Robert Buckland Weblog

The Criminal Evidence (Witness Anonymity) Act 2008 has received Royal Assent and came into force last month.  Happily, Section 14 is a “sunset clause”, ending the power to make Witness Anonymity Orders under this Act on 31st December 2009.  The Act has been a work of breakneck speed, because of the difficulties being caused to ongoing cases by the recent House of Lords ruling.  I am in complete sympathy with the Government’s predicament on this one, and the matter was passed with the agreement of my Party in Parliament.

A problem has already emerged, however; such is the way of things when new legislation is case-tested.  In a recent trial in South Wales involving the use of under cover police witness evidence, it became clear that the provisions of Section 4(5), namely one of the conditions necessary before an order can be granted, does not cater for witnesses such as police or HMRC officers who are on duty.  The Court can only grant an Anonymity Order if the witness “would not testify if the order were not made”.

A police officer who refuses to testify must be committing some sort of disciplinary offence.  We are now in a situation where, in order to comply with the legislation, the undercover officer will have to make a statement indicating that he or she would not give evidence unless their anonymity was preserved.

This loophole could be closed by adding the words at the beginning of (5)(b) “Save in the case of a police officer or other investigative officer of a description set out in schedule 1 who is giving evidence in connection with his or her professional duties…”

Perhaps this can be added when the matter is re-visited before the end of next year.