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Criminal Evidence (Witness Anonymity) Bill

I certainly accept that the amendments spoken to by the noble Lords, Lord Thomas and Lord Kingsland, are meant to inform and be helpful. Let me say at once that although the Bill as it presently stands meets the points perfectly clearly, I understand the safeguards that noble Lords are seeking. Amendment No. 4E, as the noble Lord, Lord Kingsland, suggested, would change the first limb of condition A for granting a witness anonymity order from protecting the safety of the witness or other person to protecting a witness or another person from ““death or serious injury””. The main impact of the change would be to require the court to decide if the type of injury from which the witness might be at risk was serious enough to justify granting an order, whereas ““safety”” is broad enough to cover any form of risk of harm to the safety of the witness. I understand the point that the noble Lord, Lord Kingsland, raised about his fear of definitions that may be too vague or provide a hurdle that is too low. I would say to him that witnesses should not be exposed to the risk of any form of harm. Whether the risk of a particular level of harm to which the witness is exposed in any particular case is sufficient to compromise their safety, and thus justify the making of an order, is surely a matter for the court when it addresses the critical three conditions set out in this clause. I fully understand the risk of frivolous fears or the lack of objectivity that might be made in such a judgment. The critical importance of Clause 4(6) in relation to condition A, as the noble Lord, Lord Thomas, said, is that the court, "““must have regard (in particular) to any reasonable fear on the part of the witness””." The term ““reasonable”” gives the comfort that noble Lords require. Amendment No. 4F adds ““serious financial loss”” to the reference to serious damage to property in condition A, and Amendment No. 7C makes a similar change to the reference in subsection (6) to the witness’s fear that there would be serious damage to property. I am not sure that there are ways in which a witness could be put in fear of financial loss that would not involve serious damage to property. If there are, we certainly have not thought it necessary to include them in the current Bill. The reference in condition A to ““serious damage to property”” is intended to capture physical damage to physical property; for example, the fire bombing of a witness’s house or car. I can see there may be an argument for extending this to cover ““serious financial loss””, but the issue is not straightforward. There is a balance to be struck, and it is noticeable that the JCHR in its report flagged up questions as to whether the property consideration should be in the Bill at all. Perhaps I can invite the noble Lord, Lord Kingsland, to look again at the property limb of condition A before legislating afresh in the fourth Session. The amendment in the name of the noble Lord, Lord Thomas of Gresford, would leave out subsection (6) of Clause 4, which sets out matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purpose in subsection (3)(a). As we have already discussed, that purpose is the necessity, "““to protect the safety of the witness or another person or to prevent any serious damage to property””." Amendment No. 6 adds well founded fear of death, serious injury or serious damage to property as considerations to which the court is to have regard in deciding whether condition C—whether the witness would not testify—is met. As the noble Lord, Lord Thomas, has observed, we have structured the Bill rather differently. Condition A requires the court to consider whether it is necessary to make the order to protect the safety of the witness. We believe that that clearly requires the court to draw an objective conclusion about the safety of the witness. It is clear that in order to reach such a decision the judge will need to access information about the safety of the witness. As I have said, Clause 4(6) provides that, in reaching a decision, the judge must have regard to any reasonable fear on the part of the witness relating to his safety. This simply means that the court must take account of information from the witness relating to his fear that he would suffer death or injury if his identity were revealed. We have used the term ““reasonable fear”” to allow the court to disregard irrational fear expressed by the witness. It will of course be for the court to make a judgment and, if it is satisfied that the fear expressed by the witness is reasonable, that will be taken into account by the judge in deciding whether it is necessary to protect the witness or another person or to prevent serious damage to property. Clause 4(6) expressly relates to Clause 4(3)(a) and not to Clause 5 and condition C. The reason is that in Clause 4(6) we are talking about the witness’s fear of death or injury or of serious damage to property if his identity is revealed and not about his fear of giving evidence per se. Therefore, we think that the Bill’s current construct is satisfactory. It is also important to recognise that condition A has to be taken in conjunction with Clause 4(6) and the fact that the court has to have regard to any reasonable fear on the part of the witness.