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Criminal Evidence (Witness Anonymity) Bill

My Lords, for the first time in the debate, the noble Lord, Lord Marlesford, has put a finger on the nub of this matter. We are being asked to pass a deeply troubling piece of legislation at enormous speed and, because of the political pressures on all three political parties, there has been an agreement that the Bill, with very little amendment, will reach the statue book next week. I have been a practising criminal barrister for 38 years, both prosecuting and defending, and I believe that the best way of getting at the truth in a criminal trial is to allow the accused to confront his accusers directly and in public and to cross-examine and challenge them knowing who they are and where they come from. I instinctively dislike this proposal. Time and again in the past 10 years, when criminal justice legislation has been through both Houses of Parliament, I have gone down to the Old Bailey and have been besieged by people saying to me, ““How did you allow that to happen?””. I have no doubt that it will happen in relation to the Bill, but on this occasion all I will be able to say is that no one was brave enough to stand up and say that this principle is more important than immediate practical considerations. We have been down this route before, albeit some time ago. We have given anonymous and secret evidence a whirl in the past. We did it with the Court of Star Chamber and in trials for treason. While those procedures were initially very popular, they came to be regarded as cruel, unfair and oppressive, because they resulted in wrong convictions. They were eventually abolished by the Long Parliament in 1641. Perhaps they will not last as long in this case, but I fear that history often repeats itself. I do not for one moment suggest that there are not very serious problems with witness intimidation, which one hears about every day in the criminal courts. I was interested in the figures given by my noble friend the Minister. It was the first time that I had taken them in. The Bill has been presented to the public as legislation primarily intended to protect the innocent bystander or the brave witness who comes forward as a member of the public. However, the reality is that the bulk of the 580 cases—330 of them—relate to providing protection for the prosecuting authorities. That may be the perfectly proper thing to do, but the reality is that only 50 cases in the pipeline involve members of the public, although that was the basis on which the Bill was effectively sold. There is a problem; it is probably a growing problem, but there have always been problems. It is encouraging that convictions for witness intimidation have doubled, as my noble friend Lord Grabiner said, in the past 10 years. Frankly, however, we have to face up to the truth behind this Bill and the future Bill that we will be asked to consider. Changing the rules in criminal trials will not solve the problem of witnesses or potential witnesses who are afraid to give information or evidence. We need to look at the social conditions that cause that problem. We need to look at other and better ways in which people can be encouraged to come forward to assist the police against crime and we need to look at our current ways of protecting people who are brave enough to do so. We need to do that in proper depth, as I very much hope that we will in the next Session. However, this Bill is an attempt to validate retrospectively those 580 cases in which it seems, as a result of Davis, that unlawful orders have been made. The judgment of noble and learned Lords in the case of Davis was attacked in the tabloid press in a disgraceful way by people who I have no doubt had not troubled to read it. The judgment was a careful and balanced analysis of the problems. It is clear that the general rule is being breached in the courts, as judges have been making decisions on anonymity as they think right with no statutory basis or consistency. What the Law Lords were saying in that judgment was effectively that either Parliament must say, ““This is not to happen””, or it must provide statutory guidance. I would have chosen the former, but each of the three main political parties, no doubt under considerable public pressure, has chosen the latter. As a result, we have this Bill, which will, no doubt, reach the statute book. Those of us who disagree with its fundamental principle have to make the best of it. With that in mind, a number of short points need to be made by someone who comes to the debate as a practitioner. The first has not yet been mentioned, but it is important that it should be. We still have the presumption of innocence in this country. That is non-negotiable. It is the mark of a free and civilised society and, if it goes, so does liberty. When a judge comes to look at one of these applications, I hope that he will look at it not from the point of view referred to by my noble friend Lord Grabiner, of the viciously motivated criminal, but from the point of view of someone on trial who is at that time innocent and may have been wrongly accused. That is the basis on which we should all start looking at legislation of this sort. The second principle—everyone has referred to it—is that the trial must be fair. Not only is an unfair trial a breach of Article 6, but unfair trials lead to miscarriages of justice, which, in turn, are horrendous for the individual concerned and undermine respect for the law. Also, what is the point of our paying to keep innocent people in prison when the criminals responsible remain free? There will be many cases in which a fair trial is simply not possible if witness anonymity is granted. I welcome the provisions in the Bill that allow the 560 cases in the pipeline to be looked at again, because a number of them may be ones where the orders currently made cannot stand. For my part—I hope that this will be clarified in case law as soon as possible—I very much doubt that a case where the only or decisive evidence against an accused is given by an anonymous witness can amount to a fair trial, either under Article 6 or as a matter of plain common sense. For a defence counsel, defending in a case like that is effectively being made to punch into thin air. You are not allowed to know who the witness is and you are not allowed to ask any questions that might lead to disclosure of the identity. How on earth do you begin to tackle the credibility of a witness whose account your client tells you is wrong? If we are to have anonymous witnesses, as we will from next week, it is right that Parliament should provide a framework for the trial judge. I stress that it must be a judge; this must be reserved for serious cases. I hope that we are not going to go down the route of the magistrates’ courts employing this sort of order. At the moment, the Bill is silent on that, but it is one of the very important details that must be looked at. We should not even contemplate that decision being taken at magistrates’ court level. A number of things seem to me to be necessary at the very least. First, the judge must know the true identity of the witness. There is nothing in the Bill to ensure that he is told. Surely that must be put right by amendment next week. Secondly, defence counsel must not be prevented from seeing and hearing the witness as he gives evidence and is cross-examined, if counsel chooses to do so. In the case of Davis, defence counsel chose not to be in a better position than his client. Other defending counsel would take a different view. It is asking the case to be conducted with defence counsels’ hands tied behind their back if they have to cross-examine someone of whose identity they have no knowledge without being able to see his or her demeanour as he or she answers the questions and, apparently, hearing some sort of distorted voice representing the replies. That cannot be right and it should be put right by amendment next week at the very least. I have already made the third point: this should refer to serious crime only. Fourthly, in order to determine the application, there needs to be a clear procedure including a detailed report from the police to the judge indicating the origins of the request, the investigations made, the background of the witness and, especially, details of any prior contact or relationship between the witness and the accused, his associates or family that may have a bearing on the credibility of the defence. Without that basic information, how can a judge begin to judge whether there is likely to be a fair trial? There must also be a clear procedure for the hearing of such applications, which provides for the defence to make submissions, unlike the present public interest immunity hearings, which take place in the judge’s chambers between the judge and the prosecution alone. I echo what has been said by several others about the need for provision for special advocates. Lastly, I am glad to see that the judge is required to give a warning to the jury about the dangers of evidence in such cases. It is crucial that, as soon as possible, strong specimen directions are provided so that there is consistency in that warning. The granting of these orders should be truly exceptional and not become the norm wherever it is requested. As we all know and have all seen, legislation in haste is all too often defective. I am particularly pleased that there is a sunset clause, but I wish that there had been no sunrise on the Bill. Horace Rumpole would turn in his grave at the provisions of the Bill; he will probably, as usual, be proved right.