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Lord Thomas of Gresford moved Amendment No. 9:
(1) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.
(2) The court may direct the independent counsel to scrutinise on the court’s behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit.
(3) The party applying for the witness anonymity order must disclose to the independent counsel all information relating to the proceedings that is in that party’s possession.
(4) The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate and to report to him whether there are any matters relevant to the considerations set out in section 5(2)(d) and (e) which should be drawn to the attention of the court.
(5) The independent counsel shall be entitled to examine witnesses and to assist the court in its consideration of Conditions A to C in section 4.”
The noble Lord said: Everything that can be said already has been said on this. Perhaps I may add that the New Zealand legislature would understand the meaning of the term “kick and rush”, not least because our parliamentary team defeated the New Zealand parliamentary team on two occasions. I am proud to say that I refereed one of those games. It might also be known in Merthyr Tydfil and Pontypool. However, we are not happy to succumb to kick-and-rush legislation and we do not propose to set aside our right to move amendments as and when we think fit and to divide the House. I beg to move.
6.12 pm
On Question, Whether the said amendment (No. 9) shall be agreed to?
Their Lordships divided: Contents, 71; Not-Contents, 150.
Addington, L.
Ashdown of Norton-sub-Hamdon, L.
Avebury, L.
Barker, B.
Bonham-Carter of Yarnbury, B.
Bradshaw, L.
Bridges, L.
Burnett, L.
Cameron of Dillington, L.
Carlile of Berriew, L.
Clement-Jones, L.
Cotter, L.
D'Souza, B.
Dykes, L.
15 July 2008 : Column 1143
Falkner of Margravine, B.
Fearn, L.
Garden of Frognal, B.
Glasgow, E.
Goodhart, L.
Greaves, L.
Hamwee, B.
Harris of Richmond, B.
Jones of Cheltenham, L.
Kerr of Kinlochard, L.
Kilclooney, L.
Kirkwood of Kirkhope, L.
Lawson of Blaby, L.
Lee of Trafford, L. [Teller]
Linklater of Butterstone, B.
Livsey of Talgarth, L.
Low of Dalston, L.
Mackie of Benshie, L.
Maclennan of Rogart, L.
McNally, L.
Maddock, B.
Marlesford, L.
Masham of Ilton, B.
Methuen, L.
Miller of Chilthorne Domer, B.
Monson, L.
Morrow, L.
Neuberger, B.
Palmer, L.
Patel, L.
Powell of Bayswater, L.
Razzall, L.
Redesdale, L.
Rennard, L.
Roberts of Llandudno, L.
Rodgers of Quarry Bank, L.
Roper, L.
Sharp of Guildford, B.
Shutt of Greetland, L. [Teller]
Smith of Clifton, L.
Steel of Aikwood, L.
Stoddart of Swindon, L.
Taverne, L.
Teverson, L.
Thomas of Gresford, L.
Thomas of Walliswood, B.
Thomas of Winchester, B.
Tonge, B.
Tordoff, L.
Tyler, L.
Vallance of Tummel, L.
Wallace of Saltaire, L.
Wallace of Tankerness, L.
Walmsley, B.
Walpole, L.
Williams of Crosby, B.
Acton, L.
Adams of Craigielea, B.
Adonis, L.
Ahmed, L.
Anderson of Swansea, L.
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B. [Lord President.]
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bernstein of Craigweil, L.
Bew, L.
Bilston, L.
Blood, B.
Borrie, L.
Boyd of Duncansby, L.
Bradley, L.
Brennan, L.
Brett, L.
Brooke of Alverthorpe, L.
Brookman, L.
Campbell-Savours, L.
Carey of Clifton, L.
Chorley, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cobbold, L.
Cohen of Pimlico, B.
Colville of Culross, V.
Corbett of Castle Vale, L.
Corston, B.
Crawley, B.
Cunningham of Felling, L.
Dahrendorf, L.
Darzi of Denham, L.
David, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dixon, L.
Donoughue, L.
Dubs, L.
Elder, L.
Evans of Parkside, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Ford, B.
Foster of Bishop Auckland, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Golding, B.
Gordon of Strathblane, L.
Gould of Potternewton, B.
Graham of Edmonton, L.
Grantchester, L.
Grocott, L.
Harries of Pentregarth, L.
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haskins, L.
Haworth, L.
Henig, B.
Hilton of Eggardon, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howarth of Newport, L.
Howie of Troon, L.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Janner of Braunstone, L.
Joffe, L.
Jones, L.
Jones of Whitchurch, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Laird, L.
Layard, L.
Lea of Crondall, L.
Lofthouse of Pontefract, L.
15 July 2008 : Column 1144
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Maginnis of Drumglass, L.
Massey of Darwen, B.
Mawson, L.
Maxton, L.
Mitchell, L.
Morgan, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Morris of Handsworth, L.
Morris of Yardley, B.
Murphy, B.
O'Neill of Clackmannan, L.
Patel of Blackburn, L.
Pendry, L.
Pitkeathley, B.
Ponsonby of Shulbrede, L.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Quin, B.
Ramsay of Cartvale, B.
Rea, L.
Rendell of Babergh, B.
Richard, L.
Rogan, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B. [Teller]
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Slynn of Hadley, L.
Snape, L.
Soley, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Uddin, B.
Warner, L.
Warwick of Undercliffe, B.
Watson of Invergowrie, L.
Wedderburn of Charlton, L.
West of Spithead, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Winston, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.
Resolved in the negative, and amendment disagreed to accordingly.
6.21 pm
Lord Thomas of Gresford moved Amendment No. 10:
(1) The Lord Chancellor must adopt and publish, within 84 days of the passing of this Act, a code of practice which shall set out—
(2) When deciding whether or not to grant an order under this Act, and in deciding upon what measures to include in such an order, the court must take into account the degree to which the party applying for the order has complied with his or her responsibilities under the code of practice and any effect which non-compliance may have upon the ability of the court, the jury or the parties to have adequate information upon which to assess the witness.”
The noble Lord said: This amendment raises the issue of a code of practice, which should be published within 84 days, setting out what steps a party making an application has to take,
- “to investigate any matter which might reasonably affect the credibility of the witness or demonstrate partiality or motivation upon the part of the witness not to tell the truth ... the nature of any information to be given; and ... the nature and contents of records which must be kept relating to such an investigation”.
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It is proposed that when the judge comes to decide whether an order should be made, he takes into account whether the party applying for the order has complied with those responsibilities.
We are returning to the issues that were graphically outlined by the noble Lord, Lord Elystan-Morgan, about a judge having material on which to exercise his judgment and discretion. The closer we can get to that, so that the judge can make an informed decision, the better. I do not intend to extend my submissions on this amendment. I beg to move.
Baroness Scotland of Asthal: I commend the noble Lord on his elegantly short exposition in support of his amendment. Perhaps I may say straightaway that we agree absolutely that when considering an application for witness anonymity, the court must have before it all the relevant information and that those making the application must do so diligently after making all the necessary inquiries. We agree with the noble Lord, Lord Elystan-Morgan, on this and we agree with the comments made in support of it by the noble Lord, Lord Thomas. But I should point out that much of this territory is already covered by a code of practice made under Section 23 of the Criminal Procedure and Investigations Act 1996 which requires police officers to pursue all reasonable lines of inquiry and sets out in detail the manner in which police officers must retain, record and reveal to the prosecutor any relevant material obtained in a criminal investigation.
We recognise the need for guidance for practitioners and the enforcement authorities, but we are not currently convinced that a statutory code of practice is the right vehicle for it. If the Bill receives Royal Assent, both the Director of Public Prosecutions and I will issue guidance to prosecutors that will make it clear that in this area more than any other it is critical that prosecutors act independently of the police and the witness. In addition, I understand that the National Policing Improvement Agency and the Association of Chief Police Officers are working on guidance for the police that will address the use of anonymity at the pre-charge stage of an investigation.
The amendment does not specifically address the question of defence applications. It is assumed that the code of practice would be intended primarily for prosecutors. It is inevitably the prosecutor who must conduct inquiries into witnesses and who therefore must always know the real identity of a defence witness, a matter that was raised in our earlier discussions. In the light of my assurance that appropriate guidance will be issued to the police and prosecutors, I hope that the noble Lord will agree to withdraw his amendment.
Perhaps I may also say at this point that I have been very taken with the concerns expressed by my noble friend Lady Mallalieu, and I should like to assure her and the Committee that we will take all these matters into consideration when we come to look at this issue.
Lord Thomas of Gresford: I am grateful to the noble and learned Baroness the Attorney-General for her assurance that guidance will be issued, and no doubt that guidance will be made public so that practitioners are able to access it and make submissions in relation to it. I look to her for an assurance of that kind.
15 July 2008 : Column 1146
Baroness Scotland of Asthal: The noble Lord will know that there are two forms of guidance. One is the guidance of the Attorney-General and the other comes from the Director of Public Prosecutions, which goes directly to prosecutors to assist them in relation to making their decision. Both sets of guidance will be available in the usual way.
Lord Thomas of Gresford: I am much obliged to the noble and learned Baroness. I am pleased to hear her say that in this area above all others a prosecutor must be certain to act independently of the police, and in that eventuality I am sure she will agree with me that there should be no question of the police offering anonymity to witnesses and thereby binding subsequent procedures that may take place either in charging or in the prosecution of a case in court and in applications made to the judge. That, I think, is the import of what she has said, and unless she indicates otherwise, I am happy with it. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 pm
Lord Campbell-Savours moved Amendment No. 11:
A person, or persons, who has been granted anonymity in a court of law for the purposes of giving evidence in a trial of a person charged with an offence of rape may lose that anonymity where the following circumstances apply—
The noble Lord said: This is a simple amendment which should be welcomed by the Government as it seeks to bring into law only that which the Government already appear to have in mind for inclusion in primary legislation. It develops the principle of discharge as set out in Clause 6 of the Bill. Furthermore, it is a transparency amendment, one in a series of such amendments that I have been introducing during the consideration of a number of Bills. These transparency amendments provide members of the public with the information they require to enable them to make more informed judgments in the conduct of their personal lives and in the decisions they take. The beneficiaries here would be men whose actions might be influenced by the availability of such information.
The amendment stems directly from a number of highly-publicised cases, in particular that of Warren Blackwell, a man who spent three years in prison for a crime that he did not commit. Warren Blackwell, a Midlands businessman of impeccable reputation, had been convicted on the basis of a tissue of lies from a woman who had a history of false allegations and a conviction for robbery. Over a period of 17 years,
15 July 2008 : Column 1147
Following the efforts of a policeman and the diligence of Annie Johnston, a barrister, in 2004 the Criminal Cases Review Commission intervened and referred the whole case back to the Court of Appeal on the basis that the conviction was unsafe. The judge reversed the conviction. The problem was that the accuser, whose background had been exposed, could not be named because of the provisions in the Sexual Offences (Amendment) Act 1992. Under that Act, whereas under Section 3 the trial judge has a “get out” discretion, as I call it, to remove lifelong anonymity, in the Court Appeal the judge does not have that discretion.
In the Blackwell case in the Court of Appeal, Lady Justice Hallett said:
“The judgment we have delivered gives rise to the concern that there may in the future be another case in which this complainant makes similar allegations against another man. If that were to happen, it would be in the interests of justice that the alleged attacker should be able to find out about and use in his defence the information contained in the report of the [CCRC] and referred to in this judgment. Parliament does not appear to have contemplated the risk of a complainant acting as this complainant is alleged to have done. We are concerned that there appears to be no means by which we can displace a complainant’s entitlement to anonymity in the interests of justice for any person against whom she may make allegations in the future”.
Before anyone argues that I am calling for an end to anonymity for all women, I wish to make it clear that this is not the case. I am not arguing that anonymity of the accuser should automatically be lifted where a defendant is not found guilty. A rape may well have taken place and the prosecution may have been unsuccessful because of jury prejudice, an insufficiency of evidence or even jury concerns over the scale of penalty which might be imposed for what some jurors might feel is an act on the margins of consent and compulsion. In other words, we cannot condemn the great majority of women who allege rape but cannot convince a jury in a court of law. My amendment does not penalise them.
However, a small minority are telling lies and their lies and false allegations are often uncovered only when their history of false allegations is exposed. Men have a right to be protected from false allegations and a right to know that the development of a relationship with a serial false accuser, who may make an accusation of rape, can ruin their lives. I am aware of a number of cases where false allegations have destroyed men’s reputations and even led on some occasions to suicide. My amendment will affect very few cases. According to an answer given on 23 February 2007, only 32 rape cases have been referred to the Criminal Cases Review Commission since 1997, an average of three a year. My amendment seeks to deal only with cases referred
15 July 2008 : Column 1148
The question is whether this Bill is the right vehicle for such an amendment. Not absolutely, but it is very near to being a vehicle. I understand the distinction that my noble friend may wish to draw at the Dispatch Box today, but that is for the Government to consider and Parliament to decide upon. We know that the Government are sympathetic. I understand that my right honourable friend Mr Mike O’Brien, a Member of the other House, as Solicitor-General, in early 2007 told the Times newspaper that:
with which I agree. However, his departmental brief went on to say that,
- “Ministers are looking at a very restricted power that might be used where it would be in the ‘interests of justice’ to lift anonymity in the case of complainants whose allegations were found to be unsubstantiated and the conviction squashed by the Court of Appeal”.
When he was Attorney-General, my noble and learned friend Lord Goldsmith told the House in reply to a question from myself:
“I have said that we are considering this matter. I am prepared to say that we are actively considering this matter. Subject to other ministerial colleagues, I hope that we shall still reach a decision soon”.—[Official Report, 9/1/07; col. 111.]
“As we have made clear, the Government are considering whether the law on complainant anonymity requires amendment in the light of the Court of Appeal judgment in the Blackwell case”.—[Official Report, 9/1/07; col. 109.]
Later that month, my noble and learned friend Lady Scotland, who is in her place—I understand that she was a Home Office Minister at the time—stated:
“The rules governing complainant anonymity are set out in statute—namely, the Sexual Offences (Amendment) Act 1992 as amended—and primary legislation would be required to amend them”.
This is primary legislation. She went on to say that,
- “we are considering actively whether any amendment of the law is appropriate to take account of the remarks of the Court of Appeal in the Blackwell case”.—[Official Report, 16/1/07; col. WA 137.]
I make that one Solicitor-General, one Attorney-General who was at the time a Home Office Minister and one former Attorney-General. I support them in their endeavours. This is an opportunity and I hope that they support my amendment today. I beg to move.
Lord Hunt of Kings Heath: I congratulate my noble friend on his ingenuity in bringing this matter to the Committee’s attention. In addition to the wise words he has quoted from esteemed and former colleagues, we have had the enjoyment of two Oral Questions on this matter in the past few months, when I, as a humble justice Minister, also added my name to the review to which my noble friend has referred. When the substantive Bill is brought before your Lordships’ House in the next Session, my noble friend will undoubtedly wish to take part in those discussions.
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