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.