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Criminal Evidence (Witness Anonymity) Bill

My Lords, it is always a great pleasure to follow the noble Lord, Lord Lester. It is a particularly pleasurable experience today because I find myself in complete agreement with everything that he has said, not least about the rather silly piece in the Guardian last week. Two key points come out of the Law Lords’ decision in the Davis case. First, they decided that the common law should not be used by judges to develop inroads into established areas of our criminal law; in that case, it involves the right of a defendant in a criminal trial—I quote the noble and learned Lord, Lord Bingham, the senior Law Lord—to, "““be confronted by his accusers in order that he may cross-examine them and challenge their evidence””." The Judicial Committee was concerned that, in a series of cases at and below Court of Appeal level, that common law principle had been undermined by the inventive creativity of judges. I must confess some sympathy for that position. On the whole, it is usually better for our democracy if judges exercise some self-restraint and confine themselves to interpreting the law rather than inventing it. That is the first key point in the Davis case. The second point is that the Law Lords took the view that the deficiencies of the common law in this area would be best addressed by the legislature. The noble and learned Lord, Lord Mance, said that the rule, "““is one for Parliament to endorse and delimit and not for the courts to create. Parliamentary legislation is the means by which common law principles regarding the admission of documentary evidence have been modified, and it is also the way in which New Zealand and Netherlands law were altered to meet the undoubted—and there is reason to think growing””—" I emphasise that phrase— "““threat to the administration of justice posed by witness intimidation””." For the present purposes, the point of the noble and learned Lord, Lord Mance, about the prevalence of witness intimidation is key. You get a real flavour of the seriousness of this problem if you look back at the judgment of the Court of Appeal, delivered by our most senior criminal lawyer, Sir Igor Judge—who deserves some congratulation because it has just been announced that he will be the next Lord Chief Justice, with effect from, I think, October—in which the rather shocking truth is laid bare. He describes what he calls the, "““compelling evidence of an alarming increase in gun-related crime””," including shooting incidents on the streets of Nottingham in a 10-month period in 2002-03, when 37 people were injured. Regrettably, we are also familiar with serious knife and gun crime in cities across the country, virtually daily. Sir Igor drew attention to fear on the part of witnesses to come forward—fear for their lives and the lives of friends and family. As he rightly said: "““Without witnesses, justice cannot be done””." It is important to understand that the Law Lords were not saying that legislation in this area would be incompatible with our obligations under Article 6 of the convention. On the contrary, they took the view that legislation was the appropriate way forward so long as the devised structure produced a fair trial for the accused. On this point I am sure that we are all agreed. So the essential question is whether the proposed legislation contains suitable safeguards that will ensure a fair trial for the accused. The structure of the approach adopted in the Bill is that it will be a matter for the judge to decide whether or not to make an order for anonymity in respect of any witness. That is obviously right in principle. The judge is best placed to apply the criteria identified in the Bill. The test is one of ““necessity”” in Clause 4(3), having regard to the fears of the witness or, as the case may be, the prevention of real harm to the public interest. Before making the order, the judge will also have to be satisfied that the defendant will get a fair trial and that the interests of justice will necessarily be served. I do not think that the need for this legislation can seriously be doubted. The noble and learned Lord, Lord Carswell, another of the Law Lords, drew attention to Ministry of Justice statistics that reveal a doubling of convictions for witness intimidation between 1996 and 2005. This is an urgent problem that needs to be dealt with firmly. There is also danger in delay. The Minister mentioned the substantial number of cases in the pipeline. Obviously, that is a reason for getting on with this speedily. There is another problem. As the law currently stands, the viciously motivated criminal has a considerable incentive to intimidate witnesses in the knowledge that if he is successful in that endeavour, no case will be made against him because there is no provision in law for witness anonymity. That must be put right, and it must be put right speedily.