My Lords, with the leave of the House, I shall repeat a Statement made by my right honourable friend the Lord Chancellor in another place. The Statement is as follows:
“With permission, Mr Speaker, I should like to make a Statement following the judgment of the Judicial Committee of the House of Lords, issued Wednesday last, in the case of Davis. As the House will be aware, the Law Lords decided that there was not sufficient authority in common law to provide for the current arrangements for the admission of anonymous evidence, and said that this was a matter for Parliament to deal with by statute. The Government, therefore, urgently will be bringing forward a Bill to rectify the situation. I hope, very much, that the Bill will be published next week, and that, subject to the usual channels, it will be debated through all its stages in the House of Commons the following week.
“For reasons which I will explain, it is essential that the Bill receives Royal Assent, and comes into force before Parliament breaks for Summer Recess. I am very grateful to the opposition parties for their co-operation in this matter, but I fully appreciate that, like other Members of the House, they will not be able fully to judge the merits of the Government’s proposals until their detail is available in the Bill.
“The background to this is as follows. As long as there has been crime, the criminals concerned have sought to intimidate those who are witnesses in order to avoid punishment. Criminal justice systems across the world have sought to deal with this problem. Criminals do not operate by the rules, but the rule of law requires that justice should not only be done, but be seen to be done. The right of a defendant to confront his or her accusers in open court has been a key feature of all systems of justice worthy of that name. That right is one which should be modified only where this is fully justified.
“In recent years, witness intimidation has become an all too common feature in crimes of a serious nature, especially those involving guns, gangs or drugs. Such is the fear that can be engendered by such criminals that entire communities in an area may be reluctant to come forward to give any evidence about what they know.
“In the Court of Appeal judgment in Davis, the president of the Queen’s Bench Division, Sir Igor Judge, quoted the evidence of a detective who specialised in murder investigations. He said this, and permit me to quote at some length:
‘Most people opt not to co-operate and do not get involved. Doors are not opened, arranged meetings result in a witness not turning up, telephone messages go unanswered … This is not a problem that exists on an occasional basis … it is a problem that exists in practically every investigation in one way or another. Such problems exist on a daily basis. I have spoken to witnesses about a reluctance to give evidence. The common factor between all of them is fear.
‘They are in fear of their lives and that of their families and friends. There is a very real danger to such persons of death or serious injury, either to prevent them from giving evidence, or to punish them for giving evidence and to send a warning to those who may be thinking of assisting the police. This risk I know and the witnesses know is not necessarily at the hands of the defendants themselves, but at the hands of the associates of the defendant. If the defendant is in custody, it is often the associates who are the physical threat. In many but not all cases, the witness knows of the defendant and their associates.
‘They know they have easy access to firearms and the ‘ease’ with which they are prepared to use them’.
“To deal with this situation our courts had developed careful and proportionate measures by which the trial judge, where he or she believed it necessary, could order that evidence be given in such a way that the identification of certain key prosecution witnesses was disguised. In some cases, the key witnesses concerned themselves may well have been involved in crime, others will be innocent bystanders, and still others may be undercover police officers or agents. In the Davis case, key witnesses were screened from sight of the defence, given pseudonyms and had their voices electronically distorted.
“In the Davis appeal, the Court of Appeal reviewed all the circumstances, the common law authorities and the Strasbourg jurisdiction, and held that measures of this kind were both necessary and just to defendants in this case. Their appeals were therefore dismissed.
“In the House of Lords, their Lordships took the opposite view. In the lead judgment, the senior Law Lord, the noble and learned Lord, Lord Bingham, said:
‘By a series of small steps, largely unobjectionable on their own facts, the courts have arrived at a position which is irreconcilable with long standing principle”,
and common law authorities.
“The noble Lord, Lord Mance, who extensively reviewed the Strasbourg jurisprudence, said that he did not believe that the Strasbourg court in this case would,
‘accept that the use of anonymous evidence in the present case satisfied the requirements of article 6’.
“However, the noble Lord, Lord Mance, went on to say that,
‘the admissibility of evidence is primarily a matter for national law’,
and that the Strasbourg Court has repeatedly stated that the use of anonymous evidence is,
‘not under all circumstances incompatible with the Convention’.
“Importantly, the noble Lord, Lord Mance, said, it is not certain that,
‘there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence’.
In other words, there should be caution about treating the convention or apparently general statements by the Strasbourg Court, as containing absolutely inflexible rules.
“All of their Lordships accepted fully what the noble and learned Lord, Lord Bingham, said was the ‘reality of the problem’ of witness intimidation, ‘vividly described’ in the Court of Appeal judgment. The noble and learned Lord, Lord Bingham, went on to say that,
‘this is not a new problem, but it is a serious one. It may very well call for urgent attention by Parliament’.
“The noble and learned Lord, Lord Rodger, said:
‘Parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial’.
“The noble Lord, Lord Mance, echoed these views. He referred to the experience of New Zealand and the Netherlands, which have introduced statutory frameworks for the use of anonymous evidence, and said that,
‘it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence … that there is scope within the Human Rights Convention for such modification’.
“Since the judgment was handed down last week, we have been looking urgently at how a statutory framework could operate, taking account of overseas experiences, not least that of New Zealand. Because of the urgency of the matter, the Bill is literally being drafted as I speak. The House will therefore excuse me if now I simply outline our thinking, although I may say that this situation has the advantage that the draft can take account of comments made in the House today.
“The essence of the scheme, which will be published in the Bill, will be this. The trial judge will have to be satisfied that the need for anonymity is established; that a fair trial will be possible; and that it is in the interests of justice to make such an order. There will be other factors that the judge will have to consider in reaching this decision.
“Parliament should never legislate at the speed with which I am proposing unless it is convinced that there are overwhelming reasons for doing so. I suggest to the House, however, that this requirement is satisfied in this case.
“Anonymous evidence is these days fundamental to the successful prosecution of a significant number of cases, some of which involve murder, blackmail, violent disorder and terrorism. Such cases could be jeopardised if we do not quickly fill the gap created by their Lordships’ judgment.
“The CPS is conducting an urgent assessment of the total number of cases in the prosecution pipeline which may be affected. Neither my noble and learned friend the Attorney-General nor I can yet give definitive numbers of cases involved. As soon as we have accurate numbers, we will make them available.
“In addition to those cases in the prosecution pipeline, there is great concern among the CPS and the wider public that a number of serious criminals convicted by a jury, whose trials satisfied Article 6 and common law requirements, and whose appeals have failed, would seek to make use of the technicality of their Lordships’ judgment to have their convictions quashed.
“The Bill will therefore contain measures to ensure that the Appeal Court should not quash convictions solely on the basis that the trial court lacked jurisdiction under the common law to provide for anonymity measures. The aim will be to ensure that defendants cannot take unfair advantage of the technical defect in the law which has until now been unidentified and unsuspected. I will publish this Bill just as it is drafted, and I will arrange to hold an open meeting for Members of both Houses in advance of formal consideration in this House.
“Let me also provide this additional but important reassurance. My right honourable friend the Prime Minister has already announced in the draft legislative programme for the next Session the Law Reform, Victims and Witnesses Bill. We had for months planned in that Bill to provide a statutory basis for anonymous evidence. I can therefore give this undertaking of what amounts to a sunset clause for this urgent measure: that the provisions of this Bill, if passed, will be included in next Session’s Bill. So there will be a full opportunity for both Houses to give further consideration to this important area of criminal process. I commend the Statement to the House”.
My Lords, that concludes the Statement.
My Lords, first, I thank the Government for involving the Opposition in discussions on the intended legislation. We recognise that Ministers are confronting a particularly testing problem, and we wish to be as constructive and helpful as possible.
The Government propose to introduce new measures in the form of emergency legislation to be scrutinised for no more than a day or two in each House of Parliament. We are therefore pleased to learn that it will be certain to include a sunset clause, with an opportunity thereafter for more thorough examination in the context of the Law Reform, Victims and Witnesses Bill. Will the clause take the form of an express time limit? I say that because, as your Lordships' House has learnt to its cost in the context of the control orders legislation, the Bill may well be delayed. An additional factor is the racing certainty that the Bill will contain provisions granting delegated legislative powers and providing for guidance, neither of which we shall see or have any hope of seeing in the draft of the Bill at the emergency stage.
In the Statement, the Minister makes reference to cases that have already concluded in a conviction. The Statement reads:
“The Bill will therefore contain measures to ensure that the appeal courts should not quash convictions solely on the basis that the trial court lacked jurisdiction under the common law to provide for anonymity measures. The aim will be to ensure that defendants cannot take unfair advantage of the technical defect in the law which has been until now unidentified and unsuspected”.
That is a retrospective provision. Retrospective legislation is in principle inimical to our constitutional arrangements. It is justified only in the most exceptional circumstances. However, I have some sympathy with the Government. Without such a provision, a considerable number of already convicted defendants found guilty of the most serious crimes will be certain to have their convictions quashed. Nevertheless, I should like the Minister to assure the House that the Appeal Court will be free to quash such convictions if the special measures ensuring anonymity used in the trial of convicted defendants fall outside those permitted by the terms of the proposed emergency legislation.
Since the mid-1990s, it has increasingly become the practice to grant witness anonymity in certain categories of cases, such as murder, grievous bodily harm, gang warfare, drug-peddling and terrorism. Indeed, in some areas, in particular classes of case, it has become almost routine to grant anonymity. Can the Minister tell us the scale of the problem of witness intimidation and assure us that each application will in future be treated strictly on its individual merits, not granted as a matter of course?
The conclusion of the noble and learned Lord, Lord Bingham, that the special measures employed in the trial of Davis were not compatible with the common law, led him to observe, as the Statement relates, that the reality of the problem of witness intimidation was serious and may very well call for Parliament’s urgent attention. This view was echoed by other noble and learned Lords. It is therefore clear that, contrary to some newspaper reports, their Lordships were only too well aware of the seriousness of the problem and sought a constructive way forward by suggesting legislation—advice that the Government are rightly taking. Does the Minister accept that this is the true picture?
The Government face the dilemma of crafting legislation that deals effectively with the problem of witness intimidation, yet at the same time complies with Article 6(3)(d) of the European convention. It is clear from the thorough analysis of the relevant Strasbourg cases by the noble Lord, Lord Mance, that the use of anonymous evidence is not incompatible with the convention in all circumstances. It is, however, equally clear that anonymous evidence that is the sole or decisive evidence in a trial will have a steep uphill climb to attain convention compatibility.
This is especially true in circumstances in which the defendant wishes to cross-examine an anonymous witness about his credibility. It is simply not possible for the defence counsel to test the credibility of a witness whose identity is unknown to his client. In the absence of identification, the defendant quite simply has no access to any information that would enable him to examine the character or the motives of the witness.
One way of resolving this problem is to guarantee the witness not anonymity but special protection. This has been the approach in the United States of America through the Organized Crime Control Act, which provides for the relocation of witnesses and their families to places of safety, sometimes providing them with new identities. Are the Government considering such alternatives?
My Lords, I thank the Minister for reading the Statement. I had direct and practical experience of this problem this year in a trial at the Old Bailey, and I declare an interest accordingly. We are in this situation because special measures that were introduced to protect the victims of rape or child abuse have been extended more and more. As the noble Lord, Lord Kingsland, has said, it has become routine for police officers to say to witnesses, “Don’t worry about coming forward or about what you say. You will be granted anonymity”. That means that when the case comes to court and the judge has to consider it, he is almost bound to accept the anonymity proposed by the prosecution or declare the trial at an end.
The granting of applications for anonymity and special measures has become routine. In the particular case to which I referred, the trial was due to start on the Monday. On the Friday, I received an application, which the CPS had not signed, containing a simple sentence in relation to each of the five witnesses, which said, “The witness is afraid of the defendant”. There were no details. There was nothing. That was what went before the judge. I was then faced with some five witnesses whose voices were disguised and who were concealed from the defendant by curtains. I could see them, but I could not describe them to my client and find out who they were. Although there were suspicions that there was some collusion, it was absolutely impossible to cross-examine them. There was no basis on which one could ask relevant questions that would test the credibility of unknown witnesses. That is the problem.
There is a need for anonymity in certain cases, but it has been granted far too often. The Judicial Committee of this House put a stop to this in its judgment last week. We now need to look for a statutory framework that can ensure that, in an appropriate case, anonymity is granted to a witness but the rights of the defendant to a fair trial are maintained. It is not enough for a witness to say, “Well, you know what it’s like around here. Grasses are not welcome”, or, “This is a dangerous area. I cannot speak freely”. If a witness can establish to the satisfaction of the judge that he has been threatened by the defendant or by the defendant’s associates, anonymity and special measures should be granted to him as a matter of routine. However, the fact that there is a climate of intimidation in an area should not in itself make the difference. The essential thing is that anonymity should be the exception and not the presumption, as it has tended to become in these past few years.
I also believe that anonymity should be granted only in serious cases. I have heard a suggestion that the Government are considering that it should operate in magistrates’ courts. These courts are not fitted out for special measures and the proposal to grant anonymity in cases that are suitable for a magistrates’ court is taking the principle too far.
Pre-trial applications should be made to a judge, who should determine them on evidence. If necessary, a special counsel should be appointed to test a witness’s fear of the consequences of giving evidence. Both parties should have a right to be heard and the usual duties of disclosure at pre-trial hearings should rest on the prosecution. The judge, when he makes his order, should be satisfied to a criminal standard that the evidence of the witnesses for whom anonymity is sought is not the sole or decisive evidence in the case. In Scotland, there is a requirement for corroborative evidence in almost every case. We have dispensed with it in rape trials in this country and the proportion of rape trials that succeed has gone down accordingly. The judge should be satisfied that there is no reason to believe that a witness has a motive or a tendency to lie. He should come to the conclusion that the credibility of the witness can be satisfactorily and properly tested, and that the fear for their safety is genuine and not merely a response to the claim that “grasses are not liked in this area”.
The judge must have in mind the basic, fundamental principle that caused this Parliament in 1641 to abolish the Court of Star Chamber: I refer to the need for open justice, with nothing happening behind closed doors. The judge should bear in mind also the general right of a defendant to know the identity of witnesses; should consider the significance of the evidence given by that witness; and should decide whether they can be protected by other means, such as those mentioned by the noble Lord, Lord Kingsland.
This is a difficult area. It has been tackled well in New Zealand and there is a template that we can follow. However, it requires a considerable amount of discussion and consideration. We will not block the temporary legislation that is being brought forward by the Government, but we shall examine it with some care—and even more so when the Bill comes before us in future.
My Lords, I thank the noble Lords, Lord Kingsland and Lord Thomas, for their constructive comments. I also pay tribute to the opposition parties that have already taken part in discussions on the emergency Bill that we propose to bring before the House in the next week or so. I accept that we face a challenging issue and that it will be critical to get the balance right.
The noble Lord, Lord Kingsland, asked me about a sunset clause. He will have noted that my right honourable friend said that the undertaking was “what amounts to” a sunset clause. He also said, in answer to questions raised in the other place, that he would be happy to discuss with opposition parties the question of how to ensure that the principle of the sunset clause is taken into account without it necessarily appearing in statute. At this stage, it is perhaps best to await those discussions.
As for the question of appeals, the noble Lord, Lord Kingsland, put his point very well and I am happy to give him the assurance that he asked for. We want to avoid sound convictions being overturned. However, whatever happens in this area must comply with Article 6. The noble Lord, Lord Kingsland, also made some apposite points about witness protection programmes. I understand that there are witness protection schemes currently in operation that have worked successfully. These schemes will continue to be used in future. However, one has to accept that, for some witnesses, the complete disruption of their lives—moving to another part of the country, with all that that involves—will not be particularly welcome. So while we continue to wish to see witness protection schemes being used, they are not the only answer to the specific problem of people who are genuinely fearful of giving their testimony without the protections we are talking about.
We are still looking carefully through the potential cases involved to work out the numbers. It will include those that are in trial or in the pipeline and those that have gone before. I am cautious about presenting to Parliament the numbers before we have assured ourselves that they are absolutely accurate. When we have the correct figures, we will of course make them available.
On the question of sole evidence, the noble Lord, Lord Kingsland, is right in his remarks and the extract he repeated from the House of Lords judgment. Much will depend on the circumstances of the case and the nature of the witnesses. One may clearly draw a distinction between witnesses who are innocent bystanders giving statements of fact and being cross-examined on that basis and those who might be members of rival gangs. One has to accept that there are distinctions to be drawn and it is for the judge to ensure that Article 6 and the right to a fair trial is upheld whatever the circumstances.
I am grateful to the noble Lord, Lord Thomas, for letting me have the details of some of the issues he is concerned about from his own experience in the courts. We will give very careful consideration to those. I do not quite recognise his description of the use of anonymised witnesses as “routine”. We will see the figures when we can bring them before noble Lords, but I suspect that it will be a very small proportion of the 1.5 million cases that go through the courts every year. I agree with him about the need to ensure that there is rigour in the processes by which anonymised witnesses are used. We expect the legislative framework of the Bill to be brought before the House and any guidance that my noble and learned friend the Attorney-General is considering to meet the point.
As my right honourable friend the Lord Chancellor said in another place, magistrates’ courts are currently not excluded from these arrangements. We do not want to exclude them at this time. As some of the most troubling cases have arisen in youth courts and there can be real fear among witnesses, we think that they, too, ought to be covered.
I am grateful for those comments. We will make sure that they are fed into our discussions about the nature of the Bill to be presented to Parliament.
My Lords, I am bound to say that I find some difficulty in recognising the recent decision of this House which was mentioned in the Statement that has just been repeated—and I am grateful to the noble Lord for repeating it. I am particularly surprised by the sentence to which the noble Lord, Lord Kingsland, referred, which mentions a,
“technical defect in the law which has been until now unidentified and unsuspected”.
Does the Minister accept that the principle clearly stated by the House of Lords was that any conviction that is based solely or decisively on the evidence of anonymous witnesses cannot be fair? Does he agree that that principle prevailed throughout the 30 years of Irish terrorism despite the obvious threats in Ireland of intimidation? Does he agree that the departure from the basic principle that has been so clearly stated, which has now become so widespread, as the noble Lord, Lord Thomas, mentioned, is of very recent origin, probably not more than 10 or 15 years at most?
My Lords, I am grateful to the noble and learned Lord for his comments. On the question of appeals, I want to make it clear that the Bill will contain measures to preserve the Appeal Court’s ability to quash convictions where the imposition of anonymity measures has, on the facts of the case, violated the defendant’s right to a fair trial. I hope that clears that matter up.
The Government of course respect and take seriously this judgment of the House of Lords; that is why I am making this Statement today and why the Government will bring legislation into your Lordships’ House in the near future. However, it is also fair to say that witness anonymity has proven a successful development in the face of the undoubted fear that many witnesses have had about giving evidence when they may have felt their lives would come under threat. The Court of Appeal has been clear in its judgments that anonymity is not inconsistent with the right to a fair trial provided the need is clearly established, cross-examination is permitted and the trial must be fair. However, the Law Lords have now ruled differently. As I said, the Government respect that judgment. That is why we are taking this action.
My Lords, while it may or may not be expedient now to legislate, even retrospectively, as promised in this Statement, why did the Secretary of State for Justice describe as a,
“technical defect in the law”
the complete absence of any authority for depriving an unknown number of defendants of a core element of their right to a fair trial? If we describe such a deficiency as a mere technicality, are we not demonstrating a very dangerous attitude indeed?
I certainly hope not, my Lords. The comment in the Statement on appeals was, as I said to the noble and learned Lord, Lord Lloyd of Berwick, that the Bill we will bring before your Lordships’ House will preserve the Appeal Court’s ability to quash convictions where the imposition of anonymity measures has, on the facts of the case, violated the defendant’s right to a fair trial.
As I also said to the noble and learned Lord, up to the point of the judgment, we were guided by the view of the Court of Appeal. Now that the Law Lords have made their judgment, we are bringing in legislation to rectify the position. At no time have the Government sought to do anything other than have in place circumstances that provide for a fair trial as indicated in Article 6. But I would say to the noble and learned Lord, Lord Mayhew, that we should not forget that witness anonymity has also brought many benefits to our society as a whole.
My Lords, in view of the urgency and seriousness of this matter, what provision are the Government making to consult the Criminal Bar Association and the Law Society about it? It is imperative that they are part and parcel of the discussions that take place.
My Lords, since the Government have been considering the outcome of the judgment we have focused on preparing instructions for parliamentary counsel and have taken part in a number of discussions with representatives of the opposition parties. I can assure my noble friend that we are keen also to discuss the issue with the distinguished organisations he mentioned.
I again make the point that, as was indicated in the draft Queen’s Speech, further legislation in this area is to be brought forward in the next Session. This House and the other place will therefore have ample opportunity to discuss these matters in detail following the passage of the proposed emergency legislation.
My Lords, I support all the points made by noble Lords who have asked questions in this short debate, in particular the points made by the noble and learned Lords, Lord Lloyd and Lord Mayhew. Does the Minister agree that the extremely thorough speeches of the Law Lords in this case have shown that overuse of anonymity is in fundamental conflict with the common law rights of defendants and that it cannot possibly be regarded as a technicality? Does he further agree that the thorough speech of the noble Lord, Lord Mance, on the decisions of the European Court of Human Rights shows that a trial where the sole or decisive evidence is given by anonymous witnesses is prima facie not a fair trial, and that only in the most exceptional circumstances would it be possible to justify a conviction in such cases?
My Lords, it is a very considered judgment and, as I said, the Government respect the independence and integrity of the Law Lords. That is why we have accepted the suggestion that new legislation is required and why we will shortly bring a Bill before your Lordships’ House.
On the question of anonymous witnesses giving the sole evidence, I have read the carefully written judgment of the noble Lord, Lord Mance. He stated that it is considerably less certain that,
“there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence, or whether the extent to which such testimony is decisive may be no more than a very important factor to balance in the scales. I doubt whether the Strasbourg court has said the last word about this”.
It is fair to say that Strasbourg does not have an inflexible rule and that it will depend on the individual nature of the circumstances of the case.
We wish to see a statutory framework in which the right to a fair trial is clearly guaranteed. A judge will have to weigh all factors into the balance in reaching a judgment on the question of whether the anonymous evidence is sole evidence. There may be cases where there are very good reasons for having anonymous witnesses. None the less, we want to achieve a situation where the right to a fair trial is maintained.
My Lords, perhaps I may tell your Lordships a story about how things were some 15 years ago, before anonymity orders became quite commonplace. I was at the Old Bailey for lunch one day and the senior judge said, “Go down to court so and so and watch the murder trial that will take place there this afternoon”. The case involved the use of a gun. There was a very short opening by the prosecuting counsel; he was going to call five witnesses who had been present and had seen the murder carried out. The first witness was called. He answered to his name—I am not sure about the address—but he, of course, was not there on the day. He knew nothing of it—there must have been some error. He was passed aside and we came on to witness number two. There were about five witnesses and, in different language, they all told the same fairytale, that they knew nothing about it whatever. Halfway through the afternoon, the judge said to the prosecuting counsel, “I think, Mr Smith, we will have to stop here. This prosecution cannot proceed”.
There is a procedure for treating a witness as a hostile witness and cross-examining him, but to do that to every witness called by the prosecution to prove a murder is simply not on. That whole trial collapsed because there was a conspiracy that one could only guess at, with fear or intimidation running through all the witnesses. None of them would speak. That was how it was and there was a serious problem. I am not saying a word about the solution. I have not had enough time to study it.
My Lords, that is an important point. We must remember that in many cases we are talking about very serious crimes in which witnesses are in real fear of giving evidence. If the rule of law is to prevail, it is important that such evidence can be brought before the courts. Equally, it is necessary always to ensure a fair trial. Getting the balance right is challenging but important and that is what we shall seek to do.
My Lords, as a member of the Metropolitan Police Authority, I was present at a briefing this morning where the police were outlining some of the implications for their work. Many people felt very real concern that some dangerous criminals would be released as a result of this ruling unless these matters are rectified, possibly involving some retrospective legislation. They also expressed how difficult it would be for the police to bring forward for prosecution those who, in the public interest, should be brought to trial.
I have two points for my noble friend. First, when the threshold is set for judges for reasons why a witness should be afforded anonymity, I hope it will not be at the level where the witness has actually to have been threatened. The witness may not be someone who the defendant expected to testify against them, so if it is a requirement that they actually be threatened, that threshold may be too high.
Secondly, it would be helpful to the House if more details were given of the implications for witnesses who opt for the witness protection programme, which requires them and their families not only to change their name but to sever all relationships for all time with all the people they have ever known; to be relocated to another part of the country; to be found accommodation at public expense, and not all local authorities are helpful in providing accommodation under those circumstances; and to be found employment. It is a major step for any individual and their families to take, and one which is extremely expensive for the state.
My Lords, I am grateful to my noble friend. He is right about witness protection schemes. Given the disruption a relocation or change of identity can have to the life of a witness and his or her family, it is not surprising that these programmes are offered only in the most extreme cases where there is a threat to life. That situation is likely to continue, which is why witness anonymity is important.
On the question of the threshold, we will consider those matters very carefully in preparing legislation and considering what guidance will need to be issued in the future. A Court of Appeal case in the early 1990s, R v Taylor, set out the following detailed principles for the exercise of the power. There must be real grounds for a fear of the consequences if the identity of the witness were revealed. The evidence must be sufficiently important to make it unfair to make the Crown proceed without it. The Crown must satisfy the court that the creditworthiness of the witness had been fully investigated and disclosed. The court must be satisfied that there would be no undue prejudice to the accused. Finally, the court could balance the need for protecting the witness, including the extent of that protection, against unfairness or the appearance of unfairness. We shall consider all those matters.
My Lords, I wonder whether I might take up the House’s time for a minute or two more. On any basis, this is a very important subject. Sitting in the Court of Appeal Criminal Division, I had to review a number of cases where anonymity had been used. It is fair to say that the reading of the decision of their Lordships in the recent case of Davis was very revealing to me, as it set out with such clarity the principles which their Lordships were going to apply. But I was not surprised to read in one speech—that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood—that he started off expecting that the appeal would be dismissed. Like me, he was influenced by the marshalling of the authorities as appeared in particular in the speech of the senior Law Lord. However, although I, equally, was persuaded by the speech of the senior Law Lord on the overwhelming effect of the authorities, I am bound to say that, based on my experience, I believe that it is necessary that legislation should be brought forward because otherwise trial judges dealing with these matters will be in an impossible situation. They cannot afford to wait and see what the Court of Appeal or the House of Lords will say about a case—they have to act on the material which is before them.
With regard to the cases I saw, I can assure the House that the trial judges were always very reluctant to adopt the course of resorting to anonymity. It was a last resort, and one can understand why they would be reluctant, because even without looking at the authorities which were so ably marshalled by their Lordships, it is clear that this is a very undesirable departure from the ordinary conventions of a trial. However, it is my belief that it is possible for a trial to be conducted with an element of anonymity in the course of the proceedings and still be fair to the defendant. Above all, the courts must always treat as paramount the principle that a defendant must have a fair trial.
The approach in the criminal courts is different from that in the civil courts. The civil courts can balance matters in a different way because the liberty of the subject is not at stake. I ask the Minister to bear in mind that it is critical, if legislation is brought forward, that the trial judge should have a discretion to decide whether the case goes on or not, with the witness’s identity not being given.
The second thing I want the Minister to bear in mind as absolutely critical is the fact that whereas legislation can alter the position with regard to the common law, it cannot, of course, alter the human rights position. We do not want a division between the approach taken in the legislation and the jurisprudence of the European Court of Human Rights, which in this area is not as clear as it should be but will no doubt develop. I would like the Minister to indicate that there is no proposal not to give the usual certificate of compliance with the Human Rights Act. I apologise if he has already made that clear; I am afraid that I was not able to be here for the reading of the Statement. I suggest that the observance of the requirement of that certificate is critical.
Justice is needed not only for the defendants but also for the public. We cannot have a situation where, with the more developed methods of tracing individuals, a case can be properly brought where the evidence is there but no trial takes place at all because of a technical problem. I use the word technical deliberately because what should be involved is not technicality but justice. The judge should be there to see that justice is done. He should be enabled to do that.
My Lords, that was a helpful comment and intervention. On the two specific points, judicial discretion will of course be important within the framework set by the legislation. Secondly, yes, I will be required to sign the certificate. We will bring forward legislation that we believe is entirely consistent with Article 6 and guaranteeing a fair trial.