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Criminal Evidence (Witness Anonymity) Bill

I largely agree with the broad thrust of what the hon. Member for Cambridge (David Howarth) has said and I do not share the confusion that appears to have arisen in the mind of the Solicitor-General. I also accept the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that if we had more time, these niggles could be ironed out, but we do not, so we will have to do the best that we can. While I accept what the hon. Gentleman said about the need for a special advocate, I approach his arguments about amendment No. 35 somewhat differently. Our suggestion is not that the whole of subsection (2) should be deleted, but that the equality of arms that we seek should be achieved through amendment No. 20, which requires the insertion of the word ““court”” instead of the word ““prosecutor”” in clause 3(2), so that the court, not the prosecutor, would have to be informed about the identity of the witness. I shall not rehearse the arguments about the links between the police and the prosecution system, because that would be tedious and repetitious, but it is important. The Bill and the system of justice would be strengthened were the information to be given to the court, not the prosecutor. If the Government accept amendments relating to the appointment of special counsel or advocates, it would be sensible for the court to include the special prosecutor, because he would be conducting himself for the benefit of the court, albeit by collateral advantage—if he did his job properly, it would be to the benefit of both the warring parties, the prosecution and the defence in any given case. I, too, am pleased to note the Government's amendments in relation to the process by which the applications will be made. It must be sensible that those interested should be given an opportunity to be heard and to explain their case—or the resistance to the case—on the application as appropriate. I accept that on some occasions the application will be made, at least initially, ex parte, but it may on occasion be right and just that the matter should be contested inter partes at a later stage. However, we urge that any application—this is the thrust of amendment No. 19—for a witness anonymity order must be made to the court at the earliest opportunity. That may be an obvious request, but far too often advocates or lawyers advising either the prosecution or the defence do not apply their minds to the marshalling of the necessary administrative orders until far too late a stage, which delays the speed at which the trial can progress. I urge that any change to the Bill should include a requirement along the lines of amendment No. 19. None of the amendments on special advocates were tabled by me or my colleagues on the Front Bench, but I do not think that that matters. What is important is that we get the Bill right. Amendment No. 2, tabled by my right hon. and learned Friend, is an attractive attempt to address the problem, although I do not suggest that he has every dot and comma in the right place or that an inclusion in the Bill of a provision on special counsel should necessarily be in this form. For my part, I dealt with it as a relevant consideration in amendment No. 24 (ai) to clause 5. In any case, we all have the same aim—to try to produce a system that preserves fairness as much as possible. Special advocates or independent counsel are no more than a compromise solution, and are by no means ideal. They must surely offend the principle that we expect fearless independent representation for the defendant, untrammelled by interference from the Government, Parliament or other mighty influences. If we are to have anonymous evidence, the court needs assistance in finding the facts on which to make its decision whether to grant an application for an order or not. Necessarily the respondent to an application under clause 2 cannot know the details of the witness which, if published, would negate the purpose of the application. The prosecution cannot protect, or be seen to be protecting, the rights and interests of the respondent, albeit that as a matter of professional duty they try to do that. The defendant, or defence witness, has no obvious interest in being open with the prosecution, albeit that those who represent them would, in line with their professional duties, endeavour to be so. We agree that the courts should have the discretion to appoint a special advocate under the Bill, to ensure some fairness in an area of procedure in which unfairness is undeniable and unavoidable. If we are to take away the defendant's fundamental right to know and freely to cross-examine his accuser, we must build into the system mitigating measures, and the special advocate would be one such—albeit imperfect—measure. Special advocates are used in cases involving suspected terrorists and control orders, heard by the Special Immigration Appeals Commission. There, they are creatures of statute, not the common law, albeit that in matters affecting disclosure the ordinary courts have an inherent power to appoint special counsel, as my right hon. and learned Friend reminded us. However, they are not the same as the amicus, the friend of the court, brought in to help the court on the law, or as counsel to an inquiry such as the Hutton inquiry. They need precise statutory provision to allow them to exist and they cannot be developed from some imprecise, inherent power. The consensus that I identified in my closing remarks on Second Reading does not quite include the amendments on the need for a special advocate, if the interventions by Ministers so far are a true reflection of their position. I hope that at some point—preferably today—the Government will move towards us, just as we have moved towards them on many of the details of the Bill. I am not sure whether the hon. Member for Cambridge (David Howarth) intends to press amendment No. 35 to a Division. If he does, we will follow him, not because we support it, but because we want to use it as a means to demonstrate our support for the special advocate.