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Criminal Evidence (Witness Anonymity) Bill

On amendment No. 2, I have nothing to add to what the hon. and learned Member for Harborough (Mr. Garnier) just said. However, I have a point to make and a question to ask about amendment No. 1. When we debated amendment No. 35 to clause 3(2) last week it became very clear that that clause was trying to cover too many different possible cases with too few rules. I welcome the fact that the new version of clause 3(2) provides more detailed provisions. I particularly welcome the addition of the obligation to disclose the identity of the proposed anonymous witness to the court. That is an important improvement. I also welcome the fact that the new version pays more attention to the procedure for making those orders. I am still very concerned about the lack of equal treatment between anonymous witnesses proposed by the defence and those proposed by the prosecution. Under the new version of clause 3(2), when the defence applies for a witness anonymity order, it still has to disclose the identity of that witness not only to the court but to the prosecution. That is not the case the other way around. When we debated the matter last week, the argument was made that the prosecution needed to know the identity of the witness in order to fulfil its duties, which were also mentioned by the hon. and learned Member for Harborough, of disclosure to other defendants in multiple defendant cases. The problem with that is that it is precisely in those cases that everyone is agreed that we do not want material that identifies the witness to go to the other defendants as it is usually the criminal associates of the other defendants who cause the trouble and the fear. In fact, the new version of clause 3(2) specifically states that there is no obligation on the defence to disclose to the other defendants material that might tend to identify. The problem is that if there is an obligation on the prosecution to disclose and the prosecution receives information that might tend to identify the witness, the prosecution might find itself obliged under the disclosure rules to disclose that information to the other defendants. The effect of that would be that what the Bill is attempting to ban directly might occur indirectly. I cannot find anything in the Criminal Procedure and Investigations Act 1996 that might prevent that, so there is a serious problem with how the Bill is worded. I still have a more fundamental problem with the imbalance between prosecution and defence. There is still a human rights problem, because article 6.3(d) of the European convention on human rights requires witnesses for the defence to be examined on the same basis as those for the prosecution. It was argued last week that the difference between the two sides is that the prosecution would know the previous convictions of a proposed witness and would put them to the court when the court was deciding whether to make an order. It was said that the same would not apply to the defence because it would not necessarily know the true picture of the defence witness's antecedents, and the Lord Chancellor made the point that people are not often entirely honest about previous convictions. The problem with that is that I am not entirely sure that the prosecution always puts a witness's previous convictions to the court—at least not under the previous, rather informal procedure. Secondly, when the court is faced with a decision about whether to grant an order, it knows that it will not have the same information about a defence witness as it does about a prosecution witness. Even if it does not know that, the court can be reminded by the prosecution that it does not have the same information that is available for a prosecution witness. The court can take that into account when deciding whether to grant an order. In any case, if the defence thinks that it might not get an order because it is not in the same position with regard to a witness's previous convictions, it can supply those previous convictions itself. It is an oddity of the Criminal Records Bureau legislation that people cannot undertake a CRB check on themselves, but that they can get around that by submitting a data protection request to the police national computer. It seems to me that it should be up to the defence to decide whether it wants that to happen. I am still not convinced of the underlying argument, especially as I believe that the proposal for an independent counsel offered a better route. I still think that that would solve more effectively the problems that I have set out. I have to say that I was rather disappointed by the House of Lords decision in respect of the independent counsel issue. The Conservative spokesperson said that he supported the idea—