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Criminal Evidence (Witness Anonymity) Bill

If the principle that we discussed in debating the amendment of the noble and learned Lord, Lord Lyell, is accepted by the Government—namely, that there should be open trial—the issue at the heart of all these amendments concerning getting a proper framework is the validation procedure referred to by the noble and learned Lords in the case of Davis. Is it enough for a witness to come forward and say, ““I am frightened””, and for the judge, perhaps not knowing his identity, to simply accept that, possibly on the basis of something that a police officer says about the circumstances in the area where the witness lives? Is that to be what the Bill is about or is it to be about rather more than that? Is it to be about an exception to the principle—the validation of the fears of the witness and a decision as to the circumstances that he puts forward for his fears, which the judge can then objectively assess? As I said at Second Reading, this problem has arisen because in small stages we had reached a point where, in effect, anonymity was being offered to witnesses by the police. I know that the noble and learned Baroness, Lady Scotland, has disputed that in her letter but—at times I try to speak from experience—it appears to me that the police do offer anonymity. Your Lordships will recall that I pointed out a headline that appeared in the Guardian a week last Saturday saying that the police guaranteed anonymity to a witness in relation to a specific case currently under investigation. We are told today that rules will be made about the validation procedure. We look forward to seeing those rules and to finding out how a fair validation procedure will develop. In an amendment, I objected to subsection (2) and simply inserted in its place: "““The application shall be heard in Chambers””." One assumes that, in any event, any such application will be heard in chambers, in camera or in some way, but that clearly has to be one of the procedural rules that are put forward. Because of that, I have no great reason to support my own amendment, as it will be covered by one of the rules. Then we have to consider the fairness as between prosecution and defence, to which the noble Lord, Lord Kingsland, referred. So far as I can see—and we have now been considering this matter in some depth and have had discussions about it over two or three weeks—the only way in which the respective interests of prosecution and defence can be properly supported is by the appointment of independent counsel, who can, as the noble Lord, Lord Kingsland, said, take a virtually inquisitorial role regarding the claims of the witness. They should not go through on the nod without any admissible evidence but simply on hearsay evidence or matters of that sort. The breach of principle is so serious a matter and so exceptional—the word used by the noble and learned Lords—that they should be properly investigated. They are to be investigated by proper procedures, which the rules that we are promised will set out, and we hope that they will be investigated by someone independent of both prosecutor and defence. The noble Lord will undoubtedly say—it is what his amendment says—that the prosecution has to know in order to instruct the police. That is not necessary. I am grateful to the noble Lord for supporting subsection (4) of the new clause proposed in my Amendment No. 9. It provides that police officers unconnected with the trial should be instructed by independent counsel to carry out investigation. Either we treat this as a serious, exceptional matter, contrary to principle, or we will return to the practice, which noble and learned Lords condemned in Davis as being contrary to the European convention, of allowing simple pieces of paper and unsubstantiated claims to result in defence counsel being completely unable to cross-examine witnesses because they do not know who they are, where they come from, what connections they have and so forth. All the amendments are interrelated in that way. At the core of it all is the validation procedure for a claim that a witness is in fear and requires anonymity and special measures. To that degree, I support the amendment.