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Anonymous Witnesses

4 February 2010

Knowing Your Accuser

In June 2008 Rahman Ravelli Solicitors were in the middle of defending in an alleged contract killing case at the Old Bailey. However, following a judgment by the House of Lords applications were made by the defence to the effect that the jury had to be discharged as they had heard evidence from anonymous witnesses and the Lords case had just confirmed that such evidence was at least capable of breaching a defendant's right to a fair trial. The Judge agreed and in a blaze of publicity the trial was stopped.

The House of Lords Case

The name of the case was R v Davis [2008] UKHL 36. It started on 1st January 2002, at a New Year's Eve party in Hackney east London. Two men, were shot dead. Their deaths were caused when someone shot one of the men in the neck - the second death was "accidental", the bullet went through the first victim's neck, and into the neck of the second victim - thus a single bullet killed both men.

Soon after the killings Davis, who was at the party, travelled to the U.S.A. on a false passport. Following police investigations he was extradited back to England and was interviewed by the police - it was a 'no comment' interview. He was charged with two counts of murder. At trial his defence was alibi; he said he was at the party but left before the shooting took place and claimed he was the victim of false accusations from an ex partner. The Crown's evidence included witnesses who said that that they would be in fear of their lives if it became known that they had given evidence. These claims were investigated and accepted as genuine, i.e. the witnesses genuinely held the fear, whether it was well founded or not. To ensure the safety of these witnesses, and induce them to give evidence, the trial judge made an order to the effect that (1) each protected witness gave evidence under a false name; (2) no information would be supplied to the defence which could help identify a witness; (3) there would be no cross-examination which could lead to potential witnesses being identified; (4) the witnesses were to give evidence from behind screens and (5) the witnesses' natural voices were to be heard by the judge and the jury but were to be heard by Davis and his counsel subject to mechanical distortion so as to prevent recognition.

These measures were imposed despite the objection of the defence and Davis was duly convicted.

The law on the anonymity of witnesses in criminal trials has been largely developed by the common-law (i.e. Judge made law over the years). As Lord Rodger pointed out in Davis, though the common law is capable of developing to meet new challenges but witness intimidation was not a new problem and the common law could have responded to the challenge at any time 'over the last few hundred years'. Lord Rodger did not feel that something so important as the right to confront ones accuser could be taken away by development of case law. Parliament had to act and thus the House of Lords quashed the conviction.

European Convention

Article 6 of the Convention is the right to a fair trial. Article 6(3)(d), is a part of Article 6 - it provides that defendants have the right "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." The Strasbourg Court has considered the issue of anonymous witnesses and found that it is not always incompatible with the Convention (see e.g. Doorson v Netherlands (1996) 22 EHRR 330, para 69. The Strasbourg Court recognised that on occasion the interests of the defendant may have to be balanced against the interests of witnesses but noted however that: "even when 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements..." (para. 80 of Doorson). Our emphasis. This played an important part in the Davis ruling.

The result of the Davis ruling was an urgent tabling of new legislation in Parliament; the Criminal Evidence (Witness Anonymity) Act 2008 received Royal Assent on 31st July 2008.

The 2008 Act

Section 4 of the Act abolished the existing common law rules on this issue and provided the statutory backcloth that the Lords insisted was necessary for prosecution applications for witness anonymity. It provided that 3 conditions, A, B and C, had to me met before a Court could make a witness anonymity order.

Condition A: the measures specified in the order must be necessary to (a) protect the safety of the witness or another person or to prevent any serious damage to property - e.g. threats that 'we'll kill you're kids' or 'we'll burn your house down', or (b) to prevent real harm to the public interest or safety of a person involved in the carrying on of such activities. This latter part is directed not at civilians but at undercover police officers who, though not necessarily in fear, must have their identity protected 'in the public interest'.

Condition B: this generalised condition simply underlines the Human Rights Act 1998; it merely provides that that the taking of any anonymity measure must be consistent with the defendant's right to a fair trial; thus if the witness' evidence is the 'sole or decisive' evidence in the case then he or she should not be granted anonymity.

Condition C: this provides simply that the granting of any order must be necessary in 'the interests of justice by reason of the fact that it appears to the Court that' - (a) it is an important witness who should testify and (b) the witness would not testify unless the order were made.

R v Mayers and others [2008] EWCA Crim 1418

This co-joined case was the first Court of Appeal case post the 2008 Act. The case highlights the importance of the principle of open justice and of knowing your accuser. The Lord Chief Justice said that an anonymity order was a special measure of 'last resort', though the Court did not accept that witness relocation would normally provide a practicable alternative to an anonymity order. Further, the prosecution had to oblige the defence with full and frank disclosure (subject to public interest immunity considerations) and the whole application process had to be fair. In particular the Court held that: "if the judge entertains any reasonable reservations about the good faith of the efforts made by the prosecution investigation into any relevant consideration bearing on the question of witness anonymity, an application will be met with a point blank refusal." In other words if a witness complains to the police that he or she is in fear then that is not enough - the police then have to go away and investigate that issue properly before making any application. Indeed under the Director of Public Prosecutions Guidelines on Witness Anonymity (December 2009) one of the tasks necessary before such an application is that the police should undertake a full risk assessment, which should include an assessment of the reasonableness of the witnesses' fear and explaining why any other possible protection measures are not adequate.

The other possible alternatives to full witness anonymity include screens in court, the public being excluded whilst the witness gives evidence, reporting restrictions, having a witness statement read out and so on.

Coroners and Justice Act 2009

The 2008 Act was only temporary, it expired on 31st December 2009 and from New Years Day 2010 (exactly 8 years after the murders in Hackney) the new Act came into force. There is some slight changes to the wording but the ABC test is really the same as it was.

As this article is being drafted we are witnessing the very first non-jury criminal trial taking place. There will be more. Once again it took the un-elected part of Parliament, the judicial committee of the House of Lords, to uphold the most fundamental aspects of our liberty. The right to be able to look at ones accuser in the eye is one of the most fundamental aspects of the right to a fair trial and now with the 2009 Act firmly in place we can hope that at least that right will not be taken away without the most rigorous of scrutiny. Not that these applications will not be made. They will be, and some times deservedly so, but it is the duty of those who defend in the courts of this country never to allow such applications to go without question, to always challenge and to forever question any need to water down a suspect's right to a fair trial.

Authors

Jonathan Lennon is a Barrister specialising in serious and complex criminal defence cases at 23 Essex Street Chambers in London.

Aziz Rahman is a Solicitor - Advocate and Partner at the leading Criminal Defence firm Rahman Ravelli Solicitors, specialising in Human Rights, Financial Crime and Large Scale Conspiracies/Serious crime. Rahman Ravelli are members of the Specialist Fraud Panel.


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