---

Criminal Evidence (Witness Anonymity) Bill

The judge is not making a finding of fact that is germane to the outcome of the trial. He is deciding whether he ought to grant a witness anonymity order in the circumstances and the case before him. We are not seeking to turn this into some kind of mini-trial of everything before the judge gets on with the trial. He will use his common sense. I have heard what hon. Members have said about some of this. I want to make some points on some of the amendments, but I am obviously not going to be able to satisfy the hon. and learned Member for Harborough (Mr. Garnier) about the tightness with which the provision is drawn. I understand if the hon. and learned Gentleman is not satisfied, but I hope that he will allow me to go on and deal with some of the other amendments. Amendment No. 21, which is one of those tabled by the hon. and learned Member for Harborough, would change the first condition for granting a witness anonymity order from one based on the"““safety of the witness or another person””" to one based on the risk of ““death or serious injury””. The main impact of the change of the wording that he has proposed would be to require the court to decide if the risk of injury was serious enough to justify granting an order. Safety is a relatively broad concept—enough to cover any risk of harm to the witness—but the test with which the hon. and learned Gentleman proposes to replace the current wording appears to be inappropriate. It is undesirable for witnesses to be exposed to any risk of harm. However, whether the harm to which a witness is exposed in any particular set of circumstances in a particular case is sufficient to justify the making of an order has to be a matter for the court when it addresses the three conditions set out in the Bill and the framework that we seek to create for that purpose. Amendment No. 5 would remove the second limb of the necessity test provided for under condition A—the prevention of real harm to the public interest, which was raised by a number of Members in their contributions to this part of the debate. I need to make it absolutely clear that the purpose of the wording is to capture circumstances in which the intelligence agencies, or, for example, the police or the Serious Organised Crime Agency, are doing their job. Many Members accepted that that was what the wording was getting at, but suggested that it was too wide. If it helps Members, those are the only circumstances intended; I am aware of no other circumstances, beyond national security and the undercover work of the police and relevant agencies, that this part of the Bill is meant to cover. I hope that helps in any Pepper v. Hart situation that we might run across. There is no other intention in that part of the Bill. The Strasbourg jurisprudence specifically mentioned the reuse of undercover agents as one of the purposes that might justify the grant of anonymity, so we are not outwith wider arrangements in other jurisdictions in that respect. Amendment No. 6 would amend the fair trial test with the intention of ensuring—I think—that the defendant is not deprived of a fair trial. I think everybody would accept that that is overwhelmingly the most important purpose of the work we are doing in respect of the Bill, but we believe that the current wording already guarantees it. I know that the right hon. and learned Member for Sleaford and North Hykeham was not too keen on the wording of condition B, which he thought a bit bland. However, condition B has the merit, along with conditions A and C—all of which have to be met—of making it absolutely clear that for the anonymity order to be granted it has to be necessary in the interests of justice and consistent with the defendant receiving a fair trial. In addition, there are article 6 considerations. Although I realise that the right hon. and learned Gentleman is not too keen on the current wording, we believe that it does the job it is meant to do. Amendment No. 7 would require the court to take into account before deciding whether it was necessary in the interests of justice to make an anonymity order not only the fact that a witness would not be prepared to testify without an order, but that they could not reasonably be expected to testify without an order. The additional reasonableness test is unnecessary because clause 5(2)(e) already requires the court to consider whether it is reasonably practicable to protect the witness's identity by means other than a witness anonymity order. On amendment No. 8, there was some debate about the witness's credibility, which is currently a consideration that the judge should have in mind when deciding whether the three conditions are met before granting the order. The right hon. and learned Gentleman made it clear that the amendment would elevate that consideration to another condition—to move it up a tier in the framework. The amendment is unnecessary because it goes into the question of whether the defendant will have a fair trial, which is already secured by condition B for the making of an order as set out in clause 4(4). The high-level principles of the conditions—necessity, fairness of trial and the interests of justice—are for the court to apply, whereas the credibility of a witness is an aspect in assessing to what extent the trial is fair in the circumstances of the case before the judge who is making the decision. We think that it sits correctly among considerations, rather than being important enough to be a condition, although I understand from the right hon. and learned Gentleman's remarks that he was trying to emphasise the importance of a fair trial. We do not disagree about the importance of a fair trial, but we think that the current framework achieves it. Amendments Nos. 17, 22, 23, 31 and 32 would all amend clause 4(6), about which there has been a bit of debate. It sets out the matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purposes mentioned in subsection (3)(a)—in other words, to protect the safety of the witness or another person, or to prevent serious damage to property.