David
Howarth: I have only one question: why do the amendments
not include even more protection for the person who is the subject of
the order? One would have thought that if one were moving in that
direction, one would go so far even to say that the order should not be
discharged without the person’s consent. Given what was said in
the previous debate about trying to use the orders to give people
confidence that their names will not be made known to the offenders,
any risk that their name might come out without their consent would put
people off coming forward in the first
place.
Maria
Eagle: In response to the hon. Member for North-West
Norfolk, these processes are not prefect, as he accepted. We thought
things through to get the basic position right, and we thought that we
had got it right, but we had not anticipated that the orders would be
discharged. An individual might want the order discharged and there
could be a set of circumstances in which it would be more appropriate
for it to be discharged. It is in relation to those circumstances that
we have ended up with Government amendments of this
nature. I
will not suggest that the process is perfect. Those of us, including
the hon. Member for Daventry, who have had ministerial experience, know
that nothing is ever perfect in ministerial or legislative life. We do
our best and we sometimes have to produce amendments, which has been
done with the aim of trying to dot the i’s and cross the
t’s. People have come up with fairly unlikely sets of
circumstances that might be presented to the magistrate dealing with
these issues, and we have tried, through an iterative process, to get
rid of the potential difficulties. One suspects that such a situation
will always occur as we reflect further and look at what we have in the
Bill. We do our best to minimise such a situation occurring, but
Ministers have to hold their hands up to it when it
does.
Mr.
Boswell: As the Minister kindly and graciously mentioned
me, perhaps she would like to bear in mind the awful warning of her
colleague, the Secretary of State for the Home Department, the right
hon. Member
for Redditch (Jacqui Smith), who, when introducing an education Bill,
boasted all the way through that she would not accept any amendments,
and she did not—although we had some lively discussions.
However, in the end, she was defeated by the fact that it had been
introduced in another place and so she had to table a privilege
amendment to send it back to that place. However hard one tries, one is
not going to get it right. We understand and appreciate the spirit of
the Minister’s response to our concerns about these
issues.
Mr.
Garnier: The lesson that I draw from the Minister’s
comments is that she would like the Bill to be broken up into six or
seven discrete Bills so that she would have much more time to get the
subject matter right in each. I am sure that that is what she really
meant.
10.15
am
Maria
Eagle: The hon. and learned Gentleman is over-interpreting
what I said. I was trying to tell the Committee about my practical
experience of ministerial life, which the hon. Member for Daventry will
understand. There is never enough legislative time to have as many
Bills as we, as legislators, would like, but we do our best with what
we have. The formulation suggested by the hon. Member for Cambridge
would have been another, perhaps more elegant way of achieving what we
want, and I will have to think about it, although it may have
disadvantages that are not at the forefront of my mind at present. In
any event, we try to do our best.
Amendment
279 agreed to.
Amendments
made: 280, in
clause 65, page 39, line 4, at
end insert— ‘( ) If an
application to discharge an investigation anonymity order is made by a
person other than the person specified in the order, the justice may
not determine the application
unless— (a) the person
specified in the order has had an opportunity to oppose the
application, or (b) the justice
is satisfied that it is not reasonably practicable to communicate with
the
person.’. Amendment
281, in
clause 65, page 39, line 5, after
second ‘to’, insert ‘a judge
of’. Amendment
282, in
clause 65, page 39, line 7, leave
out subsection (6) and
insert— ‘(6) If during the
proceedings a party indicates an intention to appeal against a
determination to discharge the investigation anonymity order, a justice
of the peace who makes such a determination must provide for the
discharge of the order not to have effect until the appeal is
determined or otherwise disposed of.’.—(Maria
Eagle.) Clause
65, as amended, ordered to stand part of the
Bill.
Clause
66Delegation
of
functions Question
proposed, That the clause stand part of the
Bill.
Mr.
Garnier: I have a brief question for the Minister. The
clause deals with the delegation of functions of chief officers of
police in various organisations, the Director of Public Prosecutions,
the Director of Revenue
and Customs Prosecutions—I will not go through the whole list, as
it is set out in subsections (1) to (7). Would it not be sensible for
somebody to tell us, either in the Bill or in some other publicly
available document, precisely to whom it is thought appropriate that
such senior officials should delegate their
functions?
Maria
Eagle: We would normally expect them to be delegated to
personnel in the same organisation, such as specialist investigators or
prosecutors, and that is certainly the intention.
Question
put and agreed to.
Clause
66 accordingly ordered to stand part of the Bill.
Clause
67 ordered to stand part of the
Bill.
Clause
68Interpretation Amendments
made: 283, in clause 68, page 40, line 17,
leave out paragraph
(b). Amendment
284, in clause 68, page 40, leave out
line 19 and insert ‘references to
a judge of the Crown Court are to be read as
references’.—(Maria
Eagle.) Clause
68, as amended, ordered to stand part of the Bill.
Clause 69
ordered to stand part of the Bill.
Clause
70Applications
Mr.
Garnier: I beg to move amendment 377, in
clause 70, page 41, line 14, at
end insert— ‘(1A) An
application for a witness anonymity order to be made in relation to a
witness in a coroner’s inquest may be made to the coroner with
the coroner’s permission by any party appearing at the
inquest.’.
The
Chairman: With this it will be convenient to discuss 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,’.
Mr.
Garnier: Although this group of amendments looks quite
large, they all have one purpose: to apply the witness anonymity orders
regime, which is currently applicable under the Criminal Evidence
(Witness Anonymity) Act 2008 and which, if the Bill is enacted, will be
folded through into criminal procedure in the Crown courts and
magistrates courts, to coroners’ inquests. If witness anonymity
procedures need to be applied in the Crown court—we saw this in
the de Menezes case—surely they are sometimes likely to be
needed in coroners’ inquests. The amendments are therefore
designed to
apply the procedure for applications in clause 70, which currently
applies to criminal proceedings, to those touching on coroners’
inquests.
David
Howarth: I do not want to reopen a previous debate, but
new clause 10, which we considered during the juryless inquests debate,
would have had a similar effect to the hon. and learned
Gentleman’s proposals, but in very limited circumstances. The
difference between his proposals and ours is that his would make the
availability of anonymous witnesses a general power of coroners’
courts, whereas ours would have provided for a more limited set of
circumstances in which that might happen. Nevertheless, that difference
is not a great one and there seems to me to be no obvious argument why
anonymous witnesses should not be allowed in coroners’
courts in the same way as in the criminal courts. I ask the Ministers
to explain why, throughout our debates about anonymous witnesses, there
was a concentration on the adversarial process of the criminal courts
when in fact anonymity is often more useful in the circumstance that we
are currently discussing than in criminal
cases.
Maria
Eagle: The short answer is that provisions for anonymity
are allowed in the coroners’ courts. I will give a little more
explanation than that, but members of the Committee and especially
those who were involved in considering the Criminal Evidence (Witness
Anonymity) Act 2008 will recall that the Davis judgment in the House of
Lords, which gave rise to the necessity for that legislation because it
struck down the common law rules or had a very different interpretation
of the common law than had been thought to exist previously, related
only to criminal proceedings. We believe that it is unnecessary to make
provision for coroners’ courts in the same
way. The
Davis judgment helps us in this respect. Their lordships distinguished
between coroners’ inquests and criminal proceedings. They made
it clear that their judgment applied only to criminal proceedings. They
referred to a 1992 case in which the House had previously approved the
admission of anonymous written witness statements into an inquest. It
is also clear that coroners have an inherent power to regulate their
own proceedings, including permitting a witness to remain anonymous or
give evidence from behind a screen, and they do. We therefore believe
that the amendments are unnecessary and that applying the regime that
has been designed to work in the criminal courts is unnecessary in the
inquisitorial system. In that sense, their lordships, in the Davis
judgment,
agreed. There
are differences between inquisitorial proceedings and criminal
proceedings. There is no indictment, no prosecution, no defence and no
trial at an inquest. The procedures and rules of evidence suitable for
a trial are unsuitable for an inquest. There is no accused likely to be
convicted and punished. In addition, the powers of the coroner
to control the admission of evidence anonymously are being enhanced
elsewhere in the Bill. The amendments are not, therefore,
helpful; in fact, they might confuse things. Coroners will be
able to give a direction in accordance with rules made under
clause 34(2)(e) requiring a name or other matter not to be
disclosed except to persons specified in that
direction.
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