My Lords, I beg to move that this Bill be now read a second time. As the House will be aware, the need for the Bill stems from the decision of the Appellate Committee of your Lordships’ House in the case of Davis. The judgment in that case was delivered just over three weeks ago, on 18 June.
The use of anonymous evidence is by no means a new phenomenon. It has been used in criminal proceedings now for the best part of two decades. The Davis case itself dates back to 2002, while the earlier case law on anonymous evidence dates back to 1990. When used appropriately, anonymous evidence can play a vital part in bringing serious and violent offenders to justice.
Prior to 18 June, it was accepted that the courts had common law powers to grant a witness anonymity order where the circumstances of a particular case justified a departure from the general presumption that an accused should know the identity of his or her accusers. The Appellate Committee of this House changed all that when it delivered the judgment in Davis. In short, the Law Lords found that there was not sufficient authority in the common law to support arrangements for the admission of anonymous evidence. The Appellate Committee further held that, on the facts of the Davis case, the use of anonymous evidence did not satisfy the requirements of Article 6 of the European Convention on Human Rights, which guarantees the right to a fair trial.
However, having reviewed the Strasbourg jurisprudence, the Appellate Committee found that it was open to Parliament to legislate—a point made by the noble and learned Lords, Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Brown of Eaton-under-Heywood and Lord Mance. That is what we are now proposing to do in the Bill. I very much welcome the co-operation we have had from both the Front Benches opposite, and other noble and learned Lords, in helping us to discuss the provisions of the Bill before your Lordships’ House at such speed. I fully recognise that the pace at which we are legislating is far from ideal, and that there may be some among your Lordships who remain to be persuaded of the need for emergency legislation.
The Government’s case for taking the Bill through all its stages before the Summer Recess is that, following the Davis judgment, the Crown Prosecution Service has undertaken a trawl of all the live cases it is dealing with to assess how many of them involve the use of anonymous evidence. The results of that research are as follows. As at 25 June, the CPS had identified some 580 cases involving anonymous witnesses. This figure can be broken down into four categories. First, around 290 cases involve test purchases for drugs by undercover officers. Secondly, some 40 further cases involve other undercover operations by law enforcement agents. Thirdly, some 50 cases involve members of the public as witnesses; this figure will be made up of a mixture of cases involving innocent bystanders and those in which the anonymous witness will be associated with the accused in some way. Finally, there are approximately 200 cases where either the defendant has been convicted and awaits sentencing or the offender has been sentenced and the 28-day period for making an in-time appeal is still running. There will, in addition, be other cases where a conviction was secured some time ago on the basis of anonymous evidence. Many of these cases involve serious offences including murder, attempted murder and terrorism-related offences.
I stress that these figures have been compiled after an expedited review of current CPS casework and should consequently be viewed as a snapshot of the position and subject to change. However, they give us an indication of the current scale of the problem. Given these numbers, it is the Government’s firm view that we now need to act in the public interest, to put the use of anonymous evidence on a firm statutory footing. Delay would mean that a significant number of trials may have to be abandoned and a further large number of convictions could well be overturned on appeal.
The Bill seeks to place on a statutory footing a power for courts to grant witness anonymity orders in criminal proceedings where this is consistent with the right of a defendant to a fair trial. Clause 1 makes clear that the previous common law rules are abolished. Clause 2 confers power on the courts to make witness anonymity orders in criminal proceedings. It is worth noting that neither the Davis judgment nor the provisions of the Bill impact on the position in respect of civil proceedings. This clause also sets out an indicative list of the special measures that may be taken to protect the identity of a person who is the subject of a witness anonymity order. Clause 3 deals with applications for witnesses anonymity orders. Following an amendment made by the other place, it now expressly provides that every party to the proceedings has an opportunity to be heard on an application for an order.
The crux of the Bill is to be found in Clauses 4 and 5. Clause 4 sets out the conditions for the making of a witness anonymity order, and Clause 5 sets out the considerations to which the court must have regard when assessing whether the conditions have been met. The Bill sets out three conditions for the making of an order. All three conditions must be satisfied before the judge can make an anonymity order. The first is that the protective measures to be specified in the order are necessary, to protect the safety of the witness or other person, or to protect serious damage to property, or to prevent real harm to the public interest. This latter limb of condition A is intended to cover the sort of undercover operations I have described, where to make known the identity of an undercover officer would put an end to their ability to conduct such operations in future, as well as putting them at risk of reprisal. The second condition, condition B, is that the proposed protective measures would be consistent with a defendant’s right to a fair trial. The third, and final, condition, condition C, is that it is necessary to make an order in the interests of justice. As I have said, all three conditions must be satisfied. If it is not possible to make a witness anonymity order without undermining the defendant’s right to a fair trial, an order cannot and will not be made.
To assist the court in deciding an application for an order, Clause 5 sets out an indicative list of considerations to which the judge must have regard in deciding whether to make an order. These include the general right of a defendant in criminal proceedings to know the identity of his or her accuser and, following another amendment made in the other place, whether the evidence to be given by the witness might be the sole or decisive evidence in the case.
As well as the Bill applying to new criminal proceedings instituted after its enactment, Clauses 10 and 11 also include transitional provisions for existing proceedings and provide a framework for consideration by the Court of Appeal of any appeals against conviction secured on the basis of anonymous evidence. In either case, we want the trial judge or, as the case may be, the appeal court to consider whether the court could have made the order if the new statutory regime had been in force at that time. If such an order could properly have been made, consistent with the defendant’s right to a fair trial, it is right that a trial where anonymous evidence has already been heard should be allowed to continue, or that an appeal against conviction should not be allowed.
The House will be aware from the front cover of the Bill that I have made a statement of compatibility with the convention rights under Section 19 of the Human Rights Act—as, indeed, did my right honourable friend the Lord Chancellor when the Bill was introduced in the other place. The Explanatory Notes to the Bill include a detailed assessment substantiating this statement of compatibility. I know that the Joint Committee on Human Rights is looking at that matter and has taken evidence on the Bill from the Director of Public Prosecutions.
The use of anonymous evidence in criminal proceedings self-evidently engages Article 6 of the convention. We believe that the scheme set out in the Bill will enable a trial judge to navigate the difficult legal considerations at stake and reach a view, on the circumstances of the particular case, that it would, or would not, be compliant with Article 6 considerations to grant a witness anonymity order in that instance. In addition to the requirement for a fair trial being set out in the Bill, the court is, of course, required under Section 6 of the Human Rights Act to act in a way which is compatible with convention rights.
The House will be aware that the Davis judgment included a comprehensive analysis, by the noble and learned Lord, Lord Mance, of the Strasbourg jurisprudence on the use of anonymous witness evidence. The noble and learned Lord noted that the European Court of Human Rights had repeatedly stated that the use of anonymous evidence is,
“not under all circumstances incompatible with the Convention”.
Moreover, the noble and learned 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”.
We acknowledge that there will be cases, such as Davis, where the use of anonymous evidence, particularly when given by witnesses whose credibility is at issue and where it is the sole evidence, cannot be consistent with a defendant’s right to a fair trial. But, equally, there will be many others, including those where the credibility of the witness is in dispute, where a witness anonymity order can legitimately be made without compromising the overall fairness of the trial.
I return to the question of timing. I am reminded, rather more frequently than I care to be, that if one legislates in haste, one can repent at leisure. This House should rightly test the need for emergency legislation of this kind. I have indicated that, in this instance, the Government firmly believe that legislation is needed as a matter of urgency. I welcome the co-operation and constructive comments that we have received from both opposition Front Benches. I, of course, accept that the debate in the other place and the debate we will have in your Lordships' House fall short of the time that should, in an ideal world, be devoted to these very important matters.
In recognition of that, we have given a firm undertaking to subsume the provisions of this Bill into the Law Reform, Victims and Witnesses Bill, which was announced as part of the draft legislative programme for the coming Session.
My Lords, one hopes that the Bill is so crafted that innate unfairness will not be evident. Indeed, the remarks that I addressed to the right to a fair trial are very much predicated on that point of view. As I said, we intend to introduce the Bill I mentioned in the next Session. Clearly, if unfairness arose in the way that my noble friend suggested, we would have to consider that in terms of individual cases and any amendments that might need to be made to that Bill. In the other place, probing amendments were tabled in order to inform legislation that might need to be drafted in the future. I am sure that that will be apparent when we analyse the speeches made at Second Reading and in Committee. Following an amendment made in the other place, the Bill now contains a sunset clause, in effect putting our commitment on to a statutory footing.
The Appellate Committee of this House set us a challenge to devise a statutory scheme for the use of anonymous evidence which is compatible with the right of a defendant to a fair trial. We believe that this Bill fulfils that challenge and I commend it to the House.
My Lords, before the noble Lord sits down, could he enlighten me on one point? He referred to evidence being given by serving police officers. Does he contemplate that any serving police officer could come within Clause 4(5) as being somebody who would not testify without an order? Surely a serving police officer has to give evidence if he is required to do so?
My Lords, the cases to which we are referring are described as test purchase cases where the police officers involved need to act under cover. In many circumstances, it is very important that their anonymity is preserved. However, the general provisions in the Bill, the conditions that will operate and the judgment that the judge will have to make provide the guarantees that the noble Viscount seeks.
My Lords, I do not think that the noble Lord grasped the significance of the previous question. As the noble Lord pointed out, it is a condition precedent to the order being granted that the witness would not testify if the order were made. The judge has to be satisfied on that. It is not a consideration; it is a requirement. As the noble Viscount pointed out, that seems a bit odd when you look at Clause 4(3)(b), which refers to undercover operatives. Certainly, we on these Benches have no objection to undercover and security people being protected, but obviously they will give evidence if they have to.
My Lords, it was open to the Scottish authorities to go through the Sewel process. They have chosen not to do so. I understand that the Scottish Administration is considering this matter, but I believe that the Scottish Parliament is in recess. Therefore, it is difficult for me to comment further on that matter. However, if I obtain further information on the Scottish position between now and Tuesday, I shall be happy to give it to the noble and learned Lord.
Moved, That the Bill be now read a second time.—(Lord Hunt of Kings Heath.)
My Lords, I support the Second Reading of the Bill, subject to our further scrutiny of its provisions next week. Your Lordships’ Select Committee on the Constitution has considered the Bill and published its report today. The noble Viscount, who is a member of the committee, has already contributed to the debate.
The common law of England and Wales, Northern Ireland and Scotland has for many centuries recognised the right for a defendant in a criminal trial to be confronted by his named and identified accusers—that is, witnesses giving sole or decisive evidence pointing to the defendant’s guilt—in order that he or she may cross-examine them and challenge their evidence. Clause 5 recognises this, referring to the,
“general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings”.
In his speech in the Davis case, the noble and learned Lord, Lord Bingham, emphasised the constitutional nature of the long-standing common law right in English law for defendants in criminal trials to be confronted by named and identified accusers. He explained how that right was adopted in the constitutions of the North American colonies and the sixth amendment to the Constitution of the United States of America. He recalled in relation to Northern Ireland how committees chaired by Lord Diplock in 1972 and Lord Gardiner in 1975 conclusively rejected suggestions that witness anonymity might be introduced to deal with the problems of intimidation that existed at that time. The noble and learned Lord, Lord Rodger of Earlsferry, noted:
“Lord Diplock saw the common law principle as so fundamental that he felt unable even to recommend that legislation should be passed to interfere with it”.
The right to be confronted by named and identified accusers is a right of constitutional character. The Bill, rightly, does not abolish that long-standing right, but it will create a new range of statutory rules permitting witness anonymity. A distinction must be drawn between the general right of a defendant in a criminal trial to be confronted by his accusers and the rules on withholding the identity of witnesses.
In the Davis case, the Appellate Committee held that, in a small number of recent cases, the common law has been developed to permit a limited qualification on the right to know the identity of the prosecution witnesses in rare and exceptional circumstances where there is a clear case of necessity. The small qualifications to the general rights were developed by the courts exercising their common law power, frequently referred to as their inherent jurisdiction to control their own proceedings.
The Bill will abolish the,
“common law rules relating to the power of a court to make an order for securing that the identity of a witness in criminal proceedings is withheld”.
Under Clause 3, either the prosecutor or the defendant may apply to the court for witness anonymity. As the Minister said, Clause 4 requires a trial judge to be satisfied about three conditions before making an order, the details of which he has already recited.
Although it is not spelt out in the Bill, it is clear that any order made must not violate a defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights. The court is a “public authority” for the purpose of the Human Rights Act 1998. In the Davis case, the Appellate Committee held that the combination of anonymity measures imposed by the trial judge in that particular case breached the defendant’s convention rights.
The new statutory rules on witness anonymity introduced by the Bill are broader than the existing common law rules. Whereas the common law powers on witness anonymity are probably limited to protecting personal safety, the Bill will enable anonymity orders to be made where it is necessary to,
“prevent any serious damage to property, or … real harm to the public interest”.
That broadening of the rules, along with the existence of a much publicised statutory scheme, may perhaps lead to greater use of witness anonymity, although the Director of Public Prosecutions opined to the contrary in his evidence to the Joint Committee on Human Rights. Article 6 of the ECHR will, however, continue to provide the minimum guarantees of a fair trial. In this context, the House will be aware that the Appellate Committee, in the Davis case, held that the protective measures imposed in that case breached convention rights to a fair trial, as well as the common law limits on anonymity.
The committee considered that, as a matter of British constitutional practice, there is an acceptable basis for the provision in Clause 11 barring appeals succeeding on the sole ground that a court, before the commencement of the Bill, lacked the legal power to impose an order for witness anonymity. We took the view that the public interest outweighs a defendant’s interest in benefiting from a past defect in the trial process, given that there is an express requirement for the Appeal Court to consider whether, overall, the trial was fair.
We welcomed the introduction of a sunset clause to the Bill and the Government’s intention that Parliament will have an opportunity to return to consider witness anonymity in the Law Reform, Victims and Witnesses Bill, which is planned for the next Session. The situation that has arisen in relation to the Criminal Evidence (Witness Anonymity) Bill is likely to recur.
One of the beneficial outcomes of the Government’s decision in July 2007, as part of the Governance of Britain initiative, to publish a draft legislative programme some months ahead of the Queen’s Speech is that it is now clear when a Bill in the current Session deals with matters that are planned for the next Session. That is so, for example, in relation to the provisions on coroners in Part 6 of the Counter-Terrorism Bill this Session. The Government have explained that those measures cannot wait until the enactment of the Coroners and Death Certification Bill that is planned for the next Session, as there are a number of pending inquests where new powers are urgently required. The committee therefore saw merit in adopting a general practice of including a sunset clause for provisions that are introduced for reasons of expediency in one Session ahead of a Bill on the same subject that has been announced as part of the draft legislative programme for a subsequent Session.
The Davis case obliges Parliament to produce a scheme for the provision of anonymous witness orders that meets the requirements for justice in each case and provides fairness under the rule of law. A balance has to be struck between the need to protect witnesses in appropriate cases, so that they can give evidence without realistic fear of the consequences, and the need for defendants to receive a fair trial. I respectfully submit that the Bill strikes that balance and that those in the Government who have produced it so expeditiously deserve our gratitude.
My Lords, I, too, support the Second Reading of the Bill. I declare an interest as a member of the Joint Committee on Human Rights. As the Minister said, as part of its scrutiny function, the JCHR took evidence about the human rights implications of the Bill on Tuesday from the Director of Public Prosecutions, Sir Ken Macdonald QC, and from Paddy O’Connor QC, who gave the defence perspective. We will publish that evidence before the remaining stages of the Bill, and we hope to publish a report early next week about the compatibility of the Bill with the convention rights.
In the absence of a decision of the Joint Committee as a whole, what I am about to say represents my personal view that the Bill is indeed compatible. That accords with the view of the chair of the JCHR, Andrew Dismore MP, as he explained in the Commons debate on 8 July at cols. 1317-19. It also accords with the view expressed by David Howarth MP, on behalf of my party, at cols. 1319-24. One of the remarkable features of the way in which the Bill has been dealt with has been the willingness of everyone from all sides to act consensually.
We are assisted by the excellent report published on 10 July of the Select Committee on the Constitution, chaired by the noble Lord, Lord Goodlad. We are indebted to the Select Committee for the quality of the report, especially given the speed with which it has had to be prepared.
There is no doubt about the scale of the problem or the legitimacy of the aim of the Bill in tackling the serious mischief of witness intimidation. The problem is very old, but its scale has increased. The Justice Secretary, the right honourable Jack Straw, was right in saying on 26 June:
“As long as there has been crime, criminals have sought to intimidate 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 should be modified only where it 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”.—[Official Report, Commons, 26/6/08; col. 514.]
All the judges in the Davis case recognised the reality and serious nature of this problem and that it might well call for the urgent attention of Parliament. They also referred to the New Zealand statutory framework as being of potential relevance.
In his article in the Guardian on Tuesday, Geoffrey Robertson QC made an intemperate attack on the Bill, under the headline, “There can be no fair trials with this perjurer's charter”. He called the Bill,
“the most serious single assault on liberty in living memory ... which will result in thousands of unfair trials; and the principles of open justice ... will be gutted by a panic-stricken measure that encourages courts, in criminal cases of any kind, to suppress the identity of crucial witnesses”.
I shall not quote the rest of this polemic. It fails to recognise or to grapple with the real problem of witness intimidation. It wrongly claims that the Bill will in effect place the trial process in the hands of the police and that it contains no safeguards for the citizen. The courts will have an obligation imposed by the Human Rights Act and the convention, and the Bill itself, to ensure that everyone has a fair trial in accordance with the procedural safeguards prescribed by Article 6 of the convention, and the Bill will have to be read and given effect to in accordance with those safeguards. The article also suggests that Mr Robertson has not examined the Bill with the care it deserves.
I declare an interest as a member of the governing council of Justice, which has produced an interesting briefing on the Bill for the House; I have only just read it. Many of the points in the briefing are valuable, but I do not agree with the following comments:
“We remain of the view that the Bill is misconceived and poorly drafted. In particular, we consider the provisions to be unduly complex, overly broad, contrary to the common law right to confront one’s accuser, and lacking several of the safeguards found in the New Zealand legislation on which it was based”.
The last point is perhaps fair and my noble friend may wish to refer to that in his reply, but, with respect, that summary of the position is neither fair nor accurate.
The Constitution Committee rightly states that:
“The right to be confronted by named and identified accusers is a right of a constitutional character”,
“The Bill does not abolish this long-standing right but it will create a new range of statutory rules permitting witnesses anonymity”.
The committee also points out that Article 6 will continue to provide the minimum guarantees of a fair trial; and, in his evidence to the JCHR, Sir Ken Macdonald emphasised that the courts will be obliged to interpret and apply the new statutory rules in accordance with the fundamental right to a fair trial guaranteed by Article 6.
I agree with the analysis in the Explanatory Notes that the Bill is compatible with Article 6 and that it contains adequate protection of the right to a fair trial. In particular, Clause 4(4) provides that the court must be satisfied that, having regard to all the circumstances, the taking of the measures granting witness anonymity would be consistent with the defendant’s right to a fair trial. That makes it crystal clear that the order must be compliant with Article 6. In addition, when deciding whether to make an order, the court must have regard to any concerns about the credibility of the witness and the extent to which the evidence given by the witness could be properly tested.
Provision is also made for ongoing and appeal cases where an order has already been made. The court must consider whether the order could have been made under the new statutory rules and whether the effect of the order is that the defendant has been prevented from receiving a fair trial. If so, the court will bring the trial to an end or treat the conviction as unsafe. Finally, the judge must give a warning to the jury to ensure that the order does not prejudice the defendant.
I welcome the fact that the Bill was amended in the other place to include as a relevant consideration,
“whether evidence given by the witness might be the sole or decisive evidence implicating the defendant”.
The DPP suggested in his evidence to the JCHR that there might be rare and exceptional cases where it would not be unfair to use such anonymous evidence—for example, where an elderly and vulnerable witness identified the registration number of a car used in a bank raid and was terrified, on reasonable grounds, of what would happen if her identity were revealed. It is unclear, as the noble and learned Lord, Lord Mance, indicated, under the current Strasbourg case law whether this would breach Article 6, but the amendment made in the other place will make it less likely that there will be a violation of the right to a fair trial.
Indeed, one of the points made to the JCHR by Sir Ken Macdonald was that he expected that there would be fewer cases than at present when anonymous evidence would be admitted at trial. The undercover cases would be largely unaffected but in Operation Trident cases the criminality of witnesses means that it may not be possible to prosecute them at all. The DPP told us that the process provided by the Bill would throw up cases where credibility would be an issue, particularly as both judge and any appeal court would know the identity of the witness concerned.
The addition of a sunset clause is also most welcome. The Bill has been described by Ministers as a stop-gap, and the Justice Minister has made it clear that further legislation will be introduced next Session that will subsume the contents of this Bill and enable full parliamentary scrutiny. The Minister confirmed that today. The Constitution Committee observed:
“While we accept that from time to time exceptional circumstances may arise requiring the Government to prepare, and Parliament to deliberate on, a bill according to an expedited timetable there are obvious risks, especially where the bill deals with a complex social and legal problem”.
The Justice Secretary’s undertaking should meet that concern on this occasion.
The Bill specifies that an order can be made only when necessary to protect the safety of a witness or another person or to prevent any serious damage to property, or to prevent real harm to the public interest. The reference to “serious damage to property” is controversial. It is unlikely that the protection of property rights could ever outweigh the right of the accused to a fair trial and, except in the most exceptional cases, it should not be a reason for an anonymity order. The DPP gave as an example a case where there was a credible threat to torch a warehouse or a witness’s home and where the test of necessity was met.
The Bill makes no provision for special advocates at hearings to determine applications for witness anonymity orders. The New Zealand legislation provides for the judge to appoint independent counsel to assist him when considering an application for a witness anonymity order, including whether the safety of the witness is likely to be endangered if his identity is disclosed. The Crown Court has an inherent power to appoint special advocates, but the magistrates’ courts would need specific statutory authority to do so. It is questionable whether magistrates’ courts should be included in the Bill at all. There is, in any event, a need for a proper procedural framework, as happens with the Special Immigration Appeals Commission, covering how the special advocate procedure should operate. I gather that the DPP, in answer to our questions, was sympathetic to that view.
As I have said, the Justice Secretary gave an undertaking in the other place to give active and urgent consideration to whether a scheme of special advocates is feasible and necessary, before the introduction of the law reform, victims and witnesses Bill in the next Session. He also undertook that he would in the meanwhile indicate to the judiciary that they should consider, in light of cases that come before them, whether independent counsel would be of use. That Bill will enable Parliament to judge whether the new scheme works well and in the interests of justice. In my view, it will be in the interests of justice and the effective protection of the right to a fair trial if this Bill, in the light of experience, is reviewed and properly considered.
My Lords, it is always a great pleasure to follow the noble Lord, Lord Lester. It is a particularly pleasurable experience today because I find myself in complete agreement with everything that he has said, not least about the rather silly piece in the Guardian last week.
Two key points come out of the Law Lords’ decision in the Davis case. First, they decided that the common law should not be used by judges to develop inroads into established areas of our criminal law; in that case, it involves the right of a defendant in a criminal trial—I quote the noble and learned Lord, Lord Bingham, the senior Law Lord—to,
“be confronted by his accusers in order that he may cross-examine them and challenge their evidence”.
The Judicial Committee was concerned that, in a series of cases at and below Court of Appeal level, that common law principle had been undermined by the inventive creativity of judges. I must confess some sympathy for that position. On the whole, it is usually better for our democracy if judges exercise some self-restraint and confine themselves to interpreting the law rather than inventing it. That is the first key point in the Davis case.
The second point is that the Law Lords took the view that the deficiencies of the common law in this area would be best addressed by the legislature. The noble and learned Lord, Lord Mance, said that the rule,
“is one for Parliament to endorse and delimit and not for the courts to create. Parliamentary legislation is the means by which common law principles regarding the admission of documentary evidence have been modified, and it is also the way in which New Zealand and Netherlands law were altered to meet the undoubted—and there is reason to think growing”—
I emphasise that phrase—
“threat to the administration of justice posed by witness intimidation”.
For the present purposes, the point of the noble and learned Lord, Lord Mance, about the prevalence of witness intimidation is key.
You get a real flavour of the seriousness of this problem if you look back at the judgment of the Court of Appeal, delivered by our most senior criminal lawyer, Sir Igor Judge—who deserves some congratulation because it has just been announced that he will be the next Lord Chief Justice, with effect from, I think, October—in which the rather shocking truth is laid bare. He describes what he calls the,
“compelling evidence of an alarming increase in gun-related crime”,
including shooting incidents on the streets of Nottingham in a 10-month period in 2002-03, when 37 people were injured. Regrettably, we are also familiar with serious knife and gun crime in cities across the country, virtually daily. Sir Igor drew attention to fear on the part of witnesses to come forward—fear for their lives and the lives of friends and family. As he rightly said:
“Without witnesses, justice cannot be done”.
It is important to understand that the Law Lords were not saying that legislation in this area would be incompatible with our obligations under Article 6 of the convention. On the contrary, they took the view that legislation was the appropriate way forward so long as the devised structure produced a fair trial for the accused. On this point I am sure that we are all agreed. So the essential question is whether the proposed legislation contains suitable safeguards that will ensure a fair trial for the accused.
The structure of the approach adopted in the Bill is that it will be a matter for the judge to decide whether or not to make an order for anonymity in respect of any witness. That is obviously right in principle. The judge is best placed to apply the criteria identified in the Bill. The test is one of “necessity” in Clause 4(3), having regard to the fears of the witness or, as the case may be, the prevention of real harm to the public interest. Before making the order, the judge will also have to be satisfied that the defendant will get a fair trial and that the interests of justice will necessarily be served.
I do not think that the need for this legislation can seriously be doubted. The noble and learned Lord, Lord Carswell, another of the Law Lords, drew attention to Ministry of Justice statistics that reveal a doubling of convictions for witness intimidation between 1996 and 2005. This is an urgent problem that needs to be dealt with firmly.
There is also danger in delay. The Minister mentioned the substantial number of cases in the pipeline. Obviously, that is a reason for getting on with this speedily. There is another problem. As the law currently stands, the viciously motivated criminal has a considerable incentive to intimidate witnesses in the knowledge that if he is successful in that endeavour, no case will be made against him because there is no provision in law for witness anonymity. That must be put right, and it must be put right speedily.
My Lords, I wholeheartedly agree with all noble Lords who have spoken that this is a case that cries out for legislation. The administration of justice will not be the same after 18 June, when the decision in R v Davis was given by the Appellate Committee of this House.
I appreciate that the House is dealing with a number of problems that are conjoined, but they are fundamentally different in many respects. In the first instance, one is seeking to repair an infection in so far as the common law is concerned. To my mind, that infection was brought about by creeping erosion, step by step, without anyone appreciating that one was doing anything fundamentally wrong. Secondly, one is not just repairing an infection; one is also seeking to repair an injustice. We must always bear that in mind. If we did nothing more than repeat into statute the principles that had been applied in the common law over the past 20 years, we would be doing the community and the whole principle of justice a very considerable injustice. We are mindful of the fact that everything that we do must fit somewhere within the Strasbourg principles; otherwise, our time here would be wasted—this matter would merely be struck down in the near future.
At all times, one is conscious of the fact that one is dealing with a massive problem of threat and intimidation to witnesses. It is not a new problem; it is one of the oldest problems in relation to the administration of justice that the world has known. In an article on this matter some years ago, Mr David Pannick QC quoted the words of Cicero when he prosecuted Gaius Verres, the former consul-general of Sicily, in 70 BC. He complained of the fact that practically all of the available witnesses had been intimidated. It is a problem that civilised societies have had to live with. It was faced in the Diplock report and the Gardiner report thereafter; it was faced earlier in relation to the Kray and Richardson trials in this country. One must not assume that the only possible answer lies in the path that we are considering, although that path is important. Perhaps I should say that that course is important—it is somewhere between Charybdis and Scylla. One can break justice, whether it be on the rock or in the whirlpool—I cannot now remember which was which. There must be a steady and careful course between those two extremes.
On the question of when this should be done, I well appreciate the views expressed by many distinguished people that Parliament should pause, tarry, consider and reflect for some time before taking any action. I do not think that we have such time available to us. The gravity of the situation is such that uncertainty and confusion have been created—I refer to the many trials already commenced where an order has been made for witness anonymity and the many scores of trials in which a conviction is undoubtedly soon going to be challenged in the Court of Appeal. All such considerations—possibly in hundreds of applications—are now waiting to be heard in relation to whether anonymity should be granted. To my mind, all those circumstances determine that there should be swift action. Nevertheless, as quoted by the Lord Chancellor in the other place, the words of Lord Denning ring loud, gravely and clear:
“In the very pursuit of justice, our keenness may outrun our sureness and we may trip and fall”.
That splendid man spoke wise and timeless verities.
I am fortified by the fact that there is now a sunset clause that will, in any event, bring this legislation to an end in some 18 months’ time. However, I suspect that the sunset will not be the one contained in Clause 14 but the one that will come with the passing of the Law Reform, Victims and Witnesses Bill. I very much hope that in the mean time we consider not just exactly how one should deal with that as a matter of mechanics but the fundamental principles, which have still not been properly and fully considered, nor catered for, in this legislation. The legislation is imperfect and, in my view, the imperfection is as follows.
In the period before Davis, a judge would have to consider practically all the considerations set out in Clauses 4 and 5 and the other parts of the Bill. What learned judge would avoid any of those? However, if all you do is convert clear judicial discipline into nothing more than a statutory checklist, what do you achieve so far as concerns safeguarding the fairness of a trial? It seems to me that the real problem is not the question of the headings that the learned judge had to consider and give particular attention to one by one but the question of what information he has on which to act in relation to those determinations. In other words, the Bill does not give the judge the wherewithal to answer those questions.
It seems to me that in future a judge will rely very much on the ipse dixit of the police and the prosecution. In the long term—and, I hope, in the much shorter term if we are to amend this in the legislation that will come before the House in a few months’ time—the answer must surely be to give the judge the wherewithal to be informed fully about the features that are crucial to the determinations, and I believe that that can be done only through the appointment of a special counsel or special advocate. I appreciate that it is argued that it is already possible for that to be done under a judge’s inherent powers. I do not have the exact passage from Archbold: Criminal Pleading, Evidence and Practice, but I am told that the learned editors of Archbold currently say, “Yes, but it should be sparingly used”. In order to remove all doubt, therefore, I would very much welcome a statement in the Bill that a special counsel can be appointed.
It may be that the procedure in relation to the magistrates’ court can somehow be made more efficient, but at the moment I cannot think of any better way of doing it than by an application to the Attorney-General. The special counsel would not act by himself; there should be a team of independent researchers and persons who are in a position to carry out the most detailed and sensitive inquiry so as to be able to lay before the judge information that is relevant to these crucial matters; otherwise, judges will be guessing or accepting the ipse dixit of the police and the prosecutor. I understand that that is how this system works in New Zealand and how it largely works in the Netherlands. When the matter eventually comes before us again, in a few months’ time with the fresh Bill, I very much hope that some thought will have been given to the prospect of making a declaration in that Bill that witness anonymity should be regarded as the exception rather than the rule; otherwise, there will again be the danger of the same creeping erosion in the interpretation of statute as occurred with the common law.
I hope, too, that one will always bear in mind the Strasbourg jurisdiction. The Strasbourg cat can jump either way. As I understand it, Strasbourg has not yet given a final, definitive determination in relation to this matter. Until that happens, there will always be a concurrent danger and possibility that our efforts here will be rendered wholly nugatory. Therefore, there has to be a measure of protection in relation to Strasbourg. From what was said in R v Davis, it seems to me that we are in some sort of purgatory. The noble and learned Law Lords say, “We are not able to say that Strasbourg is compatible, but, with the state of Strasbourg law at the moment, we are not able to say that it is incompatible”. Somewhere there is an unhappy and uncertain purgatory between us.
My Lords, it is obviously with great trepidation that a layman such as me ventures into an area of the law as esoteric as this, especially as most of the other speakers in this debate are high-powered lawyers. I do so first and foremost because I find the whole concept of anonymous accusation in a court of law to be deeply repugnant. I shall cite again, because it cannot be cited too often, the words of the noble and learned Lord, Lord Bingham, in his judgment on the Davis case. He said that,
“the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence”.
I have been much assisted by an article in this week’s Spectator by the noble and learned Lord, Lord Lloyd of Berwick. I felt that his summary of the situation was itself a masterly judgment. Perhaps I may quote a little piece from it:
“The Law Lords reaffirmed the long-established principle of the common law that in a criminal trial the defendant should be confronted by his accusers. Any conviction which depended wholly, or to a decisive extent, on the evidence of anonymous witnesses could not be safe. Accordingly they quashed the conviction. The reaction of the police was predictable. John Yates, assistant commissioner of the Met, described the decision as a cause for grave concern. Bob Quick, the head of counter-terrorism, said that the implications were catastrophic”.
He quotes Mr Quick as saying:
“There is too much principle in the criminal justice system, and not enough pragmatism”.
The noble and learned Lord, Lord Lloyd, goes on to say that,
“the Lord Chancellor said that legislation was necessary to cure what he called ‘a technical defect in the law which has been until now unidentified and unsuspected’. This is a travesty of what the Law Lords decided”.
He says that Mr Straw,
“further argued that ‘in recent years witness intimidation has become all too common’. Can he have forgotten the 30 years of terrorism in Northern Ireland where witness intimidation was always a very real problem?”.
To me, as an amateur and outsider, that is a very helpful explanation of the situation that we face.
Perhaps I may say one other thing in relation to Northern Ireland. I believe that the main political reason why successive Northern Ireland Secretaries rejected the use of anonymous witnesses was that it would have provided grist to the mill for those espousing the terrorist cause, which they sought to justify by depicting the Government of the UK as repressive.
My second reason for speaking is that this rushed legislation has been brought forward as a result of public pressure from the police, who have suggested that without it the streets of Britain will soon be flooded with liberated murderers whose convictions have been quashed. That suggestion has been communicated to the public by the ever ready tabloids, for which it provides a useful alternative to their usual junk diet of “Big Brother”. I regret that my own party should appear to have connived so easily in the whole exercise and I am surprised that the Liberal Democrats should have done the same.
The next reason for my intervention is that over the years, not least as a member of EU Sub-Committee F, which deals with home affairs—we are at present looking at Europol—I have become deeply sceptical of some of the judgments and practices of the police and even more of the ability of the Home Office to control them. There have already been many references to the Strasbourg court. I would have thought that this is a problem that could usefully be looked at on a European basis so that, if there is to be witness anonymity, there can be an agreement in Europe to ensure that we have some form of common—
My Lords, I do not know whether the noble Lord is aware that the first problem about the European Court of Human Rights dealing with this is that most of the judges come from inquisitorial rather than accusatorial systems, yet the convention requires an accusatorial system. The second problem is that they do not regard it as within their function to dictate the detailed rules of procedure and evidence. The overriding requirement, as the Law Lords made clear and as the Bill and the Human Rights Act make clear, is to ensure a fair trial. If that is the overriding requirement, I do not think that the Liberal Democrats, the Government or the Conservative Party can be criticised for not welcoming the Bill.
My Lords, I am grateful to the noble Lord for his learned view.
There may well be circumstances already provided for by the common law where there should be witness anonymity, but we are in this situation today because the common law provision has been abused and has been rightly and successfully challenged in Davis. In what way has it been abused? I believe that the answer is the gay abandon with which the police have come to use the promise of anonymity in persuading witnesses to come forward. Far from always having been carefully considered judicial decisions, the deals with the witnesses were done by the police and then virtually presented as faits accomplis to the court.
My Lords, with great respect, I do not think it right to say that it has been a matter purely for police discretion. In order to secure some form of anonymity order under the common law approach, until the Davis case, it was still necessary to secure agreement from the judge.
My Lords, I realise that, but I suspect that when the police have effectively done a deal and said to a witness, “Don’t worry, we’ll ensure that you don’t have to appear”, and then have said to the judge, “This is crucial evidence and we’ve already assured him”, the judge would find it more difficult to reject the application for anonymity.
How are we to proceed if this Bill becomes law? There are detailed and sensible conditions set out for the use of anonymous evidence, but how is the defence to be able to argue against such decisions before they are made? Will the consideration be seen as fair? That problem also applies under the existing common law system, but it has been somehow more accepted.
I also object to the retrospective nature of this legislation. Retrospective legislation is seldom, if ever, justified. It is itself a potential instrument of tyranny. Clause 11 prevents an appeal solely on the grounds of witness anonymity under Davis and instead requires the court to consider whether the anonymity order could have been made under the new law. I suggest that in many cases that is an impossible task when the full details of the original circumstances can no longer be established and thus considered. I would much rather remove this retrospective element and let appeals from the past take their chance under the common law, so that judges simply have to decide whether the anonymity had prevented a fair trial, as they so decided in Davis.
Indeed, I would much prefer that we did not pass the Bill and that we continued under the common law with the police from now on being conscious of the shadow of Davis in pursuing their investigations and suggesting to witnesses that they need not go near a court. Noble Lords will remember that 15th-century cities such as Venice and Florence had little letter boxes, normally in the form of an open-mouthed gargoyle, into which citizens could post anonymous denunciations. Equally in France citizens could be imprisoned on lettres de cachet for raisons d’État. That has, thank goodness, seldom been the English way.
I recognise that the promise of anonymity makes it easier for the police to get a conviction, but that is not the point. The point is very simple: the accused should get a fair trial. That is the principle that we should be defending and which I, as a mere lay man, feel fully qualified to advocate.
My Lords, for the first time in the debate, the noble Lord, Lord Marlesford, has put a finger on the nub of this matter. We are being asked to pass a deeply troubling piece of legislation at enormous speed and, because of the political pressures on all three political parties, there has been an agreement that the Bill, with very little amendment, will reach the statue book next week.
I have been a practising criminal barrister for 38 years, both prosecuting and defending, and I believe that the best way of getting at the truth in a criminal trial is to allow the accused to confront his accusers directly and in public and to cross-examine and challenge them knowing who they are and where they come from. I instinctively dislike this proposal. Time and again in the past 10 years, when criminal justice legislation has been through both Houses of Parliament, I have gone down to the Old Bailey and have been besieged by people saying to me, “How did you allow that to happen?”. I have no doubt that it will happen in relation to the Bill, but on this occasion all I will be able to say is that no one was brave enough to stand up and say that this principle is more important than immediate practical considerations.
We have been down this route before, albeit some time ago. We have given anonymous and secret evidence a whirl in the past. We did it with the Court of Star Chamber and in trials for treason. While those procedures were initially very popular, they came to be regarded as cruel, unfair and oppressive, because they resulted in wrong convictions. They were eventually abolished by the Long Parliament in 1641. Perhaps they will not last as long in this case, but I fear that history often repeats itself.
I do not for one moment suggest that there are not very serious problems with witness intimidation, which one hears about every day in the criminal courts. I was interested in the figures given by my noble friend the Minister. It was the first time that I had taken them in. The Bill has been presented to the public as legislation primarily intended to protect the innocent bystander or the brave witness who comes forward as a member of the public. However, the reality is that the bulk of the 580 cases—330 of them—relate to providing protection for the prosecuting authorities. That may be the perfectly proper thing to do, but the reality is that only 50 cases in the pipeline involve members of the public, although that was the basis on which the Bill was effectively sold.
There is a problem; it is probably a growing problem, but there have always been problems. It is encouraging that convictions for witness intimidation have doubled, as my noble friend Lord Grabiner said, in the past 10 years. Frankly, however, we have to face up to the truth behind this Bill and the future Bill that we will be asked to consider. Changing the rules in criminal trials will not solve the problem of witnesses or potential witnesses who are afraid to give information or evidence. We need to look at the social conditions that cause that problem. We need to look at other and better ways in which people can be encouraged to come forward to assist the police against crime and we need to look at our current ways of protecting people who are brave enough to do so. We need to do that in proper depth, as I very much hope that we will in the next Session. However, this Bill is an attempt to validate retrospectively those 580 cases in which it seems, as a result of Davis, that unlawful orders have been made.
The judgment of noble and learned Lords in the case of Davis was attacked in the tabloid press in a disgraceful way by people who I have no doubt had not troubled to read it. The judgment was a careful and balanced analysis of the problems. It is clear that the general rule is being breached in the courts, as judges have been making decisions on anonymity as they think right with no statutory basis or consistency. What the Law Lords were saying in that judgment was effectively that either Parliament must say, “This is not to happen”, or it must provide statutory guidance. I would have chosen the former, but each of the three main political parties, no doubt under considerable public pressure, has chosen the latter. As a result, we have this Bill, which will, no doubt, reach the statute book. Those of us who disagree with its fundamental principle have to make the best of it.
With that in mind, a number of short points need to be made by someone who comes to the debate as a practitioner. The first has not yet been mentioned, but it is important that it should be. We still have the presumption of innocence in this country. That is non-negotiable. It is the mark of a free and civilised society and, if it goes, so does liberty. When a judge comes to look at one of these applications, I hope that he will look at it not from the point of view referred to by my noble friend Lord Grabiner, of the viciously motivated criminal, but from the point of view of someone on trial who is at that time innocent and may have been wrongly accused. That is the basis on which we should all start looking at legislation of this sort.
The second principle—everyone has referred to it—is that the trial must be fair. Not only is an unfair trial a breach of Article 6, but unfair trials lead to miscarriages of justice, which, in turn, are horrendous for the individual concerned and undermine respect for the law. Also, what is the point of our paying to keep innocent people in prison when the criminals responsible remain free? There will be many cases in which a fair trial is simply not possible if witness anonymity is granted. I welcome the provisions in the Bill that allow the 560 cases in the pipeline to be looked at again, because a number of them may be ones where the orders currently made cannot stand.
For my part—I hope that this will be clarified in case law as soon as possible—I very much doubt that a case where the only or decisive evidence against an accused is given by an anonymous witness can amount to a fair trial, either under Article 6 or as a matter of plain common sense. For a defence counsel, defending in a case like that is effectively being made to punch into thin air. You are not allowed to know who the witness is and you are not allowed to ask any questions that might lead to disclosure of the identity. How on earth do you begin to tackle the credibility of a witness whose account your client tells you is wrong?
If we are to have anonymous witnesses, as we will from next week, it is right that Parliament should provide a framework for the trial judge. I stress that it must be a judge; this must be reserved for serious cases. I hope that we are not going to go down the route of the magistrates’ courts employing this sort of order. At the moment, the Bill is silent on that, but it is one of the very important details that must be looked at. We should not even contemplate that decision being taken at magistrates’ court level.
A number of things seem to me to be necessary at the very least. First, the judge must know the true identity of the witness. There is nothing in the Bill to ensure that he is told. Surely that must be put right by amendment next week. Secondly, defence counsel must not be prevented from seeing and hearing the witness as he gives evidence and is cross-examined, if counsel chooses to do so. In the case of Davis, defence counsel chose not to be in a better position than his client. Other defending counsel would take a different view. It is asking the case to be conducted with defence counsels’ hands tied behind their back if they have to cross-examine someone of whose identity they have no knowledge without being able to see his or her demeanour as he or she answers the questions and, apparently, hearing some sort of distorted voice representing the replies. That cannot be right and it should be put right by amendment next week at the very least.
I have already made the third point: this should refer to serious crime only. Fourthly, in order to determine the application, there needs to be a clear procedure including a detailed report from the police to the judge indicating the origins of the request, the investigations made, the background of the witness and, especially, details of any prior contact or relationship between the witness and the accused, his associates or family that may have a bearing on the credibility of the defence. Without that basic information, how can a judge begin to judge whether there is likely to be a fair trial?
There must also be a clear procedure for the hearing of such applications, which provides for the defence to make submissions, unlike the present public interest immunity hearings, which take place in the judge’s chambers between the judge and the prosecution alone. I echo what has been said by several others about the need for provision for special advocates. Lastly, I am glad to see that the judge is required to give a warning to the jury about the dangers of evidence in such cases. It is crucial that, as soon as possible, strong specimen directions are provided so that there is consistency in that warning.
The granting of these orders should be truly exceptional and not become the norm wherever it is requested. As we all know and have all seen, legislation in haste is all too often defective. I am particularly pleased that there is a sunset clause, but I wish that there had been no sunrise on the Bill. Horace Rumpole would turn in his grave at the provisions of the Bill; he will probably, as usual, be proved right.
My Lords, the noble Baroness made the point that all three main political parties, under public pressure, have given in on a Bill that ought not to be going through. Is she aware that Liberty, which has nothing to do with political parties, does not object in principle to the Bill?
My Lords, I am very much aware of that. I have read the helpful briefing that Liberty has sent, but I disagree with it. I appreciate that Ministers and leaders of all political parties are in a difficult position. Many people’s instincts would be to take the line that I do, but they feel that their responsibilities in office and elsewhere require them to put other considerations to the fore. However, I cannot forget the headlines in the tabloid press, which the Law Lords who gave that judgment must have read with horror. There is undoubtedly a view that all Ministers, Governments and political parties should be tougher on crime. It is the response to that urging that sometimes leads us to lose sight of what we should be doing: defending our criminal justice system.
My Lords, has the noble Baroness read the various reports of the Joint Committee on Human Rights? It is all-party and beyond party, and is not controlled by the Government. All its members are keen to promote human rights and they are all keen to preserve the balance between liberty and security. We have not been rushed in our work at any stage or dominated by political pressure in forming our judgments. It is not fair to committees of that kind to suggest that we are acting under some kind of political coercion, because we are not.
My Lords, I apologise to the noble Lord if he feels that I was suggesting for one moment that he would bow to political pressure, but I think that a degree of political pressure is applied to political parties, particularly in another place, and understandably so. I have read the report carefully and I see that it raises a number of concerns that are not met in the Bill as drafted. I hope that practitioners such as me will raise other concerns that will find favour with Ministers next week. It is crucial, for example, that defence counsel can see what is happening. It is also crucial that the judge knows the true identity of the defendant. Those matters have not been dealt with, despite all the time that has been given to preparing these reports, and I hope that we can put that right before it is too late.
My Lords, my noble kinswoman Lady Walmsley revealed to the noble Lord, Lord Hunt, in the Chamber the other day that I have the eyes of a separate character. No doubt he is used to a fixed and unremitting, unforgiving glare from one eye about government legislation. That is my right eye. He may notice that my left eye is warmer and with a bit of twinkle in it. That is my glass eye. I am happy to say that that is as a result of the great skill of the painters at Moorfields Eye Hospital.
With this Bill, a little warmth comes into my right eye. I agree with the noble Baroness, Lady Mallalieu, that consistency is needed and that it is right that we should have a statutory framework that sets out clear guidance as to how the court should operate in this difficult, if not new, situation. My purpose is to suggest how the Bill can be improved so that that framework cannot be subject to rushed appeals or complaints to the European court in Strasbourg. Whereas the framework can comply with the European convention, subject to one matter that I shall return to, an individual case may very well not. As the noble Lord, Lord Elystan-Morgan, said very properly from his great experience, the Bill does not help the judge to come to his decision. It refers to certain considerations that the judge must take into account, but ultimately the judge himself must decide whether the trial is fair.
I have some experience in this field. I was not faced with screens, anonymous witnesses or anything of that sort until January 1993. I noticed that the noble Lord, Lord Hunt, said that anonymity was first used in 1990, but I first came across it in January 1993 when prosecuting a case in Caernarfon, to which I referred two days ago in another context. I called witnesses who belonged to the security services. Screens were erected in court, but it was possible for the defence, the prosecuting counsel, the jury and the judge to see those witnesses, who gave their evidence under the letters X, Y and Z. No one saw anything particularly wrong with it at the time. Interestingly, it was the first case ever to use the public interest immunity procedure, which was developed in the case of Johnson. We adjourned for a week to find out how that procedure should be brought into effect. In such a case where you are dealing with undercover operations, policemen or people from the Security Service, there can be no objection to their giving evidence anonymously. That is why we have no objection to Clause 4(3)(b), which refers to this.
In 1998, special measures were introduced basically to protect the victims of sexual offences and children subject to abuse. As a result, it became commonplace for witnesses in that category to give evidence under special measures, sometimes from behind curtains and sometimes over a television link to a room in which they were kept. That has not been wholly successful. I talked yesterday to a very experienced prosecutor of this type of offence, who told me that it creates remoteness between the witness and the court and that there cannot be that communication between jury and witness and between counsel and witness that is normally to be found in a court. At times, a jury regards something on a television screen as something of a soap opera as opposed to a real situation.
The noble Lord, Lord Elystan-Morgan, referred to creeping erosion in this field. Indeed, that appears in the judgments of their Lordships in the case of Davis. Earlier this year, I was disconcerted to be involved in a murder case that involved civilian witnesses known as X, Y, Z and so on. On the Friday before the trial, which began on the Monday, I was served with standard CPS forms. Every form said the same thing, “The witness is in fear of the defendant”, and applied for the witnesses to be subject to special measures. It had become so standard that the CPS had not even signed the forms, which were produced to the court as part of the application.
No evidence was received from any of the witnesses. A police officer said that they came from an estate where they were subject to all sorts of pressures, and the learned judge made the order. As the noble Lord, Lord Marlesford, rightly said, he really had no option because the witnesses had been offered anonymity by the police and were coming to the court. No forensic evidence supported what they said, and if the judge refused that application and the witnesses gave no evidence, the case would collapse. As it happened, one of the witnesses, who was the girlfriend of the deceased, said, “I don’t want all this. I want to confront the defendant and say what I’m going to say to him”. She gave very compelling evidence. The defendant was 17 years of age, as was she. The witnesses who came and used the special measures were men with previous convictions and aged between 28 and 45. This was a ridiculous situation in which grown men used the special measures and anonymity so that they could say what they wanted. That is wholly prejudicial. What is a jury to think when men twice or three times the age of the defendant and with convictions themselves feel it necessary to give evidence anonymously behind curtains? The jury must ask how dangerous the defendant can be.
I want to get away from that. It is astonishing to me that some 50 cases are outstanding where anonymity is to be granted. I would bet that in every one of those cases, the request has come from the police when they ask whether someone wants special measures or whether they feel concerned. Even last Thursday, an article in the Guardian was headed: “Knife crime: Police guarantee anonymity to the Ben Kinsella murder witnesses”. It is true that the officer concerned had said, “Come forward, then it is up to the police to persuade you to testify. If we do not persuade you, then we do not”. But it is obvious where the pressure is coming from when the police guarantee anonymity. It is to that creeping erosion that the decision in the case of Davis put an end, and it is now for us to put forward a statutory framework which can ensure that fair trials can continue.
I shall deal with some of the matters that arise under the Bill. Clause 3(2) provides relation to an application that:
“Where an application is made by the defendant, the defendant must inform the prosecutor of the identity of the witness”.
There is obviously no requirement on the prosecutor to inform the defendant of the identity of a witness, so a burden is put upon the defence team to make their witnesses known to the prosecution, but nothing in reverse. I fail to see how that is compatible with Article 6.3(d) of the European convention, which sets out the minimum right of the defendant to,
“examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”.
To my mind, this subsection is a direct contravention of the above article.
Clause 4(2) states:
“The court may make such an order only if it is satisfied that Conditions A to C … are met”.
There was great discussion in the other place about the standard of proof and what was meant by “satisfied”. Was it to be beyond reasonable doubt or merely on the balance of probabilities? That matter has been the subject of authority in the case of Ewing, which was decided in 1983 where the court was considering a section of the Criminal Procedure Act 1865 dealing with forgery:
“Comparison of disputed writing with any writing proved to the satisfaction of the judge to be genuine should be permitted to be made by witnesses”.
What was meant by the “satisfaction of the judge”? Lord Justice O’Connor said:
“In our judgment, the words in Section 8, ‘any writing proved to the satisfaction of the judge to be genuine’, do not say anything about the standard of proof to be used, but direct that it is the judge and not the jury who is to decide, and the standard of proof is governed by common law”.
He went on to say that:
“It follows that when the section is applied in civil cases, the civil standard of proof is used, and when it is applied in criminal cases, the criminal standard shall be used”.
If the Government think that, in a criminal case where anonymity applications are made, a judge could be satisfied with anything less than the criminal standard, now is the time to say it, because if they do not, it will be assumed for ever that “satisfied” means satisfied beyond reasonable doubt.
I am a little concerned about condition A where it is qualified by Clause 4(6):
“In determining whether the measures to be specified in the order are necessary for the purposes mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness”.
I do not think that “reasonable fear” is successful as a phrase, and it should not apply to questions about the safety of a witness. It should apply to whether the witness refuses to testify because of a well founded fear, and we will put forward amendments accordingly.
Another matter that we are concerned about is the extension of these provisions to magistrates’ courts, which in our view are not suitable to the use of anonymity orders of this kind. How are they to be determined? Are magistrates to hear everything that a witness fears about the defendant, to make an order for anonymity, and then go on to try the particular defendant with the knowledge that they have acquired of him and of the threats it may be alleged that he has made to some of the witnesses in the case? That is highly unsatisfactory, and to my knowledge no provisions are made in magistrates’ courts for screening and so forth. We will oppose that extension. As in New Zealand, if anonymity is sought for a witness, the case should automatically go to the Crown Court and the matter should be determined there.
But perhaps the most important matter that we hope to bring before noble Lords in Committee is the question of the independent counsel, to which a number of noble Lords have referred. An independent counsel could be appointed by the judge to help him decide on the credibility of the witness who is claiming anonymity. The noble Lord, Lord Elystan-Morgan, suggested that he should have a team behind him who could carry out investigations on his behalf. The amendments that we propose suggest that the independent counsel should have the power to require police officers unconnected with the relevant trial to investigate and report to him whether there are matters which should be brought to the attention of the judge. This is just another way of doing it without involving the creation of a bureaucracy behind the special counsel that we have suggested.
As in New Zealand, it is essential that there should be someone to carry out an evaluation of the expressed fear and all the circumstances that the witness claims are affecting him before the judge can come to a conclusion. We cannot have a situation, as has been happening up to now, where all the judge gets is a form and perhaps a statement from the anonymous witness, followed by a police officer saying, “Well, things are a bit tough on the estate he comes from, so please grant the order”. There should be a proper evaluation of the fear expressed by the witness. If that is the procedure, as Sir Ken Macdonald conceded, there will be far fewer of these applications and that will be all to the good.
It should not be possible for a witness to say in answer to a policeman’s question, “Do you want special measures?”, “Well, yes. I suppose it will be easier to give evidence from behind a screen and for me to remain anonymous”. Giving evidence is not an easy thing in any circumstances. Even the most experienced advocates such as myself find it a daunting prospect to go into the witness box and be treated in the way I have treated others in the past. It is not an easy thing, and it would be very nice to hide behind a curtain or at the end of a television camera. But that is not what justice is about. The basic principle of British law—the law of this country—is that there must be open justice; that a person must be confronted by his accusers. It is fundamental.
In the case in which I was involved, I had no idea who the people giving evidence against my client were. I had no idea of any links between them, whether they had any personal grudge against the defendant, or whether they had any reason for lying about the evidence that they were giving. I had my suspicions but I could not pursue them because I did not know who they were. That is the dilemma that a defence counsel faces, as the noble Baroness, Lady Mallalieu, has expressed so forcefully.
This is a necessary Bill that could be improved, particularly by the employment of special counsel. The suggestion that there is an inherent power in the court to appoint an independent counsel already is new to me and to any judge whom I have ever come across. I am sure that the passage of the Bill will make it clear to every judge in the country that, if he feels that he needs a special counsel, he will appoint him. But this should be within a framework and in accordance with a fixed and fair procedure that applies through all these cases.
I have wearied your Lordships long enough on this topic. I trust that we will, through co-operation and argument, be able to put these points across.
My Lords, I thank the right honourable gentleman the Secretary of State for Justice and his ministerial team for involving the Opposition during the preparation of the Bill. I believe the same is true of the Liberal Democrats. In particular, we were given the opportunity to comment on the legislation in draft and, to the extent that our advice was taken, we are as implicated in the Bill as the Government.
This is emergency legislation, and we do not have the opportunity to scrutinise the Bill properly. It is vital, therefore, as other noble Lords have said, that we have an early opportunity to review it thoroughly. We pressed at an early stage for a sunset clause in the Bill and I am delighted to say that we now have one. However, I have an observation to make about the detail of Clause 14. It was particularly important to the Opposition that the sunset clause had a terminal date and we have got it—31 December 2009—but Clause 14(3) states that the date may be extended by affirmative order for 12 months.
We are unhappy about this part of the clause. The Government will not be surprised to hear this. They are well aware that, in order to terminate the long-drawn-out debate in your Lordships’ House in March 2005, they undertook to provide an opportunity to review the Prevention of Terrorism Act control orders within a year. That undertaking was not met, and for three years the Government have been able to extend the length of that Act, without further scrutiny, through affirmative orders in your Lordships’ House. We have allowed those affirmative orders to go through because of a longstanding constitutional convention that it is only in the rarest circumstances that the Opposition vote against an affirmative order. But I put the Government on notice that, if we are faced with a draft affirmative order at the end of 2009, we will not regard ourselves as bound by that constitutional convention.
My noble friend Lord Marlesford, quite properly, made some extremely disparaging remarks about retrospective legislation. I share my noble friend’s repugnance on that score. He has, therefore, made me extremely uneasy at having, during the debate on the Statement some two weeks ago, endorsed Clause 11. I comfort myself—I hope he will feel comforted later—with the belief that it will not make much difference to the outcome of any appeals of individuals already convicted in a trial which involved prosecution witnesses who gave evidence anonymously. My reason for reaching that conclusion will, I trust, become obvious in the next five or six minutes.
I also thank my noble friend Lord Goodlad, the chairman of the House of Lords Constitution Committee, for giving a brilliant summary of the conclusions of that committee. As its report was only published today, I have had no opportunity to read it; and I am therefore extremely grateful to him.
It seems that the Appellate Committee of your Lordships’ House is attacked whatever approach it takes to the development of the common law. When it develops common law principles, such as negligence or the law of rape, in a way which adjusts them to contemporary social mores, it is blamed as usurping the role of Parliament. When it takes the opposite view it is blamed for not reaching the right result. The noble and learned Lord, Lord Bingham, in my view, was absolutely right to reach the decision that he did. If one looks at the history of the common law on anonymous witnesses, there is no evidence that it had developed in any way since the 18th century. That was underlined by the reports of Lord Diplock and Lord Gardner at the height of terrorism in Northern Ireland during the 1970s. The noble and learned Lords in the Appellate Committee, I repeat, reached exactly the right decision. It is interesting to note that my right honourable friend Michael Howard in the House of Commons, during the debate on Tuesday on this measure, went out of his way to applaud what the noble and learned Lord, Lord Bingham, and his colleagues did, saying that they were absolutely right not to seek to legislate in circumstances where the history of the common law gave them no grounds for it whatever.
The noble and learned Lord, Lord Bingham, was, in my view, extremely constructive in the way that he confronted the dilemma that the decision of the Appellate Committee posed to the Government. In talking about the intimidation of witnesses, he said,
“this is not a new problem, but it is a serious one. It may very well call for urgent attention by Parliament”.
That is as close as one could possibly get to saying that the noble and learned Lord hoped that Parliament would, at an early stage, confront this problem.
I understand entirely what the noble Baroness, Lady Mallalieu, said, and I sympathise with her motives for saying it; but in the context of R v Davis, the steps that the Government have taken to produce emergency legislation have been the correct ones. The noble and learned Lord, Lord Mance, also went out of his way to support the noble and learned Lord, Lord Bingham. He 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”.
The question—and I believe this goes to the heart of the matter—is: how much scope? There was clearly none in a case such as Davis, as the noble and learned Lord, Lord Mance, stated. It was absolutely clear that the effectiveness of the defence’s case depended entirely on investigating the motives of the anonymous witnesses; but that was impossible to do. He also concluded that the evidence of the three anonymous witnesses was decisive to the outcome of the case. In those circumstances he concluded, as did other noble and learned Lords in the Appellate Committee, that the conduct of the Davis trial plainly contravened the European Convention on Human Rights. It was, therefore, puzzling to read paragraph 50 of the Explanatory Notes that were attached to the draft Bill in the House of Commons, which said that this Bill will enable us to go back to the situation before Davis. I note that that is not in the Explanatory Notes to the Bill in your Lordships’ House. It may have been an aspiration of the draftsman, but it is plainly incorrect. We cannot go back to the pre-Davis situation.
The approach that the European Court of Human Rights takes to these matters is well summarised in the case of Doorson v the Netherlands, on which the noble and learned Lord, Lord Mance, heavily though not exclusively relied. I hope that I will not incur the wrath of your Lordships' House if I read just three paragraphs from the judgment. At paragraph 67, the court said:
“The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair”.
At paragraph 70, it continues:
“It is true that Article 6 … does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 … of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify”.
It is interesting to note that when the noble and learned Lord, Lord Mance, concluded his analysis of the European legislation and applied it to the Davis case, he came to the conclusion that, on the facts, no such balancing had taken place.
Lastly, in paragraph 76, the court said:
“Finally, it should be recalled that even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements”.
As the noble Lord, Lord Elystan-Morgan, said, the Strasbourg cat can jump either way. There are many other Strasbourg cases in which these matters have been considered, which led the noble and learned Lord, Lord Mance, to the conclusion that the criterion of “solely or decisively” is not necessarily, on the facts of the particular case, the determining factor. However, there is no doubt that it was the determining factor in Doorson. I think it would be dangerous for any court to conclude that the law of the convention will stray very far from that laid down in those three paragraphs. I say to my noble friend Lord Marlesford that that is why I am perhaps not over-conscience-stricken about my support for Clause 11.
Wisely, the Bill is not concerned with what is a fair trial; it does not lay down the circumstances in which a trial is or is not fair. It does set out the considerations which a judge will have to take into account under it such as to reflect adequately the jurisprudence of the convention. We cannot be absolutely certain what the court in Strasbourg will say in the future. The noble Lord, Lord Lester, had some interesting observations to make about that in respect of the court's composition and the traditions of the inquisitorial system; but it is nevertheless important that judges are given as accurate a framework as possible within which to work. The Bill seeks to do that, and, broadly speaking, we support it. However, as the Government might imagine, we will raise some detailed matters in Committee. These are primarily matters that arose when we compared the Bill with the New Zealand legislation of 2006. I want to raise three specific matters, one of which has been dealt with extremely well by the noble Lord, Lord Thomas of Gresford.
The New Zealand Bill says, first, that the use of anonymous witnesses can be justified only in exceptional circumstances. I think that it is commonly agreed that, in some areas of the United Kingdom, anonymity is offered to witnesses almost routinely as an incentive to them to give evidence. In its note on the Bill, the Bar Council observed:
“We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall … that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances”.
The Government have not included an exceptional circumstances provision in the Bill. Our view is that they should, otherwise the evil to which the Bar Council refers will continue.
The second ingredient in the New Zealand Act that does not appear in the draft Bill is that the cases in which anonymity is granted should be cases of real gravity. There are different views about what that means. One approach would be to set out the particular offences in which witness anonymity could be applied for. That would be extremely unsatisfactory because, under apparently quite inoffensive offences if I can put it that way, one can have serious matters that would justify applications for anonymity. For that reason, some such provision ought to be included in the Bill.
My Lords, I do not wish to prolong the debate, but I do not know whether the noble Lord is aware that I put this to the Director of Public Prosecutions when I said that I could not understand why gravity of offence was in any way significant since it cuts both ways; obviously there should be a fair trial, whether the alleged offence is grave or otherwise. Is it not therefore rather a dodgy factor to be putting into a Bill?
My Lords, I am most grateful, as I always am, for the noble Lord’s intervention. I was not aware of his conversation with the Director of Public Prosecutions. For what it is worth, my view is that gravity ought to be included in the Bill. We will have an opportunity to return to the matter in Committee.
The third ingredient of the New Zealand Act that is not in the Bill is the ability to appoint a special counsel to deal with questions of fact that bear on the decision of the court whether to agree to an application for anonymity. The noble Lord, Lord Elystan-Morgan, rightly pointed out that there is an existing inherent right, the authority for which is in Archbold, to appoint such a counsel; it is done very rarely, but I note that it was taken advantage of by the Court of Appeal, no less, in the Davis case.
The difficulty about relying on that is that there is no established procedure for the way in which a special counsel should operate. That is why I am in agreement with noble Lords—and the noble Lord, Lord Thomas of Gresford, could not have put the case better—to include a provision in the Bill that sets out the duties of such a counsel. In another place, the Government did not commit themselves either way except to say that it was too late to include such a provision in an emergency Bill and that, between the passing of the Act and the review of it that is due to take place in the Victims and Witnesses Bill next year, they would give this matter close attention. We shall support any amendment that is tabled next week on the matter although we will not vote for it if it is put to the vote. I have reached the conclusion that the Government have a real problem about setting out detailed rules for the responsibilities of such a counsel between now and the middle of next week. In those circumstances, they should be given the benefit of the doubt.
We have other matters of no less importance to bring to your Lordships’ attention in Committee; but they can rest until then.
My Lords, this has been a constructive debate. I warmly welcome the support we have received from all sides of the House and the broad consensus that the problem of witness intimidation is a serious one. I am particularly indebted to the noble Lord, Lord Goodlad, for his erudite exposition and to the noble Lord, Lord Lester of Herne Hill, for his excellent speech. Both speeches encapsulate the views of the Constitution Committee, whose report I know a number of noble Lords did not have the opportunity to read in full, and foreshadow the conclusions that may well come out of the second important committee, dealing with human rights. I thank them for that, not least because they have done such an excellent job in outlining an analysis of the law that they have saved your Lordships the burden of hearing me repeat it. I agree with them without reservation. I also endorse the comments made by my noble friend Lord Grabiner. He, too, identified clearly the issues with which we now have to grapple.
The difficulty is clear: in cases involving violent crime, particularly gun and gang crime, fear about the consequences of giving evidence can prevent witnesses coming forward and allow very serious offenders to escape justice. I therefore also welcome the recognition that the judgment in the case of Davis has left us with a difficult problem to address. Courts no longer have a power to allow witnesses to give evidence anonymously in almost all circumstances. Several Law Lords in Davis recognised that Parliament would wish to consider legislation to give courts a power to allow anonymous evidence. It is critical, as a number of noble Lords made clear, that we act quickly to correct that deficiency in law. The Crown Prosecution Service has been able to identify the extent of the problem, and I am glad that we have been able to indicate what those figures may be.
The extent of this problem is reflected not only in our country. I had the privilege of attending the Commonwealth Law Ministers’ meeting yesterday in Edinburgh, where this very issue was debated. More than 38 countries were represented, if one was to include the overseas territories and Crown dependencies. There was agreement that witness intimidation was a real problem for those countries and that anonymous evidence was an appropriate response in certain cases.
I also had the privilege of speaking to the New Zealand Associate Minister for Justice, Lianne Dalziel MP. She indicated that the New Zealand legislation had been operating effectively and successfully for the past 10 years and was felt to be consistent with the New Zealand Bill of Rights. Indeed, she clearly identified the key issue at stake when she said to me, “At its core, this is about getting to the truth of the matter and about how to secure a fair trial for both the defendants and victims and proper protection for witnesses”. I agree with her.
I say to the noble Lord, Lord Marlesford, that I understand his wanting to rely forcefully on the comments made in the Spectator by the noble and learned Lord, Lord Lloyd of Berwick. Since the noble and learned Lord is not here, it is only right to say that I believe that he wrote that article before he had had the advantage of reading the provisions of the Bill. Since that time, he has had an opportunity both to write to and to speak to my noble friend Lord Hunt and he has expressed his compliments in relation to the Bill. I hope that he will forgive me if, in order to reassure the noble Lord, Lord Marlesford, I quote what he says in the final paragraph of his letter to my noble friend, dated 9 July:
“Finally, the Bill team has, in my view, done an astonishing job in providing such an excellent Bill so quickly”.
Knowing the noble and learned Lord as I do, I am sure that he will not hesitate to find fault, if fault is to be found, and if he were to join us later. He indicated in his letter that he did not intend to harry my noble friend Lord Hunt at Second Reading, but I do not suggest that that will be the stance that he maintains thereafter.
In relation to these difficult issues, I understand the concern of my noble friend Lady Mallalieu and her passion to ensure that a fair trial is maintained and that any procedure maintains the importance of the innocence of the accused until proven guilty. The fact that she so powerfully brings that to our attention does her honour. We share that passion and, in seeking to put these provisions together, the Government have had the intention to make sure that the fair trial is in no way jeopardised.
I believe that it is acceptable for trials in serious cases to be dealt with in such a way as to avoid their collapse or appeal on matters of law. When we seek to make these provisions, we have that very much to the forefront of our mind. As all noble Lords accept, we are trying to do a difficult thing: we have to preserve the fairness of the trial in accordance with Article 6 and, in order to do that, we have to make sure that witnesses are in a position to give their evidence fairly, without fear or intimidation.
I do not agree with the assessment of the noble Lord, Lord Marlesford, that these cases are prepared by police and presented as a fait accompli to the court. The Crown Prosecution Service has a duty to act as gatekeepers to the criminal justice system, insomuch as it is now entrusted with the duty and responsibility of charging. There is, therefore, an opportunity to ensure that an appropriately high level of scrutiny is given to any decision to apply for an order of anonymity. Both the Director of Public Prosecutions and I intend to look at what appropriate guidelines may be necessary to secure that appropriately high level of scrutiny.
My Lords, it is quite right, given the way in which things have evolved, that we do not have, before putting this into statutory form, a common standard that is applied right the way across the board. If anything, the Law Lords’ decision in Davis has given us an opportunity to scrutinise how this process in fact works and to make sure that it is as tight, appropriate and acute as it should be and as we would wish it to be.
My Lords, the noble and learned Baroness referred earlier to serious cases. She has not really dealt with the point raised by the noble Baroness, Lady Mallalieu, that the Bill is not limited to those. Would the noble and learned Baroness be prepared to bring forward amendments to remove magistrates’ courts from the Bill and to limit its provisions to offences that carry a sentence of, let us say, three or five years? It surely is wholly wrong to have a procedure of this kind for minor cases.
My Lords, of course I hear what the noble Viscount says, but two species of cases would cause us difficulty if we did that. There seems to be general assent that the use of test purchases as a means of identifying levels of criminality in relation to drugs and other offences is a right and appropriate way forward, not least because such approaches tend to have a high incidence of pleas of guilty. It is possible that some of those cases will appear before a magistrates’ court. There are also cases of some seriousness that go to juvenile court and which are obviously covered by the same grounds. Breaches of a control order may be of a less serious nature and can properly be dealt with in the magistrates’ court. If there is such a breach, albeit of a lower nature, one can anticipate that in those cases anonymity may well be necessary. Therefore, it is not possible simply to eradicate the need in the lower courts. The noble Lord, Lord Lester, was right to emphasise the need, no matter how grave the case, for fairness to apply.
Obviously, there are issues that we will have to continue to consider. We will undertake to look at all of them during the period that will elapse between this legislation and the new legislation that we hope to bring forward.
My Lords, how does one make an application for an anonymity order to the magistrates’ court that is dealing with the case and will hear why a person is in fear of death or injury as a result of what the defendant has said or done? How does one deal with the possibility of appointing special counsel when it would require specific statutory authority for the magistrates’ court to be able to do that? It has no inherent jurisdiction that would enable it to make an appointment of that sort.
My Lords, as the noble Lord knows, and as has been indicated by the noble Lord, Lord Kingsland, we intend to look at how and when the procedure for special advocates will be dealt with. I intend to deal with that in a little while. Your Lordships will know, for example, that in the case of H and C the court, which included the noble and learned Lords, Lord Bingham and Lord Woolf, said quite specifically that special counsel might exceptionally be appointed in a criminal case. That House of Lords decision was in 2004.
There is no need to place special advocates on the face of the Bill but there is an opportunity for the court, if it so desires, to make such a request. It is not the place of emergency legislation to make these provisions. I accept that there are delicate balances to be drawn and we will, in slightly slower time, need to address those issues.
My Lords, the noble and learned Baroness referred to test purchases as one of the circumstances in which it might be necessary to provide anonymity in a magistrates’ court. Is the suggestion that witnesses would be threatened with violence or that they would be identified and therefore be less useful as witnesses in future cases? If it is the latter, is that really the type of case in which it would be appropriate to provide anonymity?
My Lords, if noble Lords look at Condition A, they will see that that is the fourth species dealt with, because it is in the interests of justice that those who undertake undercover processes or need the cloak of anonymity for that reason should have it. I believe that there is general assent that that has been an appropriate way forward and has not caused unfairness, because the issue is not the credibility of the witness but the accuracy of what the witness said. It matters not whether the officer is called Jones, Brown, Scotland, Lester or whatever; it is the content of the information that they give and the ability to challenge it. I do not believe that that issue has caused anxiety. The area of anxiety appears to have been credibility. Attention has been focused on whether in those circumstances there could be a fair trial and whether sufficient safeguards exist to make sure that that comes forward.
A number of noble Lords, not least the noble Lord, Lord Marlesford, mentioned retrospectivity. I understand the discomfort of the noble Lord, Lord Kingsland, but he would be right to be comforted. The clauses that deal with appeals and existing cases do not retrospectively validate orders made before the commencement of the legislation; instead, they allow the receiving courts to decide whether the orders made would now be permitted. The report of the House of Lords Select Committee on the Constitution states at paragraph 18:
“We consider that as a matter of British constitutional practice, there is an acceptable basis for the provision in clause 12 barring appeals succeeding on the sole ground that a court before the commencement of the Criminal Evidence (Witness Anonymity) Bill lacked legal power to impose an order for witness anonymity. The public interest outweighs a defendant’s interest in benefiting from a past defect in the trial process given that there is an express requirement for the appeal court to consider whether, overall, the trial was fair”.
We think that the matter has been adequately dealt with.
The noble Lord, Lord Thomas of Gresford, was concerned about the police offering anonymity too freely to the witness, which ties the hands of the judge. The point was made earlier, too. The Crown Prosecution Service, the National Policing Improvement Agency and the Metropolitan Police are developing guidelines on the circumstances in which it would appropriate to apply for witness anonymity orders. They are discussing the contents of the guidance and will be informed of concerns about the practice that had developed before the House of Lords judgment in Davis and what your Lordships have said in relation to it.
My Lords, will the noble and learned Baroness assure us that, in preparing the forthcoming Bill, she will consider setting up a code of practice, as we have with other important areas where the police interrogate witnesses, as opposed to simple guidelines? It is just as important to have a statutory code of practice in this area, rather than guidelines over which Parliament has no control.
My Lords, I certainly hear what the noble Lord says. We have found it incredibly helpful that the whole process adopted in relation to this Bill has been consensual, helpful and collaborative. We hope that that same process continues as we seek together to try to craft something that will be fit for purpose and inure to the benefit of justice. The comments of all noble Lords today have been listened to and consideration has been given to them. I cannot say to the noble Lord that we will produce a code of practice, but we will certainly look at that suggestion.
I hope that I can reassure the noble Lord, Lord Thomas of Gresford. The court is required in Clause 4(2) to be satisfied that Conditions A, B and C are met and that the judge is not reaching a conclusion on guilt or innocence where a criminal standard of beyond reasonable doubt would be an appropriate test. The judge needs to be satisfied that the conditions are met. If the court is not so satisfied, the order cannot be made. That is an important safeguard.
I know that the noble Lord, Lord Kingsland, is unhappy about the power to extend the sunset date of 31 December 2009. I assure him that we have every intention of subsuming the provisions of this Bill into the Law Reform, Victims and Witnesses Bill. We would expect that Bill to be enacted by the end of the 2008-09 Session, but we have no crystal ball. An unexpected turn of events may arise that prevents the fourth Session Bill from being enacted by this deadline—I hesitate to say that it may be more in your Lordships’ hands than in those of the Government. We must therefore provide a backstop that enables the sunset date to be extended. I understand why noble Lords opposite insist on a precise date, but certain consequences flow with it.
My Lords, I reassure the noble Lord, Lord Lester, that the date of 31 December has done just that, but the amendment tabled by Nick Herbert in the Commons also provided for the sunset date to be extended. It seemed therefore to be wanted by others and not just the Government.
I draw to the attention of the noble Lord, Lord Kingsland—it is terrible knowing noble Lords’ first names, because one is always tempted to use them—a further comment made by the noble and learned Lord, Lord Steyn, in the case Re A (No 2) in 2002. The noble and learned Lord very much endorsed comments made by other noble Lords when he made it clear that it was well established that the right to a fair trial in Article 6 was absolute in the sense that a conviction obtained in breach of it cannot stand but that the only balancing permitted is in respect of what the concept of a fair trial entails. Account can be taken of the familiar triangulation of interests of the accused, the victim and society. In that context, proportionality has a role to play.
I know that all noble Lords agree that we want a fair trial for all defendants, but we know that certain defendants want an unfair trial, where the witnesses who are able to give evidence fairly against them are prevented from doing so. We have to make sure that it is a fair trial not only for the defendant but also for the victim and that it is fair in taking into consideration the witnesses’ fair and proper needs. I thank all Members of the House who have helped the Government so hugely in making sure that this emergency legislation is the best that we could make it.
On Question, Bill read a second time, and committed to a Committee of the Whole House.