---

Criminal Evidence (Witness Anonymity) Bill

moved Amendment No. 5: 5: Clause 4, page 3, line 2, after ““measures”” insert ““, whether on their own or in combination with the measures specified in other witness anonymity orders made or applied for in those proceedings,”” The noble Viscount said: I shall speak also to Amendments Nos. 8 and 12, which deal with the same mischief, a lacuna in the Bill, which is not at all surprising in light of the speed with which it has had to be drafted. In the Davis case, there were to be three witnesses, each of whom said that they had seen the accused shoot. A single application was made for anonymity in respect of all three witnesses and it was granted. When your Lordships’ Appellate Committee was considering the matter, it looked at the cumulative effect of anonymity given to the three witnesses who comprised the totality of the evidence against the accused. Not surprisingly, it came to the conclusion that, if the totality of the evidence was to be given by anonymous witnesses, of whom one had no opportunity to find out why they might choose to implicate the defendant, that inevitably would lead to an unfair trial. I am dealing with the situation where there are two or three witnesses but where separate anonymity orders have been made. In a moment, I shall come to how that could easily happen without any evil intent on the part of the prosecution. Of course, there could also be prosecutions that did that deliberately. We are concerned with several witnesses testifying under anonymity but several orders in respect of those witnesses. Under Clause 5(2), one has to decide whether considerations (a) to (c) are met in an application for a witness anonymity order. The consideration in (2)(c) is, "““whether evidence given by the witness””—" for example, the witness in respect of whom anonymity is applied for— "““might be the sole or decisive evidence implicating the defendant””." If in the case of Davis there had been three separate orders, the evidence of any one witness against whom one was objecting would not be the sole or decisive evidence implicating the defendant. The same factors apply in Clause 4(4). One has to decide whether taking the measures contained in the order will be consistent with a fair trial. One has the same consideration with Amendment No. 12, where the question is whether, as a result of the order, the defendant did not receive a fair trial. I am saying, as all my amendments say, that one has to look at the effect of the orders cumulatively and not at the orders individually. To give an example of how it might arise that there was more than one order, let us assume that at the commencement of the prosecution there are only two relevant witnesses who can identify the defendant. One of those goes to the police and says, ““I’m scared out of my mind about this. Can you do something for me?””. The police say, ““Yes, we’ll apply for a witness anonymity order””. The other person has never heard of witness anonymity orders or protection and does not raise the matter at that stage. A witness anonymity order is made in relation to witness A and, when witness B hears about that, he suddenly realises that protection could be given to him. He is equally and genuinely scared, so he asks for protection and another application is made. Another likely scenario is that, as one gets closer to trial, suddenly a third witness is found. No one may have known about him, or he may have been known but, as he had emigrated to South America, it was thought highly unlikely that he would reappear. However, he reappears and is asked, ““Will you give evidence?””. He says, ““I will only give evidence if I’m protected””. Again, an anonymity order is applied for and one is made. In this case, there are three orders, but my example is just as good with only two orders. Anyone objecting to those orders has to look at one order and object to it, when in fact what he is complaining about is the cumulative effect of the three orders. My amendment simply says that, in deciding these questions, one should look at the anonymity orders in the round and decide whether a trial would be unfair. I venture to hope that the noble Lord will find that amendment wholly unobjectionable and perhaps even think that it is rather useful that I have thought of it. I beg to move.