412.Subsection (1) stipulates that an offence is a qualifying offence if it is listed in subsection (2) and the condition in subsection (3) is satisfied in relation to it. The offences listed in subsection (2) are murder and manslaughter, and the condition in subsection (3) is that the death was caused by being shot with a firearm, and/or by being injured with a knife. The purpose of defining qualifying offence in this way is to limit investigation anonymity orders so that they are available only in respect of investigations concerning suspected homicides (murder and manslaughter) where death was caused by a gun and/or a knife.
413.Subsection (4) gives power to the Secretary of State to amend subsections (2) and (3) by order so as to alter what is a qualifying offence. The order making power is subject to the affirmative resolution procedure (see section 176(4)(a) and (5)(c)).
414.Subsection (1) defines a qualifying criminal investigation as one which is conducted by an investigating authority, wholly or in part with a view to ascertaining whether a person should be charged with a qualifying offence (as defined in section 74), or whether a person charged with a qualifying offence is guilty of it. Investigating authorities are listed in subsection (2). They are:
police forces in England and Wales;
the British Transport Police Force;
the Serious Organised Crime Agency; and
the Police Service of Northern Ireland.
415.Subsection (3) gives power to the Secretary of State to amend subsection (2) by order so as to alter the list of investigating authorities. The power is linked to (although not contingent upon) the power to amend section 74. If that power is exercised so as to add a new offence to subsection (2) of that section, the power in section 75, may need to be exercised to add a person not already listed in subsection (2) as an investigating authority, if that person has power to investigate the newly added offence. This order making power is subject to the affirmative resolution procedure (see section 176(4)(a) and (5)(c)).
416.Subsection (4) provides that an order made under subsection (3) may modify any provision of this Chapter.
417.Subsection (1) defines an investigation anonymity order. An investigation anonymity order is an order made by a justice of the peace, in relation to a person specified in the order, prohibiting the disclosure of any information that (a) identifies the specified person as a person who is or was able or willing to assist a qualifying criminal investigation specified in the order, or (b) that might enable the specified person to be identified as such a person. The order applies to the officers and others involved in the investigation, and indeed to anybody else, including the specified person. The purpose of the order is to prevent disclosure of information relating to the identity of an individual who is or was able or willing to assist a qualifying criminal investigation, and thus to protect an informant from harm and to provide reassurance to a reluctant informant that his or her identity will be protected by a court order.
418.Subsection (3) provides that an investigation anonymity order is not contravened if a person discloses information identifying the specified person, or which might enable the specified person to be identified, as someone who is or was able or willing to assist a specified qualifying criminal investigation, if the person disclosing the information does not know and has no reason to suspect that an order is in force.
419.Subsection (4) provides that an investigation anonymity order is not contravened if a person discloses information which might enable the specified person to be identified as someone who is or was able or willing to assist a specified qualifying criminal investigation, if the person disclosing the information does not know, and has no reason to suspect, that the information might enable the specified person to be so identified.
420.Subsections (5) and (6) provide that an investigation anonymity order is not contravened if a person (“A”) discloses the fact that an investigation anonymity order has been made to another person (“B”), where A knows that B is aware that the informant for whose benefit the order was made is or was able or willing to help with an investigation.
421.Subsection (7) provides that an investigation anonymity order is not contravened where disclosure of information is to a person who is involved in the specified qualifying criminal investigation or in the prosecution of an offence to which the investigation relates, and the disclosure is made for the purposes of the investigation or prosecution.
422.Subsection (8) provides that an investigation anonymity order is not contravened where disclosure is required by any enactment or rule of law, or where required by a court order. However, subsection (9) provides that a person may not rely on subsection (8) in a case where (a) it might have been determined that the person was required or permitted to withhold the information but (b) the person disclosed the information without there having been a determination as to whether the person was required or permitted to withhold the information. The effect of subsection (9) on subsection (8) is to limit the protection based on being obliged to disclose to cases where there is no exception to that obligation and cases where an exception that could have applied to protect the informant (such as public interest immunity) has been raised.
423.Subsection (10) provides that disclosing information in contravention of an investigation anonymity order is a criminal offence. A person who is guilty of this offence is liable to imprisonment and/or a fine. On summary conviction the maximum term of imprisonment is 12 months (or, in Northern Ireland, six months). Following conviction on indictment, the maximum term of imprisonment is five years. However, subsections (3) to (8) set out the circumstances in which an order will not be contravened.
424.Subsection (13) defines the term “specified” as meaning specified in the investigation anonymity order.
425.Subsection (1) provides that an application must be made to a justice of the peace. A justice of the peace includes any person acting as such, whether a lay justice, or a judge who is a District Judge (Magistrates’ Court) (see section 25 of the Courts Act 2003), or a Crown Court judge (see section 66 of the Courts Act 2003).
426.The subsection also restricts the availability of investigation anonymity orders to investigating authorities and certain prosecutors. Only certain persons in those organisations (and persons to whom they delegate the function under section 81) may apply for an order. Those persons are described in subsection (1)(a) to (g):
in a case where a police force in England and Wales is conducting the qualifying criminal investigation, the chief officer of police of the police force;
in a case where the British Transport Police Force is conducting the qualifying criminal investigation, the Chief Constable of the British Transport Police Force;
in a case where the Serious Organised Crime Agency is conducting the qualifying criminal investigation, the Director General of the Serious Organised Crime Agency;
in a case where the Police Service of Northern Ireland is conducting the qualifying criminal investigation, the Chief Constable of the Police Service of Northern Ireland;
the Director of Public Prosecutions;
the Director of Revenue and Customs Prosecutions; and
the Director of Public Prosecutions for Northern Ireland.
427.Subsection (2) makes it clear that the applicant is not obliged to give notice of the application to a suspect or someone who has been charged with an offence subject to a qualifying criminal investigation (or their legal representatives). Such notice could defeat the purpose of the order.
428.Subsection (3) requires the applicant to inform the justice of the peace of the identity of the person whose identity is to be protected by the investigation anonymity order. However, the justice of the peace can direct the identity of that person to be withheld.
429.Subsection (4) permits a justice of the peace to grant an application on the papers, without an oral hearing. The Government expects, however, that in the vast majority of cases there will be an oral hearing.
430.Subsection (5) provides that where a justice of the peace determines an application without a hearing the designated officer in relation to that justice of the peace must notify the applicant about the decision, and subsection (6) makes similar provision for Northern Ireland.
431.Subsection (7) provides the Secretary of State with a power to amend subsection (1) by order. This will allow the persons who may make an application to be altered. There may for example be amendments because of changes to investigating or prosecuting organisations. The order-making power will also allow for consequential changes for example to section 81 (see subsection (8)).
432.This section sets out the conditions that have to be satisfied when an application for an investigation anonymity order is made.
433.Under subsection (2), an investigation anonymity order may be made where the justice of the peace is satisfied that there are reasonable grounds for believing that the five conditions specified in subsections (3) to (8) are satisfied. This is to avoid placing an unduly high burden of proof on the applicant, particularly at the early stages of an investigation when the information available may be limited but an investigation anonymity order in respect of a particular informant is highly desirable in order to progress the investigation.
434.The condition in subsection (3) is that a qualifying offence has been committed. (Qualifying offence is defined in section 74.)
435.The condition in subsection (4) is that the person likely to have committed the offence was at least 11 but under 30 years old at the time the offence was committed.
436.The condition set out in subsections (5) and (6), is that the person likely to have committed the offence is a member of a group (1) which it is possible to identify from the criminal activities that its members appear to be engaged in and (2) it appears that the majority of the members of the group are at least 11 but under 30 years old. The reason for the conditions in subsections (4) to (6) is that the provisions are targeted at informants in qualifying criminal investigations who are afraid of reprisals from street gangs. The age range set out is the understood age range for membership of such gangs, and the activities are the understood activities of such gangs.
437.The condition in subsection (7) is that the informant in respect of whom the order would be made has reasonable grounds to fear intimidation or harm if he or she were identified as a person who is or was able or willing to assist in the investigation into the homicide at issue.
438.The condition in subsection (8) has two limbs, both of which must be satisfied. The first is that the person who would be specified in the order, is able to provide information that would assist the qualifying criminal investigation, and the second is that that person is more likely than not to provide the information if the order was made.
439.Subsection (9) provides that where more than one person is suspected of having caused the death under investigation, the five conditions need be satisfied only in relation to one of the suspects.
440.Subsection (10) gives power to the Secretary of State to modify or repeal subsections (4) to (6) and subsection (9) by order. The conditions set out in subsections (3), (7) and (8) cannot therefore be modified or repealed using this power. This order making power is subject to the affirmative resolution procedure (see section 176(4)(a) and (5)(c)).
441.Subsection (11) provides that an order made under subsection (10) may modify any provision of this Chapter.
442.Subsection (1) permits an applicant to appeal to a judge of the Crown Court if the justice of the peace refuses the application for an investigation anonymity order.
443.Subsection (2) requires that in order to appeal a refusal of an application, the applicant must indicate an intention to appeal a refusal either in the application for the order or before the justice of the peace at the hearing if there is one. Otherwise no appeal will be possible.
444.Subsections (3) and (4) provide that if the applicant has given an indication of intention to appeal, in the event of a refusal of the application the justice must nevertheless make the investigation anonymity order which has been applied for. The order will continue in force until the appeal is determined or disposed of. This is to err on the side of caution and to protect the informant’s identity until such time as the appeal has been dealt with.
445.Subsection (5) provides that where an appeal is made the judge must consider afresh the application for an investigation anonymity order and section 77(3) to (5) applies accordingly to the determination of the application by the judge.
446.Situations may arise in which an investigation anonymity order should be discharged, for example, where the informant no longer has any fear of reprisals. Subsection (1) therefore permits a justice of the peace to discharge an investigation anonymity order if it appears to the justice to be appropriate to do so.
447.Subsection (2) provides that a justice of the peace may discharge an investigation anonymity order on an application by the person who applied for the original order or on an application by the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the Director of Public Prosecutions for Northern Ireland or the informant in respect of whom the order was made.
448.Under subsections (3) and (8) an application for the discharge of an investigation anonymity order may be made only if there has been a material change of circumstances since the order was originally made, or since the last application to discharge the order was made. It will be for the justice of the peace to determine what amounts to a material change in circumstances.
449.Subsection (4) provides that where a person applies for the discharge of an investigation anonymity order any other person who is eligible to apply for the discharge of the order is entitled to be party to the proceedings.
450.Subsection (5) provides that if an application to discharge an investigation anonymity order is made by a person other than the informant in respect of whom the order was made, the justice may not determine the application unless (a) the informant has had an opportunity to oppose the application, or (b) the justice is satisfied that it is not reasonably practicable to communicate with the informant.
451.Subsection (6) provides a party to the proceedings with a right to appeal the justice of the peace’s decision to a judge of the Crown Court.
452.Subsection (7) provides that if a party to the proceedings indicates an intention to appeal against a determination to discharge the investigation anonymity order, a justice of the peace who makes such a determination must provide for the discharge of the order not to have effect until the appeal is disposed of.
453.By virtue of section 77, the power to apply for an investigation anonymity order is vested in a number of individuals, such as the chief officer of police of a police force. Section 81 makes provision for those individuals to delegate their functions in relation to investigation anonymity orders to other persons. It would not be conducive to operational efficiency for chief officers to deal with every order personally.
454.This section provides that this Chapter of the Act does not affect the common law rules on public interest immunity.
455.This section requires the Secretary of State to undertake a review of the operation of investigation anonymity orders and provide Parliament with a report of the review within two years of the commencement of section 77.
456.By subsection (1), the provisions of this Chapter of the Act do not apply to investigations concerning service offences as defined by the Armed Forces Act 2006. However, subsections (2) and (3) give power to the Secretary of State to make provision by order equivalent to the provisions in this Chapter for that sort of investigation (subject to any modifications the Secretary of State considers appropriate). Provision may be made in such way as the Secretary of State considers appropriate, including applying any of the provisions of this Chapter, with or without modifications. This will allow the Secretary of State to provide for the use of investigation anonymity orders in investigations concerning service offences. An order made under this power is subject to the negative resolution procedure (section 176(4)).
457.Section 85 defines terms which are used in this Chapter of the Act.