APPENDIX 1: CRIMINAL EVIDENCE (WITNESS
ANONYMITY) BILL
Memorandum by the Ministry of Justice
1. This Bill follows the House of Lords judgment
in R v Davis [2008] UKHL 36 handed down on 18 June 2008.
That appeal concerned the use of anonymous witness evidence at
trial, which is governed by the common law. The effect of the
judgment is to restrict the courts' ability at common law to allow
evidence to be given anonymously during criminal trials. The Bill
puts on a statutory footing a power for the courts to grant witness
anonymity orders in criminal proceedings where this is consistent
with the right of a defendant to a fair trial.
2. The Bill contains one delegated power which
is detailed below.
Clause 14: Power to extend duration of Act
Power conferred on: The Secretary of
State
Power exercisable by: Order made by Statutory
Instrument
Parliamentary Procedure: Draft affirmative
3. In view of the immediate adverse impact on
certain current and pending criminal proceedings, and on convictions
already secured through the use of anonymous evidence, the Government,
with the co-operation of Opposition parties, is seeking to accelerate
the passage of this Bill so as to secure Royal Assent by the summer
recess. As a result, the time available to debate the provisions
of the Bill will necessarily be curtailed. In recognition of this,
the Government has undertaken to repeal and subsume the provisions
of the Bill into the Law Reform, Victims and Witnesses Bill, to
be brought forward in the 2008/09 session, in order to allow further
and fuller debate of the provisions.
4. Clause 14(2) gives legal effect to this undertaking
by providing for the Act to cease to have effect from 31 December
2009. Clause 14(3) enables the duration of the Act to be extended
by the Secretary of State by order. Such an order may extend the
duration of the Act by a maximum period of 12 months; the power
is exercisable on one or more occasions. The Secretary of State's
power to extend the duration of the Act by up to 12 months is
in order to provide for any slippage in the timetable for the
enactment of the replacement legislation. The affirmative resolution
procedure is considered appropriate given Parliament's intention
that the Act should ideally be replaced by the end of 2009.
Ministry of Justice
July 2008
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