Criminal Evidence (Witness Anonymity) Bill

Nick Herbert (Arundel and South Downs) (Con): The House finds itself in an invidious position. In June, the House of Lords held in the case of Davis that measures taken to protect the identities of witnesses were incompatible with common law. As a consequence, a number of current criminal cases have been thrown into doubt and, whatever view one takes, that uncertainty needs to be addressed quickly.

The Law Lords made it clear, however, that subject to the overriding need for a fair trial there is scope for Parliament to legislate to allow by statute greater use of anonymous evidence than common law permits. The legislation must be consistent with the right to fair trial, not least because it would otherwise be incompatible with article 6 of the European convention on human rights.

As I said in the House two weeks ago:

"We recognise our constitutional duty to scrutinise as best we can all legislation...and not to attempt to hinder the Government improperly...My party is committed to working with the Government in a constructive way to deal with this problem".-[ Official Report, 26 June 2008; Vol. 478, c. 517.]

That is what we have sought to do and I am grateful to the Justice Secretary for his approach. Accordingly, we support the principle behind the Bill, but we have concerns about its scope.

Rob Marris (Wolverhampton, South-West) (Lab): The hon. Gentleman and the hon. and learned Member for Harborough (Mr. Garnier), who spoke before, have said that the official Opposition support in principle the reasons behind the Bill. Does not the hon. Gentleman see a contradiction in a party in official opposition wrapping itself in the Magna Carta on the issue of 42 days but discarding it when it comes to this Bill?

Nick Herbert: I shall address the balance that we need to achieve. I shall not dignify that intervention to any greater extent.

Even if circumstances dictate that we must legislate swiftly, that does not mean that we should do so lightly. As the Secretary of State said, important principles are at stake. As long ago as 1720, the English courts recognised confrontation as

"the most effectual method of establishing the truth".

In 1641, this House moved to abolish the Court of Star Chamber, which, once praised for its speed and flexibility, gradually evolved into a body in which the interests of justice were subjugated to the convenience of the Crown. In the United States of America, a defendant's right to confront his accusers is recognised explicitly in the sixth amendment to the constitution. Like much of the US Bill of Rights, that provision merely reflected contemporary English law.

The right of defendants to confront their accusers is not a mere historical nicety. It was developed in our common law precisely to ensure that justice was done. The overriding principles of justice are clear and simple: to convict the guilty and acquit the innocent. It is in no one's interests if, in the interests of securing convictions, we risk convicting the innocent. Miscarriages of justice result in the truly guilty going unpunished and leave the public at risk. There can be no utilitarian argument for setting aside the principles of justice. That is why, with all due respect to Assistant Commissioner Bob Quick of the Metropolitan police, for whom I have the highest personal regard, his call for emergency legislation on the grounds that there is

"too much principle and not enough pragmatism in the criminal justice system"

is seriously misplaced.

Nevertheless, we recognise that a consequence of the Law Lords' judgment may well be that the guilty go free. That, too, would be contrary to the principles of justice. If justice can be done only through the use of anonymous evidence, the courts should have the power to hear that evidence. However, it should be used out of necessity to secure justice, not out of convenience to secure convictions. Its use should be exceptional, not routine, and the court must decide whether the risk of intimidation justifies it. The assessment must be objective, and it cannot be left to the defendant. That is a weakness in the Bill and needs addressing.

Mr. Michael Ancram (Devizes) (Con): I have been listening carefully to the arguments that have been advanced. One problem that I have is that both the Secretary of State and my hon. Friend talk about the need to have a fair trial. How can an accused person have a fair trial if he does not know the identity of his accuser?

Nick Herbert: That goes to the heart of the dilemma that we are confronting. The principle set out in the Bill is that a judge must be satisfied about a number of considerations, including a defendant's general right to know the identity of a witness, before allowing the use of anonymous evidence. Those tests are in the Bill precisely to restrict the use of such evidence. Some may disagree, but I think that most Members agree that the use of anonymous evidence will not necessarily be a bar to a fair trial. The Opposition believe that it is right to allow judges to make the decision, subject to the tests that Parliament will set out.

Jeremy Corbyn (Islington, North) (Lab): Does the hon. Gentleman accept that article 6 of the European convention on human rights provides a long-stop defence to ensure that judges do not abuse anonymity orders? Like him, I am concerned that we must not repeat the most ghastly miscarriages of justice of the past through the misuse of those orders.

Nick Herbert: The hon. Gentleman will know that the Law Lords made it clear in their judgment that there would be circumstances in which anonymous evidence could be used in a way that is consistent with article 6 of the convention. The Government are introducing this Bill to try to ensure that consistency, but they accept that challenges to it are very likely.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Does my hon. Friend agree that the real problem with the Bill, and it is a problem that affects us all, is that the Davis judgment will be examined to determine witness credibility? The judgment makes it plain that the Davis case was sent back to the Court of Appeal because the common law power that had previously been thought to exist did not in fact exist. Another reason the case was sent to the Court of Appeal was that the exercise of the protective measures-and they are precisely the same as those contemplated in the Bill-made the trial unfair. That problem will arise very often when the credibility of witnesses is at stake. It may stand in the way of the use of the protected measures, because Davis shows that they render a case unsafe.

Nick Herbert: The Law Lords also invited Parliament to set out a statutory framework, which we are seeking to do. It is likely that the Davis case will fall and that it will not be saved by the statutory provisions in the Bill.

Mr. Hogg: I am sorry, but my hon. Friend is wrong about that. The case will fall to the extent that the common law power will be replaced by statute, in a sense, so the fact that judges hitherto have made orders that they were not entitled to make will not by itself be grounds for appeal. However, if the protective measures render a trial unfair-as was the case in Davis-the orders will not be made. If they were made, the convictions would be quashed.

Nick Herbert: I invite my right hon. and learned Friend to make those points in greater detail during the Committee stage-not least so that my hon. and learned Friend the Member for Harborough (Mr. Garnier) can answer them. I am afraid that he has lost me.

I turn now to the weight of the provisions in the Bill, and the considerations against which the court must judge the acceptability of anonymous evidence. The explanatory notes concede that the Bill's statutory framework draws on the model provided by New Zealand's Evidence Act 2006. However, there are a number of significant omissions from the conditions that that legislation set out. The Government have moved already to correct one. Government amendment No. 42 adds a consideration that the court must have regard to whether the evidence from the anonymous witness might be the "sole or decisive" evidence. We pressed for that inclusion: we welcome it and are grateful for the Government's concessions.

That leaves two considerations that are present in the New Zealand legislation but absent from the Bill-first, that the court should have regard to the gravity of the offence and, secondly, that it should have regard to the principle that witness anonymity orders are justified only in exceptional circumstances.

It is important for the House to know why the Government have excluded those tests. The Law Society has urged us
"to ensure that the legislation is robust enough to prevent witness anonymity becoming a routine request that is made in ordinary cases without very good reason. We are very concerned to ensure that these orders will only be used in the most exceptional of cases."

That is precisely the wording used in the New Zealand legislation.

Similarly, the chairman of the Bar Council, Tim Dutton, has agreed that allowances must be made where witnesses are in genuine fear for their lives, but warned:

"We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall...that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances".

That shows that the Bar Council supports the provisions, but only in "exceptional circumstances".

The Justice Secretary quoted the article by Assistant Commissioner John Yates in The Daily Telegraph of 21 June, in which he called for emergency legislation. But Assistant Commissioner Yates also said that special measures to allow witness anonymity

"should be confined only to the most serious cases."

We have been told that 580 cases will be adversely affected if we do not continue to allow anonymous evidence, but the Government have confirmed now that only 50 cases involve members of the public as witnesses. Half of the 580 cases involve test purchasers of illicit substances, with only a minority of the 580 representing the most acute cases in terms of timing and risk. The question is, therefore, how many of the cases will, and should, be saved by the legislation? Are we being asked to legislate to secure witness anonymity in the most serious cases, or more widely than that? Clearly, it matters whether the legislation is designed to allow for anonymous evidence in drug cases, where the gravity of the offence is relatively less serious, or whether it should apply only in much more serious cases involving, for instance, terrorism, murder and gang violence, where people's lives may be at stake.

It is also important that we understand the scale of witness intimidation and whether it is a growing trend. Such intimidation is, after all, not new. Nor has the criminal justice system in this country had problems securing very high-profile convictions in the past without resorting to witness anonymity provisions. As the Law Society has observed,

"in the past convictions have been achieved without this legislation in notorious cases",

for example, the Kray and Richardson cases. Furthermore, Members of this House on both sides will be only too aware of the scale of witness intimidation confronting police and prosecutors in Northern Ireland during the troubles-a period in which witness anonymity was explicitly rejected as a solution to the problem of intimidation.

No one should doubt the effect of witness intimidation in serious criminal cases involving gangs and organised crime. We all want to see violent criminals successfully prosecuted in the interests of public safety, and few want to outlaw anonymity procedures entirely. Certainly, both the Bar Council and the Law Society recognise its importance. Nor do we question the many practical difficulties that the police have in encouraging witnesses-many of them young and vulnerable-to co-operate in giving evidence at a trial, but the Law Society has also noted

"concern among prosecutors that police officers are too ready to make promises of anonymity pre-trial in circumstances where it is not, or will not be, appropriate."

Today, the Director of Public Prosecutions, I think in evidence to the Joint Committee on Human Rights chaired by the hon. Member for Hendon (Mr. Dismore), has said that evidence that witness intimidation is growing is "anecdotal". We need a proper assessment of the growth and nature of witness intimidation, and if that is not possible now, the Government should produce it ahead of the law reform, victims and witnesses Bill. We need to ensure that the use of anonymous evidence is proportionate to that assessed threat.

It is common ground that alternatives to witness anonymity should be preferred. The question is how effective they are. In its briefing on the Bill, Justice emphasises the importance of witness protection. It highlights the fact that in the United States, the Marshal Service boasts that it has never lost a witness under its protection.

Jeremy Corbyn: The hon. Gentleman must be aware that where there is a problem of knife crime among young people and gangs, it is very difficult for the police to get anyone to give evidence unless they can offer some pretty cast-iron guarantees of the safety of witnesses. Otherwise, the police simply will not get any evidence: result-no prosecution, no conviction, and someone who is the leader of a gang that has treated people abominably gets off scot-free and continues causing mayhem in an area.

Nick Herbert: I understand the hon. Gentleman's point. I was going on to give the counter view to the point that Justice was making about the reliability of witness protection schemes as an alternative to the use of anonymous evidence. There are limits to the use of witness protection schemes. As the Court of Appeal noted in its judgment in the case of Davis
"in reality, and certainly for the individual of good character, with established roots, this kind of programme is unacceptable".

The judgment added that

"this process is grossly invasive of the right of the witness and his family to private and family life".

As Danielle Cable, the fiancée of Kenneth Noye's victim, Stephen Cameron-herself in witness protection-said:
"I have lost twice-Stephen and my old life."

Witness protection may not be an alternative to using anonymous evidence, but it is an important means of bringing some cases to justice. At present, there is no statutory witness protection scheme, and provision across police forces is still patchy and sometimes inconsistent. I hope that the law reform, victims and witnesses Bill will address those concerns where this emergency Bill plainly cannot.

In conclusion, I remind the House of what I said in my response to the Justice Secretary's statement on 26 June. I asked him if he would

"consider carefully whether it is wise to rush through all stages of the Bill in this place in one day".-[ Official Report, 26 June 2008; Vol. 478, c. 517.]

I regret that it is exactly what is happening. We have been allocated only six hours to consider these matters as every stage of the Bill is pushed through the House in a single day. We accept the need for legislation to deal with the problem swiftly, but we do not accept that it is necessary to truncate debate and rush consideration in this way. The Government have already tabled amendments to a Bill that they introduced only days ago.

I welcome the Government's concession that a sunset clause will be written into the Bill to ensure that the provisions are replaced in the forthcoming law reform, victims and witnesses Bill. We pressed for such a provision and I am grateful to the Justice Secretary for conceding it, as it will give the opportunity for more considered legislation and discussion of proposals such as the use of special advocates and special measures. Nevertheless, driving laws through the House in a single day is unwise and unnecessary. It will only add to concerns about the measure, not least in the other place, and is bound to increase the risk that we get something wrong. When both the safety of our communities and the liberty of individuals are involved, that is a serious matter.

The Bar Council has said:

"The criminal process is not a static one; its procedures are not frozen in a past era of mythic perfection. But its commitment to a proper balance between the various interests and rights of those caught up in the process remains the same: to do justice in a way that serves the public interest while protecting the rights of the victims of crime, the witnesses in criminal proceedings and those suspected of serious criminal wrongdoing."

We support the use of anonymous evidence where it can be accepted without prejudicing a fair trial. We understand the need to legislate swiftly to ensure that some serious cases do not fall, but we must ensure that the correct balance is struck. I am grateful to the Government for addressing a number of the concerns we have expressed, and I hope that spirit of constructive debate will continue. Above all, however, we should be concerned that the Bill is properly scrutinised so that justice can be done.