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Criminal Evidence (Witness Anonymity) Bill

I am extremely grateful to the right hon. and learned Gentleman for making my point in a rather more elegant way. That is exactly the point. I understand why the amendment was tabled. It is not that there will not be equality of arms—there will—but there cannot be symmetry in a criminal trial, and thankfully no one has suggested that there would be. The amendment reflects concern to ensure that the protected identity of a defence witness is not somehow leaked. However, another area of no symmetry is that it is inherently improbable that if the prosecutor, or even the police, knew the identity of the defence witness whose identity was being protected they would go round and put the witness's windows in, set fire to their motor car or intimidate their children at school, yet all those things occur in the opposite situation, where the identity of the prosecution witness is being kept quiet. I turn to the major issue in respect of this group of amendments—the argument contained in amendments Nos. 2 and 18 and new clauses 6 and 7 that the Bill should include a provision that a special counsel be appointed. I shall set out why I ask the House to accept not that there is a profound case against having special counsel—that is not my argument—but that there is insufficient time, not only today but in the limited time of a week that we have to bring the Bill's proceedings to a conclusion, to pin down exactly how a statutory scheme could work. As we have already heard, there is at least one statutory scheme for the appointment of a special advocate. My hon. Friend the Member for Hendon (Mr. Dismore) was right to make the important distinction about the appointment of a special advocate in respect of the proceedings of the Special Immigration Appeals Commission, which some of us have come to know and love only too well. It was established by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I got it going and it has been enhanced since. In addition, as we have heard, there is an inherent power for the court to appoint a special counsel. It is not used often and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who drew our attention to an entry in ““Archbold””, was correct in saying that it is used only exceptionally. As it happens, the Court of Appeal, in the Davis appeal, sought and was granted the appointment of a special counsel. Those who believe that the appointment of a special counsel is a stay in jail card as far as the prosecution is concerned, and a guarantee against any breach of article 6, might bear in mind, notwithstanding the appointment of special counsel and the extensive use of special counsel by the Court of Appeal in the Davis case, that although the Court of Appeal found in favour of the prosecution in Davis, that was not a particularly persuasive point when the case went to the House of Lords Appellate Committee. The fact that there had been special counsel was of no consequence when the Committee reached its 5:0 judgment on whether there was common law authority and, to a degree, article 6 authority. I do not dismiss any of the arguments made this evening by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—I was about to say ““Maidstone”” but that was a Freudian slip. Both constituencies begin with ““M”” and both are in Kent; both are close to the very first constituency I fought, which was Tunbridge and Malling—[Interruption.] I lost. Indeed, I came third and took a pound off the Liberal candidate who was convinced it would be him, so at least I came away from the count with something. I listened with great care to what my hon. and learned Friend the Member for Medway said, as I did to the other right hon. and hon. Members on both sides of the House. We have to pin down some serious issues—[Interruption.] I gently point out to those who say we should do it now that the matter is really quite complicated and the proposal is not absolutely necessary because, as everybody has accepted, the court already has an inherent power. Those who say we should do it now are also talking about the dangers of legislating too fast and without proper thought.