---

Criminal Evidence (Witness Anonymity) Bill

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.