Joint Committee on Human Rights - Twenty-Sixth Report

1.2 The Bill responds to the House of Lords judgment in R v Davis concerning the use of anonymous witnesses in criminal trials.[3] In that case, which concerned a double murder, the Lords decided that the courts had no power to grant full anonymity to a witness in the vast majority of criminal cases, overturning a line of previous rulings in lower courts that there was such a power at common law. The Bill replaces the common law rules on the use of anonymous witness evidence in criminal trials, as restrictively interpreted in Davis, with a statutory power for courts to grant witness anonymity orders in criminal proceedings where this is consistent with the right to a fair trial. The Bill relates to agents of the state (eg undercover police or security service officers) giving evidence anonymously (as provided for under clause 4(3)(b)) as well as anonymous evidence from civilians. The Explanatory Notes to the Bill consider the compatibility of the measures with the right to a fair trial in Article 6(1) ECHR at paragraphs 53-78.

1.3 The ruling in the Davis case potentially jeopardises a number of current and prospective trials in which anonymous evidence had been, or was planned to be, heard. It also raises the possibility of other convictions based on anonymous evidence being successfully appealed. The Director of Public Prosecutions (DPP) told us that:

we have about 580 cases in which the question of anonymous witnesses had been intended to be raised before the ruling in Davis was handed down. This includes cases which are charged and awaiting trial; cases which are currently being tried; cases convicted but not yet sentenced; and cases both convicted and sentenced. These cases range from test drug purchases by undercover police officers, through cases involving undercover police officers embedded in serious criminal conspiracies, to members of the security services, to cases involving anonymous civilian witnesses, which I think is the category people have been most concerned about. We think there are about 50 cases involving civilian anonymous witnesses. I would say about 50 is the critical figure.[4]

1.4 The DPP subsequently informed us that there were 17 Operation Trident cases, which concern gun crime in London, post-charge; in 15 of these cases, witness anonymity orders in respct of civilian witneses had been either granted or sought by the prosecution.[5] Anonymous evidence from civilians has played a major role in securing convictions in Trident cases in recent years.

1.5 It is for these reasons that the Government, with cross-party support in both Houses, has chosen to legislate urgently rather than wait until the introduction of the proposed Law Reform, Victims and Witnesses Bill in the new parliamentary session.[6]

1.6 We are grateful to have received the Bill in draft on the day before it was published. We did not have time to correspond with Government about the issues raised in the Bill but we heard oral evidence on 8 July from Sir Ken Macdonald QC, the Director of Public Prosecutions, and Patrick O'Connor QC, a defence barrister from Doughty Street Chambers. The evidence we heard was cited on a number of occasions during debates on the Bill in the Commons later on 8 July and in the Lords on 10 July.[7] We are grateful to both witnesses and to the various organisations which sent helpful briefings for parliamentarians on the Bill.

Overall conclusion on the Bill

1.7 A range of views has been put forward as to whether witnesses should be permitted to give evidence anonymously in criminal trials and whether urgent legislation is necessary in the light of the Davis judgment. Writing in the Telegraph on 21 June, John Yates, Assistant Commissioner of the Metropolitan Police, explained why special measures, including total anonymity, had been used to protect civilian witnesses testifying in certain murder cases. He argued that "this is not about an infringement of civil liberties, but about commonsense measures to combat the most serious crimes". David Pannick QC, writing in the Times on 27 June, however, argued that "legislation will not achieve the desired objective of ensuring the conviction of the guilty and will only delay the need to consider alternative means of addressing the problem of intimidation". Justice, in its is parliamentary briefing paper, described the Bill as "misconceived and poorly drafted", suggesting that its provisions for witness anonymity orders were "unduly complex; overly broad; contrary to the common law right to confront one's accuser; likely to be incompatible with the right to a fair trial under Article 6(3)(d); and lacking several of the safeguards found in the New Zealand legislation on which it was based".[8] Liberty, in its parliamentary briefing paper, raised concerns about legislating in haste but said it was "pleased that the Bill expressly recognises that where witness anonymity would be incompatible with a fair trial an order should not be made".[9]

1.8 Patrick O'Connor QC told us that "there is no concrete evidence" that witness intimidation was a growing problem. He outlined various grounds "for pausing for thought before accepting that the problem is currently unmanageable and that this particular Bill is the answer", including the absence of similar legislative provision in other common law countries.[10] He called for a "more watertight and safe procedure" to be formulated to ensure that anonymity was reserved for exceptional cases "rather than just opening the floodgates".[11] The DPP's view was that the Bill struck the correct balance between the rights of the defence on the one hand and the interests of victims and witnesses on the other, because "it attaches such primacy to the need for the defendant's trial to be fair".[12] He agreed with the need to proceed "swiftly", principally because of the number of current or pending cases potentially affected by the Davis judgment.

1.9 In our view, the Bill is broadly to be welcomed from a human rights perspective. It does not purport to prescribe what constitutes a fair trial when anonymous evidence is given, and provides a general framework for the making of discretionary anonymity orders by courts. The Bill sets out the sorts of considerations which the trial judge should consider before making anonymity orders, and contains adequate guarantees of the right of the accused to a fair trial. The right to a fair trial is adequately guaranteed in the provisions in the Bill which apply both to pending cases and to completed cases in which individuals have been convicted after trials at which anonymity orders were made. We agree with the analysis in the Bill's Explanatory Notes that the Bill is compatible with Article 6 ECHR, on the basis of the express protection for the right to a fair trial and the discretion left to the trial judge to determine that issue.

1.10 The Bill does not purport to change in any way the House of Lords' interpretation in Davis of the circumstances in which the use of anonymous evidence will amount to a breach of the right to a fair trial. The Bill expressly guarantees the right of the accused to a fair trial, as interpreted by the House of Lords in Davis, in three ways.

1.11 First, the court must be satisfied in future cases that, having regard to all the circumstances, the taking of the specified protective measures "would be consistent with the defendant receiving a fair trial."[13] This is a precondition which must always be satisfied in addition to the other preconditions. The Bill therefore does not authorise the making of witness anonymity orders which would breach the accused's right to a fair trial as interpreted by the House of Lords in Davis.

1.12 Second, in ongoing cases in which an anonymity order has already been made, the Bill requires the court to consider "whether the effect of that order is that the defendant has been prevented from receiving a fair trial".[14] If the court determines that the defendant has been prevented from receiving a fair trial, it must give appropriate directions in connection with bringing the trial or hearing to a conclusion.[15]

1.13 Third, in appeals against conviction in cases where an anonymity order was made, the Bill expressly provides that the appeal court must treat the conviction as unsafe if it considers that the order was not one that the trial court could have made if the new law was in force and that, as a result of the order, the defendant did not receive a fair trial.[16]

1.14 The Bill also contains a further protection for the right to a fair trial. It requires the judge to give the jury such warning (if any) as the judge considers necessary to ensure that the fact that the order was made in relation to the witness does not prejudice the defendant.[17] This addresses the concern that witness anonymity orders undermine the right to a fair trial because they are inherently disparaging of the accused.

1.15 We believe that the Bill contains adequate protections for the right to a fair trial and does not therefore risk incompatibility with Article 6(1) or 6(3)(d) ECHR. We welcome the fact that courts will be required by s. 6 of the Human Rights Act to apply the statutory provisions compatibly with the right to a fair trial, as interpreted by the European Court of Human Rights and by the House of Lords in Davis.

Issues for further consideration

1.16 The evidence we have taken on the Bill, and debates in Parliament, have thrown up suggestions of amendments which could be made to the Bill to enhance the human rights safeguards it contains. We have not yet had the chance to raise these matters with Ministers and so have not yet reached any firm conclusions. We set out the main issues, and some of the points which have been made to us and in debate in relation to them, below.

RELEVANT CONSIDERATIONS

1.17 We welcome that the Bill requires the court to have regard to six enumerated relevant considerations when deciding whether the preconditions to the making of a witness anonymity order are satisfied.[18] Each of those considerations has a sound basis in the case-law. We welcome that the list of considerations was added to in the Commons to include whether the evidence from the anonymous witness might be the sole or decisive evidence against the defendant. This is an important consideration in the Strasbourg case-law. We also welcome that the list of relevant considerations is not intended to be exhaustive. Indeed, the Bill explicitly provides that the court must also have regard to "such other matters as the court considers relevant."[19]

1.18 Certain other considerations are relevant, in particular, to whether the defendant would be able to receive a fair trial. The New Zealand Evidence Act 2006 includes the following two relevant considerations which do not feature in the Bill:[20]

the principle that witness anonymity orders are justified only in exceptional circumstances;[21] and

the gravity of the offence.[22]

1.19 In relation to exceptionality, the DPP said "the Bill speaks for itself. It sets out a scheme which is clearly designed to apply only, it seems to me, in exceptional circumstances."[23]

1.20 The DPP also gave reasons for not making the gravity of the offence a consideration to be taken into account before making a witness anonymity order. He argued that "gravity" was difficult to define, drawing attention to terrorism offences which could be dealt with in the magistrates' court.[24]

1.21 There may be merit in extending the list of relevant considerations in clause 5 of the Bill to include the two additional factors in the New Zealand Evidence Act 2006. Clause 5 was not debated in detail in the Commons and deserves closer scrutiny than it has so far received. We draw this to the attention of the House of Lords.

"SERIOUS DAMAGE TO PROPERTY" AS A TRIGGER

1.22 The Bill would enable a court to make a witness anonymity order if it was satisfied that protective measures are necessary having regard to the witness's reasonable fear, not only that the witness or another person would suffer death or injury, but that there is likely to be "serious damage to property" if the witness were identified.[25] Serious damage to property is not defined in the Bill.

1.23 This provision mirrors that contained in the New Zealand Evidence Act 2006.[26] However, in the published legal advice of the Attorney General on the consistency of that Bill with the New Zealand Bill of Rights Act 1990 (in New Zealand, unlike here, the Government's legal advice on compatibility is published), it was noted:

95. Having regard to … the international jurisprudence … it would be an exceptional case for the discretion to be exercised consistently with the Bill of Rights Act where there is no risk of physical harm to a person.

…

98. Having regard to the approach of the European Court to these matters generally, if faced with an anonymity order made on the basis of risk of damage to property only, it is highly likely that the Court would find that the accused's Convention rights were breached.

…

101. In conclusion, it would be an exceptional case where the risk of property damage, without any accompanying risk to persons, could be the basis for a witness anonymity order. In most cases there will need to be some kind of risk to persons for the damage to property to be 'serious'.

1.24 In debate in the Commons, the Minister, Maria Eagle MP, explained:

The protection of property is not the reason for the provision. It is there because a risk of serious damage would in most cases be likely to have an effect on the witness's safety, and certainly on his perception of his safety. That may in turn affect the witness's willingness to give evidence. For that reason, the subsection as drafted covers a reasonable fear on the part of the witness that there would be a serious damage to property, as well as fear that he or another would suffer death or injury.[27]

1.25 Ms Eagle went on to say that she expected the number of cases in which a witness anonymity order could be made solely on the basis of a risk to property damage to be "limited". She argued that the New Zealand Attorney General "did not suggest that the provision itself was incompatible with a fair trial".[28] In oral evidence, the DPP told us that, in his view, a risk of serious damage to property alone could be sufficient to trigger a witness anonymity order under current case law.[29] Mr O'Connor said, however, that "the property element is too loose".[30]

SPECIAL COUNSEL

1.26 Malcolm Swift QC, in his article defending the decision of the House of Lords in Davis, pointed out:

The public may not appreciate that police applications for witness anonymity were conducted in conditions of secrecy. Prosecutors and policemen were able to see judges privately in the absence of defence representatives, to persuade Judges to grant anonymity on the basis of information that could never be verified or tested and to withhold any information from the defence that might tend to identify the witness.

In practice that meant that the accused would have little material with which to test the veracity of the witness and none with which to test credibility or motive to lie.[31]

1.27 A Government amendment to the Bill, made in the Commons, makes explicit provision for both parties to be heard before the judge determines an application for a witness anonymity order.[32] Nevertheless, the court retains the power to exclude the defence from any part of the proceedings.[33]

1.28 The New Zealand legislation provides for the judge to appoint 'independent counsel' to assist the judge when considering an application for a witness anonymity order, including whether the safety of the witness is likely to be endangered if the witness's identity is disclosed.[34] In its parliamentary briefing paper, the Law Society argued that the appointment of "a neutral special counsel" was "of sufficient importance to warrant specific mention on the face of the Bill".[35] The DPP noted that "the judge has discretion in all criminal cases to appoint a special advocate if he or she wants to" and suggested that this might be a reason not to add an explicit reference to special counsel to the Bill. The DPP also recognised that the Criminal Rule Procedure Committee may need to clarify how special counsel might operate in this area.[36]

1.29 Magistrates must apply to the Attorney General if they wish to use special counsel.[37] The DPP told us that "there may be some merit in looking at that because I can imagine circumstances in which it might be desirable for the court to hear from a special advocate".[38] Patrick O'Connor QC warned that "there were whole layers of problems" associated with using special advocates in magistrates' courts because magistrates combine the roles played by the judge and jury in crown courts.[39]

1.30 The role which might be played by special counsel in applications for witness anonymity order was debated at length in the Commons.[40] Answering the debate, the Secretary of State for Justice said that he did not have a profound case against the use of special counsel, but "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".[41] He undertook to "to give active and urgent consideration to whether such a scheme is feasible and necessary" before publishing the Law Reform, Victims and Witnesses Bill. He also agreed to ask the judiciary to consider whether special counsel would be useful to them in making witness anonymity orders.[42]

1.31 The trial judge at a criminal case has discretion to appoint special counsel (drawn from the Attorney General's Panel of Special Counsel) to represent the interests of the accused at application by the prosecution for permission not to disclose material on grounds of public interest immunity.

1.32 We welcome the Secretary of State's commitment to consider the role special counsel might play in ensuring that applications for witness anonymity orders are dealt with fairly in advance of publication of the Law Reform, Victims and Witnesses Bill. We intend to return to this issue in our scrutiny of that Bill.

1.33 We recommend that the Bill be amended to give the trial judge a discretion to appoint special counsel to represent the interests of both the accused and the witness at hearings for anonymity orders. This would also address the problem that the magistrates court may have no power to appoint special counsel.

Further parliamentary scrutiny

1.34 Opportunities for parliamentary scrutiny of legislation passed within two weeks of presentation to Parliament are inevitably limited. In the case of this Bill, the allocation of time motion in the House of Commons, and the fact that over one hour was spent on debating and voting on the motion, acted as further constraints. Detailed consideration of the Bill was interrupted at the end of debate on clause 4. Clauses 5 to 13 and the Government's sunset clause were not debated. It is regrettable that inadequate time was available for detailed consideration of the Criminal Evidence (Witness Anonymity) Bill in the Commons. As a result, the majority of the clauses in the Bill, and many of the amendments tabled to those clauses, were not subject to scrutiny in Committee. We draw the attention of the House of Lords to this issue.

1.35 The Secretary of State for Justice said on 26 June that the provisions of the current Bill would be "included in next session's [Law Reform, Victims and Witnesses] Bill" to enable both Houses "to give further consideration to this important area of the criminal process."[43] A Government new clause, added to the Bill in Committee in the Commons, gave statutory backing to this undertaking.[44] It provides for the legislation to cease to have effect from 31 December 2009 but for this date to be extendable on an annual basis, by affirmative order. We will give fuller consideration to the human rights implications of the provisions in this Bill as part of our scrutiny of the Law Reform, Victims and Witnesses Bill in the next parliamentary session.

1 Appendix 2. Back

2 Ninth Report, Session 2007-08, Criminal Evidence (Witness Anonymity) Bill, HL 147. Back

3 [2008] UKHL 36 (18 June 2008). Back

4 Q2. Back

5 Appendix 1 and Q35. Back

6 HC Deb, c516, 26 Jun 08. Back

7 HC Deb, 8 Jul 08, cc1304-79 and HL Deb, 10 Jul 08, cc866-900. Back

8 P2. Back

9 Paragraph 14. Back

10 Qq63-4 and 72. Back

11 Q86. Back

12 Q39. Back