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Coroners and Justice Bill

Volume 712: debated on Monday 13 July 2009

Committee (7th Day) (Continued)

Amendment 183A

Moved by

183A: Clause 62, page 37, line 30, leave out subsection (4)

I shall speak also to Amendment 185ZG, which relates to the removal of Clause 86(7). When he was responding to the previous amendment, the Minister told us that the provision for anonymity in investigations is narrowly drawn. The provision set out in the Bill may be narrowly drawn, but under subsection (4), it can be widened to any extent, merely by an order passing through this House and the other place to add or omit an offence in the list in subsection (2) or to add, omit or modify a condition to be satisfied in relation to an offence. Under paragraph (a) of subsection (4), it is possible, for example, to omit paragraph (b) of subsection (2), manslaughter, but I do not think that that is the purpose. I think it is to add whatever offence occurs to the Secretary of State at the time. It could be driving without due care or something of that sort.

So far as the conditions are concerned, although we are told that this clause is specifically directed at gangs of young men between the ages of 11 and 30 using specific weapons—firearms or a knife—under paragraph (a) of subsection (4), all those conditions could be modified as the Secretary of State thinks fit. It can be anything. Getting in through a crack—that is to say, by using the most serious offences of murder and manslaughter and limiting it to a particular group—and then expanding it wholesale without anything other than an order being passed through the House is a bad way to legislate. We have often commented on how ineffective orders are as a method of scrutiny and change.

Clause 86(7) is concerned with special measures in offences involving weapons. Schedule 12 to the Bill adds a schedule to the Youth Justice and Criminal Evidence Act 1999 and contains a list of offences with a power for the Secretary of State to amend that schedule so as to add whatever he thinks fit. I am anxious to hear from the Minister how he justifies so wide a power being granted in that way. If the Government think that these orders should be limited, they should say in the Bill how they are to be limited. To say, “Well, we shall just see how they go and then extend them as we think fit”, is not a proper way in which to deal with a serious matter such as this. I beg to move.

I added my name to the first of the noble Lord’s amendments, to leave out subsection (4), giving power to the Secretary of State to add or omit an offence. As the noble Lord implied, we suspect that Secretary of State will not be omitting any offences—he will merely be adding, and simply adding, omitting or modifying one of the other conditions. That presumably means bringing in baseball bats, or whatever, should that be seen as necessary, or extending the age limit from 30.

I agree entirely with the noble Lord, Lord Thomas, that this seems a peculiar way in which to deal with criminal law, in that we are giving a power to the Secretary of State to amend it as he thinks appropriate by, I imagine, merely the negative resolution procedure. We suspect that the Government themselves feel that they may have gone a step too far in that, before any amendment was tabled by opposition parties suggesting that if there were to be such an order it might be more appropriate to have an affirmative resolution procedure, they came forward with that amendment, in Amendment 185A. That seems the absolute bare minimum, if we are to change criminal law; Parliament should have a good opportunity to discuss it, under the affirmative resolution. We all know that it is so easy under the negative resolution procedure for things to slip through without us noticing, try as we do to keep an eye on them.

I have one other question to put to the Minister. Will the Minister tell us, with regard to the new offences created in these clauses, when the offence for someone to disclose information in contravention of an investigation anonymity order in Clause 64(10) will come into effect? If it is not going to come into effect when the Bill gets Royal Assent, what are the Government’s plans for bringing it into effect? As the Minister knows, I have a sneaking suspicion that quite a large amount of government legislation, particularly legislation that has come in the past from the Home Office and now comes from the Ministry of Justice, goes through both Houses of Parliament and is enacted and then takes some considerable time to come into effect. Sometimes it is repealed before it even comes into effect. I would be grateful if the Minister could deal with that point as well as the basic point about whether it is appropriate that the Secretary of State should make amendments in this way.

The proposal concerns me. The Minister was speaking against Amendment 183ZA, which would have extended the use of this clause beyond murder and manslaughter. However, under subsection (4), the Secretary of State could enlarge it to anything at all, although the Government seem at the moment opposed to enlarging it in any way. I find this sort of clause worrying and very unsatisfactory. I am not content by the idea of it being an affirmative statutory instrument. As a member of the Merits Committee, I have noticed that quite a few affirmative statutory instruments slip quietly through the Moses Room in Grand Committee without anybody really looking at them. I do not believe that I have ever seen a subsection quite like this, and it seems to me to be very unsatisfactory.

The only reason I mentioned Amendment 185A is that I thought it was a bare minimum to at least make it affirmative. I agree with the noble and learned Baroness that both affirmative and negative instruments can slip through. I just mentioned it as I thought it was some indication that the Government possibly had felt a smidgen of guilt; that they had been caught out; and that is why they brought the amendment forward to try to make it look marginally more respectable.

The noble Lord has given his view that clearly the idea of affirmative statutory instrument means that the Government are having some sort of second thoughts. I suggest that they might have third thoughts and wonder whether this is an appropriate subsection.

All through my life, I have found that when I think that something is straightforward and reasonable, the rest of the world does not. The essence of these clauses is taken up in many ways by the noble and learned Baroness, Lady Butler-Sloss. We were not against an extension of this provision, but we think that we should do that after we have seen how it works in a very narrow way to address a problem that we have now. We believe that, if it proves successful and we understand the right caveats and protections to put around it by order or particularly through guidance, it may be appropriate to extend it through an affirmative order.

We are creating a new offence. It will come into action—this covers the point brought up by the noble Lord, Lord Henley—by means of a commencement order. We aim to bring it in next spring after development of guidance for the police and the CPS. It is not our intention to use this provision, as the noble Lord, Lord Thomas, suggested, on every crime. To some extent, we have not got across—because in some ways legislation does not help us—what this new crime is about. For that reason, I should like to write to noble Lords setting out in a little more detail how it would work in effect and what the processes are. I hope that from that we will be able to illustrate that we will need not only a proper set of processes to create one of these orders but also some development. It is right to keep it narrow and it is right then to consider it for greater expansion.

Amendment 183A would remove the order-making power from Clause 62, preventing its amendment in the future so as to include further offences or other methods by which the qualifying offence for an investigation anonymity order must be committed. We envisage that there may be scope for widening the use of this new investigation anonymity order in the future. The purpose of the order is to encourage people to come forward to help the police who otherwise would not do so due to fear, which does not in principle preclude any offence from possible inclusion. However, let us first tackle the pressing problem of witnesses failing to come forward in cases of gang homicide and let us see how well the orders work in practice within their current scope.

Any future extension of the scope of the scheme would be considered on a case-by-case basis and any statutory instrument made under this power would be subject to affirmative resolution procedure, therefore permitting detailed parliamentary scrutiny. We do not consider it necessary or desirable for such changes to be made by primary legislation, especially if we wish to retain the flexibility to add new offences or conditions at short notice.

I remind the Committee that this order-making power was considered by the Delegated Powers and Regulatory Reform Committee. In its report on the Bill, the committee did not object to this delegated power. While it commented that the power was “significant”, it concluded that,

“this seems sufficiently recognised by the affirmative procedure”.

I spent a year or two on the Merits of Statutory Instruments Committee and have since taken some affirmative orders through in the Moses Room with some of the noble Lords here present. The process does not allow things to slip through. Indeed, we will see tonight in the Dinner Break business a number of controversial affirmative orders which will be debated at some length. I have no doubt that the Government will come under appropriate scrutiny and pressure. It is worth reminding—

I remind the Minister that it is a question not just of whether things slip through unnoticed. When primary legislation such as this comes before the House we have the power to amend it, whereas when a mere order goes through we do not. Although the order gets some scrutiny and debate, both by the Merits Committee and by your Lordships, there is no power to make amendments to it.

I will comment on the process of making an order. While the noble Lord is quite right that there is no opportunity to amend an order within the House of Lords, the process of consultation that leads to an order is one in which the Government take account of inputs to alter and amend. Any future extension of the scope of the scheme would be considered on a case-by-case basis. Any statutory instrument made under this power would be subject to the affirmative resolution procedure, thereby permitting detailed parliamentary scrutiny. We do not consider it necessary or desirable for such changes to be made by primary legislation, especially if we wish to retain the flexibility to add new offences or conditions at short notice. I remind the Committee that this order-making power was considered by the Delegated Powers and Regulatory Reform Committee, which approved it.

The last time the House voted against a Motion approving an affirmative instrument was 28 March 2007, on the Gambling (Geographical Distribution of Casino Premises Licences) Order 2007, when the Government were defeated by 123 votes to 120. As a result, noble Lords will recall, that provision—the super-casinos provision—was withdrawn by the Government. That saw the end of that idea. Before that, records indicate that Governments have been defeated on three occasions on statutory instruments, one negative and two affirmative.

Government Amendment 185A relates to Clause 86, which extends automatic eligibility for special measures to witnesses to certain gun and knife offences listed in Schedule 12. The amendment responds to a recommendation by the Delegated Powers and Regulatory Reform Committee. Eligibility for special measures is determined by reference to a list of relevant offences, which may be amended by order subject to the negative resolution procedure. The committee recommended that this power should be subject to the affirmative procedure. We are happy to accept the committee’s recommendation and seek to amend Clause 86 accordingly.

I hope that this also answers the concerns of the noble Lord, Lord Thomas, whose Amendment 185ZG would remove the power of the Secretary of State to add to or otherwise amend the offences in Schedule 12. This power is included as a sensible precaution to provide flexibility for the future. It will enable us, for example, to add, where appropriate, any new offences involving the use of knives and guns that may be created in the future. It also follows the form established in the parent legislation, the Youth Justice and Criminal Evidence Act 1999, where, under Section 18(5), the Secretary of State has the power to add to or amend the special measures provisions by affirmative order. In the light of this explanation and the conclusions of the Delegated Powers and Regulatory Reform Committee, I hope that the noble Lord will feel able not to press his amendment.

I will make two points. First, I vividly recall the super-casino debate on the affirmative resolution. It was a quite exceptional situation. My recollection is that the House did not like super-casinos and voted, quite unusually, against the resolution. Secondly, on the subject of Clause 62(4), I am not opposed to having the opportunity to reconsider, although perhaps it would be preferable to reconsider limiting the provision to murder and manslaughter and add to it now, as has been suggested in other amendments. What concerns me is subsection (4)(a). Subsection (4)(b) is perfectly sensible, but subsection (4)(a) could add any offence at all—although I appreciate that, with an affirmative resolution, it may well be that one would not. However, to move in a Bill from murder and manslaughter to any offence is a considerable leap.

I thank the noble Baroness for those reflections. When we write to noble Lords and set out how the new, relatively narrow law will apply, and the procedures, conditions and guidance, it will be clear that we will look to this capability only for serious offences and will extend it only very carefully. I know that others see things differently but, from the Government’s point of view, getting affirmative orders through that are controversial is tough, and there are opportunities for the House—

The noble Lord cannot get away with that. He knows that it is more or less a nuclear option to vote down an order in this House. The convention is that we very rarely do. As the noble and learned Baroness said, the casinos order was exceptional. It is exceedingly rare for us to vote down an order. I can remember scarcely more than two or three occasions in the 30 years that I have been in the House.

The noble Lord is quite right—I was able to illustrate only one case from the recent past, and three from the records. However, that is in the minds of the Government when they create affirmative orders, especially controversial ones. That is why we go through a process of considerable consultation before they are pressed. However, I recognise that noble Lords may well come back to this on Report. I hope that, for the moment, the amendments will not be pressed and that, in the light of the further information that I intend to send, the concept of a narrow provision that will be extended very carefully by order will eventually appeal to the House.

We will come back to this on Report. The Minister should appreciate that the identity of an informer has been kept secret for centuries, and still is. This provision has been introduced to deal with a very narrow area: murder or manslaughter caused with a firearm or knife by someone between the ages of 11 and 30 who appears to be a member of a gang. As I said, I do not know why that should be singled out, but that is what the Government want to do. In so doing, they have simply put a foot in the door. Throwing the door wide open is exactly what Clause 62(4) is about. I am very grateful to the noble and learned Baroness, Lady Butler-Sloss, for her support on that. I think that both subsections (4)(a) and (4)(b) are offensive. The Government should consider how they might properly narrow the discretion of the Secretary of State if he wishes to extend beyond the particular terms and conditions set out in the Bill. I look forward to receiving the letter to which the noble Lord referred, to see what further thinking the Government can give along those lines. For the moment, I beg leave to withdraw the amendment.

Amendment 183A withdrawn.

Clause 62 agreed.

Clauses 63 and 64 agreed.

Amendment 183AA

Moved by

183AA: After Clause 64, insert the following new Clause—

“Review of investigation anonymity orders

The Secretary of State must, no later than two years after the commencement of this Part, review the operation of investigation anonymity orders made under section 64, and lay a report of that review before Parliament.”

In moving this amendment, I wish to speak also to Amendments 183B and 183C in the name of the noble Lord, Lord Thomas of Gresford, and Amendment 184 in the name of the noble Lord, Lord Dubs.

The new clause that I propose should be inserted after Clause 64 is a simple review clause. The reasoning for it is simple and follows on from the debates that we have had on the previous two groups of amendments. The Government are introducing an innovation in the form of investigation anonymity orders. As we discussed on the previous amendment, the Secretary of State is giving himself various powers to amend those, as he so wishes, after their introduction next spring, as I think the noble Lord put it. Much will need to be tried out and no doubt mistakes will be made and lessons will be learnt. Therefore, we propose a review so that after two years Parliament will be guaranteed the chance to look at the scheme again and assess whether it is a success and is helping to protect those involved in potentially dangerous investigations. I beg to move.

I wish to speak to Amendments 183B and 183C. I do not pursue Amendment 183B but Amendment 183C would add something to the Bill. In order that the Committee can understand what it is about, let me explain that the application for an investigation anonymity order will be made to a justice of the peace by a chief police officer or a director of one of the prosecuting services. The justice of the peace may make an order if he is satisfied that there are reasonable grounds for believing that the conditions set out in subsections (3) to (8) of Clause 66 are satisfied. Subsection (8) sets out the condition,

“that the person who would be specified in the order—

(a) is able to provide information that would assist the criminal investigation … and

(b) is more likely than not … to provide such information”.

But that is not enough. These orders should be exceptional and should not be applied for or made unless, in addition to those two conditions set out in subsection (8), a further condition is met, which is that the person concerned,

“would be unwilling or unable to provide such information if the order were not made”.

That indicates that it is an exceptional circumstance.

Clause 75(5) sets out as a condition for making a witness anonymity order that,

“the witness would not testify if the proposed order were not made”.

That condition is applied when it comes to giving evidence in court—that the witness anonymity order can be made if it is the only way of getting the person into the box. To emphasise that the investigation orders should be exceptional, a similar condition should be imposed on the making of those orders.

I understand where the Government are coming from in seeking to give anonymity to witnesses, but they should always remember that people may come forward to the police with malign intent and with the intention of making false accusations against people. To grant wholesale anonymity in those circumstances, unless the conditions are pretty clearly established, is to leave open the opportunity that a person may be arrested and held and be subjected to all the problems of a criminal investigation as a result of a malign person inventing things against him. It is important that giving anonymity to witnesses should be not a regular thing but only used in exceptional circumstances. My suggestion in Amendment 183C—that it should be given only if the court or the justices of the peace are satisfied that the witness would be unwilling or unable to provide such information if the order was not made—is essential. If not, you open the door to the neighbour or tittle-tattler who wishes to do down a particular person.

Amendment 184 stands in my name. It stems from a recent report of the Joint Committee on Human Rights, of which I am a member. I am concerned again with investigation anonymity orders. The Bill provides that investigation anonymity orders should be available in cases of murder or manslaughter where death was caused by a gun or a knife. The argument for making such an extension of the provision is to encourage witnesses to come forward in the most serious gang-related crimes, where witnesses might otherwise be reluctant to do so because they fear reprisals. That is understandable. However, there is a difficulty.

Witness anonymity orders can be applied for by the police or other investigative body as well as by the DPP. However, there is a practical problem about the effectiveness of such orders. Unless the witness is also confident that his or her anonymity will be protected at the trial, they are unlikely to come forward at the investigation stage. Yet the investigating authorities are not in a position to know at that point whether such a trial anonymity order is likely to be applied for by the DPP, let alone given by the court. The requirement that an application for such an investigation anonymity order should first obtain the consent of the DPP would address that practical problem. It would give the witness confidence that their anonymity would be protected right through all the stages, not just at the investigation stage.

When the Joint Committee on Human Rights wrote to the Minister pointing that out and asking whether there was any reason why the consent of the DPP should not be required before an application for an investigation anonymity order was made, the Government’s answer was that an investigation anonymity order is essentially an investigative tool to assist the police in their investigations of a particular kind of crime. They were talking about an early stage of the investigation before the CPS is involved. According to their response to us, the Government do not consider it appropriate to require the DPP to consent before the police apply for these orders.

I have already explained the difficulty. Surely, in the interests of witnesses coming forward, it makes sense to do this in the way that the amendment suggests rather than simply saying, “Okay, during an investigation a witness will have anonymity, but we cannot guarantee anything beyond that”. It will make them shut up and not want to come forward.

There is a further point which is close to that made by the noble Lord, Lord Thomas of Gresford. The Joint Committee is also concerned that evidence suggests that the police have in practice not regarded applications for witness anonymity orders as exceptional. Without requiring the CPS’s involvement in such orders, there must be a risk that the number of such applications by the police would be disproportionately large.

My name is attached to the amendment of the noble Lord, Lord Dubs, and he has set out the reasons for it. I add only this. Of course the Director of Public Prosecutions is able to delegate his responsibility, and in each large police station these days a CPS representative is customarily stationed to advise the police on their investigation and how it should be carried out, and to advise on the charge. Therefore, it is not as though an application has to be approved by the Director of Public Prosecutions in person. It would be perfectly possible for the representative of the CPS who is assigned to a particular police station to give the consent that the noble Lord, Lord Dubs, is seeking. That would be an appropriate safeguard, bearing in mind the narrow scope of the application, as outlined by the Government so far, without the criticisms that I have made on its potential expansion.

There is no practical difficulty in doing precisely what the noble Lord, Lord Dubs, says. It would be satisfactory that, before going before a justice of the peace, the chief officer should take the advice of the CPS representative who is advising.

I turn first to Amendment 183AA in the name of the noble Lord, Lord Henley, and say in passing how much we appreciate the suddenness with which he has had to take on this major responsibility. I thank him very much for doing so straight away. All of us around the House are extremely sad about the circumstances which led the noble Lord to have to take command, as it were, at this stage.

We have some sympathy with the thinking underlying the amendment. Investigation and anonymity orders are a novel measure designed to address the serious problem of gang-related gun and knife crime. As with everything new, it is uncertain exactly how the orders will operate in practice. Of course it is right that their operation is closely monitored and we made it clear in another place that we intend to keep their working under close review.

Whether a formal report to Parliament, as envisaged by the amendment, is required is for us another matter. We do not think it is necessary because, as I have said, we intend to review the provisions anyway and keep a close watch on how they are working. So it is not necessary for such an amendment to be in the Bill.

Amendment 184 would require the Director of Public Prosecutions to consent to all applications for an investigation anonymity order. It would therefore prevent police officers and other prosecuting authorities applying for such an order without his or her consent. The amendment would restrict the power to give consent to the DPP, but we take the point that under Section 1(7) of the Prosecution of Offences Act 1985 the DPP automatically delegates his or her consent functions to Crown prosecutors who would presumably also be able to give consent.

Clause 65 makes it clear who can apply for an investigation anonymity order. It would not be appropriate for the DPP to have to consent to every investigation anonymity order application. As was said in another place, these new orders are an investigative tool which should be available to the police during the early stages of an investigation—perhaps on an urgent basis. Furthermore, any specified prosecuting authority should be capable of deciding whether or not to exercise the powers without reference to the DPP. These orders are not linked to witness anonymity orders; they are an independent tool.

With regard to the suggestion in the Joint Committee’s report that there is a risk of a disproportionately large number of applications if the director does not have to give consent, perhaps I may answer by saying that these orders are available only in relation to a narrow class of gang-related homicides. It is difficult to imagine applications being made in disproportionately large numbers. More significantly, the Joint Committee’s observation overlooks a fundamental aspect of these orders; namely, that they are intended to protect witnesses in criminal investigations. Unlike at the trial stage, no one’s liberty is at issue.

The Joint Committee also seems to be saying that, if the DPP gives his consent to the application for an investigation order, he will have then made a decision on, or will be likelier to know, whether he will apply also for a trial order later on. The implication seems to be that this will address the practical problem raised by the Joint Committee, and in Committee this afternoon, of informants being reluctant to come forward unless they know that they will get a trial anonymity order. However, I have to be frank with the Committee: the police, the CPS and the DPP can give absolutely no guarantee that a court will grant a trial anonymity order at any stage of a case; nor will the DPP be able to say with any certainty that the informant will indeed be required to provide evidence at trial at these very early stages of an investigation. I repeat that in our view investigation anonymity orders and trial anonymity orders are quite separate tools and they serve different purposes. There may well be examples of where it is impracticable for the CPS to provide cover for urgent police applications, and that is why we ask noble Lords not to press Amendment 184.

The noble Lord, Lord Thomas, spoke to his Amendments 183B and 183C. The first proposes the deletion of subsection (8) but Amendment 183C suggests the insertion of additional paragraph (c) to supplement existing paragraphs (a) and (b). One of the preconditions for the grant of an order is that the witness has useful information to give, but the deletion of subsection (8) would remove that requirement. There is no point in making orders in respect of people who have no information or who would be willing to provide information without anonymity, and that is why, if the noble Lord had argued for Amendment 183B, we would have rejected it.

New paragraph (c) proposed in Amendment 183C would require the police to prove that the witness would be unwilling or unable to provide information without an order. We think that that is too closely related to our existing paragraph (b), which, with the amendment, would remain. It would call into question the effect of existing paragraph (b), which, in our minds, already sets out a similar condition and would probably make it more difficult for the police to obtain an order. We do not want to make the requirements for obtaining an investigation anonymity order unduly onerous. I repeat that we need to bear in mind that we may be dealing here with the very early stages of an investigation where the police need to obtain an order but have only very limited information at their fingertips. We think that subsection (8) is appropriate for what we are trying to do in this field. For those reasons, I ask the noble Lord to withdraw his amendment and for the other amendments in the group not to be pressed in due course.

I thank the Minister for his very kind opening remarks in his response to the amendments. I also thank him for the assurance that the department will keep these matters under review. I expected him to make that clear and, for that reason, I shall in due course withdraw my amendment.

Perhaps if I had been more on the ball this morning when I first started looking at these amendments, I would have suggested that they were not very appropriately grouped, in that I think that those in the names of the noble Lords, Lord Dubs and Lord Thomas of Gresford, deal with slightly different matters from the ones that I was getting at. We all know that in an ideal world the Government Whips Office would like to group all amendments into one supergroup, thereby facilitating debate and getting through matters somewhat more quickly. We all know that we spend our time undoing the Government’s attempts to put things together. On this occasion, I think that they got it wrong, so I suggest to noble Lords that, when in due course they come to their amendments, they consider doing with them as they think fit. However, as I said I would, I beg leave to withdraw my amendment.

Amendment 183AA withdrawn.

Clause 65 agreed.

Clause 66 : Conditions for making order

Amendments 183AB to 184 not moved.

Clause 66 agreed.

Clauses 67 to 73 agreed.

Clause 74 : Applications

Amendment 185

Moved by

185: Clause 74, page 45, line 23, at end insert—

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

Amendment 185 also stems from a report by the Joint Committee on Human Rights. The Joint Committee recommended in the report that the Bill should be amended to give the trial judge a discretion to appoint special counsel to represent the interests of the defendant in his or her absence if it appears to the court to be appropriate to do so in the circumstances of the case. In the Government’s view, there are rarely cases where special counsel might be required, and they believe that the present arrangements permitting judges to invite the Attorney-General to request the appointment of special counsel are adequate. The Attorney-General’s guidelines state that such an invitation by a court should be regarded as exceptional. I wonder whether it ought to be that exceptional. It should not be commonplace, but to date there appears to have been only two applications to the Attorney-General for special counsel to assist the court with a witness anonymity application, both of which have been granted.

Of course, fairness does not require special counsel to be appointed in every case where an application for an anonymity order is made; it will depend on the circumstances. As I said, however, only two have been granted so far, out of a total of 136 applications. It is quite possible that the defence has requested the appointment of special counsel many more times than the two occasions on which they have been requested by the court.

There is a certain uncertainty about whether magistrates’ courts have the power to invite the appointment of special counsel, because they are creatures of statute and therefore do not possess inherent jurisdiction. We on the Joint Committee noted that although the vast majority of applications for witness anonymity orders have been made in the Crown Court, three orders have been made in the magistrates’ court. As long as there is the possibility of applications for anonymity being made in the magistrates’ court, it is undesirable that uncertainty should remain about whether there is power to appoint special counsel in such cases.

Finally I note that at the time of the passage of the 2008 Act, the Government told Parliament that courts had powers under their inherent jurisdiction to appoint special counsel as and when the court considered it appropriate. Since that date, however, the Attorney-General seems to have adopted a different position about the power of the courts to appoint special advocates, arguing that it is the Attorney-General and not the court that has the power to appoint. There is some doubt here—the situation is uncertain—and some clarity from the Minister would be helpful.

Courts can request the Attorney-General to appoint special advocates, but whether or not to do so is a matter for the Attorney-General. In our view, that further strengthens the case for putting the power of the court to appoint special counsel on to an express statutory footing. We on the Joint Committee remain of the view that the legislation should be amended to place on an express statutory footing the trial judge’s discretion to appoint special counsel, and the right of the defence to request the appointment of such special counsel. I beg to move.

We have tabled Amendment 185ZZA, which would do something similar to the amendment in the name of the noble Lord, Lord Dubs. We will also hear later from the noble Lord, Lord Thomas, about his Amendment 185ZE, which pursues the same track.

We all remember the witness anonymity orders that were pushed through Parliament last year in response to a court ruling that made an expedited legislative procedure necessary. As a responsible Opposition, we agreed to truncated intervals between stages of the Criminal Evidence (Witness Anonymity) Bill, something that is only rarely considered, as the noble Lord will be aware as a result of tomorrow's business. We resisted the temptation to amend it at the time. The Government, to their credit, worked closely with us to draft a new law. With the inclusion of a sunset provision, we were, if not wholly content, at least persuaded by the circumstances to allow the Bill to pass.

Now that we have had the opportunity to give the powers proper scrutiny, we have been able to dust off some of our old arguments. One issue on which there was widespread feeling around the House was the need for an independent figure who would assess the information provided to the court to determine whether anonymity was granted. In order to assess the need for an order to be granted, a great deal of information may be laid at the feet of the court. A judge will, most likely, not have the resources at his disposal to establish the background matters in respect of a proposal that a witness be given anonymity. However, through the appointment of an independent counsel, the court could properly analyse the necessary information, and that person would be able to make inquiries to establish if the conditions in Clause 75 and the considerations in Clause 76 had been fully satisfied.

It seemed to us a year ago, and it still seems to us now, that the best way to support the conflicting interests of defence and prosecution is to appoint an independent counsel, who will have at his disposal certain inquisitorial powers to determine the claims of the witness who seeks protection. The principle that anonymity in criminal trials should be so exceptional from the norm demands that exceptional steps are taken to safeguard the rigour and the fairness of the process.

We have before us three different ways of achieving that. I suppose that we could invite the Government, like Paris, to decide which is the fairest of them all.

The amendment to which the noble Lord, Lord Henley, spoke, is really a rehash of what I proposed last year in relation to the witness anonymity Bill—the Committee will see mine repeated as Amendment 185ZE. Somehow they managed to get theirs first on to the Marshalled List today. I said then 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 that, or to test the circumstances he refers to or his honesty or dishonesty generally, for the purposes of assisting the court in coming to its conclusions.

I remind your Lordships about the scheme for an application for a witness anonymity order. Under Clause 75(2), as now drafted:

“The court may make such an order only if it is satisfied that Conditions A to C below are met”.

In coming to its conclusion, the court must, under Clause 76(1), have regard to the considerations set out in subsection (2)—six of them. As drafted, all that the judge can do is look at the person in front of him and think, “Do I like this chap? Am I told by the policeman who is making this application something that makes me satisfied as to conditions A, B and C? Have I taken into account all those considerations?”. That is a very difficult task for a judge to undertake.

The wording in the clause is now almost the same as it was in the witness anonymity Act of last year, which came under the close scrutiny of the Court of Appeal in the case of Mayers, Glasgow and others in the judgment delivered on 12 December 2008 by the Lord Chief Justice. The Lord Chief Justice made some interesting comments in his judgment about the drafting of the Act and the need for special counsel. He said:

“Notwithstanding the abolition of the common law rules, it is abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained”.

He went on:

“It is … clear that an anonymity order should be regarded as the special measure of last practicable resort”.

In paragraph 10 of the judgment, the Lord Chief Justice set out principles to enable the judge to come to the conclusion to which he must come. He said:

“The principles which govern the use of special counsel to protect the overall fairness of the trial when the question whether information should be withheld from the defence is being addressed should be adapted when its possible use arises in the context of witness anonymity. Nothing in the legislation suggests, and we can see no justification for any blanket rules, one way or the other. Sometimes special counsel may contribute significantly to the fairness of the process, sometimes not. There is however one significant difference between the use of special counsel for public interest immunity purposes, and such use for the purposes of witness anonymity. The former is concerned with the circumstances in which non-disclosure to the defence may be appropriate, the latter with whether sufficient and complete investigation and consequent disclosure have taken place”.

It is clear that he had been reading what I said about this amendment earlier.

The Lord Chief Justice continued:

“If the judge entertains reservations about the good faith of the efforts made by the prosecution investigation into any relevant consideration bearing on the question of witness anonymity, an application for witness anonymity will be met with a point blank refusal. The services of special counsel may however enable the judge to ensure that any investigative steps specific to the case, and not perhaps otherwise apparent, have been taken. Our approach to this issue enables us to highlight that the obligations of the prosecution in the context of a witness anonymity application go much further in the ordinary duties of disclosure. As we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required”.

What detailed investigation into the background of each potential anonymous witness did he have in mind—that the judge should get off the bench and carry out an investigation himself, or that there should be a mechanism, such as the one in my amendment, which would enable the judge to be properly informed to ensure that any investigative steps specific to the case have been taken?

The Lord Chief Justice came back to the issue of the special counsel at a number of points in his judgment. In paragraph 21, for example, he said:

“The defence statement provides the benchmark against which the disclosure process must be examined. So, for example, a defendant who believes that he may be the victim of a malevolent plot to incriminate him when he is innocent should normally be able to give some indication of his concerns in his defence statement, and to indicate the identity of anyone who he believes may have a malign motive to incriminate him. It can then, if raised by him, be the subject of further inquiries, perhaps indeed with the use of special counsel”.

Again, he referred in paragraph 35 to considering the considerations, and said:

“The difficulties are well within the knowledge and experience of trial judges. Sometimes, of course, specific evidence may be required by the judge so that he can probe it, and indeed if necessary, he can seek the assistance of special counsel”.

The Lord Chief Justice finally concluded:

“The use of the word ‘necessary’ requires that the court must be satisfied to the highest standard that”,

conditions A, B and C have been satisfied. He said that it was not enough to satisfy two of the three conditions; all must be satisfied. He continued:

“’Probably’ necessary will not do. Even if the ‘necessity’ foundations for conditions A and C are established, the order cannot be made unless the court is also satisfied that the forthcoming trial, or the current trial, would be, or continues to be fair”.

A five-judge court of the Court of Appeal, with highly experienced judges who are versed in the criminal law, came to that analysis of the previous Act. As I say, the provisions are in the Bill. If the Lord Chief Justice points out the utility of special counsel and seeks to underline my argument, which I advanced on a previous occasion, how much more must the Government be satisfied before they make a provision, whether it is expressed in the terms of the noble Lords, Lord Dubs or Lord Henley, or my amendment, and how much more important is it that the Government take this on board and table a proper amendment on Report?

I support the spirit of the amendments and in so doing remind myself of the issue that led to the 2008 Act, which was passed almost exactly 12 months ago. The case of Davis had been decided, if I remember rightly, on 18 June last year, and spelt out that the practice that had developed very gradually over the years of allowing anonymity was wholly illegal. Parliament had to intervene to legitimate something that was illegal under common law. The mechanics of that were not difficult because of the sovereignty of Parliament, but there was a second question: how does one remove the injustice which this legitimatisation could bring about? That is very much more complicated.

The provisions of Clauses 75 and 76 are very similar, as has already been pointed out, to the wording of the 2008 Act. If the six matters, which are set out in Clause 76(2) and establish whether conditions A, B and C under Clause 75 have been satisfied, are no more than what a conscientious careful judge would have been doing over the past 15 years or so, how do they protect the position of a person who may have to face a most damning accusation without knowing who his accuser is? With great respect to the Minister, if he concludes that any conscientious judge would have applied his or her mind to each and every consideration in Clause 76(2)(a) to (f) pre R v Davis last year, how is the situation improved? In other words, all Parliament will have done is convert a rule of practice on anonymity that turned out to be illegitimate into a statutory checklist, but it will not have advanced the situation at all. I hope that I make myself clear. I should be grateful if the Minister will say whether there has been close consultation with judges on this matter and whether they were of the view that there was any difference between the statutory checklist in Clause 76 and what was done from day to day and from year to year previous to R v Davis last year.

One further consideration is that this matter has not been finally adjudicated on in Strasbourg, which was mentioned at Second Reading. If the Strasbourg court was of the view that these conditions, which were the very minimum necessary to bring about a just conclusion for the defendant, have not been satisfied, all that we are doing is rendered utterly nugatory.

I do not for a moment argue that there is anything sacrosanct in the issue of a special counsel. If there are other ways of doing it, so be it. It is not the special counsel that is important, but the principle that a person should not face grave accusations without knowing who his or her accuser might be. But is there any other way? That is the experience of other countries which have gone down this path. I understand that it is the experience of New Zealand and Netherlands. I think I am right in saying that nearly the whole structure of the 2008 Act was culled from the New Zealand Evidence Act 2006. Under that Act, a specific section, which I seem to remember was Section 115, deals with special counsel. Is there any other way that the result for which I have argued can be achieved; that is, that a judge should have a factual matrix on which to determine conditions A, B and C in Clause 75, and paragraphs (a) to (f) in Clause 76(2)?

As regards the Court of Appeal decision of December 2008, to which the noble Lord, Lord Thomas of Gresford, referred, the judge would have to be satisfied not only as to conditions A, B and C, but to each of the six considerations under Clause 76. It must follow because Clause 76 proves or disproves conditions A, B and C in Clause 75. In other words, is there any way of dealing with this situation, which could be one of grave injustice, without a special counsel? I appreciate that it would be churlish of me to pretend that there is not a problem. Of course there is a problem. There has been a problem with regard to witnesses since the dawn of time.

At Second Reading, I quoted an article written some years ago by my noble friend Lord Pannick on this matter. In 70 BC, when Cicero was about to prosecute the consul general of Sicily, it was maintained that it was impossible to proceed with the trial because it was feared that all the witnesses had been bribed. There is nothing new in this situation. As the House will remember, there were reports on this by Lord Diplock and Lord Gardiner. Indeed, this problem cropped up at the time of the trials of the Kray brothers and the Richardson gang. This is nothing new at all. But is there any way in which to deal with the situation to avoid a grave injustice? Therefore, on that basis, I am glad to support the principle underlying these amendments.

I thank everyone who has spoken in this debate. Perhaps I may start by giving a few statistics, which may be of use to the Committee. From July 2008 to the end of May 2009, the CPS made 232 anonymity applications to the courts. Of those, 206 were granted and 26 were refused. Of the 206 granted, 79 were for undercover officers, 63 for test purchase officers and 57 were for civilians. The final seven were other investigators or interpreters. Of the 26 applications that were refused, 21 were for civilian witnesses and five were for undercover police officers. Of the 232 applications, 222 were made to the Crown Court, one to the youth court and nine to the magistrates’ court. Of the nine applications made to the magistrates’ court, five were granted and four were refused. I hope that that is helpful. In that period, two special counsel requests were made to the Attorney-General, both of which she granted.

These three amendments would make statutory provision for special counsel or, as described in two of the amendments, independent counsel. We consider the amendments to be unnecessary. The Bill makes no provision for special counsel because courts may already ask the Attorney-General to appoint special counsel to assist with applications for witness anonymity orders and can be expected to do so where they consider it necessary. This option is set out in a practice direction issued on 28 August 2008 by the then president of the Queen’s Bench Division following the implementation of the emergency legislation. If any party to the proceedings raises the question of special counsel, the court is already in practice bound to consider it.

The tradition is that under current arrangements the court asks the Attorney-General, and it is the Attorney-General who appoints the special counsel. The Attorney-General exercises a general discretion in this area and it would be inappropriate to suggest that, for example, she will normally comply with the court’s request, although she has done so on the two occasions where the request has been made so far.

Would I be right in thinking that the JCHR report said that something like 120 applications were made to the court and that the court should request the Attorney-General, but that the court made only two requests, both of which were granted? I believe that those were the statistics before the JCHR.

I am having that checked, but my understanding is that that is not right. I will come back to the noble Lord a little later. We have seen no evidence that the current arrangements are not working satisfactorily. Thus, we are not persuaded that there is any need to put them on a statutory footing. As I have said, in two cases, the court has asked the Attorney- General to appoint special counsel and both were granted. One of our fears is that the proposed changes could have a significant knock-on effect for special counsel in other kinds of criminal proceedings. In principle, the use of special counsel is available in a much wider range of cases than anonymity applications. We do not think that this Bill is the place to place special counsel in criminal proceedings on a statutory footing.

The Committee will be very grateful to the noble Lord, Lord Thomas, for having analysed the leading case of Mayers, which of course discussed the law relating to special counsel as well as to features of the new statutory anonymity regime enacted last summer. In our view, two things stand out from that case. First, the Court of Appeal did not call for special counsel to be placed on a statutory basis. Secondly, it gave no indication that it considered the present arrangements—or as they had worked until that case—unsatisfactory.

As regards the figures, that quoted by the noble Lord, Lord Thomas, is for applications for witness anonymity orders and not for applications for the appointment of special counsel. If there is some confusion between us about the figures, I will write to the noble Lord.

I am concerned. The noble Lord, Lord Dubs, has the documentation and I imagine that he will be able to help us. I understood that applications were made to the court but that the court simply did not pass them on.

My information is that the concern of the Joint Committee was the very small number of cases in which special counsel have been appointed; that is, two out of a total of 136 applications. There may be other figures. I have not checked all the details of the report, but that is a fairly small number.

I suspect that that refers to the number of applications for anonymity witness orders, not for special counsel. I shall have that checked and write to noble Lords confirming whether or not I am right. There is a certain ambiguity in what my noble friend has just read out.

In Mayers, the Court of Appeal focused on the duties of the prosecution. The role of special counsel in a particular case may be one where special counsel helps the court probe the evidence. It did not suggest that special counsel carry out a police investigatory role. The noble Lord, Lord Thomas of Gresford, cited the court when he said that there was no justification for any blanket rules, one way or another. The court already has sufficient flexibility to ask the Attorney to appoint special counsel when it considers it necessary. Our approach today is wholly consistent with the Court of Appeal judgment in Mayers.

I do not need to point out that there are significant differences between the three amendments and I hope that none of them will be pressed today. There are obviously differences between special counsel and independent counsel but I do not need to go into detail. I was asked by the noble Lord, Lord Henley, to play the role of Paris in choosing between these three sirens, if siren is the right expression from all that time ago. However, if he will forgive me, I will not choose a Helen today; I take the same attitude to the three temptations on offer and reject them all. I ask my noble friend to withdraw his amendment.

If I have misled the Committee on the figures, I apologise, but I do not think I have. I am relying on the report of the Joint Committee on Human Rights. In its 8th report, House of Lords Paper 57, page 43, paragraph 1.134, dealing with special counsel, it states:

“We are concerned, however, by the very small number of cases in which special counsel has so far been appointed: two out of a total of 136 applications. This suggests that the appointment of special counsel may be being treated as a wholly exceptional course rather than one which fairness may sometimes require on the facts of a particular case. We note that there is no record of the number of times special counsel were requested or applied for by the defence but that request or application was not acceded to by the court”.

So there is quite a lot of information. My noble friend the Minister may have more up-to-date information, which he could let us have.

I shall write with the latest statistics to make the position clear to all noble Lords. I am conscious that I have not really answered the noble Lord, Lord Elystan-Morgan, on the points he makes. I do not think he expects me today to go into the details of the problems that he has always considered arise in cases of this kind. I hope that in the letter that I write to noble Lords I will be able to say something about what he asked me today.

Could the noble Lord also apply his mind to the question he has already raised: that there is no blanket policy one way or the other? I believe I am right in saying that the learned editor of Archbold, in the current edition, says of special counsel that such an appointment should be very sparingly used. Therefore it does not matter whether the figures given by the noble Lords, Lord Dubs and Lord Thomas of Gresford, are correct; there seems already to be a mentality that accepts that there is a blanket policy.

I also understand that the Attorney-General’s guidelines state that such an invitation to appoint a special counsel by a court to the Attorney-General should be regarded as exceptional. Whatever the figures, my noble friend may also care to comment on whether the guidelines say what I believe they say: that is, that they should be regarded as exceptional. It does not happen often.

I am not totally convinced by my noble friend’s reply. I shall ponder what he said when I read Hansard in detail. For the moment, I beg leave to withdraw the amendment.

Amendment 185 withdrawn.

Amendment 185ZZA not moved.

Clause 74 agreed.

Clause 75 : Conditions for making order

Amendment 185ZA

Moved by

185ZA: Clause 75, page 45, line 34, leave out paragraph (b) and insert—

“(b) in order to avoid compromising the practice of undercover policing or undercover operations by police (or both), law enforcement agencies or the security services, whether in relation to specific operations or generally”

I want first to address Amendment 185ZE, in the previous group, for the purposes of replying to the Minister—as I am entitled to do. I am rather heartened by the few applications that have been granted. As the noble Lord, Lord Elystan-Morgan, said, these witness anonymity orders were being handed out wholesale. I came to the witness anonymity Bill last year straight from a case in the Old Bailey where no fewer than five witnesses in a murder case had given evidence with their voices changed. Acting on behalf of the defendant, I had no idea who they were and it was impossible to cross-examine them. They were the only witnesses; there was no forensic evidence in support of the prosecution’s case. Apart from one young lady, the girlfriend of the deceased, who said, “I am not going to give my evidence anonymously”—even though an order had been made in her favour she refused to give evidence in that way and therefore gave evidence in open court—there was no other evidence against the defendant. It was a wholly unfortunate thing to happen and these must be regarded as exceptional orders.

The framework that was put in place last year seems to be working and the guidance in Mayers—that these are measures of last resort—will be very influential. The practice of the police offering to witnesses that they would all be treated anonymously seems to have ceased and I am pleased about that.

However, it is not satisfactory that special counsel should be appointed by the Attorney-General. The purpose of the amendments was that special counsel should be appointed by the court where the court thinks it is necessary and that the court should not regard it as an exceptional matter when it is required to come to a conclusion on the highest degree of proof—beyond reasonable doubt—and has to take account of all the considerations and conditions that have to be fulfilled. It is a matter for the court to consider whether it has enough information. We will have to return to this on Report and see whether we can have a joint amendment which will perhaps meet with the Government’s favour.

I now turn to Amendment 185ZA and a series of amendments that are grouped together that cover quite disparate matters. I apologise to the Committee that they are not being deal with separately. However, I shall endeavour to cover them all.

Amendment 185ZA relates to subsection (3)(b). The first condition to be met for the granting of a witness anonymity order is condition A; that is,

“in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest”.

That is an extraordinarily wide concept. The purpose of the amendment is to confine that possibility in paragraph (b):

“in order to avoid compromising the practice of undercover policing or undercover operations by police (or both), law enforcement agencies or the security services, whether in relation to specific operations or generally”.

The statistics that were given by the noble Lord in answer to the previous question make the point. By far the bulk of the orders that have been granted have been to undercover policemen or to those who are engaged in investigating food and matters of that sort. That is what we are seeking to confine the public interest to. To prevent real harm to the public interest, as set out in condition A, could mean anything. Subsection (5)(b) introduces the same concept in terms that were not in the original Act of last year, that there would be real harm to the public interest if the witness were to testify without the proposed order being made. What public interest is there? I should be glad to hear from the noble Lord what the Government have in mind.

Amendments 185ZB and 185ZC are drafting amendments to emphasise that subsection (6) should be redrafted in a way that makes sense. If they were accepted, the provision would read:

“In determining whether the proposed order is necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to”—

whether any—

“fear on the part of the witness … that the witness or another person would suffer death or injury, or … that there would be serious damage to property … if the witness were to be identified”,

was reasonable. We cannot permit witness orders to be made because a person has a fear for his personal safety which is completely unjustified. The person who applies for such an order needs to satisfy the court that the fear of death or injury or serious damage to property is founded on something and is not just the subjective view of the witness concerned.

Amendment 185ZD would insert a new clause providing that the prosecution should not disclose the identity of a witness to other defendants. The Bill suggests that a defendant may make an application for a witness anonymity order. In such circumstances, if the application is made by the defendant, then it is necessary to have a provision that nothing in the Criminal Procedure and Investigations Act 1996 or any law relating to disclosure of material by a prosecutor to the defence should apply to the identity of an anonymous witness who is made anonymous by the application of the defendant.

These are separate and quite different points. We heard that one application had been made in the youth court—that was the statistic that the noble Lord gave. Nine applications had been made to magistrates’ courts, of which five had been granted. When the previous Bill was going through, I pointed out, on behalf of these Benches, that magistrates’ courts are not really suited to granting witness anonymity orders. In any event, not all courts have the practical means of disguising someone’s voice or identity, or of putting up screens, and so on. Nor is it right as a matter of principle that in trivial offences, there should be taken away from the defendant his right of common law and fair trial under Article 6 and his right to know the identity of his accuser. It may be necessary in serious offences, but when it comes to the magistrates’ court, it is our contention that witness anonymity orders should not be used. Perhaps if a case is triable both ways and the question of anonymity arises, it should be sent to the Crown Court.

These orders should not be made by justices. If only nine such orders were applied for last year, they will have had very little or no experience of making the determination and considering those conditions and the considerations that are set out in the Bill as well. We suggest that that is far too complicated and that the magistrates’ court should be left out of this. However, the youth court—were the defendant an adult, he would have been tried in the Crown Court—is a different matter. In that very specific case, when only one application was made last year, we concede that perhaps an anonymity order could be made but, as a general principle, not otherwise. I beg to move.

I should like to deal briefly with the three government amendments in this group—218B, 218C and 218D. These are simple, technical amendments to improve the appeal procedures in cases that involve anonymity orders. Amendment 218B would enable a single judge to vary or discharge as well as make an order in the interests of the efficient operation of the Court of Appeal. The power of a single judge of the Court of Appeal to make an order is also available in the service context and in Northern Ireland. Accordingly, Amendments 218C and 218D make a like change. Amendment 218D would also make it clear that a single judge of the Court of Appeal in Northern Ireland cannot discharge or vary an anonymity order where he or she has already made it in the Crown Court. I will move those amendments in due course.

I shall deal with the amendments of the noble Lord, Lord Thomas of Gresford, as briefly as I can. Amendment 185ZA would change the wording of the second limb of condition A to refer explicitly to avoiding compromising the practice of undercover policing or undercover operations by police, or both, law enforcement agencies or the security services. Our view is that the amendment is unnecessary. As we explained during the passage of the emergency legislation last year, the public interest wording is intended to cover two areas—first, national security interests generally and, secondly, the undercover work of the police and relevant agencies. Having done so, we believe that further elaboration is unnecessary. Indeed, to change the wording could cause confusion as to what change was intended, bearing in mind that the 2000 Act contains the same wording as this Bill.

What is now Clause 75(3)(b) has been in force for almost a year without, to our knowledge, any difficulty. It will be noted also that the present amendment covers only undercover operations; it would not cover other circumstances where damage to national security would be caused by identifying a witness.

Amendments 185ZB and 185ZC would, as the noble Lord said, change the order of the words in Clause 75(6). The court will necessarily have to consider any fear of the witness and the circumstances to judge whether it is reasonable. I echo what my honourable friend Maria Eagle said in another place: there is no need for us to get too het up about which bit is subjective and which objective. The point is that the judge would be empowered to make a commonsense judgment in any particular set of circumstances about whether the fear of a witness was reasonable. No sensible judge—and all judges are sensible—would make an anonymity order if a witness had a completely irrational fear and there was absolutely no chance of any danger to safety or risk of damage to property. The judge would have to be convinced that there was at least something to it. That is what we are trying to capture generally in the way that we have phrased the subsection.

Amendment 185ZD deals with the extent to which the anonymity provisions override the prosecution disclosure requirements in the Criminal Procedure and Investigations Act 1996. The concern is that where an order is made on a defence application for an anonymity order in a multi-handed case, the prosecutor may be compelled by the 1996 Act to disclose the identity of the witness to the other defendants, thus defeating the purpose of this legislation. A trial anonymity order overrides any prosecution obligation to disclose material to a defendant under the 1996 Act to the extent the court thinks fit in any particular case. We do not think the amendment spoken to by the noble Lord is necessary.

Finally, Amendment 185ZF would prevent magistrates’ courts making a witness anonymity order, which the Bill currently allows. The position at common law was that anonymity orders could be made by the Crown Court and the magistrates’ court. This position was preserved in the emergency legislation. Our position is that if anonymity is required to secure justice, it does not matter where the case is heard. We see no convincing reason why magistrates' courts should not be permitted to make such orders provided that the requirements in the Bill are met. As the noble Lord, Lord Thomas of Gresford, reminded us, since the passage of the Bill in the previous Session, nine orders have been sought in the magistrates’ court, of which five have been granted and four refused, which shows that the magistrates seem to have a pretty robust way of dealing with applications that they do not think to be good applications.

In the light of the explanations I have attempted to give, I invite the noble Lord to withdraw his amendment.

I have heard the explanations that the Minister gave on behalf of the Government. I shall consider them. For the moment, I beg leave to withdraw the amendment.

Amendment 185ZA withdrawn.

Amendments 185ZB and 185ZC not moved.

Clause 75 agreed.

Clause 76 agreed.

Amendments 185ZD and 185ZE not moved.

Clauses 77 to 83 agreed.

Clause 84 : Interpretation of this Chapter

Amendment 185ZF not moved.

Clause 84 agreed.

Clause 85 agreed.

Clause 86 : Eligibility for special measures: offences involving weapons

Amendment 185ZG not moved.

Amendment 185A

Moved by

185A: Clause 86, page 50, line 34, leave out subsection (3) and insert—

“(3) In section 64(3) (orders subject to affirmative resolution procedure), in paragraph (a) after “section” insert “17(7),”.”

Amendment 185A agreed.

Debate on whether Clause 86, as amended, should stand part of the Bill.

We submit that special measures should be used only if their use does not compromise the defendant’s right to a fair trial and they are genuinely useful in helping to maximise the quality of the witness’s evidence, where that quality would otherwise be compromised because of age, fear, vulnerability or disability or where protection of identity is otherwise exceptionally necessary. It is simply not the case that all witnesses in weapons cases will fulfil these criteria.

Where special measures will not help to maximise the quality of a witness’s evidence, they should not be used. First, special measures can have a prejudicial impact on the defendant’s trial by suggesting, for example, that he is a person to be feared. I can assure your Lordships that, if witnesses appear to be so fearful that they have to peep from behind curtains, that is prejudicial to the defendant and cannot be wholly cured by a direction to the jury from the judge. Secondly, we are concerned that special measures could impair the quality of evidence if used in inappropriate cases in relation to defendants who are under 18 or who have mental health problems or learning disabilities. There are grounds for particular concern since the defendant may be very young or vulnerable to a similar or even greater degree than the witnesses.

Decisions as to special measures should depend not on the witness’s wishes but on the interests of justice. For that reason, we suggest that this clause be removed from the Bill. Without it, special measures would continue to be available under the normal criteria of the Youth Justice and Criminal Evidence Act 1999. These criteria are sufficient to provide for special measures in appropriate cases. For these reasons, we oppose the clause standing part of the Bill.

The provisions in Clause 86 form part of the Government’s strategy to tackle gun and knife crime, which tends to see high levels of witness intimidation. The aim is for this provision to give witnesses to such crimes reassurance at an early stage in the investigation that they will be eligible for special measures assistance should that be needed to give evidence in court. In turn, we hope that this will encourage more witnesses to these offences to come forward. Eligible witnesses are able to opt out should they not require special measures assistance.

While the Bill makes eligibility for special measures automatic for the class of witness, the court will continue to have full discretion to determine which special measures, if any, should be available to any particular witness. In determining this, the court must consider which, if any, of the measures would be likely to improve the quality of evidence given by the witness and whether the measures might inhibit the evidence being effectively tested. It is unlikely that a court would decide that certain witnesses needed the assistance of special measures to improve the quality. Essentially, the court will have the test of whether it might inhibit the evidence being effectively tested.

Clause 87 amends the existing legislation by creating one rule for all child witnesses and by providing greater flexibility in the way in which young witnesses may give their evidence. This responds to concerns that the present provisions are too rigid and do not give young witnesses any choice about the way in which they give their evidence. The clause abolishes the distinction between child witnesses in cases involving sex or violence and child witnesses to other types of offence. It provides a presumption that all child witnesses, regardless of the type of offence, will give their evidence via video-recorded statement and live link, unless this would not maximise the quality of their evidence. However, it also provides that the witness may opt out of giving evidence this way, wholly or in part, subject to the agreement of the court. If child witnesses wish to give evidence in the courtroom, there is a presumption that they will do so behind a screen. Should witnesses not wish to use a screen, they will have a further opportunity to opt out, again subject to the agreement of the court.

We are committed to helping vulnerable child witnesses to give evidence in the best way possible for them in court, in a way that reduces the trauma of the experience and enables them to give their evidence. The current system, established by the Youth Justice and Criminal Evidence Act 1999, is based on the view that all children should be protected from giving evidence in the courtroom, particularly witnesses to offences of sex and violence. Thus, at present, child witnesses in these cases, regardless of their views, must give their evidence in chief via video-recorded statement and live link, unless to do so would not be in the interests of justice.

However, these provisions have been criticised for their complexity and inflexibility. After six years, independent research shows that many young witnesses want more choice in the way in which they give their evidence. This view was supported by a review of child evidence that led to a public consultation exercise in 2007. The vast majority of respondents to that exercise were largely in favour of this change. I assure noble Lords that the provision will not reduce the protection offered to young witnesses but will ensure that special measures are flexible and tailored to the needs of an individual witness, rather than assuming that all young witnesses are the same.

It is my fault that I did not address Clause 87 earlier, but perhaps I may make one or two points about it. Section 17 of the Youth Justice and Criminal Evidence Act at the moment provides that a witness is eligible for assistance if the court is satisfied that the quality of the witness’s evidence would be reduced on the grounds of fear or distress about testifying. The court takes into account a number of factors as well as the views expressed by the witness. Clause 87 gives automatic eligibility for assistance to witnesses in proceedings relating to gun and knife crimes as set out in the schedule, so that it ceases to be a matter for the discretion of the court altogether. There is automatic protection, not because a person is in fear or distress but because of the nature of the crime before the court.

We consider it imperative that, as far as possible, special measures be left to the discretion of the court to determine on a case-by-case basis, because it is undoubtedly true—and it is my personal experience—that once the jury sees a witness screened off with their voice distorted, it will assume that the defendant is a dangerous criminal capable of serious violence. Special measures should not therefore be used automatically, as Clause 87 suggests. It should be for the court to weigh the prejudice occasioned by the manner in which the evidence is given against the need, if there is a need—the fear and distress of the witness—to protect the witness. It is a question of balance, not of automatic qualification for these measures. It would have an impact on the whole concept of a fair trial if, without any request, a witness should be automatically granted these provisions. That is why I am opposed to Clause 87. I know that the Minister has already dealt with it in his reply—I apologise for that—but I was taking it in stages.

Perhaps I may say something about Clause 87 from the perspective of a former family judge. My own experience, and that of those who have represented children—particularly child and adolescent psychiatrists, who have had to help children who are likely to have to give evidence—has been that most children are extremely scared about giving evidence in court. The younger the child, the more scared they are, but anyone up to the age of 18 is intensely vulnerable. This seems to be one area of the Bill on which the Government are to be congratulated and I for one would like to see the clause go through.

I thank the noble and learned Baroness for her support. I should re-emphasise the role of the court. There is a distinction. Eligibility is automatic, but the court must still determine whether a special measure would be likely to improve the quality of evidence, which is the essential test to be applied in all cases.

Clause 86, as amended, agreed.

Schedule 12 agreed.

Clause 87 agreed.

Clauses 88 to 90 agreed.

Clause 91 : Examination of accused through intermediary

Amendment 185B not moved.

Debate on whether Clause 91 should stand part of the Bill.

Perhaps the Minister will deal with a couple of queries. As he is well aware, Clause 91 deals with the examination of the accused through an intermediary, but we have questions about the situations in which this will be deemed to be appropriate. Where a defendant’s level of intellectual ability or social functioning is so compromised that he is unable to understand and respond to questions asked in language appropriate to his age by a prosecutor, defence lawyer or the court, it is very unlikely that he will be able to participate effectively in his trial for the purposes of the trial being fair according to Article 6 of the ECHR. In these circumstances, he should not be on trial at all, but should be diverted to an appropriate alternative process, whether through fitness to plead or some alternative procedure.

If the defendant is unable to have a broad understanding of the nature of the trial process, or to have the “effective participation” in his own trial as was demanded in the judgment in the 2004 case of SC v United Kingdom, which includes an understanding of the significance of any penalty that may be imposed, the presence of an intermediary is unlikely to be a remedy. I welcome the Government’s comments on that.

Another concern is that the intermediary may not be wholly independent of the defendant and may risk giving evidence on his own account when he ought simply to be transmitting the information going to and from the defendant. These concerns have been brought to our attention by, among others, the Law Society and Justice. As I made clear, our opposition to the clause is purely probing in nature at this stage, but we seek assurances from the Government on the two points raised. If what the Minister says is unsatisfactory, we might want to come back to the matter at a later stage.

I think that the noble Lord, Lord Henley, and I were expecting the amendment to the clause to be moved, so if noble Lords will forgive me, I shall use my overall notes suitably amended.

Clause 91 enables the court to permit eligible vulnerable defendants to be assisted by an intermediary to communicate and understand if and when they give oral evidence at trial. Intermediaries are already available to assist vulnerable witnesses under Section 29 of the Youth Justice and Criminal Evidence Act 1999.

The 2005 ECHR judgment in the case of SC held that, when there was a risk of a defendant’s being unable to participate effectively in criminal proceedings because of youth or “limited intellectual capacity”, it was “essential” that the courts,

“give full consideration to, and make proper allowance for, the handicaps under which he labours, and adapt its procedure accordingly”.

Crown Courts already have inherent powers to permit a vulnerable defendant to use an intermediary when giving their oral evidence if it is necessary to ensure that they receive a fair trial. This clause puts this power on a statutory footing and extends the availability of intermediaries to vulnerable defendants in magistrates’ courts.

An intermediary’s role is limited to assisting the witness to communicate and understand. They can therefore communicate to the witness questions asked by the court, the defence and the prosecution. They can also communicate the answers that the witness gives. The intermediary may also explain questions and answers if it is necessary to enable the witness and the court to understand each other.

Intermediaries are independent of the defendant. Their paramount duty is to provide a service to the court. They are not on the side of either the prosecution or the defence; they are neutral and take an oath to the court to perform their services faithfully, as a translator of a foreign language would. The court may also discharge such a direction and, as a safeguard, may vary one where this is necessary. The Government intend that this clause will assist those defendants who genuinely have severe recognised communication problems to give their evidence and thus ensure that they receive a fair trial.

The questions of whether the defendant is fit to plead and the use of an intermediary are two separate issues. The tests that the court is asked to apply in each case are different. In the case of fitness to plead, the common law test is more stringent and about a defendant’s capacity to comprehend the course of the proceedings so as to make a proper defence. The law enables the defence or prosecution to make a claim to the court that the defendant is unfit to plead. This is a matter for them to decide. If such a claim is made, the judge will determine this only in the light of evidence from medical practitioners, at least one of whom must have special experience in the diagnosis or treatment of mental disorder. A separate application by the defence for an intermediary will instead be relevant if a contested trial is to proceed and the defendant intends to give evidence and requires assistance with communication for this purpose.

It does not follow that, when an intermediary is needed in the interests of a fair trial, a defendant should not be tried at all. While I understand the concerns that have prompted the amendment, it would be wrong in principle to restrict the ability of the defence to apply for an intermediary for a defendant by making it a condition that fitness to plead must be determined first. This would be an inappropriate and unnecessary restriction on the defence, particularly bearing in mind their professional duty to their client. There will be many defendants who are fit to plead and yet, in the interests of a fair trial, require some aid communicating when giving their evidence. We expect that fitness to plead will ordinarily be determined first, before arraignment.

Following this order would have the additional benefit that the evidence of specialist medical practitioners as to the defendant’s fitness to plead might also address whether, if the trial were to go ahead, that defendant had communication problems for which an intermediary might be required. However, in the interests of the accused, the court may postpone the issue of fitness to plead to any time up to the end of the prosecution case. The issue of fitness may be raised by the defence, prosecution or court itself. This provides for the necessary flexibility to accommodate circumstances when—for example, due to the nature of the disability—it may not be appropriate to determine the question from the outset. In the light of this explanation, I hope that the noble Lord will support the clause.

We do support the clause. I have had the experience of defending a person who was absolutely deaf and could not speak—so was the deceased and so were four or five of the witnesses, which meant that most of the trial was conducted in sign language. It was astonishing to me that those who were signing could communicate more quickly than in ordinary speech, so the interpreters of the sign language, who were telling the jury what was being said, were unable to keep up. The use of intermediaries in such a situation is very much in the interests of a defendant and I am pleased to see that this clause contains something giving statutory approbation to it.

I am very grateful, as always, to the Minister for his response to my opposition to the clause standing part of the Bill. As I stressed at the beginning, my opposition was purely probing. I want to consider very carefully in due course—we have the whole summer in which to do it—what he had to say. I will also consider comments from bodies such as the Law Society and Justice on what he said and then decide whether further examination of this clause is necessary at Report.

Clause 91 agreed.

Clause 92 agreed.

Clause 93 : Directions to attend through live link

Debate on whether Clause 93 should stand part of the Bill.

Clause 93 seeks to remove the requirement of the consent of an accused person before a live link is used at preliminary and sentencing hearings. Chapter 4 amends the Crime and Disorder Act 1998 in relation to the use of live video links. The greatest concern is this clause, which systematically replaces the existing requirements in that Act that the accused must give his or her consent to the use of a live link at preliminary hearings and sentencing hearings. Instead, the court may direct the accused’s attendance by way of a live link when it is satisfied that it is not contrary to the interests of justice to do so. There is no direction on how that is to be assessed or whether representations can be made. Similarly, the amendment removes the requirement for consent on the part of the accused to the giving of evidence at preliminary or sentencing hearings.

The requirement that the accused consents to live link directions is an important safeguard against potential abuse. The physical appearance of the accused in court at pre-trial and sentencing hearings is a prerequisite for the effective exercise of rights under Articles 3, 5 and 6. By the accused appearing in court, the court may see first hand whether the accused has been subject to any abuse of any sort. Clause 93(4) of the Bill provides that the accused may continue from a preliminary hearing by live link directly to a live link sentencing hearing—for example, when he or she pleads guilty—at the direction of the court, so that the accused may never have the opportunity to present himself or herself in court. That increases the risk, however minimal it might be perceived, that an abused prisoner might be induced to plead guilty.

I apologise to your Lordships for referring always to experience, but it is only at the beginning of this year that I had a situation in which a client who was kept in prison suffered from a very bad back injury and was unable to attend the court at any time. That caused problems from the defence point of view—problems in getting into the prison to see him and problems on the day of the hearings in getting proper instructions. Your Lordships may well take it from me that live links are not always working. It is difficult, if something emerges in the course of a hearing, to take any instructions about it. Therefore, to impose a live link on a defendant when he does not want it is, in my respectful submission, a breach of his right to a fair hearing. If, on the other hand, as happened in January of this year, the defendant is unwilling to go to court because of physical injury, that is a different matter. His consent to the hearing is something that he can give. To remove that consent altogether is not appropriate, which is why we oppose the clause standing part.

At present, consent is required for the use of a live link for certain sorts of hearing, while it is not required for others. It is difficult to justify this inconsistency. A live link hearing ought to be treated much like any other hearing.

Everyone is aware of the need for increased efficiency in the justice system. We believe that the increased use of live links that this clause provides for will enable cases to be progressed more quickly and ensure the best use of available resources and technology. Crucially, the quality of justice will not be affected by these changes: live link hearings will take place under the same rules and guidelines as usual, and the defendant will have access to all existing legal safeguards.

Live links now have a history. They were first introduced in the Crime and Disorder Act 1998 and were subsequently amended in the Police and Justice Act 2006, which also extended live links to cover certain sentencing hearings.

The current situation, as I say, is inconsistent in that defendants already in prison cannot veto the use of live links for their preliminary hearings, but they can veto the continued use of a live link for sentencing if they plead guilty during the preliminary hearing. Such defendants must give separate consent if they are to give oral evidence at this sentencing hearing. The defendant’s consent is also necessary where he has been convicted and is to be sentenced at a live link hearing from prison called for this purpose. Again he must also give separate consent if he is to give oral evidence at that hearing.

In virtual court hearings where the defendant is at the police station, either having been detained there or having returned there to answer what is described as “live link bail”, the defendant’s consent to the live link is required. These police station-to-court live links are a new initiative—indeed, an oral Question about them was asked in the House just a couple of weeks ago—and are being operated, as noble Lords may know, as a pilot in four London police stations. As of 3 July, 23 cases have been heard that way. There has been an average of four hours between charge and first hearing, and approximately 75 per cent of cases heard so far have resulted in a guilty plea and sentence, meaning that the cases have been concluded on the day of charge, demonstrating the potential of virtual courts to speed up justice for all those involved. That, of course, includes defendants too.

The clause will remove the requirement for defendants’ consent to live links in the following situations: first, preliminary hearings where the defendant is at a police station—virtual courts—and hearings to sentence the defendant where he has pleaded guilty during that virtual court hearing; secondly, hearings to sentence the defendant where the defendant is in prison and has pleaded guilty during the preceding live link preliminary hearing; and, thirdly, hearings arranged for the purpose of sentencing a defendant already in custody. In those last two situations the clause also abolishes the requirement that a defendant give separate consent if he is to give oral evidence during these types of hearings.

The safeguard in the clause adds a requirement that a live link direction is not to be given in any of these circumstances unless the court is satisfied that it is not contrary to the interests of justice to give the live link direction, and, importantly, a court can rescind a live link direction at any time for the same reason. In practice, this will mean that a court will take into account a defendant’s view on the use of a live link, or any particular needs he may have that renders the use of a live link unsuitable.

It hardly needs saying that these changes have enormous potential to increase the speed, efficiency and effectiveness of our criminal justice system without affecting the quality of justice. This will, we hope, deliver a better deal for victims and witnesses as cases will be resolved more quickly; a better deal for the taxpayer, as precious resources will be used more efficiently; and a better deal for the defendant himself or herself, as their case will be progressed more quickly.

The noble Lord asked how a court will satisfy itself that it is not contrary to the interests of justice to give a live link direction. My reply is that the court will take into account the wishes of the defendant. So while it may not be enough for him merely not to consent, he will be asked his wishes regarding live link and, of course, about any particular needs that the defendant might have that might render the use of a live link unsuitable. As I say, the court can rescind any live link direction at any time in the proceedings. So where it is or becomes inappropriate to have a live link direction, the case can be sent for a regular court hearing in the usual manner. I should add that no trials can take place under a live link; they have to take place in court itself. I should also add that the defendant has the chance through the live link of seeing the Crown prosecutor, the tribunal and all other interested parties

There has been concern about defence representatives. Where the defence representative is at the magistrates’ court, that lawyer will be able to communicate privately with the defendant using the video link in advance of the hearing. For such discussions the defendant will use a live link from a private interview room in the police station through which he will be able to see and hear his lawyer at the magistrates’ court. The defendant will be alone for the duration of such discussions, thus preserving confidentiality.

We are moving forward with this scheme because so far it seems as though it has worked well. Of course we are watching it with extreme care. If there are any signs that it is not working well, we will look carefully to see what we should do about it. The safeguard for the defendant is that the tribunal has the right to say no to such a link. It also has the right to stop any link taking place if it is felt to be unjust. We therefore ask that Clause 93 stand part of the Bill.

I hear what the Minister says. I have limited experience—but I have experience. What I think is not understood is the physical limitations for the use of live links. In a very busy Crown Court that I know of, which has some 17 courts operating, there are two rooms where it is possible to take instructions along the lines that the noble Lord has mentioned. Of course there is a queue. You have to wait. It is quite impossible to go back, as I said earlier, to take instructions as a case develops. That is just physically impossible. Although the equipment can work, sometimes it does not.

I am afraid that we are moving towards a situation where defendants are going to be even more packaged up and removed from the ambit of the courtroom where the judge can see and hear a real person. If this goes through, the judge will be able to sentence a person without his consent to a live link. He cannot ask him any genuine real questions by live link. He cannot appreciate the atmosphere in which the case is being advanced. We are approaching what used to be called a 1984 situation, with defendants popping up on a screen and being popped away without any physical contact with the court scene. I think that this is a retrograde step, but I will not oppose the matter any further.

Clause 93 agreed.

Clauses 94 to 99 agreed.

Clause 100 : Powers in respect of offenders who assist investigations and prosecutions

Amendment 185C

Moved by

185C: Clause 100, page 61, line 13, leave out “Enterprise and Regulatory Reform” and insert “Innovation and Skills”

These are purely technical amendments which do not affect the substance of the clause. Clause 100 extends to the Financial Services Authority and the Secretary of State for Business, Enterprise and Regulatory Reform the statutory powers in the Serious Organised Crime and Police Act 2005 for prosecutors to confer immunity from prosecution in respect of defendants who co-operate in the investigation and prosecution of others. There is also provision for defendants who turn Queen’s evidence to receive a reduction in their sentence in return for their co-operation.

Following the machinery of government changes announced by the Prime Minister last month, it is necessary to replace the various references to the Secretary of State for Business, Enterprise and Regulatory Reform with references to the Secretary of State for Business, Innovation and Skills. Following Royal Assent it will be possible, in response to any future machinery of government changes affecting this clause, to amend this provision through a transfer of functions order. I beg to move.

I am somewhat intrigued by these amendments, which we are told are minor and technical. In my experience, references to “the Secretary of State” in any legislation refer simply to “the Secretary of State” on the basis that “the Secretary of State” is a single legal entity. You then infer from the Act which Secretary of State it is. So, in my days in education, when we were passing education Bills, when the Bill said “the Secretary of State”, that meant the Secretary of State for Education.

Later, under this Government, what was the Department of Education started changing its name with monotonous regularity. If we had put in the words “the Secretary of State for Education”, every time a new education Bill came through, further drafting amendments would presumably have had to be made to a whole host of bits of legislation, suggesting that his or her name should be changed to whatever the Government had decided that that department should now be called.

This has happened in this case because the Government started by saying “the Secretary of State for Business, Enterprise and Regulatory Reform”, which is a pretty silly title anyway, and now want to change it to the almost sillier title of “the Secretary of State for Business, Innovations and Skills”. We understand that that also includes universities, but for some reason they did not want to add that to the title.

Anyway, on this occasion we are told that we will have the full title of the Secretary of State. Perhaps the Minister can assist me. It might be because, on this occasion, we have in Clause 100(3)(a),

“the Secretary of State for Business, Enterprise and Regulatory Reform, acting personally”.

Well, if he is acting personally, one might have gone further. Rather than giving his title, we could have used a whole raft of titles, such as “Lord Mandelson of Foy in the county of Herefordshire and of Hartlepool in the county of Durham, Lord President of the Council, Secretary of State, Deputy Prime Minister”—the whole lot. I honestly do not know.

Put simply, can the Minister tell us why we cannot have just “the Secretary of State”, as we have always had in the past? When does the Minister expect to seek to amend the Bill further when the Prime Minister changes the title of that department again? Is this an appropriate way to go about things? If the Minister is going to suggest that the clause stays as it is, might this be one of those occasions where we have a new regulation-making power—it could even be negative; I would not even insist that it be affirmative—so that we could change the title as appropriate by means of negative instruments?

The noble Lord, Lord Henley, makes the case for spelling out which Secretary of State quite well. I believe—and I will write to the noble Lord if this is not correct—that it is essentially for the avoidance of doubt. Our amendments already pick up his suggestion. There will be no requirement for future changes to the Secretary of State’s title in primary legislation. It will be covered in the transfer of functions order, as I said earlier. That will have the power to change the title in this case.

I, too, was curious about what “acting personally” means. My answer begins:

“There is no intention that the Secretary of State will actually use these powers himself”,

which I thought was a great start. The powers will be used by an appropriately senior prosecutor within the department. Where a Secretary of State is ordinarily granted a power in legislation, unless otherwise specified this power may automatically be exercised on his behalf by a large number of officials within his department. We want to ensure that these powers can be delegated by the Secretary of State only to no more than two appropriately senior prosecutors within the department. That is the sole reason behind the use of the phrase “acting personally”.

This is complete nonsense. I suggest that the noble Lord takes the amendment away, goes back to his draftsmen and suggests to them that we go back just to “the Secretary of State”. He is creating more confusion by specifying which Secretary of State, because it casts into doubt all the other statutes that refer simply to “the Secretary of State”. I suggest that the Minister has another look at it and comes back with further amendments on Report that put us back on to the normal footing that we understand, on the basis that we all know who the Secretary of State is. We always find a means of understanding what any particular statute means.

What does the Minister think a court might do with this? If the phrase is “acting personally”, I do not see how you can delegate.

I have every faith in those who drafted these clauses. I am sure that when we come back and probably propose precisely the same clauses everybody will be convinced by the extensive arguments I shall field. However, I recognise the mood of the Committee and shall withdraw the amendment. I expect to retable the amendments on Report. I suspect that they will be the same, but we will be backed up both by more reasons for why it is necessary to name the Secretary of State and by a response to the question about how we believe a court might react. I beg leave to withdraw the amendment.

Amendment 185C withdrawn.

Amendments 185D and 185E not moved.

Clause 100 agreed.

Clause 101 : Bail: risk of committing an offence causing injury

Amendment 185F not moved.

Clause 101 agreed.

Amendment 186 had been withdrawn from the Marshalled List.

Amendments 186A to 186C not moved.

Clause 102 : Bail decisions in murder cases to be made by Crown Court judge

Amendments 186D to 186F not moved.

Clause 102 agreed.

Amendment 187

Moved by

187: After Clause 103, insert the following new Clause—

“Independent Commissioner for Terrorist Suspects

(1) The Secretary of State shall appoint a person to be known as the Independent Commissioner for Terrorist Suspects (the “Commissioner”) and such appointment shall be subject to the approval of the Lord Chief Justice, and shall be on such terms as to length of service and remuneration as the Secretary of State shall determine.

(2) The principal function of the Commissioner shall be to monitor the detention and treatment of terrorist suspects held under section 41 of and Schedule 8 to the Terrorism Act 2000 (c. 11) and in particular to give the judicial authority such independent assistance as it may require in deciding whether or not to extend the period of detention, and to perform such other related functions as the Secretary of State may determine.

(3) In order to fulfil his functions under this section, the Commissioner shall be entitled to visit Paddington Green Police Station, and any other place of detention where terrorist suspects are held, so as to ensure that the questioning of suspects is being carried out diligently and expeditiously, and in accordance with the provisions of Schedule 8 and PACE Code H.

(4) Such visits shall take place at the discretion of the Commissioner and may be unannounced.

(5) The custody officer shall inform the Commissioner within 24 hours of a terrorist suspect being detained.

(6) The police shall give the Commissioner such assistance as he may reasonably require so that he can fulfil his functions under this section.

(7) The Commissioner shall be entitled to interview terrorist suspects with their consent, and may require such interviews to take place in the absence of the police and he may also attend interviews, conducted by the police.

(8) The custody officer shall inform the Commissioner whenever the prosecution are to make an application for the extension of the period of detention and the Commissioner shall be entitled to be present at the hearing.

(9) The Commissioner shall make an annual report to Parliament as to the carrying out of his functions under this section.”

The purpose of the amendment is to require the Secretary of State to appoint an independent commissioner for terrorist suspects. The commissioner would have two main functions. First, he would be able to monitor the detention and treatment of suspects detained under Section 41 of the Terrorism Act 2000. Secondly, he would act as the eyes and ears of the judge when the prosecution apply for an extension of time from seven days to 14 days and, ultimately, to 28 days under the provisions of Schedule 8.

Eight months ago, in November 2008, I moved an almost identical amendment to the Counter-Terrorism Bill. That amendment was supported by the noble and learned Lord, Lord Mayhew, whom I am glad to see in his place, the noble Viscount, Lord Colville of Culross, the noble Lord, Lord Dear, the noble Baroness, Lady Manningham-Buller, and many others, including the two opposition Front Benches. At the end of the debate, the noble Lord, Lord West, said that at first he had been minded to resist the amendment, but that, having listened to the debate, he would accept the amendment in substance, but needed more time to look at the wording. This Bill seemed to present a good opportunity to bring back the amendment before the Committee.

I will remind the Committee of the benefits that will flow from the amendment, if it finds favour. I can do so briefly, because we went into it at some length last year. There are two main benefits. The first is that it will bring reassurance to members of the Muslim community—a point made very strongly on the previous occasion by the noble Baroness, Lady Falkner of Margravine. It comes about in this way. When terrorist suspects are arrested, often in circumstances of great publicity, and then released without charge after 28 days or whatever period it may be, it causes much resentment. It is resented, naturally, by the suspect himself. However, it is also resented by the suspect’s neighbours, and by the Muslim community at large. The presence of an independent commissioner at Paddington Green would do much to reassure the Muslim community, not just that the suspects are being well treated, as should surely go without saying, but also that the police are getting on with the investigation as quickly as they can. In other words, the community needs to be reassured that suspects are not being detained for a day longer than is absolutely necessary. The amendment that I am moving will be in accordance with recent government policy, which is to remove, so far as can be done, the causes of alienation among ethnic minorities. The policy sometimes goes under the name “Respect”. I may be wrong about that, but I hope that the Minister, when he replies, will say at least that this idea comes within the general scope of that important policy.

The second benefit flowing from the amendment is less obvious, but is equally important in the interests of justice. As the Committee knows, suspects are detained in the first instance for seven days. An application can then be made before a judge to extend the period to 14 and ultimately 28 days. As things stand, the judge has nothing to go on except what he is told by the prosecution. It is true that the suspect’s counsel may be present and can make submissions. However, neither the suspect himself nor his counsel will have access to the closed material; so counsel’s submissions on the point of whether there should be an extension will be based necessarily and to a large extent on guesswork.

The advantage of having a commissioner is that, unlike counsel, he will have seen all the closed material in relation to all the suspects who are being investigated. He will be in a much better position than counsel to assist the judge by expressing an independent view on whether, for example, the police are getting on with the investigation as quickly as they should; or, to take another example, on whether the case against some of the suspects is so weak that they ought to be released at once. Since the commissioner will be present at the hearing of the application for an extension, he will be able to express his concerns to the judge and can be questioned by the judge about them. Of course, the prosecution will be able, so far as it can, to answer the concerns.

I remember well, when we were asked to extend the detention period to 42 days, that a great deal was made of the fact that it would be a judge who made the decision on whether to extend the time. That was to be the great safeguard; but that safeguard is illusory unless the judge has heard both sides of the argument. That is the object of the amendment.

There are only two arguments the other way. The first is a fear on the part of the police that it will hamper their investigation to have the commissioner present at Paddington Green. I do not understand their concern. The commissioner will be present during interviews at Paddington Green as an observer—nothing more. He will not stop the police conducting the investigation in any way that they may think appropriate. He will not stop them asking any questions that they want to ask. I hope that the Minister will explain why the police are so concerned, if indeed they are. The fear that the presence of the commissioner will hamper their investigation reminds me greatly of the fears that used to be expressed when it was first suggested that interviews should be recorded. Now the recording of interviews is seen as the most natural thing in the world: indeed, the police positively welcome it. The role of the commissioner being present at interviews will come to be seen in the same way.

The second objection is on the ground of cost. It is said that the cost of a single commissioner at Paddington Green will be £50,000 a year. Is that not a small price to pay for ensuring that the judge gets all the help that he needs in making his important decision and for reassuring the Muslim community that suspects are not being held longer than is absolutely necessary? I beg to move.

As a former police commissioner, I support the amendment, but not without reservations. I see a number of practical problems relating to the disruption of the meticulously planned chronology of the questioning of terrorist suspects. However, I believe that, on balance, the greater good that may be achieved by the creation of the commissioner post far outweighs any potential problems. As the noble and learned Lord said in moving the amendment, the potential engendering of confidence in the wider community by means of these provisions is well worth while. I support the amendment.

I am a complete amateur in this matter. I have just one question to ask the noble and learned Lord, Lord Lloyd of Berwick. Does he foresee a possibility that an assiduous commissioner might disagree with Her Majesty’s Government on substantive points from time to time? If that were the case, would it not be better to give some security of tenure and describe the circumstances in which he might be required to relinquish his post?

I could certainly foresee the commissioner being appointed for, say, five years. I should have thought that that would give him sufficient security.

I assure the Minister who is about to reply that my support for this proposal has not diminished in any way since I expressed it when we went into all this last November. As regards the police objection that their investigations would be hampered if the commissioner was present in police stations, exactly that misgiving was expressed when I had some responsibility for Northern Ireland and I introduced a system, staffed in the first instance by Sir Louis Blom-Cooper QC, whereby a commissioner was present when the police questioned a suspect. In a very short time, Sir Louis Blom-Cooper secured the support of all concerned with this procedure, including the police. I very much endorse what was said in that regard by the noble and learned Lord, Lord Lloyd of Berwick, a few minutes ago.

There is a necessary but inherent weakness in the procedure for the extension of detention from seven to 14 and ultimately to 28 days. It is a necessary weakness but it can be addressed by having a commissioner present and informed in the way in which the noble and learned Lord has described. It is not easy for a judge to determine whether the case for an extension has been made, particularly where the defence counsel is not able to see the strength of a case against him. Judges in this rather unwelcome position need all the support that they can get. I believe that that is provided to a significant extent by the terms of the proposed new clause.

I intervene to support the amendment as a trustee of an English charitable organisation, Forward Thinking. Over the past four or five years it has worked, through Muslims, with Muslim communities in England to break down feelings of alienation and being in a ghetto that may, and do, exist. We have had some success. The amendment would prevent English Muslims from feeling that they were being attacked or vilified for supporting terrorism. Therefore, I am all in favour of it.

I, too, support the amendment. It is very important that not only the terrorist suspect but his family, children, friends and neighbours within the Muslim community are all reassured. This matter usually, but not necessarily, involves Muslims but could also affect Sikhs or other local communities. It is important to have the reassurance provided by the appointment of a commissioner. If any problem arises regarding how the commissioner should exercise his powers, I have no doubt that the noble and learned Lord, Lord Mayhew, would give advice on that. However, I should have thought that guidance could be provided to the commissioner on the appropriate way to carry out his duties. It is important that those who may be incorrectly suspected of terrorism, and are rightly picked up by the police in these dangerous days in which we live, should know that someone will be there to keep an eye on them.

This matter was debated at length on a previous occasion when the noble Lord, Lord West of Spithead, said that he would like to accept the substance of the amendment. On that occasion, my noble friend Lady Falkner of Margravine, who is present, said how important it was to restore confidence among ethnic minority communities. We support the amendment.

I, too, support the amendment put forward by the noble and learned Lord, Lord Lloyd. The Government are apparently worried about the proposal for an independent commissioner and are concerned that his presence would somehow cause delays in judicial hearings. They are perhaps worried that police investigations would be delayed because of the need to accommodate the commissioner at short notice. These arguments, which seem to rest on convenience and administrative efficiency, do not seem to me to be the whole story. As the noble and learned Lord, Lord Lloyd, pointed out, the presence of the commissioner could make the proceedings more efficient as well as having the advantage of reassuring minority communities, as he pointed out.

I go further: reassuring communities outside the legal process, and the families of those involved, that the process is fair and just is a form of efficiency. What are you trying to do at the end of the day? We should be trying to deliver justice and convince the outside world that justice is being delivered. It is inefficient not to go the necessary short distance to increase the possibility of being able to do that. I am disappointed that it appears that this idea will not be included in the legislation, as there is no government amendment.

We ought also to bear in mind the fact that the Joint Committee on Human Rights has consistently concluded that the current arrangements for judicial authorisation of extended pre-charge detention do not satisfy the requirements of either habeas corpus or Article 5 of the European Convention on Human Rights. This amendment would help in that regard. The committee has found that the hearing of an application for further detention is not fully adversarial and that judicial oversight is inadequate as a result of the narrowness of the questions that the court is required to answer in making its decision. The establishment of a commissioner would help in all those respects.

The Government may have alternative ideas. If they involve the statutory reviewer of terrorism legislation taking on a further duty in this respect, I should point out that the noble Lord, Lord Carlile, is already a very busy man. It would be difficult for him to take on the full role that is required to provide the reassurance that a special commissioner would be able to offer.

I very much hope that the Government will think yet again about this. If the way in which we conduct these trials continues to be criticised, it seems to me that not only is justice not delivered but we provide grounds for potential appeal. Above all, we ought to do our very best to ensure that the proceedings that we conduct not only deliver justice but are seen to deliver justice to all those involved, particularly minority communities.

Before I respond to the amendment, I pass on the apologies of my noble friend Lord West of Spithead, who—partly, I suspect, because of the speedy passage of business in the past hour or so—is not able to be present due to government commitments. He very much wanted to take part in this debate. I hope that the Committee accepts his regret that he is not able to be present.

Members have already recalled the depth of the debate that we had on a previous occasion, which is undoubtedly why the contributions of the noble and learned Lord and other noble Lords, reiterating positions previously taken, have been modest in length and have not repeated the argument to which my noble friend Lord West of Spithead sought to respond. As the noble and learned Lord, Lord Lloyd, has pointed out, my noble friend gave a commitment to establish such a role at Third Reading on the Counter-Terrorism Bill on 17 November. We have heard again, very much in shorthand form, many arguments from those who favour such a position. Although the case that the noble and learned Lord and others is one in which they believe strongly—on the occasion that we last considered it, it brought forward a lot of sympathy across the House—I am afraid that the Government cannot accept the amendment.

Since the debate last November, we have consulted further with the police, prosecutors and the Courts Service, in Scotland and Northern Ireland as well as in England and Wales. As a result of those consultations, we now believe that an independent commissioner as envisaged by the amendment would have a detrimental effect on the conduct of terrorist investigations.

Two main arguments have been made for establishing an independent commissioner. The first is that judges who consider extension applications do so on the basis of limited information and that the police do not conduct investigations quickly enough. That is why Amendment 187 provides for an independent commissioner to advise a judge at extension hearings on whether continued detention is justified. It is worth pointing out, however, that judges are already required by legislation to ensure that suspects are not detained for longer than necessary and that investigations are carried out “diligently and expeditiously”. The application by police or the CPS for extended detention is a rigorous process; it is not a rubber-stamping job. Indeed, an independent report of the inspection of the counterterrorism division of the Crown Prosecution Service in April this year found that, in all pre-charge detention cases that were reviewed, extended detention had been applied only where it was properly justified.

The second argument for an independent commissioner is that the commissioner would ensure that suspects were not ill treated and thus provide communities with reassurance. Many of your Lordships will know that PACE code H already sets out the detailed conditions for detention of suspects. It includes access to medical assistance, legal advice, visits from friends and family, provision for religious observance, exercise, meals and reading materials. All interviews with suspects are already recorded. Again, it is worth noting that there have been no complaints from suspects that PACE code H has not been adhered to or that the conditions of their detention have not been satisfactory.

Against the arguments in favour of an independent commissioner for suspects, we also have to look at the views of those who deal with the process on the ground—the police, the prosecutors and those who deal with the application for detention in our courts. As I said, we have consulted further all these organisations. Their strongly held view is that allowing a commissioner a role in extension hearings would delay those hearings. The question was raised: why was there police concern? One aspect of it is that there is a belief that suspects will insist on the commissioner being present, therefore delaying interrogations, briefings, conversations—call it what you will—while the commissioner is found, and that they will insist on interviews with the commissioner for reasons that will delay prosecution.

The period between arrest and charging is one of considerable pressure and there are concerns that unannounced visits from the commissioner and the need to provide him or her with papers again would delay investigations, achieving the exact opposite of what is intended by the proposal. It is also possible that suspects could use the role of the commissioner to manipulate and control the time available for an investigation. As I said, the police were concerned about people requesting private interviews or insisting on the presence of the commissioner in police interviews. There are clear and strong operational reasons for not establishing an independent commissioner of the sort envisaged by the amendment.

There is also a case for saying that such a commissioner is unnecessary. Suspects’ interests are already looked after by independent reviews in three different bodies. It might help if I briefly say what those are. First, the Police Reform Act 2002 already provides for independent custody visiting of persons held in police detention, including those detained under counterterrorism legislation. Custody visitors can make random, unannounced visits to suspects and can discuss with them their treatment and conditions of detention. They may examine custody records and inspect detention facilities. A report is completed after each visit. Secondly, in 2008, Her Majesty’s Inspector of Prisons and Her Majesty’s Inspectorate of Constabulary began jointly to inspect prison custody suites. They have unfettered and unannounced access to such facilities and can interview detainees. Part of their role is to ensure adherence to PACE codes and the appropriateness of treatment and conditions in which suspects are held. Thirdly, the noble Lord, Lord Carlile, already has a statutory role in relation to the operation of the Terrorism Act 2000. That includes visits to custody suites and reporting annually on the operation of pre-charge detention. Therefore, there are a number of very strong independent safeguards to ensure that suspects are properly detained and their welfare is looked after.

Finally, I point out that the role envisaged by this amendment would be too much for one person. The noble and learned Lord referred to Paddington Green as the centre where this would take place. However, over a nine-month period in Northern Ireland, the independent commissioner for detained terrorist suspects conducted 61 visits and interviewed detainees on 122 occasions. That involved only one place of detention. We therefore assess that at least five commissioners would be required to cover the whole United Kingdom, particularly as suspects are increasingly likely to be detained outside London. Assuming that each commissioner would cost in the region of £50,000 per annum, we estimate that the cost would be a minimum of £250,000 a year, not the £50,000 figure that the noble and learned Lord refers to. For these reasons, I unfortunately cannot accept this amendment.

That said, there are a number of things that we can do to provide further reassurance on the detention of terrorist suspects. First, we can look at extending the role of independent custody visitors. In particular, the role could be extended to provide an annual report to the Home Office specifically in relation to custody visits that involve the detention of terrorist suspects. It may also be possible to extend their role so that they can view recordings of any interviews with a suspect, as is now the case in Northern Ireland. Additional training could also be given specifically on the detention of terrorist suspects before charge. Secondly, we could ensure that the noble Lord, Lord Carlile, was informed of all arrests under Section 41 of the Terrorism Act 2000. He would then be able to visit any detention facility where suspects were held and to view interview tapes. He can already attend any extension hearings that he may choose and he can reflect the outcome in his annual report on the operation of terrorist legislation. Given that, I therefore ask the noble and learned Lord to withdraw his amendment. If that is not possible, I am afraid that the Government have no choice but to resist it.

As always, I am grateful to the noble Lord for what he has said and for offering certain alternatives that came to mind. However, I have not been persuaded that the amendment will not bring the benefits that I outlined and which other noble Lords have supported. Therefore, I wish to test the opinion of the Committee.

House resumed. Committee to begin again not before 8.40 pm.