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The Bill provides that on each application for a witness anonymity order the conditions in Clause 4 should be met and that, in deciding that, the court must take into account the considerations in Clause 5, together with any other factor that it considers relevant.
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A further safeguard is provided by the court’s powers in Clause 6 to discharge, vary or further vary any witness anonymity order made on its own initiative or on a party’s application. That means that the court could reassess and vary, if necessary, the original order if a second or further application were to be made. We believe that the Court of Appeal or trial court would take the same approach in reviewing pre-commencement anonymity orders, as it is required to decide whether the order could be made under the provisions of the Act. The biggest safeguard of all is that the net result of the court’s deliberations must be compatible with the defendant’s right to a fair trial, which is guaranteed by Article 6 of the convention.
The judge has an overriding obligation to ensure that the defendant has a fair trial. If he does not have a fair trial, any conviction is unsafe, which is the test that the Court of Appeal sets itself in these cases. The judge would be obliged at all times to see whether the defendant was getting a fair trial. One of the factors of which he would take notice is the number of anonymity orders that had been allowed in a particular trial. If he has already made one decision, he can always vary it using his statutory powers under Clause 6.
I mean it when I say that I am grateful to the noble Viscount, who is trying to help the Committee, but we are not sure that the proposed words would make the task of the trial judge any easier. We think that they are unnecessary and I hope that the noble Viscount will consider withdrawing his amendment.
Viscount Bledisloe: In conclusion, the Minister said, “we are not sure” that these amendments are necessary. He pointed to rather ingenious ways—
Lord Bach: I apologise for interrupting when the noble Viscount has only just started his reply, but when I said, “we are not sure”, it was meant to be a courteous way of saying that we do not think that his amendments would be of assistance. That is what I meant. I do not want him to be under any misapprehension about what I said.
Viscount Bledisloe: Now that the Minister has been reasonably discourteous and made himself plain, it is a great deal better. In dealing with me, he should never think that courtesy is necessary, but clarity is.
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Baroness Mallalieu: I am increasingly troubled about what we are doing in this Committee stage and I wonder whether the Minister will reassure me. A number of careful amendments have been tabled from all sides
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Lord Bach: We will want to look very carefully at the amendments that have been moved here before we come to the Bill in the new Session to see whether the arguments that I am putting forward today as forcefully and courteously as I can have merit. No view was taken about the amendments before they were looked at carefully. Everything that has been said today will be relevant to the Bill that will come in in the next Session. If at the moment we thought that, for example, the noble Viscount’s amendments made the Bill better, we would agree to them.
Viscount Bledisloe: I am grateful to the noble Baroness and to the Minister, but although the Minister suggested—I do not find it very convincing—that these amendments are not necessary, he has not suggested that they do any harm. They provide total clarity, as opposed to people having to fish around in various other sections to try to find ways in which the court might be able to get round my difficulty. In answer to the point made by the noble Baroness, I do not think that any reason has been advanced, so far, for rejecting these amendments. Unless the Minister can do better, I shall have to consider taking the opinion of the Committee.
On Question, amendment negatived.
[Amendments Nos. 6 to 7C not moved.]
Clause 5 [Relevant considerations]:
Lord Kingsland moved Amendment No. 7E:
“( ) the principle that witness anonymity orders are justified only in exceptional cases;( ) the gravity of the offence;”The noble Lord said: I shall speak also to Amendment No. 8A which, on reflection, really belongs in an earlier group because it deals with the list of considerations set out in Clause 5.
I feel somewhat in the same position as the noble Viscount, Lord Bledisloe, when moving his previous amendment. In my view, it is desirable for the judge, when making his decision about whether to award witness anonymity, to take into account, particularly where the issue is evidence as to credibility, whether there is any corroboration for the witness’s evidence. That is the purpose of Amendment No. 8A, but I readily accept that it bears little relationship to Amendment No. 7E. I would be grateful if, when the Minister replies, he would deal with Amendment No. 8A in the context of its proper place, which is Clause 5.
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I will not disguise the fact that Amendment No. 7E is derived from New Zealand legislation. Of course I accept that New Zealand is not a country which, in its numbers or type of litigation, necessarily has great relevance to the situation that we face in this country; I shall not be surprised if the noble Lord makes that point in reply. However, he will be aware that among those highly principled organisations that have made submissions on the Bill, the Bar Council, for one, has urged the Government to include a provision that anonymity orders should be made only in exceptional cases.
An easy way to deal with this is to say that half the cases where anonymity is granted are about drugs and, in particular, about undercover agents acting as buyers or sellers and then giving evidence against the relevant party; and that, if “exceptional” in the amendment were to appear in the Bill, it might be misunderstood in the context of those applications. I readily admit that, in that sense, the amendment would require some tweaking.
On the other hand, the Bar Council, and many other organisations with intimate day-to-day experience of these matters, will tell the Minister that, on too many occasions now, especially in certain areas of the country, requests for witness anonymity are made by the police as a matter of course. Moreover, many are accepted by the court without the application of any objective tests—one of the reasons for that being that the judge is not put in possession of sufficient evidence to make an objective judgment.
It is in that context that the first paragraph of Amendment No. 7E is advanced. It would be quite wrong for any court to take the view that, in criminal cases, awards of witness anonymity orders should be made regularly. I see that the Minister is nodding and, when he replies, I hope that he will not only repeat that evident assurance in words but, if he is not prepared to put something of this nature in the Bill, at least give encouragement to the Criminal Procedure Rule Committee to make it clear in its stipulations, when crafting the rules of court, that applications for orders ought to be granted only in exceptional circumstances.
I know that the noble Lord, Lord Lester of Herne Hill, took me to task on Second Reading for suggesting that it should be only in grave offences that witness anonymity orders were made. I readily accept that there may be some circumstances in magistrates’ courts when it is necessary to make anonymity orders. However, I hope that the Minister will agree that, generally speaking, it will be only in cases where indictments contain offences of the most serious nature that the orders are contemplated. I beg to move.
Lord Richard: I listened to the noble Lord, Lord Kingsland, with the greatest attention, as I always do when he is on his feet, and I agreed with 99 per cent of what he said. Somehow, it is necessary for us to establish—in legislation, by a strong statement from the Government or in the rules—that the orders should be used only in exceptional circumstances and in grave offences. I know the argument about gravity and the magistrates’ court; I accept all that, but that is really a matter for drafting. The issue of principle here is the circumstances in which these exceptional orders—they
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Lord Thomas of Gresford: I am in total agreement with everything that the noble Lords, Lord Richard and Lord Kingsland, said.
Lord Hunt of Kings Heath: I am grateful to the noble Lord, Lord Kingsland, for tabling the amendments. Clearly, this is a very important matter to which the Joint Committee invited your Lordships' House to give attention.
Let me say at once that I very much understand the concerns expressed by noble Lords and the fear that anonymity has been granted as a matter of course and that the power has been overused. My noble and learned friend the Attorney-General has already made clear that one of the advantages of having to deal with the consequences of the Judicial Committee's judgment and having to consider emergency legislation, guidance and rules is that it enables us to ensure, as far as possible, that anonymity orders are used in the proper way.
I say to my noble friend Lady Mallalieu that, although she is disappointed by the response of the Government to the amendments, this debate is extremely valuable in feeding into our understanding, in the drafting of the substantive Bill and in the various elements of guidance that will need to be given to those who will have to operate the system. I hope that she will take that assurance that we are listening very carefully to what is being said in your Lordships' House on these important matters. Our discussion on Clause 5 very much relates to Clause 4 and the conditions in paragraphs (a) to (c) that have to be met, but we believe that that ought to give a great deal of assurance to noble Lords on these matters.
Amendment No. 7E, in the name of the noble Lord, Lord Kingsland, would require the court to make an order only in exceptional cases. The conditions in Clause 4 already make it clear that the court must be satisfied that the order is necessary, consistent with a fair trial and in the interests of justice. In addition, Clause 5(2)(a) already requires the court to have regard to the general right of a defendant to know the witness’s identity. As I have suggested, that should ensure that courts should not turn lightly to anonymous evidence, but should make an order only where it is necessary for justice to be done.
Our worry is that a requirement that anonymous evidence be used in exceptional cases, in addition to the existing safeguards, could set the bar so high that it might excessively restrict the availability of the orders. The noble Lord, Lord Kingsland, himself has suggested that this would undermine the ability of the police to use undercover officers to conduct test purchases of drugs. I suggest that the admission of anonymous evidence is not exceptional in this narrow category of cases.
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Amendment No. 7E would also require the court to have regard to the gravity of the offence. Surely the noble Lord, Lord Kingsland, agrees that the important
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The noble Lord referred to New Zealand legislation, and suggested that I might say that, although the New Zealand legislation has been a very helpful framework for us to look at in drafting our own Bill, circumstances in New Zealand are different. That is absolutely right. One difference is that, in New Zealand, legislation deals separately with test purchase cases. Sections 108 and 109 of the New Zealand Evidence Act 2006, with which I am sure all noble Lords are familiar, provides for a special procedure where an undercover police officer is a witness. In that circumstance, it does not refer to gravity or exceptional circumstances.
Clearly, our Bill is constructed differently. It covers test purchase cases as well as those with civilian witnesses. Given the way in which it is constructed, it would be inappropriate to include exceptional circumstances and the gravity of the offence as considerations. Before the Judicial Committee’s judgment, the common law power applied to all offences equally. We will consider this matter further in the coming months, but I hope noble Lords will accept that we would have real problems with the way in which the noble Lord has posed his amendments today.
On Amendment No. 8A, I hope that I can give the noble Lord, Lord Kingsland, the assurance that he requires. A very important amendment to the Bill was made in the other place to include a requirement for the court to consider whether the evidence to be given by an anonymous witness might be the sole or decisive evidence in the case. This test invites the court to consider what other evidence is available to the prosecution. As I said, it was a most important amendment.
Baroness Kennedy of The Shaws: I am sorry to interrupt the Minister, but I asked whether the Government, in failing to accept that anonymity should be granted only in exceptional cases, are not keeping to the agreement and are reneging on something that has already happened with witnesses, given that permission has been granted to provide anonymity in so many low-level cases that are currently in the pipeline. That is not a good reason for not including “exceptional” in the Bill.
Lord Hunt of Kings Heath: No, that would not be a good reason, and I hope I can reassure the noble Baroness that that is not the case.
Lord Kingsland: I am most grateful to the Minister for his response, and to other noble Lords who have participated in this debate. I was particularly happy to receive the support of the noble Lord, Lord Richard. I remember him telling me that, the day after he came back to London after his very distinguished four-year service as a European Commissioner in Brussels, he was met at the door of his chambers by his clerk, who said, “Ah, Mr Richard, I’ve got a very interesting
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If he can have reposed in him the confidence of his clerk after four years well away from the criminal Bar, I regard that as extremely powerful evidence for the Committee to take seriously what he said about my speech today.
I cannot recall whether the Minister responded to my amendment on corroboration, which I tabled to Clause 5.
Lord Hunt of Kings Heath: My point was that the amendment to Clause 5(2)(c) in another place should give the noble Lord the comfort that he requires.
Lord Kingsland: I entirely accept that that was a very important amendment in another House; and, in the context of the jurisprudence of the European Court of Human Rights, a very wise one for the Government to have made. Nevertheless, that does not entirely answer the point that lay behind my amendment, because although “sole” is perfectly easy to interpret, when it comes to determining in marginal cases whether evidence given anonymously is decisive, it may from time to time be necessary to take other evidence into account and to assess its weight as corroborative. It would be too ambitious of me to hope that the Government would add this to the Bill, given their response to all the other amendments that we have tabled. Nevertheless, I hope that they will think very hard about it between now and when we consider all these matters again in our consideration of the Law Reform, Victims and Witnesses Bill.
On Amendment No. 7E, I suggest to the Minister that one way of dealing with the point that was made particularly well by the noble Baroness, Lady Kennedy, would be to treat Clause 4(3)(a) and (b) more distinctly than they are treated in the Bill. Plainly, the drug cases to which the Minister referred are covered by the public interest part of the Bill. I quite accept that “exceptional” would be inappropriate in Clause 4(3)(b); it should apply only to Clause 4(3)(a).
In the interim, I do not know to what extent the Government are permitted, or regard it as appropriate, to talk to the Criminal Procedure Rule Committee; but if they have an opportunity to do so, they might suggest to the committee that, in casting any rules that it cares to draft, it might reflect on how the notion of exceptional can be included in rules of court, or indeed in some other way such as in guidance to judges. If not, I am quite sure that, if one looks back at the history of particular judges’ decisions on anonymity, one will seek clear trends in particular courts. For that reason, it should be emphasised that these decisions should be taken only exceptionally.
Lord Hunt of Kings Heath: I thank the noble Lord, Lord Kingsland, for those very constructive suggestions. Certainly, we will look at the architecture of the Bill and the relationship between the two parts of condition A when drafting future legislation. So far as guidance, advice and the role of the committee which will craft rules in the area is concerned, I have to be very careful
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Lord Kingsland: I am most grateful to the Minister for being so constructive. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 8 to 8B not moved.]
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