Coroners and Justice Bill

Amendment 185 also stems from a report by the Joint Committee on Human Rights. The Joint Committee recommended in the report that the Bill should be amended to give the trial judge a discretion to appoint special counsel to represent the interests of the defendant in his or her absence if it appears to the court to be appropriate to do so in the circumstances of the case. In the Government’s view, there are rarely cases where special counsel might be required, and they believe that the present arrangements permitting judges to invite the Attorney-General to request the appointment of special counsel are adequate. The Attorney-General’s guidelines state that such an invitation by a court should be regarded as exceptional. I wonder whether it ought to be that exceptional. It should not be commonplace, but to date there appears to have been only two applications to the Attorney-General for special counsel to assist the court with a witness anonymity application, both of which have been granted. Of course, fairness does not require special counsel to be appointed in every case where an application for an anonymity order is made; it will depend on the circumstances. As I said, however, only two have been granted so far, out of a total of 136 applications. It is quite possible that the defence has requested the appointment of special counsel many more times than the two occasions on which they have been requested by the court. There is a certain uncertainty about whether magistrates’ courts have the power to invite the appointment of special counsel, because they are creatures of statute and therefore do not possess inherent jurisdiction. We on the Joint Committee noted that although the vast majority of applications for witness anonymity orders have been made in the Crown Court, three orders have been made in the magistrates’ court. As long as there is the possibility of applications for anonymity being made in the magistrates’ court, it is undesirable that uncertainty should remain about whether there is power to appoint special counsel in such cases. Finally I note that at the time of the passage of the 2008 Act, the Government told Parliament that courts had powers under their inherent jurisdiction to appoint special counsel as and when the court considered it appropriate. Since that date, however, the Attorney-General seems to have adopted a different position about the power of the courts to appoint special advocates, arguing that it is the Attorney-General and not the court that has the power to appoint. There is some doubt here—the situation is uncertain—and some clarity from the Minister would be helpful. Courts can request the Attorney-General to appoint special advocates, but whether or not to do so is a matter for the Attorney-General. In our view, that further strengthens the case for putting the power of the court to appoint special counsel on to an express statutory footing. We on the Joint Committee remain of the view that the legislation should be amended to place on an express statutory footing the trial judge’s discretion to appoint special counsel, and the right of the defence to request the appointment of such special counsel. I beg to move.