---

Criminal Evidence (Witness Anonymity) Bill

We have had an extensive debate on this group of amendments. At times it has been confusing, at others illuminating, but all the amendments would change, in one way or another, the conditions for making the witness anonymity order set out in clause 4. As the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) explained in his commendably succinct remarks, amendment No. 3 would require the court to be ““sure””, rather than ““satisfied””, that the conditions for making a witness anonymity order were met. In many areas of criminal legislation, a court is required to be satisfied that the applicable conditions are met before an order is made. The right hon. and learned Gentleman said that the word ““satisfied”” did not have a clear meaning, and he tried to anticipate the arguments that I might use, on the basis that he had heard them before in other contexts. He thought that I might say that the word did have a clear meaning, and so he produced the case that he had spotted in a bid to trump that argument. Fortunately, I was not going to focus on that approach, so in a sense the right hon. and learned Gentleman did his research for nothing. However, people have mulled over the various conditions in clause 4 during the debate, and it is important to remember the statutory framework that we are setting out. In the past, judges have granted orders on the basis of what they thought was their power in common law. They used their common sense to assess the facts of the case in front of them, but it is inherently difficult to legislate for the common sense of judges. That is one reason why there has been no statutory provision in respect of order making in the past, but an examination of the overarching framework might help us to deal with some of the points made in the amendments. All three conditions for a witness anonymity order must be satisfied: they are conjunctive rather than disjunctive, as my hon. Friend the Member for Hendon (Mr. Dismore) noted. An order must be necessary. It must—this is tremendously important—have regard to all the circumstances consistent with the defendant getting a fair trial. Finally, it must be in the interests of justice. The right hon. and learned Member for Sleaford and North Hykeham was right to say, in response to the hon. Member for Cambridge (David Howarth), that in the interests of justice it is important that a witness with something to say about a case must be able to testify. The whole edifice of the Government's proposals is designed to deal with the fear that might prevent him from doing so. We had some exchanges about which fears are subjective and which objective. A witness who tells the prosecutor or the police that he is worried about having his house burned down is obviously expressing a subjective fear. He goes along and says, ““I'm worried. I'm fearful because of where I live, and because of the person who I know is behind all this.”” That is obviously subjective. The points made by the hon. Member for Oxford, West and Abingdon (Dr. Harris), by my hon. Friend the Member for Hendon (Mr. Dismore) and, in the early part of his remarks, by the hon. Member for Cambridge are correct. We do not need to get too het up about which bit is subjective and which objective. The point here is that the judge will be empowered to make a common-sense judgment in any particular set of circumstances about whether the fear of a witness is reasonable. No sensible judge would make an anonymity order if a witness had a completely irrational fear and there was absolutely no chance of any danger to safety or risk of damage to property. He would have to be convinced that there was at least something to it. This is what we are trying to capture generally. In respect of the point that the right hon. and learned Member for Sleaford and North Hykeham made about using the word ““sure”” rather than the word ““satisfied””, the court is being asked to make a judgment about whether conditions A to C are satisfied. It is not finding on the facts, when a test according to the criminal standard of ““beyond reasonable doubt”” would be appropriate. In that sense, it is a concept that is relatively well known in the criminal law.