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Criminal Evidence (Witness Anonymity) Bill

That is a problem, but it is one that arises in the ordinary case in any event, because in most cases the police are not the primary investigatory tool of the defence. One hopes in a perfect world that they might be, but, as I understand it, that is not how things actually work. The problem can be overcome by having one or two independent counsel, depending on whether both sides obtain witness anonymity orders, and for each side to be treated exactly the same. One cannot, however, overcome the problem that the prosecution has at its disposal the forces of the state. It is one of the fundamental problems with criminal prosecution that the state always—or nearly always—has more resources than the defence. That is one of the reasons I agree with the right hon. and learned Gentleman's view about the balance between convicting the innocent and acquitting the guilty. I hope that the Government will listen to the case that will be made for having the independent counsel. One view, which I have heard Ministers allude to, is that the judge can do the investigatory work. That is implausible given the judge's other tasks, and it is also implausible to expect a judge who was, for example, a commercial silk suddenly to turn into a criminal defence or prosecution lawyer. [Interruption.] The hon. Member for Wolverhampton, South-West (Rob Marris) mentions French television. He is right that one of the fundamental aspects of the independent counsel idea is that it introduces an investigatory element into our system, but it does so in a way that preserves some basic adversarial aspects, in so far as the questioning is by a lawyer, not a judge. I constantly return to the point that the independent counsel system will protect not only the defendant, in being a safeguard against a miscarriage of justice, but the process itself from cases in which otherwise the court might decide not to grant an anonymity order or cases in which an appeal would be successfully lodged. In the most difficult case of all—the ““sole”” or ““decisive”” case—where credibility is an issue, the only hope of getting through the human rights standard is the independent counsel. Therefore, if the Government turn down this method, in effect they will be saying that in future fewer cases will have a chance of succeeding than now. The Government asked how the system would work: what process do its proponents envisage? It is true that it is a hybrid between what happens now and what might happen in a more continental system, but fundamentally the independent counsel, as it says in the New Zealand statute, assists the court. The job is to assist the court in deciding whether to grant the order. Independent counsel will investigate two matters and report to the judge: whether the need for an anonymity order has been established—whether there is evidence of threat to the safety of the witness, or of the other criteria laid down in statute—and whether the witness lacks credibility. Independent counsel would therefore be of great assistance to the court with both those tasks. As I understand it, the Government object to the idea, first, on the ground that it seems complicated. That is true, I suppose, but it does not seem too complicated for the New Zealand courts to operate. Another possible objection is that it might be expensive, but it seems obvious to me that it would be less expensive than fighting appeals—and especially losing appeals.