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Criminal Evidence (Witness Anonymity) Bill

My Lords, this has been a constructive debate. I warmly welcome the support we have received from all sides of the House and the broad consensus that the problem of witness intimidation is a serious one. I am particularly indebted to the noble Lord, Lord Goodlad, for his erudite exposition and to the noble Lord, Lord Lester of Herne Hill, for his excellent speech. Both speeches encapsulate the views of the Constitution Committee, whose report I know a number of noble Lords did not have the opportunity to read in full, and foreshadow the conclusions that may well come out of the second important committee, dealing with human rights. I thank them for that, not least because they have done such an excellent job in outlining an analysis of the law that they have saved your Lordships the burden of hearing me repeat it. I agree with them without reservation. I also endorse the comments made by my noble friend Lord Grabiner. He, too, identified clearly the issues with which we now have to grapple. The difficulty is clear: in cases involving violent crime, particularly gun and gang crime, fear about the consequences of giving evidence can prevent witnesses coming forward and allow very serious offenders to escape justice. I therefore also welcome the recognition that the judgment in the case of Davis has left us with a difficult problem to address. Courts no longer have a power to allow witnesses to give evidence anonymously in almost all circumstances. Several Law Lords in Davis recognised that Parliament would wish to consider legislation to give courts a power to allow anonymous evidence. It is critical, as a number of noble Lords made clear, that we act quickly to correct that deficiency in law. The Crown Prosecution Service has been able to identify the extent of the problem, and I am glad that we have been able to indicate what those figures may be. The extent of this problem is reflected not only in our country. I had the privilege of attending the Commonwealth Law Ministers’ meeting yesterday in Edinburgh, where this very issue was debated. More than 38 countries were represented, if one was to include the overseas territories and Crown dependencies. There was agreement that witness intimidation was a real problem for those countries and that anonymous evidence was an appropriate response in certain cases. I also had the privilege of speaking to the New Zealand Associate Minister for Justice, Lianne Dalziel MP. She indicated that the New Zealand legislation had been operating effectively and successfully for the past 10 years and was felt to be consistent with the New Zealand Bill of Rights. Indeed, she clearly identified the key issue at stake when she said to me, ““At its core, this is about getting to the truth of the matter and about how to secure a fair trial for both the defendants and victims and proper protection for witnesses””. I agree with her. I say to the noble Lord, Lord Marlesford, that I understand his wanting to rely forcefully on the comments made in the Spectator by the noble and learned Lord, Lord Lloyd of Berwick. Since the noble and learned Lord is not here, it is only right to say that I believe that he wrote that article before he had had the advantage of reading the provisions of the Bill. Since that time, he has had an opportunity both to write to and to speak to my noble friend Lord Hunt and he has expressed his compliments in relation to the Bill. I hope that he will forgive me if, in order to reassure the noble Lord, Lord Marlesford, I quote what he says in the final paragraph of his letter to my noble friend, dated 9 July: "““Finally, the Bill team has, in my view, done an astonishing job in providing such an excellent Bill so quickly””." Knowing the noble and learned Lord as I do, I am sure that he will not hesitate to find fault, if fault is to be found, and if he were to join us later. He indicated in his letter that he did not intend to harry my noble friend Lord Hunt at Second Reading, but I do not suggest that that will be the stance that he maintains thereafter. In relation to these difficult issues, I understand the concern of my noble friend Lady Mallalieu and her passion to ensure that a fair trial is maintained and that any procedure maintains the importance of the innocence of the accused until proven guilty. The fact that she so powerfully brings that to our attention does her honour. We share that passion and, in seeking to put these provisions together, the Government have had the intention to make sure that the fair trial is in no way jeopardised. I believe that it is acceptable for trials in serious cases to be dealt with in such a way as to avoid their collapse or appeal on matters of law. When we seek to make these provisions, we have that very much to the forefront of our mind. As all noble Lords accept, we are trying to do a difficult thing: we have to preserve the fairness of the trial in accordance with Article 6 and, in order to do that, we have to make sure that witnesses are in a position to give their evidence fairly, without fear or intimidation. I do not agree with the assessment of the noble Lord, Lord Marlesford, that these cases are prepared by police and presented as a fait accompli to the court. The Crown Prosecution Service has a duty to act as gatekeepers to the criminal justice system, insomuch as it is now entrusted with the duty and responsibility of charging. There is, therefore, an opportunity to ensure that an appropriately high level of scrutiny is given to any decision to apply for an order of anonymity. Both the Director of Public Prosecutions and I intend to look at what appropriate guidelines may be necessary to secure that appropriately high level of scrutiny.