---

Criminal Evidence (Witness Anonymity) Bill

We support the amendment of the noble and learned Lord, Lord Lyell. The mistake is to refer to common law rules at all. We are considering a principle rather than rules. You cannot look in a book and see what the common law rules are. In their judgments and opinions in Davis, their Lordships made it clear that they were talking about fundamental principle. The noble and learned Lord, Lord Bingham, said: "““It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. This principle originated in ancient Rome””." The noble and learned Lord, Lord Rodger of Earlsferry, said: "““Your Lordships were not referred to any Scottish authorities on the point. But, as in England, the principle is so deeply embedded that it scarcely needs stating by the Scottish courts””." The noble and learned Lord, Lord Mance, having referred to all the European jurisprudence on this matter, said, again, that it was a matter of principle that comes from the history of the law of England and Wales and from its roots in other systems of law in the past. What does abolishing the common law rules mean? I accept entirely the criticism of the noble Lord, Lord Kingsland—the phrase is vague. Is the principle being abolished or is it to be upheld but within a statutory framework? If it is the latter, that is precisely what the noble and learned Lord, Lord Lyell, is aiming at in his amendment. It would make it quite clear that the principle remains but that it must be construed within the statutory framework.