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Criminal Justice: Witness Anonymity

My Lords, I wonder whether I might take up the House’s time for a minute or two more. On any basis, this is a very important subject. Sitting in the Court of Appeal Criminal Division, I had to review a number of cases where anonymity had been used. It is fair to say that the reading of the decision of their Lordships in the recent case of Davis was very revealing to me, as it set out with such clarity the principles which their Lordships were going to apply. But I was not surprised to read in one speech—that of the noble and learned Lord, Lord Brown of Eaton-under-Heywood—that he started off expecting that the appeal would be dismissed. Like me, he was influenced by the marshalling of the authorities as appeared in particular in the speech of the senior Law Lord. However, although I, equally, was persuaded by the speech of the senior Law Lord on the overwhelming effect of the authorities, I am bound to say that, based on my experience, I believe that it is necessary that legislation should be brought forward because otherwise trial judges dealing with these matters will be in an impossible situation. They cannot afford to wait and see what the Court of Appeal or the House of Lords will say about a case—they have to act on the material which is before them. With regard to the cases I saw, I can assure the House that the trial judges were always very reluctant to adopt the course of resorting to anonymity. It was a last resort, and one can understand why they would be reluctant, because even without looking at the authorities which were so ably marshalled by their Lordships, it is clear that this is a very undesirable departure from the ordinary conventions of a trial. However, it is my belief that it is possible for a trial to be conducted with an element of anonymity in the course of the proceedings and still be fair to the defendant. Above all, the courts must always treat as paramount the principle that a defendant must have a fair trial. The approach in the criminal courts is different from that in the civil courts. The civil courts can balance matters in a different way because the liberty of the subject is not at stake. I ask the Minister to bear in mind that it is critical, if legislation is brought forward, that the trial judge should have a discretion to decide whether the case goes on or not, with the witness’s identity not being given. The second thing I want the Minister to bear in mind as absolutely critical is the fact that whereas legislation can alter the position with regard to the common law, it cannot, of course, alter the human rights position. We do not want a division between the approach taken in the legislation and the jurisprudence of the European Court of Human Rights, which in this area is not as clear as it should be but will no doubt develop. I would like the Minister to indicate that there is no proposal not to give the usual certificate of compliance with the Human Rights Act. I apologise if he has already made that clear; I am afraid that I was not able to be here for the reading of the Statement. I suggest that the observance of the requirement of that certificate is critical. Justice is needed not only for the defendants but also for the public. We cannot have a situation where, with the more developed methods of tracing individuals, a case can be properly brought where the evidence is there but no trial takes place at all because of a technical problem. I use the word technical deliberately because what should be involved is not technicality but justice. The judge should be there to see that justice is done. He should be enabled to do that.