Criminal Justice and Courts Bill

Lord Carlile of Berriew Excerpts

Wednesday 22nd October 2014 Lords Chamber

[Baroness Howe of Idlicote (CB)]

My Lords, I will speak to Amendments 122A and 139. Amendment 122A and government Amendment 139 both aim to address the problem of what happens to the anonymity granted to children in court proceedings when these children turn 18. This is obviously a pressing issue thanks to the case of JC & RT, as we have already heard, in which Lord Justice Leveson ruled that Section 39 reporting restrictions expire when a child reaches 18. I gather that that case is subject to appeal.

The government amendment seeks to create a new lifelong anonymity order, but this cannot be granted to defendants: so these new orders allow a court to provide child victims and witnesses with anonymity post-18, but not child defendants. As far as I am aware, this means that the only way for a child defendant to be granted post-18 anonymity would be for them to seek a civil injunction. Unless they have such an injunction, the press, or individuals on social media, will automatically have the right to identify any child defendant as soon as they reach 18.

I understand that the Government’s position is that they do not want all child defendants automatically to be granted post-18 anonymity, but will there not be some cases in which the court should have the ability to impose lasting reporting restrictions? What about cases where a child is found not guilty of an offence? What about cases where vigilantism is a real possibility? Amendment 122A would allow defendants to be subject to the new lifelong anonymity orders and would provide courts with the means to impose restrictions if they choose. This may be the most sensible way forward.

Under Amendment 139, child victims and witnesses will have to show that their evidence or co-operation would be diminished if they were to be granted post-18 anonymity. Under the current law, victims and witnesses do not have to meet any tests to be granted the same anonymity. Like my noble friend Lord Listowel, I am concerned that this test may deter victims and witnesses. I am also concerned about what will happen when proceedings have already concluded and the child victim or witness has now reached 18 years of age. Presumably, anyone over the age of 18 who has ever been a child victim or witness and who does not want to be identified will have to go back to court and apply for one of the new orders that the Government propose. Surely it is unlikely that most people will know that they can do this. Even if they did, would legal aid be available to assist them?

This is a serious issue if victims and witnesses in historic cases start to be named in the press without their prior knowledge. This is likely to deter potential victims and witnesses from coming forward, as well as being potentially harmful to those identified. Like my noble friend Lord Listowel, I hope that the Government will take these concerns into consideration and, in particular, come back with a rather more acceptable amendment at Third Reading.

[Lord Carlile of Berriew (LD)]

My Lords, this has been a rather intimidating debate so far, in the sense that I notice that two of the three noble Lords who have spoken did so from their tablets. To the public mind, tablets in your Lordships’ House are probably seen to be what most of us take at some point during the day. Anybody who thinks that we are not a modern House should take account of what has just happened.

I support the speeches of all three noble Lords—in particular, that of the noble Earl, who opened cogently the debate on the amendment, which also has my name upon it. I am concerned that there should be a discretion vested in the court to allow anonymity for defendants. One could think of hundreds of examples where this would be just. I shall give the House one, which involves a situation in which parents have been instrumental in the child committing a crime. It may be the father who is a thief and has given the child the stolen goods to look after; or it may be a mother who is involved in some other offence in which she relies upon her child to protect her and, for example, warn her if the police are appearing.

For any of your Lordships are devotees of film noir, in a recent episode of that splendid drama, “The Bridge”, an animal rights terrorist involved his brother in a terrorist act and the brother undoubtedly committed criminal offences—we will have to wait and see whether he is prosecuted in the next episode—for his brother’s protection. It is self-evident that there will be cases such as the more real examples that I mentioned earlier, in which there should be a discretion in the court to protect the child from being named.

We are not saying in this amendment that it should happen. We are saying that surely it could happen. I hope that the Minister will tell me that I am wrong— I would be delighted if he did—and say that powers either exist or will shortly exist that will leave this discretion within the criminal court. There are, as the noble Earl said, civil powers that could be used, but these are complex and difficult to access, and we have the problem that legal aid is not necessarily available for such cases. We therefore need to ensure that children who have committed crime and may be only marginally to blame for their involvement have this protection.

We know that historically there are some cases of great notoriety in which, after the child’s release from custody, lifelong anonymity has been granted. It would be right to at least give the criminal court the power to grant such anonymity for a period, so that the notoriety of the child is protected, even if the merits indicate that this matter should be dealt with by a civil court at a much later stage.

I agree also with the noble Earl’s comments in relation to victims and witnesses. Child witnesses are often very intimidated by the prospect of giving evidence. They know that they are going to be cross-examined and face what may be an unpleasant experience. They will be told that the experience is sometimes well controlled, which is true—but unfortunately it is far from always well controlled. If we are to value the need to obtain child witnesses, particularly in abuse cases and matters of that kind, we should have stronger provision than is contained in the Bill. With those views, I support the amendment and the amendment spoken to by my noble friend Lord Marks, and hope that the Government will say that they would like to take another look at these provisions.

[Baroness Hamwee (LD)]

My Lords, the world now knows about the technology used by your Lordships and their Saturday night viewing habits. I associate myself with the remarks that have been made. I was not able to be in the House while the Bill was in Committee. However, I was a bit surprised that, rather than a quite simple but perhaps simplistic amendment which restored what everyone had thought of as the status quo, instead the amendment is around 10 lines in length. Those among your Lordships and from the Government who carried out the drafting have come up with very many lines, which can sometimes prove more difficult than a more straightforward and prescribed amendment.

Having said that, I want to mention the position of defendants. I agree very much with what has been said, and I simply add that not to provide anonymity or reporting restrictions—whatever term you apply, although of course they are not necessarily the same thing—seems to me to undermine the whole purpose of the youth justice system, which is rehabilitation, reintegration, and so on. An enormously important principle is at stake here. The same really applies to the amendment of my noble friend Lord Marks. One cannot separate out the stages. I am sure that there is a sporting analogy for this. Having lost anonymity at that early point before being charged, there is really nothing more that one can sensibly do afterwards to fulfil the spirit of what the Government themselves seem to consider important, even if we would like to have more than the Government’s amendment.