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Criminal Justice: Witness Anonymity

My Lords, I thank the Minister for reading the Statement. I had direct and practical experience of this problem this year in a trial at the Old Bailey, and I declare an interest accordingly. We are in this situation because special measures that were introduced to protect the victims of rape or child abuse have been extended more and more. As the noble Lord, Lord Kingsland, has said, it has become routine for police officers to say to witnesses, ““Don’t worry about coming forward or about what you say. You will be granted anonymity””. That means that when the case comes to court and the judge has to consider it, he is almost bound to accept the anonymity proposed by the prosecution or declare the trial at an end. The granting of applications for anonymity and special measures has become routine. In the particular case to which I referred, the trial was due to start on the Monday. On the Friday, I received an application, which the CPS had not signed, containing a simple sentence in relation to each of the five witnesses, which said, ““The witness is afraid of the defendant””. There were no details. There was nothing. That was what went before the judge. I was then faced with some five witnesses whose voices were disguised and who were concealed from the defendant by curtains. I could see them, but I could not describe them to my client and find out who they were. Although there were suspicions that there was some collusion, it was absolutely impossible to cross-examine them. There was no basis on which one could ask relevant questions that would test the credibility of unknown witnesses. That is the problem. There is a need for anonymity in certain cases, but it has been granted far too often. The Judicial Committee of this House put a stop to this in its judgment last week. We now need to look for a statutory framework that can ensure that, in an appropriate case, anonymity is granted to a witness but the rights of the defendant to a fair trial are maintained. It is not enough for a witness to say, ““Well, you know what it’s like around here. Grasses are not welcome””, or, ““This is a dangerous area. I cannot speak freely””. If a witness can establish to the satisfaction of the judge that he has been threatened by the defendant or by the defendant’s associates, anonymity and special measures should be granted to him as a matter of routine. However, the fact that there is a climate of intimidation in an area should not in itself make the difference. The essential thing is that anonymity should be the exception and not the presumption, as it has tended to become in these past few years. I also believe that anonymity should be granted only in serious cases. I have heard a suggestion that the Government are considering that it should operate in magistrates’ courts. These courts are not fitted out for special measures and the proposal to grant anonymity in cases that are suitable for a magistrates’ court is taking the principle too far. Pre-trial applications should be made to a judge, who should determine them on evidence. If necessary, a special counsel should be appointed to test a witness’s fear of the consequences of giving evidence. Both parties should have a right to be heard and the usual duties of disclosure at pre-trial hearings should rest on the prosecution. The judge, when he makes his order, should be satisfied to a criminal standard that the evidence of the witnesses for whom anonymity is sought is not the sole or decisive evidence in the case. In Scotland, there is a requirement for corroborative evidence in almost every case. We have dispensed with it in rape trials in this country and the proportion of rape trials that succeed has gone down accordingly. The judge should be satisfied that there is no reason to believe that a witness has a motive or a tendency to lie. He should come to the conclusion that the credibility of the witness can be satisfactorily and properly tested, and that the fear for their safety is genuine and not merely a response to the claim that ““grasses are not liked in this area””. The judge must have in mind the basic, fundamental principle that caused this Parliament in 1641 to abolish the Court of Star Chamber: I refer to the need for open justice, with nothing happening behind closed doors. The judge should bear in mind also the general right of a defendant to know the identity of witnesses; should consider the significance of the evidence given by that witness; and should decide whether they can be protected by other means, such as those mentioned by the noble Lord, Lord Kingsland. This is a difficult area. It has been tackled well in New Zealand and there is a template that we can follow. However, it requires a considerable amount of discussion and consideration. We will not block the temporary legislation that is being brought forward by the Government, but we shall examine it with some care—and even more so when the Bill comes before us in future.