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One has to draw a distinction between the legislation to which my noble friend refers and the legislation we are discussing today, although I have no complaint
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I am well aware of the case that my noble friend raises, and I will come back to it in a minute. His amendment would have a similar effect, in relation to the witness anonymity scheme in the Bill, to the possible amendments we are considering to the complainant anonymity scheme in the sexual offences cases. However, this Bill has to do with witness anonymity from the defendant, not complainant anonymity in the form of reporting restrictions, which is a case in relation to the Sexual Offences (Amendment) Act that he has referred to. The present Bill deals with witness anonymity in the sense of withholding a witness’s identity from the defendant.
I am aware of, and have debated with my noble friend, the issue of complainant anonymity in sexual offences cases. It is governed by Section 1 of the Sexual Offences (Amendment) Act 1992, which does not permit the witness’s identity to be kept from the defendant. Essentially it is a form of reporting restriction, with the aim of preventing the reporting of the witness’s identity to the wider public. If, as my noble friend suggests, a witness granted anonymity from the defendant perjures himself or herself at the trial and is subsequently prosecuted for perjury arising out of that testimony, what is the situation vis-Ã -vis the witness anonymity order? That is where Clause 6, to which my noble friend has already referred, comes in; it enables a witness anonymity order under the Bill to be discharged by the court that made the order, either on the application of any party to the proceedings or by the court on its own initiative.
That power of variation and discharge continues indefinitely, including after the trial has ended. In the situation envisaged by the amendment where a conviction was quashed by the Court of Appeal, Clause 6 would not grant the Court of Appeal a specific power to discharge the order, but it could be discharged on application to the Crown Court. In that sense, my noble friend’s amendment is unnecessary. Under the Bill, the court that makes a witness anonymity order already has a discretion to vary or discharge it, provided that there has been a change of circumstances since the order was granted. A charge of perjury would constitute such a change of circumstances.
Should proceedings for perjury in the situation envisaged by my noble friend inevitably mean that the court would want to discharge any witness anonymity order that may have been made, there is a strong argument that it should. An anonymous witness subsequently charged with perjury becomes a defendant, and there is a universal presumption against defendant anonymity.
I know that my noble friend is anxious that we report on the review. I understand that. All I can say at the moment is that we are still actively considering the
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We are attempting to strike the right balance between protecting the public from false allegations and ensuring that legitimate complainants are not discouraged from coming forward. We want to ensure that genuine complainants would not be put off by the fear, perhaps unfounded, that their identity would become known, but we are considering the issue in relation to the case that my noble friend has raised. We have no plans to lift anonymity for complainants in sexual offence cases; indeed, I readily accept that my noble friend did not argue that point at all, and he presented his case in a very measured way. I hope he will accept from me that while I do not think his amendment is necessary in this Bill, the matter he has raised is being taken seriously by the Government.
Lord Campbell-Savours: I am indebted to my noble friend. I do not want to detain the Committee, and on that basis I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11 [Pre-commencement anonymity orders: appeals]:
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Viscount Bledisloe moved Amendment No. 13:
Clause 11, page 6, line 10, leave out “the defendant did not receive a fair trial” and insert “there is a real probability that the defendant may not have received a fair trial”
The noble Viscount said: This amendment relates solely to appeals against convictions that have already taken place under the past system and where witnesses were given anonymity. Clause 11(2)(b) provides that the conviction is to be treated as unsafe if the court considers that the defendant did not receive a fair trial. The whole difficulty about anonymity is that the defendant will not know whether he received a fair trial because he does not know whether, if he had known the witness’s identity, there were a whole lot of things he could have put to the witness that would have proved them likely to be a liar, malicious and so on. The defendant will never be able to demonstrate that he did not receive a fair trial, but he may well be able to raise a sufficient case to indicate that there is a real probability that he may not have received a fair trial. That is the amendment that I propose.
This is not a matter where it is pointful for the Minister to say, “We’ll deal with this when the whole thing comes back in 12 months’ time”, because these appeals, by definition, are going to be heard in the immediate future because they are appeals against cases that have already happened. It will be little consolation to the appellants in those cases to find that in 12 months’ time, after their appeals have been dismissed, the Government recognise the validity of the point I am making and put forward a lesser test, but a test that will not be applied to almost all the cases covered by this provision. I beg to move.
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Lord Bach: I am afraid that we reject this amendment. We think it would change the basis on which the Court of Appeal, day by day, looks at appeals against criminal convictions, and that there is no justification for doing so here. The test for the Court of Appeal, as I think was said earlier, is whether a conviction is unsafe. Obviously, if a trial has been unfair, it follows that the conviction will be unsafe.
Here the law will allow that if, under the statutory powers that the Bill will give, the defendant who was convicted under the common law has received a fair trial where a witness has been allowed to give anonymous evidence, that conviction should be upheld. If, however, the defendant did not come within the statutory test that is clearly set out in the Bill, his trial will have been unfair because an anonymous witness should not have been allowed to give evidence. We think that it is as simple as that. To put in here the possibility of a real probability that a defendant may not have received a fair trial seems to us to go too far.
We do not see an argument in favour of requiring the Court of Appeal to consider whether the appellant may not have received a fair trial. The issue is: did he receive a fair trial as provided for by the Bill that we hope will be passed tonight?
We believe that the appeal court will be in a position to assess whether in its opinion the decision taken by the trial court in making the pre-commencement anonymity order was in all the circumstances fair and afforded that defendant a fair trial. If it concludes that the defendant did not receive a fair trial, then, again, the conviction is unsafe and has to be quashed.
It is for those quite simple reasons, which cover matters of broad principle, that we object to the amendment and ask the noble Viscount to withdraw it.
Viscount Bledisloe: I confess that I find that answer unsatisfactory. The defendant cannot know whether he had a fair trial; he cannot know whether, if he had known the name of the witnesses, he would have had any further questions to put. If he had known the witness’s identity, he might have called all sorts of evidence and cross-examined heavily. Alternatively, if he had known the witness’s identity, he might have had nothing further to say. How can the defendant demonstrate, therefore, that he did not receive a fair trial? All he can say is, “It does not seem to me that I had a fair trial because I did not have a chance to put the points that I might have put if I had known who was giving evidence”. I am deeply unsatisfied with the Minister’s answer. However, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Thomas of Gresford moved Amendment No. 14:
The noble Lord said: The Bill extends to magistrates’ courts. In New Zealand, if the question of anonymity arises in a district court, the case is automatically transferred to the high court for trial. The Government have chosen not to follow the New Zealand pattern in this respect. It is a test of the exceptionality of the
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In principle, this provision is unacceptable for a number of reasons. In the first place, the application has to be made to the magistrates who actually hear the case. At the beginning of the trial, the magistrate is confronted with an application for anonymity which must be on the basis of threats, fear or misconduct on the part of the defendant or his associates. That inevitably means that the magistrates will be heavily prejudiced against the defendant before the matter is heard at all.
Secondly, there is no provision in the magistrates’ court—no inherent jurisdiction—to appoint the sort of special counsel that the Government concede the High Court and the Crown Court can grant. Their answer to our request for independent counsel to be included in the Bill is, “You already have it”. There is an inherent power in the Crown Court or in the High Court for special counsel to be appointed. That does not of course apply to the magistrates’ court. So that safeguard, which the Government say is sufficient for this emergency legislation, is not available either.
One then has to consider the gravity of the offences that are to be subject to such an order. The noble and learned Baroness, who is not in her place just at the moment, mentioned the possibility of breaches of control orders being before the magistrate. Surely dealing with anonymous witnesses is sufficiently important for the case to be transferred to the Crown Court for consideration of that point. There should be machinery in place to do that.
Another argument advanced by the Government is that youth courts try more serious offences than the average run of the magistrates’ court. That may be so, but all the problems that I have outlined in relation to adult magistrates’ courts apply to youth courts. There should be built-in machinery to enable a Crown Court judge to consider a matter as serious as that if it is to be used exceptionally and not to become an everyday order made by the court.
It might be said that witness intimidation cases are heard in the magistrates’ court. There are few cases of any nature heard in the magistrates’ court which are as serious as witness intimidation. Surely if the question of anonymity arises in that respect, the matter should be put up to the Crown Court straight away. Even if there is no power to do so, that is bound to be a more serious offence than the sort of offences that commonly appear before the magistrates for their adjudication.
From the point of view of practicality, principle and the lack of the proper machinery, the inclusion of magistrates’ courts in the Bill is a step too far. It is a matter which deserves much more consideration in connection with the future Bill than it has received so far. I beg to move.
Lord Lloyd of Berwick: I support the amendment. First, I must express my apologies for not having been able to be here on Second Reading. I know the rules
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I was much concerned by the initial reactions to the decision of this House in R v Davis. I was concerned that Parliament might be asked to reverse that decision on its facts. When I read the Bill, however, and in particular the late amendment introduced by the Government in the House of Commons, which is now Clause 5(2)(c), I realised that that is not so. If the facts of Davis were to recur again tomorrow, the result would, in my opinion, be exactly the same. I am very glad of that.
My real concern now is whether the Bill should be extended to magistrates’ courts. In my view it would be a mistake, at least until we have some experience of how the Bill will work out in the Crown Courts. The Director of Public Prosecutions—this is to some extent an answer to the question of the noble Lord, Lord Thomas—could think of not a single case in which an anonymity order had been sought in the magistrates’ courts. The Lord Chancellor could think of two such cases, but they were of a very different order from the 50 so-called civilian cases and the 17 so-called Trident cases, which are the reason—the only reason—why the Bill is before us as emergency legislation.
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There are two other reasons for caution in respect of magistrates’ courts. First, there is considerable doubt about the practicability of extending the Bill to magistrates’ courts, a doubt which has been expressed in many quarters. Secondly, although there was some discussion of magistrates' courts in the other place, the other place never reached Clause 12.
This has been described by the noble and learned Baroness as an interim measure. Surely it is better not to embark on difficult and, to some extent, unexplored territory in an interim measure unless it is absolutely necessary, which in my opinion it is not. We do not want to add to the teething difficulties that the Bill will undoubtedly experience in the Crown Courts let alone the magistrates' courts.
I read with great interest what the noble and learned Baroness said in her reply at Second Reading, but, with respect, I have to say that I found that part of her reply the least satisfying. The sensible course now must be to see how the new procedure works out in the Crown Court and then apply it, if thought fit, when the new Bill comes along in the next Session. There cannot be that much of a hurry to apply the Bill to magistrates' courts. If there are urgent and important cases that might otherwise have gone to the magistrates' courts, they can always in the mean time, as the noble Lord, Lord Thomas, has explained, go to the Crown Court—there is no difficulty about that at all. I therefore hope that the Government will agree to the amendment, or at least that the noble and learned Baroness or the noble Lord, Lord Hunt, might find some way of bringing into force this part of the Bill, so far as it
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Lord Mayhew of Twysden: The arguments that have just been adduced seem overwhelming. I do not wish to delay for more than a minute the reply from the noble Lord or from the noble and learned Baroness, when we will see whether they are overwhelmed. I hope that one question will be answered when they reply. We have been reminded that the New Zealand model does not provide for similar provisions to apply to the magistrates’ court. What adverse consequence, if any, is seen by the Government to have derived from that feature of the New Zealand model that has led them to decide not to follow it in the Bill?
Baroness Butler-Sloss: I support the Bill, but it is inappropriate that it should extend to the magistrates’ court. That is my only criticism of it. Whether or not that provision is to be exceptional, as has been suggested, or it should apply only in certain circumstances, I have real concerns about it. I therefore respectfully support both noble Lords who have just spoken.
Lord Clinton-Davis: I share the opinion that has been expressed. Having had quite a lot of experience of magistrates’ courts, I think that it is entirely inappropriate to include them in the Bill. Therefore, I shall weigh in with support for the noble Lord.
Lord Hunt of Kings Heath: I am most grateful to noble Lords for their contribution to this, our final debate in Committee. It has been interesting because we spent a great deal of time during the passage of the Criminal Justice and Immigration Bill discussing the worthiness of the magistrates’ courts. It has been interesting to listen to noble Lords’ comments on specific issues relating to witness anonymity and the role of the magistrates’ courts.
Before coming to the argument, I shall answer the specific questions that were raised. While I accept that the Government need to give careful consideration to the points raised—I will suggest a way in which they intend to do so during the next few months—I point out that the status quo is that magistrates’ courts are and have been covered by witness anonymity procedures. Therefore, the Government are retaining the status quo, albeit with the safeguards that are being built into the legislation. In that sense, the Bill provides strengthened safeguards in relation to magistrates’ courts, as it does to other courts.
I am wary of citing figures. We have the results of a snapshot survey by the CPS. The number of cases of which we are aware is one case in the magistrates’ courts and one case in the youth court. It is clear that that is a snapshot survey, but it suggests that—to use the terminology of the noble Lord, Lord Kingsland, when speaking to a previous amendment—this measure appears to be used in exceptional circumstances.
The noble Lord, Lord Thomas, asked whether magistrates’ courts have the facilities for the measures that need to be taken in relation to witness anonymity. My advice is that neither the magistrates’ court nor the Crown Court automatically has specific technical
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On magistrates’ courts having no power to appoint special counsel, I must again be cautious about the information that I have. We are not aware of an example of this happening in practice, but there is no reason in principle why the magistrates’ court cannot draw on the assistance of special counsel in the same way as the Crown Court can. My understanding is that the court would write to the Attorney-General asking for an appointment to be made, as the Crown Court does, if the court felt that to be appropriate.
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