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As I understand the noble Baroness’s letter, it is her intention that where an anonymity order is made, counsel should still be free to make the decision whether they wish to see and hear the witness. We are both in agreement about that. However, the way the clause is currently worded means that it is open—academically perhaps—for a court to make an order excluding them. It may be that my present amendment is not quite as it should be. Perhaps if it simply read “legal representatives unless they wished to do so” could not be ordered to be screened. Both I and those from the Bar Council who looked at the provision took alarm because it appeared that defence counsel and, indeed, therefore prosecuting counsel might be excluded from performing an important part of their job. I am sure that is not the Government’s intention. I very much hope that the Minister will feel that an amendment like the one I have tabled is helpful. I beg to move.
Lord Thomas of Gresford: In her letter to the noble Lord, Lord Kingsland, the noble and learned Baroness, Lady Scotland, suggests that it is still open to the defence counsel to see a witness if they want to. Does the court have power to prevent the defence counsel or the prosecution counsel from seeing a witness in any circumstances? I would like an answer to that question, as that is what I am interested in.
Lord Hunt of Kings Heath: This has been an interesting discussion. I say to my noble friend that I listened with great care to her powerful speech at Second Reading when she outlined her determination to stand up for the right to a fair trial. I echo that, which is why the various safeguards are built into the Bill as it is constituted.
I of course understand the noble Baroness’s concerns on the position of defence counsel. In answer, I refer to the Court of Appeal decision in the case of Davis, where it had the benefit of written submissions from the Bar Council. As a starting point, the Court of Appeal considered that, in certain circumstances, defence counsel may find himself or herself with a conflict of duty where witness anonymity orders are made. They are bound by the order not to disclose the identity of the witness to anybody, in particular to the defendant. On the other hand, they are bound by their professional duty to provide relevant information to their clients.
The court took the view that defence counsel may see and hear an anonymous witness’s real appearance and voice but would be bound by the anonymity ruling and would, indeed, be in contempt of court if they disobeyed it. If the defendant instructs counsel that counsel should inform him of the appearance of the witness or if counsel believes that the professional relationship with the client may be damaged if he were unable to communicate information that his client wanted from him, then it is open to the court to order that defence counsel should be screened from the witness. The Court of Appeal said that, in such an event, counsel for the Crown should be in the same position as counsel for the defendant.
The Appellate Committee of your Lordships’ House in Davis did not address that point. The decision not to make provision for this in the Bill is deliberate. In some cases, defence counsel may decide after taking instructions that they should also be screened from the witness, so that they will be in the same position as the
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The Court of Appeal on Davis commented on these matters at paragraph 72:
Anonymity orders may give rise to myriad different situations, including where the parties’ legal representatives are concerned. That is why the Bill allows for flexibility and discretion. I take my noble friend’s point in seeking to ensure that the rights of defendants are appropriately dealt with. However, from the Court of Appeal’s view on this, there is a case for the flexibility that the Bill allows.
Lord Thomas of Gresford: Does the Minister accept that the screening of a witness from the defence counsel might be fair in one case but not in another? The issue of a fair trial does not depend on whether defence or prosecuting counsel is screened from the witness at all. All the circumstances will have to be looked at. You could have apparently similar circumstances where one set leads to unfairness and another set to fairness.
Lord Hunt of Kings Heath: Is not that the most powerful case for having the flexibility that is in the Bill, alongside the Court of Appeal’s judgment as regards the level playing field between defence counsel and prosecution counsel if the witness is screened from defence counsel?
Baroness Mallalieu: I fear that the comity goes straightaway. On the one hand, my noble friend seems to be saying that it is for defence counsel to decide—that is what is contained in the letter, as I understand it—but that, on the other, there will be flexibility, which, according to the wording of the clause, means that the court could bar defence counsel from seeing a witness. That seems to me the straight answer to the short point that the noble Lord, Lord Thomas of Gresford, raised, and it gives me enormous anxiety. Although one does not want to be so prescriptive that one cannot be flexible when circumstances arise that require it, essential matters of principle are involved. As the Court of Appeal said, requiring counsel to cross-examine an anonymous witness is like punching at air. What we are doing here is not just punching in the air; we are turning counsel round, facing him in the wrong direction and blindfolding him as well.
In my submission there must be restraint in the wide, unfettered discretion that this clause gives. It gives me little confidence to know that that power remains in the Bill. I hope that in the 10 minutes between the end of the Committee stage and when we start the next stage of the Bill, there may yet be a chance for the noble and learned Baroness, who wrote
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Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (Lord Boston of Faversham): In calling Amendment No. 2, in view of the groupings I must point out to the Committee at this early stage that, if either Amendment No. 2A or Amendment No. 3 is agreed to, I cannot call Amendment No. 3A.
Baroness Mallalieu moved Amendment No. 2:
“( ) Where an application is made under this section, the court must be informed of the identity of the witness.”
The noble Baroness said: Since I tabled this amendment, the government amendment to plug the gap has been tabled. Despite what was said shortly before we began this Committee stage, I am bound to say that it was not just the Government who failed to notice that there was a rather large gap. All those who spoke at Second Reading and who practise at the criminal Bar should have noticed that there was no provision in the Bill for circumstances in which the defence wished to call a witness with anonymity where there were co-defendants as well. I am grateful that that is being dealt with in the way that it is.
When I tabled this amendment, I was concerned that nowhere in the Bill—whether in relation to the conditions for making the order, the applications or the relevant considerations—was it expressly spelt out that the court must be informed of the identity of the witness. That ought to appear in the Bill as a safeguard for the defendant. At the very least, the defendant must have the safeguard of knowing that someone other than just the prosecuting authorities knows the true identity of the witness against him. Therefore, I am grateful that the Government tabled their amendment, which deals precisely with that point in its first new subsection. As I said, I am also grateful for the tabling of the longer, more detailed amendments that follow it, which seem to me to make sense.
The amendment in the name of the noble Lord, Lord Kingsland, which is grouped with Amendment No 2, appears to indicate that defence making an application in relation to an anonymous witness should notify the court but not the prosecutor. There seem to me to be difficulties with that, as the court will not be in possession of the large amount of undisclosed material that will be available to the Crown. It may benefit the defence if the prosecutor is aware of the identity of the witness whom the defence proposes to call, who may hold material of importance to the trial. I beg to move.
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Lord Kingsland: As the noble Baroness referred to my amendment in this group, I feel compelled to say something about it. She was quite right to describe my amendment as one that requires information from the
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I agree with that; but, on the other hand, there would be great dangers in the defendant supplying the appropriate information to the prosecutor, because the prosecutor would almost inevitably pass it on to the police. In those circumstances, it would be almost impossible to keep the defendant’s witness in a state of anonymity.
This problem may be in part to do with the groupings. I passed my eye over them this morning and did not make any adverse observations, and it could well be my fault that my amendment has been misconstrued. It ought to be looked at in the context of my Amendment No. 4B, or Amendment No. 4C in the name of the noble Lord, Lord Lester of Herne Hill, or Amendment No. 9 in the name of the noble Lord, Lord Thomas of Gresford.
We shall come to those amendments in another group; but they have a bearing on my Amendment No. 4 because, if the evidence goes directly to the judge, he will, as the noble Baroness rightly observed, in most circumstances. not have the resources at his disposal to establish the antecedents and other background matters in respect of the defence’s proposal that one of its witnesses be given anonymity.
This problem is solved in Amendments Nos. 4B, 4C or 9. If the judge can appoint an independent counsel to whom he can authorise the appropriate analysis of the defence information, including requiring all information relating to the proceedings that the defence is in a position to yield, in my submission the problem would be solved.
There is a particularly apposite subsection in the new clause proposed in the amendment in the names of the noble Lords, Lord Thomas of Gresford and Lord Elystan-Morgan, which, I confess, adds much to my amendment. It states:
“The independent counsel shall have power to require police officers unconnected with the relevant trial to investigate”.
That seems an extremely perspicacious observation and I am delighted to see it in the amendment in the name of the noble Lord, Lord Thomas of Gresford—which is not just by way of saying that I am not being party political.
Lord Lester of Herne Hill: Perhaps I may ask the noble Lord a question, as he has raised the issue that we shall come to later. He said that there would be one independent counsel, but, as he will see in Amendment No. 4C, the Joint Committee on Human Rights has indicated that in some circumstances one might, because of conflicts of interest, need a special counsel from the Attorney-General’s panel to represent the interests of the defendant and a separate special counsel to represent the interests of the witness who is the subject of the application. Is the noble Lord including the possible need, in order to deal with that point, for two independent counsels?
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Lord Kingsland: I apologise to the noble Lord, Lord Lester, for not making a more specific reference to his amendment. The proposal is extremely interesting. One might say that my amendment and that of the noble Lord, Lord Thomas of Gresford, could be described as having something of an inquisitorial nature. The amendment in the name of the noble Lord, Lord Lester of Herne Hill, sticks more traditionally to the adversarial system, for which there is much to be said.
I would not want the noble Lord, Lord Lester, to think that I in any way underestimated his amendment by not mentioning it in detail. I shall have an opportunity to do so, if there is anything left to say, when we consider it in the context of the appropriate group.
Lord Thomas of Gresford: If the principle that we discussed in debating the amendment of the noble and learned Lord, Lord Lyell, is accepted by the Government—namely, that there should be open trial—the issue at the heart of all these amendments concerning getting a proper framework is the validation procedure referred to by the noble and learned Lords in the case of Davis. Is it enough for a witness to come forward and say, “I am frightened”, and for the judge, perhaps not knowing his identity, to simply accept that, possibly on the basis of something that a police officer says about the circumstances in the area where the witness lives? Is that to be what the Bill is about or is it to be about rather more than that? Is it to be about an exception to the principle—the validation of the fears of the witness and a decision as to the circumstances that he puts forward for his fears, which the judge can then objectively assess?
As I said at Second Reading, this problem has arisen because in small stages we had reached a point where, in effect, anonymity was being offered to witnesses by the police. I know that the noble and learned Baroness, Lady Scotland, has disputed that in her letter but—at times I try to speak from experience—it appears to me that the police do offer anonymity. Your Lordships will recall that I pointed out a headline that appeared in the Guardian a week last Saturday saying that the police guaranteed anonymity to a witness in relation to a specific case currently under investigation.
We are told today that rules will be made about the validation procedure. We look forward to seeing those rules and to finding out how a fair validation procedure will develop. In an amendment, I objected to subsection (2) and simply inserted in its place:
One assumes that, in any event, any such application will be heard in chambers, in camera or in some way, but that clearly has to be one of the procedural rules that are put forward. Because of that, I have no great reason to support my own amendment, as it will be covered by one of the rules.
Then we have to consider the fairness as between prosecution and defence, to which the noble Lord, Lord Kingsland, referred. So far as I can see—and we have now been considering this matter in some depth and have had discussions about it over two or three weeks—the only way in which the respective interests of prosecution and defence can be properly supported is by the appointment of independent counsel, who
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The noble Lord will undoubtedly say—it is what his amendment says—that the prosecution has to know in order to instruct the police. That is not necessary. I am grateful to the noble Lord for supporting subsection (4) of the new clause proposed in my Amendment No. 9. It provides that police officers unconnected with the trial should be instructed by independent counsel to carry out investigation. Either we treat this as a serious, exceptional matter, contrary to principle, or we will return to the practice, which noble and learned Lords condemned in Davis as being contrary to the European convention, of allowing simple pieces of paper and unsubstantiated claims to result in defence counsel being completely unable to cross-examine witnesses because they do not know who they are, where they come from, what connections they have and so forth.
All the amendments are interrelated in that way. At the core of it all is the validation procedure for a claim that a witness is in fear and requires anonymity and special measures. To that degree, I support the amendment.
Lord Marlesford: I am worried about the timing of the rules, which are clearly important. Will they be available immediately? Will Parliament look at them? Perhaps the noble and learned Baroness the Attorney-General could explain that to us.
Baroness Scotland of Asthal: I thank my noble friend Lady Mallalieu for tabling the amendment. She has highlighted a number of issues and has given us the opportunity to look at them and to give a better and proper explanation. I say straightaway that I agree with her on the importance of the prosecutor knowing the identity of each witness. Members of the Committee will know that the prosecutor’s role is to present to the court any relevant information that may be available pertaining to the issues under discussion—both those which assist the defendant and those which assist the prosecutor. It would be very important for the prosecutor to be aware of the defence witness, as my noble friend Lady Mallalieu says, in order to make available any unused material that may assist the parties in the trial.
Amendment No. 2 will require the court to be informed of the identity of the anonymous witness in all cases. We are clear that in the overwhelming majority of cases the court will be informed of the identity of the person in respect of whom an application for an anonymity order has been made. However, there will be the rare case in which the identity of, for example, an undercover agent—particularly a member of the Security Service—should be divulged to as few people as possible. In such cases, the prosecution will explain the circumstances to the court, and it would then be
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The amendment overlaps with government Amendment No. 2A, and I thank my noble friend for understanding that in bringing it forward the Government were seeking to be helpful. We listened very carefully to the tenor and substance of the debate in the other place and here, and we were anxious to do the best we could to ensure that we had the appropriate level of coverage.
Amendments Nos. 3 and 4, in the name of the noble Lord, Lord Thomas of Gresford, would require applications for anonymity orders to be heard in chambers. That means that the press and public would be excluded, but it does not mean that automatically a witness’s identity would be protected from any other party. I am just pausing for a moment because this group included Amendments Nos. 3 and 4, but I am conscious that the noble Lord, Lord Thomas of Gresford, has not spoken to them.
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Lord Thomas of Gresford: I indicated that in the light of the undertaking by the Government to bring forward rules of procedure, matters of this sort will be properly dealt with by the Criminal Procedure Rules Committee. I am satisfied that it would rule that applications should be heard by the judge alone or in whatever circumstances he thought fit. I virtually abandoned my Amendment No. 3 in the course of my remarks, and my Amendment No. 4 becomes otiose in the light of the Government’s amendment.
Baroness Scotland of Asthal: I respectfully agree with the noble Lord, but I wanted to make sure that I was not presumptuously disregarding giving him the longer answer that he might have desired.
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