Coroners and Justice Bill

I want first to address Amendment 185ZE, in the previous group, for the purposes of replying to the Minister—as I am entitled to do. I am rather heartened by the few applications that have been granted. As the noble Lord, Lord Elystan-Morgan, said, these witness anonymity orders were being handed out wholesale. I came to the witness anonymity Bill last year straight from a case in the Old Bailey where no fewer than five witnesses in a murder case had given evidence with their voices changed. Acting on behalf of the defendant, I had no idea who they were and it was impossible to cross-examine them. They were the only witnesses; there was no forensic evidence in support of the prosecution’s case. Apart from one young lady, the girlfriend of the deceased, who said, "I am not going to give my evidence anonymously"—even though an order had been made in her favour she refused to give evidence in that way and therefore gave evidence in open court—there was no other evidence against the defendant. It was a wholly unfortunate thing to happen and these must be regarded as exceptional orders. The framework that was put in place last year seems to be working and the guidance in Mayers—that these are measures of last resort—will be very influential. The practice of the police offering to witnesses that they would all be treated anonymously seems to have ceased and I am pleased about that. However, it is not satisfactory that special counsel should be appointed by the Attorney-General. The purpose of the amendments was that special counsel should be appointed by the court where the court thinks it is necessary and that the court should not regard it as an exceptional matter when it is required to come to a conclusion on the highest degree of proof—beyond reasonable doubt—and has to take account of all the considerations and conditions that have to be fulfilled. It is a matter for the court to consider whether it has enough information. We will have to return to this on Report and see whether we can have a joint amendment which will perhaps meet with the Government’s favour. I now turn to Amendment 185ZA and a series of amendments that are grouped together that cover quite disparate matters. I apologise to the Committee that they are not being deal with separately. However, I shall endeavour to cover them all. Amendment 185ZA relates to subsection (3)(b). The first condition to be met for the granting of a witness anonymity order is Condition A; that is, ""in order to protect the safety of the witness or another person or to prevent any serious damage to property, or (b) in order to prevent real harm to the public interest"." That is an extraordinarily wide concept. The purpose of the amendment is to confine that possibility in paragraph (b): ""in order to avoid compromising the practice of undercover policing or undercover operations by police (or both), law enforcement agencies or the security services, whether in relation to specific operations or generally"." The statistics that were given by the noble Lord in answer to the previous question make the point. By far the bulk of the orders that have been granted have been to undercover policemen or to those who are engaged in investigating food and matters of that sort. That is what we are seeking to confine the public interest to. To prevent real harm to the public interest, as set out in Condition A, could mean anything. Subsection (5)(b) introduces the same concept in terms that were not in the original Act of last year, that there would be real harm to the public interest if the witness were to testify without the proposed order being made. What public interest is there? I should be glad to hear from the noble Lord what the Government have in mind. Amendments 185ZB and 185ZC are drafting amendments to emphasise that subsection (6) should be redrafted in a way that makes sense. If they were accepted, the provision would read: ""In determining whether the proposed order is necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to"—" whether any— ""fear on the part of the witness … that the witness or another person would suffer death or injury, or … that there would be serious damage to property … if the witness were to be identified"," was reasonable. We cannot permit witness orders to be made because a person has a fear for his personal safety which is completely unjustified. The person who applies for such an order needs to satisfy the court that the fear of death or injury or serious damage to property is founded on something and is not just the subjective view of the witness concerned. Amendment 185ZD would insert a new clause providing that the prosecution should not disclose the identity of a witness to other defendants. The Bill suggests that a defendant may make an application for a witness anonymity order. In such circumstances, if the application is made by the defendant, then it is necessary to have a provision that nothing in the Criminal Procedure and Investigations Act 1996 or any law relating to disclosure of material by a prosecutor to the defence should apply to the identity of an anonymous witness who is made anonymous by the application of the defendant. These are separate and quite different points. We heard that one application had been made in the youth court—that was the statistic that the noble Lord gave. Nine applications had been made to magistrates’ courts, of which five had been granted. When the previous Bill was going through, I pointed out, on behalf of these Benches, that magistrates’ courts are not really suited to granting witness anonymity orders. In any event, not all courts have the practical means of disguising someone’s voice or identity, or of putting up screens, and so on. Nor is it right as a matter of principle that in trivial offences, there should be taken away from the defendant his right of common law and fair trial under Article 6 and his right to know the identity of his accuser. It may be necessary in serious offences, but when it comes to the magistrates’ court, it is our contention that witness anonymity orders should not be used. Perhaps if a case is triable both ways and the question of anonymity arises, it should be sent to the Crown Court. These orders should not be made by justices. If only nine such orders were applied for last year, they will have had very little or no experience of making the determination and considering those conditions and the considerations that are set out in the Bill as well. We suggest that that is far too complicated and that the magistrates’ court should be left out of this. However, the youth court—were the defendant an adult, he would have been tried in the Crown Court—is a different matter. In that very specific case, when only one application was made last year, we concede that perhaps an anonymity order could be made but, as a general principle, not otherwise. I beg to move.