Coroners and Justice Bill

We come to the anonymous witnesses part of the Bill. Members will recall that the anonymous witness provisions in the existing law passed through the House in one day last year, and through the other place in two days. At that point, we were promised proper consideration of the provisions in a full debate, in a full Bill. We are now left with a Report stage, effectively on that Bill, of 21 minutes, which is entirely unsatisfactory. Let me go through three of the main problems that subsist in the provisions. The first is dealt with by new clause 12; it is that the Government have resisted putting in the Bill the mechanism under which independent or special counsel are brought in to advise or help the court as it decides whether to make a witness anonymity order. One of the problems is that an anonymous witness might be prejudiced against the defendant in a way that would become clear only if the defence were able to cross examine them with the benefit of knowing who they were. The person might seem to be only a witness to some external fact in the world at the time of the crime—to something that they saw or heard, rather than to what they thought the defendant did or said. The issue of possible prejudice against the defendant might not be obvious at the time, but that person—even if apparently only a witness to an external event—might turn out to be associated with an enemy or rival of the defendant. In such circumstances, making a witness anonymity order might well be the wrong thing to do, but that point would not come out unless someone other than the prosecution had access to all the papers and could ask pertinent questions. Given the circumstances, that job clearly could not be done by the defence; that raises the possibility and in many cases the necessity of appointing special counsel to assist the court to do it. In addition, there might well be cases in which the judge was uncertain whether to grant an order, because the status and credibility of the witness were unclear. In such a case the judge might be tempted to deny a witness anonymity order when further inquiries by independent counsel would have revealed that there was nothing to worry about. In such a case, independent counsel would strengthen the case for such an order. I am not claiming that special counsel should be appointed in all cases. In the Mayers case, the Lord Chief Justice said that there were cases in which special counsel would help and cases in which they would not. The test that I suggest in new clause 12 for the appointment of special counsel is based on the words of the Lord Chief Justice in that case:""whether the appointment of special counsel…would contribute significantly to the fairness of the proceedings"." All I suggest is that the appointment of special counsel should be thought about—no more than that—in every case. New clause 12 also deals with a possible problem with how the system works now. Special counsel are not appointed by the court, but by the Attorney-General after an application from the judge. So far, special counsel have always been appointed when requested, but what happens if the Attorney-General refuses? There is no provision for that situation, but new clause 12 settles the matter by saying that if the judge asks for special counsel and the Attorney-General delays or refuses, there cannot be a witness anonymity order at that time. The second problem is more technical and is dealt with by new clause 13. It is the problem of what happens in multiple-defendant cases when a defendant, rather than the prosecution, asks for a witness anonymity order. The Bill says that the other defendants should not discover the identity of the witness, but adds that the defendant has to tell the prosecution the identity of the witness. The problem is that the prosecution have duties of disclosure to the other defendants and it is possible that the identity of the witness, who was supposed to be anonymous, would be revealed indirectly to the other defendants via the prosecution's duties to disclose. Nothing in the relevant legislation—the Criminal Procedure and Investigations Act 1996—definitively rules out that possibility. In Committee, the Minister said that there was no problem because the witness anonymity order took precedence over any duties to disclose, but nothing in the Bill says that and new clause 13 simply puts into it what the Minister said in Committee. The third problem identified in Committee has resulted in amendments 160 and 19. It is the problem of what to do about cases in which the witness is not threatened with personal injury—there is no threat to life or limb—but there is a threat to property not linked to such injury, such as a threat to burn down a lock-up shop or to damage a parked car. The debate in Committee was initially about whether property damage should be included at all. There are doubts about whether property threats that are entirely separate from threats of personal injury meet human rights standards. As the debate developed, however, it became clear that there were plausible circumstances on particular estates where such threats, in combination with a general atmosphere of threat and intimidation, would be all too effective in intimidating potential witnesses. The issue then became how the Bill dealt with that problem and whether it properly captured the real-life situation. The Bill as it stands simply talks about serious damage to property, but the question is what that means. Does it mean merely expensive property? If the test relates merely to how valuable the property is, it would tend to favour rich witnesses over poor ones. In any case, that test is not related to the main issue, which is intimidation, not the seriousness of the damage in terms of the value of the property. Amendments 160 and 19 are tabled in a spirit of compromise to try to clarify the situation. They suggest that the threat to property counts as serious enough if it means that a reasonable person in the position of the witness is intimidated into not giving evidence. The seriousness of the damage to the witness's property would be judged in terms of their resources, so that damage to the modest property of an impoverished witness would be taken more seriously than damage to the valuable property of a very rich witness.