Anonymous and transparent

The Past few days we have heard the sound of screeching brakes being applied to the potential juggernaut of the ability to call witnesses anonymously. The House of Lords, in the case of Davis, has thrown out an ice axe to stop the slide down the slippery slope of having trials without letting the defendant know who it is who is giving evidence against them. In all but the uncontroversial set of circumstances, a timely reminder that this is not what our justice system is all about has just been issued.

Transparency is vital in the trial process. The trouble is, it doesn't half get in the way sometimes. It does seem a pity that it is no longer possible to get an indication from the judge as to the likely sentence '“ although there is of course a sort of hybrid available.

And there is an enormous frustration when prosecuting, when issues of PII arise that lead to a prosecution being dropped because it is not possible to keep the intelligence or the name of an informer out of the trial process. Most police officers are philosophical in the circumstances, and accept that they have to throw in the towel for now. Nobody really wants to find their main witness is face down in the river a few weeks after the trial, and that, if you are lucky, their next appearance in court is as the victim in a murder trial.

Transparency also dictates the non-existence of the notion that communication can take place between the parties on a 'counsel-to-counsel' basis. Some people still think that it is acceptable that you can talk about a case and somehow swear to secrecy the person who is representing the person with most at stake. I have had rows with prosecutors when they have told me something and then said that it was done on a counsel-to-counsel basis. There is no such thing. In the same way a judge cannot tell me something in chambers that I cannot pass on to my client. This is not difficult '“ and if it were to be anything other than like this then that slippery slope would be further slipped down.

On the other hand it could be said that all of these values relate to a time when the world was less, well, nasty. In the good old Edwardian days, a felon was a felon and knew his place, the solicitors were hard working professionals who had grinded their way upwards from articles to a brass plate, and the barristers were toffs in spats who did not ever mention that grubby business of money but left it all to their clerks. It was all gentlemen and players and when the felon was convicted he went off to the treadmill or the mail bags with a 'Gawd bless you guv'nor', the solicitor assiduously kept the papers neat and tidy and discussed the fee in the language of guineas, and learned counsel disappeared in his hansom cab back to the club for oysters before putting in an appearance in chambers for the next well-paid fee tied up in deferential pink ribbon.

These days the solicitor is frantically trying to keep his head above water with a large client list for whom he is getting paid less, the client is empowered with the self-determination to be potentially quite a handful, and the oysters are off the menu and replaced by a tuna sandwich for cash-strapped junior counsel who are fighting over a bail application down the local court centre.

And the world has moved on because it seems that things can be a lot more dangerous out there. There are, after all, in certain cases, huge sums of money involved. There are also few impediments to getting tooled up and being seriously violent. A lot of people are very scared as witnesses.

As lawyers we can easily fall into the trap of overlooking quite what an ordeal it is to be a witness. You are walking down the road minding your own business when suddenly right under your nose something happens that you see. So you hang about to help, and then you give a brief statement and then you give a longer statement and you sign it and then you are told that you are required for trial so you do not make any holiday plans and have to disrupt your work (and everybody else's to cover for you), and then to cap it all you start to think whether this really is such a good idea when you find that the defendant has some violent friends who have nothing better to do than hang about working out where it is you live. Then the case gets put off time and time again and then finally you come to court and hang about all day and finally get called to give your evidence and then the other side, dressed in funny clothes, starts calling you a liar and suggesting that you wouldn't know your own mother if you passed her in the street. All this is bad enough without thinking that you are physically at risk as well.

So what should we do about witness protection? The real answer is to have less crime, of course. Assuming that that is wishful thinking, is there a way of ensuring that people are reassured that by being a witness they are not at risk next time they go out on a Friday night? Probably there isn't '“ beyond what is done already. In those circumstances we should then perhaps applaud our witnesses a little more and not take them so much for granted.

As ever with our system there is a tension: knowing your accuser so that you can properly defend yourself is vital. Having mechanisms in place, so that witnesses can come and give their evidence without fear of reprisal, is also vital. I'm not sure how we can resolve that dilemma in the really difficult cases. As the old saying goes, hard cases make bad law. Perhaps we are going to have to just leave it as it is, and just try to get as much evidence as possible, so that we reduce the occasions when we have to rely predominantly on one frightened individual. Our system is only a good system when we keep the core principles safe: better to be occasionally frustrated than permanently troubled.

The point was the rough diamond felon was probably not well associated with a bunch of firearms wielding nutcases were a lot of drug money is at stake.