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There may well be circumstances already provided for by the common law where there should be witness anonymity, but we are in this situation today because the common law provision has been abused and has

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been rightly and successfully challenged in Davis. In what way has it been abused? I believe that the answer is the gay abandon with which the police have come to use the promise of anonymity in persuading witnesses to come forward. Far from always having been carefully considered judicial decisions, the deals with the witnesses were done by the police and then virtually presented as faits accomplis to the court.

Lord Grabiner: My Lords, with great respect, I do not think it right to say that it has been a matter purely for police discretion. In order to secure some form of anonymity order under the common law approach, until the Davis case, it was still necessary to secure agreement from the judge.

Lord Marlesford: My Lords, I realise that, but I suspect that when the police have effectively done a deal and said to a witness, “Don’t worry, we’ll ensure that you don’t have to appear”, and then have said to the judge, “This is crucial evidence and we’ve already assured him”, the judge would find it more difficult to reject the application for anonymity.

How are we to proceed if this Bill becomes law? There are detailed and sensible conditions set out for the use of anonymous evidence, but how is the defence to be able to argue against such decisions before they are made? Will the consideration be seen as fair? That problem also applies under the existing common law system, but it has been somehow more accepted.

I also object to the retrospective nature of this legislation. Retrospective legislation is seldom, if ever, justified. It is itself a potential instrument of tyranny. Clause 11 prevents an appeal solely on the grounds of witness anonymity under Davis and instead requires the court to consider whether the anonymity order could have been made under the new law. I suggest that in many cases that is an impossible task when the full details of the original circumstances can no longer be established and thus considered. I would much rather remove this retrospective element and let appeals from the past take their chance under the common law, so that judges simply have to decide whether the anonymity had prevented a fair trial, as they so decided in Davis.

Indeed, I would much prefer that we did not pass the Bill and that we continued under the common law with the police from now on being conscious of the shadow of Davis in pursuing their investigations and suggesting to witnesses that they need not go near a court. Noble Lords will remember that 15th-century cities such as Venice and Florence had little letter boxes, normally in the form of an open-mouthed gargoyle, into which citizens could post anonymous denunciations. Equally in France citizens could be imprisoned on lettres de cachet for raisons d’√Čtat. That has, thank goodness, seldom been the English way.

I recognise that the promise of anonymity makes it easier for the police to get a conviction, but that is not the point. The point is very simple: the accused should get a fair trial. That is the principle that we should be defending and which I, as a mere lay man, feel fully qualified to advocate.

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1.36 pm

Baroness Mallalieu: My Lords, for the first time in the debate, the noble Lord, Lord Marlesford, has put a finger on the nub of this matter. We are being asked to pass a deeply troubling piece of legislation at enormous speed and, because of the political pressures on all three political parties, there has been an agreement that the Bill, with very little amendment, will reach the statue book next week.

I have been a practising criminal barrister for 38 years, both prosecuting and defending, and I believe that the best way of getting at the truth in a criminal trial is to allow the accused to confront his accusers directly and in public and to cross-examine and challenge them knowing who they are and where they come from. I instinctively dislike this proposal. Time and again in the past 10 years, when criminal justice legislation has been through both Houses of Parliament, I have gone down to the Old Bailey and have been besieged by people saying to me, “How did you allow that to happen?”. I have no doubt that it will happen in relation to the Bill, but on this occasion all I will be able to say is that no one was brave enough to stand up and say that this principle is more important than immediate practical considerations.

We have been down this route before, albeit some time ago. We have given anonymous and secret evidence a whirl in the past. We did it with the Court of Star Chamber and in trials for treason. While those procedures were initially very popular, they came to be regarded as cruel, unfair and oppressive, because they resulted in wrong convictions. They were eventually abolished by the Long Parliament in 1641. Perhaps they will not last as long in this case, but I fear that history often repeats itself.

I do not for one moment suggest that there are not very serious problems with witness intimidation, which one hears about every day in the criminal courts. I was interested in the figures given by my noble friend the Minister. It was the first time that I had taken them in. The Bill has been presented to the public as legislation primarily intended to protect the innocent bystander or the brave witness who comes forward as a member of the public. However, the reality is that the bulk of the 580 cases—330 of them—relate to providing protection for the prosecuting authorities. That may be the perfectly proper thing to do, but the reality is that only 50 cases in the pipeline involve members of the public, although that was the basis on which the Bill was effectively sold.

There is a problem; it is probably a growing problem, but there have always been problems. It is encouraging that convictions for witness intimidation have doubled, as my noble friend Lord Grabiner said, in the past 10 years. Frankly, however, we have to face up to the truth behind this Bill and the future Bill that we will be asked to consider. Changing the rules in criminal trials will not solve the problem of witnesses or potential witnesses who are afraid to give information or evidence. We need to look at the social conditions that cause that problem. We need to look at other and better ways in which people can be encouraged to come forward to assist the police against crime and we need to look at our current ways of protecting people who

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are brave enough to do so. We need to do that in proper depth, as I very much hope that we will in the next Session. However, this Bill is an attempt to validate retrospectively those 580 cases in which it seems, as a result of Davis, that unlawful orders have been made.

The judgment of noble and learned Lords in the case of Davis was attacked in the tabloid press in a disgraceful way by people who I have no doubt had not troubled to read it. The judgment was a careful and balanced analysis of the problems. It is clear that the general rule is being breached in the courts, as judges have been making decisions on anonymity as they think right with no statutory basis or consistency. What the Law Lords were saying in that judgment was effectively that either Parliament must say, “This is not to happen”, or it must provide statutory guidance. I would have chosen the former, but each of the three main political parties, no doubt under considerable public pressure, has chosen the latter. As a result, we have this Bill, which will, no doubt, reach the statute book. Those of us who disagree with its fundamental principle have to make the best of it.

With that in mind, a number of short points need to be made by someone who comes to the debate as a practitioner. The first has not yet been mentioned, but it is important that it should be. We still have the presumption of innocence in this country. That is non-negotiable. It is the mark of a free and civilised society and, if it goes, so does liberty. When a judge comes to look at one of these applications, I hope that he will look at it not from the point of view referred to by my noble friend Lord Grabiner, of the viciously motivated criminal, but from the point of view of someone on trial who is at that time innocent and may have been wrongly accused. That is the basis on which we should all start looking at legislation of this sort.

The second principle—everyone has referred to it—is that the trial must be fair. Not only is an unfair trial a breach of Article 6, but unfair trials lead to miscarriages of justice, which, in turn, are horrendous for the individual concerned and undermine respect for the law. Also, what is the point of our paying to keep innocent people in prison when the criminals responsible remain free? There will be many cases in which a fair trial is simply not possible if witness anonymity is granted. I welcome the provisions in the Bill that allow the 560 cases in the pipeline to be looked at again, because a number of them may be ones where the orders currently made cannot stand.

For my part—I hope that this will be clarified in case law as soon as possible—I very much doubt that a case where the only or decisive evidence against an accused is given by an anonymous witness can amount to a fair trial, either under Article 6 or as a matter of plain common sense. For a defence counsel, defending in a case like that is effectively being made to punch into thin air. You are not allowed to know who the witness is and you are not allowed to ask any questions that might lead to disclosure of the identity. How on earth do you begin to tackle the credibility of a witness whose account your client tells you is wrong?

If we are to have anonymous witnesses, as we will from next week, it is right that Parliament should provide a framework for the trial judge. I stress that it

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must be a judge; this must be reserved for serious cases. I hope that we are not going to go down the route of the magistrates’ courts employing this sort of order. At the moment, the Bill is silent on that, but it is one of the very important details that must be looked at. We should not even contemplate that decision being taken at magistrates’ court level.

A number of things seem to me to be necessary at the very least. First, the judge must know the true identity of the witness. There is nothing in the Bill to ensure that he is told. Surely that must be put right by amendment next week. Secondly, defence counsel must not be prevented from seeing and hearing the witness as he gives evidence and is cross-examined, if counsel chooses to do so. In the case of Davis, defence counsel chose not to be in a better position than his client. Other defending counsel would take a different view. It is asking the case to be conducted with defence counsels’ hands tied behind their back if they have to cross-examine someone of whose identity they have no knowledge without being able to see his or her demeanour as he or she answers the questions and, apparently, hearing some sort of distorted voice representing the replies. That cannot be right and it should be put right by amendment next week at the very least.

I have already made the third point: this should refer to serious crime only. Fourthly, in order to determine the application, there needs to be a clear procedure including a detailed report from the police to the judge indicating the origins of the request, the investigations made, the background of the witness and, especially, details of any prior contact or relationship between the witness and the accused, his associates or family that may have a bearing on the credibility of the defence. Without that basic information, how can a judge begin to judge whether there is likely to be a fair trial?

There must also be a clear procedure for the hearing of such applications, which provides for the defence to make submissions, unlike the present public interest immunity hearings, which take place in the judge’s chambers between the judge and the prosecution alone. I echo what has been said by several others about the need for provision for special advocates. Lastly, I am glad to see that the judge is required to give a warning to the jury about the dangers of evidence in such cases. It is crucial that, as soon as possible, strong specimen directions are provided so that there is consistency in that warning.

The granting of these orders should be truly exceptional and not become the norm wherever it is requested. As we all know and have all seen, legislation in haste is all too often defective. I am particularly pleased that there is a sunset clause, but I wish that there had been no sunrise on the Bill. Horace Rumpole would turn in his grave at the provisions of the Bill; he will probably, as usual, be proved right.

Baroness Butler-Sloss: My Lords, the noble Baroness made the point that all three main political parties, under public pressure, have given in on a Bill that ought not to be going through. Is she aware that Liberty, which has nothing to do with political parties, does not object in principle to the Bill?

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Baroness Mallalieu: My Lords, I am very much aware of that. I have read the helpful briefing that Liberty has sent, but I disagree with it. I appreciate that Ministers and leaders of all political parties are in a difficult position. Many people’s instincts would be to take the line that I do, but they feel that their responsibilities in office and elsewhere require them to put other considerations to the fore. However, I cannot forget the headlines in the tabloid press, which the Law Lords who gave that judgment must have read with horror. There is undoubtedly a view that all Ministers, Governments and political parties should be tougher on crime. It is the response to that urging that sometimes leads us to lose sight of what we should be doing: defending our criminal justice system.

Lord Lester of Herne Hill: My Lords, has the noble Baroness read the various reports of the Joint Committee on Human Rights? It is all-party and beyond party, and is not controlled by the Government. All its members are keen to promote human rights and they are all keen to preserve the balance between liberty and security. We have not been rushed in our work at any stage or dominated by political pressure in forming our judgments. It is not fair to committees of that kind to suggest that we are acting under some kind of political coercion, because we are not.

Baroness Mallalieu: My Lords, I apologise to the noble Lord if he feels that I was suggesting for one moment that he would bow to political pressure, but I think that a degree of political pressure is applied to political parties, particularly in another place, and understandably so. I have read the report carefully and I see that it raises a number of concerns that are not met in the Bill as drafted. I hope that practitioners such as me will raise other concerns that will find favour with Ministers next week. It is crucial, for example, that defence counsel can see what is happening. It is also crucial that the judge knows the true identity of the defendant. Those matters have not been dealt with, despite all the time that has been given to preparing these reports, and I hope that we can put that right before it is too late.

Lord Grabiner: My Lords, before my noble friend sits down for the third time, for which I apologise, she will not be pleased to hear that the definition of “court” in Clause 12(1)(a) includes magistrates’ courts.

Baroness Mallalieu: My Lords, I am very grateful to my noble friend. Clearly yet another amendment will have to be prepared before next week.

1.52 pm

Lord Thomas of Gresford: My Lords, my noble kinswoman Lady Walmsley revealed to the noble Lord, Lord Hunt, in the Chamber the other day that I have the eyes of a separate character. No doubt he is used to a fixed and unremitting, unforgiving glare from one eye about government legislation. That is my right eye. He may notice that my left eye is warmer and with a bit of twinkle in it. That is my glass eye. I am happy to say that that is as a result of the great skill of the painters at Moorfields Eye Hospital.

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With this Bill, a little warmth comes into my right eye. I agree with the noble Baroness, Lady Mallalieu, that consistency is needed and that it is right that we should have a statutory framework that sets out clear guidance as to how the court should operate in this difficult, if not new, situation. My purpose is to suggest how the Bill can be improved so that that framework cannot be subject to rushed appeals or complaints to the European court in Strasbourg. Whereas the framework can comply with the European convention, subject to one matter that I shall return to, an individual case may very well not. As the noble Lord, Lord Elystan-Morgan, said very properly from his great experience, the Bill does not help the judge to come to his decision. It refers to certain considerations that the judge must take into account, but ultimately the judge himself must decide whether the trial is fair.

I have some experience in this field. I was not faced with screens, anonymous witnesses or anything of that sort until January 1993. I noticed that the noble Lord, Lord Hunt, said that anonymity was first used in 1990, but I first came across it in January 1993 when prosecuting a case in Caernarfon, to which I referred two days ago in another context. I called witnesses who belonged to the security services. Screens were erected in court, but it was possible for the defence, the prosecuting counsel, the jury and the judge to see those witnesses, who gave their evidence under the letters X, Y and Z. No one saw anything particularly wrong with it at the time. Interestingly, it was the first case ever to use the public interest immunity procedure, which was developed in the case of Johnson. We adjourned for a week to find out how that procedure should be brought into effect. In such a case where you are dealing with undercover operations, policemen or people from the Security Service, there can be no objection to their giving evidence anonymously. That is why we have no objection to Clause 4(3)(b), which refers to this.

In 1998, special measures were introduced basically to protect the victims of sexual offences and children subject to abuse. As a result, it became commonplace for witnesses in that category to give evidence under special measures, sometimes from behind curtains and sometimes over a television link to a room in which they were kept. That has not been wholly successful. I talked yesterday to a very experienced prosecutor of this type of offence, who told me that it creates remoteness between the witness and the court and that there cannot be that communication between jury and witness and between counsel and witness that is normally to be found in a court. At times, a jury regards something on a television screen as something of a soap opera as opposed to a real situation.

The noble Lord, Lord Elystan-Morgan, referred to creeping erosion in this field. Indeed, that appears in the judgments of their Lordships in the case of Davis. Earlier this year, I was disconcerted to be involved in a murder case that involved civilian witnesses known as X, Y, Z and so on. On the Friday before the trial, which began on the Monday, I was served with standard CPS forms. Every form said the same thing, “The witness is in fear of the defendant”, and applied for the witnesses to be subject to special measures. It had

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become so standard that the CPS had not even signed the forms, which were produced to the court as part of the application.

No evidence was received from any of the witnesses. A police officer said that they came from an estate where they were subject to all sorts of pressures, and the learned judge made the order. As the noble Lord, Lord Marlesford, rightly said, he really had no option because the witnesses had been offered anonymity by the police and were coming to the court. No forensic evidence supported what they said, and if the judge refused that application and the witnesses gave no evidence, the case would collapse. As it happened, one of the witnesses, who was the girlfriend of the deceased, said, “I don’t want all this. I want to confront the defendant and say what I’m going to say to him”. She gave very compelling evidence. The defendant was 17 years of age, as was she. The witnesses who came and used the special measures were men with previous convictions and aged between 28 and 45. This was a ridiculous situation in which grown men used the special measures and anonymity so that they could say what they wanted. That is wholly prejudicial. What is a jury to think when men twice or three times the age of the defendant and with convictions themselves feel it necessary to give evidence anonymously behind curtains? The jury must ask how dangerous the defendant can be.

I want to get away from that. It is astonishing to me that some 50 cases are outstanding where anonymity is to be granted. I would bet that in every one of those cases, the request has come from the police when they ask whether someone wants special measures or whether they feel concerned. Even last Thursday, an article in the Guardian was headed: “Knife crime: Police guarantee anonymity to the Ben Kinsella murder witnesses”. It is true that the officer concerned had said, “Come forward, then it is up to the police to persuade you to testify. If we do not persuade you, then we do not”. But it is obvious where the pressure is coming from when the police guarantee anonymity. It is to that creeping erosion that the decision in the case of Davis put an end, and it is now for us to put forward a statutory framework which can ensure that fair trials can continue.

I shall deal with some of the matters that arise under the Bill. Clause 3(2) provides relation to an application that:

There is obviously no requirement on the prosecutor to inform the defendant of the identity of a witness, so a burden is put upon the defence team to make their witnesses known to the prosecution, but nothing in reverse. I fail to see how that is compatible with Article 6.3(d) of the European convention, which sets out the minimum right of the defendant to,

To my mind, this subsection is a direct contravention of the above article.

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