26 June 2008
Jack Straw has made a statement to the House of Commons on the anonymity of witnesses.
The Right Honourable Jack Straw MP, Lord Chancellor and Secretary of State for Justice:
With permission, Mr. Speaker, I shall make a statement following the judgment of the Judicial Committee of the House of Lords, issued last Wednesday, in the case of Davis.
As the House will know, the Law Lords decided that there was not sufficient authority in common law to provide for the current arrangements for the admission of anonymous evidence, and said that this was a matter for Parliament to deal with by statute. The government will therefore present a Bill to rectify the situation as a matter of urgency. I hope very much that it will be published next week, and that, subject to the usual channels, it will be debated and complete all its stages in the House of Commons during the following week. For reasons that I shall explain, it is essential for it to receive Royal Assent and come into force before Parliament breaks for the summer recess.
I am extremely grateful to the opposition parties for their cooperation in this matter. I also fully appreciate that, like other members, they will not be able to judge the merits of the government's proposals fully until the details are available.
The background to this statement is as follows. As long as there has been crime, criminals have sought to intimidate witnesses in order to avoid punishment. Criminal justice systems across the world have sought to deal with this problem. Criminals do not operate by the rules, but the rule of law requires that justice should not only be done, but be seen to be done. The right of a defendant to confront his or her accusers in open court has been a key feature of all systems of justice worthy of that name. That right should be modified only where it is fully justified.
In recent years, witness intimidation has become an all too common feature in crimes of a serious nature, especially those involving guns, gangs or drugs. Such is the fear that can be engendered by such criminals that entire communities in an area may be reluctant to come forward to give any evidence about what they know.
In the Court of Appeal judgment in Davis, the president of the Queen's bench division, Sir Igor Judge, quoted the evidence of a detective who specialised in murder investigations. He said the following - I hope I shall be permitted to quote at some length:
'Most people opt not to cooperate and do not get involved. Doors are not opened, arranged meetings result in a witness not turning up, telephone messages go unanswered ... This is not a problem that exists on an occasional basis ... it is a problem that exists in practically every investigation in one way or another. Such problems exist on a daily basis. I have spoken to witnesses about a reluctance to give evidence. The common factor between all of them is fear. They are in fear of their lives and that of their families and friends. There is a very real danger to such persons of death or serious injury, either to prevent them from giving evidence, or to punish them for giving evidence and to send a warning to those who may be thinking of assisting the police. This risk, I know and the witnesses know, is not necessarily at the hands of the defendants themselves, but at the hands of the associates of the defendant. If the defendant is in custody, it is often the associates who are the physical threat. In many but not all cases, the witness knows of the defendant and their associates. They know they have easy access to firearms and the 'ease' with which they are prepared to use them.'
To deal with this situation, our courts had developed careful and proportionate measures by which the trial judge, where he or she believed it necessary, could order that evidence be given in such a way that the identification of certain key prosecution witnesses was disguised. In some cases, the key witnesses concerned may themselves have been involved in crime; others will be innocent bystanders, and still others may be, and are, undercover police officers or agents. In the Davis case, key witnesses were screened from sight of the defence, were given pseudonyms and had their voices electronically distorted.
In the Davis appeal, the Court of Appeal reviewed all of the circumstances, the common law authorities and the Strasbourg jurisdiction, and held that measures of this kind were both necessary and just to defendants in this case. Their appeals were therefore dismissed. In the House of Lords, their lordships took the opposite view. In the lead judgment, the senior Law Lord, Lord Bingham, said:
'By a series of small steps, largely unobjectionable on their own facts, the courts have arrived at a position which is irreconcilable with longstanding principle and common law authorities.'
Lord Mance, who extensively reviewed the Strasbourg jurisprudence, said that he did not believe that the Strasbourg Court would
'accept that the use of anonymous evidence in the present case satisfied the requirements of article 6'.
However, Lord Mance went on to say that the 'admissibility of evidence is primarily a matter for national law', and that the Strasbourg Court has repeatedly stated that the use of anonymous evidence is 'not under all circumstances incompatible with the Convention'.
And importantly, Lord Mance said it is not certain that: 'there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence'.
In other words, there should be caution about treating the convention, or apparently general statements by the Strasbourg Court, as containing absolutely inflexible rules.
All of their lordships accepted fully what Lord Bingham said was the 'reality of the problem' of witness intimidation, 'vividly described' in the Court of Appeal judgment. Lord Bingham went on to say that:
'this is not a new problem, but it is a serious one. It may very well call for urgent attention by Parliament'.
Lord Rodger said:
'Parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial.'
Lord Mance echoed these views. He referred to the experience of New Zealand and the Netherlands, who have introduced statutory frameworks for the use of anonymous evidence, and said that,
'it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence...that there is scope within the Human Rights Convention for such modification'.
Since the judgment was handed down last week, we have been looking urgently at how a statutory framework could operate, taking account of overseas experiences, not least that of New Zealand. Because of the urgency of the matter, the Bill is literally being drafted as I speak. The House will, therefore, excuse me if I now simply outline our thinking - although I may say that this unusual situation at least has the advantage that the draft can take account of comments made in the House and in the other place today, and it will do.
The essence of the scheme that will be published in the Bill is that the trial judge will have to be satisfied that the need for anonymity is established, that a fair trial will be possible and that it is in the interests of justice to make such an order for anonymity. There will also be other factors that the judge will have to consider in reaching this decision.
Parliament should never legislate at the speed at which I am proposing unless it is convinced that there are overwhelming reasons for doing so, but I suggest to the House that this requirement is satisfied in this case. Anonymous evidence is these days fundamental to the successful prosecution of a significant number of cases, some of which involve murder, blackmail, violent disorder and terrorism. Such cases could be jeopardised if we do not quickly fill the gap created by their lordships' judgment. The Crown Prosecution Service is urgently conducting an assessment of the total number of cases in the prosecution pipeline that may be affected. Neither my noble friend the Attorney General nor I can yet give definitive estimates of the number of cases involved, but as soon as we do have such accurate estimates we will, of course, make them available to the House.
In addition to those cases in the prosecution pipeline, there is great concern among the CPS [Crown Prosecution Service], the police and the wider public that a number of serious criminals convicted by a jury, whose trials satisfied article 6 and common law requirements, and whose appeals have failed, would seek to make use of the technicality of their lordships' judgement to have their convictions quashed. The Bill will, therefore, contain measures to ensure that the appeal courts should not quash convictions solely on the basis that the trial court lacked jurisdiction under the common law to provide for anonymity measures. The aim is to ensure that defendants cannot take unfair advantage of this technical defect in the law, which until last Wednesday had been unidentified and unsuspected.
I will publish this Bill just as soon as it is ready, and I will arrange to hold an open meeting for members of both Houses in advance of formal consideration in this House.
Let me finally provide an additional but important reassurance. My right honourable friend the Prime Minister has already announced in the draft legislative programme for the next session the Law Reform, Victims and Witnesses Bill. We had for months planned in this Bill to provide a statutory basis for anonymous evidence. I can, therefore, give the following undertaking of what amounts to a sunset clause for this urgent measure: the provisions of this Bill, if passed, will be included in next Session's Bill as well, so there will be a full opportunity for both Houses to give further consideration to this important area of the criminal process.
I commend the statement to the House.