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Criminal Evidence (Witness Anonymity) Bill

I thank both the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Elystan-Morgan, for precisely explaining the position. However, I say straightaway to the noble and learned Lords, Lord Lyell and Lord Mayhew of Twysden, that I absolutely understand their anxiety about this matter, which was echoed by the noble Lords, Lord Kingsland and Lord Thomas of Gresford. The Judicial Committee in the House of Lords sought to change, and said that it had to change, the way in which we were using the common law because it was being used inappropriately. We are abolishing only the common law rules relating to the power of a court to make an order for securing the identity of a witness. We are not changing anything else in criminal proceedings. It is important for us to recognise that. The important principle is being retained. The amendment seeks to preserve the common law rules on witness anonymity, and to transform the Bill into a gloss on those rules. Thus, witness anonymity would remain a common law matter, but would be interpreted by the Bill. That is what the House of Lords Judicial Committee expressly said that we could not do. The House of Lords judgment in R v Davis declared that there is no common law power, except in a narrow category of cases, for courts to allow evidence to be given anonymously at trial. Therefore, the only way in which we can deal with that matter is through statute, which is what we now propose. It is important that we are clear about this matter, because courts throughout our country will need to understand precisely what we have done and how we have sought to answer the Judicial Committee so that they have a solid basis on which to go forward. Seeking to preserve the common law in the way suggested by the amendment would risk creating uncertainty for the courts and parties to criminal proceedings, which would not be desirable—I do not think that any noble Lords who have spoken in support of the amendment would want that. However, I am grateful to them, because we have been able to put on record our clear understanding of what is and what is not being dealt with. We are dealing only with the common law ability to grant anonymity orders, which the Judicial Committee said we cannot use, and we are substituting a statutory framework by way of the provision. I hope that noble Lords will accept that clarification and be content, because I absolutely understood the noble and learned Lords, Lord Mayhew of Twysden and Lord Lyell, who said that we have to deal with this matter. I reassure the Committee that the court in Davis made it clear that this part of the process is not an ancient common law rule. At best, it goes back to about 1990, as, I hope, if one looks at the judgment, the review in the case of Davis on the development of the common law made clear. The general right under common law of a defendant to know the identity of a witness is not being abolished; it is being maintained.