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Criminal Evidence (Witness Anonymity) Bill

This has been an interesting discussion. I say to my noble friend that I listened with great care to her powerful speech at Second Reading when she outlined her determination to stand up for the right to a fair trial. I echo that, which is why the various safeguards are built into the Bill as it is constituted. I of course understand the noble Baroness’s concerns on the position of defence counsel. In answer, I refer to the Court of Appeal decision in the case of Davis, where it had the benefit of written submissions from the Bar Council. As a starting point, the Court of Appeal considered that, in certain circumstances, defence counsel may find himself or herself with a conflict of duty where witness anonymity orders are made. They are bound by the order not to disclose the identity of the witness to anybody, in particular to the defendant. On the other hand, they are bound by their professional duty to provide relevant information to their clients. The court took the view that defence counsel may see and hear an anonymous witness’s real appearance and voice but would be bound by the anonymity ruling and would, indeed, be in contempt of court if they disobeyed it. If the defendant instructs counsel that counsel should inform him of the appearance of the witness or if counsel believes that the professional relationship with the client may be damaged if he were unable to communicate information that his client wanted from him, then it is open to the court to order that defence counsel should be screened from the witness. The Court of Appeal said that, in such an event, counsel for the Crown should be in the same position as counsel for the defendant. The Appellate Committee of your Lordships’ House in Davis did not address that point. The decision not to make provision for this in the Bill is deliberate. In some cases, defence counsel may decide after taking instructions that they should also be screened from the witness, so that they will be in the same position as the defendant. In such a case, the court will order that prosecuting counsel will also be screened from the witness. It would be for defence counsel to decide on a case-by-case basis, after taking instructions, whether they will volunteer to be prevented from seeing the witness. The Bill does not alter this practice and allows for the flexibility required to continue. However, there is nothing to prevent the court from allowing a barrister to see an anonymous witness in any case. It is for the court to decide on a case-by-case basis. The Court of Appeal on Davis commented on these matters at paragraph 72: "““We cannot legislate in advance for all the possible case specific problems which may arise””." Anonymity orders may give rise to myriad different situations, including where the parties’ legal representatives are concerned. That is why the Bill allows for flexibility and discretion. I take my noble friend’s point in seeking to ensure that the rights of defendants are appropriately dealt with. However, from the Court of Appeal’s view on this, there is a case for the flexibility that the Bill allows.