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(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.
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.
(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.
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.
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.
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,
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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.
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 complainants 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 mens 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
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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 OBrien, a Member of the other House, as Solicitor-General, in early 2007 told the Times newspaper that:
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.]
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 Committees 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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