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:
http://www.judiciary.gov.uk/docs/judgements_guidance/pd/amendment21CCPDaug08.pdf
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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