Clause
76Discharge
or variation by appeal
court
Mr.
Garnier: I beg to move amendment 399, in
clause 76, page 45, line 7, at
end insert — ‘(za) the High
Court (Queen’s Bench
Division),’.
The
Chairman: 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’.
Mr.
Garnier: 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: 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.
Mr.
Garnier: I generally do and I will, or I will and I do. I
beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. Clause
76 ordered to stand part of the
Bill. Clause
77 ordered to stand part of the
Bill.
Clause
78Public
interest
immunity Question
proposed, That the clause stand part of the
Bill.
The
Chairman: With this it will be convenient to take
Government new clause 30— Anonymity in investigations: public
interest
immunity.
Maria
Eagle: 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.
Mr.
Garnier: 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. Question
put and agreed
to. Clause
78 accordingly ordered to stand part of the
Bill. Clause
79 ordered to stand part of the
Bill.
Clause
80Interpretation
David
Howarth: 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: 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: Does the Minister have any more details of those
three cases in the magistrates court? What were the
charges?
Maria
Eagle: 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: 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. Amendment,
by leave,
withdrawn. Clause
80 ordered to stand part of the
Bill. Clause
81 ordered to stand part of the
Bill.
Clause
82Eligibility
for special measures: offences involving
weapons 3
pm
Bridget
Prentice: 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.’.
The
Chairman: 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— ‘Offences
Against the Person Act 1861
(c.100) 21A An
offence under section 18 of the Offences Against the Person Act 1861
(grievous bodily harm with
intent).’. Government
amendments 287 to 289, 349 and
350.
Bridget
Prentice: 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.
Mr.
Garnier: 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: 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.
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