Coroners and Justice Bill

I support the spirit of the amendments and in so doing remind myself of the issue that led to the 2008 Act, which was passed almost exactly 12 months ago. The case of Davis had been decided, if I remember rightly, on 18 June last year, and spelt out that the practice that had developed very gradually over the years of allowing anonymity was wholly illegal. Parliament had to intervene to legitimate something that was illegal under common law. The mechanics of that were not difficult because of the sovereignty of Parliament, but there was a second question: how does one remove the injustice which this legitimatisation could bring about? That is very much more complicated. The provisions of Clauses 75 and 76 are very similar, as has already been pointed out, to the wording of the 2008 Act. If the six matters, which are set out in Clause 76(2) and establish whether conditions A, B and C under Clause 75 have been satisfied, are no more than what a conscientious careful judge would have been doing over the past 15 years or so, how do they protect the position of a person who may have to face a most damning accusation without knowing who his accuser is? With great respect to the Minister, if he concludes that any conscientious judge would have applied his or her mind to each and every consideration in Clause 76(2)(a) to (f) pre R v Davis last year, how is the situation improved? In other words, all Parliament will have done is convert a rule of practice on anonymity that turned out to be illegitimate into a statutory checklist, but it will not have advanced the situation at all. I hope that I make myself clear. I should be grateful if the Minister will say whether there has been close consultation with judges on this matter and whether they were of the view that there was any difference between the statutory check list in Clause 76 and what was done from day to day and from year to year previous to R v Davis last year. One further consideration is that this matter has not been finally adjudicated on in Strasbourg, which was mentioned at Second Reading. If the Strasbourg court was of the view that these conditions, which were the very minimum necessary to bring about a just conclusion for the defendant, have not been satisfied, all that we are doing is rendered utterly nugatory. I do not for a moment argue that there is anything sacrosanct in the issue of a special counsel. If there are other ways of doing it, so be it. It is not the special counsel that is important, but the principle that a person should not face grave accusations without knowing who his or her accuser might be. But is there any other way? That is the experience of other countries which have gone down this path. I understand that it is the experience of New Zealand and Netherlands. I think I am right in saying that nearly the whole structure of the 2008 Act was culled from the New Zealand Evidence Act 2006. Under that Act, a specific section, which I seem to remember was Section 115, deals with special counsel. Is there any other way that the result for which I have argued can be achieved; that is, that a judge should have a factual matrix on which to determine Conditions A, B and C in Clause 75, and paragraphs (a) to (f) in Clause 76(2)? As regards the Court of Appeal decision of December 2008, to which the noble Lord, Lord Thomas of Gresford, referred, the judge would have to be satisfied not only as to Conditions A, B and C, but to each of the six considerations under Clause 76. It must follow because Clause 76 proves or disproves Conditions A, B and C in Clause 75. In other words, is there any way of dealing with this situation, which could be one of grave injustice, without a special counsel? I appreciate that it would be churlish of me to pretend that there is not a problem. Of course there is a problem. There has been a problem with regard to witnesses since the dawn of time. At Second Reading, I quoted an article written some years ago by my noble friend Lord Pannick on this matter. In 70 BC, when Cicero was about to prosecute the consul general of Sicily, it was maintained that it was impossible to proceed with the trial because it was feared that all the witnesses had been bribed. There is nothing new in this situation. As the House will remember, there were reports on this by Lord Diplock and Lord Gardiner. Indeed, this problem cropped up at the time of the trials of the Kray brothers and the Richardson gang. This is nothing new at all. But is there any way in which to deal with the situation to avoid a grave injustice? Therefore, on that basis, I am glad to support the principle underlying these amendments.