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Criminal Evidence (Witness Anonymity) Bill

I fully accept what the hon. Member for Hendon (Mr. Dismore) has said, and that overall the Bill complies with human rights law. However, that does not mean that there are no difficulties—not just practical ones but human rights difficulties—with some of its provisions, and I shall return to that. As we are here because of the Davis case, it is important to understand what the court said, and more importantly, did not say. It did not say that anonymous witnesses should never be contemplated, or that anonymity always means that the trial is unfair, although some people at the criminal defence Bar seem to believe that that is so. They think that credibility is always a potential issue, so there is always a problem of that sort. However, the court did not believe that, and I do not believe it. There is a balance to be struck between two serious threats to the rule of law. First, we have heard a great deal about the intimidation of witnesses—and I do not want to repeat earlier remarks—which goes to the heart of the judicial system itself. If we cannot get people into court to decide a matter, there is no point having a law in the first place. Therefore, it is a fundamental question about the rule of law. Secondly, on the other hand, unfair trials are themselves a threat to the rule of law. If trials simply become mechanisms for locking up people whom the state wants to lock up, we cease to have law even if we might have some order. There has been discussion about whether the problem of the intimidation of witnesses has become worse, and we have discussed the Kray twins, the Richardsons and so on. In other discussions, reference was made to the fact that the problem of witness intimidation goes back to ancient times. It is very difficult to judge whether the problem is getting worse, but it is likely to be growing where gang culture is growing. Whether growing or not, intimidation is a sufficiently serious problem, because it strikes at the heart of the system, for us to take it very seriously indeed. I am with those who say that witness protection is not sufficient, because it is not enough to say to a potential witness, ““You have to completely change your entire life—to give up your entire life—just because of this one case.”” Not many people are going to take up that offer, so we must have measures that fall short of full witness protection. Some commentators have said that the issue is not one of balance—that we cannot balance the right to a fair trial against anything else, because it is an absolute right. Even David Pannick, QC, said so in The Times last week, but I do not think that that is correct. The human right to a fair trial is absolute, but whether that right has been violated in a particular case is a matter of degree. Going beyond that and to echo what has already been said, human rights legislation and the human rights system set a limit on what can be done, but that before we reach it, there is a balance to be struck. The Pannick view is only correct if anonymity always and automatically violates human rights. I do not think that that is correct. In the Davis case, the House of Lords did not lay down a bright-line test or say, ““If X, Y and Z happened, there must have been a violation of the human rights standard.”” However, the House of Lords did say—this is the hard case that we all must consider—that in a case in which anonymous witness evidence was the sole or decisive evidence, and in which witness credibility is a real issue, not an issue that the lawyers have made up, it is very unlikely that the granting of a witness anonymity order will pass muster. That is because if credibility is an issue, it strikes at the heart of the trial. It is almost impossible to cross-examine a witness about credibility if one does not know who they are, or one does not know about their tendency to lie or to exaggerate, or about any animus against the defendant. All those things depend ultimately on knowing who the witness is. The House of Lords was clear on another matter, too, and we will have to discuss it in detail in Committee of the whole House. The Lords said that if we are to have anonymous witness orders in some circumstances, we must have a clear procedure—a much clearer procedure than that which has grown up in the courts, in the prosecution service and in the police up to now. As the hon. Member for Hendon (Mr. Dismore) said, it cannot be right for the police to offer anonymity as a matter of course in certain cases. It becomes an issue in cases in which a threatening atmosphere has developed on an estate, but as he said, the police offering anonymity can make matters worse because it fuels the existing fear. The idea that anonymity orders should be exceptional is an important one, and I am still anxious because the idea is not in the Bill.