Committee (7th Day)
Clause 62 : Qualifying offences
183ZA: Clause 62, page 37, line 25, at end insert—
“( ) grievous bodily harm with intent contrary to section 18 of the Offences Against the Person Act 1861 (c. 100) (shooting or attempting to shoot, or wounding, with intent to do grievous bodily harm, or resist apprehension)”
In moving the amendment, I shall also speak to Amendments 183ZB to 183ZD as well as Amendments 183AB and 183AC. It is with some trepidation that I rise to speak to these amendments, put down in my name and that of my late noble friend Lord Kingsland, who was to have spoken to them. He was also, as we have just been reminded, to have spoken on the Perpetuities and Accumulations Bill and tomorrow he was going to speak on the Parliamentary Standards Bill. Moreover, he was due to speak in a number of other debates on this Bill. I shall provide a very pale shadow of him in attempting to bring expertise to the Bill. Nevertheless, I shall try to do so.
Clause 62 introduces the concept of anonymity in investigations of criminal offences in which it is thought appropriate that those helping with the investigation should be provided with some form of anonymity for their own safety. Applications under Clause 62 can be made to the court to secure an investigation anonymity order. The first four amendments in this group, Amendments 183ZA to 183ZD, probe the limits of Clause 62, which establishes the qualifying offences that would attract anonymity if needed.
At the moment, the qualifying offences are limited to murder and manslaughter. If it is right to have investigation anonymity orders, it is right to extend their ambit beyond offences of murder and manslaughter. Gangs do not just kill people; they can also hurt them and inflict non-fatal injuries. Indeed, in the qualifying offences, even attempted murder is excluded. Is it right that anonymity orders can be granted only in cases where the worst possible outcome has been realised—that is, the death of the victim? What if the intention was to kill, but swift medical action or simple good luck saved the victim’s life, despite the evil efforts of the alleged perpetrator?
It seems clear that the Government are trying to restrict anonymity orders. In principle, that is the right approach, but they are restricting them to excessively limited circumstances. We could have suggested any number of additional offences, but, for the purposes of this debate, we propose to add GBH contrary to Section 18 of the Offences Against the Person Act. Amendment 183ZA is consequential to that. I stress that the amendments are simply probing in order to promote discussion, so that we can hear what the Government intend to do.
In Clause 62(4) it is open to the Secretary of State to amend the list of offences. Are we to presume that murder and manslaughter are to be the guinea pigs in the system, to which other offences will later be added as the system beds in? If that power is intended to be used, we prefer to debate the extension of anonymity in investigations in Parliament and not just leave it to the Secretary of State. I stress again that these are probing amendments, but we may need to return to this matter in more detail on Report. I expect the noble Lord, Lord Thomas, will also want to expand on the whole question of order-making by the Secretary of State in subsection (4) when he deals with his Amendment 183A in the next group, to which we have added our names.
The same comments apply to Amendment 183ZD, which would extend the very limited range of weapons involved. Subsection (3) deals with a person being shot with a firearm and/or being injured with a knife. That ignores damage that could be done with, for example, a baseball bat, a crowbar or any number of other weapons or objects that can be used as weapons. Again, one feels that artificial distinctions are being drawn, quite possibly because the Government are being deliberately cautious. We feel that we should be wary of caution in primary legislation that is followed by bold order-making powers as a method of legislating.
Amendments 183AB and 183AC would leave out the requirements that the alleged perpetrator is between the age of 11 and 30 and the requirements that the criminal group, of which he is likely to be a member, is mostly made up of people within that age range. Investigation anonymity orders would therefore apply to qualifying offences committed by members of criminal groups of any age. The Bill as it stands is targeting groups of children and young people with measures that would not be available in relation to criminal groups, including organised criminal networks dominated by older offenders.
From the age-related conditions in Clause 66, it is obvious that the Government have in mind the problem of teenage gangs who have been involved in a number of high-profile crimes. It seems to us illogical that an upper age limit should be placed on the conditions for applications for an investigation anonymity order. I choose the most obvious and most absurd hypothetical situation: if two brothers or friends commit similar or identical crimes, but the first is 29 and the other is 31, Clause 66 would allow an application to be made in the former case but not in the latter, even though there is no or very little difference in the crimes; there is no difference in the fear engendered in the witnesses or anyone who might be able to assist in the investigation. To create such a distinction, we would argue, is artificial. We appreciate the mischief of youth gang crimes that these clauses are trying to address, but the age limit will not further that effort and may produce unintended and unnecessary contortions in practice. I beg to move.
Since we are just entering into this area, perhaps it might be useful to draw from the Government some of the principles that they think are involved. It is my experience and certainly that of my noble friend Lord Carlile—and no doubt that of the Minister—that in many cases already witnesses are referred to by letters A, B, C or D and investigations have been carried out where the anonymity of witnesses is preserved. Indeed, in all the cases that we have dealt with where anonymity has been sought and where witnesses have given evidence behind screens—just thinking on the spot, I can go back to 1993 for that—the witnesses are not identified for obvious reasons.
What is the purpose behind this extension of the witness anonymity legislation to the investigation process? It may be a good thing that what has happened as a matter of practice in the past is now to be subject to statutory regulation, in the way that these investigation orders are to be put forward. However, if that is the case, it seems extraordinary that the Government should limit it, as though it were dealing specifically with gangs or only with murder or one other offence, with the Secretary of State’s ability to extend the boundaries of cases in which this type of order can be made, as we shall see in the next group of amendments.
Are the Government simply seeking to put into a statutory framework that which has already existed for years? If so, why is it restricted to just two offences, with the Secretary of State’s power to extend it, and to gangs? It seems that the necessity for this applies to all sorts of people who are not within the age range of 11 to 30. I should like some explanation from the Minister of the thinking behind these provisions as we start this part of the Bill.
I am happy to give some explanation because the shape of the clause is necessary. We are creating a new crime in Clause 62. The noble Lord, Lord Henley, characterised us as creating this crime with caution; that is fair. In the next group, we will seek to persuade the Committee that an order-making power for its extension is appropriate.
Clause 62 creates, with other clauses in this chapter, a new tool in the battle against witness intimidation. Collectively, the clause underlines our absolute determination to get to grips with gang and gun crime. The new tool is the investigation anonymity order. Its purpose is to encourage witnesses in fear of reprisals to come forward at an early stage of an investigation, safe in the knowledge that their identity will be kept hidden. Of course, there are already a number of constraints on an authority’s ability to disclose sensitive information about witnesses, such as data protection legislation and common-law confidentiality duties. However, these are not strong enough to address the severe consequences for certain witnesses if their assistance to the police is exposed.
What sets the new order apart from these existing arrangements is a new criminal offence of breaching the order. The offence is intended to strengthen the climate of secrecy surrounding investigations where witness intimidation may be an issue. It will provide a persuasive reminder that at no time must information that might reveal the witness’s identity be disclosed outside the small circle of people who need to know about it. We hope that this prohibition, backed up by criminal sanctions, will give witnesses more confidence to come forward.
Amendments 183ZA to 183ZD seek to extend the offences in respect of which the new investigation anonymity order is available to cover grievous bodily harm with intent and cases involving death or injury caused by any kind of weapon. The impact of these changes would be to allow investigation anonymity orders to be used in a much wider range of cases, removing the Bill’s focus on gun and knife homicides.
I need hardly remind the Committee of the particular problems of witness intimidation in gang cases and especially those involving homicide. People are reluctant to come forward due to the understandable fear of violent retribution when they know they are providing information about people who have shown that they are willing to kill. While gang-related homicides remain relatively rare and confined to particular geographic areas, for those living in these areas, and for the relatives of victims, the effects are devastating. All violent crime is serious, but crimes that cause death are particularly so. In addition, the use of a lethal weapon like a gun or knife is likely to have a particularly serious impact on any witness. The new order is therefore targeted at the area where the need for action is most apparent—homicide cases involving guns and knives. We recognise that serious criminal activity by gangs is not restricted to homicide offences or to homicides caused by particular weapons; but these orders are a new device designed to target a specific problem, and the provisions of the Bill reflect this.
We believe that we have developed, in close consultation with ACPO, a useful tool to assist the police in their investigations; but it has yet to be tested in practice. That is why we have included an order-making power to enable the scheme to be applied in future, if appropriate, to cases involving other types of offence, committed in other ways. However, it will be prudent to consider this only after we have gained sufficient operational experience of the orders as they stand, so that we are in the best possible position to judge whether it is desirable or necessary to extend the list at a later date.
Amendments 183AB and 183AC would remove the age-related conditions for making an order. They are, broadly, that the suspected perpetrator was aged at least 11 but under 30 years old when the offence was committed, and that he or she belonged to a group the majority of whose members appeared to be aged at least 11 but under 30. These conditions are specifically included as part of our strategy to target gang-related gun and knife homicides. The gangs that we are targeting have certain known characteristics. They are relatively durable, predominantly street-based groups of young people who tend to identify themselves as a gang, with crime and violence integral to the group’s identity. While we do not deny that there are homicide cases where the perpetrator is over 29, our new order focuses on the probable age range of our target group. I trust that in the light of this explanation, the noble Lord will feel able to withdraw his amendment.
I am very grateful for that explanation. The difference from current practice is that to disclose the identity of a witness who has been granted anonymity will be a criminal offence. That seems very limited. There is nothing particularly wrong with adding a criminal sanction where there is a necessity for a person to remain anonymous. However, I can see all sorts of arguments arising about what a gang is and what criminal activities it has to get involved with to be a gang. This does not address a wide spectrum of cases. Certainly, gang violence is a scourge on society; but much more serious crime goes on that involves guns and knives. One thinks particularly of the field of drugs, where criminal gangs—not youth gangs—are much more organised to intimidate witnesses.
I have expressed a concern—in relation to witness anonymity orders as well as investigation orders—that the police should not go round offering anonymity to everybody. That got out of hand with witnesses, and there is a danger that it will get out of hand with investigations, with police going around telling people, “Do not worry, everything that you say will be in secret and your name will never be known”. When we are talking about murder and manslaughter, perhaps that is all right; but when we come to the next set of amendments, giving the Secretary of State the power to extend the system considerably, I will express further concern.
The noble Lord well makes the case for the narrowness of the order. We see this as very particular, early activity focused on an area of public concern; namely, gang crime. We hope that the measure will show its value in those circumstances but also its limitations. We shall extend it by order only when we have experience of how it is working.
If I have understood it correctly, the difference between what happens at the moment and what the Bill will provide for is that a criminal offence will be created under Clause 64(10) where someone discloses information in contravention of an anonymity order. That will apply to persons aged between 11 and 30 who have killed someone with either a firearm or a knife. As far as I can make out, the only argument that the Government are putting forward is that the measure is targeted on where it is most needed. Again, it seems to us a fairly arbitrary list. As regards being shot with a firearm or being injured with a knife, I am sure that gangs go out with all sorts of other weapons. I mentioned the proverbial baseball bat or crowbar. There is no reason why they could not be used. Put simply, it seems a very arbitrary distinction. I appreciate that the Secretary of State will give himself power to amend the measure—we shall discuss that when we reach the amendment in the name of the noble Lord, Lord Thomas—but, for the moment, I find it all rather peculiar. As I said, this is a probing amendment. We shall certainly want to come back to this matter on Report. However, at this stage probably the most convenient thing to do is to beg leave to withdraw the amendment.
Amendment 183ZA withdrawn.
Amendments 183ZB to 183ZD not moved.