Coroners and Justice Bill

I should like to deal briefly with the three government amendments in this group—218B, 218C and 218D. These are simple, technical amendments to improve the appeal procedures in cases that involve anonymity orders. Amendment 218B would enable a single judge to vary or discharge as well as make an order in the interests of the efficient operation of the Court of Appeal. The power of a single judge of the Court of Appeal to make an order is also available in the service context and in Northern Ireland. Accordingly, Amendments 218C and 218D make a like change. Amendment 218D would also make it clear that a single judge of the Court of Appeal in Northern Ireland cannot discharge or vary an anonymity order where he or she has already made it in the Crown Court. I will move those amendments in due course. I shall deal with the amendments of the noble Lord, Lord Thomas of Gresford, as briefly as I can. Amendment 185ZA would change the wording of the second limb of Condition A to refer explicitly to avoiding compromising the practice of undercover policing or undercover operations by police, or both, law enforcement agencies or the security services. Our view is that the amendment is unnecessary. As we explained during the passage of the emergency legislation last year, the public interest wording is intended to cover two areas—first, national security interests generally and, secondly, the undercover work of the police and relevant agencies. Having done so, we believe that further elaboration is unnecessary. Indeed, to change the wording could cause confusion as to what change was intended, bearing in mind that the 2000 Act contains the same wording as this Bill. What is now Clause 75(3)(b) has been in force for almost a year without, to our knowledge, any difficulty. It will be noted also that the present amendment covers only undercover operations; it would not cover other circumstances where damage to national security would be caused by identifying a witness. Amendments 185ZB and 185ZC would, as the noble Lord said, change the order of the words in Clause 75(6). The court will necessarily have to consider any fear of the witness and the circumstances to judge whether it is reasonable. I echo what my honourable friend Maria Eagle said in another place: there is no need for us to get too het up about which bit is subjective and which objective. The point is that the judge would be empowered to make a commonsense judgment in any particular set of circumstances about whether the fear of a witness was reasonable. No sensible judge—and all judges are sensible—would make an anonymity order if a witness had a completely irrational fear and there was absolutely no chance of any danger to safety or risk of damage to property. The judge would have to be convinced that there was at least something to it. That is what we are trying to capture generally in the way that we have phrased the subsection. Amendment 185ZD deals with the extent to which the anonymity provisions override the prosecution disclosure requirements in the Criminal Procedure and Investigations Act 1996. The concern is that where an order is made on a defence application for an anonymity order in a multi-handed case, the prosecutor may be compelled by the 1996 Act to disclose the identity of the witness to the other defendants, thus defeating the purpose of this legislation. A trial anonymity order overrides any prosecution obligation to disclose material to a defendant under the 1996 Act to the extent the court thinks fit in any particular case. We do not think the amendment spoken to by the noble Lord is necessary. Finally, Amendment 185ZF would prevent magistrates’ courts making a witness anonymity order, which the Bill currently allows. The position at common law was that anonymity orders could be made by the Crown Court and the magistrates’ court. This position was preserved in the emergency legislation. Our position is that if anonymity is required to secure justice, it does not matter where the case is heard. We see no convincing reason why magistrates' courts should not be permitted to make such orders provided that the requirements in the Bill are met. As the noble Lord, Lord Thomas of Gresford, reminded us, since the passage of the Bill in the previous Session, nine orders have been sought in the magistrates’ court, of which five have been granted and four refused, which shows that the magistrates seem to have a pretty robust way of dealing with applications that they do not think to be good applications. In the light of the explanations I have attempted to give, I invite the noble Lord to withdraw his amendment.