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Criminal Evidence (Witness Anonymity) Bill

My Lords, I am most grateful, as I always am, for the noble Lord’s intervention. I was not aware of his conversation with the Director of Public Prosecutions. For what it is worth, my view is that gravity ought to be included in the Bill. We will have an opportunity to return to the matter in Committee. The third ingredient of the New Zealand Act that is not in the Bill is the ability to appoint a special counsel to deal with questions of fact that bear on the decision of the court whether to agree to an application for anonymity. The noble Lord, Lord Elystan-Morgan, rightly pointed out that there is an existing inherent right, the authority for which is in Archbold, to appoint such a counsel; it is done very rarely, but I note that it was taken advantage of by the Court of Appeal, no less, in the Davis case. The difficulty about relying on that is that there is no established procedure for the way in which a special counsel should operate. That is why I am in agreement with noble Lords—and the noble Lord, Lord Thomas of Gresford, could not have put the case better—to include a provision in the Bill that sets out the duties of such a counsel. In another place, the Government did not commit themselves either way except to say that it was too late to include such a provision in an emergency Bill and that, between the passing of the Act and the review of it that is due to take place in the Victims and Witnesses Bill next year, they would give this matter close attention. We shall support any amendment that is tabled next week on the matter although we will not vote for it if it is put to the vote. I have reached the conclusion that the Government have a real problem about setting out detailed rules for the responsibilities of such a counsel between now and the middle of next week. In those circumstances, they should be given the benefit of the doubt. We have other matters of no less importance to bring to your Lordships’ attention in Committee; but they can rest until then.