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Criminal Evidence (Witness Anonymity) Bill

I invite my right hon. and learned Friend to make those points in greater detail during the Committee stage—not least so that my hon. and learned Friend the Member for Harborough (Mr. Garnier) can answer them. I am afraid that he has lost me. I turn now to the weight of the provisions in the Bill, and the considerations against which the court must judge the acceptability of anonymous evidence. The explanatory notes concede that the Bill's statutory framework draws on the model provided by New Zealand's Evidence Act 2006. However, there are a number of significant omissions from the conditions that that legislation set out. The Government have moved already to correct one. Government amendment No. 42 adds a consideration that the court must have regard to whether the evidence from the anonymous witness might be the ““sole or decisive”” evidence. We pressed for that inclusion: we welcome it and are grateful for the Government's concessions. That leaves two considerations that are present in the New Zealand legislation but absent from the Bill—first, that the court should have regard to the gravity of the offence and, secondly, that it should have regard to the principle that witness anonymity orders are justified only in exceptional circumstances. It is important for the House to know why the Government have excluded those tests. The Law Society has urged us"““to ensure that the legislation is robust enough to prevent witness anonymity becoming a routine request that is made in ordinary cases without very good reason. We are very concerned to ensure that these orders will only be used in the most exceptional of cases.””" That is precisely the wording used in the New Zealand legislation. Similarly, the chairman of the Bar Council, Tim Dutton, has agreed that allowances must be made where witnesses are in genuine fear for their lives, but warned:"““We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall...that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances””." That shows that the Bar Council supports the provisions, but only in ““exceptional circumstances””. The Justice Secretary quoted the article by Assistant Commissioner John Yates in The Daily Telegraph of 21 June, in which he called for emergency legislation. But Assistant Commissioner Yates also said that special measures to allow witness anonymity"““should be confined only to the most serious cases.””" We have been told that 580 cases will be adversely affected if we do not continue to allow anonymous evidence, but the Government have confirmed now that only 50 cases involve members of the public as witnesses. Half of the 580 cases involve test purchasers of illicit substances, with only a minority of the 580 representing the most acute cases in terms of timing and risk. The question is, therefore, how many of the cases will, and should, be saved by the legislation? Are we being asked to legislate to secure witness anonymity in the most serious cases, or more widely than that? Clearly, it matters whether the legislation is designed to allow for anonymous evidence in drug cases, where the gravity of the offence is relatively less serious, or whether it should apply only in much more serious cases involving, for instance, terrorism, murder and gang violence, where people's lives may be at stake. It is also important that we understand the scale of witness intimidation and whether it is a growing trend. Such intimidation is, after all, not new. Nor has the criminal justice system in this country had problems securing very high-profile convictions in the past without resorting to witness anonymity provisions. As the Law Society has observed,"““in the past convictions have been achieved without this legislation in notorious cases””," for example, the Kray and Richardson cases. Furthermore, Members of this House on both sides will be only too aware of the scale of witness intimidation confronting police and prosecutors in Northern Ireland during the troubles—a period in which witness anonymity was explicitly rejected as a solution to the problem of intimidation. No one should doubt the effect of witness intimidation in serious criminal cases involving gangs and organised crime. We all want to see violent criminals successfully prosecuted in the interests of public safety, and few want to outlaw anonymity procedures entirely. Certainly, both the Bar Council and the Law Society recognise its importance. Nor do we question the many practical difficulties that the police have in encouraging witnesses—many of them young and vulnerable—to co-operate in giving evidence at a trial, but the Law Society has also noted"““concern among prosecutors that police officers are too ready to make promises of anonymity pre-trial in circumstances where it is not, or will not be, appropriate.””" Today, the Director of Public Prosecutions, I think in evidence to the Joint Committee on Human Rights chaired by the hon. Member for Hendon (Mr. Dismore), has said that evidence that witness intimidation is growing is ““anecdotal””. We need a proper assessment of the growth and nature of witness intimidation, and if that is not possible now, the Government should produce it ahead of the law reform, victims and witnesses Bill. We need to ensure that the use of anonymous evidence is proportionate to that assessed threat. It is common ground that alternatives to witness anonymity should be preferred. The question is how effective they are. In its briefing on the Bill, Justice emphasises the importance of witness protection. It highlights the fact that in the United States, the Marshal Service boasts that it has never lost a witness under its protection.