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Criminal Evidence (Witness Anonymity) Bill

I am grateful to the noble Lord, Lord Kingsland, for tabling the amendments. Clearly, this is a very important matter to which the Joint Committee invited your Lordships' House to give attention. Let me say at once that I very much understand the concerns expressed by noble Lords and the fear that anonymity has been granted as a matter of course and that the power has been overused. My noble and learned friend the Attorney-General has already made clear that one of the advantages of having to deal with the consequences of the Judicial Committee's judgment and having to consider emergency legislation, guidance and rules is that it enables us to ensure, as far as possible, that anonymity orders are used in the proper way. I say to my noble friend Lady Mallalieu that, although she is disappointed by the response of the Government to the amendments, this debate is extremely valuable in feeding into our understanding, in the drafting of the substantive Bill and in the various elements of guidance that will need to be given to those who will have to operate the system. I hope that she will take that assurance that we are listening very carefully to what is being said in your Lordships' House on these important matters. Our discussion on Clause 5 very much relates to Clause 4 and the conditions in paragraphs (a) to (c) that have to be met, but we believe that that ought to give a great deal of assurance to noble Lords on these matters. Amendment No. 7E, in the name of the noble Lord, Lord Kingsland, would require the court to make an order only in exceptional cases. The conditions in Clause 4 already make it clear that the court must be satisfied that the order is necessary, consistent with a fair trial and in the interests of justice. In addition, Clause 5(2)(a) already requires the court to have regard to the general right of a defendant to know the witness’s identity. As I have suggested, that should ensure that courts should not turn lightly to anonymous evidence, but should make an order only where it is necessary for justice to be done. Our worry is that a requirement that anonymous evidence be used in exceptional cases, in addition to the existing safeguards, could set the bar so high that it might excessively restrict the availability of the orders. The noble Lord, Lord Kingsland, himself has suggested that this would undermine the ability of the police to use undercover officers to conduct test purchases of drugs. I suggest that the admission of anonymous evidence is not exceptional in this narrow category of cases. Amendment No. 7E would also require the court to have regard to the gravity of the offence. Surely the noble Lord, Lord Kingsland, agrees that the important question is whether the witness’s anonymity is crucial to ensuring that justice is done in each case. Again, I use the example of test purchases of drugs by undercover police officers. These cases are not in the category of the most serious and violent of offences, but I am not convinced that the Committee would want to undermine police efforts in this area. The noble Lord referred to New Zealand legislation, and suggested that I might say that, although the New Zealand legislation has been a very helpful framework for us to look at in drafting our own Bill, circumstances in New Zealand are different. That is absolutely right. One difference is that, in New Zealand, legislation deals separately with test purchase cases. Sections 108 and 109 of the New Zealand Evidence Act 2006, with which I am sure all noble Lords are familiar, provides for a special procedure where an undercover police officer is a witness. In that circumstance, it does not refer to gravity or exceptional circumstances. Clearly, our Bill is constructed differently. It covers test purchase cases as well as those with civilian witnesses. Given the way in which it is constructed, it would be inappropriate to include exceptional circumstances and the gravity of the offence as considerations. Before the Judicial Committee’s judgment, the common law power applied to all offences equally. We will consider this matter further in the coming months, but I hope noble Lords will accept that we would have real problems with the way in which the noble Lord has posed his amendments today. On Amendment No. 8A, I hope that I can give the noble Lord, Lord Kingsland, the assurance that he requires. A very important amendment to the Bill was made in the other place to include a requirement for the court to consider whether the evidence to be given by an anonymous witness might be the sole or decisive evidence in the case. This test invites the court to consider what other evidence is available to the prosecution. As I said, it was a most important amendment.