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Criminal Evidence (Witness Anonymity) Bill

My Lords, I, too, support the Second Reading of the Bill. I declare an interest as a member of the Joint Committee on Human Rights. As the Minister said, as part of its scrutiny function, the JCHR took evidence about the human rights implications of the Bill on Tuesday from the Director of Public Prosecutions, Sir Ken Macdonald QC, and from Paddy O’Connor QC, who gave the defence perspective. We will publish that evidence before the remaining stages of the Bill, and we hope to publish a report early next week about the compatibility of the Bill with the convention rights. In the absence of a decision of the Joint Committee as a whole, what I am about to say represents my personal view that the Bill is indeed compatible. That accords with the view of the chair of the JCHR, Andrew Dismore MP, as he explained in the Commons debate on 8 July at cols. 1317-19. It also accords with the view expressed by David Howarth MP, on behalf of my party, at cols. 1319-24. One of the remarkable features of the way in which the Bill has been dealt with has been the willingness of everyone from all sides to act consensually. We are assisted by the excellent report published on 10 July of the Select Committee on the Constitution, chaired by the noble Lord, Lord Goodlad. We are indebted to the Select Committee for the quality of the report, especially given the speed with which it has had to be prepared. There is no doubt about the scale of the problem or the legitimacy of the aim of the Bill in tackling the serious mischief of witness intimidation. The problem is very old, but its scale has increased. The Justice Secretary, the right honourable Jack Straw, was right in saying on 26 June: "““As long as there has been crime, criminals have sought to intimidate witnesses in order to avoid punishment. Criminal justice systems across the world have sought to deal with this problem. Criminals do not operate by the rules, but the rule of law requires that justice should not only be done, but be seen to be done. The right of a defendant to confront his or her accusers in open court has been a key feature of all systems of justice worthy of that name. That right should be modified only where it is fully justified. In recent years, witness intimidation has become an all too common feature in crimes of a serious nature, especially those ""involving guns, gangs or drugs. Such is the fear that can be engendered by such criminals that entire communities in an area may be reluctant to come forward to give any evidence about what they know””.—[Official Report, Commons, 26/6/08; col. 514.]" All the judges in the Davis case recognised the reality and serious nature of this problem and that it might well call for the urgent attention of Parliament. They also referred to the New Zealand statutory framework as being of potential relevance. In his article in the Guardian on Tuesday, Geoffrey Robertson QC made an intemperate attack on the Bill, under the headline, ““There can be no fair trials with this perjurer's charter””. He called the Bill, "““the most serious single assault on liberty in living memory ... which will result in thousands of unfair trials; and the principles of open justice ... will be gutted by a panic-stricken measure that encourages courts, in criminal cases of any kind, to suppress the identity of crucial witnesses””." I shall not quote the rest of this polemic. It fails to recognise or to grapple with the real problem of witness intimidation. It wrongly claims that the Bill will in effect place the trial process in the hands of the police and that it contains no safeguards for the citizen. The courts will have an obligation imposed by the Human Rights Act and the convention, and the Bill itself, to ensure that everyone has a fair trial in accordance with the procedural safeguards prescribed by Article 6 of the convention, and the Bill will have to be read and given effect to in accordance with those safeguards. The article also suggests that Mr Robertson has not examined the Bill with the care it deserves. I declare an interest as a member of the governing council of Justice, which has produced an interesting briefing on the Bill for the House; I have only just read it. Many of the points in the briefing are valuable, but I do not agree with the following comments: "““We remain of the view that the Bill is misconceived and poorly drafted. In particular, we consider the provisions to be unduly complex, overly broad, contrary to the common law right to confront one’s accuser, and lacking several of the safeguards found in the New Zealand legislation on which it was based””." The last point is perhaps fair and my noble friend may wish to refer to that in his reply, but, with respect, that summary of the position is neither fair nor accurate. The Constitution Committee rightly states that: "““The right to be confronted by named and identified accusers is a right of a constitutional character””," and that: "““The Bill does not abolish this long-standing right but it will create a new range of statutory rules permitting witnesses anonymity””." The committee also points out that Article 6 will continue to provide the minimum guarantees of a fair trial; and, in his evidence to the JCHR, Sir Ken Macdonald emphasised that the courts will be obliged to interpret and apply the new statutory rules in accordance with the fundamental right to a fair trial guaranteed by Article 6. I agree with the analysis in the Explanatory Notes that the Bill is compatible with Article 6 and that it contains adequate protection of the right to a fair trial. In particular, Clause 4(4) provides that the court must be satisfied that, having regard to all the circumstances, the taking of the measures granting witness anonymity would be consistent with the defendant’s right to a fair trial. That makes it crystal clear that the order must be compliant with Article 6. In addition, when deciding whether to make an order, the court must have regard to any concerns about the credibility of the witness and the extent to which the evidence given by the witness could be properly tested. Provision is also made for ongoing and appeal cases where an order has already been made. The court must consider whether the order could have been made under the new statutory rules and whether the effect of the order is that the defendant has been prevented from receiving a fair trial. If so, the court will bring the trial to an end or treat the conviction as unsafe. Finally, the judge must give a warning to the jury to ensure that the order does not prejudice the defendant. I welcome the fact that the Bill was amended in the other place to include as a relevant consideration, "““whether evidence given by the witness might be the sole or decisive evidence implicating the defendant””." The DPP suggested in his evidence to the JCHR that there might be rare and exceptional cases where it would not be unfair to use such anonymous evidence—for example, where an elderly and vulnerable witness identified the registration number of a car used in a bank raid and was terrified, on reasonable grounds, of what would happen if her identity were revealed. It is unclear, as the noble and learned Lord, Lord Mance, indicated, under the current Strasbourg case law whether this would breach Article 6, but the amendment made in the other place will make it less likely that there will be a violation of the right to a fair trial. Indeed, one of the points made to the JCHR by Sir Ken Macdonald was that he expected that there would be fewer cases than at present when anonymous evidence would be admitted at trial. The undercover cases would be largely unaffected but in Operation Trident cases the criminality of witnesses means that it may not be possible to prosecute them at all. The DPP told us that the process provided by the Bill would throw up cases where credibility would be an issue, particularly as both judge and any appeal court would know the identity of the witness concerned. The addition of a sunset clause is also most welcome. The Bill has been described by Ministers as a stop-gap, and the Justice Minister has made it clear that further legislation will be introduced next Session that will subsume the contents of this Bill and enable full parliamentary scrutiny. The Minister confirmed that today. The Constitution Committee observed: "““While we accept that from time to time exceptional circumstances may arise requiring the Government to prepare, and Parliament to deliberate on, a bill according to an expedited timetable there are obvious risks, especially where the bill deals with a complex social and legal problem””." The Justice Secretary’s undertaking should meet that concern on this occasion. The Bill specifies that an order can be made only when necessary to protect the safety of a witness or another person or to prevent any serious damage to property, or to prevent real harm to the public interest. The reference to ““serious damage to property”” is controversial. It is unlikely that the protection of property rights could ever outweigh the right of the accused to a fair trial and, except in the most exceptional cases, it should not be a reason for an anonymity order. The DPP gave as an example a case where there was a credible threat to torch a warehouse or a witness’s home and where the test of necessity was met. The Bill makes no provision for special advocates at hearings to determine applications for witness anonymity orders. The New Zealand legislation provides for the judge to appoint independent counsel to assist him when considering an application for a witness anonymity order, including whether the safety of the witness is likely to be endangered if his identity is disclosed. The Crown Court has an inherent power to appoint special advocates, but the magistrates’ courts would need specific statutory authority to do so. It is questionable whether magistrates’ courts should be included in the Bill at all. There is, in any event, a need for a proper procedural framework, as happens with the Special Immigration Appeals Commission, covering how the special advocate procedure should operate. I gather that the DPP, in answer to our questions, was sympathetic to that view. As I have said, the Justice Secretary gave an undertaking in the other place to give active and urgent consideration as to whether a scheme of special advocates is feasible and necessary, before the introduction of the law reform, victims and witnesses Bill in the next Session. He also undertook that he would in the meanwhile indicate to the judiciary that they should consider, in light of cases that come before them, whether independent counsel would be of use. That Bill will enable Parliament to judge whether the new scheme works well and in the interests of justice. In my view, it will be in the interests of justice and the effective protection of the right to a fair trial if this Bill, in the light of experience, is reviewed and properly considered.