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Clause 4(2) states:



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There was great discussion in the other place about the standard of proof and what was meant by “satisfied”. Was it to be beyond reasonable doubt or merely on the balance of probabilities? That matter has been the subject of authority in the case of Ewing, which was decided in 1983 where the court was considering a section of the Criminal Procedure Act 1865 dealing with forgery:

What was meant by the “satisfaction of the judge”? Lord Justice O’Connor said:

He went on to say that:

If the Government think that, in a criminal case where anonymity applications are made, a judge could be satisfied with anything less than the criminal standard, now is the time to say it, because if they do not, it will be assumed for ever that “satisfied” means satisfied beyond reasonable doubt.

I am a little concerned about condition A where it is qualified by Clause 4(6):

I do not think that “reasonable fear” is successful as a phrase, and it should not apply to questions about the safety of a witness. It should apply to whether the witness refuses to testify because of a well founded fear, and we will put forward amendments accordingly.

Another matter that we are concerned about is the extension of these provisions to magistrates’ courts, which in our view are not suitable to the use of anonymity orders of this kind. How are they to be determined? Are magistrates to hear everything that a witness fears about the defendant, to make an order for anonymity, and then go on to try the particular defendant with the knowledge that they have acquired of him and of the threats it may be alleged that he has made to some of the witnesses in the case? That is highly unsatisfactory, and to my knowledge no provisions are made in magistrates’ courts for screening and so forth. We will oppose that extension. As in New Zealand, if anonymity is sought for a witness, the case should automatically go to the Crown Court and the matter should be determined there.

But perhaps the most important matter that we hope to bring before noble Lords in Committee is the question of the independent counsel, to which a number of noble Lords have referred. An independent counsel could be appointed by the judge to help him decide on the credibility of the witness who is claiming anonymity. The noble Lord, Lord Elystan-Morgan, suggested that he should have a team behind him who could carry out investigations on his behalf. The amendments that we propose suggest that the independent counsel

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should have the power to require police officers unconnected with the relevant trial to investigate and report to him whether there are matters which should be brought to the attention of the judge. This is just another way of doing it without involving the creation of a bureaucracy behind the special counsel that we have suggested.

As in New Zealand, it is essential that there should be someone to carry out an evaluation of the expressed fear and all the circumstances that the witness claims are affecting him before the judge can come to a conclusion. We cannot have a situation, as has been happening up to now, where all the judge gets is a form and perhaps a statement from the anonymous witness, followed by a police officer saying, “Well, things are a bit tough on the estate he comes from, so please grant the order”. There should be a proper evaluation of the fear expressed by the witness. If that is the procedure, as Sir Ken Macdonald conceded, there will be far fewer of these applications and that will be all to the good.

It should not be possible for a witness to say in answer to a policeman’s question, “Do you want special measures?”, “Well, yes. I suppose it will be easier to give evidence from behind a screen and for me to remain anonymous”. Giving evidence is not an easy thing in any circumstances. Even the most experienced advocates such as myself find it a daunting prospect to go into the witness box and be treated in the way I have treated others in the past. It is not an easy thing, and it would be very nice to hide behind a curtain or at the end of a television camera. But that is not what justice is about. The basic principle of British law—the law of this country—is that there must be open justice; that a person must be confronted by his accusers. It is fundamental.

In the case in which I was involved, I had no idea who the people giving evidence against my client were. I had no idea of any links between them, whether they had any personal grudge against the defendant, or whether they had any reason for lying about the evidence that they were giving. I had my suspicions but I could not pursue them because I did not know who they were. That is the dilemma that a defence counsel faces, as the noble Baroness, Lady Mallalieu, has expressed so forcefully.

This is a necessary Bill that could be improved, particularly by the employment of special counsel. The suggestion that there is an inherent power in the court to appoint an independent counsel already is new to me and to any judge whom I have ever come across. I am sure that the passage of the Bill will make it clear to every judge in the country that, if he feels that he needs a special counsel, he will appoint him. But this should be within a framework and in accordance with a fixed and fair procedure that applies through all these cases.

I have wearied your Lordships long enough on this topic. I trust that we will, through co-operation and argument, be able to put these points across.

2.12 pm

Lord Kingsland: My Lords, I thank the right honourable gentleman the Secretary of State for Justice and his ministerial team for involving the Opposition during

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the preparation of the Bill. I believe the same is true of the Liberal Democrats. In particular, we were given the opportunity to comment on the legislation in draft and, to the extent that our advice was taken, we are as implicated in the Bill as the Government.

This is emergency legislation, and we do not have the opportunity to scrutinise the Bill properly. It is vital, therefore, as other noble Lords have said, that we have an early opportunity to review it thoroughly. We pressed at an early stage for a sunset clause in the Bill and I am delighted to say that we now have one. However, I have an observation to make about the detail of Clause 14. It was particularly important to the Opposition that the sunset clause had a terminal date and we have got it—31 December 2009—but Clause 14(3) states that the date may be extended by affirmative order for 12 months.

We are unhappy about this part of the clause. The Government will not be surprised to hear this. They are well aware that, in order to terminate the long-drawn-out debate in your Lordships’ House in March 2005, they undertook to provide an opportunity to review the Prevention of Terrorism Act control orders within a year. That undertaking was not met, and for three years the Government have been able to extend the length of that Act, without further scrutiny, through affirmative orders in your Lordships’ House. We have allowed those affirmative orders to go through because of a longstanding constitutional convention that it is only in the rarest circumstances that the Opposition vote against an affirmative order. But I put the Government on notice that, if we are faced with a draft affirmative order at the end of 2009, we will not regard ourselves as bound by that constitutional convention.

My noble friend Lord Marlesford, quite properly, made some extremely disparaging remarks about retrospective legislation. I share my noble friend’s repugnance on that score. He has, therefore, made me extremely uneasy at having, during the debate on the Statement some two weeks ago, endorsed Clause 11. I comfort myself—I hope he will feel comforted later—with the belief that it will not make much difference to the outcome of any appeals of individuals already convicted in a trial which involved prosecution witnesses who gave evidence anonymously. My reason for reaching that conclusion will, I trust, become obvious in the next five or six minutes.

I also thank my noble friend Lord Goodlad, the chairman of the House of Lords Constitution Committee, for giving a brilliant summary of the conclusions of that committee. As its report was only published today, I have had no opportunity to read it; and I am therefore extremely grateful to him.

It seems that the Appellate Committee of your Lordships’ House is attacked whatever approach it takes to the development of the common law. When it develops common law principles, such as negligence or the law of rape, in a way which adjusts them to contemporary social mores, it is blamed as usurping the role of Parliament. When it takes the opposite view it is blamed for not reaching the right result. The noble and learned Lord, Lord Bingham, in my view,

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was absolutely right to reach the decision that he did. If one looks at the history of the common law on anonymous witnesses, there is no evidence that it had developed in any way since the 18th century. That was underlined by the reports of Lord Diplock and Lord Gardner at the height of terrorism in Northern Ireland during the 1970s. The noble and learned Lords in the Appellate Committee, I repeat, reached exactly the right decision. It is interesting to note that my right honourable friend Michael Howard in the House of Commons, during the debate on Tuesday on this measure, went out of his way to applaud what the noble and learned Lord, Lord Bingham, and his colleagues did, saying that they were absolutely right not to seek to legislate in circumstances where the history of the common law gave them no grounds for it whatever.

The noble and learned Lord, Lord Bingham, was, in my view, extremely constructive in the way that he confronted the dilemma that the decision of the Appellate Committee posed to the Government. In talking about the intimidation of witnesses, he said,

That is as close as one could possibly get to saying that the noble and learned Lord hoped that Parliament would, at an early stage, confront this problem.

I understand entirely what the noble Baroness, Lady Mallalieu, said, and I sympathise with her motives for saying it; but in the context of R v Davis, the steps that the Government have taken to produce emergency legislation have been the correct ones. The noble and learned Lord, Lord Mance, also went out of his way to support the noble and learned Lord, Lord Bingham. He said that,

The question—and I believe this goes to the heart of the matter—is: how much scope? There was clearly none in a case such as Davis, as the noble and learned Lord, Lord Mance, stated. It was absolutely clear that the effectiveness of the defence’s case depended entirely on investigating the motives of the anonymous witnesses; but that was impossible to do. He also concluded that the evidence of the three anonymous witnesses was decisive to the outcome of the case. In those circumstances he concluded, as did other noble and learned Lords in the Appellate Committee, that the conduct of the Davis trial plainly contravened the European Convention on Human Rights. It was, therefore, puzzling to read paragraph 50 of the Explanatory Notes that were attached to the draft Bill in the House of Commons, which said that this Bill will enable us to go back to the situation before Davis. I note that that is not in the Explanatory Notes to the Bill in your Lordships’ House. It may have been an aspiration of the draftsman, but it is plainly incorrect. We cannot go back to the pre-Davis situation.

The approach that the European Court of Human Rights takes to these matters is well summarised in the case of Doorson v the Netherlands, on which the noble and learned Lord, Lord Mance, heavily though not exclusively relied. I hope that I will not incur the

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wrath of your Lordships' House if I read just three paragraphs from the judgment. At paragraph 67, the court said:

At paragraph 70, it continues:

It is interesting to note that when the noble and learned Lord, Lord Mance, concluded his analysis of the European legislation and applied it to the Davis case, he came to the conclusion that, on the facts, no such balancing had taken place.

Lastly, in paragraph 76, the court said:

As the noble Lord, Lord Elystan-Morgan, said, the Strasbourg cat can jump either way. There are many other Strasbourg cases in which these matters have been considered, which led the noble and learned Lord, Lord Mance, to the conclusion that the criterion of “solely or decisively” is not necessarily, on the facts of the particular case, the determining factor. However, there is no doubt that it was the determining factor in Doorson. I think it would be dangerous for any court to conclude that the law of the convention will stray very far from that laid down in those three paragraphs. I say to my noble friend Lord Marlesford that that is why I am perhaps not over-conscience-stricken about my support for Clause 11.

Wisely, the Bill is not concerned with what is a fair trial; it does not lay down the circumstances in which a trial is or is not fair. It does set out the considerations which a judge will have to take into account under it such as to reflect adequately the jurisprudence of the convention. We cannot be absolutely certain what the court in Strasbourg will say in the future. The noble Lord, Lord Lester, had some interesting observations to make about that in respect of the court's composition and the traditions of the inquisitorial system; but it is nevertheless important that judges are given as accurate a framework as possible within which to work. The Bill seeks to do that, and, broadly speaking, we support it. However, as the Government might imagine, we will raise some detailed matters in Committee. These are primarily matters that arose when we compared the Bill with the New Zealand legislation of 2006. I want to raise three specific matters, one of which has been dealt with extremely well by the noble Lord, Lord Thomas of Gresford.



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The New Zealand Bill says, first, that the use of anonymous witnesses can be justified only in exceptional circumstances. I think that it is commonly agreed that, in some areas of the United Kingdom, anonymity is offered to witnesses almost routinely as an incentive to them to give evidence. In its note on the Bill, the Bar Council observed:

The Government have not included an exceptional circumstances provision in the Bill. Our view is that they should, otherwise the evil to which the Bar Council refers will continue.

The second ingredient in the New Zealand Act that does not appear in the draft Bill is that the cases in which anonymity is granted should be cases of real gravity. There are different views about what that means. One approach would be to set out the particular offences in which witness anonymity could be applied for. That would be extremely unsatisfactory because, under apparently quite inoffensive offences if I can put it that way, one can have serious matters that would justify applications for anonymity. For that reason, some such provision ought to be included in the Bill.

Lord Lester of Herne Hill: My Lords, I do not wish to prolong the debate, but I do not know whether the noble Lord is aware that I put this to the Director of Public Prosecutions when I said that I could not understand why gravity of offence was in any way significant since it cuts both ways; obviously there should be a fair trial, whether the alleged offence is grave or otherwise. Is it not therefore rather a dodgy factor to be putting into a Bill?

Lord Kingsland: My Lords, I am most grateful, as I always am, for the noble Lord’s intervention. I was not aware of his conversation with the Director of Public Prosecutions. For what it is worth, my view is that gravity ought to be included in the Bill. We will have an opportunity to return to the matter in Committee.

The third ingredient of the New Zealand Act that is not in the Bill is the ability to appoint a special counsel to deal with questions of fact that bear on the decision of the court whether to agree to an application for anonymity. The noble Lord, Lord Elystan-Morgan, rightly pointed out that there is an existing inherent right, the authority for which is in Archbold, to appoint such a counsel; it is done very rarely, but I note that it was taken advantage of by the Court of Appeal, no less, in the Davis case.

The difficulty about relying on that is that there is no established procedure for the way in which a special counsel should operate. That is why I am in agreement with noble Lords—and the noble Lord, Lord Thomas of Gresford, could not have put the case better—to include a provision in the Bill that sets out the duties of such a counsel. In another place, the Government did not commit themselves either way except to say that it was too late to include such a provision in an

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emergency Bill and that, between the passing of the Act and the review of it that is due to take place in the Victims and Witnesses Bill next year, they would give this matter close attention. We shall support any amendment that is tabled next week on the matter although we will not vote for it if it is put to the vote. I have reached the conclusion that the Government have a real problem about setting out detailed rules for the responsibilities of such a counsel between now and the middle of next week. In those circumstances, they should be given the benefit of the doubt.

We have other matters of no less importance to bring to your Lordships’ attention in Committee; but they can rest until then.

2.34 pm

The Attorney-General (Baroness Scotland of Asthal): My Lords, this has been a constructive debate. I warmly welcome the support we have received from all sides of the House and the broad consensus that the problem of witness intimidation is a serious one. I am particularly indebted to the noble Lord, Lord Goodlad, for his erudite exposition and to the noble Lord, Lord Lester of Herne Hill, for his excellent speech. Both speeches encapsulate the views of the Constitution Committee, whose report I know a number of noble Lords did not have the opportunity to read in full, and foreshadow the conclusions that may well come out of the second important committee, dealing with human rights. I thank them for that, not least because they have done such an excellent job in outlining an analysis of the law that they have saved your Lordships the burden of hearing me repeat it. I agree with them without reservation. I also endorse the comments made by my noble friend Lord Grabiner. He, too, identified clearly the issues with which we now have to grapple.

The difficulty is clear: in cases involving violent crime, particularly gun and gang crime, fear about the consequences of giving evidence can prevent witnesses coming forward and allow very serious offenders to escape justice. I therefore also welcome the recognition that the judgment in the case of Davis has left us with a difficult problem to address. Courts no longer have a power to allow witnesses to give evidence anonymously in almost all circumstances. Several Law Lords in Davis recognised that Parliament would wish to consider legislation to give courts a power to allow anonymous evidence. It is critical, as a number of noble Lords made clear, that we act quickly to correct that deficiency in law. The Crown Prosecution Service has been able to identify the extent of the problem, and I am glad that we have been able to indicate what those figures may be.


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