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Witness protection and anonymity

 

Principle

The openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights (the right to a fair trial). This underpins the requirement for a prosecution witness to be identifiable not only to the defendant, but also to the open court. It supports the ability of the defendant to present his case and to test the prosecution case by cross-examination of prosecution witnesses. In some cases it may also encourage other witnesses to come forward.

The principle of open justice can sometimes act as a bar to successful prosecutions, particularly in homicides, organised crime and gun crime. Witnesses may fear that if their identity is revealed to the defendant, his associates or the public genernally then they or their friends and family will be at risk of serious harm.

In most cases the police will establish whether a witness is in fear and should inform the prosecutor. Ideally, a discussion about the type of 'protection' that should be applied for will take place between the police and the prosecutor at the pre charge stage. Occasionally information about a witness being in fear may come from another source (for example the Witness Care Unit or the Witness Service).

When informed that a witness is fearful of giving evidence, prosecutors must liaise closely with the police to consider the range of options available to them both at common law and by virtue of statute. Prosecutors should seek to ensure that, wherever possible, the witness's fear is allayed and that they are given the requisite protection. Prosecutors must also ensure that the witness's rights under the ECHR are acknowledged and protected.

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Special measures

The Youth Justice and Criminal Evidence Act 1999 (YJCEA) sets out a range of measures that are available to witnesses in criminal proceedings who are deemed to be 'intimidated'. The special measures which may be relevant for intimidated witnesses are: screening the witness from the accused; evidence by live link; evidence given in private.

Section 17 of the YJCEA deals with intimidated witnesses and provides that special measures may be provided where the quality of evidence given by a witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings. In determining this, the court must take into account a number of factors.

Witnesses to specified gun and knife crime offences are automatically eligible for special measures under section 17.

Special measures are not available as of right if a witness qualifies as an intimidated witness. When an application is made by the prosecutor on behalf of an eligible witness, the judge must consider a number of factors before making a decision. These factors are set out in section 19 of the YJCEA.

The procedure for making an application for special measures is governed by Rule 29 of the Criminal Procedure Rules 2010 (CPR). The application must be in writing as soon as reasonably practicable and in any event no more than 14 days after the defendant has pleaded not guilty. As a consequence of the time frames imposed by the CPR witnesses cannot be offered any guarantees, prior to the making of the application, that special measures will be granted.

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Reporting restrictions

Section 46 of the YJCEA enables courts to make a reporting direction in relation to adult witnesses which prohibits any matter relating to the witness to be included in any publication during the lifetime of the witness if it is likely to lead members of the public to identify the individual as a witness in criminal proceedings.

The power under section 46 can only be exercised on an application by the prosecution (or defence).The court must apply a two stage test to determine whether a witness is eligible for this protection along much the same lines as an application for special measures for an adult under section 16 or section 17 of the YJCEA, namely:

  • is the witness eligible for protection; and
  • is a reporting direction likely to improve the quality of the evidence given by the witness?

Prosecutors should be sure that it is made clear to potentially eligible witnesses that this is not an anonymity provision and that, unless other relevant special measures are granted, those present in court will be able to see and hear the witness.

Part 16.1 of the Criminal Procedure Rules 2010 directs that an application for a reporting direction must be made in the form set out in the Practice Direction or orally.

Further detailed information about reporting directions under section 46 YJCEA can be found in Policy Bulletin 051/2004

The court also has relevant powers under the Sexual Offences (Amendment) Act 1992, as amended by the YJCEA 1999, schedule 2. The victim in a case of rape or one of the sexual offences listed in the 1992 Act is entitled to 'anonymity' in the press. Once an allegation of one of the relevant offences has been made, nothing can be published which is likely to lead members of the public to identify the victim. The offences listed in the 1992 Act include most offences under the Sexual Offences Act 2003, part 1.

Section 11 of the Contempt of Court Act 1981 empowers the court to impose a permanent ban on the publication of any name or other matter in connection with the proceedings before it which it has allowed to be withheld from the public. The section complements the common-law power of a court, sitting in public, to receive a small part of the evidence (such as the name or address of a witness) in a form which is not communicated to the public.

Current practice is that witnesses should not be required to disclose their address to the defence or in open court generally unless it is necessary (e.g. the locus of a burglary).

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Applications to hold a Crown Court hearing in camera

There are certain situations where proceedings can be heard in camera, i.e. in private, when the public are excluded and the doors of the court-room are closed.

Excluding the public by virtue of the court's inherent common-law powers is justifiable if the administration of justice so requires. The question for the court to decide is whether a sitting in private is necessary for the administration of justice, for example if there is a possibility of disorder. A decision to sit in camera is not justified merely on the ground that a witness would find it embarrassing to testify.

The necessity principle may be of relevance if a witness is unable or unwilling to give evidence unless the public gallery is cleared; the principal object of the courts is to secure that justice is done. Before making an application for a hearing, or part of a hearing, to be held in camera, prosecutors must consider whether the concerns of the witness could be adequately met by the use of appropriate special measures.

In the Crown Court the procedure for applying for an order that all or part of a Crown Court trial to be held in camera is set out in the Criminal Procedure Rules, rule 16.10. A prosecutor can make an application for proceedings to be held in camera for reasons of national security or for the protection of the identity of a witness or any other person.

The disadvantage of applying for all or part of a case to be heard in camera is that the outcome of the application will not be known until the trial is underway which may not provide the reassurance that witnesses seek at an early stage in the proceedings.

Withholding the name of a witness

Ordinarily a witness will be required to give his or her name at the beginning of examination-in-chief. The name of the witness will already have been disclosed in the statements served upon the defence prior to the commencement of the proceedings.

The trial judge, in the exercise of his inherent jurisdiction to control the proceedings may permit a departure from this practice in appropriate cases. The witness will not be required to give his or her name in public and will usually be allowed to write their name down. In certain types of cases, blackmail for instance, this has become accepted practice so that the name of the witness is not in the public domain.

Other departures from the usual practice are rare but have included, for example, prostitutes called to give evidence against a woman charged with exercising control over them. The judge permitted each of the six girls called to give evidence for the prosecution to be referred to throughout the trial by a letter of the alphabet.

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Anonymity

Applications for witness anonymity can be made pre-trial under sections 74 to 85 of the Coroners and Justice Act 2009. The orders known as investigation anonymity orders can be requested at the very start of an investigation thus providing early certainty to people, who may have relevant information, that their identities will not be disclosed.

Investigation anonymity orders are only available in limited circumstances, which are:

1. that a qualifying offence has been committed (murder or manslaughter where the death was caused by being shot with a firearm or injured with a knife);

2. that the person likely to have committed the offence was at least 11 but under 30 years old at the time the offence was committed;

3. that the person likely to have committed the offence is a member of a group engaging in criminal activity and the majority of its members are at least 11 but under 30 years old; and

4. the person in respect of whom the order would be made has reasonable grounds to fear intimidation or harm if they were identified as assisting the investigation.

Applications can be made to a justice of the peace by police officers or prosecutors.

The granting of an investigation anonymity order does not guarantee that anonymity will be granted at the trial. A separate application has to be made for a trial anonymity order under sections 86 to 90 of the Coroners and Justice Act 2009.

The Director's Guidance on Witness Anonymity sets out the procedure to be followed when considering whether or not to apply to the court for a witness anonymity order. The Act and the Guidance apply to all witnesses, including undercover police officers and police officers involved in test purchase operations.

Applications for witness anonymity at trial must be authorised by Complex Casework Unit Heads or Heads of Division.

Witness Protection

In some very serious cases the risk to a witness is so great that they may need to relocate to another part of the UK and even change their identity. Witness Protection is the means of providing protection measures for people involved in the criminal justice process who find themselves at risk of serious personal harm as a result of that involvement.

Witness Protection, as defined within the Serious Organised Crime and Police Act 2005, is generally directed to those persons who have provided crucial evidence and against whom there is a substantial threat. This definition does not preclude police forces and law enforcement agencies from offering protection measures to witnesses and others at risk.

The ramifications for individual witnesses who have to participate in Witness Protection are immense and it should only be used sparingly. The OIC will advise you if a witness has been afforded Witness Protection.  

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