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Criminal Evidence (Witness Anonymity) Bill

I congratulate my noble friend on his ingenuity in bringing this matter to the Committee’s attention. In addition to the wise words he has quoted from esteemed and former colleagues, we have had the enjoyment of two Oral Questions on this matter in the past few months, when I, as a humble justice Minister, also added my name to the review to which my noble friend has referred. When the substantive Bill is brought before your Lordships’ House in the next Session, my noble friend will undoubtedly wish to take part in those discussions. One has to draw a distinction between the legislation to which my noble friend refers and the legislation we are discussing today, although I have no complaint whatever about him bringing this amendment before us. He is dealing with a situation where a witness in a rape case who is subject to a witness anonymity order granted under the Bill gives false evidence and the defendant is then convicted. Where the Criminal Cases Review Commission subsequently refers the case to the Court of Appeal and the court quashes the conviction on the grounds that the witness’s evidence is false, the amendment would enable the anonymity to be lifted. I am well aware of the case that my noble friend raises, and I will come back to it in a minute. His amendment would have a similar effect, in relation to the witness anonymity scheme in the Bill, to the possible amendments we are considering to the complainant anonymity scheme in the sexual offences cases. However, this Bill has to do with witness anonymity from the defendant, not complainant anonymity in the form of reporting restrictions, which is a case in relation to the Sexual Offences (Amendment) Act that he has referred to. The present Bill deals with witness anonymity in the sense of withholding a witness’s identity from the defendant. I am aware of, and have debated with my noble friend, the issue of complainant anonymity in sexual offences cases. It is governed by Section 1 of the Sexual Offences (Amendment) Act 1992, which does not permit the witness’s identity to be kept from the defendant. Essentially it is a form of reporting restriction, with the aim of preventing the reporting of the witness’s identity to the wider public. If, as my noble friend suggests, a witness granted anonymity from the defendant perjures himself or herself at the trial and is subsequently prosecuted for perjury arising out of that testimony, what is the situation vis-à-vis the witness anonymity order? That is where Clause 6, to which my noble friend has already referred, comes in; it enables a witness anonymity order under the Bill to be discharged by the court that made the order, either on the application of any party to the proceedings or by the court on its own initiative. That power of variation and discharge continues indefinitely, including after the trial has ended. In the situation envisaged by the amendment where a conviction was quashed by the Court of Appeal, Clause 6 would not grant the Court of Appeal a specific power to discharge the order, but it could be discharged on application to the Crown Court. In that sense, my noble friend’s amendment is unnecessary. Under the Bill, the court that makes a witness anonymity order already has a discretion to vary or discharge it, provided that there has been a change of circumstances since the order was granted. A charge of perjury would constitute such a change of circumstances. Should proceedings for perjury in the situation envisaged by my noble friend inevitably mean that the court would want to discharge any witness anonymity order that may have been made, there is a strong argument that it should. An anonymous witness subsequently charged with perjury becomes a defendant, and there is a universal presumption against defendant anonymity. I know that my noble friend is anxious that we report on the review. I understand that. All I can say at the moment is that we are still actively considering the issue. I cannot tell him when the review will be concluded although, in the light of what he has said today, I will redouble efforts to get him some more information about that. He holds the threat over me that if we do not make progress he will bring this back when the Bill comes through in the next Session. We are attempting to strike the right balance between protecting the public from false allegations and ensuring that legitimate complainants are not discouraged from coming forward. We want to ensure that genuine complainants would not be put off by the fear, perhaps unfounded, that their identity would become known, but we are considering the issue in relation to the case that my noble friend has raised. We have no plans to lift anonymity for complainants in sexual offence cases; indeed, I readily accept that my noble friend did not argue that point at all, and he presented his case in a very measured way. I hope he will accept from me that while I do not think his amendment is necessary in this Bill, the matter he has raised is being taken seriously by the Government.