– in a Public Bill Committee at 9:00 am on 5th March 2009.
I beg to move amendment 78, in clause 61, page 35, line 14, leave out justice of the peace and insert Crown Court judge.
With this it will be convenient to discuss the following: amendment 80, in clause 62, page 36, line 31, leave out justice of the peace and insert Crown Court judge.
Amendment 81, in clause 62, page 37, line 9, leave out justice and insert judge.
Amendment 130, in clause 62, page 37, line 11, leave out justice of the peace and insert Crown Court judge.
Amendment 131, in clause 62, page 37, line 12, leave out justice of the peace and insert Crown Court judge.
Amendment 132, in clause 62, page 37, line 14, leave out justice and insert judge.
Amendment 133, in clause 62, page 37, line 16, leave out justice of the peace and insert Crown Court judge.
Amendment 134, in clause 62, page 37, line 17, leave out from to to end of line 18 and insert
such person as the Secretary of State may by order prescribe in respect of the relevant county court.
Amendment 135, in clause 63, page 37, line 26, leave out justice of the peace and insert Crown Court judge.
Amendment 136, in clause 63, page 38, line 10, leave out justice and insert judge.
Amendment 137, in clause 64, page 38, line 19, leave out justice of the peace and insert Crown Court judge.
Amendment 84, in clause 64, page 38, line 20, leave out Crown and insert High.
Amendment 138, in clause 64, page 38, line 25, leave out justice and insert Crown Court judge.
Amendment 139, in clause 64, page 38, line 27, leave out justice of the peace and insert Crown Court judge.
Amendment 140, in clause 65, page 38, line 34, leave out justice of the peace and insert Crown Court judge.
Amendment 141, in clause 65, page 38, line 35, leave out justice and insert judge.
Amendment 142, in clause 65, page 38, line 36, leave out justice and insert judge.
Amendment 85, in clause 65, page 39, line 5, leave out Crown and insert High.
Amendment 143, in clause 65, page 39, line 5, leave out justices decision and insert decision of the Crown Court judge.
Amendment 144, in clause 65, page 39, line 7, leave out justice of the peace and insert Crown Court judge.
Amendment 145, in clause 68, page 40, line 15, leave out paragraph (a).
Amendment 146, in clause 68, page 40, line 20, at end insert
(d) the reference to the High Court is to be read as a reference to the High Court of Northern Ireland;
(e) the reference to a judge of the High Court is to be read as a reference to a judge of the High Court of Northern Ireland..
Amendment 191, in clause 69, page 40, line 25, after second a, insert Crown.
Amendment 192, in clause 69, page 40, line 27, after first the, insert Crown.
Amendment 193, in clause 69, page 41, line 1, after the, insert Crown.
Amendment 195, in clause 70, page 41, line 11, at end insert
(A1) For the avoidance of doubt, whilst applications for a witness anonymity order must be made to the Crown court such orders may govern current, adjourned or future proceedings in the magistrates courts..
Amendment 194, in clause 70, page 41, line 13, after the, insert Crown.
Amendment 201, in clause 80, page 45, line 35, after Appeal, insert
except where the Crown court is specified as the appropriate court,.
Amendment 78 stands in my name and those of my hon. Friends. I think that on this occasion my hon. Friend the Member for North Wiltshire intends to leave his name on the amendment.
I reconfirm that I will, of course, support all the amendments that my hon. and learned Friend proposes from now onwards. I am delighted to say that, with one exception, I have supported the Conservative Whip throughout my 12 years in this place, and I intend to do so for the next 12 years, too. I am glad that when I divided the Committee last week, both my hon. Friend the Member for North-West Norfolk and the Whip joined me in my Division.
As we seem to be in the business of making confessions, the Committee will have noticed that my name is absent from the amendment. I give my hon. and learned Friend notice that I have, as the Scots would say, some doots about the matter, because I am a doughty supporter of the interests and the importance of magistrates, including the lay magistracy, but I have some confidence that I shall be persuaded by his eloquence.
Exactly. I look forward to enjoying the support of my consistent but for one occasion hon. Friend the Member for North Wiltshire and my hon. Friend the Member for Daventry, who has what he called doots. We shall see what we can do about that.
This is quite a simple set of amendments. What I seek to do flows from the evidence that came out of the evidence sessions. I think that it was Mr. Keir Starmer, the Director of Public Prosecutions, who informed us that of the cases that had gone to the courts under the witness anonymity legislation passed in the summer, only three cases had gone before a magistrate, and that was a district judge rather than a lay magistrates bench. I appreciate that we are talking about investigation anonymity orders, but it strikes me that if the practice is that most applications for witness anonymity orders have gone to Crown court judges, the orders under clause 61 are also likely, on the great preponderance of occasions, to go before a Crown court judge. That will not necessarily be the case, but it is a fair guess.
It may be suggested that because these orders are made in the course of the investigatory stage, it is not possible to know whether the investigations will lead to a charge at all and, if they do lead to a charge, whether that charge will be dealt with most suitably before a magistrates court or a Crown court, but in any event, given the delicate nature of the jurisdiction
On a point of order, Mr. Cook. Members of the public cannot attend our sitting. It seems that the door to the room has been left locked for some reason.
It has been left to members of the Committee to unlock the door.
Well, we must grateful for the fact that some members of the Committee consider themselves to be doorkeepers.
It is always a pleasure to see the right hon. Gentleman helping us.
Given the delicate nature of the jurisdiction that we are creating, it is probably more sensible for the applications to be made to the Crown court rather than a magistrate. I, of course, accept that it is difficult to appreciate with certainty at the time of an investigation and when the police or the authorities are considering whether to make an application for an investigation anonymity order whether that investigation will lead to a charge and, if there were a charge, whether it will lead to proceedings in a Crown court or a magistrates court. In any event, I want to know whether the Government are convinced and think it wholly appropriate in all circumstances that such applications should be made to a magistrates court as opposed to a Crown court.
Like the hon. Member for Daventry, I have doubts about the proposal, but I wish first to declare an interest in so far as my wife is a magistrate. I have high regard for the work of magistrates in similar areas, such as the granting of search warrants. They undertake sensitive work and do so very well.
The downside of the orders is the number of people who get to know about the identity of the person whose identity the orders are intended to protect. How many more people will know the identity compared with the current position, when the police assure the potential witness that they will not let their name out? A formal process seems to carry with it the risk that more people will know identities rather than only the police officers conducting the investigation. The amendment tabled by the hon. and learned Member for Harborough raises the problem whether more people would get to know if the order were made by the Crown court than by the magistrates court. I fear that, given the formality surrounding Crown courts, that more extraneous people would be in the know, if the proposal were adopted.
The amendments all concentrate on restricting the making of an investigation anonymity order through a Crown court judge rather than a justice of the peace or a district judge at a magistrates court in Northern Ireland. As has been anticipated by the hon. and learned Gentleman and the hon. Member for Cambridge, the provision is designed as a tool for the police when investigating gang-related, gun-and-knife homicides, so the point at which an order would be made would be earlier than in respect of witness anonymity orders, which are designed to deal with trial situations. The reason given by the hon. and learned Gentlemen for tabling the amendmentsthe related statsis not as compelling as we might think, simply because of the earlier stage. Indeed, he anticipated that that would be one my arguments.
We believe that the amendments are unnecessary because, in many ways, JPs are generally more experienced in dealing with matters relating to police investigations; and the hon. Member for Cambridge has said that arrest and search warrants are often issued by JPs, as well as warrants for further detention in police custody. Indeed, early orders in respect of investigations are already part of the magistrates experience.
We believe that it is undesirable to limit those powers to Crown court judges. The idea is to provide a speedy local service to assist the police in providing reassurance to witnesses who might otherwise not come forward with evidence at the very beginning of an investigation, which is often the most crucial time for ensuring that homicide cases can be solved. We believe that no issues of liberty arise at that early stage. It is about offering the reassurance that identities will be kept secret; there is no prospect of criminal proceedings being instituted as a result. We therefore believe that it would be wrong to exclude JPs and magistrates, because we have every confidence that they are perfectly capable, and perhaps more experienced, when dealing with such issues.
If the provision goes through, will the Minister at least undertake to monitor its operation effectively, to see whether the advantages in speed and localism that she has identified outweigh any alleged disadvantage from consistency of practice or some other judicial failing?
Yes. We would do that in any event, and the CPS and the police will be collecting statistics. However, we will keep the workings of the order under review, were the Committee and the House to put it on the statute book as we wish.
I do not believe that the potential drawbacks mentioned by the Committee will become real. I have every confidence that the magistracy and JPs are perfectly capable, and that they have more experience of dealing with such matters than the Crown court. We therefore believe that the advantages will outweigh the disadvantages. However, the proof will be in what happens, so we will keep an eye on things. None the less, I do not believe that the concerns raised by the hon. and learned Gentleman are such that we should consider accepting his amendment. I hope that he agrees, and that he will find it possible to withdraw it.
This has been a short debate, and deliberately so. I was almost amused a moment ago, thinking that the Minister was about to say that the proof of the pudding is in the eating.
The Minister saw the horrors of plum duff appearing before her, but she resisted the temptation. Nevertheless, she was right to think of plum duff, because it is an apt analogy for the Bill.
I wish to calm the fears of my hon. Friend the Member for Daventry and others. The Conservative party is a doughty supporter, defender and promoter of the ancient office and functions of the lay magistracy. When the Minister said that the advantage of keeping the applications before the magistrate is that it can provide a speedy local service, I was reminded of the number of magistrates courts that have been closed or threatened with closure under this Government. As a result, it may not be all that speedy, and it may not be all that local. However, I have every confidence that such magistrates as remain will provide an excellent service.
As the Minister correctly pointed outif she did not, the hon. Member for Cambridge did, based on his wifes experience on the benchlay magistrates and district judges already deal with highly sensitive applications, including search warrants. Other applications, such as those under terrorism legislation or those relating to searching bank accounts and the production of bank records, are made to the Crown court. However, that does not matter; I am not sufficiently anxious about clause 61 to keep these issues away from the lay bench, and I am content to let the matter rest.
Finally, I want to deal, in so far as it needs to be dealt with, with a point made by the hon. Member for Cambridge about the number of people in the know. As he will perhaps appreciate, applications under the public interest immunity system are made in private to the Crown court judge, and the number of people in the know is determined on a need-to-know basis. Were applications under clause 61 reserved to the Crown court, a procedure operating on a similar need-to-know basis would be set up, although that will not happen as a result of my arguments. None the less, I beg to ask leave to withdraw the amendment.
Before we come to the next group of amendments, I remind the Committee that my job is to listen to every word that is spoken. Under certain circumstances, I might choose not to hear them, but I have to listen to them. If I am to hear them clearly, however, it is better for them to be addressed in my direction, because my hearing is slightly impaired.
With this it will be convenient to discuss the following: amendment 463, in clause 61, page 35, line 23, after information, insert is a police officer or.
Government amendments 269 to 274.
Amendment 440, in clause 61, page 36, line 8, leave out paragraph (a).
Amendment 441, in clause 61, page 36, line 12, leave out paragraph (c).
Amendment 442, in clause 61, page 36, line 15, leave out paragraph (d).
Government amendment 275.
Amendment 79, in clause 61, page 36, line 24, at end insert
and on summary conviction to a fine not exceeding level 5 on the standard scale or to a term of imprisonment not exceeding 6 months or to both..
Government amendment 276.
Clause stand part.
Government amendments 277 and 344.
Clause 61 provides that an investigation anonymity order is not contravened in certain specified circumstances, including where the disclosure of information is to a person employed in public administration. Following further consultation with the Association of Chief Police Officers and the CPS on how the order will operate in practice, we have concluded that that exemption is no longer required. Government amendments 271, 274 and 276 therefore remove it.
ACPO intends that knowledge of a witness who is subject to an investigation anonymity order should, as one would hope, be kept within a very tight group, whose members need to know that information for the purpose of the investigation. We have been advised that the latest procedures in homicide investigations mean that there should be no contact with local authorities or others in public administration, certainly not in a form that would give away the witnesss details. In view of that, we have decided that the exemption in the original draft Bill is not necessary.
Government amendments 275 and 344 would remedy an administrative oversight, which the hon. and learned Member for Harborough has clearly spotted, given that his amendment 79 is on the same issue, and I am happy to answer any points that arise out of his exposition on that amendment.
Clause 61(11) provides for penalties for a person guilty of breaching an investigation anonymity order. Although it covers a person convicted on indictment, we have neglected to provide a penalty for a person on summary conviction. The offence is to be triable either way, so that is a bit of an oversight.
Government amendments 268 to 270, 272, 273 and 277 are minor drafting amendments.
I am grateful to the Minister for acknowledging the thrust of amendment 79, which seeks to add to subsection (11) the appropriate way of dealing with a summary conviction, in addition to the conviction on indictment. It is appropriate that it should be restored to the Bill, given the discussions that we have just had on the Governments and our own support for the magistrates system, so I do not need to say any more about that.
I am not sure to what extent the Minister anticipated or dealt with my amendments 440 to 442, but essentially what we want to find out from the Government why a person employed in public administration should be immune from the discipline of the scheme. I appreciate that paragraphs (8)(a) to (8)(d) are all wrapped up into one:
A person who discloses information to which an investigation anonymity order relates does not contravene the order if
(a) the person is employed in public administration,
(b) the information had been disclosed to the person for a purpose connected with the specified qualifying criminal investigation...
(c) the disclosure was made to another person who at the time of the disclosure was employed in public administration...and
(d) such disclosure was made for the purpose referred to in paragraph (b).
I can understand that. There may be officials within the police, the Crown Prosecution Service and other arms of the
It may have assisted the hon. and learned Gentleman if I had been clearer in moving the Government amendments, which remove those sections, which are not necessary. ACPO has explained in more detail the procedures that it intends to adopt, and so those exemptions are no longer necessary.
That serves me right for half listening to the Minister and half preparing the next four clauses. Thank you.
I want to speak to amendment 463, which is in my and my hon. Friends name. It is a deliberate probing amendment that asks a simple question: to whom will the offences in this part of the Bill apply? If, as the probing amendment proposes, police officers were immune from prosecution, who else would be liable to be found guilty of the offences? My reason for asking goes to the heart of my doubts about this part of the Bill. They are not doubts about the underlying severe problems with witness intimidation by gangs, especially in localised areas. My problem is whether the provisions will make any difference or any practical change as a result of passing these clauses, or whether it is a bit of symbolic legislation or yet another idea from ACPO that has not been properly thought through.
As I see it, it is envisaged that the police will say to a potential witness, We will protect your identity from being released to the target of the investigation. An order will then be made, and if the order is breached, that is a criminal offence. The question is, how is that different from what happens now? In reality, the police give assurances to potential witnesses and say, Your name will not come out as part of the investigation. Later on, we might have to apply for a witness anonymity order to keep your name out of the court, but while it is going on we will not let your name out. In fact, as a matter of law, even if, obviously, it is not often used, there is already civil liability, if the police give an assurance to a potential witness or a victim and then negligently allow their name to come out. Swinney v. Chief Constable of Northumbria Police Force 1996 shows clearly, at least in theory, that there is liability for negligence in such circumstances.
At the moment, witnesses do not come forward because they feel that they cannot be given any assurances about anonymity at such an early stage of an investigation. They realise that there might be anonymity at trial, but that is a long way off in the circumstances that we are talking about. Therefore, in practice, at the moment, witnesses do not come forward, and evidence that may help solve the crime is not given.
I still doubt whether the availability of the orders will be widely known to the general public and whether the orders will encourage anyone to come forward, given the circumstances in which assurances will be advanced by the police.
Does the hon. Gentleman agree that in too many cases in the past Governments have worthily aspired to some public good and legislated for it, but the legislation has not ipso facto removed the problem?
I completely agree with the hon. Gentleman. Too often, the Government imagine that passing a law will automatically solve a problem in the real world, but there is a difference between real world events and laws. Members of the public do not spend any time in their ordinary daily lives reading Acts of Parliament.
People may not notice the change in the law, but they will notice the change in practice. I had a conversation with a constituent on Monday morning who was under some stress because of attacks by local yobs. Her experience is that people do not allow themselves to become a witness in court, if they are unprotected. If she felt that the protections provided were sufficient to enable her to go to court, I am sure that she would do so.
I agree with the right hon. Gentleman, and I think he supports what I have said.
The right hon. Gentleman thinks that he is not supporting what I have said, but in reality he is. What matters is the protection that witnesses believe that they will receive in reality, which is the key to the situation. Do people feel safe going to the police? Legislation does not make them feel safe, but the experience of other people on their estate in similar circumstances will.
It is not the change in the law that is important, but the practice that follows. That is a simple point, and I am at a loss why he cannot understand me.
I cannot understand the right hon. Gentleman because I do not think that any change of practice will automatically follow from the Bill, or that there will be any change of practice that could not be achieved without the Bill.
May I put the point made by the right hon. Member for Knowsley, North and Sefton, East a different way? At the moment, the police are not in a position to tell a prospective witness at investigation stage that protection of their anonymity will be provided at that point. The Bill will mean that the police will be in a position to say at the investigation stage, Anonymity is available to you. That is the change in practice that I think the right hon. Gentleman is describing.
Absolutely, but what difference would that make? That is the point of amendment 463. Who are the potential offenders under the clause? The only plausible offenders are police officers. If members of the public do not trust the police to keep their names out of the public eye and away from the alleged offenders who might intimidate them, why would they do so under the provisions? That is why I do not think that it makes a lot of difference.
There have been cases where the police have a close relationship with journalists and the names go to the journalists, who then publish them, but that is rare. The Minister is making a facial expression to show that she agrees that it is not rare enough and that there is too much of that sort of thing going on. Nevertheless, even in that case, the offence will have been committed by police officers, because the information would have been given to the journalists by police officers. I suppose that in theory, it might, in some cases, be a police civilian employee, but it is usually a police officer who commits the offence.
The underlying question is why do the Government believe that members of the public, who do not trust the police now, will trust them any more if the only protection that they are being offered is a criminal offence that the police, and virtually no-one else, commit? The police will then have to take proceedings against themselves. If one has little confidence in the police, then I cannot see what practical difference the provision will, in reality, makeeven though I hope that it does.
I will try to deal with the point made by the hon. Member for Cambridge in respect of amendment 463. I understand the point that he is making. Apart from police officers, anyone who is involved in preparing the prosecution might be affected, such as prosecutors and the Serious Organised Crime Agency. However, it is essentially correct that the provision will affect those preparing the case at an early stage during the investigation. The hon. Gentleman is right about that.
I assure the hon. Gentleman that this is not some half-baked idea that has come from ACPO, as he seems to be suggestingACPO has said that it thinks the measure might help. However, we are restricting the provision to the most serious end of gun-and-gang homicide, with knives and guns. Those are the sorts of cases where the concern that witnesses have in particular areas affected by this type of crime prevents them from coming forward to give evidence at an early stage, even though evidence is available. The evidence shows that there are hot-spot areas around the country. My right hon. Friend the Member for Knowsley, North and Sefton, East knows as well as me, because we represent some of those areas, precisely what fear exists and the situations that can arise from gang-related activity in particular places.
One of the reasons why we are restricting the provisionwe had this debate at the end of the previous sittingis to see whether it works. I am not saying that it will definitely work, but we need to do more to ensure the rule of law in hot spots for gangs and crime. We believe that the provision may help and we hope that it will, as does the hon. Gentleman. I welcome the fact that he hopes that it will work, but I am not going to proclaim that it definitely will. If it works, that will be a good thing, but if it does not work, it will not be extended and may even fall into disuse. However, I do not believe, as someone who represents an area which is affected in this wayI am sure that I speak for my hon. Friendsthat we should throw up our hands in despair and do nothing, when we see a situation that we think might be helped positively by the measure.
On that basis, while I understand the somewhat academic points that the hon. Gentleman makesI am not insulting himI hope that he understands where we are coming from.
These points are not academic. They are based on my personal experience of being brought up on an estate rather like the one the Minister is talking about. My points have nothing to do with intellectual game playing, because they concern what is really going to happen in real life. My doubts concern the political game by which the Government want to appear to do something about such a serious problem, but are not doing anything.
It is not a political game, but a practical effort to deal with a particular problem in specific hot-spot areas for gun-and-gang homicide. We hope and believe that the provision will make a difference. The hon. Gentleman has his doubts, whether academic or otherwise. I hope that we are right and that he is not, but to ensure that we do not infect the entire criminal justice system with anonymity at investigation stages, we are restricting our effort to make a positive difference to the highest level of offences in hot-spot, gun-and-gang-crime-ridden areas.
Amendments made: 269, in clause 61, page 35, line 29, leave out from that to the in line 30 and insert
the information disclosed is information that might enable the specified person to be identified as a person of the sort described in subsection (1)(a) in relation to.
270, in clause 61, page 35, line 37, leave out from first is to willing and insert
a person who is or was able or.
271, in clause 61, page 35, line 41, leave out paragraphs (a) and (b) and insert
(a) the disclosure is made to a person who is involved in the specified qualifying criminal investigation or in the prosecution of an offence to which the investigation relates, and.
272, in clause 61, page 36, line 4, leave out was and insert is.
273, in clause 61, page 36, line 5, after prosecution, insert
of an offence to which the investigation relates.
274, in clause 61, page 36, line 6, leave out subsection (8).
275, in clause 61, page 36, line 22, leave out from liable to end of line 24 and insert
(a) on summary conviction, to imprisonment for a term not exceeding the relevant period or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine, or both.
(11A) The relevant period means
(a) in relation to England and Wales, 12 months;
(b) in relation to Northern Ireland, 6 months..
276, in clause 61, page 36, line 25, leave out subsection (12).(Maria Eagle.)