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Criminal Justice: Witness Anonymity

My Lords, first, I thank the Government for involving the Opposition in discussions on the intended legislation. We recognise that Ministers are confronting a particularly testing problem, and we wish to be as constructive and helpful as possible. The Government propose to introduce new measures in the form of emergency legislation to be scrutinised for no more than a day or two in each House of Parliament. We are therefore pleased to learn that it will be certain to include a sunset clause, with an opportunity thereafter for more thorough examination in the context of the Law Reform, Victims and Witnesses Bill. Will the clause take the form of an express time limit? I say that because, as your Lordships' House has learnt to its cost in the context of the control orders legislation, the Bill may well be delayed. An additional factor is the racing certainty that the Bill will contain provisions granting delegated legislative powers and providing for guidance, neither of which we shall see or have any hope of seeing in the draft of the Bill at the emergency stage. In the Statement, the Minister makes reference to cases that have already concluded in a conviction. The Statement reads: "““The Bill will therefore contain measures to ensure that the appeal courts should not quash convictions solely on the basis that the trial court lacked jurisdiction under the common law to provide for anonymity measures. The aim will be to ensure that defendants cannot take unfair advantage of the technical defect in the law which has been until now unidentified and unsuspected””." That is a retrospective provision. Retrospective legislation is in principle inimical to our constitutional arrangements. It is justified only in the most exceptional circumstances. However, I have some sympathy with the Government. Without such a provision, a considerable number of already convicted defendants found guilty of the most serious crimes will be certain to have their convictions quashed. Nevertheless, I should like the Minister to assure the House that the Appeal Court will be free to quash such convictions if the special measures ensuring anonymity used in the trial of convicted defendants fall outside those permitted by the terms of the proposed emergency legislation. Since the mid-1990s, it has increasingly become the practice to grant witness anonymity in certain categories of cases, such as murder, grievous bodily harm, gang warfare, drug-peddling and terrorism. Indeed, in some areas, in particular classes of case, it has become almost routine to grant anonymity. Can the Minister tell us the scale of the problem of witness intimidation and assure us that each application will in future be treated strictly on its individual merits, not granted as a matter of course? The conclusion of the noble and learned Lord, Lord Bingham, that the special measures employed in the trial of Davis were not compatible with the common law, led him to observe, as the Statement relates, that the reality of the problem of witness intimidation was serious and may very well call for Parliament’s urgent attention. This view was echoed by other noble and learned Lords. It is therefore clear that, contrary to some newspaper reports, their Lordships were only too well aware of the seriousness of the problem and sought a constructive way forward by suggesting legislation—advice that the Government are rightly taking. Does the Minister accept that this is the true picture? The Government face the dilemma of crafting legislation that deals effectively with the problem of witness intimidation, yet at the same time complies with Article 6(3)(d) of the European convention. It is clear from the thorough analysis of the relevant Strasbourg cases by the noble Lord, Lord Mance, that the use of anonymous evidence is not incompatible with the convention in all circumstances. It is, however, equally clear that anonymous evidence that is the sole or decisive evidence in a trial will have a steep uphill climb to attain convention compatibility. This is especially true in circumstances in which the defendant wishes to cross-examine an anonymous witness about his credibility. It is simply not possible for the defence counsel to test the credibility of a witness whose identity is unknown to his client. In the absence of identification, the defendant quite simply has no access to any information that would enable him to examine the character or the motives of the witness. One way of resolving this problem is to guarantee the witness not anonymity but special protection. This has been the approach in the United States of America through the Organized Crime Control Act, which provides for the relocation of witnesses and their families to places of safety, sometimes providing them with new identities. Are the Government considering such alternatives?