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Criminal Evidence (Witness Anonymity) Bill

My Lords, I thank the right honourable gentleman the Secretary of State for Justice and his ministerial team for involving the Opposition during the preparation of the Bill. I believe the same is true of the Liberal Democrats. In particular, we were given the opportunity to comment on the legislation in draft and, to the extent that our advice was taken, we are as implicated in the Bill as the Government. This is emergency legislation, and we do not have the opportunity to scrutinise the Bill properly. It is vital, therefore, as other noble Lords have said, that we have an early opportunity to review it thoroughly. We pressed at an early stage for a sunset clause in the Bill and I am delighted to say that we now have one. However, I have an observation to make about the detail of Clause 14. It was particularly important to the Opposition that the sunset clause had a terminal date and we have got it—31 December 2009—but Clause 14(3) states that the date may be extended by affirmative order for 12 months. We are unhappy about this part of the clause. The Government will not be surprised to hear this. They are well aware that, in order to terminate the long-drawn-out debate in your Lordships’ House in March 2005, they undertook to provide an opportunity to review the Prevention of Terrorism Act control orders within a year. That undertaking was not met, and for three years the Government have been able to extend the length of that Act, without further scrutiny, through affirmative orders in your Lordships’ House. We have allowed those affirmative orders to go through because of a longstanding constitutional convention that it is only in the rarest circumstances that the Opposition vote against an affirmative order. But I put the Government on notice that, if we are faced with a draft affirmative order at the end of 2009, we will not regard ourselves as bound by that constitutional convention. My noble friend Lord Marlesford, quite properly, made some extremely disparaging remarks about retrospective legislation. I share my noble friend’s repugnance on that score. He has, therefore, made me extremely uneasy at having, during the debate on the Statement some two weeks ago, endorsed Clause 11. I comfort myself—I hope he will feel comforted later—with the belief that it will not make much difference to the outcome of any appeals of individuals already convicted in a trial which involved prosecution witnesses who gave evidence anonymously. My reason for reaching that conclusion will, I trust, become obvious in the next five or six minutes. I also thank my noble friend Lord Goodlad, the chairman of the House of Lords Constitution Committee, for giving a brilliant summary of the conclusions of that committee. As its report was only published today, I have had no opportunity to read it; and I am therefore extremely grateful to him. It seems that the Appellate Committee of your Lordships’ House is attacked whatever approach it takes to the development of the common law. When it develops common law principles, such as negligence or the law of rape, in a way which adjusts them to contemporary social mores, it is blamed as usurping the role of Parliament. When it takes the opposite view it is blamed for not reaching the right result. The noble and learned Lord, Lord Bingham, in my view, was absolutely right to reach the decision that he did. If one looks at the history of the common law on anonymous witnesses, there is no evidence that it had developed in any way since the 18th century. That was underlined by the reports of Lord Diplock and Lord Gardner at the height of terrorism in Northern Ireland during the 1970s. The noble and learned Lords in the Appellate Committee, I repeat, reached exactly the right decision. It is interesting to note that my right honourable friend Michael Howard in the House of Commons, during the debate on Tuesday on this measure, went out of his way to applaud what the noble and learned Lord, Lord Bingham, and his colleagues did, saying that they were absolutely right not to seek to legislate in circumstances where the history of the common law gave them no grounds for it whatever. The noble and learned Lord, Lord Bingham, was, in my view, extremely constructive in the way that he confronted the dilemma that the decision of the Appellate Committee posed to the Government. In talking about the intimidation of witnesses, he said, "““this is not a new problem, but it is a serious one. It may very well call for urgent attention by Parliament””." That is as close as one could possibly get to saying that the noble and learned Lord hoped that Parliament would, at an early stage, confront this problem. I understand entirely what the noble Baroness, Lady Mallalieu, said, and I sympathise with her motives for saying it; but in the context of R v Davis, the steps that the Government have taken to produce emergency legislation have been the correct ones. The noble and learned Lord, Lord Mance, also went out of his way to support the noble and learned Lord, Lord Bingham. He said that, "““it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence … that there is scope within the Human Rights Convention for such modification””." The question—and I believe this goes to the heart of the matter—is: how much scope? There was clearly none in a case such as Davis, as the noble and learned Lord, Lord Mance, stated. It was absolutely clear that the effectiveness of the defence’s case depended entirely on investigating the motives of the anonymous witnesses; but that was impossible to do. He also concluded that the evidence of the three anonymous witnesses was decisive to the outcome of the case. In those circumstances he concluded, as did other noble and learned Lords in the Appellate Committee, that the conduct of the Davis trial plainly contravened the European Convention on Human Rights. It was, therefore, puzzling to read paragraph 50 of the Explanatory Notes that were attached to the draft Bill in the House of Commons, which said that this Bill will enable us to go back to the situation before Davis. I note that that is not in the Explanatory Notes to the Bill in your Lordships’ House. It may have been an aspiration of the draftsman, but it is plainly incorrect. We cannot go back to the pre-Davis situation. The approach that the European Court of Human Rights takes to these matters is well summarised in the case of Doorson v the Netherlands, on which the noble and learned Lord, Lord Mance, heavily though not exclusively relied. I hope that I will not incur the wrath of your Lordships' House if I read just three paragraphs from the judgment. At paragraph 67, the court said: "““The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair””." At paragraph 70, it continues: "““It is true that Article 6 … does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 … of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify””." It is interesting to note that when the noble and learned Lord, Lord Mance, concluded his analysis of the European legislation and applied it to the Davis case, he came to the conclusion that, on the facts, no such balancing had taken place. Lastly, in paragraph 76, the court said: "““Finally, it should be recalled that even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements””." As the noble Lord, Lord Elystan-Morgan, said, the Strasbourg cat can jump either way. There are many other Strasbourg cases in which these matters have been considered, which led the noble and learned Lord, Lord Mance, to the conclusion that the criterion of ““solely or decisively”” is not necessarily, on the facts of the particular case, the determining factor. However, there is no doubt that it was the determining factor in Doorson. I think it would be dangerous for any court to conclude that the law of the convention will stray very far from that laid down in those three paragraphs. I say to my noble friend Lord Marlesford that that is why I am perhaps not over-conscience-stricken about my support for Clause 11. Wisely, the Bill is not concerned with what is a fair trial; it does not lay down the circumstances in which a trial is or is not fair. It does set out the considerations which a judge will have to take into account under it such as to reflect adequately the jurisprudence of the convention. We cannot be absolutely certain what the court in Strasbourg will say in the future. The noble Lord, Lord Lester, had some interesting observations to make about that in respect of the court's composition and the traditions of the inquisitorial system; but it is nevertheless important that judges are given as accurate a framework as possible within which to work. The Bill seeks to do that, and, broadly speaking, we support it. However, as the Government might imagine, we will raise some detailed matters in Committee. These are primarily matters that arose when we compared the Bill with the New Zealand legislation of 2006. I want to raise three specific matters, one of which has been dealt with extremely well by the noble Lord, Lord Thomas of Gresford. The New Zealand Bill says, first, that the use of anonymous witnesses can be justified only in exceptional circumstances. I think that it is commonly agreed that, in some areas of the United Kingdom, anonymity is offered to witnesses almost routinely as an incentive to them to give evidence. In its note on the Bill, the Bar Council observed: "““We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall … that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances””." The Government have not included an exceptional circumstances provision in the Bill. Our view is that they should, otherwise the evil to which the Bar Council refers will continue. The second ingredient in the New Zealand Act that does not appear in the draft Bill is that the cases in which anonymity is granted should be cases of real gravity. There are different views about what that means. One approach would be to set out the particular offences in which witness anonymity could be applied for. That would be extremely unsatisfactory because, under apparently quite inoffensive offences if I can put it that way, one can have serious matters that would justify applications for anonymity. For that reason, some such provision ought to be included in the Bill.