UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 950-i

HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON HUMAN RIGHTS

CRIMINAL EVIDENCE (WITNESS ANONYMITY) BILL

Tuesday 8 July 2008

SIR KEN MACDONALD QC

MR PATRICK O'CONNOR QC

Evidence heard in Public Questions 1 - 88

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Joint Committee on Human Rights

on Tuesday 8 July 2008

Members present:

Mr Andrew Dismore, in the Chair

________________

Witness: Sir Ken Macdonald QC, Director of Public Prosecutions, gave evidence.

Q1 Chairman: Good afternoon everybody. This is a special evidence session we are having on the Criminal Evidence (Witness Anonymity) Bill, which is very topical as we are debating it this afternoon on the floor of the House. Could I welcome Sir Ken Macdonald, the Director of Public Prosecutions. Thank you for coming in at pretty short notice to talk to us about this. Could I also remind colleagues, and you, Sir Ken, that we are under time constraints so if we could have short questions and short answers that would be very helpful if at all possible. Perhaps I could start by asking you what difficulties the Law Lords' ruling has created for you?

Sir Ken Macdonald: Obviously it is a situation which, as they hinted in their judgment, will have to be solved insofar as it can be by legislation. We have obviously regarded anonymity as a useful tool in certain types of cases and we are keen to preserve it in appropriate cases, always subject obviously to the defendant's rights to a fair trial; and that is the balance which the legislation has to achieve. Although it is not quite right to talk about a "balance" because the right to a fair trial is not a balanced right, it is an absolute right and that has to underpin whatever legislative scheme comes into force.

Q2 Chairman: How many current and pending cases are affected, and how many convictions do you think may be challenged on appeal?

Sir Ken Macdonald: We have done a trawl and these figures are subject to change because the situation just does change rapidly; but we think 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.

Q3 Chairman: Is there evidence that witness intimidation is increasing?

Sir Ken Macdonald: There is plenty of anecdotal evidence, particularly in certain parts of the country. I myself have not seen firm figures on this. There is certainly an increasing reluctance on the part of people witnessing certain types of crime to come forward - whether that is due to direct acts of intimidation or to a perception that they might be in danger if they give evidence I do not know. Of course the other difficulty is that quite often people who witness serious crime are people who themselves are involved in criminality. This will quite often be the case, for example, in gangland-style executions, and shootings related to drug dealing. Witnesses in that category are, for very obvious reasons, sometimes reluctant to come forward.

Q4 Chairman: If we did not need this procedure in Northern Ireland at the height of the Troubles why do we need it in the UK now?

Sir Ken Macdonald: You have to make your own judgment about this, about whether you are prepared to tolerate a situation in which some categories of crime are not prosecuted. For all I know, there may be cases in Northern Ireland that were not prosecuted for that reason. Sometimes people say we managed in the 1960s with the Krays and the Richardsons. The point about the Krays and the Richardsons is that they were free to conduct their criminal campaigns for very, very many years precisely because people were afraid to testify against them, so I am not so sure the analogy is a good one. We have to be very careful only to use the power to anonymise witnesses in very particular circumstances; and, I repeat, in circumstances where it does not jeopardise the defendant's right to a fair trial. That is the fundamental judgement which the judge has to make.

Q5 Chairman: If it was a growing problem should we not have seen a greater increase in prosecutions with conspiracy to pervert the course of justice?

Sir Ken Macdonald: If we were able to catch people doing this, intimidating witnesses, I think we would. Whether there is such an increase, I do not know.

Q6 Chairman: Is the emergency bill essential? Could the Government have foreseen the problems earlier?

Sir Ken Macdonald: Every time we have made these applications they have been to a judge who has allowed them. The Court of Appeal has repeatedly upheld these arrangements; and the Law Lord who gave leave for this case to be brought before the House of Lords himself said he did not expect the appeal to succeed - so I am not sure how predictable the outcome was. We now have a clear judgment from our highest Court, and if the Government does not respond then I think the likelihood is that a large number of the 580 cases I have alluded to, and particularly the 50 involving civilian witnesses, will be at risk.

Q7 Chairman: Will you be applying for witness anonymity orders in cases like Davis in the future?

Sir Ken Macdonald: It is difficult to say, and I would have to study the cases of Davis very closely. I think there is a continuum here between a witness's accuracy being in question and the reliability of the witness being in question. I think myself, if this legislation is passed, the closer you get to the credibility end the less likely it is that we will be able to make successful applications for that evidence to be anonymised. In other words, if you are simply concerned about someone's accuracy and there is no reason to doubt the credibility of the witness, judges might, following this legislation, allow those witnesses to be anonymised if the conditions are met. If the witness's credibility is seriously in issue I think it would be much more difficult.

Q8 Chairman: If the basis of your case is the witness's evidence and the witness will only give evidence anonymously, what happens?

Sir Ken Macdonald: It depends again. If it is only a question of accuracy then my own view is that that could still be permissible. It is notable that Lord Mance who analysed the Strasbourg jurisprudence in the House of Lords judgment regards this potentially as still an open question. He says that soleness or decisiveness is maybe no more than a fact, albeit an important one, to put into the balance when these issues are being determined. I can give you an example: an old lady standing in the street of impeccable character who takes a car number plate, writes it down on a piece of paper, and that is the decisive piece of evidence that ties someone in with a bank robbery. It may be that she could give her evidence anonymously without any prejudice being caused to the defendant at all. If she was a criminal associate of the defendant it might be very different.

Q9 Lord Dubs: How significant do you think is the Law Lords' ruling? In other words, does it simply require current practices to be put on a statutory footing; or do you think it makes clear that in certain circumstances anonymous evidence cannot be used because it is incompatible with the right to a fair trial?

Sir Ken Macdonald: I think it does both. It clearly says that the common law has been stretched too far, and if you want to stretch the common law this far you have got to rely on statute. I think it is also indicating that some categories of case would not be appropriate for anonymising; and the category of case would be, I think, a case where the evidence was sole or decisive and the credibility of the witness was open to question. This is my judgment only, but in future I do not think that witnesses in that category will be suitable for anonymising.

Q10 Lord Dubs: I think you have already answered the point about whether anonymous evidence should not be the sole or decisive factor in a conviction. I think you have already dealt with that?

Sir Ken Macdonald: Yes. I think it depends on the extent to which the credibility of the witness is in question.

Q11 Lord Dubs: Or could it be the extent to which such evidence is decisive whether that is no more than a very important factor to be balanced on the scales?

Sir Ken Macdonald: I think that is the correct formulation. I think it is an important factor. I just think if a witness's credibility is heavily in issue and the evidence is decisive that factor is likely to become overwhelming in arguing against the anonymising of a witness.

Q12 Lord Dubs: You have almost answered my third question which is: do you believe that convictions principally based on anonymous evidence will automatically be in beach of the right to a fair trial under the ECHR?

Sir Ken Macdonald: No, I do not. I can think of examples, and I have given one, where a conviction could be based on decisive anonymous evidence which would be perfectly consistent with a defendant's right to a fair trial. You would have to look at the circumstances I think in each case.

Q13 Dr Harris: There is plenty of scope for it to qualify for an appeal based on the formulation you have given if credibility was an issue if it was a major factor?

Sir Ken Macdonald: I would certainly expect appeals around this topic. Arguably, defence lawyers would be looking very closely at cases. I am concentrating on civilian cases here. I think police witness cases come into a different category. I would expect lawyers to be looking very closely at these cases in future.

Q14 Lord Lester of Herne Hill: In your view does the Bill itself correctly restate what was understood to be the common law position on witness anonymity before the Law Lords' ruling?

Sir Ken Macdonald: I think it does. It seems to me that the Bill as currently drafted does give absolute primacy to the requirement that the defendant's trial is fair; everything else is subjugated to that. The basic common law principle is that the judge has to ensure that the trial is fair and the defendant receives a fair trial. I think the extent to which the Bill is eager to make that its starting point is a useful and helpful thing.

Q15 Lord Lester of Herne Hill: The judges of course are under a Human Rights Act duty, are they not, to interpret and apply this Bill, if it becomes law, in a way that secures Article 6 fair trial rights?

Sir Ken Macdonald: Yes.

Q16 Lord Lester of Herne Hill: Presumably the safeguards in the Bill are nevertheless very important. Can I just deal with two raised by the Law Society in their helpful briefing today. The first is about the equality of arms in relation to clause 3(2). Clause 3(2) is the provision that requires the defendant to "inform the prosecutor of the identity of the witness in relation to whom they seek an order". The first thing that the Law Society asks is how that would sit with the duty of disclosure the prosecutor would then owe to other defendants. They say: "What if the defence witness has reasonable grounds to fear reprisals and a threat to their safety from corrupt police officers?" They say that while it may be okay in some cases there is no provision to allow for circumstances where that would be inappropriate; and suggest that the principle of equality of arms for prosecution and defence is displaced to a disproportionate degree by this provision. That is the burden of what they say. What is your reply to that?

Sir Ken Macdonald: I do not agree with them. I think the fact of the matter is that in this sort of situation the different parties on occasions have different relationships with the court. The Bill envisages a situation in which it is appropriate for the prosecution not to disclose to the defendant the identity of a witness because that identification might threaten the safety of the prosecution witness. I do not accept that by requiring the defendant to inform the Crown of the identity of his anonymous witness that he is under threat. I think that you could quite easily imagine a situation in which the judge would be perfectly content that that material is not disclosable to co-defendants. Of course you might have a situation where the judge took the view that it would have to be disclosed to co-defendants, and in those circumstances the prosecution would always have the option of abandoning the trial rather than complying with that direction, which is something we sometimes do in PII cases.

Q17 Lord Lester of Herne Hill: Thank you very much for that helpful answer. The second and perhaps more important point they raise is about clause 4 and the conditions for making the order. They point out, as seems to be clear, that the conditions are very, very broad. "The test of necessity in clause 4(3) is very low in that, by condition A in clause 4(3)(a), it must be necessary to 'protect the safety of the witness...', but there is no requirement that any actual threat has been made..." They go on to criticise that. Then they say this: "Thus, it appears possible that an order could be made in relation to a witness in any criminal case, regardless of how serious it is alleged to be, who claims a general non-specific unease about testifying openly, and who therefore refuses to testify, without any actual threat or any suggestion of fault on the part of the defendant ..." etc. They compare it with New Zealand, where the court must find that the safety of the witness is likely to be endangered. They say that the other test "to prevent real harm to the public interest" is particularly unclear and potentially very wide indeed. Those are all criticism over broad discretion and an absence of sufficient safeguard. I wonder if you could deal with those?

Sir Ken Macdonald: I think it is important to look at clause 4 in its totality. It includes, of course, subsection (4) which requires consistency with a fair trial. I think, so far as the drafting is concerned, in all fairness this is a really a matter for Parliament to determine for itself. I think that it is perfectly clear that one effect of this Bill will be that there will be less applications for anonymity in the future than there have been in the past. I would be very surprised if these applications were not being very carefully scrutinised by judges. I can understand what they are saying but I think the precise terms of the drafting are really a matter for Parliament to decide.

Q18 Lord Lester of Herne Hill: Because the Human Rights Act trumps everything in terms of a fair trial?

Sir Ken Macdonald: Yes.

Q19 Lord Lester of Herne Hill: Therefore the judge has got to get it right?

Sir Ken Macdonald: Yes.

Q20 Lord Lester of Herne Hill: If a judge got it wrong there would be 50 mistrials and 50 sets of litigation arising from pending cases which would very bad indeed, but you think that is not a likely outcome?

Sir Ken Macdonald: I do not think it is. I think the fact is that the fairness of the trial, as you have indicated, trumps everything else in this process, and that is the first conclusion the judge has to come to - that if I allow this order the defendant can receive a fair trial.

Q21 Dr Harris: Could I just ask you as a follow-up, on this issue of disclosure to the prosecutor it is written in terms of "must". The defendant must inform the prosecutor, and that is an invariable. What is the overriding need for the judge to be forced to have no discretion in that matter? Why are you as head of prosecution supporting and presumably demanding of this provision in 3(2)?

Sir Ken Macdonald: If we are anonymising a witness we are under a legal duty to disclose certain material to the defence around the credibility of that witness. That is an obligation on us under basic disclosure principles. There is no such obligation upon the defence. They could call an anonymous witness without telling us who that individual was, and without telling us anything at all about that witness's antecedence, his character, his associations, or anything which would enable us to at least go some way to be capable of fairly cross-examining him.

Q22 Dr Harris: Could you not achieve what you want by a combination of a reciprocal duty of disclosure of that sort of material where it is helpful to the prosecution, and mirror, as it were, together with a discretion for the judge?

Sir Ken Macdonald: I do not think so. I think that those sorts of checks have to be conducted by a state agency, otherwise one is simply relying upon assertion. If we do a check as a prosecution, we check criminal records, we check intelligence files and we check all of the databases which the Crown and the State has access to. If the defence are conducting those sorts of inquiries these are not subject, so far as I can see, to any quality control at all and I think that is too much of a risk. I think the danger is that you simply have people calling witnesses about whom no-one really knew anything at all, and I think that could devalue the trial process.

Q23 Dr Harris: In terms of the considerations that must be made, you will be aware that although the Bill purports to model itself to a degree on the New Zealand legislation, not all of the considerations included in the New Zealand legislation are included in clause 5. I was wondering what you thought about the merits of including as considerations the principle that witness anonymity orders are justified only in exceptional circumstances; and that the gravity of the offence must be a factor, and that partly overlaps some of the other issues by talking about the solely or decisive extent on the testimony. There is a question of the importance of the witness evidence and of other corroborating evidence. On those two - the gravity of the offence and the principle of exceptionality, if I can call it that - they are missing from this Bill, although included in terms in the New Zealand legislation. Could you explain that?

Sir Ken Macdonald: I think exceptionality again is a matter for Parliament really. I know some of these proposals are going to go forward as amendments and I do not want to get involved in a debate about that. So far as exceptionality is concerned, the Bill really speaks for itself. It sets out a scheme which is clearly designed to apply only, it seems to me, in exceptional circumstances. It seems to me to do it quite carefully; it seems to me to make it plain that this is all subject to the fairness of the trial; and at 4(6) it requires the court: "In determining whether the measures to be specified in the order are necessary for the purposes mentioned, the court must have regard (in particular) to any reasonable fear on the part of the witness - that the witness or another person would suffer death or injury, or that there would be serious damage to property. This use of the word "reasonable" in this subsection is extremely important because it implies the court would have to enquire into the fear to determine whether there was some basis for it; and that is implicit.

Q24 Dr Harris: Yes I was going to come on to that. My questions were about (a) exceptionality and (b) another example is the gravity of the offence. Of course Parliament is going to vote and we are not going to be mandated by you, but Parliament looks to certain people providing evidence to select committees for advice, as on 42 days, and then we vote. I am asking whether you would have a problem from your point of view in, for example, the gravity of the offence being included within that non-exhaustive list of considerations?

Sir Ken Macdonald: I think you would need to define "gravity". I am not trying to be difficult. Let me give you an example: there are some cases at the moment which are heard really in the magistrates' court but which nevertheless are cases under terrorism legislation, having an article for a terrorist purpose, and one or two other offences in that category, possession of an article useful to a terrorist, membership of a proscribed organisation, terrorist training offences, encouragement of terrorism, distribution of terrorist material. These cases can be heard in the magistrates' court. Query whether they are grave offences; I do not know. I think it is probably true to say though that it is very, very unusual, and I am not sure we have come up with a single case in which anonymity has been sought in the magistrates' court. I am not saying it has never happened. I think we have come up with one youth court case but our trawl has not revealed much of a level of witness anonymity in the lower courts.

Q25 Lord Lester of Herne Hill: In principle I cannot understand why gravity of offence is a relevant factor given that there should be a fair trial in all cases and the problem of anonymity arises in all cases. Why should that weigh as an important relevant factor; it cuts both ways, does it not?

Sir Ken Macdonald: I see your point.

Q26 Dr Harris: So do I! Turning to this issue of property which you touched on in answer to one of my earlier questions, as I understand it, Lord Mance in his summary of the recommendations of the Committee of Ministers of the Council of Europe states that: "Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that: the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened." There is some argument in the New Zealand analysis that European jurisprudence would not be satisfied if it was merely - and I use that term relatively speaking - a threat to property rather than a threat to property that included a risk to life or injury to the individual.

Sir Ken Macdonald: I rather doubt that myself. If you take a simple threat: "You give evidence and I will fire-bomb your house," that is a pretty serious threat which the court might want to regard as a serious threat which might justify, in appropriate circumstances, consistent with a fair trial, anonymising the witness.

Q27 Dr Harris: Of course that would clearly, to any reasonable person, imply a potential risk to life or injury to a person because that is fire-bombing a house. I am questioning whether in circumstances where it was alone, as could be formulated (it not an "and/or", it is an "or" in 4(6)(a)and (b)) where serious damage to property alone in the absence of a threat or likelihood of death or injury to a witness or another person would be sufficient, not just in your view but in your judgment of European jurisprudence?

Sir Ken Macdonald: Yes, I think it would be. I can imagine some threats to property could be trivial and other threats to property could be very serious, short of a threat to life or limb.

Q28 Dr Harris: I accept it could be so; I am just asking whether or not you think that would be sufficient.

Sir Ken Macdonald: I think it could be, yes.

Q29 Dr Harris: To qualify under case law.

Sir Ken Macdonald: Yes, I think it could be.

Q30 Dr Harris: My final question is just coming back to something the Chairman asked earlier. Is it not a surprise that there is no data on the number of anonymous witnesses? I would have thought that someone somewhere would have been interested, short of academic research but even with academic research, in counting, following the progression and analysing.

Sir Ken Macdonald: We have had anonymous witnesses ever since I have been practising law and I started in 1978. We have called undercover police officers under pseudonyms and test purchase officers and surveillance officers from both the police and security services who follow people around and give evidence under letters of the alphabet. We have done this for at least 30 years to my certain knowledge. So far as I am aware, I drafted and signed the first authorisation for a fully anonymous civilian witness in, I think, 2004 in the case of Ellis, which was the case of the two young cousins who were shot down in a street in Birmingham while they were waiting in a queue to get into a night club, and since then we have had a number of those. Ellis went to the Court of Appeal on an interlocutory appeal and the judge's ruling that we could anonymise the witness was upheld. The conviction was upheld in the Court of Appeal. All of these cases have been upheld in the higher courts until this one. We have an electronic case management system which does allow us to flag certain types of cases. We flag rape cases; we flag some cases of racial violence; we flag other types of cases, but, by and large, if a case is following a completely lawful procedure, which this was, and was always believed to be, there would not have been any desire on our part to flag it and that is why we did not do it. We have made a pretty careful analysis of how widespread these cases are and out of the 1.2/1.3 million cases we prosecute every year, we found about 50 current which involve civilian witnesses so it seems to me to be a very small number. I have seen some figures bandied about in the newspapers by lawyers in particular that there are hundreds of these cases. They must be referring to cases including those which are not very controversial involving undercover police officers and surveillance officers. There are not hundreds of civilian witness cases. There is a very small number, as I say 50 out of 1.2/.3 million.

Q31 Dr Harris: You are going to count them from now on?

Sir Ken Macdonald: We are going to require from now onwards every time an application is made, that it is logged so that we can see what is happening. The reason we are doing that is because this is a new piece of legislation and we want to be able to assess how it is working in practice. One of the things we will be looking at is the numbers of cases we are no longer able to prosecute which we were prosecuting in the past, their character, and what we think the consequences will be.

Q32 Lord Lester of Herne Hill: The European Court of Human Rights itself uses anonymous witnesses ---

Sir Ken Macdonald: Yes, I did know that.

Q33 Lord Lester of Herne Hill: In the Irish state secrets case behind screens in Stravangar.

Sir Ken Macdonald: I saw an article that Geoffrey Robinson wrote in the Guardian this morning. I have a great deal of respect for Geoffrey but the truth is that the Strasbourg Court has never had any difficulty with anonymous witnesses. It simply wants to set down conditions under which anonymity can be granted, and anonymity can in very many circumstances be entirely consistent with a fair trial.

Q34 Chairman: Do you think there will be fewer cases of anonymous witnesses as a result of this Bill?

Sir Ken Macdonald: Probably but not many fewer because I think the vast majority of cases involving anonymous witnesses are the police officer and security service cases. My own judgment on this is that the courts will still allow these witnesses to give their evidence anonymously. I think it is sub-clause 4(3) which speaks of carrying out activities in the public interest which is intended to allude to that situation. I think it would be very rare indeed for the fairness of a defendant's trial to be compromised because two officers who were following them around were allowed to give evidence as letters of the alphabet.

Q35 Chairman: So it is the 50 civilian cases?

Sir Ken Macdonald: I think those are the ones which are going to be impacted. That is of concern obviously because these are the cases about which there is most public concern. These are the Operation Trident cases; these are the cases involving shootings in night clubs and on the streets of London, and there will be public concern, I have no doubt, about the fact that we may no longer be able to prosecute some of these cases. On the other hand, that is how the rule of law operates. Courts look at cases, they look at how situations are developing, and they make judgments.

Q36 Chairman: Do you know how many untried cases we would have?

Sir Ken Macdonald: At the moment I think there are about 30 but I am very reluctant to be quoted on that. I can send you the figures.

Q37 Chairman: I think that would be helpful, particularly if you can do them quickly bearing in mind that it will be in the Lords soon.

Sir Ken Macdonald: I am sure I can get the figures through this afternoon.

Q38 Chairman: Of those 30, how many do you think might be in jeopardy?

Sir Ken Macdonald: I cannot say. It would depend how many involved witnesses who were known to the defendants and themselves involved in criminal activity. Of course one of the features of these cases is that when these shootings take place in premises, often the people on those premises are themselves involved in criminal activity. As I have said earlier, that is sometimes why people are unwilling to come forward to give evidence, although fear obviously also plays a part.

Q39 John Austin: If we are not to fall foul of the ECHR this Bill has got to strike the correct balance between the rights of the defence on the one hand and the interests of victims and witnesses on the other. Can you tell us whether you feel that the Bill in its present form strikes that correct balance?

Sir Ken Macdonald: My own judgment is that it does and largely because, as I have said before, it attaches such primacy to the need for the defendant's trial to be fair. In other words, the judge can look at all the powers that he is given or she is given in this Bill and reject using any of them on the basis that to use them would make the trial unfair.

Q40 John Austin: You said earlier on in your opening remarks that the right to a fair trial was not a balanced right and if I can refer to your lecture to the Criminal Bar Association last year you referred to an "irreducible minimum" of the right to a fair trial.

Sir Ken Macdonald: Yes.

Q41 John Austin: You are content that the use of anonymous witnesses fits in with your robust defence of that irreducible minimum of the right to a fair trial?

Sir Ken Macdonald: If it is done in this context with the judge exercising that judgment and remaining loyal to the need for the defendant, the right of the defendant to have a fair trial, and if we avoid situations where the credibility of the witness is seriously an issue, particularly if he has some connection with the defendant, and if the judge takes care to ensure that the fair cross-examination of this anonymous witness is not unduly compromised by anonymity then, yes, I think it can be done consistent with a defendant's right to a fair trial but this is a difficult procedure over which the judge has to take a great deal of care.

Q42 John Austin: Could I pursue the point of the potentially dodgy witness. Writing in The Times David Pannick said: "... a defendant who pleads not guilty will be hindered in challenging the evidence of a crucial witness who is anonymous. Defendants will almost always be able to say that because of the anonymity, their counsel was prevented from testing whether the witness had a motive for lying ..."

Sir Ken Macdonald: Again, I have enormous respect, it goes without saying, for David Pannick; I just think he is wrong about that. I think it is quite easy to imagine scenarios in which the defendant's cross-examination would not be compromised at all. I have given the example of the old lady who writes down a number plate. There are plenty of other examples that one could come up with. Of course there are plenty of examples where his cross-examination would be compromised, but the Court of Appeal is not going to listen to preposterous scenarios from the appellant's counsel here. They are going to want to know that there was real compromise to the cross-examination, not imagined or fanciful compromise. Of course you can always assert that you have been compromised but I think the Court of Appeal is going to expect people to demonstrate it. The Court of Appeal of course will know who the anonymous witness was and will know their character and will know their connection, if any, to the defendant, so they would be well-placed to judge whether the cross-examination was indeed compromised, as of course would the trial judge. I do accept that it is a very uncomfortable place for defence counsel to be because he is making submissions to the court without knowing necessarily whether the submissions he is making are relevant or not, but we are very familiar with this scenario, we have had it in public interest immunity submissions for years. I have frequently made submissions to the court as a defence lawyer about a subject I knew nothing about, in other words material which I imagined was in a particular category being withheld when in fact it was in an entirely different category. Often you could judge by the blank expression of the judge while you were addressing him, but sometimes you could not!

Q43 John Austin: Finally, the Government has said that it will repeal the provisions in the Bill and replace them with a new Law Reform, Victims and Witnesses Bill. Are you content with that?

Sir Ken Macdonald: I think that is entirely a matter for Parliament. So long as we have got something in place that is what we need. I think that is really a matter for the Government and for Parliament.

Q44 John Austin: So do you think the current arrangements for witness anonymity should be changed in that Bill?

Sir Ken Macdonald: I think broadly the Bill, from my perspective, looks satisfactory.

Q45 John Austin: Notwithstanding the Government's announcement of its intent to bring in new legislation which will have greater time for consideration?

Sir Ken Macdonald: That is in the autumn? I do think there is some urgency about this and I have made that plain before. We have cases which are current, cases which are being tried, cases which are about to be tried, and if the law is to be changed, then I think it does need to happen swiftly, consistent with the law being carefully drafted. I have not just spoken to ministers about this; I have also, as is common in my post, spoken with leading Opposition figures, and my impression of this is the problem (and it is a sensitive one) is being approached in a measured and careful fashion on all sides.

Q46 John Austin: Notwithstanding the promise of future legislation, do you think there should be a sunset clause in this Bill?

Sir Ken Macdonald: I do not think I have a view on that. That is really a matter for Parliament. Sorry not to be able to help you.

Q47 Mr Sharma: Do you think the Bill should provide for special advocates to present the interests of the accused at the hearing of applications for anonymity orders?

Sir Ken Macdonald: The judge has discretion in all criminal cases to appoint a special advocate if he or she wants to, and I could imagine there may be some circumstances in which a judge might want to do that. Whether it is on the face of the Bill, again is a matter for Parliament. A judge can do it anyway and you could argue that it is unnecessary to place it there because it can happen in any event.

Q48 Lord Lester of Herne Hill: I do not think a judge could do it in the magistrates' court. Sir Ken Macdonald: That may be right.

Q49 Lord Lester of Herne: There is a concern as to the significant doubt as to whether this can apply in the magistrates' court unless the Bill included a specific provision. The Law Society are concerned about this point and they say that this should be a right written into the Bill. The Government looks as though it is going to do a Pepper v Hart statement instead, simply a statement of the kind that you have just made yourself. Is this not sufficiently important to require some express statutory provision not only in the High Court but the magistrates' court? The Law Society have got it on the last page.

Sir Ken Macdonald: Would you just give me one moment. I think if the magistrates' court has no power to appoint a special advocate, 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. As you know, Lord Lester, the special advocate's ability to assist a court is somewhat hampered by the fact that he cannot take complete instructions from the defendant, but most people would say it is better than nothing, and I think if it is not possible for the magistrates' court to make that appointment then it would be worth considering some provision to occur. My point remains in the crown court, where I think these applications are much more likely to find themselves, that that power is already possessed by the court.

Q50 Mr Sharma: Would that be an appropriate role for special advocates to play in a criminal trial?

Sir Ken Macdonald: They already do play a role in criminal trials in public interest immunity hearings from time to time. Although their use is not very common it is envisaged in the leading case of H v C where Lord Bingham makes reference to it as a possibility, so special advocates are not unheard of in criminal trials, they are rarely used, but I can imagine situations in which a judge might feel that he or she would be helped by a special advocate in an anonymity application.

Q51 Lord Lester of Herne Hill: Could I just come back to one point on the special advocate. You rightly say, Sir Ken, that there is an inherent power already in the crown court and we know that in SIAC cases the rules of procedure spell out rather helpfully exactly what should apply in such eventualities. Would it not be desirable that the rules of procedure in the criminal sphere as well make it clear how this is to be applied?

Sir Ken Macdonald: I am not against it. I do not have strong feelings one way or another as to whether it should be on the face of the Bill. I think the availability of special counsel is very well-known.

Q52 Lord Lester of Herne Hill: I was not saying on the face of the Bill, the delegated rules of procedure.

Sir Ken Macdonald: It is something the criminal rule procedure committee, of which I am a member, could certainly look at; no question.

Q53 Chairman: One short one from me: do you think that the process that is set out in the Bill now is going to be sufficient to throw up those cases to the judge where there is a risk of credibility coming to light?

Sir Ken Macdonald: I should have thought so, yes, because if you look at the conditions that have to be passed, I think that will be clear. I also think the case law will develop on this very rapidly and the Court of Appeal will be passing down judgments in the pretty near future about how this Bill ought to be interpreted and how courts ought to proceed.

Q54 Chairman: And there is no doubt the trial judge will know the identity of the anonymous witness?

Sir Ken Macdonald: Always.

Q55 Dr Harris: Could I just raise a question about clause 4(3), the public interest provision. My understanding of what you were saying, and we have this from JUSTICE as well, is this is designed to deal with the case of undercover police officers precisely as you have said, which is arguably less controversial. Would you accept that one could argue that that is drafted quite widely and could be more narrowly drafted to make clear that it is about anonymous undercover state agents essentially and not much else otherwise it could be read as a wider public interest and that creates more doubt and more scope?

Sir Ken Macdonald: It talks about preventing real harm to the public interest and then "whether affecting the carrying on of any activities in the public interest or the safety of a person carrying out such activities", which would be predicated ---

Q56 Dr Harris: "Or otherwise".

Sir Ken Macdonald: Or otherwise, but the predicate is preventing real harm to the public interest.

Q57 Dr Harris: I understand that but that is broader than what I had thought that you were referring to, less controversially than the rest, which was the need to provide anonymity to preserve the activities of undercover police and related matters.

Sir Ken Macdonald: Security service people and so on.

Q58 Dr Harris: I am questioning whether that is not significantly broader.

Sir Ken Macdonald: I would not necessarily want to restrict it to that. There may be other activities that I cannot think of at the moment. My own judgment is that the courts will interpret this stuff pretty strictly.

Q59 Dr Harris: I am not disappointed in you personally but I am disappointed that this close to this going through the House of Commons that the prosecution authorities are not clear, at this point anyway, why this could not be narrowed to deal with the undercover agent and his or her potential to work in the future.

Sir Ken Macdonald: I am clear about it; I do not think it should be. My answer is that I do not think it should be restricted further because there may be other activities in the public interest which need to continue in order to prevent real harm to the public interest. I am not saying that I have not come to a view about it; I am saying I have got a view about it which is that I think this subsection is appropriately drafted.

Q60 Dr Harris: An alternative view is that someone could think of those and list them?

Sir Ken Macdonald: Possibly.

Q61 Chairman: Thank you very much. Before you go, can I be a little bit cheeky and ask you one question about the threshold test in terrorism cases, a question that was thrown up by our debates in the Commons, and you probably saw the debates.

Sir Ken Macdonald: Yes I did.

Q62 Chairman: When you charge under the threshold test, do you do that as soon as it is possible to do so or do you wait to see if more evidence were to materialise which would enable you to charge with the more serious offence or the same offence on a full code test?

Sir Ken Macdonald: It would depend. I think it is quite important to understand that in the sort of investigations which we have been talking about around the 42 days debate these are very complex investigations in which simply seeing the evidence against a particular defendant on day 12 might not provide you with enough evidence to charge on either test until you have seen where everyone else fits in and what the overall picture is, say, on day 24. You need to imagine what is happening here. What is going on here is that we have got a couple of prosecutors or three prosecutors over in Scotland Yard. They have a big chart on the wall. Evidence is being fed into them on an hourly basis and they are drawing graphs and diagrams and links and names and details and it is all unfolding hour by hour, and they are having to make judgments as best they can on the overall picture against particular named individuals and they are under pressure of time. One of the observations that has been made that even if it were the case that all the evidence that was used to charge someone on day 18, say, was available on day five is really nothing to the point because it is perfectly common in these sorts of the investigations to need to see the overall picture before you can decide what the position is in relation to a particular defendant. So far as the threshold test is concerned as to whether you move immediately to that or hold off if you think there may be a full code test coming up days further down the line, I would have thought the more conventional approach would be to charge on the threshold test unless you felt pretty confident that the further material was going to be forthcoming. I do not want to be setting out any religious doctrine here because I do not believe there is any. This is an organic situation which is very fluid. What I can say is that so far as I am aware in every case where someone has been charged in a terrorist case on the threshold, that case has passed the full test within a reasonable period and of course we do not take people to trial unless the full test is passed. That is a slightly long answer but what I am really trying to get across, Chairman, is that this is a very fluid and fast-changing situation and it is not possible to be absolutely prescriptive about the way it happens.

Chairman: I think that is very helpful. It is one of those issues that was troubling the Commons. Thank you very much for your evidence.

Witness: Mr Patrick O'Connor QC, Doughty Street Chambers, gave evidence.

Q63 Chairman: Our second session this afternoon is with Patrick O'Connor QC, who is a very experienced defence barrister. We are grateful to you for coming to give evidence at short notice. Can I just say, we are under a lot of time pressure so, colleagues, short questions and preferably short answers, if we could. Perhaps we could start off by putting to you one of the things the DPP told me at the start when I put to him the point about Northern Ireland not requiring anonymity. He said we do not know how many cases were not prosecuted because of that and in relation to the Richardsons and the Krays in the 1960s we might have been able to prosecute them much earlier and they would not have been able to have their empires go on for so long if they had these powers available. How would you answer that?

Mr O'Connor: They were seductive answers but the problem is far deeper. There is very substantial ground for pausing for thought before accepting that the problem is currently unmanageable and that this particular Bill is the answer. May I give you four very short reasons for it, going into history. First of all, the House of Lords gave everyone the benefit of a survey of the common law world and they pointed out that in the United States, South Africa, the 47 Council of Europe countries, they operate not only without a provision such as in this Bill but without any discernable pressure for change. It can scarcely be said that there is a lesser problem of gun and gang culture in South Africa and the United States than here. I deliberately add, of course, it would be easy to say, "Well, maybe they are just not enforcing the law properly because of the problem", but there is no pressure for change there. Secondly, much closer to home, an even starker contrast is with Scotland. Lord Rodgers, one of the five Law Lords in the Davis case, was Sir Kenneth's equivalent in Scotland for many years and he himself points out that the right to confront witnesses is embedded in statute in Scotland and there is no pressure for change, no discernable problem. It can scarcely be said, for instance, that Glasgow is entirely free of drug gangs using firearms who will be seeking to intimidate witnesses. One does not need to have seen the film Trainspotters to see that drug gangsters are no respecters of boundaries. So we introduce here two entirely contrasting systems, depending upon the accident of where people are arrested for exactly the same crime north of the border or south of the border. Thirdly, the only piece of hard allegation even that there has been such a very significant increase in witness intimidation is the assertion that there has been a doubling in the number of convictions for witness intimidation, and let us assume that is correct, that is highly ambiguous because surely the worse the problem of witness intimidation almost certainly the fewer convictions for interfering with witnesses you are going to get. The time to really worry is when there are no successful prosecutions of such people, that might actually be a good sign. The fourth is a very striking admission just made by the Director to you and that is what has been happening in magistrates' courts over the last four or five years where the common law has allowed for anonymity applications to be made. I think it is 98 per cent of criminal trials in this country take place before the magistrates' court. Those courts can sentence people to up to 12 months' imprisonment for quite serious offences. Very many of those cases will involve accused persons who will have no compunction about wanting to intimidate witnesses, and may well try to, they may be between neighbours, friends, et cetera, and yet Sir Kenneth could not come up with one example, even though it was possible for prosecutors to do so over the last four or five years, for such applications to be made. That is quite remarkable. We are not playing around, therefore, with hypotheses about whether the Krays could have been stopped earlier or anything, we are talking about the rest of the common law world, we are talking about Scotland, we are talking about a striking lack of evidence of this being an overwhelming problem and we are talking about statistically a hugely significant position in the magistrates' courts over the last five years. Pause for thought over whether the problem is really so bad and whether this Bill is the answer.

Q64 Chairman: Is there any evidence, do you think, of witness intimidation increasing?

Mr O'Connor: I tried to deal with that. There is no concrete evidence. The single factor is the doubling of convictions of people for witness intimidation. That may or may not mean that it is on the increase. How have those accused persons been convicted?

Q65 Lord Lester of Herne Hill: Can I ask one question about the magistrates' court. Do they have the power to allow special advocate procedures to apply?

Mr O'Connor: No, not that I know of.

Q66 Lord Lester of Herne Hill: That was my understanding too.

Mr O'Connor: I do not think so.

Q67 Lord Lester of Herne Hill: Is that not a serious problem in relation to this Bill so far as the magistrates' courts are concerned?

Mr O'Connor: There are further anomalies with the magistrates' court and that is, of course, that the justices are the tribunal of fact.

Q68 Lord Lester of Herne Hill: No, I was not asking about that, just about special advocates.

Mr O'Connor: No, I realise that, but special advocates, of course, in the crown courts address the judge on background material not disclosed to the defence to assist the court to make orders about evidence. The judge in the crown court is separate from the tribunal of fact, which is the jury. In the magistrates' court it is the same tribunal. You have a whole concatenation of separate problems with the justices being the tribunal of fact being prejudiced by being exposed to ex parte material. It is like a special advocate in the crown court addressing the jury; it cannot happen. There are whole layers of problems when this arises in the magistrates' court.

Q69 Lord Lester of Herne Hill: My question is simply as with SIAC, which is a mixed tribunal as well, as you know, there is a special special advocate procedure. As far as I am aware in the magistrates' court there is no such procedure at all and, therefore, the special advocate can play no role if this Bill becomes law unless the Bill is amended or there are special rules of procedure. I just want to find out whether that is right or wrong.

Mr O'Connor: I think that is correct. The role of the special advocate may prove crucial in some of the more controversial cases, thus there is even less counter-balancing of the disadvantage to the defence in the magistrates' court than there is in the crown court.

Q70 Chairman: Is your position effectively that you should not have anonymous evidence at all?

Mr O'Connor: Certainly not. I really do not want to be characterised as being simplistic. No, I go with the ratio of the Davis case which is that you cannot have a safe conviction consistent with common law or with Article 6(1) of the European Convention based upon anonymous evidence where it is the sole or decisive evidence. I finish the quotation, that was the certified question in the Davis case, but inherent within sole or decisive will be some other factors brought up by Lord Mance very helpfully and pointing out that the question will most acutely arise where the witness's credibility is an issue. There I think Sir Kenneth, if I may say so, was going into the correct territory and pointing up the core of the problem. There will be witnesses whose credibility is not in issue. I am perfectly prepared to accept that there may be anonymous witnesses in cases which may lead to safe convictions where that is the case.

Q71 Lord Dubs: Do you believe that convictions principally based on anonymous evidence will automatically be in breach of the right to a fair trial under the ECHR?

Mr O'Connor: Where it is the sole or decisive evidence, yes, and that is a well-established test.

Q72 Lord Dubs: Otherwise not?

Mr O'Connor: That is right. Not necessarily. May I say, we have touched upon this test of sole or decisive, there is nothing new in this at all, nothing surprising, nothing that should have caused this apparent atmosphere of crisis and panic surrounding this Bill. As the Law Lords pointed out, first of all, the ECHR case law has used this as a test since 1989 but, far more tellingly, there was a meeting of the Council of Ministers in 1997, it is mentioned at paragraph 79 of the Davis decision, at which presumably our Home Secretary was in attendance at least, where the Council of Ministers was considering this whole problem of witness intimidation and the use of anonymous witnesses. Paragraph 13 of the recommendations of the Council of Ministers issued then said: "Where anonymity has been granted the conviction shall not be based solely or to a decisive extent on the evidence of such persons". Now that means our senior politicians responsible for this area of policy as well as all our prosecutors have well-known that sole or decisive is a critical criterion for a fair trial with anonymous witnesses. No surprises at all, no explanation I have seen why the authorities have not chosen to legislate upon this before. What they have done, I venture to suggest, is taken an enormous chance. It is entirely predictable that the Law Lords should have found as they did. The state of Convention Law was pretty clear; the policy of the Council of Ministers was petty clear, but they had taken an enormous chance and vested all this credibility over the last four or five years on, I would venture to suggest, pressurising our judges by saying, "Here is a witness intimidation case, we cannot proceed unless you allow this procedure to be followed" knowing that it was very fragile. The gamble has not paid off and the distress of the families of victims at the Law Lords ruling is not to be attributed to the Law Lords, you are going to go well beyond The Sun headlines which suggest that "Law Lords completely disable law enforcement in this country". This Bill is the product of a policy of prosecution authorities and a government which has been pursued as a matter of choice over the last five years and it has gone terribly wrong and they are coming along to Parliament now and saying, "Please help us out. Suspend all your usual procedures. Do not look for hard evidence of how serious the problem is. Do not examine how South Africa, the United States, Scotland are coping without these measures. Push it all through for fear of tabloid headlines criticising you". That is the real position now. There is no objective reason for this panic, it arises out of informed choices made over the last five years.

Q73 Chairman: I think the real fear is very nasty people presently in jail will be released who perhaps should not be.

Mr O'Connor: But they are in jail under conditions which have resulted from these informed choices of pursuing this line and they were taking a risk and it has gone wrong.

Q74 Chairman: Do you think the Bill does not provide for sufficient safeguards to allow for fair trials?

Mr O'Connor: There are several problems with the Bill. If one goes to paragraph 50 of the Explanatory Memorandum, I am afraid it runs rather counter to what the Director was telling you. Paragraph 50 of the Explanatory Memorandum says, "The Bill will not generate new costs. It aims to restore the law to, broadly, the position it was believed to be prior ..." in, not a very grammatical sentence "... prior to Davis". That is not what the Director has been telling you. If that is the policy behind this Bill it aims to overturn Davis. As has already been pointed out in several respects by Dr Harris, there are three respects in which the model New Zealand Bill has not been followed and they give the same cause for concern, most particularly no reference to these being exceptional cases; secondly, no criterion for the judge to consider as to whether it is the sole or decisive evidence for the prosecution.

Q75 Chairman: But there is an amendment coming forward from the Government to that effect.

Mr O'Connor: I did not know that and I am glad to see that. Thirdly, no factor equivalent to section 112(4)(b) in the New Zealand Act relating to whether credibility is in issue. Again, if they used that Act as the model, they have deliberately chosen in the Bill, subject to later amendment, to leave out those critical factors in the New Zealand provision. I fear also that the legislation creates a culture, it creates an ethos. I have been reading recently your report, Sir, on the Secure Training Centres (Amendment) Rules and the warning shot that passed across the bow. It was the Lord Bishop of Worcester in the House of Lords debate on those who pointed out that legislation creates a culture, creates an ethos. This is a slippery slope. There is no provision for any protection at the critical interface between the police officer and the witness.

Q76 Dr Harris: In the list of missing ones, you mentioned witness credibility and I think that is not a missing one because that is there in 5(2)(b). The missing ones from the New Zealand test were the New Zealand law of the gravity of the offence, which, as you heard Lord Lester argue, could go both ways. My first question to you will be do you think it is wise that is left out because it does not seem to be worth putting in when that could go both ways. I think corroborating evidence was another one that was missed out, not credibility.

Mr O'Connor: Yes. It is corroborating evidence, forgive me, and whether it is an exceptional case.

Q77 Dr Harris: Yes. On this point about the bit of the Explanatory Notes, is it your contention that if we are going to have this Bill it should not be seeking to overturn Davis and you are saying that part of the Explanatory Notes, which does not bind the Government to agree the drafting of that Bill, states that, but is it that it just wants to take out some of the implications of Davis? Is that what you think the Bill should be seeking? I know you are not a great supporter of the Bill but as a worst case scenario as far as you are concerned it should not be able to change the finding in an equivalent case to Davis but should allow some anonymous witnesses through.

Mr O'Connor: Yes.

Q78 Dr Harris: Do you think it does that? In other words, if this Bill was in force now and the facts of Davis were replicated as far as we know, would Davis get through this as permitted? Would the anonymisation be permitted or would an appeal succeed more easily or not in your view?

Mr O'Connor: A Davis kind of case should not be facilitated by this Bill. The problem is there is an ambiguity about it because of the Explanatory Memorandum and the important inconsistencies within New Zealand legislation.

Q79 Chairman: We do not actually know what the true facts of Davis were either, which does not help.

Mr O'Connor: Yes.

Q80 Dr Harris: Just let me come back to a couple of the questions that I asked the DPP. Firstly on this question that Lord Lester, who is not here now, raised, which is the provision that the defence must tell the prosecutor the identity of their applied to be anonymous, and presumably granted, witnesses. You heard that exchange. He said that was necessary because only the state authority could rightly explore some of the questions of credibility here. Do you have a view on that, on the equality of arms point?

Mr O'Connor: It should be a matter of discretion, which was your position. I do not think there has to be an absolute rule. There may well be defence witnesses whose fear arises out of the possibility of retribution from state agents and without safeguards, Chinese walls, so that telling the prosecution would not lead to leaks to others from whom the threat may come, if that is the fear, this is far too open. This should be a discretion, not a duty.

Q81 Dr Harris: Is that a grounded fear because elsewhere you might argue that merely an assertion of fear is not sufficient to justify one of the conditions of anonymity being met? Have you got evidence that this is a reasonable fear grounded on precedent in this country?

Mr O'Connor: The courts should approach both sides equally in requiring more than an assertion of fear, whether it is the defence wanting to call an anonymous witness or the prosecution.

Q82 Dr Harris: On the question of serious damage to property capable of being a stand alone basis in respect of a reasonable fear, and at the moment, in the absence of any requirement that there be a probability or likelihood, let us just take a case of reasonable fear, what is your view, if you have a view, of whether the jurisprudence to date would suggest that would hold up if there was such a case where that was relied upon in the absence of any risk of death or injury to a person?

Mr O'Connor: In my view there is a tension in the Bill between the necessity, and the word is "necessary", is it not, for these orders to be made at all, and a question of damage to property would take a wholly exceptional case of pure threat to property which could render anonymity necessary within the Bill. So the property element is far too loose.

Q83 Baroness Stern: Could I ask you one rather quick question. In your view, should there be express provision in the Bill to prevent an accused from benefiting from his own wrong if he can be shown to a satisfactory standard to have been behind the intimidation?

Mr O'Connor: I recognise sensibly that in this area if it can be shown that the defendant is responsible for the problem he cannot complain that his Article 6(1) rights are being violated by the anonymity of a witness who he or she has actually intimidated. Article 6 is often misrepresented as being inflexible and a monolith; it is not at all, it is the opposite, it is intensely fact and case-specific, and in such a case there could be no credible, legal or moral complaint by the defendant.

Q84 John Austin: You made a great point of referring to the crucial issue as to whether the evidence from the anonymous witness was the sole or decisive factor. You also referred to convention case law which does recognise the need for balance between the rights of the defence and the witnesses and the victims. Are you saying that this Bill in its present form does not strike the correct balance between the rights of the defence, on the one hand, and the interests of victims and witnesses on the other?

Mr O'Connor: In my view it does not, if I can introduce some practical reasons here. This is a slippery slope. I heard today from a colleague of one case in which there are 100 witnesses claiming anonymity. I know of another where there are 23 witnesses claiming anonymity. What this Bill does standing alone is leave an open field for the problem I just very briefly alluded to before, and that is those critical dealings between the police officer approaching the witness and the witness. Certainly I have been told by a senior colleague of mine in chambers that he has had a case where it was exposed that it was the police who introduced the possibility to the witness, not the witness who raised it spontaneously, and the police who encouraged the witness to apply. As soon as you have a foot in the door, the door is pushed open with these number of cases over recent years. There is no independent check about what happens between the police officer and witness. The police officer may mention it first and the witness may well say, "Well, that's an idea". The problem is you then get a tick box approach because the judge is going to be presented with a special anonymity witness statement from the witness and as soon as you start getting criteria in the Act the statement will be drawn up in blank by prosecutors on the advice of the CPS. It will be tick, tick, tick, "I'm afraid of serious damage to property", or "I know of this person's previous convictions and he has intimidated other people before and I am afraid".

Q85 Chairman: The fear has to be a reasonable fear that has to be tested.

Mr O'Connor: Yes, but how is it tested by the defence? How is it tested in an adversarial way? The only way in which you could do it is by doing what trial lawyers call a voir dire, or a hearing in the absence of the jury where the judge hears the legal arguments and the factual disputes to decide whether the witness should be anonymous.

Q86 Chairman: The Government amendment is going to provide for both sides to be heard on the issue.

Mr O'Connor: Yes, but is it going to provide for the anonymous witness to be called anonymously to justify the anonymity during that procedure and how can the defence test the assertions by the witness when they do not know the identity of the witness? There are real problems here. In order to make this a much more watertight and safe procedure rather than just opening the floodgates, you are going to need some clear thinking about recording accurately and reliably the genuine first fears of the witness and they must not go according to some formula because it is just far too easy.

Q87 John Austin: Are these things which could be written into a Bill?

Mr O'Connor: They could be, but I think it is unrealistic to suggest they would be. They would have to be introduced by way of a code of practice or a protocol in order to ensure a fair consideration of this issue and to get round this problem of mere assertion, which is far too easy.

Q88 Chairman: Thank you very much. I am afraid we have run out of time. Thank you for coming and giving evidence to us, it has been very helpful to inform our debate this afternoon and next week in the Lords.

Mr O'Connor: I wish you a fair wind.

Chairman: Thank you.