Coroners and Justice Bill

Public Bill Committee, 5 March 2009.

Clause 70

Frank Cook (Labour, Stockton North)

I remind the Committee that with this we are discussing the following: amendment 378, in clause 70, page 42, line 2, at end insert—

‘(9) Where an application either for permission to make an application for a witness anonymity order or for a witness anonymity order is made to a coroner by a party appearing at an inquest that party—

(a) must (unless the coroner directs otherwise) inform the coroner of the identity of the witness, but

(b) is not required to disclose in connection with the application—

(i) the identity of the witness, or

(ii) any information that may enable the witness to be identified,

to any other party to the proceedings or his or her legal representatives.’.

Amendment 380, in clause 70, page 42, line 2, at end insert—

‘(9) The provisions set out in subsections (4) to (8) inclusive apply as appropriate to applications to a coroner as they do to applications in criminal cases.’.

Amendment 381, in clause 71, page 42, line 5, after ‘proceedings’, insert ‘or an inquest’.

Amendment 383, in clause 71, page 42, line 15, after ‘trial’, insert

‘or the inquest being conducted in a manner consistent with the interests of the parties before it being treated fairly.’.

Amendment 384, in clause 72, page 42, line 33, after ‘proceedings’, insert

‘or a party appearing at an inquest’.

Amendment 385, in clause 72, page 42, line 39, after ‘defendant’, insert

‘or resolving the issues in the inquest’.

Amendment 386, in clause 72, page 43, line 1, after ‘case’, insert ‘or inquest’.

Amendment 387, in clause 72, page 43, line 4, after ‘defendant’, insert

‘, or the witness and any party appearing at the inquest or any associates of any party appearing at the inquest’.

Amendment 388, in clause 72, page 43, line 9, after ‘indictment’, insert ‘or at an inquest’.

Amendment 389, in clause 73, page 43, line 12, after second ‘judge’, insert ‘or coroner’.

Amendment 390, in clause 73, page 43, line 14, after ‘defendant’, insert

‘or a party appearing at the inquest’.

Amendment 391, in clause 74, page 43, line 18, after ‘proceedings’, insert ‘or inquest’.

Amendment 392, in clause 74, page 43, line 31, after second ‘proceedings’, insert ‘or party appearing at the inquest’.

Amendment 393, in clause 75, page 43, line 41, after first ‘proceedings’, insert ‘or at an inquest’.

Amendment 394, in clause 75, page 44, line 18, after ‘defendant’, insert ‘or a party appearing’.

Amendment 395, in clause 76, page 44, line 28, after second ‘proceedings”)’, insert ‘or an inquest’.

Amendment 396, in clause 76, page 44, line 33, at end insert ‘or

(c) the verdict or any finding of fact or law by the coroner or inquest jury, as the case may be, is reviewed by the appeal court.’.

Amendment 397, in clause 76, page 44, line 41, after ‘proceedings’, insert ‘or appearing at the inquest’.

Amendment 398, in clause 76, page 45, line 3, after ‘proceedings’, insert

‘or a party appearing at the inquest’.

Amendment 374, in clause 80, page 45, line 34, after ‘court,’, insert ‘a coroner’s court,’.

Amendment 376, in clause 80, page 46, line 1, after ‘court,’, insert ‘a coroner’s court,’.

Maria Eagle (Labour, Liverpool, Garston)

Good afternoon, Mr Cook, and members of the Committee. At our previous sitting, I was just coming to the end of my remarks to persuade the Committee that it is not necessary, as the amendments seek, to extend the provisions for witness anonymity to the coronial system. I had made most of my arguments, and it is not necessary to repeat them.

Those members of the Committee involved in the Criminal Evidence (Witness Anonymity) Act 2008 will recall that the legislation was brought forward to deal with a problem arising from the House of Lords judgment in the case of Davis. It was not enacted, because we sought to replace common-law rules on witness anonymity with statutory rules. Our hand was made to move, as a consequence of that judgment. That did not relate to anything other than common law, and it was clear that the coronial system was perfectly able to cope as it currently works. On that basis, we do not accept amendments that would extend the breach of the statutory provisions to the coronial system. I hope that my explanation has satisfied those who spoke in the debate and that the hon. and learned Gentleman will be able to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I will withdraw my amendment, but I want to make some closing remarks. We all know what the House of Lords decided in the case of Davis, and it is fair to say that, if we follow the judgments from the first instance decision through to the House of Lords, no central reference was made to the coroners’ courts system. The decision concerned a double shooting that involved a defendant who had fled abroad and who was brought back to the United Kingdom and tried. The trial judge made an order that the House of Lords decided was outside the ambit of the common law, and that the common law could no longer be extended in the way in which the judge had sought.

The House of Lords said that Parliament should make up its mind how best to deal with the matter, and we dealt with it in an emergency sitting last July. At least on the evidence that we have received so far, that system has worked reasonably well, despite the many concerns that others who share my views about anonymity and I expressed at the time. However, nowhere were similar proceedings or procedures for coronial courts excluded, either expressly or by implication. Despite what the Minister has said, I disagree with her reasoning, but I shall not push the matter further. I will invite my noble Friends in another place to consider the matter at greater leisure than we have at the moment. I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment 196, in clause 70, page 41, line 16, after second ‘court’, insert ‘in writing’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss amendment 202, in clause 70, page 41, line 23, after ‘court’, insert ‘in writing’.

Edward Garnier (Conservative, Harborough)

I have two short points, which need not detain the Committee too long. Clause 70 deals with applications for witness anonymity orders. Subsection (2) includes a requirement that, if the prosecutor is making the application, he should inform the court of the identity of the witness. Subsection (3) deals with the mirror procedure for a defendant’s application; they, too, must inform the court, and the prosecutor, of the identity of the witness. On subsection (2), we are simply suggesting that the information from the prosecutor to the court should be in writing. A defendant’s application, too, must be made in writing to the court—I have deliberately not suggested that it should be in writing to the prosecutor.

I say that from personal experience. Far too often in the Crown court, applications seem to bounce up and down without anyone really being prepared for them, partly because people do not communicate with each other sufficiently—the Crown Prosecution Service does not talk to the police, the police do not talk to the CPS, no one talks to witnesses and everyone turns up in court, almost by chance, on the same day to deal with the same issues, although sometimes they do not. The amendments are a plea for the Government to urge those who administer the prosecution system to talk to each other through a system that does not lead to confusion by communicating in writing.

It might be suggested that my proposal is too inflexible—I appreciate that sometimes applications have to be made quickly or in unforeseen circumstances. I am not pressing the Committee to vote on the issue; I am simply urging the Government to encourage those engaged in such activity to speak to each other, to communicate and to prevent unnecessary and foreseeable delays in the administration of particular trials.

Tim Boswell (Conservative, Daventry)

Briefly, I endorse the comments of my hon. and learned Friend, who has much more court experience than almost anyone in the Room—I do not claim to have that.

I am interested in the audit trail of such proceedings. If nothing is said in writing, the basis of what is being done is not at all clear. I presume it would be possible to go back into the CPS file and see what the deliberation was, and it is important that the court should have some tidiness in the matter. I understand the need for urgency and that circumstances might arise at short notice, but the question arising is whether, if not in writing, there should be some record, such as an e-mail, that would be as acceptable as writing. However, a hasty phone call, in which details such as the first name are mistranscribed, is not sufficient.

Maria Eagle (Labour, Liverpool, Garston)

The amendments would require the prosecutor or defence to inform the court of the witness’s true identity in writing when making an application for witness anonymity. I understand the points of the hon. and learned Gentleman and of the hon. Member for Daventry, but, when the prosecutor or defence is making a witness anonymity application, amendments 196 and 202 go too far, because it is not normal or usual for a statute to lay down precise procedures that the court should adopt. Clause 72 already makes it clear that the court must be informed of the witness’s identity unless, in the case of a prosecutor, the court directs otherwise, but the usual way of making sure that the procedures used are correct is for them to be set out either in a judicial practice direction or, more usually, in the rules of the court.

The Committee will recall that the provision was in emergency legislation in its first incarnation, and a judicial practice direction was issued, which has been governing how the courts do what the Act gives them power to do. That is how it has been done since the passage of the emergency legislation. The court determines the application in accordance with the requirements and tests set out.

The criminal procedure rule committee chaired by the Lord Chief Justice is considering draft rules on witness anonymity applications, which are intended to replace the practice directive once the witness anonymity provisions are re-enacted—provided, of course, that they are. The rules will take account of the experience of practitioners when operating the current procedures, and I am sure that the committee will consider such matters as those raised by the hon. and learned Gentleman and any that arise during parliamentary debate. On that basis, I hope that he agrees that such detailed matters of procedure are best left, and can be safely left, to the criminal procedure rule committee, which is the appropriate place for them. Under those circumstances, I hope that he will be happy to withdraw his amendment.

Edward Garnier (Conservative, Harborough)

Of course I will. I just want to reassure my hon. Friend the Member for Daventry that I was after some communication. It does not matter whether it happens by fax, letter or e-mail, because there is nothing more frustrating than trying to keep a trial moving when it breaks down due to some administrative Horlicks. If the procedure rule committee can deal with that and take it on board, all well and good, but it is no good our passing all these wonderful pieces of legislation if, in their implementation and administration, they break down. I beg to ask leave to withdraw the amendment.

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment 100, in clause 70, page 41, line 44, at end insert—

‘(7A) On any application for a witness anonymity order, the court must consider whether the appointment of special counsel to assist the court in deciding whether to grant the order would contribute significantly to the fairness of the proceedings; and if the court decides not to appoint special counsel, the court must give reasons.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss amendment 379, in clause 70, page 42, line 2, at end insert—

‘(9) The court may in its discretion appoint counsel to assist it when considering an application for permission to make an application for a witness anonymity order or an application for a witness anonymity order.’.

David Howarth (Liberal Democrat, Cambridge)

We come to some unfinished business on the debate about the Criminal Evidence (Witness Anonymity) Act 2008, the emergency legislation to which the Minister has referred. One notable omission from the 2008 Act was any explicit provision for the appointment of independent or special counsel to assist the court in deciding whether there should be an anonymity order. The template for last year’s legislation was, roughly, an Act from New Zealand, the Evidence Act 2006, which allowed and, indeed, encouraged the court to appoint independent counsel to assist it in coming to its decision. In New Zealand, the independent counsel is appointed, undertakes investigations and reports to the court, about both the necessity for anonymity and the credibility of the witness.

Last year, many of us thought that we should make similar provision in this country for two reasons—for the purposes of the defence, normally, but for the purposes of the prosecution, too. From the point of view of the defence, there will be cases in which there is doubt about whether the credibility of the witness really is an issue. The prosecution might think that there is no particular problem with the witness’s credibility, because, in the prosecution’s view, the witness was a bystander who simply saw an event. The question is whether they recall accurately what they saw, as opposed to being a witness who might be hostile to the defendant because of some other relationship.

Cases will occur when it is not clear in advance whether the credibility of the witness is an issue. The hon. and learned Member for Medway (Mr. Marshall-Andrews) made that point vividly in our debates on the Floor of the House last year. In such cases, independent counsel should be able to carry out an investigation on behalf of the court, so that they know the nature of the case before deciding whether to grant an order. The independent counsel would not decide the matter, but they would be able to investigate in a way that would not be possible if the case were to proceed simply on the basis of what the prosecution said. Obviously, the defence cannot play an active role, which they can only do if they know who the witness is.

On the other side, independent counsel could be a safeguard for the prosecution in cases when a court is uncertain whether it should grant an order and does not have enough evidence before it to do so. In such cases, independent counsel could come in and help the court to decide in favour of an order. There are some cases—not all—in which independent counsel would make the process fairer for both sides.

Last year, the Government resisted all attempts to put a power to appoint independent counsel in statute. Ministers argued that independent counsel were appointed in the Davis case, which the hon. and learned Member for Harborough has mentioned, but made no difference to the outcome or fairness of the proceedings. As we have discovered, the trouble with that argument is that independent counsel were appointed only at Court of Appeal stage—there was no independent counsel at the original trial stage—so the example was not relevant or important.

The debate continued vociferously, especially in the House of Lords and, in the end, the Secretary of State for Justice undertook to give “active and urgent consideration” to providing an explicit power to appoint independent counsel before publishing the permanent replacement Bill, which we are discussing. At that time, Ministers also claimed that the courts already had an inherent power to appoint special counsel, but that turned out to be a power to ask the Attorney-General to do so, which was slightly less direct than a court appointing counsel. Nevertheless, Ministers undertook to remind the judges of the possibility, which they did.

The Attorney-General has issued guidelines on the prosecutor’s role in applications for witness anonymity orders under the Criminal Evidence (Witness Anonymity) Act 2008 that refer to the possibility of independent counsel. However, the guidelines are quite disappointing. They maintain the line that the appointment of special counsel should be exceptional. I am not sure whether “exceptional” is the right test. The test is taken from public interest immunity law, which involves a very different set of circumstances. In PII cases, witness credibility is less important, and it is rarely an issue at all. Frustratingly, the guidelines also assume that, in PII cases, independent counsel somehow represents the defendant. That was never the intention of those of us who proposed independent counsel. The Government claimed that there was some confusion in the proposals, but there never was. We always wanted to follow the New Zealand proposal that the independent counsel should assist the court. That is similar to the situation in a coroner’s court, which we have spent a long time discussing. The counsel is to the court rather than to the defendant, and amendment 100 addresses that problem.

There is a question whether there should be a test for the appointment of special counsel. I originally took the view that there should not be, and that such appointments should be completely at the discretion of the court—there is a Conservative amendment to that effect. However, in the spirit of compromise, I am offering a slightly more restricted test, namely that when an order is applied for,

“the court must consider whether the appointment of special counsel to assist the court in deciding whether to grant the order would contribute significantly to the fairness of the proceedings”.

It has to consider whether independent counsel would

“contribute significantly to the fairness of the proceedings.”

Its only duty is to consider that question and then to give reasons, if it thinks that it is not a case where counsel should be appointed.

That is a compromise proposal involving a more restrictive set of circumstances. The words are deliberately taken from the judgment of Lord Chief Justice Judge in the Mayers Court of Appeal case, which is, I believe, the only Court of Appeal case that has considered the provisions of the 2008 Act in detail. He said that there are cases where independent counsel would contribute significantly to the fairness of proceedings, and that there other cases where the appointment of independent counsel would not contribute in any important way.

I make no apologies for returning to the issue. I ask the Government to say why they have not taken the issue forward as a result of their deliberations and offer them a third way forward.

Edward Garnier (Conservative, Harborough)

The hon. Gentleman has no need to apologise—that is a perfectly legitimate argument. There is an overhanging controversy from last July which needs to be resolved, and he and I are entirely right to press the matter.

There is a semantic difference between his amendment 100 and amendment 379, which was tabled by me and my hon. Friend the Member for North-West Norfolk. As the hon. Gentleman has correctly pointed out, we expressly used the word “discretion”:

“The court may in its discretion appoint counsel to assist it when considering an application for permission to make an application for a witness anonymity order or an application for a witness anonymity order.”

That aside, we are broadly pushing at the same door and we want the Government to open it.

As the hon. Gentleman also said, there is only one Court of Appeal case so far where the 2008 legislation has been considered. However, similar issues in relation to the appointment, or otherwise, of special advocates have been considered by the House of Lords, although not in relation to anonymity orders, because the statutory regime did not exist until last summer. There is some guidance, however, that is worth considering when looking at the question of the appointment of special advocates in criminal cases.

That learning is not novel to the editors of “Archbold”, but it is novel to me, and it may be entirely novel to others who have not studied the question quite so closely as the editors of “Archbold”. In the case of Regina v. H, a House of Lords decision of 2004, which concerned article 6 of the European convention on human rights in relation to public interest immunity and the absence of someone to speak for the defendant, there is some helpful guidance to be found.

The appointment of a special advocate in appropriate cases may be necessary to ensure that the contentions of the prosecution are attested and that the interests of the defendant are protected. In cases of exceptional difficulty, the court may require the appointment of special counsel to ensure correct answers to questions, such as:

“What is the material which the prosecution seek to withhold? This must be considered by the court in detail.”

Or

“Is the material such as may weaken the prosecution case or strengthen that of the defence? If No, disclosure should not be ordered. If Yes, full disclosure should”,

subject to other matters, “be ordered”.

I appreciate that we are dealing with public interest immunity applications, but the hiding or revealing of certain information at the hands of the prosecution is a hugely important question that the court may, in more difficult cases, need assistance with. They will not get it from the defendant’s counsel, because they do not know, and the prosecuting counsel will have a different interest, so independent counsel acting for the court as opposed to the parties can sometimes be of assistance.

The judgment in R v. H said that to contend on the basis of some earlier cases

“that it is automatically incompatible with Article 6...for a judge to rule on a claim to public interest immunity in the absence of adversarial argument on behalf of the accused where the material which the prosecution is seeking to withhold is, or may be, relevant to a disputed issue of fact which the judge has to decide in order to rule on an application which will effectively determine the outcome of the proceedings, was to seek to place the trial judge in a straitjacket; the consistent practice of the European Court, in this and other fields, has been to declare principles, and apply those principles on a case-by-case basis according to the particular facts of the case before it, and to avoid laying down rigid or inflexible rules.”

That is why we built in to our amendment an express reference to discretion.

“The overriding requirement was that the guiding principles should be respected and observed, in the infinitely diverse situations with which trial judges have to deal, in all of which the touchstone was to ascertain what justice requires in the circumstances of the particular case. Cases would arise in which the appointment of an approved advocate as special counsel was necessary, but such an appointment should be exceptional, never automatic, and not ordered unless the judge is satisfied that no other courts will adequately meet the overriding requirement of fairness to the defendant. Where the disclosure test...is faithfully applied, the occasions on which a judge will be obliged to recuse himself because he has been privately shown material damning to the defendant will be rare.”

The editors of “Archbold”, in dealing with the case and the speeches of H, then go into more detail in relation to PII, but the overall principles—a need to ensure fairness and that prosecution propositions are properly tested, particularly where they cannot be tested by defence counsel, and a need to protect the interests of the defendant and to ensure the overall interests of justice—are just as key in anonymity applications under these clauses as they are in PII matters. It seems, therefore—I hope that I have not misinterpreted what the hon. Member for Cambridge has said—that this is not just an interesting academic discussion. It is a matter of real procedural practicality, and it is necessary to ensure that justice is done in what I fully accept are very difficult cases.

Davis threw up a very difficult challenge to Parliament. I think that we met it reasonably well, but we missed out on the special advocate point, which I think needs to be resolved. If the Minister can persuade me that there is sufficient discretion within the system already, under the inherent jurisdiction, to allow the appointment of special advocates, I would be interested to hear it.

Greater comfort would be given to those of us who share the arguments that have been put forward so far if something expressly appeared in the Bill, because it is something that the public need to be assured about, criminal law practitioners need to be clear about and judges would welcome guidance on. Yes, judges have guidance from the higher courts, but if Parliament expressly answered the question put to it by the Law Lords in the case of Davis—that is to say, it is up to Parliament to sort it out—the whole criminal justice system would be advantaged.

Maria Eagle (Labour, Liverpool, Garston)

I am happy to try to deal with the points raised by hon. Members. The matter was discussed at some length—to the extent that “length” is a word that can be applied to the proceedings on the emergency legislation—last year. In relative terms, it was discussed at some length and was clearly a point at issue in both the Commons and in the other place.

The hon. and learned Gentleman has quoted extensively from “Archbold”, which has taken quite a time to make its debut in Committee. However, the matter will not cause a dispute, because the current practice direction that was issued following the passage of the emergency legislation last year, which is the basis on which the court must currently deal with the orders, quotes from R and H and uses the very wording of the case in “Archbold” that he has referred to.

Tim Boswell (Conservative, Daventry)

Will the Minister tell the Committee how many cases have arisen since that judgment?

Maria Eagle (Labour, Liverpool, Garston)

There have been two applications to the Attorney-General for special counsel to assist with an anonymity application. They have both been granted.

Following the implementation of the emergency legislation, the practice direction set out by the then president of the Queen’s bench division quoted some of the same words that the hon. and learned Gentleman has just quoted from R and H. The practice direction said that the court may ask the Attorney-General to appoint special counsel to assist, but that it must be kept in mind that such an appointment will always be exceptional, never automatic, and a course of last and never first resort. In addition, such an appointment should not be ordered unless and until the trial judge is satisfied. No other course will adequately meet the overriding requirement of fairness to the defendant.

There has also been some reference to R v. Mayers, which to my knowledge is the only case—there were a number of cases attached to it—within which these matters have been considered by the Court of Appeal since the passage of the emergency legislation last year. That case sets out an authoritative summary of the law relating to special counsel and the hon. Member for Cambridge made some reference to it. Nothing in the legislation says that the judgment in R v.Mayers is the lead judgment, and we can see no justification for any blanket rules about special counsel, one way or the other. Sometimes special counsel might contribute significantly to the fairness of the process, and sometimes not. Furthermore, the judgment went on to say that if a 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.

However, the services of special counsel may 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 obligation to the prosecution in the context of a witness anonymity application goes much further than the ordinary duties of disclosure. On that basis, the court was saying that the current arrangements are about right; it was not saying that there needs to be a provision that enables—and in the case of amendment 100, requires—a court to consider whether special counsel is appropriate in every single case.

During the passage of the legislation, my right hon. Friend the Justice Secretary clearly undertook to consider this matter in detail. We have done so. On 3 December, my right hon. Friend wrote a letter to Front Benchers. I hope that the hon. Member for Cambridge received that letter, because he did not refer to it in his remarks. The letter set out our reasons for deciding not to include the measure. Having given the matter consideration, we do not agree with the suggestion in the amendments that provision for special counsel should be put in the Bill in respect of every application—or that it should, at least, be considered in respect of every application. We believe that the current arrangements appear to be working well. If special counsel has been requested of the Attorney-General, those requests have been granted.

Amendment 100 tabled by the hon. Member for Cambridge would require a court, before determining all witness anonymity applications, to consider whether the appointment of special counsel would contribute significantly to the fairness of proceedings and if it decides not to appoint special counsel it would be required to give its reasons. Conservative amendment 379 provides, more simply, for the court to appoint special counsel at its discretion. There are problems with both amendments. Courts may already ask the Attorney-General, if they feel that it would be helpful in the circumstances, and there does not seem to be any problem with that. So far, where a special counsel has been requested that request has been granted.

Tim Boswell (Conservative, Daventry)

Will the Minister assure us that that will not give rise to any delay either?

Maria Eagle (Labour, Liverpool, Garston)

No, I am not aware that it does. I am certain that such a request would be handled swiftly by the Attorney-General’s office.

David Howarth (Liberal Democrat, Cambridge)

One possible problem has already arisen during our debate. The test put forward in Mayers, which is the test contained in amendment 100, is arguably different from the one in R v. H., because the latter case talks about “exceptional” and is generally talking about some advantages and disadvantages, whereas Mayers contains a more specific test about significant contribution to fairness. Will the Minister say on record, for future reference, that she does not intend, by re-enacting these provisions, to displace what the Court of Appeal said in Mayers?

Maria Eagle (Labour, Liverpool, Garston)

I have no intention of displacing what the Court of Appeal said in Mayers by re-enacting these provisions. I hope that I have convinced both hon. Gentlemen that the current arrangements work and that if a judge in a particular instance feels that the circumstances are such that special counsel would assist and would help to do justice, they can request that from the Attorney-General, who will swiftly deal with that request, as we have seen so far, in the affirmative. It would not be helpful to put more prescriptive requirements in this regard into the Bill.

On that basis, I hope that the hon. Member for Cambridge is content and will ask leave to withdraw the amendment.

David Howarth (Liberal Democrat, Cambridge)

I am glad that the Minister was able to say that she does not intend, by what is happening today, that the substantive test advanced by the Court of Appeal in Mayers should in any way be altered. That means that the only difference between us is about procedure, not the substance of the law.

Amendment 100 tries to express in statutory form the test put forward by the Lord Chief Justice in Mayers. Over and above that it would add a procedural element, in stage 1, where the court is required to think about the test and to say why it is has come to a decision not to go for special counsel in stage 2, if that is what it does.

Given that the Minister and I are not apart on the substance of the law and are only divided by a procedural issue—although I reserve the right to come back to the amendment at another stage or to ask my noble Friends in the other place to think about the matter—I beg to ask leave to withdraw the amendment.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss new clause 37—Prosecution not to disclose identity of witness to other defendants—

‘Notwithstanding anything in the Criminal Proceedings and Investigations Act 1996 or any other rule of law about disclosure of material by a prosecutor to the defence, where an order is made following an application under section 70(3) in a case in which there is more than one defendant, the prosecutor shall not disclose to the other defendants the identity of the witness covered by the order or any information that might enable the witness to be identified.’.

David Howarth (Liberal Democrat, Cambridge)

The new clause, which is in my name and that of my hon. Friend the Member for Cardiff, Central, relates to a technical matter and refers back to another discussion that occurred during the short debates on the 2008 Act. It starts with the issue of the inequality between a prosecutor applying for an anonymity order for one of the prosecution’s witnesses and the defence applying for an anonymity order on behalf of one of the defence witnesses. The inequality, which was created by the 2008 Act, is still present in clause 70. When the prosecutor applies for an order, they must inform the court, but no one else, of the identity of the proposed anonymous witness. On the other hand, when the defence applies for such an order for a defence witness, they must inform not just the court but the prosecutor of the identity of the witness.

I do not want to go through the debate that we had last time. Arguments that did not stand up were made for the inequality, but one argument in its favour seemed to have at least some merit. The right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) put forward the justification that in cases involving multiple defendants, the prosecution has a duty to disclose relevant matters if information comes to their attention that would tend to exonerate the other defendants. Without knowing the identity of the anonymous witness, the prosecution would not be in a position to fulfil that duty.

The problem with that argument, however, is that it does not cover all the circumstances that might arise under the orders. Clause 70 says that the defence does not have to disclose the identity of its anonymous witness directly to the other defendants in a multiple-defendant case. The reason is quite clear. Often, in multiple-defendant cases, the problem of witness intimidation is much more likely to come from the associates of the other defendants than it is from the prosecution or the police. That is the central point.

Clause 70, as it stands, attempts to keep the identity of the anonymous witness away from the other defendants in the normal course of events, but it does not prevent that identity from getting to the other defendants via the prosecution and its obligation to disclose that identity under the normal rules of disclosure in the Criminal Proceedings and Investigations Act 1996. The question, then, is how the clause’s policy, which is that the identity of the anonymous witness should not go to the other defendants, fits with the policy of the 1996 Act, which favours disclosure. The Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston said previously that it was possible under the 1996 Act for the prosecution to apply for an exemption, on the grounds of public interest, in relation to disclosing the identity of the anonymous witness. However, the trouble with that is that it is only a power to apply.

Tim Boswell (Conservative, Daventry)

Does the hon. Gentleman not agree that there is also some distinction between the public interest on the one hand and the defendant’s interest on the other, which is what is supposed to be being addressed?

David Howarth (Liberal Democrat, Cambridge)

Yes, that is a point. The decision whether to allow the information to be withheld might take both into account in different ways. There is only a power to apply, and the application might be refused. What was said previously is some comfort in that sort of case, but it does not quite work: it does not prevent the identity of the anonymous witness from getting to the other defendants via the prosecution. In such cases, the new clause is simple designed to prevent the identity of the anonymous witness reaching the other defendants through an indirect route. The new clause is fully in line with the policy of clause 70, and it is a loophole that I hoped that the Government had found a way of filling—but unfortunately, at the current stage, they have not. I admit that my way of grasping the new clause may not be perfect, but there is a problem that must be solved.

Maria Eagle (Labour, Liverpool, Garston)

I am grateful to the hon. Gentleman for tabling the new clause. The fact that I cannot accept it—for reasons that I will explain—gives me an opportunity to set out our views. It is an important technical issue, and I assure him that since he raised it, we have not been twiddling our thumbs and not bothering to think about it, even though we have not tabled any amendments to the Bill.

As the Committee will be aware, the Criminal Procedure and Investigations Act 1996 requires the prosecutor to disclose to defendants, including every defendant in a multi-handed case, any material that might reasonably be considered capable of undermining the prosecution or assisting the defence. In principle, therefore, the identity of a witness can be disclosed under those rules on occasion in the same way as any other material, depending on the circumstances of the case. The issue that the new clause invites us to address is the extent to which the anonymity order trumps the CPIA disclosure duty—that is a crude way of putting it, but I think that that is issue that the hon. Gentleman raised.

The 2008 Act did not explicitly attempt to combine the anonymity and disclosure laws—it stands alongside the CPIA in the same way in which the common law anonymity rules did before that legislation. The Bill does the same, but not because we have not been thinking about the issue since. As a matter of practice, the prosecutor, in addition to making an application for an anonymity order—I said this last time—may sometimes also decide to make an application to the court to be allowed not to disclose the witness’s identity to one or more defendants on public interest immunity grounds, which involves the multi-handed cases that the hon. Gentleman has mentioned. As I explained to him when he raised the subject in the House, it does not seem sensible to have two different processes trying to cover the same piece of information and have it kept quiet using two different procedures. We have, however, since the 2008 legislation was enacted, looked carefully at the relationship between the anonymity legislation and the CPIA.

The strict conditions for making an anonymity order will encompass the criteria that the court applies before ordering a non-disclosure of prosecution material on the grounds of public interest immunity. Under those circumstances, having two applications does not make sense and will waste the time of the court and the resources of the prosecution and the defence. Our policy is to see that there is no need for unnecessary duplication, and we consider that both the 2008 Act and the Bill achieve that.

Measures directed as part of a witness anonymity order, which provide for the non-disclosure or redaction from materials of identifying details of a witness, will operate to qualify a duty that would otherwise operate under the CPIA. That does not mean that we completely disregard the rules under the CPIA in respect of other kinds of material; we do so only to the extent that the court, on the witness anonymity order application, considers it necessary to do so. That is consistent with the wide discretion available to the court on the directions that it makes in a witness anonymity order.

We have considered placing explicit provisions to that effect on the Bill, which is in effect what the hon. Gentleman’s new clause would do, or amending the CPIA accordingly. But we reached a conclusion that it is unnecessary to do so. In our view, no sensible court—they are all sensible—would conclude that if an anonymity order were made with directions to the protection and non-disclosure of the witness’s identity, that identity should either be passed through to another defendant under the CPIA rules, or it might be necessary to go through an identical process in determining whether that disclosure should happen. The terms of the witness anonymity order will operate to limit the obligations of the CPIA, although I accept that the hon. Member for Cambridge has spotted an overlap.

I will move on to the detail of the new clause. We are concerned about the use of the wording “the other defendant”, as that might be taken to imply that an anonymity order is necessarily made in respect of a particular defendant—it is not. Neither is it made only in respect of a defendant in whose case the anonymous witness gives evidence. An anonymity order is made in respect of a witness and may apply to all defendants in the case. When the court considers the grant of an anonymity order, it must have regard to the impact on all defendants, and “the defendant” in clause 71(4) is to be construed accordingly. That is why clause 70(6) requires the court to hear representations from all parties following the 2008 legislation. That is reinforced in clause 69 by reference to withholding the identity from

“materials disclosed to any party to the proceedings.”

We will hear in a moment whether that satisfies the hon. Gentleman and whether he moves his new clause. However, on that basis, we do not believe it to be necessary.

Clause 71

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment 451, in clause 71, page 42, line 9, leave out from ‘person’ to ‘or’ in line 10.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 452, in clause 71, page 42, line 10, leave out ‘any serious damage to property’ and insert

‘damage to property so serious that it would leave the witness or another person in a state of destitution.’.

Amendment 453, in clause 71, page 42, line 11, leave out paragraph (b) and insert—

‘(b) in order to prevent serious harm to the functioning of a properly authorised undercover operation.’.

Amendment 197, in clause 71, page 42, line 11, leave out paragraph (b).

Amendment 198, in clause 71, page 42, line 13, leave out ‘or otherwise’.

Amendment 446, in clause 71, page 42, line 19, leave out paragraph (b).

Amendment 454, in clause 71, page 42, line 21, leave out subsection (6).

Amendment 199, in clause 71, page 42, line 22, leave out ‘(in particular)’.

David Howarth (Liberal Democrat, Cambridge)

We now come to a series of difficulties with the existing legislation that the Bill does not resolve or change in any significant way. I shall talk first about amendments 451 and 452, then amendment 454 and finally amendment 453. Amendments 451 and 452 are about the extent to which threats to property could be sufficient to justify an anonymity order. Members of the Committee might remember that a number of hon. Members felt that in principle threats to property would be insufficient to justify anonymity, if they are not accompanied by a threat to a human being. A further point was raised by the Joint Committee on Human Rights, which doubted whether the property justification was consistent with the European convention on human rights. It cited an opinion given by the Attorney-General of New Zealand to the effect that the equivalent provision in New Zealand statute was highly likely to be in breach of the European convention on human rights standard. The Government at the time insisted that in their view the use of property damage to justify these orders continued to be compliant with human rights requirements.

The central question is not whether a threat of property damage that also threatens people would be sufficient for an order, as that is obvious. A threat to burn down someone’s house is a threat to the people who live in that house. We are not talking about threats to humans that are carried out through a threat to property—such a case is not difficult and is clear justification for an order.

Tim Boswell (Conservative, Daventry)

What about a situation in which the threat is to the person’s business? It might not involve their factory being burned down with them in it, but it might involve their factory being burned down in a way that will destroy their livelihood and materially damage their way of life, without necessarily threatening their physical safety? Is not that a difficult borderline?

David Howarth (Liberal Democrat, Cambridge)

It is difficult to burn down a factory without threatening someone’s life or limb. The situation that we are worrying about will arise only in very special circumstances, such as if someone threatens to burn down a lock-up shop at night when no one is there.

Maria Eagle (Labour, Liverpool, Garston)

Suppose that the threat is to disable repeatedly or to destroy someone’s motor vehicle, which they use to get to work. Many poor people cannot afford to replace tyres, windscreens and wing mirrors repeatedly. The vehicle might be parked on the street overnight, and it might have been clear that no one was in it when it was being damaged, but any of us might find it difficult to cope with our car being damaged repeatedly one night after another. That would destroy some people’s lives.

David Howarth (Liberal Democrat, Cambridge)

I am glad that the Minister used the phrase “destroy people’s lives”, because she has talked about situations in which the threat to property would leave the family destitute, which would probably be sufficiently serious. That is why we have moved amendment 452, which would introduce the destitution test, following the Minister’s suggestion. There is also a destitution test under human rights law for another obligation of the state—that the state should not leave people in destitution.

The Minister’s example is an extreme case, and I am willing to accept that it is a justifying one, but the problem is whether the measure would apply in less serious cases in which the witness would not be left in a state of destitution, but would be left worse off. No one could deny that that might make them less willing to give evidence, but is that sufficient to anonymise the witness, which we have all agreed is an inherent threat to the fairness of a trial? The Joint Committee on Human Rights has raised that point, and it is still an issue now.

George Howarth (Labour, Knowsley North and Sefton East)

I think that it is naive to say that the examples that my hon. Friend the Minister has given are so rare. In parts of my constituency, people are regularly targeted as “grasses”, and their lives are made intolerable. I am sure that is not unique to my constituency. Would not the hon. Gentleman consider that to be a case in point that ought to be addressed?

David Howarth (Liberal Democrat, Cambridge)

The question is where we should draw the line. The Bill mentions “serious damage to property”, but how will seriousness be judged? I am perfectly happy to discuss the seriousness of the examples that have been mentioned. If the hon. Gentleman is saying that seriousness is not about the value of the property, but about the degree of disruption to the relevant person’s life, he might have a point, but the existing legislation and the clause do not make that clear. The measure could mean simply that a threat to a valuable vehicle belonging to a rich person would be considered to be serious damage, whereas a threat to a vehicle with a low market value belonging to someone on a lower income, which might be more important to them than the other car to the other person, would not count as a serious threat. I am not being absolutist—I accept that threats to property can disrupt lives—but we have to decide where to draw the line, and the clause does not do that. How serious a disruption to someone’s life should justify the use of anonymous evidence? We all admit that anonymous evidence may lead to injustice or the risk of injustice.

Alun Michael (Labour, Cardiff South and Penarth)

The hon. Gentleman is making a serious point constructively, but did he not provide the answer when he talked about judgment? Is it not a matter of fact that a judgment must be made? He gave a couple of examples of a judgment having to be made according to principles of where it is appropriate. The seriousness of a low-value vehicle in a community where intimidation such as my right hon. Friend the Member for Knowsley, North and Sefton, East described a few moments ago occurs is what “seriousness” is supposed to imply, but we cannot get away from the fact that if we had such an absolute definition in the law we would unintentionally exclude some examples of places where the right judgment should be made in the public interest.

David Howarth (Liberal Democrat, Cambridge)

That is right, but we should not allow a provision to go through unchallenged, if it could be interpreted in a completely different way from the one that the right hon. Gentleman has mentioned, and in a way that would not help people in that condition, but might help much better-off people.

Jeremy Wright (Conservative, Rugby and Kenilworth)

Does the hon. Gentleman agree that the neatest way of dealing with the problem that he has identified, and taking account of the points made by Labour Members, is “to prevent any damage to property with serious consequences to the witness”?

David Howarth (Liberal Democrat, Cambridge)

I will have to think about that, because it might be a way through the problem. The present drafting is not adequate or satisfactory, even from the point of view of those who are willing to go further than I would down the line of allowing property damage to count in the first place.

Tim Boswell (Conservative, Daventry)

At some risk of turning this into a drafting committee rather than a Public Bill Committee, may I offer a separate point for the hon. Gentleman’s consideration? It is not merely the seriousness, but often the serial nature of the attacks that is relevant. If someone says that they are going to slash someone’s tyres every weekend, that is an aggravated threat.

David Howarth (Liberal Democrat, Cambridge)

Yes. I think that that is the point that the Minister and the right hon. Gentleman were making, but the clause, as drafted, does not cover it, because each individual instance may not be serious. I do not want to say more about this topic, because I think that we have demonstrated that there is a difficulty in how the law is drafted at the moment.

Turning to amendment 454, I think there is a serious problem, which goes back to the origins of the original 1988 legislation. The Government never seem to be entirely sure whether the test for granting an order is based objectively on the safety of the witness—how safe are they?—or on the fear that they may experience subjectively. We have a very untidy compromise whereby both seem to be relevant, but it is not clear which takes precedence. I tabled the amendment simply to make that point. It is a probing amendment that would take out the last part of the clause and the fear element, while leaving the safety element.

The problem is that a witness can be perfectly safe, but have subjective fear. At the same time, someone may not have fear and may not be afraid, but may objectively be very unsafe. Which of the two—safety or fear—will be the real test whether anonymous witness orders should be made.

Tim Boswell (Conservative, Daventry)

In fairness, the clause as drafted refers to “reasonable fear”, and the hon. Gentleman is better placed than me to define what that reasonableness might be.

David Howarth (Liberal Democrat, Cambridge)

Unfortunately, we had an uncomfortable five minutes in the debate last time and came to the conclusion that we did not know what a reasonable fear would be. This is a halfway house, but it is still a reasonable fear rather than safety.

Tim Boswell (Conservative, Daventry)

Is a reasonable fear different from, as, for example, with asylum legislation, a well-founded fear?

David Howarth (Liberal Democrat, Cambridge)

That is an interesting technical question that I would have to think about further, but it still gets us no further down the line of deciding a serious policy question. Is the purpose of the anonymity order to protect people who lack safety in their lives and who are objectively under threat, or is it to help people who are subjectively in fear? The obvious starting point is fear, because that is what stops people coming forward, but the clause is drafted in terms not of fear but of safety. The Government need to be clearer on that point than they have been so far.

My final point is about the possibility of obtaining an order to prevent real harm to the public interest, which seems a very broad category. When challenged last time, the Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston said that

“the purpose of the wording is to capture circumstances in which the intelligence agencies, or, for example, the police or the Serious Organised Crime Agency, are doing their job.”

Hon. Members were discussing an undercover operation, which would be compromised by allowing the identity of the witness—the agent—to be known. However, the wording of the clause goes way beyond the specific circumstances, talking about real harm at large. So, the Minister went on:

“If it helps Members...those are the only circumstances intended; I am aware of no other circumstances, beyond national security and the undercover work of the police and relevant agencies, that this part of the Bill is meant to cover. I hope that helps in any Pepper v. Hart situation that we might run across.”—[Official Report, 8 July 2008; Vol. 478, c. 1373.]

The policy of the Government is entirely clear, but in the mean time the opportunity has not been taken to change the words, so that the words in the Bill reflect the policy. I am disappointed by that, which is why I have tabled amendment 453.

More radically, one conclusion that I have come to on the problem of what one might call official anonymous witnesses, as opposed to civilian anonymous witnesses, is that such cases are rather different from what we have been discussing, namely the case of the intimidated witness. Perhaps it would be better to devise a separate scheme of anonymity for such witnesses.

Those are the points that our amendments are intended to raise.

George Howarth (Labour, Knowsley North and Sefton East)

While my hon. Friend the Member for Wrexham is out of the Room, I shall take advantage of the opportunity. I would like to kill two birds with one stone. A point about gangs and gang culture that the hon. and learned Member for Harborough raised this morning in another context has some bearing on what the hon. Member for Cambridge is saying now—it is about context.

In some communities in my constituency and others, the very presence of a minority—it is always a minority; it sometimes small but significant—can be intimidating to some members of the community. I shall quote two recent examples, one from the case of murder of Rhys Jones the summer before last, which rightfully gained notoriety nationally.

Edward Garnier (Conservative, Harborough)

That was in the right hon. Gentleman’s constituency.

George Howarth (Labour, Knowsley North and Sefton East)

In fact, it was in the neighbouring constituency of Liverpool, West Derby, although some of the events that took place afterwards happened in my constituency. The person who has now been convicted of the shooting of Rhys Jones drew on the support of members of the so-called Norris Green gang to help him cover up the crime. I do not intend to go into detail, because it is on the public record. The presence of those people in the gang were sufficient for the person to be able to evade arrest for many months, even though the police were well aware who he was.

The reason why the person’s connection to the gang could create a climate in which he was not arrested and the police did not have sufficient information was that people were literally terrified of the gang. They knew its members and were afraid to come forward. Moreover, they were afraid that the police would not be able to protect their anonymity if they gave information in a subsequent trial. It therefore took many months for the police to effect an arrest and make prosecutions. In the end, the police did an effective job and the young man was convicted, as were several other members of the gang who contributed to his evading arrest for so long.

I am putting the argument into context for the hon. Member for Cambridge. A person who lives in a community does not have to sit down and work out matters for themselves. It is obvious that some people—always a minority—are prepared to use any means necessary to prevent a prosecution from taking place. That is up to and including the intimidation of witnesses. If people know that that might happen, they do not want to engage in the process of law.

About three years ago in my constituency, a family were branded by one of the local gangs as “grasses”. Halloween is a peculiar new concept that we seem to have imported into our culture. It never used to be here when I was a child. It is an American import, and not one of the better ones. The cover of Halloween and the chaos that some people promoted on that evening was used to drive the family out of their home. They left their home on the advice of the police, because the pressure that was being put on them was so great. I do not know whether they were witnesses to a case, but the perception was that they were providing information to the police, and that was enough for them to be driven out of their home. They then had to be rehoused in another part of the area. Everyone understood that it was for the family’s protection.

Such issues were not in the family’s imagination. Real events were happening. Lots of people know what is going on in certain areas, and they fear that, if they co-operate with the police to the extent that they become witnesses and have their names identified, their lives would not be worth living—to use the phrase of the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston.

Alun Michael (Labour, Cardiff South and Penarth)

My right hon. Friend’s argument is extremely telling. He is right, but will he accept that some cases are dramatic and in which the police are involved, as in his first example, but that there are also situations when intimidation may be going on over a long period at a low level, of which perhaps the police and other authorities are not aware? That is difficult to deal with adequately, but it is important that people have the confidence to come forward as witnesses.

George Howarth (Labour, Knowsley North and Sefton East)

My right hon. Friend makes a strong point. He is right. In an intervention this morning, I mentioned a case involving a constituent with whom I had a conversation on Monday morning. I was urging her to go to the police about the intimidation that her family is experiencing. I will not go into a lot of detail, but the woman concerned has a daughter of 16 who, because of intimidation by gangs of young men, comes home from school and does not go out of the door until she is taken to school by car the following morning. Her daughter is a studious young woman who does not drink or hang around on the street. Those who do those things have decided to target her.

Her mother’s solution is to move. I can fully understand that. She thinks that there is no way out of it for her other than by getting out of that house to somewhere where the gangs will not target her daughter. I was trying to persuade her that she ought to go to the police and tell them what is going on—I said that I would go with her—and try to get the police to take more seriously the problem that she was experiencing. “No”, she said, “if I do that they’ll find out I’ve done it and my life will be even worse than it is now. More particularly, my daughter’s life will be even worse than it is now.” That is the reality of the lives that some people are living. That case fits into the category that my right hon. Friend mentioned.

More often than not, those problems are resolved not through the criminal justice system but through the housing transfer system. That ought not to be so. We ought not to find it acceptable that people’s fear of co-operation in a prosecution or with the police is so great that rather than even engage with it they will move house. That is the reality of what we are up against.

I have one point to make to the hon. and learned Member for Harborough, which has some bearing on this matter. In most of the cases involved, we are essentially talking about street gangs: groups of youngsters—perhaps up to 50 or 100 of them—who hang around on the street and are intimidating, although they do not necessarily do anything illegal. Within that gang will be some hard-core criminals. The police will know who they are, and teachers, social workers and anyone who has regular dealings with young people will be able to say who they are from when they are as young as seven, eight or nine. They will know about that because it is pretty predictable that a certain kid will go through a process and will end up probably as a criminal. That is the case with street gangs.

I have some anecdotal evidence, because I have seen things with my own eyes. The leaders of the criminal gangs—the ones who deliver drugs in the area and control that, for example—are almost grooming the street gangs. For example, I was asked by a residents’ group to chair a public meeting in a school hall in an area experiencing antisocial behaviour. I had invited someone from the Crown Prosecution Service, the area commander, who is a chief superintendent, and other police officers. That was an opportunity for that group of residents to express their concerns to the people who could perhaps do something about them. I also invited people from the magistrates courts. I wish that I shared the great confidence in the magistrates system of the hon. Member for Daventry. Quite often, frankly, the community that I represent considers the local magistrate with contempt.

At the meeting, a minibus rolled up driven by one of the local drug barons, who, I am glad to say, is currently detained at Her Majesty’s pleasure, and out poured a gang of the youngsters who were causing all the problems. One is a criminal gang, the other is a street gang, but where was the drug baron’s interest in that? Why was he ferrying them to a meeting to discuss antisocial behaviour? This was five or six weeks ago, and, interestingly, one of the most outspoken youngsters there went on to a criminal career. Most recently, he was arrested for offences involving firearms, so we can see the process that takes place.

I am straying from the amendments and the clause, but it is important to tell the hon. Member for Cambridge that that is the context in which such protections for potential witnesses are necessary. There are many places—not just in my constituency—where such activities take place.

David Howarth (Liberal Democrat, Cambridge)

The right hon. Gentleman has explained why I, unlike many people involved in the law, accept the need for anonymous witness orders. There is an absolutist view, which I do not accept, whereby any anonymity will automatically cause an unfair trial. It is unrealistic to think that the police and the authorities can protect people in the situation that the right hon. Gentleman describes. Some people think that they could, but, in reality, they cannot. That is why the orders must exist, and I fully accept them. However, we must be careful that we do not go too far, producing miscarriages of justice, as we might do, and providing malicious people with opportunities to use the law to take revenge on other people.

George Howarth (Labour, Knowsley North and Sefton East)

The hon. Gentleman raises a couple of scenarios that, if we wanted to exercise our imaginations, could flow from the proposal. However, I shall conclude merely by saying that those may be risks that are worth taking if we are to protect people properly from the problems that I have described. Many of my constituents, who have to put up with such problems day in, day out, are not as tolerant as the hon. Gentleman, and for good reason.

Edward Garnier (Conservative, Harborough)

Lest anyone listening to the right hon. Gentleman should think that his constituency is a hell hole, I should like to place on the record that I have been to his constituency on a number of enjoyable occasions, namely to Aintree race course, and I recommend regular visits to it.

Bridget Prentice (Labour, Lewisham East)

Did you win?

Edward Garnier (Conservative, Harborough)

No, a horse won.

There are many sides to all our constituencies, and, although the right hon. Gentleman’s description of the contextual material is highly valuable to us, I should not want the world to think that his constituency was a place of complete and utter misery, because it quite clearly is not.

George Howarth (Labour, Knowsley North and Sefton East)

I am grateful to the hon. and learned Gentleman. I think that I said on several occasions that the situation is not unique to my constituency, because it occurs throughout the country. However, for the avoidance of doubt, my constituency is heaven on earth.

Edward Garnier (Conservative, Harborough)

I must have been to heaven once a year for a few years then.

I have not found it at all difficult to agree with the hon. Member for Cambridge on some issues, but he made it quite difficult for me to stay with him when he discussed his amendments on serious damage to property. He redeemed himself in my eyes, however, when he said that he is not an absolutist and is looking for somewhere to draw the line. He needs to, because, in any event, but especially having heard what the right hon. Member for Knowsley, North and Sefton, East said a moment ago, I think that damage to property is clearly the key to this matter—in addition to damage to individuals. It is a matter of fact and degree. There will be cases where the damage is trivial—

Tim Boswell (Conservative, Daventry)

Will my hon. and learned Friend give way?

Edward Garnier (Conservative, Harborough)

I will just get to the end of the sentence, if my hon. Friend does not mind.

Clause 71(3)(a) mentions “serious damage to property”, and trivial damage would clearly not come within its ambit.

Tim Boswell (Conservative, Daventry)

I thank my hon. and learned Friend for giving way; in no sense was I seeking to derail what he wanted to say. When looking at the clause, should not the test at the back of our minds be that of needing to serve the cause of justice? That will be inhibited by a climate of fear, which could be transmitted either by threats to physical safety or life-damaging property damage. I agree with the remarks of the right hon. Member for Knowsley, North and Sefton, East that it is impossible to draw a literal-minded barrier around threats of physical violence.

Edward Garnier (Conservative, Harborough)

That is a perfectly fair point.

Let me conclude my remarks in relation to the amendments that deal with damage to property. There is arson, and there is arson with intent to endanger life. Both are serious offences and both warrant life imprisonment in some circumstances. It would be a mistake to remove reference to property in the witness anonymity orders. I accept that we need a connection between property that is threatened with damage—or that has been damaged—and the witness or someone close to them. I do not need to take that point further as it is self-evident. I am sure that the hon. Member for Cambridge will accept that.

One further point occurs to me. The damage to property should not necessarily be measured in financial terms in relation to the property. We are talking about the impact, the ripple effect. I could disable a computer; actually, I could not—[Interruption.] I am sure that I have disabled many computers, but entirely by mistake. However, within the financial services, for example, computers are vital for the management of the stock exchange and the banking system—in so far as we have one. It does not take much to disable a computer system, but it could have a massive economic effect. It might be a small piece of damage such as removing a fuse, but the real damage is the loss of the business’s ability to function. That is an example of where serious damage needs to be construed in a reasonably wide form. Tighter or more careful drafting of subsection (3)(a) might get those points across, but the policy behind it is clear.

In relation to the hon. Gentleman’s points on subsection (6), amendment 199 seeks to deal with the same problem in a slightly different way. We are concerned about a proportionate response to a perceived fear. I could have a subjectively reasonable fear that if I do something, something terrible will happen to me. However, when that subjective fear is analysed, it is possible to reach the conclusion that, objectively, it should not impinge on an application for an anonymity order. I could subjectively reach the conclusion that if I carry on speaking until 6 pm, the hon. Member for Wrexham—he is leaving the room, so my objective fear is going with him—could introduce me to Stalin and Hitler, which might have adverse consequences for me.

I may genuinely think that, or fear it, but an objective analyst would say, “That is impossible. It may be something you fear, but it is unreasonable and not something that should affect condition A, your safety.” Even though I think that, in fact, my safety will not be affected by giving evidence in those circumstances. I am not going to be threatened; I am not going to meet Hitler or Stalin. That is a rather laboured way to explain the difference between a subjective fear and its objective assessment by someone else. We have to do that in all sorts of cases. A state of mind is a fact, it has to be established—to the satisfaction of the court, I would suggest—and the court has to ensure the overall interests of justice, as my hon. Friend the Member for Daventry said a moment ago. Courts do that, more or less day in, day out.

I do not think that quite so much needs to be made of subsection (6), albeit that expressions such as “in particular” need to be used clearly. Does it mean in particular but exclusively, or in particular but not limited to? The Minister understands the various options that could occur to an inventive construer of subsection (6). I shall leave amendment 199 there for illustrative purposes, so that the Minister can tell us what the Government mean by subsection (6).

There is a deeper and more serious question to be answered in relation to subsection (3)(b), which deals with the public interest point, which has already been discussed. Our amendments 197 and 198 deal with deleting paragraph (b) and the “or otherwise” at the end. Personally—I do not know what my hon. Friends think—I do not find the Liberal Democrats’ proposals particularly attractive, albeit that I entirely understand what they are about. The Government may have written more into paragraph (b) than is necessary: it is vague, wide and open to mischievous interpretation, and they need to edit it somewhat to be tighter. On that basis I am content to listen to what the Minister has to say.

Maria Eagle (Labour, Liverpool, Garston)

We have had an interesting discussion about the purpose and context in which the provisions of clause 71, which deals with conditions for making witness anonymity orders, operate in the real world. I thank my right hon. Friend the Member for Knowsley, North and Sefton, East for that and others for the remarks that they made in his support. It is important that the Committee remembers that that is what the provisions are largely about.

It is also important to remember that the hand of Government was moved. The provision was not something that we sought to put into statute, as opposed to it being in the common law. However, when it became clear that the common law was not as it had been thought to be and would not remain fit for the purposes for which it had developed, as we all thought it had before the Davis case, neither we nor the rest of the parties in Parliament then felt able to restrain ourselves. There was general agreement that the emergency legislation passed last year was necessary. It was enacted swiftly and had support in all parts of the House.

We did not seek to set out precisely in statute the circumstances in which such things ought to be allowed, but now we are in that position. I venture to say, as the hon. and learned Member for Harborough said earlier, that things seem to be working quite well, owing in large part to the common-sense interpretation applied by the judiciary. My right hon. Friend the Member for Knowsley, North and Sefton, East understands and many of us know from our constituency experience what the provisions are all about and why they are necessary. Although we can have an academic debate, we must always bear in mind the fact that these provisions have a utility that we do not want to move away from.

Turning to the amendments, I begin with amendment 451 and 452, to which the hon. Member for Cambridge spoke. We debated briefly the purpose and usefulness of including the property limb of the test in subsection (3)(a). It has been useful to bat around those questions about what serious damage to property means. We think that the wording works, although some interesting points have been made about serial, more minor, damage. We must always remember the context, however: to a person who has very little, whose car is the only way they can get to work and who will lose their house if they do not have a job, minor damage to their property would be serious. Any common-sense interpretation of the wording would agree with that.

Although I do not believe that we need to change the wording, I am happy to reflect on what has been said, to make sure that by the time we come back on Report, we are clear that we have the best formulation. I think that we probably have and there is a disadvantage to over-complicating the tests. If common sense can apply and if things seem to be working, there is an argument for not interfering too much. I do not want to accept any of the hon. Gentleman’s amendments at present—they are probably probing amendments, in any event.

Amendments 197 and 198 would alter another of the three conditions for making the order. The second limb of condition A specifies that the order must be necessary

“to prevent real harm to the public interest”.

We have debated the meaning of that phrase before and it has not changed between last year and this. I made some overt remarks on the record in case anyone ever wished under the Pepper v. Hart procedure to be clear about what Ministers intended. There is no change in the intention, but there is clearly some purpose in enabling those who are undercover to continue to work in that way and not to lose the capacity to do so because they cannot have an anonymity order because their circumstances do not come under any of the limbs of the test.

Alun Michael (Labour, Cardiff South and Penarth)

Does the Minister agree that the requirements should not be used lightly and that there is always a judgment that has to be made—it cannot be escaped by going to the letter of actual requirements? The intention reflected in the drafting is to make sure that that judgment can be exercised in appropriate cases, without unintended constraints being placed, which would leave people vulnerable in the way that both my right hon. Friend the Member for Knowsley, North and Sefton, East and I have outlined in some of our examples.

Maria Eagle (Labour, Liverpool, Garston)

I certainly agree with my right hon. Friend that anonymity orders should not become routine instead of exceptional. That was quite clearly said during the passage of the emergency legislation and I will not repeat it now. Common sense should be applied, and the fact that all sides appear to accept that the provisions are working indicates that it is being applied.

I have probably said what I need to about harm to the public interest in relation to amendments 197 and 198. Amendment 453 would change the wording of the second limb of condition A so that it explicitly and exclusively referred to preventing

“serious harm to the functioning of a properly authorised undercover operation.”

We do not think that the amendment is necessary, simply on the ground that we have made explicit what the current wording means and changing it might present us with more of a problem in statutory interpretation than leaving it as it is and reiterating why it was put there in the first place.

Amendment 454 would remove the court’s duty to take the witness’s fear into account when considering whether the order was necessary to safeguard the safety of the witness or another person. I realise that the amendment is a way into a discussion about whether we are looking at some kind of reasonable fear for one’s safety, but fear is a subjective thing, and if we are talking about trying to protect somebody and enable them to give evidence, it is the subjective fear that one ought to consider. My right hon. Friend the Member for Knowsley, North and Sefton, East will confirm from his experience that, quite often, it is stress and lack of sleep rather than fear that leads a person to a much more fragile mental state than one might expect, after a series of intimidatory activities that provide the final straw. It is not necessarily fear as much as stress—and just being completely fed up of being treated badly and threatened the whole time—that finally leads people to flee or refuse to come forward with their evidence.

In any event, as I have said, the current wording appears to work. The court will still be able to have regard to the question of fear as a matter of discretion. It is unclear what benefit there would be in removing it—I know that it is a probing amendment to get us into the discussion that the hon. Members for Cambridge and for Daventry were having.

I hope that the hon. Member for Cambridge will withdraw his amendment on the grounds that we have had a good debate and that the present provisions appear to work. It is not sensible to interfere with them.

David Howarth (Liberal Democrat, Cambridge)

The right hon. Member for Knowsley, North and Sefton, East said that I was tolerant of the sort of conditions that he talked about, but I certainly am not. If he knew where I was brought up and where my parents still live, he would understand why that is the case. All I am asking is that we are at least reasonably clear about what we are not tolerant of.

The way that the clause is written at the moment does not get at what we are talking about, which is the impact of the intimidating and threatening practices—almost ways of life on some estates—on the people whom we are trying to protect. It is not about discrete incidents; the idea that has come out of the debate quite clearly is that we are talking about discrete or one-off threats or one-off incidents to do with some bit of property, but that is not what it is about at all. It is the about cumulative impact on the potential witnesses of those threats and acts of intimidation happening day after day—that is what we want to stop. We are certainly are not tolerant of that.

Although it is not a good way to write a statute, there is a phrase that many Members have used to express what we are trying to get at, which is: if it is the kind of thing that makes people want to move, it is intolerable. The right hon. Gentleman and the Minister described it as the state when someone says, “I think I should leave and take my family with me because I do not feel protected by the police, and those people are just getting at me.” That is almost exactly what we should try to stop—the test should be that no reasonable person should be put in that position. I am far from clear that what we have now expresses that problem.

However, I am grateful for the Minister’s offer to think again. I suppose that chances are that she will come back and say that what we already have is the best that we can do and what I have just said is what the Government mean, but it has been useful to discuss what the word “serious” means in such circumstances. It does not refer only to how expensive the property was; it encompasses the sort of things that we have been talking about.

On the question of fear for one’s safety, we are all trying to move in the same direction. But it strikes me that the clause is the wrong way round: safety is the main thing, and then it takes fear into account in judging safety—whatever that means—rather than fear being the main thing, and an objective safety element being a backstop to ensure that we are not going too far along the lines of simply accepting what a timid person might say about their state of fear. I ask the Minister to look at that again.

Finally, on the issue of real harm to the public interest, perhaps the Minister is right that the best thing that she could have done today is what she has done, which is to reiterate that what the provision meant last time is what it means this time. I think that we are all now absolutely clear what it means and we are at least in the position that we were before. With that, Mr. Cook, I beg to ask leave to withdraw the amendment.

Clause 76

Edward Garnier (Conservative, Harborough)

I beg to move amendment 399, in clause 76, page 45, line 7, at end insert —

‘(za) the High Court (Queen’s Bench Division),’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: amendment 200, in clause 76, page 45, line 10, at end add ‘, or

(d) The Judicial Committee of the House of Lords and the Supreme Court.’.

Amendment 375, in clause 80, page 45, line 35, after first ‘Court’, insert ‘the High Court’.

Edward Garnier (Conservative, Harborough)

It may be that the purpose of the amendments has fallen away owing to amendments that were not accepted earlier when I invited the Committee to accept a similar system for the coroners courts as we have for the criminal courts. Amendment 399 adds two categories of Appeal Court to subsection (6). I want to add High Court, Queen’s bench division. That would deal with appeals from the Crown court or magistrates court and from the coroners, dealing with matters equivalent to the divisional court—I think it is now called the administrative court, but that does not matter. It may well be that since all that does not come into the Bill, my use of the High Court, Queen’s bench division, as an appeal court may have lost its relevance.

Amendment 200 would include the Judicial Committee of the House of Lords and the Supreme Court. If the Government have their way, the Judicial Committee will turn into the Supreme Court and leave this building. It will be a huge white elephant across the road, established at vast expense—a total waste of money—but it appears that the Judicial Committee will translate itself into the Supreme Court unless we can do something about it. In any event, appeals might go from the Court of Appeal to the House of Lords with either the leave of the Court of Appeal or of the House of Lords. It is interesting that we do not appear to have legislated for that possibility.

Finally, I think the purpose of amendment 375 has probably fallen away as a result of this morning’s discussion.

Maria Eagle (Labour, Liverpool, Garston)

The hon. and learned Gentleman is, of course, right about the amendments that were meant to bring the coroners courts into the ambit, given that we did not agree earlier that the provisions ought to extend to the coronial system.

Amendment 200 would allow the Judicial Committee of the House of Lords and, from October this year, the Supreme Court to discharge or vary a witness anonymity order. The Bill specifies the Court of Appeal, the Court of Appeal in Northern Ireland and the Court Martial Appeal Court being given power to vary or discharge a trial order in connection with an appeal by the defendant if they feel that there is a need to do so. We do not consider that it is necessary to extend such powers to the House of Lords, which is only ever seized of cases when a point of law of general public importance is involved. Therefore, it is hard to see that that court will need to deal with an anonymity order, but under a general power in section 35(3) of the Criminal Appeal Act 1968 for the purpose of disposing of an appeal,

“the House of Lords may exercise any powers of the Court of Appeal or may remit the case to the Court.”

That should give sufficient power in the rare event that it might ever feel the need to discharge or vary such an order itself. The amendment is therefore unnecessary.

At present, the House of Lords can decide points of law or witness anonymity orders that would then return to the Court of Appeal for it to deal with as appropriate, following the guidance of the House of Lords. On that basis, I hope that the hon. and learned Gentleman will feel able to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I generally do and I will, or I will and I do. I beg to ask leave to withdraw the amendment.

Clause 78

Frank Cook (Labour, Stockton North)

With this it will be convenient to take Government new clause 30—Anonymity in investigations: public interest immunity.

Maria Eagle (Labour, Liverpool, Garston)

The new clause mirrors clause 78 for witness anonymity orders and has been drafted for reasons of consistency and clarity. Clause 78 directly re-enacts section 13 of the 2008 Act. To avoid any possible confusion between the two different areas of law, the provisions make it clear that the anonymity legislation does not affect the common law rules under public interest immunity. That is not to say that a witness anonymity order may not have effect to qualify the duty to disclose material under the Criminal Procedure and Investigations Act 1996, which we discussed earlier. A witness anonymity order that includes provision requiring non-disclosure of certain identifying information will, of course, do that, as we discussed.

Edward Garnier (Conservative, Harborough)

The Minister was wise to ask me to resume my seat, so that she could make her case. I had misread new clause 30. I had thought that it was drafted in identical terms to clause 78, but that is not quite so.

Clause 80

David Howarth (Liberal Democrat, Cambridge)

I beg to move amendment 449, in clause 80, page 45, line 34, leave out ‘a magistrates’ court’ and insert

‘a Youth Court where the case is one in which, were the defendant an adult, the defendant would have been tried in the Crown Court,’.

This is another piece of unfinished business from the 2008 Act, namely whether witness anonymity orders should be available in a magistrates court as opposed to only in the Crown court. The Government’s argument in relation to the 2008 Act was that it was simply too complicated to write into the statute the circumstances in which a magistrates court should or should not have the power to make the orders and that therefore the power to grant WAOs should be granted to the magistrates court in general. In particular, the problem arose—it is genuine—that when trying youths magistrates courts can be dealing with quite serious, or very serious, offences. Some of those cases are just as serious as similar cases tried in the Crown court, and the witness anonymity order should therefore be available. It is perhaps worth having another go at defining those circumstances precisely, so that in the general run of things, the power to use anonymous witnesses is not given to the magistrates courts in trivial cases.

The argument runs as follows. Suppose there is a case that could be tried either in the magistrates court or the Crown court. If witness intimidation is going on, that is a good reason to transfer the case to the Crown court. Therefore, giving the Crown court the sole power would be sufficient. If a case is triable only by the magistrates courts, it would be too trivial to allow such a drastic sort of witness anonymity measure to apply. In any case, it is not entirely clear that the facilities needed for anonymity exist in a large number of magistrates courts. That point is worth making.

My other point is this. We have the experience of the 2008 Act, and we have figures showing that very few witness anonymity orders have been made in the magistrates court—the figures given by the Minister as evidence and those given by the DPP were slightly different, although they were near enough the same. The question is whether it is still worth continuing with that power.

Maria Eagle (Labour, Liverpool, Garston)

Having posed as a friend of the magistracy at an earlier stage of our considerations, the hon. Member for Cambridge has now decided that it is not up to the job of dealing with anonymity orders. Although the figures that we heard from the DPP during the evidence-taking session indicated that the majority of the orders are made in the Crown court, three were made in the magistrates court and one in the youth court. Common law provisions allowed them to be made anywhere, and our legislation attempted to put the common law position as it had been understood before Davis back into effect by use of the emergency statute last year. That seemed to work well, which I think all members of the Committee accept. Therefore, we do not propose to make any changes because the current arrangements seem to be working.

David Howarth (Liberal Democrat, Cambridge)

Does the Minister have any more details of those three cases in the magistrates court? What were the charges?

Maria Eagle (Labour, Liverpool, Garston)

I cannot relate to the hon. Gentleman precisely what the charges were in those three cases. The one in the youth court was a case of attempted burglary, but I hope he will forgive me if I get back to him by letter about the cases in the magistrates court. None the less, that does not change my point that the common law provisions and last year’s legislation appear to be working well. There does not seem to be a compelling reason to prevent one set of judges or magistrates, or one location, from dealing with these matters. On that basis, we do not propose to accept the amendment and I hope that the hon. Gentleman will be gracious enough to withdraw it.

David Howarth (Liberal Democrat, Cambridge)

This is one of those cases where on one side, the argument is that we do not know whether the power is appropriate for the court so we should not have it, while on the other side, it is that we do not know whether the power is appropriate so we might as well have it. It comes down to one’s view of on which side the default option lies. On the basis that the Minister will write to me about the three cases, I look forward to her letter—it might lead to further proposals or ideas, either here or in another place—and I beg to ask leave to withdraw the amendment.

Clause 82

Bridget Prentice (Labour, Lewisham East)

I beg to move amendment 285, in clause 82, page 47, leave out lines 14 to 17 and insert—

‘(6) For the purposes of subsection (5) an offence is a relevant offence if it is an offence described in Schedule 1A.

(7) The Secretary of State may by order amend Schedule 1A.’.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following: Government amendment 286.

Amendment 203, in schedule 12, page 148, line 2, at end insert—

Bridget Prentice (Labour, Lewisham East)

I congratulate the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston on taking us in such a succinct but detailed way through that last part of the Bill.

Clause 82 automatically extends eligibility for special measures to witnesses to certain gun and knife offences listed in schedule 12. Our amendments remedy an oversight in the drafting of schedule 12. At the moment the schedule inadvertently neglects to list certain offences that we had intended to include, such as murder and manslaughter in which a gun or knife is alleged to have been used or involved, as well as offences of wounding with intent to cause grievous bodily harm, malicious wounding and various offences of assault on the same basis.

As the Under-Secretary of State for Justice, my hon. Friend the Member for Liverpool, Garston Minister has said in previous debates, we are very committed to tackling gun and knife crime. Witness fear and intimidation levels are high in such cases, as my right hon. Friend the Member for Knowsley, North and Sefton, East has described. We have the opportunity to provide witnesses to all such offences with early certainty that they will be eligible to receive special measures assistance in the court to help them give the most effective evidence and to encourage more witnesses to testify. Of course, they will be able to opt out if they do not want to take up that assistance.

The hon. and learned Member for Harborough tabled an amendment because he spotted the oversight, but he only added one of the offences. I hope that, for the purposes of completeness and because of the seriousness of the other offences that I mentioned, he will withdraw his amendment in favour of the Government amendments.

Edward Garnier (Conservative, Harborough)

Amendment 203 was a fuse that I lit under the front door of the Ministry of Justice. It was quietly making its way under the door—bear in mind that it is amendment 203—when the Minister woke up and realised that schedule 12 was defective. So, 82 amendments later, she got down to tabling amendment 285. Well done, I say.

David Howarth (Liberal Democrat, Cambridge)

Obviously it is right to add serious and violent offences, in addition to the offences that were in the clause originally, although it seems an extraordinary way round for the error to have been made. One can easily imagine the error being made the other way around, with the serious offences going in but a lot of less serious offences that the Government intended to be in being missed out. We need some explanation as to the order of events, which seems peculiar.

Having said that, there is a particular aspect of the clause that needs some comment. Automatic eligibility for special measures is being enacted for a broad range of offences, without there being any test on the effect of the measures on the quality of the evidence. Normally, in this particular area of the law, the test is whether, in various different ways, the application of the special measures improves the quality of the evidence. Why is that test being missed out now? That is especially true given the proper addition of the offences under the amendments. We are in a position where a large number of offences and proceedings will automatically attract special measures. The Government said in the impact assessment—or perhaps somewhere else—that 24 per cent. of all violent crimes involve the use of weapons in some way; we are now talking about where weapons are alleged to have been carried. The question is whether courts are prepared for the extent of the special measures that the amendments seem to imply.

Bridget Prentice (Labour, Lewisham East)

All that I can say to the hon. Member for Cambridge is that that was an unfortunate omission to schedule 12 in the course of putting this particular part of the Bill together. Clearly, as they are the more serious offences, it is, as he said, rather unusual that it should happen.

The answer to the hon. Gentleman’s question is that the Youth Justice and Criminal Evidence Act 1999 defines intimidated witnesses as those whom the court judges are likely to have the quality of their evidence diminished due to fear or distress connected to testifying in criminal proceedings. To determine whether a witness is intimidated, the court must take into account factors such as the nature and alleged circumstances of the case, the age of the witness, the social, cultural and ethnic background of the witness and any behaviour towards the witness by the accused or their associates. In many cases, it is likely that a witness to certain gun and knife offences will satisfy those criteria and therefore qualify for special measures. The amendments to the clause and to schedule 12 will remove the need for the court to consider whether the witness is eligible. But the court will still have to agree which particular special measures, if any, are used in a case when deciding whether they will improve the witness’s evidence, after taking into account the witness’s views.

Jeremy Wright (Conservative, Rugby and Kenilworth)

The point that the hon. Member for Cambridge was making, as I understand it, is that the difference in the clause is that it breaks the link between the quality of the evidence given by the witness in question and the reasons why that witness needs or seeks special measures. Instead, the clause has a link between the type of offence and the special measures. I am not clear—I do not think that the hon. Gentleman is, either—why that is a better link, unless the Government’s argument is that there is merit in not permitting a jury to believe that one particular defendant is more guilty than another, simply because the witnesses against that defendant are giving evidence with special measures. But if that is the Government’s argument, why do they not simply argue for special measures for all witnesses under the age of 18 in all circumstances?

Bridget Prentice (Labour, Lewisham East)

The Bill makes eligibility for special measures automatic for the specific class of witnesses, and I have listed the types of things that will be involved. The court will still have discretion to determine whether a particular special measure will be available. It will only make the measure available if it is satisfied that the measure will improve the quality of the evidence of that particular witness, and whether the measure might inhibit the evidence being tested effectively. That is why the clause is written in that way.

Schedule 12

Clause 83

Edward Garnier (Conservative, Harborough)

I beg to move amendment 409, in clause 83, page 47, line 31, leave out from ‘(ba)’ to first ‘the’ in line 33.

Frank Cook (Labour, Stockton North)

With this it will be convenient to discuss the following:

Amendment 208, in clause 83, page 47, line 33, after ‘part,’, insert

‘and the court is satisfied that the witness’s wish is based on informed consent or a real understanding of its consequences,’.

Amendment 410, in clause 83, page 48, leave out lines 3 to 7.

Amendment 209, in clause 83, page 48, line 16, leave out ‘take into account’ and insert ‘be satisfied about’.

Amendment 411, in clause 83, page 48, line 18, at end insert—

‘( ) where a defendant is under the age of 18, the age and maturity of that defendant;’.

Amendment 210, in clause 83, page 48, line 24, after ‘witness’s’, insert ‘sex,’.

Edward Garnier (Conservative, Harborough)

We come to provisions concerning special measures directions for child witnesses. Amendment 409 provokes a discussion about those measures. Section 21 of the Youth Justice and Criminal Evidence Act 1999 is proposed to be amended by clause 83. Section 21 is a fairly lengthy and dense provision. We are concentrating on section 21(4), which says that the primary rule in relation to special provisions relating to child witnesses is subject to the following limitations:

“(a) the requirement contained in subsection (3)(a) or (b) has effect subject to the availability (within the meaning of section 18(2)) of the special measure in question in relation to the witness;

(b) the requirement contained in subsection (3)(a) also has effect subject to section 27(2); and

(c) the rule does not apply to the extent that the court is satisfied that compliance with it would not be likely to maximise the quality of the witness’s evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason).”

Not only would we amend that, but subsection (4) also sends tentacles off into other parts of the 1999 Act. We are being required to play quite a complicated game of snakes and ladders.

The beginning of amendment 409 seeks to ensure that the special measures directions for child witnesses provide adequate protection for them. The way in which section 21 of the 1999 Act is amended is apt to do what the Government intend. Amendments 409 and 208 concentrate on proposed new paragraph (ba) to section 21 of the 1999 Act:

“if the witness informs the court of the witness’s wish that the rule should not apply or should apply only in part,”—

that the special measures should be ignored or limited—

“the rule does not apply to the extent that the court is satisfied that not complying with the rule would not diminish the quality of the witness’s evidence”.

I suspect that that means that if the witness does not want it, they do not have to have it. It might be more sensible to state that if that is what the witness wants, the court needs to be satisfied that the witness understands the consequences of what they are agreeing to.

Amendment 208 deals with that. It states:

“the court is satisfied that the witness’s wish is based on informed consent or a real understanding of its consequences.”

We do not want auto-suggestive children agreeing to do something because a grown-up tells them that it is a good idea. The court needs to be satisfied that whatever the mental maturity of the child—the person under the age of 18—they understand what they are being offered, what that means, and what would happen were they to refuse it or only accept it in part. We mentioned that earlier in relation to developmental maturity and provocation.

Amendment 410 deals with proposed new subsection (4B) to the 1999 Act. It makes reference to proposed new subsection (4A), which it would be helpful to read out:

“Where as a consequence of all or part of the primary rule being disapplied under subsection (4)(ba)”—

which we have just discussed—

“a witness’s evidence or any part of it would fall to be given as testimony in court, the court must give a special measures direction making such provision as is described in section 23 for the evidence or that part of it.”

Section 23 of the 1999 Act deals with screening a witness from the accused with a physical barrier.

Proposed new subsection (4B) states:

“The requirement in subsection (4A) is subject to the following limitations—

(a) if the witness informs the court of the witness’s wish that the requirement in subsection (4A) should not apply,”—

that they do not want to be screened—

“the requirement does not apply to the extent that the court is satisfied that not complying with it would not diminish the quality of the witness’s evidence”.

That is the same point and the same argument; I do not need to repeat myself. We just need to ensure that the child witness understands the consequences of not being screened, if that offer is made.

Amendment 209 deals with a slightly different point. Subsection 83(6) states:

“After subsection (4B) (inserted by subsection (5))”

insert into the 1999 Act

“(4C) In making a decision under subsection (4)(ba) or (4B)(a), the court must take into account the following factors (and any others it considers relevant)—

(a)the age and maturity of the witness;

(b)the ability of the witness to understand the consequences of giving evidence otherwise than in accordance with the requirements in subsection (3) or (as the case may be) in accordance with the requirement in subsection (4A);

(c)the relationship (if any) between the witness and the accused;

(d)the witness’s social and cultural background and ethnic origins;

(e)the nature and alleged circumstances of the offence to which the proceedings relate.”

It must be great fun to draft these provisions. The Government might say that proposed new paragraph (b) deals with my arguments in relation to amendments 208 and 410. If they do, I shall be happy. If they do not, perhaps they will explain how children are to be protected adequately.

My complaint about proposed new section (4B)(b) is that the English it uses is almost impenetrable, such as

“the requirement does not apply to the extent that the court is satisfied that making such a provision would not be likely to maximise the quality of the witness’s evidence so far as practicable (whether because the application to that evidence of one or more other special measures available in relation to the witness would have that result or for any other reason)”.

I am getting a David Thomas moment. It is well worth your meeting him, Mr. Cook. If the hon. Member for Cambridge can whip you up to Cambridge on the train and introduce you to Mr. Thomas, you will be given a demonstration of poetry in motion. David Thomas will be wandering around a lecture room, reading out those words with a demented look in his eye that he has borrowed—the demented look, not the eye—for the purposes of destroying through ridicule the Government’s drafting of legislation in totally impenetrable English. It is not necessary to draft even the criminal law in words that are almost impossible to understand, so let us see if we can do better than the provision. I do not know whether my reasoning amounts to an argument in favour of an amendment, but it is a plea.

Amendment 411 would insert at the end of proposed new section (4C)(a), which deals with the age and maturity of the witness, a provision that deals with the age and maturity of the defendant. Other provisions in the canon of the criminal law might protect the defendant’s interest in such cases, but we are talking about special directions for child witnesses. If the child witness is to be adequately protected, we also need to make sure that the child defendant under the age of 18 is aware of the consequences of the witness deciding either to accept or not to accept a screening or special provision.

Amendment 210 would add “sex” after “witness’s” under proposed section (4C)(d). I want to add that as another factor in addition to

“social and cultural background and ethnic origins”.

I accept that, in these days of equality, such a change might not make much difference, but it probably would in reality. Young boys and young girls often react differently to certain circumstances and it is important that the court takes into account the sex of the witness in the case of youngsters. Whether they do that in relation to adults is another matter, but that is not germane to our current discussions.

It is difficult to create a legislative audit of the origins of clause 83, which often happens with criminal justice legislation. However, the Government are not only making a rod for their own back, but providing an opportunity for law lecturers to earn a lot of money poking fun at them. I just want clarity.

David Howarth (Liberal Democrat, Cambridge)

The idea of law lecturers making a lot of money is rather amusing. David Thomas spent a year trying to teach me criminal law with only limited success. He spent another year teaching me criminology with more success, however.

I am also having some difficulty in understanding clause 83. I am grateful to the hon. and learned Gentleman for tabling some amendments, in good faith, to clarify the intent. I shall say what I think the intent is and ask the Government one question.

The intent seems to go along with the definitive criticism of how the provisions have worked until now. Bodies such as the National Society for the Prevention of Cruelty to Children and Victim Support have said that there should be some element of choice for the child witness and that there ought to be a clearer connection between special measures and the quality of the evidence. I hope that that is what is going on. If so, it is a good thing and I agree with it, but it throws into relief what is happening under clause 82, which seems to go in the opposite direction. In clause 82, the Government seem to be going for more automatic special measures, but in clause 83 they seem to be responding to legitimate criticism of the automatic system and moving towards a more flexible—perhaps better—system. There seems to be a contradiction between clauses 82 and 83.

Bridget Prentice (Labour, Lewisham East)

There is a large measure of agreement throughout the Committee about the protection of child witnesses and about making sure that they understand what is happening and are taken through that in a proper fashion by the court.

In response to the amendments tabled by the hon. and learned Member for Harborough, there are reasons for clause 83 to be written as it is—apart from proposed new section 4B(b), which he rightly said makes plain English stand on its head. When special measures were introduced in the Youth Justice and Criminal Evidence Act 1999, it was thought that all children should be protected from giving evidence in the courtroom. The present system is for all child witnesses to give their evidence in chief by a video-recorded statement, if one is made, with further questioning taking place via live link.

On reflection, we feel that that is a rather rigid presumption that disregards the wishes of the child witness. Those particular measures have been in force for more than six years, and we have since had the benefit of independent research, which has involved interviewing young witnesses. The result was that many young witnesses wanted more choice in how they gave their evidence. That was supported by a review of child evidence that led to the public consultation in 2007. In that consultation paper, we proposed that the legislation should be amended to give young witnesses more flexibility, subject to suitable safeguards. As the hon. Member for Cambridge has said, almost all those who responded were in favour.

As a result, clause 82 removes the rigid provisions and abolishes the distinction between child witnesses in sex and violence cases and in other cases, providing one rule for all. The provisions, however, retain the existing presumption that the child witness will normally give their evidence by video-recorded statement and/or live link, but it allows the flexibility for them to opt out of that presumption, if the court agrees. The aim is to make sure that accepting the opt-out will not diminish the quality of the child’s evidence. If that is agreed and a child will be giving evidence in a courtroom, there is still a presumption that the child will give evidence from behind a screen. Again, should the young witness not wish to use the screen, they will be allowed to opt out, but that too is subject to the agreement of the court.

Thus, there will always be stopping points, at which the court will look carefully at the young person’s wishes before it decides to abandon the normal presumption. The court must take a number of specified factors into account, including the age and maturity of the witness, which might not always be at the same level. Sometimes, a 14-year-old is more mature than a 16-year-old and so on, and the court will have to look at that in some detail.

Amendment 208, tabled by the hon. and learned Gentleman, says that the court must be

“satisfied that the witness’s wish is based on informed consent or a real understanding of its consequences,”.

I agree with that. It is important that a young witness understands the consequences of opting out in order to give evidence in a courtroom. However, as he pointed out, we believe that that is covered under subsection (6) because the court must take into account the ability of the witness to understand the consequences of the decision when considering the effect of the request to opt out.

Amendment 209 amends subsection (6), so that rather than being required to take the specified factors into account, the court has to “be satisfied” about them. That would turn the considerations into a more rigid set of conditions before the opt-out could be approved, which would probably make it more difficult for approval to be given.

I also suggest that there are other, slightly less important, parts to that provision that make it unworkable. For example, it is rather odd to suggest that a court would need to be satisfied about a witness’s age or ethnic origins, as that ought to be fairly clear. The policy that we propose tries to meet the needs of the individual child witness, rather than have a one-size-fits-all approach. The court needs some flexibility in taking into account the relevant factors within each case. On the whole, we should be able to trust a court to exercise its discretion on a case-by-case basis. On that basis, I am reluctant to accept the amendment.

I do not really understand the need to add the sex of the witness to the list of factors that the court must consider. I would be concerned if the court were to make a decision based purely on that, and there is the possibility that it might be regarded by some as discriminatory. If the witness’s sex is relevant, the judge would already be entitled to take that into account under subsection (6), because he or she can take into account any other factors that they consider relevant.

Tim Boswell (Conservative, Daventry)

I suspect that some of the concerns expressed relate to multiple factors. For example, within some groups of particular ethnic populations there could be a concern about sex in conjunction with their ethnicity, and there might be a strong cultural presumption against giving evidence, or some fear of doing so. Is it not important to ensure that all those factors are at least available as part of the court’s consideration?

Bridget Prentice (Labour, Lewisham East)

The hon. Gentleman has almost answered that question by talking about cultural considerations. A court should be aware that the sex of a witness might have a bearing within those cultural considerations. That should be taken into account in the generality of the factors that the court should look at.

Amendments 409 and 410 reflect a different approach by the hon. and learned Gentleman to the provisions. They remove the ability of the child witness to opt out from both the primary rule—giving evidence by live link and video recorded statement—and from the fall-back presumption of giving evidence in a courtroom behind a screen. That would defeat the purpose of the changes that we are making and it would leave us with the current, rather inflexible, system. I understand the principle behind the hon. and learned Gentleman’s suggestion—he wants to ensure that young witnesses remain adequately protected—but, as I said, we have consulted young witnesses, and they do not want the measure. We are fairly confident that the court will be able to supervise the opt-out arrangements and will properly safeguard the interests of the young witness. The final decision remains with the court, not the witness.

I should add that before David Thomas has to go through proposed new section 4B(b), we will have a look at it, if only to see whether putting in the odd comma, full-stop, or other punctuation will make it a bit clearer.

Finally, amendment 411 would extend the presumption of evidence by video statement and live links to all young defendants under 18. I agree that young defendants need to be properly protected in the court, and that they need to understand what is happening and why, but section 16 of the Youth Justice and Criminal Evidence Act 1999, which the clause amends, specifically excludes the defendant as a witness for the purposes of special measures.

Special measures were introduced to assist vulnerable or intimidated prosecution and defence witnesses, aside from the defendant, to give their evidence effectively and to reduce the stress of doing so. Young defendants are in a different situation. A number of procedures are already available to assist them. A judicial practice direction sets out guidelines for the courts on the treatment of vulnerable defendants, including the young, so that they understand and so that they can participate properly in their trial. Provisions in the Police and Justice Act 2006 make live links available to vulnerable defendants who require assistance when giving evidence. Also, as we will discuss when we come to clause 87, intermediaries will be available to assist vulnerable defendants giving evidence.

I hope, on that basis, that the hon. and learned Gentleman will feel able to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

It is probably unfair to keep bringing David Thomas into these discussions. He has now retired from giving lectures at the Judicial Studies Board, and I think John Spencer and Nicola Padfield are the current victims who have to go through the piles of Government legislation that spew out from the Home Office and Ministry of Justice. I am sure that whichever of them is at the next JSB meeting that I will attend in April will be utterly delighted to learn what the Minister said about proposed new section 4B(b). Actually, they might not, because she might deny them an opportunity to poke fun at the Government—perhaps I can do it for them. If the Government can come up with something better and less unintelligible, we will have achieved something.

I accept that it is not necessary for the court to have proved that the factors in subsection (6) are established to a high standard. However, merely “taking into account” is a bit vague, especially in relation to paragraph (b), which states

“the ability of the witness to understand the consequences before giving evidence otherwise than in accordance with the requirements”.

Magistrates and judges will take their duties under the new provisions seriously, and they will not just do so on a whim or take a rush at it. They will want to be persuaded by evidence of one sort or another, either informally or formally, that the child in question knows what they are about, so I will not be so untoward as to press the amendment to a Division—heaven forfend. However, when we construct legislation, we should not rush in as the Government have. I ask them to please stop this constant avalanche of legislation that needs to be amended by them during our deliberations. I have no doubt that on Report, we will see a raft of Government amendments. Moreover, as the Bill progresses through the other place, I am sure that there will be yet more Government amendments. That undermines the confidence that I have, let alone the public, in the Government’s ability to construct legislation. None the less, I am grateful to the Minister for what she has said, and beg leave to withdraw my amendment.

Clause 84

Edward Garnier (Conservative, Harborough)

I beg to move amendment 211, in clause 84, page 48, leave out line 44.

The amendment seeks to delete subsection (2) , which states:

“This section does not apply if the place of trial is a magistrates’ court.”

We are dealing with special provisions relating to sexual offences. My simple question about subsection (2) is, why not?

Bridget Prentice (Labour, Lewisham East)

The amendment would extend to the magistrates court automatic admissibility of video recorded statements as evidence in chief for the complainants of sex offences. I know that the hon. and learned Gentleman recognises the need for special measures for complainants of rape and other sexual offences because of the trauma involved.

It is right to focus on the serious sex offence cases by giving early certainty to complainants in offences such as rape about the way in which they are likely to give their evidence in court. Those offences are tried in the Crown court, and, on that basis, we have limited the presumption of admissibility to that court. That does not mean that video-recorded statements are not admissible in magistrates court. The legislation simply establishes that the presumption of admissibility is not applicable.

We have already introduced automatic eligibility for complainants in sex offence cases for special measures unless they wish to opt out. At present, such video-recorded statements are admissible if the court decides that their use will maximise the quality of the complainant’s evidence. That will remain the position for magistrates courts. I hope that that gives the hon. and learned Gentleman some explanation as to why we have not extended the provisions to magistrates courts.

Edward Garnier (Conservative, Harborough)

I heard what the Minister had to say. While she was reading her speech, I was quickly looking through section 22 of the Youth Justice and Criminal Evidence Act 1999. I want to see how proposed new section 22A would fit into section 22 and I am not sure whether the Minister has assisted me very much. It may be that I have not been listening properly. I do not see the point of having a circular argument about it now, but someone needs to have a think about it, and that may be me in due course. For the moment, I beg to ask leave to withdraw the amendment.

Clause 85

Edward Garnier (Conservative, Harborough)

I beg to move amendment 212, in clause 85, page 49, line 44, at end insert—

‘(1C) Particulars of the specified person’s name, age, sex, qualifications and relationship, if any, to the witness must be provided to the court and to all other parties to the proceedings by the party calling the witness.’.

The clause deals with the presence of a supporter while a vulnerable witness gives evidence by a live link. What we seek to do is to require that particulars of the specified person’s name, age, sex, qualifications and relationship, if any, to the witness must be provided to the court and to all other parties to the proceedings by the party calling the witness.

I anticipate that the Government will say, “Don’t worry, this is all dealt with by the rules committee and we do not need to have this in the Bill”. However, it is important that, before we add yet more things to section 24 of the Youth Justice and Criminal Evidence Act 1999, we work out in our own minds what we intend by this clause. Who are the people who are likely to be supporters and what precisely will their role be? Are they there simply to be passive hand-holders or are they more akin to social workers, who have literally a more supportive role to ensure that the witness can give the best of him or herself while giving evidence over the video link?

Bridget Prentice (Labour, Lewisham East)

Again, I have a great deal of sympathy with the spirit of the hon. and learned Gentleman’s amendment, because it will be absolutely necessary for the court to have the details of the supporter before any direction can be made. However, he rightly anticipated that I will say that this is a role for the rules committee rather than for primary legislation. As much as anything, that is because the application procedure for special measures is set out in criminal procedure rules. As the committee is revising both the rules of the court relating to special measures and the application form, it seems to me that it would be more appropriate to leave it to that committee to consider the point that he makes.

The hon. and learned Gentleman asked about the type of person who is likely to be a supporter. Obviously, at present there are supporters accompanying witnesses in the TV link room, but the process is not governed by statute. This is a sensitive issue, so it is right that the courts have the final say. He has given the example of the type of person who might be a supporter and he is absolutely right; they might be social workers, possibly teachers, or others, who will be able to give the witness the confidence that they can present their evidence as well as possible.

In both England and Scotland, when the witness is giving evidence in a link room guidance issued by the Office for Criminal Justice Reform, “Achieving Best Evidence in Criminal Proceedings: Guidance on Interviewing Victims and Witnesses, and Using Special Measures”, makes clear that the supporter should sit next to the witness in the link room and in view of the camera. That way, the judge is able to see both the witness and the supporter, and ensure that there is no coaching going on. In fact, judges generally have the ability to see on their screens all of the room from which the witness is giving their evidence. So I hope that the hon. and learned Gentleman will be reassured on that basis that his amendments are unnecessary in this case.

Edward Garnier (Conservative, Harborough)

I beg to ask leave to withdraw the amendment.

Edward Garnier (Conservative, Harborough)

I beg to move amendment 213, in clause 85, page 49, line 44, at end insert—

‘(1D) The specified person must not give evidence on his own account.’.

Frank Cook (Labour, Stockton North)

With this, it will be convenient to discuss amendment 215, in clause 87, page 51, line 2, at end insert—

‘, but not to give evidence on his own account.’.

Edward Garnier (Conservative, Harborough)

I will not detain the Committee long on amendment 213. What we require is that

“The specified person must not give evidence on his own account.”

That would apply both to clause 85 and, under amendment 215, to clause 87.

Surely this must be a matter of common sense and it might be thought to be self-evident. I have absolutely no doubt that the judge, when introducing the live link witness and the supporter to the court, would say that it must be borne in mind that the supporter is there to support and not to give evidence on his or her own account. However, I think that somebody somewhere needs to bear that in mind. It is particularly true in big cities such as London, where I have some experience, as is recorded, that the number of foreign-language witnesses is growing.

Quite apart from the fact that it is increasingly expensive for the Metropolitan police or whoever must pay for the interpreters, I suspect that a lot of people giving evidence by live link do not speak English as a first language. Therefore, people may be doubling up as interpreters and supporters. I do not know whether that is anticipated or expected, or whether it would be permissible under the regime. We need to be careful. I am afraid that I have seen interpreters, no doubt trying to be helpful, interpreting not just the language but the answers, adding comments and reinterpreting the questions put to the witness. It creates a frightful muddle.

Tim Boswell (Conservative, Daventry)

Is that not evidenced by cases where, even allowing for the relative prolixity of one language to another, the text is markedly different in length from the one delivered by the witness?

Edward Garnier (Conservative, Harborough)

That is one of the great advantages of the Hansard writers. They cut my speeches down to the most golden English. However, I do not think that I am the only Member of Parliament who has been assisted in that regard. My hon. Friend is quite right. I shall leave it there, as I have made my point and there is no point going on for too long on a happy Thursday afternoon.

Bridget Prentice (Labour, Lewisham East)

On the basis of the reasoned way in which the hon. and learned Gentleman has put his case, I hope that I can reassure him that his amendment is unnecessary. Practice direction explicitly provides that the supporter should be completely independent of the witness and his or her family and, indeed, have no previous knowledge or personal involvement in the case. That is reinforced by criminal justice system practitioner guidance.

Clause 87, to which we will come shortly, extends the use of the intermediary to eligible vulnerable defendants if and when they give oral evidence. I will not go into that in detail now, as I am sure that we will discuss it when we reach clause 87, but I can give the hon. and learned Gentleman the absolute assurance that anyone who is otherwise wanted to participate in the trial will not be able to act as an intermediary or supporter.

Of course there is concern to ensure that the intermediary does not distort the evidence of the accused, as in the hon. and learned Gentleman’s graphic example. The job of the intermediary is to explain a question or answer; under the criminal justice system procedural guidance, no other communication between the intermediary and the defendant is acceptable. It must be open and transparent so that the rest of the court is aware of what is said and why. I hope that on that basis, he will feel able to withdraw his amendment.

Edward Garnier (Conservative, Harborough)

Of course I do. The Minister mentioned a teacher or social worker, then reminded us of the terms of the practice direction, which suggests that the supporter must not have any knowledge of the case. Clearly there will be cases in which a teacher or social worker will have intimate knowledge of the case and therefore will not be an appropriate supporter, but I take her general point. I beg to ask leave to withdraw the amendment.

Clause 86

Edward Garnier (Conservative, Harborough)

I beg to move amendment 214, in clause 86, page 50, line 10, after ‘court’, insert

‘and without the party calling that witness giving such notice to the other parties in the proceedings as the court may direct’.

This is another brief amendment that seeks to firm up the requirement to give proper notice to those interested in the matter. Clause 86 deals with video-recorded evidence in chief and supplementary testimony. In subsection (2), it says:

“the witness may not without the permission of the court give evidence in chief otherwise than by means of the recording as to any matter which, in the opinion of the court, is dealt with in the witness’s recorded testimony.”

I am not sure, but the court may have an inherent power to admit other relevant evidence. Even when the witness has already given evidence by a recorded link, or in a recorded form, the court may have the power to admit further evidence from that same witness. I suggest merely that that further evidence should not be given without proper notice to others interested in the proceedings—without the party calling that witness giving such notice to the other parties in the proceedings that the court may direct.

Again, it comes back to the court being taken by surprise. Everyone is geared up for a particular witness to give evidence by a video recording. The evidence in chief is given, the court proceeds on that basis and then the party calling that witness says, “Actually, the person who is here has something further to say.” I suspect that administratively it would be more sensible to order the giving of such evidence to be done on notice only. I will not bring the Bill to a halt over this, but it is something that needs to be thought about.

Bridget Prentice (Labour, Lewisham East)

The hon. and learned Gentleman is trying, and rightly so, to give the witnesses and the defendant—the court as a whole—a proper procedure whereby a decision can be arrived at on the grounds of justice. Clause 86 relaxes part of the previous restriction on asking further questions of a witness who has used a video-recorded statement as evidence in chief. In fact, the witness can be asked additional questions on something that has not been covered in the video-recorded statement, and also on any matters that are covered in the statement, provided that the court gives permission.

In the case of a prosecution witness, the defence will have been served with a witness’s video statement and a verbatim transcript in advance of the trial. If something arises after that video recording has been made, the witness will be invited to make either a further video-recorded or written statement, and either or both of those would have to be served on the defence. The service of further written statements by the prosecution would put the defence and the court on notice that the witness has further evidence to give in addition to what was on the video, and the prosecutor will wish to conduct supplementary examination in chief of the witness.

In cases where matters arise during the trial, the application to ask supplementary questions will have to be made then. In practice, the prosecutor will, at the appropriate stage of the proceedings, verbally advise the defence and judge. I hope to give the hon. and learned Gentleman some reassurance. As the rules committee is revising this area of work at the moment, it would be appropriate for it to consider whether any further rules and guidance need to be applied.

Edward Garnier (Conservative, Harborough)

As the Minister was speaking, I discovered that in January 2002 the Home Office communication directorate published assistance for those preparing video-recorded interviews for criminal proceedings and for those dealing with witnesses subject to special measures. It is called “Achieving Best Evidence in Criminal Proceedings: Guidance for Vulnerable and Intimidated Witnesses Including Children,” and the guidance is available from the Stationery Office and on the Crown Prosecution Service website. Isn’t that good? It may well be that that guidance is the relevant place for the Minister to go first. However, I beg to ask leave to withdraw the amendment.