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Coroners and Justice Bill

My Lords, we move on to witness anonymity orders in Chapter 2 of Part 3. In particular, we need to look at the machinery by which witness anonymity orders may be made. It is, of course, extremely difficult for the defendant to challenge the evidence of an anonymous witness. I have already told your Lordships of my personal experience in this field. If the defence counsel does not know the name or identity of a witness—certainly if the defendant does not know—it is impossible to take instructions in such a way as effectively to challenge the evidence that he gives or to explore further the reasons why he should give the evidence that he does. The machinery under Clause 77 is that an application may be made to the court by the prosecutor or, indeed, by the defendant. Clause 77(2) states: ""Where an application is made by the prosecutor, the prosecutor … must inform the court of the identity of the witness"." However, the clause goes on to say: ""Where an application is made by the defendant, the defendant … must inform the court and the prosecutor of the identity of the witness"." There is an imbalance straightaway in the way in which these applications are made. The prosecution does not suffer from the same problem to which I referred your Lordships earlier. The prosecution knows who the witness is; it can make investigations into the background, challenge the evidence that that person gives and explore the reasons why he has come forward to give evidence on behalf of the defendant. That is a very different situation from that of the defence. When the application is made, the judge has to consider whether to grant it. Clause 78(2) says: ""The court may make such an order only if it is satisfied that Conditions A to C … are met … Condition A is that the proposed order is necessary … to protect the safety of the witness or … to prevent any serious damage to property, or … in order to prevent ""real harm to the public interest … Condition B is that, having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial … Condition C is that the importance of the witness’s testimony is such that in the interests of justice the witness ought to testify and … the witness would not testify if the proposed order were not made"." That is interesting. In the previous debate on investigation anonymity orders, my amendment, which would have inserted the same idea, was not accepted by the Government. The final condition is that, ""there would be real harm to the public interest"." When it comes to the application that is made by the prosecution, the judge has to guess. All that he is told is the name of the person concerned. There is no possibility of his making any inquiries of his own. When the defendant applies for an order, the prosecution can say, "This chap is not worthy of belief", that the order is not necessary to protect his safety and that there would be no real harm to the public interest; indeed, it can raise all the matters set out in conditions A to C. The judge has information when the defence counsel makes the application, but when the prosecution makes the application the judge has no idea; all he can do is guess. The prosecution can put forward whatever grounds it wishes and there is no means of testing the bona fides of the witness. Amendment 76N proposes that, in circumstances where a judge is not entirely satisfied with what the prosecutor tells him, he could appoint an independent counsel to assist him. The independent counsel would have the power to, ""scrutinise on the court’s behalf any relevant matter the court thinks fit, and to carry out any instruction the court thinks fit"." The party applying for the witness anonymity order—let us say the prosecution—is required to disclose to the independent counsel all the information in their possession that relates to the proceedings. The independent counsel, if he thinks fit—we are moving on to situations that are less likely—would have the, ""power to require police officers unconnected with the relevant trial to investigate and report to him whether there are any matters relevant to the considerations set out"," in the Bill. He would be, ""entitled to examine witnesses in the absence of the prosecutor, or in the absence of a defendant and his legal representative"." Having carried out the inquiry, the independent counsel would be in a position to assist the court in its consideration of the conditions, the effect of which I have already read out to noble Lords. The amendment seeks to balance the defendant’s and prosecution’s interests in a way that the Bill does not. We in this country are still interested in a fair trial. We are interested in equality of arms—one side should not have a considerable advantage over another. Since witness anonymity orders are likely to become more frequent, the way things have been moving over the past 10 or 20 years, it is right that this power should be there—to be exercised not in every case, but only where the judge feels that something about the application needs an investigation that he personally could not carry out, for obvious reasons, and so requires the assistance of independent police officers and counsel. I hope that that explains the position, and the reasoning behind the amendment. I beg to move.