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Criminal Evidence (Witness Anonymity) Bill

moved Amendment No. 1: 1: Clause 2, page 2, line 13, at end insert— ““( ) the legal representatives;”” The noble Baroness said: In moving Amendment No. 1, I hope to continue the spirit of comity that was initiated under the first amendment. Clause 2(4) caused a considerable amount of alarm among practitioners at the criminal Bar and was the basis of part of the briefing from the Bar Council. I am not alone in reading the provisions in this way, as I learnt from a letter, of which I received a copy this morning, sent yesterday by my noble and learned friend this morning to the noble Lord, Lord Kingsland. The reality is that we are both trying to achieve the same thing, but I am not sure that the present wording of this clause does that. Under Clause 2(4) the court cannot order a witness to be screened so that he or she cannot be seen by, "““the judge or other members of the court (if any)””—" who are presumably magistrates— "““the jury (if there is one); or … any interpreter or other person appointed by the court to assist the witness””." The clause sets out similar provisions for modulation of the voice so that it cannot be identified. My amendment seeks to add ““the legal representatives””, whether barristers or solicitors, to that list as the clause leaves open the possibility that the court could order that a witness is screened and that his or her voice is disguised from prosecution and defence lawyers. The Explanatory Notes confirm that interpretation and make it clear that—quite deliberately it seems; and certainly the letter confirms it—legal representatives have been excluded. I come in a moment to the explanation for that by the Government. I contend that it is wrong if, in addition to anonymity so that a defence counsel does not know who he or she is cross-examining, he is also unable, because of an order of the court, to assess the demeanour of the witness as he gives his evidence. He is therefore in a less advantageous position than the judge or the jury. He cannot assess gestures, laughing, grinning, hesitancy, plain lying, arrogance or defensiveness—all matters which counsel need to know to cross-examine effectively, and, particularly, are matters on which he may need to comment to the jury at the end of the trial. Counsel may take the view, as defence counsel did in the case of Davis, that he should not be put into a position where he is able to see material that his client cannot. Counsel in that case took the view that he did not wish to be in that position and therefore did not wish to see the witness, and prosecuting counsel felt that if defence counsel was not doing it neither should he. Obviously circumstances vary from case to case. I am aware that many counsel take a different view. They feel that if their client consents, it is their duty to use all available means and opportunity to see and hear the witness without screening and without distortion of voice—the better to cross examine. As I understand the noble Baroness’s letter, it is her intention that where an anonymity order is made, counsel should still be free to make the decision whether they wish to see and hear the witness. We are both in agreement about that. However, the way the clause is currently worded means that it is open—academically perhaps—for a court to make an order excluding them. It may be that my present amendment is not quite as it should be. Perhaps if it simply read ““legal representatives unless they wished to do so”” could not be ordered to be screened. Both I and those from the Bar Council who looked at the provision took alarm because it appeared that defence counsel and, indeed, therefore prosecuting counsel might be excluded from performing an important part of their job. I am sure that is not the Government’s intention. I very much hope that the Minister will feel that an amendment like the one I have tabled is helpful. I beg to move.