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Criminal Evidence (Witness Anonymity) Bill

I rise briefly to endorse what the hon. and learned Member for Medway (Mr. Marshall-Andrews) has said. His explanation of the circumstances in which the special counsel is likely to be required is entirely accurate and seems to meet the real difficulty that Davis has thrown up. To go back to Davis, the problem that we rarely confront when we discuss the detail of the Bill is not the question of whether the common-law power ever existed, but the question of whether protective measures, when credibility is at issue, can ever be fair or, to go a little further, whether they can ever be compatible with the European jurisprudence. It is important to keep in mind the fact that the Law Lords all held that the protective measures in that case were such as to render the trial unfair and incompatible with the European jurisprudence. We must ask ourselves how, using protective measures as prescribed by the Bill, we can still ensure fairness. What the hon. and learned Gentleman has suggested seems to me to be the clear way forward. If we do not follow his advice, or accept amendment No. 2, which I have taken the liberty of tabling, I suspect that the measures set out in the Bill will very seldom be invoked when credibility is an issue. The outcome will almost certainly be deemed unfair, either on appeal or when the order is applied for. To endorse the point made by the hon. Member for Cambridge (David Howarth), the presence of a special counsel is a way of ensuring that applications can be made, but also a way of ensuring that they are not made inappropriately. I hope that Ministers will seriously consider putting that provision in the Bill, either today or in the other place. Very few practitioners are aware of the latent, inherent power of the court to appoint such counsel. In any event, it is right that we should make statutory provision for it. We have done so in other cases, such as in the Counter-Terrorism Bill, which makes specific reference to special independent counsel. We should not shrink from that simply because there is an inherent power. If it is inherently desirable, statute should say so.