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Criminal Evidence (Witness Anonymity) Bill

moved Amendment No. A1: A1: Clause 1, page 1, line 8, leave out ““abolished”” and insert ““are to be interpreted in accordance with the provisions of this Act.”” The noble and learned Lord said: The amendment relates to the common law rules and seeks to leave out that they should be ““abolished”” and to insert instead that they, "““are to be interpreted in accordance with the provisions of this Act””." Its purpose is not to abolish these rules, which are an important part of our common law principle of open justice, but to retain their substance—subject, of course, to the broadly sensible modifications set out in the Bill. The starting point must be, as it has always been, that as far as possible criminal trials under our adversarial system should be conducted on the basis that the accused person is openly confronted by his accusers, with the chance to cross-examine them on the basis of full disclosure by the prosecution. In the vast majority of cases, even in times as difficult as the Troubles in Northern Ireland, these rules have retained public confidence and stood the test of time. There is, however, a real problem of witness intimidation today, which has led to modifications by the courts, up to the Court of Appeal. The Judicial Committee of the House of Lords, in R v Davis, ruled that these modifications went too far. The Law Lords have rightly restated the common law and, directly or indirectly, invited Parliament to address the problem, which we are today continuing to do. As I said, the object of the Bill should not be to abolish the common law rules which helped to save England and Wales from the iniquities of the Spanish Inquisition—I am quoting the noble and learned Lord, Lord Bingham—and to underpin the abolition of the Court of Star Chamber by the Long Parliament in 1649, and which have stood the test of time since then. It should be to modify them where necessary to combat the current problems of witness intimidation whilst scrupulously maintaining the right to a fair trial for both the prosecution and defence sides. The rules also form the foundation of Article 6.3(d) of the European Convention on Human Rights. Although the incorporation of the convention into our law has done a great deal of good, it is something of a back stop and, in certain areas, as the House well knows—for example, the Regulatory Enforcement and Sanctions Bill—it has led to some lowering of standards. It is to be regretted that we simply go for the back stop and not for our traditional rights. The Government and the cause of justice have nothing to fear from the amendment or from making clear that the common law rules, now to be modified by the Bill, still form the starting point and underpin most of its provisions and safeguards. In Clause 5(2)(c) the question of whether evidence given by the witness might be the sole or decisive evidence implicating the defendant is a consideration which the court must ““have regard to””, according to Clause 5(1). But the words ““have regard to”” are not a very strong injunction in themselves when it is remembered that in R v Davis the noble and learned Lord, Lord Bingham, emphasised twice, at paragraphs 34 and 25 of the judgment, that it formed the key reason for his overturning of the Court of Appeal’s judgment. He said: "““At no point in its judgment does the Court of Appeal acknowledge that the right to be confronted by one’s accusers is a right recognised by the common law for centuries””." With regard to Strasbourg, the noble and learned Lord said, at paragraph 25, that, "““no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses””." The reason is that such a conviction results from a trial that cannot be regarded as fair. That is the view traditionally taken, as the noble and learned Lord says, by the common law of England. It is some comfort that Strasbourg, as so carefully analysed by the noble and learned Lord, Lord Manse, would probably have reached the same result in R v Davis, but my point here is that our common law tradition remains of basic, huge importance, in the protection of our liberties and the right to a fair trial, even—perhaps especially—for the most heinous offenders. Let us therefore build upon that common law principle and modify it carefully where the court can be satisfied that it is fair, just and necessary so to do, but let us not abolish it. I beg to move.