the New Zealand legislation has been a very helpful framework for us to look at in drafting our own Bill, circumstances in New Zealand are different. That is absolutely right. One difference is that, in New Zealand, legislation deals separately with test purchase cases. Sections 108 and 109 of the New Zealand Evidence Act 2006, with which I am sure all noble Lords are familiar, provides for a special procedure where an undercover police officer is a witness. In that circumstance, it does not refer to gravity or exceptional circumstances.

Clearly, our Bill is constructed differently. It covers test purchase cases as well as those with civilian witnesses. Given the way in which it is constructed, it would be inappropriate to include exceptional circumstances and the gravity of the offence as considerations. Before the Judicial Committee's judgment, the common law power applied to all offences equally. We will consider this matter further in the coming months, but I hope noble Lords will accept that we would have real problems with the way in which the noble Lord has posed his amendments today.

On Amendment No. 8A, I hope that I can give the noble Lord, Lord Kingsland, the assurance that he requires. A very important amendment to the Bill was made in the other place to include a requirement for the court to consider whether the evidence to be given by an anonymous witness might be the sole or decisive evidence in the case. This test invites the court to consider what other evidence is available to the prosecution. As I said, it was a most important amendment.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour 6:00 pm, 15th July 2008

I am sorry to interrupt the Minister, but I asked whether the Government, in failing to accept that anonymity should be granted only in exceptional cases, are not keeping to the agreement and are reneging on something that has already happened with witnesses, given that permission has been granted to provide anonymity in so many low-level cases that are currently in the pipeline. That is not a good reason for not including "exceptional" in the Bill.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

No, that would not be a good reason, and I hope I can reassure the noble Baroness that that is not the case.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I am most grateful to the Minister for his response, and to other noble Lords who have participated in this debate. I was particularly happy to receive the support of the noble Lord, Lord Richard. I remember him telling me that, the day after he came back to London after his very distinguished four-year service as a European Commissioner in Brussels, he was met at the door of his chambers by his clerk, who said, "Ah, Mr Richard, I've got a very interesting murder for you in Merthyr Tydfil". Did the noble Lord whisper "Pontypool" across the Chamber?

If he can have reposed in him the confidence of his clerk after four years well away from the criminal Bar, I regard that as extremely powerful evidence for the Committee to take seriously what he said about my speech today.

I cannot recall whether the Minister responded to my amendment on corroboration, which I tabled to Clause 5.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I entirely accept that that was a very important amendment in another House; and, in the context of the jurisprudence of the European Court of Human Rights, a very wise one for the Government to have made. Nevertheless, that does not entirely answer the point that lay behind my amendment, because although "sole" is perfectly easy to interpret, when it comes to determining in marginal cases whether evidence given anonymously is decisive, it may from time to time be necessary to take other evidence into account and to assess its weight as corroborative. It would be too ambitious of me to hope that the Government would add this to the Bill, given their response to all the other amendments that we have tabled. Nevertheless, I hope that they will think very hard about it between now and when we consider all these matters again in our consideration of the Law Reform, Victims and Witnesses Bill.

On Amendment No. 7E, I suggest to the Minister that one way of dealing with the point that was made particularly well by the noble Baroness, Lady Kennedy, would be to treat Clause 4(3)(a) and (b) more distinctly than they are treated in the Bill. Plainly, the drug cases to which the Minister referred are covered by the public interest part of the Bill. I quite accept that "exceptional" would be inappropriate in Clause 4(3)(b); it should apply only to Clause 4(3)(a).

In the interim, I do not know to what extent the Government are permitted, or regard it as appropriate, to talk to the Criminal Procedure Rule Committee; but if they have an opportunity to do so, they might suggest to the committee that, in casting any rules that it cares to draft, it might reflect on how the notion of exceptional can be included in rules of court, or indeed in some other way such as in guidance to judges. If not, I am quite sure that, if one looks back at the history of particular judges' decisions on anonymity, one will seek clear trends in particular courts. For that reason, it should be emphasised that these decisions should be taken only exceptionally.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I thank the noble Lord, Lord Kingsland, for those very constructive suggestions. Certainly, we will look at the architecture of the Bill and the relationship between the two parts of condition A when drafting future legislation. So far as guidance, advice and the role of the committee which will craft rules in the area is concerned, I have to be very careful about what I say and any approach that the Government might make. There are also questions about the remit of the committee, which is concerned with rules and procedure. In addition, there are other avenues in which advice may be given. I cannot give absolute assurances, but this will be taken away and we certainly will seek to give appropriate advice.

Photo of Lord Kingsland Lord Kingsland Shadow Minister, Justice, Shadow Lord Chancellor, Parliament

I am most grateful to the Minister for being so constructive. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 8 to 8B not moved.]

Clause 5 agreed to.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

moved Amendment No. 9:

After Clause 5, insert the following new Clause—

"Independent counsel

(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 scrutinise on the court's behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit.

(3) The party applying for the witness anonymity order must disclose to the independent counsel all information relating to the proceedings that is in that party's possession.

(4) The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate and to report to him whether there are any matters relevant to the considerations set out in section 5(2)(d) and (e) which should be drawn to the attention of the court.

(5) The independent counsel shall be entitled to examine witnesses and to assist the court in its consideration of Conditions A to C in section 4."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Everything that can be said already has been said on this. Perhaps I may add that the New Zealand legislature would understand the meaning of the term "kick and rush", not least because our parliamentary team defeated the New Zealand parliamentary team on two occasions. I am proud to say that I refereed one of those games. It might also be known in Merthyr Tydfil and Pontypool. However, we are not happy to succumb to kick-and-rush legislation and we do not propose to set aside our right to move amendments as and when we think fit and to divide the House. I beg to move.

On Question, Whether the said amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 71; Not-Contents, 150.

Division number 1 Private Parking: Ports and Trading Estates — Criminal Evidence (Witness Anonymity) Bill

Aye: 69 Members of the House of Lords

No: 148 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the negative, and amendment disagreed to accordingly.

Clauses 6 to 8 agreed to.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 6:21 pm, 15th July 2008

moved Amendment No. 10:

After Clause 8, insert the following new Clause—

"Code of practice

(1) The Lord Chancellor must adopt and publish, within 84 days of the passing of this Act, a code of practice which shall set out—

(a) the steps which must be taken by a party making an application under section 3 to investigate any matter which might reasonably affect the credibility of the witness or demonstrate partiality or motivation upon the part of the witness not to tell the truth;(b) the nature of any information to be given to such a witness regarding the circumstances in which an application might be made for an order under section 3 of this Act; and(c) the nature and contents of records which must be kept relating to such an investigation.

(2) When deciding whether or not to grant an order under this Act, and in deciding upon what measures to include in such an order, the court must take into account the degree to which the party applying for the order has complied with his or her responsibilities under the code of practice and any effect which non-compliance may have upon the ability of the court, the jury or the parties to have adequate information upon which to assess the witness."

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

This amendment raises the issue of a code of practice, which should be published within 84 days, setting out what steps a party making an application has to take,

"to investigate any matter which might reasonably affect the credibility of the witness or demonstrate partiality or motivation upon the part of the witness not to tell the truth ... the nature of any information to be given; and ... the nature and contents of records which must be kept relating to such an investigation".

It is proposed that when the judge comes to decide whether an order should be made, he takes into account whether the party applying for the order has complied with those responsibilities.

We are returning to the issues that were graphically outlined by the noble Lord, Lord Elystan-Morgan, about a judge having material on which to exercise his judgment and discretion. The closer we can get to that, so that the judge can make an informed decision, the better. I do not intend to extend my submissions on this amendment. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

I commend the noble Lord on his elegantly short exposition in support of his amendment. Perhaps I may say straightaway that we agree absolutely that when considering an application for witness anonymity, the court must have before it all the relevant information and that those making the application must do so diligently after making all the necessary inquiries. We agree with the noble Lord, Lord Elystan-Morgan, on this and we agree with the comments made in support of it by the noble Lord, Lord Thomas. But I should point out that much of this territory is already covered by a code of practice made under Section 23 of the Criminal Procedure and Investigations Act 1996 which requires police officers to pursue all reasonable lines of inquiry and sets out in detail the manner in which police officers must retain, record and reveal to the prosecutor any relevant material obtained in a criminal investigation.

We recognise the need for guidance for practitioners and the enforcement authorities, but we are not currently convinced that a statutory code of practice is the right vehicle for it. If the Bill receives Royal Assent, both the Director of Public Prosecutions and I will issue guidance to prosecutors that will make it clear that in this area more than any other it is critical that prosecutors act independently of the police and the witness. In addition, I understand that the National Policing Improvement Agency and the Association of Chief Police Officers are working on guidance for the police that will address the use of anonymity at the pre-charge stage of an investigation.

The amendment does not specifically address the question of defence applications. It is assumed that the code of practice would be intended primarily for prosecutors. It is inevitably the prosecutor who must conduct inquiries into witnesses and who therefore must always know the real identity of a defence witness, a matter that was raised in our earlier discussions. In the light of my assurance that appropriate guidance will be issued to the police and prosecutors, I hope that the noble Lord will agree to withdraw his amendment.

Perhaps I may also say at this point that I have been very taken with the concerns expressed by my noble friend Lady Mallalieu, and I should like to assure her and the Committee that we will take all these matters into consideration when we come to look at this issue.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I am grateful to the noble and learned Baroness the Attorney-General for her assurance that guidance will be issued, and no doubt that guidance will be made public so that practitioners are able to access it and make submissions in relation to it. I look to her for an assurance of that kind.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Law Officers' Department, The Attorney-General

The noble Lord will know that there are two forms of guidance. One is the guidance of the Attorney-General and the other comes from the Director of Public Prosecutions, which goes directly to prosecutors to assist them in relation to making their decision. Both sets of guidance will be available in the usual way.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I am much obliged to the noble and learned Baroness. I am pleased to hear her say that in this area above all others a prosecutor must be certain to act independently of the police, and in that eventuality I am sure she will agree with me that there should be no question of the police offering anonymity to witnesses and thereby binding subsequent procedures that may take place either in charging or in the prosecution of a case in court and in applications made to the judge. That, I think, is the import of what she has said, and unless she indicates otherwise, I am happy with it. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 6:30 pm, 15th July 2008

moved Amendment No. 11:

After Clause 9, insert the following new Clause—

"Anonymity in rape cases

A person, or persons, who has been granted anonymity in a court of law for the purposes of giving evidence in a trial of a person charged with an offence of rape may lose that anonymity where the following circumstances apply—

(a) the Criminal Cases Review Commission has declared the conviction of a person as unsafe on the basis of false evidence having been provided by the person, or persons, granted anonymity;(b) a judge, following upon the reference to the Court of Appeal of a conviction by the Criminal Cases Review Commission, sets aside the conviction and in the public interest requires the removal of anonymity from the person, or persons, who has given false evidence."

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

This is a simple amendment which should be welcomed by the Government as it seeks to bring into law only that which the Government already appear to have in mind for inclusion in primary legislation. It develops the principle of discharge as set out in Clause 6 of the Bill. Furthermore, it is a transparency amendment, one in a series of such amendments that I have been introducing during the consideration of a number of Bills. These transparency amendments provide members of the public with the information they require to enable them to make more informed judgments in the conduct of their personal lives and in the decisions they take. The beneficiaries here would be men whose actions might be influenced by the availability of such information.

The amendment stems directly from a number of highly-publicised cases, in particular that of Warren Blackwell, a man who spent three years in prison for a crime that he did not commit. Warren Blackwell, a Midlands businessman of impeccable reputation, had been convicted on the basis of a tissue of lies from a woman who had a history of false allegations and a conviction for robbery. Over a period of 17 years, under eight different aliases, she had made accusations of rape against her father in 1984, her stepfather, a local boy in 1983, and further rapes and sexual attacks in 1998, 1999, 2000 and 2001. On three separate occasions she alleged that she had been attacked from behind with a knife. Yet, having accused Blackwell of rape and with police files bulging with information on previous offences alleged by the accuser, Blackwell was prosecuted, convicted and incarcerated for three years. Unbelievably, the then Attorney-General successfully appealed against the shortness of the sentence and it was increased to five years.

Following the efforts of a policeman and the diligence of Annie Johnston, a barrister, in 2004 the Criminal Cases Review Commission intervened and referred the whole case back to the Court of Appeal on the basis that the conviction was unsafe. The judge reversed the conviction. The problem was that the accuser, whose background had been exposed, could not be named because of the provisions in the Sexual Offences (Amendment) Act 1992. Under that Act, whereas under Section 3 the trial judge has a "get out" discretion, as I call it, to remove lifelong anonymity, in the Court Appeal the judge does not have that discretion.

In the Blackwell case in the Court of Appeal, Lady Justice Hallett said:

"The judgment we have delivered gives rise to the concern that there may in the future be another case in which this complainant makes similar allegations against another man. If that were to happen, it would be in the interests of justice that the alleged attacker should be able to find out about and use in his defence the information contained in the report of the [CCRC] and referred to in this judgment. Parliament does not appear to have contemplated the risk of a complainant acting as this complainant is alleged to have done. We are concerned that there appears to be no means by which we can displace a complainant's entitlement to anonymity in the interests of justice for any person against whom she may make allegations in the future".

Before anyone argues that I am calling for an end to anonymity for all women, I wish to make it clear that this is not the case. I am not arguing that anonymity of the accuser should automatically be lifted where a defendant is not found guilty. A rape may well have taken place and the prosecution may have been unsuccessful because of jury prejudice, an insufficiency of evidence or even jury concerns over the scale of penalty which might be imposed for what some jurors might feel is an act on the margins of consent and compulsion. In other words, we cannot condemn the great majority of women who allege rape but cannot convince a jury in a court of law. My amendment does not penalise them.

However, a small minority are telling lies and their lies and false allegations are often uncovered only when their history of false allegations is exposed. Men have a right to be protected from false allegations and a right to know that the development of a relationship with a serial false accuser, who may make an accusation of rape, can ruin their lives. I am aware of a number of cases where false allegations have destroyed men's reputations and even led on some occasions to suicide. My amendment will affect very few cases. According to an answer given on 23 February 2007, only 32 rape cases have been referred to the Criminal Cases Review Commission since 1997, an average of three a year. My amendment seeks to deal only with cases referred by the CCRC to the Court of Appeal. Removal of anonymity would not be automatic as there are circumstances where mental health may be an issue for the judge in the Court of Appeal to decide upon.

The question is whether this Bill is the right vehicle for such an amendment. Not absolutely, but it is very near to being a vehicle. I understand the distinction that my noble friend may wish to draw at the Dispatch Box today, but that is for the Government to consider and Parliament to decide upon. We know that the Government are sympathetic. I understand that my right honourable friend Mr Mike O'Brien, a Member of the other House, as Solicitor-General, in early 2007 told the Times newspaper that:

"The Government has no plans to remove anonymity for complainants in the vast majority of cases"— with which I agree. However, his departmental brief went on to say that,

"Ministers are looking at a very restricted power that might be used where it would be in the 'interests of justice' to lift anonymity in the case of complainants whose allegations were found to be unsubstantiated and the conviction squashed by the Court of Appeal".

When he was Attorney-General, my noble and learned friend Lord Goldsmith told the House in reply to a question from myself:

"I have said that we are considering this matter. I am prepared to say that we are actively considering this matter. Subject to other ministerial colleagues, I hope that we shall still reach a decision soon".—[Hansard, 9/1/07; col. 111.]

Earlier he had said:

"As we have made clear, the Government are considering whether the law on complainant anonymity requires amendment in the light of the Court of Appeal judgment in the Blackwell case".—[Hansard, 9/1/07; col. 109.]

Later that month, my noble and learned friend Lady Scotland, who is in her place—I understand that she was a Home Office Minister at the time—stated:

"The rules governing complainant anonymity are set out in statute—namely, the Sexual Offences (Amendment) Act 1992 as amended—and primary legislation would be required to amend them".

This is primary legislation. She went on to say that,

"we are considering actively whether any amendment of the law is appropriate to take account of the remarks of the Court of Appeal in the Blackwell case".—[Hansard, 16/1/07; col. WA 137.]

I make that one Solicitor-General, one Attorney-General who was at the time a Home Office Minister and one former Attorney-General. I support them in their endeavours. This is an opportunity and I hope that they support my amendment today. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I congratulate my noble friend on his ingenuity in bringing this matter to the Committee's attention. In addition to the wise words he has quoted from esteemed and former colleagues, we have had the enjoyment of two Oral Questions on this matter in the past few months, when I, as a humble justice Minister, also added my name to the review to which my noble friend has referred. When the substantive Bill is brought before your Lordships' House in the next Session, my noble friend will undoubtedly wish to take part in those discussions.

One has to draw a distinction between the legislation to which my noble friend refers and the legislation we are discussing today, although I have no complaint whatever about him bringing this amendment before us. He is dealing with a situation where a witness in a rape case who is subject to a witness anonymity order granted under the Bill gives false evidence and the defendant is then convicted. Where the Criminal Cases Review Commission subsequently refers the case to the Court of Appeal and the court quashes the conviction on the grounds that the witness's evidence is false, the amendment would enable the anonymity to be lifted.

I am well aware of the case that my noble friend raises, and I will come back to it in a minute. His amendment would have a similar effect, in relation to the witness anonymity scheme in the Bill, to the possible amendments we are considering to the complainant anonymity scheme in the sexual offences cases. However, this Bill has to do with witness anonymity from the defendant, not complainant anonymity in the form of reporting restrictions, which is a case in relation to the Sexual Offences (Amendment) Act that he has referred to. The present Bill deals with witness anonymity in the sense of withholding a witness's identity from the defendant.

I am aware of, and have debated with my noble friend, the issue of complainant anonymity in sexual offences cases. It is governed by Section 1 of the Sexual Offences (Amendment) Act 1992, which does not permit the witness's identity to be kept from the defendant. Essentially it is a form of reporting restriction, with the aim of preventing the reporting of the witness's identity to the wider public. If, as my noble friend suggests, a witness granted anonymity from the defendant perjures himself or herself at the trial and is subsequently prosecuted for perjury arising out of that testimony, what is the situation vis-à-vis the witness anonymity order? That is where Clause 6, to which my noble friend has already referred, comes in; it enables a witness anonymity order under the Bill to be discharged by the court that made the order, either on the application of any party to the proceedings or by the court on its own initiative.

That power of variation and discharge continues indefinitely, including after the trial has ended. In the situation envisaged by the amendment where a conviction was quashed by the Court of Appeal, Clause 6 would not grant the Court of Appeal a specific power to discharge the order, but it could be discharged on application to the Crown Court. In that sense, my noble friend's amendment is unnecessary. Under the Bill, the court that makes a witness anonymity order already has a discretion to vary or discharge it, provided that there has been a change of circumstances since the order was granted. A charge of perjury would constitute such a change of circumstances.

Should proceedings for perjury in the situation envisaged by my noble friend inevitably mean that the court would want to discharge any witness anonymity order that may have been made, there is a strong argument that it should. An anonymous witness subsequently charged with perjury becomes a defendant, and there is a universal presumption against defendant anonymity.

I know that my noble friend is anxious that we report on the review. I understand that. All I can say at the moment is that we are still actively considering the issue. I cannot tell him when the review will be concluded although, in the light of what he has said today, I will redouble efforts to get him some more information about that. He holds the threat over me that if we do not make progress he will bring this back when the Bill comes through in the next Session.

We are attempting to strike the right balance between protecting the public from false allegations and ensuring that legitimate complainants are not discouraged from coming forward. We want to ensure that genuine complainants would not be put off by the fear, perhaps unfounded, that their identity would become known, but we are considering the issue in relation to the case that my noble friend has raised. We have no plans to lift anonymity for complainants in sexual offence cases; indeed, I readily accept that my noble friend did not argue that point at all, and he presented his case in a very measured way. I hope he will accept from me that while I do not think his amendment is necessary in this Bill, the matter he has raised is being taken seriously by the Government.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour

I am indebted to my noble friend. I do not want to detain the Committee, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 agreed to.

Clause 11 [Pre-commencement anonymity orders: appeals]:

[Amendment No. 12 not moved.]

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench 6:45 pm, 15th July 2008

moved Amendment No. 13:

Clause 11, page 6, line 10, leave out "the defendant did not receive a fair trial" and insert "there is a real probability that the defendant may not have received a fair trial"

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

This amendment relates solely to appeals against convictions that have already taken place under the past system and where witnesses were given anonymity. Clause 11(2)(b) provides that the conviction is to be treated as unsafe if the court considers that the defendant did not receive a fair trial. The whole difficulty about anonymity is that the defendant will not know whether he received a fair trial because he does not know whether, if he had known the witness's identity, there were a whole lot of things he could have put to the witness that would have proved them likely to be a liar, malicious and so on. The defendant will never be able to demonstrate that he did not receive a fair trial, but he may well be able to raise a sufficient case to indicate that there is a real probability that he may not have received a fair trial. That is the amendment that I propose.

This is not a matter where it is pointful for the Minister to say, "We'll deal with this when the whole thing comes back in 12 months' time", because these appeals, by definition, are going to be heard in the immediate future because they are appeals against cases that have already happened. It will be little consolation to the appellants in those cases to find that in 12 months' time, after their appeals have been dismissed, the Government recognise the validity of the point I am making and put forward a lesser test, but a test that will not be applied to almost all the cases covered by this provision. I beg to move.

Photo of Lord Bach Lord Bach Government Whip, Government Whip

I am afraid that we reject this amendment. We think it would change the basis on which the Court of Appeal, day by day, looks at appeals against criminal convictions, and that there is no justification for doing so here. The test for the Court of Appeal, as I think was said earlier, is whether a conviction is unsafe. Obviously, if a trial has been unfair, it follows that the conviction will be unsafe.

Here the law will allow that if, under the statutory powers that the Bill will give, the defendant who was convicted under the common law has received a fair trial where a witness has been allowed to give anonymous evidence, that conviction should be upheld. If, however, the defendant did not come within the statutory test that is clearly set out in the Bill, his trial will have been unfair because an anonymous witness should not have been allowed to give evidence. We think that it is as simple as that. To put in here the possibility of a real probability that a defendant may not have received a fair trial seems to us to go too far.

We do not see an argument in favour of requiring the Court of Appeal to consider whether the appellant may not have received a fair trial. The issue is: did he receive a fair trial as provided for by the Bill that we hope will be passed tonight?

We believe that the appeal court will be in a position to assess whether in its opinion the decision taken by the trial court in making the pre-commencement anonymity order was in all the circumstances fair and afforded that defendant a fair trial. If it concludes that the defendant did not receive a fair trial, then, again, the conviction is unsafe and has to be quashed.

It is for those quite simple reasons, which cover matters of broad principle, that we object to the amendment and ask the noble Viscount to withdraw it.

Photo of Viscount Bledisloe Viscount Bledisloe Crossbench

I confess that I find that answer unsatisfactory. The defendant cannot know whether he had a fair trial; he cannot know whether, if he had known the name of the witnesses, he would have had any further questions to put. If he had known the witness's identity, he might have called all sorts of evidence and cross-examined heavily. Alternatively, if he had known the witness's identity, he might have had nothing further to say. How can the defendant demonstrate, therefore, that he did not receive a fair trial? All he can say is, "It does not seem to me that I had a fair trial because I did not have a chance to put the points that I might have put if I had known who was giving evidence". I am deeply unsatisfied with the Minister's answer. However, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 11 agreed to.

Clause 12 [Interpretation]:

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

moved Amendment No. 14:

Clause 12, page 6, line 24, leave out "a magistrates' court,"

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

The Bill extends to magistrates' courts. In New Zealand, if the question of anonymity arises in a district court, the case is automatically transferred to the high court for trial. The Government have chosen not to follow the New Zealand pattern in this respect. It is a test of the exceptionality of the provisions that they are putting forward. How many times has anonymity been granted to a witness in the magistrates' courts so far as the Minister's records can tell us? Secondly, how many magistrates' courts are currently equipped to enable special measures to be carried out to ensure the continuing anonymity of a witness?

In principle, this provision is unacceptable for a number of reasons. In the first place, the application has to be made to the magistrates who actually hear the case. At the beginning of the trial, the magistrate is confronted with an application for anonymity which must be on the basis of threats, fear or misconduct on the part of the defendant or his associates. That inevitably means that the magistrates will be heavily prejudiced against the defendant before the matter is heard at all.

Secondly, there is no provision in the magistrates' court—no inherent jurisdiction—to appoint the sort of special counsel that the Government concede the High Court and the Crown Court can grant. Their answer to our request for independent counsel to be included in the Bill is, "You already have it". There is an inherent power in the Crown Court or in the High Court for special counsel to be appointed. That does not of course apply to the magistrates' court. So that safeguard, which the Government say is sufficient for this emergency legislation, is not available either.

One then has to consider the gravity of the offences that are to be subject to such an order. The noble and learned Baroness, who is not in her place just at the moment, mentioned the possibility of breaches of control orders being before the magistrate. Surely dealing with anonymous witnesses is sufficiently important for the case to be transferred to the Crown Court for consideration of that point. There should be machinery in place to do that.

Another argument advanced by the Government is that youth courts try more serious offences than the average run of the magistrates' court. That may be so, but all the problems that I have outlined in relation to adult magistrates' courts apply to youth courts. There should be built-in machinery to enable a Crown Court judge to consider a matter as serious as that if it is to be used exceptionally and not to become an everyday order made by the court.

It might be said that witness intimidation cases are heard in the magistrates' court. There are few cases of any nature heard in the magistrates' court which are as serious as witness intimidation. Surely if the question of anonymity arises in that respect, the matter should be put up to the Crown Court straight away. Even if there is no power to do so, that is bound to be a more serious offence than the sort of offences that commonly appear before the magistrates for their adjudication.

From the point of view of practicality, principle and the lack of the proper machinery, the inclusion of magistrates' courts in the Bill is a step too far. It is a matter which deserves much more consideration in connection with the future Bill than it has received so far. I beg to move.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

I support the amendment. First, I must express my apologies for not having been able to be here on Second Reading. I know the rules very well about not making Second Reading speeches in Committee, and I have no intention of doing so. However, I would like to say something—about five sentences in all—seeing that the noble and learned Baroness referred to a letter which I wrote to the noble Lord, Lord Hunt.

I was much concerned by the initial reactions to the decision of this House in R v Davis. I was concerned that Parliament might be asked to reverse that decision on its facts. When I read the Bill, however, and in particular the late amendment introduced by the Government in the House of Commons, which is now Clause 5(2)(c), I realised that that is not so. If the facts of Davis were to recur again tomorrow, the result would, in my opinion, be exactly the same. I am very glad of that.

My real concern now is whether the Bill should be extended to magistrates' courts. In my view it would be a mistake, at least until we have some experience of how the Bill will work out in the Crown Courts. The Director of Public Prosecutions—this is to some extent an answer to the question of the noble Lord, Lord Thomas—could think of not a single case in which an anonymity order had been sought in the magistrates' courts. The Lord Chancellor could think of two such cases, but they were of a very different order from the 50 so-called civilian cases and the 17 so-called Trident cases, which are the reason—the only reason—why the Bill is before us as emergency legislation.

There are two other reasons for caution in respect of magistrates' courts. First, there is considerable doubt about the practicability of extending the Bill to magistrates' courts, a doubt which has been expressed in many quarters. Secondly, although there was some discussion of magistrates' courts in the other place, the other place never reached Clause 12.

This has been described by the noble and learned Baroness as an interim measure. Surely it is better not to embark on difficult and, to some extent, unexplored territory in an interim measure unless it is absolutely necessary, which in my opinion it is not. We do not want to add to the teething difficulties that the Bill will undoubtedly experience in the Crown Courts let alone the magistrates' courts.

I read with great interest what the noble and learned Baroness said in her reply at Second Reading, but, with respect, I have to say that I found that part of her reply the least satisfying. The sensible course now must be to see how the new procedure works out in the Crown Court and then apply it, if thought fit, when the new Bill comes along in the next Session. There cannot be that much of a hurry to apply the Bill to magistrates' courts. If there are urgent and important cases that might otherwise have gone to the magistrates' courts, they can always in the mean time, as the noble Lord, Lord Thomas, has explained, go to the Crown Court—there is no difficulty about that at all. I therefore hope that the Government will agree to the amendment, or at least that the noble and learned Baroness or the noble Lord, Lord Hunt, might find some way of bringing into force this part of the Bill, so far as it relates to magistrates' courts, only at a later stage when the new Bill is introduced. If anybody needs any assistance in drafting an amendment to Clause 13 to enable that to be brought about, I shall be happy to help before Third Reading.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 7:00 pm, 15th July 2008

The arguments that have just been adduced seem overwhelming. I do not wish to delay for more than a minute the reply from the noble Lord or from the noble and learned Baroness, when we will see whether they are overwhelmed. I hope that one question will be answered when they reply. We have been reminded that the New Zealand model does not provide for similar provisions to apply to the magistrates' court. What adverse consequence, if any, is seen by the Government to have derived from that feature of the New Zealand model that has led them to decide not to follow it in the Bill?

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I support the Bill, but it is inappropriate that it should extend to the magistrates' court. That is my only criticism of it. Whether or not that provision is to be exceptional, as has been suggested, or it should apply only in certain circumstances, I have real concerns about it. I therefore respectfully support both noble Lords who have just spoken.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour

I share the opinion that has been expressed. Having had quite a lot of experience of magistrates' courts, I think that it is entirely inappropriate to include them in the Bill. Therefore, I shall weigh in with support for the noble Lord.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am most grateful to noble Lords for their contribution to this, our final debate in Committee. It has been interesting because we spent a great deal of time during the passage of the Criminal Justice and Immigration Bill discussing the worthiness of the magistrates' courts. It has been interesting to listen to noble Lords' comments on specific issues relating to witness anonymity and the role of the magistrates' courts.

Before coming to the argument, I shall answer the specific questions that were raised. While I accept that the Government need to give careful consideration to the points raised—I will suggest a way in which they intend to do so during the next few months—I point out that the status quo is that magistrates' courts are and have been covered by witness anonymity procedures. Therefore, the Government are retaining the status quo, albeit with the safeguards that are being built into the legislation. In that sense, the Bill provides strengthened safeguards in relation to magistrates' courts, as it does to other courts.

I am wary of citing figures. We have the results of a snapshot survey by the CPS. The number of cases of which we are aware is one case in the magistrates' courts and one case in the youth court. It is clear that that is a snapshot survey, but it suggests that—to use the terminology of the noble Lord, Lord Kingsland, when speaking to a previous amendment—this measure appears to be used in exceptional circumstances.

The noble Lord, Lord Thomas, asked whether magistrates' courts have the facilities for the measures that need to be taken in relation to witness anonymity. My advice is that neither the magistrates' court nor the Crown Court automatically has specific technical equipment for witness anonymity cases, which are dealt with on an ad hoc basis. There is no reason in principle, therefore, why any Crown Court should have facilities that the magistrates' court does not. There is nothing to prevent proceedings from being transferred to a local Crown Court building if the layout and facilities are more appropriate there, but, of course, the case would still be heard by the magistrates. I am reliably informed that special considerations in any case need to be given in Crown Court facilities when witness anonymity is agreed to, as I am sure the noble Lord, Lord Thomas, with his vast experience, will know.

On magistrates' courts having no power to appoint special counsel, I must again be cautious about the information that I have. We are not aware of an example of this happening in practice, but there is no reason in principle why the magistrates' court cannot draw on the assistance of special counsel in the same way as the Crown Court can. My understanding is that the court would write to the Attorney-General asking for an appointment to be made, as the Crown Court does, if the court felt that to be appropriate.

The amendment would prevent witness anonymity orders from being made in magistrates' courts. Magistrates' courts include the youth court. Real concern would be felt about the impact of the amendment on youth courts. Although some serious offences committed by young offenders are dealt with by the Crown Court, it would not be appropriate as a matter of policy to require defendants under 18 to be tried in the Crown Court to obtain a witness anonymity order. I refer noble Lords back to our debates during the passage of the Criminal Justice and Immigration Bill on young people appearing in the Crown Court.

We think that the current position should continue under this emergency Bill because there may be offences, including cases involving the test purchase of drugs by undercover police officers, that could be tried quite appropriately in the magistrates' court using anonymous evidence. Indeed, you could argue that the defendant might be disadvantaged if such cases had to be sent to the Crown Court—for example, if the case took longer to come to court.

The noble and learned Lord, Lord Mayhew, asked whether I was aware of any difficulty with the operation of courts in New Zealand and the fact that there is no provision for the equivalent of magistrates' courts in that country to use witness anonymity. I am not aware of any such information. Clearly, we have had little time to consider these matters, but we have been very much helped by the framework of the New Zealand legislation. As the noble Lord, Lord Kingsland, said earlier, however close our ties are to New Zealand, the circumstances in our two countries can be different. But clearly we will have a little time now to do some more exploration of the experience in that country.

Photo of Lord Lloyd of Berwick Lord Lloyd of Berwick Chair, Ecclesiastical Committee (Joint Committee)

Surely that is the whole point. We need a little more time to consider how this would work in relation to magistrates' courts.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I was just about to turn to the noble and learned Lord. Although he was not able to speak at Second Reading, his intervention here is none the less extremely welcome, even though he is arguing against the point that I am making. I hope that he did not mind our reading the short extract from his letter at Second Reading, but we could not find him to ask whether he would find that acceptable. I am glad that he does not seem to object.

I acknowledge that the issues raised by noble Lords here today are very real and valid, although the Government believe that, none the less, there is a strong case to allow magistrates' courts to be able to make decisions in relation to witness anonymity orders. We all agree that this needs further consideration. I am certainly prepared to examine the issue in more detail over the coming months, to consult noble Lords and to reach a considered view on the appropriate way forward in time for the fourth Session Bill.

There is no argument that this matter requires further consideration; the question is whether, in the light of that, we retain the Bill as it is or agree to the amendment moved by the noble Lord, Lord Thomas, and exclude magistrates' courts in the short interim period. My argument for suggesting that the Committee does not go down that path is that essentially we have sought, in the construction of this Bill, to take things as they are—the status quo—and to ensure, as the noble and learned Lord, Lord Lloyd, rightly suggested, that we have the safeguards necessary to ensure that this complies with ECHR considerations. On that basis I argue that, as this vision of witness anonymity has applied to magistrates' courts in the past, we would be sensible to allow that to continue in the interim. None the less, I accept that we then need to have a serious discussion on the future with noble Lords and other interested parties in time for the arrival of the substantive Bill before your Lordships' House.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I am grateful to the Minister for his assurances, but one registered case in a magistrates' court and one in a youth court really tells it all. Whether those cases would have succeeded in the light of Davis is a matter for simple speculation.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

Surely I would be damned if I did and damned if I did not. If I had said that there were hundreds of cases, the noble Lord would say, "Shock, horror, we must stop it and take it out".

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs 7:15 pm, 15th July 2008

I do not follow the logic of that, I regret to say. What is lacking is any evidence on which the Government's policy is based. There is no evidence of need and none of a request or requirement from the magistrates' courts for this sort of anonymity to be extended to them. The Minister says that he knows that it has been used twice. That may be simply an aberration; I suggest that it is. But the Government are now crying out for this policy in an emergency Bill as something that is so essential that we have to rush it through in a day in the House of Commons and in two days here, with all the stages being taken now.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am sorry to interrupt the noble Lord, but it is not the Government who have rushed suddenly to put a new provision into the Bill. We are talking about a position in which this currently has applied to magistrates' courts. It is the noble Lord who is rushing to make a precipitate decision on which we have not had time for careful consideration.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

Exactly—we and the Minister have not had time for careful consideration, yet he is clinging on to the extension of anonymity to magistrates' courts based on two cases. Two cases!

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The noble Lord keeps talking about an extension. This is not an extension; it is there already.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

I have outlined already why we are dissatisfied with these provisions. I look forward to further discussions in the coming year. It seems to me that we should all have a trip to New Zealand to find out what the situation is there.

A noble Lord:

On a one-way ticket!

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Spokesperson in the Lords (Shadow Attorney General), Home Affairs

That is very kind. I might take up that offer, provided that the noble Lord will pay for it.

This is a serious matter. What I fear is that the magistrates' courts, having been informed that they have this power, will start to use it and that police officers in all sorts of stupid little cases—ASBOs and things of that sort—will start asking for anonymity for their witnesses. That is inappropriate when we are concerned with a principle of open justice—that a defendant should see his accuser. That has been underlined as essential to a fair trial by the Judicial Committee of this House. I do not propose to press this amendment to a vote but I shall participate in any further discussion on this topic in the near future. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 15 not moved.]

Clause 12 agreed to.

Clauses 13 to 15 agreed to.

House resumed: Bill reported with amendments; Report received.

Bill read a third time.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

My Lords, I beg to move that this Bill do now pass. In doing so, I express my grateful thanks to all noble Lords and noble and learned Lords who have taken part not only in our discussions today and at Second Reading but at the meetings held between the Front Benches of the two main parties and with other noble Lords and noble and learned Lords. These have been very constructive discussions. I am extremely grateful to all noble Lords for their co-operation in enabling this emergency legislation to be passed through your Lordships' House. I reiterate that we take very careful note of all the points that have been raised in our debate and look forward to a constructive engagement with noble Lords over the next few months.

I wish that the Ministry of Justice's budget was sufficient to take us all to New Zealand but, alas, I doubt it. Certainly we will look carefully at what experience we can garner from other countries in order to enhance our debate when the substantive Bill comes to us in the next Session.

I conclude by apologising again for the problem identified earlier today of the late notice of government amendments. I very much regret that and hope that, none the less, the House will understand that this has been done under great pressure. The opportunity to consider the Bill in substantive form in the next Session at least provides some reassurance.

Moved, That the Bill do now pass.—(Lord Hunt of Kings Heath.)

On Question, Bill passed, and returned to the Commons with amendments.