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Criminal Evidence (Witness Anonymity) Bill

My Lords, I wholeheartedly agree with all noble Lords who have spoken that this is a case that cries out for legislation. The administration of justice will not be the same after 18 June, when the decision in R v Davis was given by the Appellate Committee of this House. I appreciate that the House is dealing with a number of problems that are conjoined, but they are fundamentally different in many respects. In the first instance, one is seeking to repair an infection in so far as the common law is concerned. To my mind, that infection was brought about by creeping erosion, step by step, without anyone appreciating that one was doing anything fundamentally wrong. Secondly, one is not just repairing an infection; one is also seeking to repair an injustice. We must always bear that in mind. If we did nothing more than repeat into statute the principles that had been applied in the common law over the past 20 years, we would be doing the community and the whole principle of justice a very considerable injustice. We are mindful of the fact that everything that we do must fit somewhere within the Strasbourg principles; otherwise, our time here would be wasted—this matter would merely be struck down in the near future. At all times, one is conscious of the fact that one is dealing with a massive problem of threat and intimidation to witnesses. It is not a new problem; it is one of the oldest problems in relation to the administration of justice that the world has known. In an article on this matter some years ago, Mr David Pannick QC quoted the words of Cicero when he prosecuted Gaius Verres, the former consul-general of Sicily, in 70 BC. He complained of the fact that practically all of the available witnesses had been intimidated. It is a problem that civilised societies have had to live with. It was faced in the Diplock report and the Gardiner report thereafter; it was faced earlier in relation to the Kray and Richardson trials in this country. One must not assume that the only possible answer lies in the path that we are considering, although that path is important. Perhaps I should say that that course is important—it is somewhere between Charybdis and Scylla. One can break justice, whether it be on the rock or in the whirlpool—I cannot now remember which was which. There must be a steady and careful course between those two extremes. On the question of when this should be done, I well appreciate the views expressed by many distinguished people that Parliament should pause, tarry, consider and reflect for some time before taking any action. I do not think that we have such time available to us. The gravity of the situation is such that uncertainty and confusion have been created—I refer to the many trials already commenced where an order has been made for witness anonymity and the many scores of trials in which a conviction is undoubtedly soon going to be challenged in the Court of Appeal. All such considerations—possibly in hundreds of applications—are now waiting to be heard in relation to whether anonymity should be granted. To my mind, all those circumstances determine that there should be swift action. Nevertheless, as quoted by the Lord Chancellor in the other place, the words of Lord Denning ring loud, gravely and clear: "““In the very pursuit of justice, our keenness may outrun our sureness and we may trip and fall””." That splendid man spoke wise and timeless verities. I am fortified by the fact that there is now a sunset clause that will, in any event, bring this legislation to an end in some 18 months’ time. However, I suspect that the sunset will not be the one contained in Clause 14 but the one that will come with the passing of the Law Reform, Victims and Witnesses Bill. I very much hope that in the mean time we consider not just exactly how one should deal with that as a matter of mechanics but the fundamental principles, which have still not been properly and fully considered, nor catered for, in this legislation. The legislation is imperfect and, in my view, the imperfection is as follows. In the period before Davis, a judge would have to consider practically all the considerations set out in Clauses 4 and 5 and the other parts of the Bill. What learned judge would avoid any of those? However, if all you do is convert clear judicial discipline into nothing more than a statutory checklist, what do you achieve so far as concerns safeguarding the fairness of a trial? It seems to me that the real problem is not the question of the headings that the learned judge had to consider and give particular attention to one by one but the question of what information he has on which to act in relation to those determinations. In other words, the Bill does not give the judge the wherewithal to answer those questions. It seems to me that in future a judge will rely very much on the ipse dixit of the police and the prosecution. In the long term—and, I hope, in the much shorter term if we are to amend this in the legislation that will come before the House in a few months’ time—the answer must surely be to give the judge the wherewithal to be informed fully about the features that are crucial to the determinations, and I believe that that can be done only through the appointment of a special counsel or special advocate. I appreciate that it is argued that it is already possible for that to be done under a judge’s inherent powers. I do not have the exact passage from Archbold’s Criminal Pleading, Evidence and Practice, but I am told that the learned editors of Archbold currently say, ““Yes, but it should be sparingly used””. In order to remove all doubt, therefore, I would very much welcome a statement in the Bill that a special counsel can be appointed. It may be that the procedure in relation to the magistrates’ court can somehow be made more efficient, but at the moment I cannot think of any better way of doing it than by an application to the Attorney-General. The special counsel would not act by himself; there should be a team of independent researchers and persons who are in a position to carry out the most detailed and sensitive inquiry so as to be able to lay before the judge information that is relevant to these crucial matters; otherwise, judges will be guessing or accepting the ipse dixit of the police and the prosecutor. I understand that that is how this system works in New Zealand and how it largely works in the Netherlands. When the matter eventually comes before us again, in a few months’ time with the fresh Bill, I very much hope that some thought will have been given to the prospect of making a declaration in that Bill that witness anonymity should be regarded as the exception rather than the rule; otherwise, there will again be the danger of the same creeping erosion in the interpretation of statute as occurred with the common law. I hope, too, that one will always bear in mind the Strasbourg jurisdiction. The Strasbourg cat can jump either way. As I understand it, Strasbourg has not yet given a final, definitive determination in relation to this matter. Until that happens, there will always be a concurrent danger and possibility that our efforts here will be rendered wholly nugatory. Therefore, there has to be a measure of protection in relation to Strasbourg. From what was said in R v Davis, it seems to me that we are in some sort of purgatory. The noble and learned Law Lords say, ““We are not able to say that Strasbourg is compatible, but, with the state of Strasbourg law at the moment, we are not able to say that it is incompatible””. Somewhere there is an unhappy and uncertain purgatory between us.