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Criminal Evidence (Witness Anonymity) Bill

My Lords, I realise that, but I suspect that when the police have effectively done a deal and said to a witness, ““Don’t worry, we’ll ensure that you don’t have to appear””, and then have said to the judge, ““This is crucial evidence and we’ve already assured him””, the judge would find it more difficult to reject the application for anonymity. How are we to proceed if this Bill becomes law? There are detailed and sensible conditions set out for the use of anonymous evidence, but how is the defence to be able to argue against such decisions before they are made? Will the consideration be seen as fair? That problem also applies under the existing common law system, but it has been somehow more accepted. I also object to the retrospective nature of this legislation. Retrospective legislation is seldom, if ever, justified. It is itself a potential instrument of tyranny. Clause 11 prevents an appeal solely on the grounds of witness anonymity under Davis and instead requires the court to consider whether the anonymity order could have been made under the new law. I suggest that in many cases that is an impossible task when the full details of the original circumstances can no longer be established and thus considered. I would much rather remove this retrospective element and let appeals from the past take their chance under the common law, so that judges simply have to decide whether the anonymity had prevented a fair trial, as they so decided in Davis. Indeed, I would much prefer that we did not pass the Bill and that we continued under the common law with the police from now on being conscious of the shadow of Davis in pursuing their investigations and suggesting to witnesses that they need not go near a court. Noble Lords will remember that 15th-century cities such as Venice and Florence had little letter boxes, normally in the form of an open-mouthed gargoyle, into which citizens could post anonymous denunciations. Equally in France citizens could be imprisoned on lettres de cachet for raisons d’État. That has, thank goodness, seldom been the English way. I recognise that the promise of anonymity makes it easier for the police to get a conviction, but that is not the point. The point is very simple: the accused should get a fair trial. That is the principle that we should be defending and which I, as a mere lay man, feel fully qualified to advocate.