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Criminal Evidence (Witness Anonymity) Bill

I rise slightly unexpectedly, as the hon. and learned Member for Medway (Mr. Marshall-Andrews) was getting to his feet. I do apologise; my notes were down below, but I now have them in my hand. Clearly, the Bill is important; it has important implications for the criminal law. I have already expressed this view, but truncating the debate into one day is very undesirable. I agree entirely with what the hon. Member for Cambridge (David Howarth) said: a fundamental principle of the criminal law is that, in general, a defendant should be able to know the identity of the witness against him. That is because, as those of us who practise in the criminal courts well recognise, when credibility is at issue it is extraordinarily difficult to challenge the Crown's case unless one knows the identity of the witness. The allegation may be, for example, that the witness has previous convictions, that he has a private grudge against the defendant, that he has a propensity to lie, or that he was somewhere else, as happened in the case of Tadic. One cannot put those suggestions unless one knows who the person is. That is why the courts held for a very long time that the principle of anonymity was wrong; why, no doubt, the American constitution makes that provision in its sixth amendment, as my hon. Friend the Member for Arundel and South Downs (Nick Herbert) reminded us; why article 6(3)(d) of the European convention on human rights was couched in the terms that it was; and why, when Lord Diplock and Lord Gardiner considered the question of anonymity in the context of Northern Ireland in the 1970s, at a time when there was very considerable violence, they came to the conclusion that it was impossible to abrogate the rule and yet do justice to the defendant. I have long held the view, although it is not entirely popular, that it is much better that the guilty are not convicted than that the innocent should be convicted. Ultimately one has to take a stand, and that is where I stand. I am perfectly willing to accept, however, that there are a small number of cases in which the intimidation of witnesses is such that it is right and proper to have an anonymity order. It is true that, in view of the Davis case, we need to put that on a statutory basis, but we need to define in our own minds and in statute the principles to which we should adhere. Above all, we must place it in statute that the fairness of the trial is the paramount consideration. There is another thing to keep in mind, because there is some misunderstanding about the judgment in Davis. I believe that most protective measures taken where the issue is one of credibility will fail the test of fairness and prove to be incompatible with European jurisprudence. I well understand that the criteria will be satisfied where, for example, one is dealing with police officers who are undercover agents or with an old lady whose credibility is not an issue, merely her powers of recollection. However, protective measures in such cases will continue to be unsafe, broadly speaking, unless—this is an important proviso—the defendant himself has been responsible for the intimidation. In that case, as the hon. Member for Hendon (Mr. Dismore) rightly said, he is in no position to complain. We should set out some criteria in the Bill. I will deal with this very briefly, because I know that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway want to speak. There are some things that should appear on the face of the statute. The order should be confined to exceptional cases. We need to define the test of sureness for when the court has to decide whether the conditions have been made out. There must be a statement that it is a presumption that the identity of the witness before the court is known to the defendant.