Coroners and Justice Bill

My Lords, Amendment 76N brings us back to the topic of special counsel, or "independent counsel" as the amendment would have it, which has featured on a number of occasions during the passage of the emergency legislation and again in this Bill. I say at once that we remain to be persuaded that it serves any useful purpose to make provision for special or independent counsel in the Bill; indeed, we see significant disadvantages in doing so for a number of reasons. Our starting point is that the appointment of special counsel may already be addressed under the common law across the whole range of criminal proceedings. We are currently dealing with the area of witness anonymity, but the more familiar context for special counsel is disclosure and public interest immunity cases. There is, however, nothing in principle to prevent the use of special counsel in any kind of criminal proceedings. Our argument is that, if the position of special counsel is to be placed on a statutory basis, it should be for criminal proceedings in general, not just witness anonymity applications. This Bill is not the place to put special counsel in criminal proceedings on a statutory footing. Furthermore, we believe that the common-law arrangements are working perfectly adequately and we have seen no evidence to the contrary. The courts have not called for special counsel to be placed on a statutory basis. In the anonymity context, the courts have given no indication that they consider the present common-law arrangements unsatisfactory. It may be helpful if I set out our position a little more fully by reference to the detail of the amendment. First, under the terms of the amendment, the power to appoint special counsel would be given to the court. This would be a significant change from the current position at common law, under which it is always the Attorney-General who makes the appointment at the request of the court. In the 2004 case of R v H&C, the Judicial Committee of this House indicated that the current procedure had no plausible alternative, and we can see no good reason to change it now. Secondly, the grounds for appointment—namely, that there should be a significant contribution to the fairness of the proceedings—do not reflect the common-law position and practice that special counsel should be appointed only where no other course will adequately meet the overriding requirement of fairness to the defendant. In the case of H&C, this House, in its judicial capacity, emphasised that the appointment of special counsel should be an exceptional course of last resort. We feel that the amendment threatens to undermine that guidance, which has always been regarded as valid. In doing so, the amendment could lead to the routine appointment of special counsel in witness anonymity cases, and we have to be mindful of the significant resource implications that would flow from that. The amendment would make the function of independent counsel one of assistance to the court. In representing the interests of the defendant in proceedings, special counsel naturally assists the court but that is not his or her specific role. This would go significantly beyond the role currently undertaken by special counsel in criminal proceedings, and widen it in a way that would lead to problems. The broad function of assisting the court might involve duties that are significantly different from that of a special counsel. These duties are not required of a special counsel where they are used in existing criminal proceedings involving witness anonymity, and indeed there is no need for them. Our real concern is in the power to examine witnesses in the absence of prosecutor and defendant or defendant’s representative. That suggestion in the amendment represents a significant change in the existing position on special counsel. This proposal, if taken to its natural extent, would be tantamount to the appointment of a second judge in the criminal proceedings to investigate and interview witnesses. The courts, in considering what the role of special counsel should be, have never suggested that it is necessary for a special counsel to have the power to examine witnesses outside the court proceedings. Furthermore, the amendment would give independent counsel power to direct a police investigation independent of the one which led to the prosecution. In our view, investigation should always be a matter for the prosecution team because it should have access to all relevant information whether because of the need to discharge its statutory disclosure duties properly or ultimately to decide the main question whether to continue to pursue the prosecution. We are also concerned that this aspect of the amendment could be taken to imply that those who investigate offences are somehow lacking in objectivity or even worse. It would be fundamentally wrong in principle to legislate on that basis. That is the basis on which this amendment is drafted. Leaving aside the undesirability in principle of using a Bill about witness anonymity as a vehicle for legislating on special counsel, which covers the whole range of criminal proceedings, the amendment raises serious concerns as to unjustified divergences from the common law in an area where the system is working well. For those reasons, I invite the noble Lord to withdraw his amendment. If he cannot do that and puts the matter to the opinion of the House, I shall certainly be advising the House to vote against it.