Legislative Scrutiny: Coroners and Justice Bill - Human Rights Joint Committee Contents

Letter to Nick Herbert MP from the Rt Hon Jack Straw MP dated 3 December 2008

  One of the purposes of the Coroners and Justice Bill announced in today's Queen's Speech is the re-enactment of the provisions of the Criminal Evidence (Witness Anonymity) Act 2008. As you will recall, we agreed to include a sunset clause in that Act in order to provide Parliament with a further and fuller opportunity to debate the use of anonymous evidence in criminal proceedings in the new session. During the passage of the Act, we undertook to consider a number of detailed issues further, in particular the question of whether it would be appropriate to put the role of so called "special counsel" in anonymity cases on a statutory basis.

  We have now had the opportunity to consider this issue in some detail. I am writing to explain, the main areas we have looked at, and to inform you of our conclusions.

  As noted during the passage of the emergency legislation, the availability of special counsel is already clear from the common law. Where it considers that the assistance of special counsel is required in the determination of an anonymity application. It is open to the court to request the Attorney General to appoint special counsel. This option is set out formally in a Practice Direction which was issued on 28 August by the President of the Queen's Bench Division after the emergency legislation came into force. The Practice Direction is available at:


  During the Parliamentary debates it was clear that there were differing views as to the role special counsel might play in anonymity proceedings. Broadly speaking, the main themes which were identified are:

    —  representing the interests of the defence;

    —  a role similar to an Advocate to the Court (amicus curiae) providing assistance to the court on a legal issue;

    —  an enhanced version of the above involving an investigative role independent of the prosecution and designed to probe the witness's background and possible motivations etc;

    —  a role representing the interests of the witness.

  In exploring these options we have considered in particular what value special counsel could add to anonymity applications. We note that the criminal law in England and Wales places strong disclosure duties on the prosecution team, and that as a result all relevant information should already be in the hands of the police and prosecutor before making an application. Furthermore, all relevant information will be provided to the court when an application is made.

  As noted above, one of the suggestions made during the passage of the emergency legislation was that special counsel might have an independent investigative role. We believe that this would be wrong in principle, because the police are required to have explored all reasonable lines of enquiry, which would include reasonable enquiries into the witness's credibility.

  Furthermore, the prosecutor, who is of course independent of the police with legal and professional duties to the court, is required to disclose anything undermining the prosecution case to the defence. This would include anything undermining the witness's credibility (but not the identity of the witness itself) unless the court orders otherwise. In addition, the court itself can be expected to perform a role of testing and probing the case which is presented on the application. When coupled with the prosecutor's duty to put all relevant material before the court, this may often be sufficient to enable a fair and informed decision to be reached without the need to appoint special counsel.

  Against this background, we have reached the conclusion that, in the rare case where special counsel might be required, the present arrangements are adequate.

  As a result, we consider that there is nothing to be gained from placing special counsel in anonymity cases on a statutory basis. We have accordingly decided that the Bill should not contain provision on this issue.

  As well as re-legislating for trial witness anonymity orders the Bill will also include provision for investigative witness anonymity orders to be available in cases of the most serious gang-related crimes. Many potential witnesses in such cases justifiably fear that knowledge of their helping the police will lead to reprisals from the perpetrator or his associates and consequently do not come forward to give evidence to a police investigation.

  To counter this climate of fear, witnesses to these very serious gang-related crimes should have early, and greater, reassurance that their identity will be protected throughout a criminal investigation and permanently thereafter. This will give other witnesses more confidence to come forward. These aims cannot be achieved unless there is a climate in which no form of inappropriate disclosure is tolerated.

  To achieve them, we propose to create a new "investigative witness anonymity order," breach of which will be a criminal offence. The purpose of the order will be to prohibit the unauthorised disclosure to any person of any information which might tend to expose the fact that a person has been in contact with the police in relation to a particular criminal investigation.

  The target of the measure is street gangs, and gun and knife crime. With this in mind, we propose to make the new order available for investigations into gang-related offences of homicide by gun or knife. However, the Bill will include power to extend, by order, the category of cases that can be covered by these investigative orders. And we envisage that, as with trial anonymity orders, the court should only be able to issue an investigative anonymity order where appropriate conditions, set out in the legislation, are satisfied.

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