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Criminal Evidence (Witness Anonymity) Bill

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 the defendant has either 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 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.