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Criminal Evidence (Witness Anonymity) Bill

This has been a measured debate, and I thank hon. Members of all parties for their contributions. I shall deal with the various amendments that we are considering before I come to the special advocate proposal which, given the weight of opinion in the House, is the most important proposal before us. Government amendments Nos. 40 and 41, and part of amendment No. 2, relate to a party's right to be heard and the need to put it on to a statutory footing. I am glad that the Government amendments have been generally welcomed on both sides of the House. That is one of the benefits of our detailed consultation with the Opposition parties, even though that inevitably took place in a very short space of time. Amendment No. 19, moved by the hon. and learned Member for Harborough (Mr. Garnier), would require that an application for an order be made at the earliest opportunity. I accept that in principle, but I ask the hon. and learned Gentleman to accept that the criminal procedure rules are the right place for such a provision. Indeed, the phrase ““earliest opportunity”” begs a question: it is improbable that the prosecution would delay applying for such an order, as any such application would disrupt the trial process. Exactly at what point they are able to do that, however, will depend on the merits of the individual case. Amendment No. 36 would place in the Bill a requirement that the application for a witness anonymity order must be heard in chambers and determined on evidence admissible in a criminal trial. I ask the House to consider for a moment what the implications of that proposal would be. The applications will take place before a judge in chambers, away from the jury. We have exclusionary rules of evidence in England and Wales precisely because of the nature of the jury system. Applications are made without the jury on all sorts of matters that, by definition, may be held by the judge to be outwith our exclusionary rules of evidence and therefore are not to be brought out in evidence to the jury, but have to be before the judge when he is hearing the application. Otherwise, the whole process would end up being risible. As I read the amendment, which refers to the rules of criminal evidence, it would greatly restrict the power of the court in chambers, without the jury present, to consider all kinds of evidence. Some of the evidence that a court will need to consider in determining whether to make the order will be evidence that the prosecution might wish to adduce, but the judge has held that it cannot, and some will be evidence that the prosecution most certainly does not wish to bring out in open court, such as police and security services intelligence reports, which are the subject of a public interest immunity application but are germane to consideration of the order. Given that explanation, I hope that those who tabled the amendment will not press it too far.