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Criminal Evidence (Witness Anonymity) Bill

I agree with the remarks of the noble Lord, Lord Thomas of Gresford. The basic sacrosanct principle is not of necessity the question of special counsel or any other special power given to the judge; it is that no judge should be expected to decide on such weighty measures without being thoroughly apprised of the factual matrix upon which he is making his decision. If that can be achieved in a way other than by appointing special counsel, that would be splendid. However, the appointment of special counsel would serve a dual role. One role would be advocatory—in other words, at a preliminary stage in the trial it would be possible to conduct such advocatory measures as are required—and at the same time it would arm the court with powers of an investigatory nature. I am sure that the Government could do worse than to study in detail—I appreciate time is short—Section 115 of the New Zealand Evidence Act 2006, where this is all set out. Much of the Bill comes from that Act and it would have been appropriate for that to have been incorporated as well. In relation to special counsel, we should ask ourselves not whether such an appointment should be exceptional but whether there is any reason why it should not be done in each and every case if the judge is to be apprised of the information which is so vital to the decisions that he has to make under Clauses 4 and 5. Put another way, can you imagine, before the decision in the Queen and Davis last month, any conscientious judge—I have no doubt that every judge is conscientious—looking at the situation and coming to a conclusion without having studied each and every one of those headings seriatim? If the judge has to arrive at some of these decisions—and inevitably it would be the case—to some extent by way of judicial guesswork, that is not good enough. To leave a judge without the wherewithal to obtain this information would be like making a ship without a keel and a bottom. It is essential that that machinery is there at the judge’s discretion and disposal. All we are doing in the first instance is legitimating by way of statute what was illegitimate under common law and had been for the past 15 years or so. We can do that because we are sovereign. The old saying is that you can do anything by an Act of Parliament except make a man a woman or a woman a man, although I am not sure that that stricture applies in all cases nowadays. All we would be doing would be placing on a technical basis what had been unjust previously; we would not be curing the injustice. The injustice is cured not by the grist of the provisions in the Bill but by the willingness to give the judge the necessary tools for the proper administration of justice in such cases.