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To assist the court in deciding an application for an order, Clause 5 sets out an indicative list of considerations to which the judge must have regard in deciding whether to make an order. These include the general right of a defendant in criminal proceedings to know the identity of his or her accuser and, following another amendment made in the other place, whether the evidence to be given by the witness might be the sole or decisive evidence in the case.
As well as the Bill applying to new criminal proceedings instituted after its enactment, Clauses 10 and 11 also include transitional provisions for existing proceedings and provide a framework for consideration by the Court of Appeal of any appeals against conviction secured on the basis of anonymous evidence. In either case, we want the trial judge or, as the case may be, the appeal court, to consider whether the court could have made the order if the new statutory regime had been in force at that time. If such an order could properly have been made, consistent with the defendant’s right to a fair trial, it is right that a trial where anonymous evidence has already been heard should be allowed to continue, or that an appeal against conviction should not be allowed.
The House will be aware from the front cover of the Bill that I have made a statement of compatibility with the convention rights under Section 19 of the Human Rights Act—as, indeed, did my right honourable friend the Lord Chancellor when the Bill was introduced in the other place. The Explanatory Notes to the Bill include a detailed assessment substantiating this statement of compatibility. I know that the Joint Committee on Human Rights is looking at that matter and has taken evidence on the Bill from the Director of Public Prosecutions.
The use of anonymous evidence in criminal proceedings self-evidently engages Article 6 of the convention. We believe that the scheme set out in the Bill will enable a
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The House will be aware that the Davisjudgment included a comprehensive analysis, by the noble and learned Lord, Lord Mance, of the Strasbourg jurisprudence on the use of anonymous witness evidence. The noble Lord noted that the European Court of Human Rights had repeatedly stated that the use of anonymous evidence is,
Moreover, the noble and learned Lord, Lord Mance, said it is not certain that,
- “there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence”.
We acknowledge that there will be cases, such as Davis,where the use of anonymous evidence, particularly when given by witnesses whose credibility is at issue and where it is the sole evidence, cannot be consistent with a defendant’s right to a fair trial. But, equally there will be many others, including those where the credibility of the witness is in dispute, where a witness anonymity order can legitimately be made without compromising the overall fairness of the trial.
I return to the question of timing. I am reminded, rather more frequently than I care to be, that if one legislates in haste, one can repent at leisure. This House should rightly test the need for emergency legislation of this kind. I have indicated that, in this instance, the Government firmly believe that legislation is needed as a matter of urgency. I welcome the co-operation and constructive comments that we have received from both opposition Front Benches. I, of course, accept that the debate in the other place and the debate we will have in your Lordships' House fall short of the time that should, in an ideal world, be devoted to these very important matters.
In recognition of that, we have given a firm undertaking to subsume the provisions of this Bill into the Law Reform, Victims and Witnesses Bill, which was announced as part of the draft legislative programme for the coming Session.
Lord Clinton-Davis: My Lords, notwithstanding the sunset provision, if before then it is established that there is innate unfairness, have the Government any plans to review the legislation earlier than is provided in the Bill?
Lord Hunt of Kings Heath: My Lords, one hopes that the Bill is so crafted that innate unfairness will not be evident. Indeed, the remarks that I addressed to the right to a fair trial are very much predicated on that point of view. As I said, we intend to introduce the Bill I mentioned in the next Session. Clearly, if unfairness arose in the way that my noble friend suggested, we would have to consider that in terms of individual cases and any amendments that might need to be
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The Appellate Committee of this House set us a challenge to devise a statutory scheme for the use of anonymous evidence which is compatible with the right of a defendant to a fair trial. We believe that this Bill fulfils that challenge and I commend it to the House.
Viscount Bledisloe: My Lords, before the noble Lord sits down, could he enlighten me on one point? He referred to evidence being given by serving police officers. Does he contemplate that any serving police officer could come within Clause 4(5) as being somebody who would not testify without an order? Surely a serving police officer has to give evidence if he is required to do so?
Lord Hunt of Kings Heath: My Lords, the cases to which we are referring are described as test purchase cases where the police officers involved need to act under cover. In many circumstances, it is very important that that their anonymity is preserved. However, the general provisions in the Bill, the conditions that will operate and the judgment that the judge will have to make provide the guarantees that the noble Viscount seeks.
Lord Thomas of Gresford: My Lords, I do not think that the noble Lord grasped the significance of the previous question. As the noble Lord pointed out, it is a condition precedent to the order being granted that the witness would not testify if the order were made. The judge has to be satisfied on that. It is not a consideration; it is a requirement. As the noble Viscount pointed out, that seems a bit odd when you look at Clause 4(3)(b), which refers to undercover operatives. Certainly, we on these Benches have no objection to undercover and security people being protected, but obviously they will give evidence if they have to.
Lord Hunt of Kings Heath: My Lords, of course, I am sorry if I misunderstood the point that was raised about the circumstances in which the officers would give evidence.
Lord McCluskey: My Lords, will the Minister kindly explain why the Bill’s provisions will not apply in Scotland? Is he able to say whether the Scottish authorities have it in mind to introduce appropriate similar legislation in the Scottish Parliament?
Lord Hunt of Kings Heath: My Lords, it was open to the Scottish authorities to go through the Sewel process. They have chosen not to do so. I understand that the Scottish Administration is considering this matter, but I believe that the Scottish Parliament is in recess. Therefore, it is difficult for me to comment
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Moved, That the Bill be now read a second time.—(Lord Hunt of Kings Heath.)
12.48 pm
Lord Goodlad: My Lords, I support the Second Reading of the Bill, subject to our further scrutiny of its provisions next week. Your Lordships’ Select Committee on the Constitution has considered the Bill and published its report today. The noble Viscount, who is a member of the committee, has already contributed to the debate.
The common law of England and Wales, Northern Ireland and Scotland has for many centuries recognised the right for a defendant in a criminal trial to be confronted by his named and identified accusers—that is, witnesses giving sole or decisive evidence pointing to the defendant’s guilt—in order that he or she may cross-examine them and challenge their evidence. Clause 5 recognises this, referring to the,
- “general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings”.
In his speech in the Davis case, the noble and learned Lord, Lord Bingham, emphasised the constitutional nature of the long-standing common law right in English law for defendants in criminal trials to be confronted by named and identified accusers. He explained how that right was adopted in the constitutions of the North American colonies and the sixth amendment to the Constitution of the United States of America. He recalled in relation to Northern Ireland how committees chaired by Lord Diplock in 1972 and Lord Gardiner in 1975 conclusively rejected suggestions that witness anonymity might be introduced to deal with the problems of intimidation that existed at that time. The noble and learned Lord, Lord Rodger of Earlsferry, noted:
“Lord Diplock saw the common law principle as so fundamental that he felt unable even to recommend that legislation should be passed to interfere with it”.
The right to be confronted by named and identified accusers is a right of constitutional character. The Bill, rightly, does not abolish that long-standing right, but it will create a new range of statutory rules permitting witness anonymity. A distinction must be drawn between the general right of a defendant in a criminal trial to be confronted by his accusers and the rules on withholding the identity of witnesses.
In the Davis case, the Appellate Committee held that, in a small number of recent cases, the common law has been developed to permit a limited qualification on the right to know the identity of the prosecution witnesses in rare and exceptional circumstances where there is a clear case of necessity. The small qualifications to the general rights were developed by the courts exercising their common law power, frequently referred to as their inherent jurisdiction to control their own proceedings.
- “common law rules relating to the power of a court to make an order for securing that the identity of a witness in criminal proceedings is withheld”.
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Under Clause 3, either the prosecutor or the defendant may apply to the court for witness anonymity. As the Minister said, Clause 4 requires a trial judge to be satisfied about three conditions before making an order, the details of which he has already recited.
Although it is not spelt out in the Bill, it is clear that any order made must not violate a defendant’s right to a fair trial under Article 6 of the European Convention on Human Rights. The court is a “public authority” for the purpose of the Human Rights Act 1998. In the Davis case, the Appellate Committee held that the combination of anonymity measures imposed by the trial judge in that particular case breached the defendant’s convention rights.
The new statutory rules on witness anonymity introduced by the Bill are broader than the existing common law rules. Whereas the common law powers on witness anonymity are probably limited to protecting personal safety, the Bill will enable anonymity orders to be made where it is necessary to,
That broadening of the rules, along with the existence of a much publicised statutory scheme, may perhaps lead to greater use of witness anonymity, although the Director of Public Prosecutions opined to the contrary in his evidence to the Joint Committee on Human Rights. Article 6 of the ECHR will, however, continue to provide the minimum guarantees of a fair trial. In this context, the House will be aware that the Appellate Committee, in the Davis case, held that the protective measures imposed in that case breached convention rights to a fair trial, as well as the common law limits on anonymity.
The committee considered that, as a matter of British constitutional practice, there is an acceptable basis for the provision in Clause 11 barring appeals succeeding on the sole ground that a court, before the commencement of the Bill, lacked the legal power to impose an order for witness anonymity. We took the view that the public interest outweighs a defendant’s interest in benefiting from a past defect in the trial process, given that there is an express requirement for the Appeal Court to consider whether, overall, the trial was fair.
We welcomed the introduction of a sunset clause to the Bill and the Government’s intention that Parliament will have an opportunity to return to consider witness anonymity in the Law Reform, Victims and Witnesses Bill, which is planned for the next Session. The situation that has arisen in relation to the Criminal Evidence (Witness Anonymity) Bill is likely to recur.
One of the beneficial outcomes of the Government’s decision in July 2007, as part of the Governance of Britain initiative, to publish a draft legislative programme some months ahead of the Queen’s Speech is that it is now clear when a Bill in the current Session deals with matters that are planned for the next Session. That is so, for example, in relation to the provisions on coroners in Part 6 of the Counter-Terrorism Bill this Session. The Government have explained that those measures cannot wait until the enactment of the Coroners and Death Certification Bill that is planned for the next Session, as there are a number of pending inquests
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The Davis case obliges Parliament to produce a scheme for the provision of anonymous witness orders that meets the requirements for justice in each case and provides fairness under the rule of law. A balance has to be struck between the need to protect witnesses in appropriate cases, so that they can give evidence without realistic fear of the consequences, and the need for defendants to receive a fair trial. I respectfully submit that the Bill strikes that balance and that those in the Government who have produced it so expeditiously deserve our gratitude.
12.57 pm
Lord Lester of Herne Hill: My Lords, I, too, support the Second Reading of the Bill. I declare an interest as a member of the Joint Committee on Human Rights. As the Minister said, as part of its scrutiny function, the JCHR took evidence about the human rights implications of the Bill on Tuesday from the Director of Public Prosecutions, Sir Ken Macdonald QC, and from Paddy O’Connor QC, who gave the defence perspective. We will publish that evidence before the remaining stages of the Bill, and we hope to publish a report early next week about the compatibility of the Bill with the convention rights.
In the absence of a decision of the Joint Committee as a whole, what I am about to say represents my personal view that the Bill is indeed compatible. That accords with the view of the chair of the JCHR, Andrew Dismore MP, as he explained in the Commons debate on 8 July at cols. 1317-19. It also accords with the view expressed by David Howarth MP, on behalf of my party, at cols. 1319-24. One of the remarkable features of the way in which the Bill has been dealt with has been the willingness of everyone from all sides to act consensually.
We are assisted by the excellent report published on 10 July of the Select Committee on the Constitution, chaired by the noble Lord, Lord Goodlad. We are indebted to the Select Committee for the quality of the report, especially given the speed with which it has had to be prepared.
There is no doubt about the scale of the problem or the legitimacy of the aim of the Bill in tackling the serious mischief of witness intimidation. The problem is very old, but its scale has increased. The Justice Secretary, the right honourable Jack Straw, was right in saying on 26 June:
“As long as there has been crime, criminals have sought to intimidate witnesses in order to avoid punishment. Criminal justice systems across the world have sought to deal with this problem. Criminals do not operate by the rules, but the rule of law requires that justice should not only be done, but be seen to be done. The right of a defendant to confront his or her accusers in open court has been a key feature of all systems of justice worthy of that name. That right should be modified only where it is fully justified. In recent years, witness intimidation has become an all too common feature in crimes of a serious nature, especially those
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All the judges in the Davis case recognised the reality and serious nature of this problem and that it might well call for the urgent attention of Parliament. They also referred to the New Zealand statutory framework as being of potential relevance.
In his article in the Guardian on Tuesday, Geoffrey Robertson QC made an intemperate attack on the Bill, under the headline, “There can be no fair trials with this perjurer's charter”. He called the Bill,
- “the most serious single assault on liberty in living memory ... which will result in thousands of unfair trials; and the principles of open justice ... will be gutted by a panic-stricken measure that encourages courts, in criminal cases of any kind, to suppress the identity of crucial witnesses”.
I shall not quote the rest of this polemic. It fails to recognise or to grapple with the real problem of witness intimidation. It wrongly claims that the Bill will in effect place the trial process in the hands of the police and that it contains no safeguards for the citizen. The courts will have an obligation imposed by the Human Rights Act and the convention, and the Bill itself, to ensure that everyone has a fair trial in accordance with the procedural safeguards prescribed by Article 6 of the convention, and the Bill will have to be read and given effect to in accordance with those safeguards. The article also suggests that Mr Robertson has not examined the Bill with the care it deserves.
I declare an interest as a member of the governing council of Justice, which has produced an interesting briefing on the Bill for the House; I have only just read it. Many of the points in the briefing are valuable, but I do not agree with the following comments:
“We remain of the view that the Bill is misconceived and poorly drafted. In particular, we consider the provisions to be unduly complex, overly broad, contrary to the common law right to confront one’s accuser, and lacking several of the safeguards found in the New Zealand legislation on which it was based”.
The last point is perhaps fair and my noble friend may wish to refer to that in his reply, but, with respect, that summary of the position is neither fair nor accurate.
The Constitution Committee rightly states that:
“The right to be confronted by named and identified accusers is a right of a constitutional character”,
“The Bill does not abolish this long-standing right but it will create a new range of statutory rules permitting witnesses anonymity”.
The committee also points out that Article 6 will continue to provide the minimum guarantees of a fair trial; and, in his evidence to the JCHR, Sir Ken Macdonald emphasised that the courts will be obliged to interpret and apply the new statutory rules in accordance with the fundamental right to a fair trial guaranteed by Article 6.
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