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Criminal Evidence (Witness Anonymity) Bill

The Committee will be grateful to the noble Viscount for his amendments, which are concerned with what should happen in a case where more than one witness anonymity order is made or applied for. His amendments provide for the court to consider whether the measures in the orders taken together would be consistent with the defendants receiving a fair trial, for the Court of Appeal to do the same when looking back at the effect of a pre-commencement order and for the trial judge, when deciding whether to make more than one order in a case, to consider whether the evidence of all the witnesses covered by them would be sole or decisive. I say to him, with the greatest respect, that we believe that the Bill as it stands has sufficient safeguards to deal with the situation that he so articulately put to us a few minutes ago and that therefore his amendment is unnecessary. The Bill provides that on each application for a witness anonymity order the conditions in Clause 4 should be met and that, in deciding that, the court must take into account the considerations in Clause 5, together with any other factor that it considers relevant. If more than one application is made in a particular case, the court will have to take that fact into account when making its decision on the conditions in the application before it, particularly condition B—whether the measures would be consistent with the defendant receiving a fair trial—and condition C, which is that it is necessary in the interests of justice, as well as a relevant factor under Clause 5(1)(b). All those provisions represent safeguards against the judge taking a view merely because the orders were made at separate times during the course of the hearing. He has to look at the overall position on each occasion. A further safeguard is provided by the court’s powers in Clause 6 to discharge, vary or further vary any witness anonymity order made on its own initiative or on a party’s application. That means that the court could reassess and vary, if necessary, the original order if a second or further application were to be made. We believe that the Court of Appeal or trial court would take the same approach in reviewing pre-commencement anonymity orders, as it is required to decide whether the order could be made under the provisions of the Act. The biggest safeguard of all is that the net result of the court’s deliberations must be compatible with the defendant’s right to a fair trial, which is guaranteed by Article 6 of the convention. The judge has an overriding obligation to ensure that the defendant has a fair trial. If he does not have a fair trial, any conviction is unsafe, which is the test that the Court of Appeal sets itself in these cases. The judge would be obliged at all times to see whether the defendant was getting a fair trial. One of the factors of which he would take notice is the number of anonymity orders that had been allowed in a particular trial. If he has already made one decision, he can always vary it using his statutory powers under Clause 6. I mean it when I say that I am grateful to the noble Viscount, who is trying to help the Committee, but we are not sure that the proposed words would make the task of the trial judge any easier. We think that they are unnecessary and I hope that the noble Viscount will consider withdrawing his amendment.