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Coroners and Justice Bill

The amendment to which the noble Lord, Lord Henley, spoke, is really a rehash of what I proposed last year in relation to the witness anonymity Bill—the Committee will see mine repeated as Amendment 185ZE. Somehow they managed to get theirs first on to the Marshalled List today. I said then that the role of independent counsel would be to examine or cross-examine a witness who claims that he is in fear, if there is any doubt about that, or to test the circumstances he refers to or his honesty or dishonesty generally, for the purposes of assisting the court in coming to its conclusions. I remind your Lordships about the scheme for an application for a witness anonymity order. Under Clause 75(2), as now drafted: ""The court may make such an order only if it is satisfied that Conditions A to C below are met"." In coming to its conclusion, the court must, under Clause 76(1), have regard to the considerations set out in subsection (2)—six of them. As drafted, all that the judge can do is look at the person in front of him and think, "Do I like this chap? Am I told by the policeman who is making this application something that makes me satisfied as to conditions A, B and C? Have I taken into account all those considerations?". That is a very difficult task for a judge to undertake. The wording in the clause is now almost the same as it was in the witness anonymity Act of last year, which came under the close scrutiny of the Court of Appeal in the case of Mayers, Glasgow and others in the judgment delivered on 12 December 2008 by the Lord Chief Justice. The Lord Chief Justice made some interesting comments in his judgment about the drafting of the Act and the need for special counsel. He said: ""Notwithstanding the abolition of the common law rules, it is abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained"." He went on: ""It is … clear that an anonymity order should be regarded as the special measure of last practicable resort"." In paragraph 10 of the judgment, the Lord Chief Justice set out principles to enable the judge to come to the conclusion to which he must come. He said: ""The principles which govern the use of special counsel to protect the overall fairness of the trial when the question whether information should be withheld from the defence is being addressed should be adapted when its possible use arises in the context of witness anonymity. Nothing in the legislation suggests, and we can see no justification for any blanket rules, one way or the other. Sometimes special counsel may contribute significantly to the fairness of the process, sometimes not. There is however one significant difference between the use of special counsel for public interest immunity purposes, and such use for the purposes of witness anonymity. The former is concerned with the circumstances in which non-disclosure to the defence may be appropriate, the latter with whether sufficient and complete investigation and consequent disclosure have taken place"." It is clear that he had been reading what I said about this amendment earlier. The Lord Chief Justice continued: ""If the judge entertains reservations about the good faith of the efforts made by the prosecution investigation into any relevant consideration bearing on the question of witness anonymity, an application for witness anonymity will be met with a point blank refusal. The services of special counsel may however enable the judge to ensure that any investigative steps specific to the case, and not perhaps otherwise apparent, have been taken. Our approach to this issue enables us to highlight that the obligations of the prosecution in the context of a witness anonymity application go much further in the ordinary duties of disclosure. As we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required"." What detailed investigation into the background of each potential anonymous witness did he have in mind—that the judge should get off the bench and carry out an investigation himself, or that there should be a mechanism, such as the one in my amendment, which would enable the judge to be properly informed to ensure that any investigative steps specific to the case have been taken? The Lord Chief Justice came back to the issue of the special counsel at a number of points in his judgment. In paragraph 21, for example, he said: ""The defence statement provides the benchmark against which the disclosure process must be examined. So, for example, a defendant who believes that he may be the victim of a malevolent plot to incriminate him when he is innocent should normally be able to give some indication of his concerns in his defence statement, and to indicate the identity of anyone who he believes may have a malign motive to incriminate him. It can then, if raised by him, be the subject of further inquiries, perhaps indeed with the use of special counsel"." Again, he referred in paragraph 35 to considering the considerations, and said: ""The difficulties are well within the knowledge and experience of trial judges. Sometimes, of course, specific evidence may be required by the judge so that he can probe it, and indeed if necessary, he can seek the assistance of special counsel"." The Lord Chief Justice finally concluded: ""The use of the word ‘necessary’ requires that the court must be satisfied to the highest standard that"," conditions A, B and C have been satisfied. He said that it was not enough to satisfy two of the three conditions; all must be satisfied. He continued: ""’Probably’ necessary will not do. Even if the ‘necessity’ foundations for conditions A and C are established, the order cannot be made unless the court is also satisfied that the forthcoming trial, or the current trial, would be, or continues to be fair"." A five-judge court of the Court of Appeal, with highly experienced judges who are versed in the criminal law, came to that analysis of the previous Act. As I say, the provisions are in the Bill. If the Lord Chief Justice points out the utility of special counsel and seeks to underline my argument, which I advanced on a previous occasion, how much more must the Government be satisfied before they make a provision, whether it is expressed in the terms of the noble Lords, Lord Dubs or Lord Henley, or my amendment, and how much more important is it that the Government take this on board and table a proper amendment on Report?