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Criminal Evidence (Witness Anonymity) Bill

Amendment No. 35 relates to clause 3(2), but many other amendments and new clauses tabled by Members on both sides of the House deal with the important issue of the independent counsel, and I expect the debate to concentrate more on that than on amendment No. 35. The group also includes amendments concerning procedure requirements, including Government amendment No. 41, which I very much welcome. Clause 3(2) builds on the provision earlier in the Bill that anonymous witness orders may be sought not just by the prosecution but by the defence. It goes on to say, however, that if the defence obtain an order, the prosecutor will still get to know the identity of the witness. However, it is a fundamental aspect of the Bill that if the prosecution obtains an anonymity order for one of its witnesses, the defence team does not learn the identity of the witness. This is a bad idea for a reason that goes to the heart of the problem with anonymous witnesses. If one knows the identity of a witness, one can research their background and record, and with that information one can conduct a far more effective cross-examination than one can without it. The prosecution will, therefore, be in a far better position if the defence obtains an anonymous witness order than the defence will be in the opposite circumstances. The defence cannot know the identity of the anonymous witness, so it cannot conduct effective research into that witness. It will, therefore, be in an unequal and unfair position compared with the prosecution. The amendment therefore seeks simply to strike out subsection (2). There is also a fundamental human rights problem, which I do not think the Government have properly addressed so far—and I wonder whether it has been addressed by the Joint Committee on Human Rights. Article 6(3)(d) of the European convention on human rights says that defendants are entitled to examine witnesses on their"““behalf under the same conditions as witnesses against””" them. It is clear to me that subsection (2) violates that rule. What will happen in a case where both the defence and the prosecution obtain witness anonymity orders? It will not be true that the two sides are operating under the same conditions; they will be operating under fundamentally different conditions. The Government have said that this is not a problem because the prosecution will not tell the police the identity of the witness. It is technically true that the police are not the prosecution's client, but how will the prosecution investigate the background of an anonymous defence witness, whose name they will often know, other than through the police? In the television programmes where lawyers go gallivanting around the countryside doing their own investigations lawyers might look into the background of witnesses themselves, but in the real world the police carry out the investigations. Furthermore, simply saying that the information will not go to the police, which I do not think is true, does not meet the point about fairness and unequal treatment; in fact, it reinforces it. The obvious way out of the clause 3(2) problem is the independent counsel—an institution that could be used not just in the ordinary case of a prosecution anonymous witness, but in the opposite case of a defence anonymous witness. That way out of the problem is much better than the Government's.