The Attorney General’s Guidelines dealing with the role of a prosecutor in applying for Witness Anonymity Orders start by stressing the fact that “every defendant has a right to a fair trial”.
This overriding principle is reiterated in the DPP’s Guidance to Crown Prosecutors. Both sets of guidance stress the long established principle that a defendant in a criminal case is entitled to be confronted by, and to challenge those who accuse him.
The Criminal Evidence (Witness Anonymity) Act 2008 came into force following the ruling in the case of R-v-Davis (2008) UKHL 36 in which the House of Lords ruled that the measures used rendered the trial unfair under Article 6 ECHR. In that case measures included full anonymity, screens, voice distortion and the use of pseudonyms.
Anonymous testimony is not necessarily incompatible with Article 6 ECHR but whether the measures used to allow a witness to give evidence anonymously would make the trial unfair has to be evaluated on the facts of each case.
Role of Prosecutor
If a Witness Anonymity Order is granted the defendant will not know the identity of a witness. This will limit the defendant’s ability to investigate and challenge the accuracy or credibility of the witness’s evidence.
In making the Order the Court will consider the extent to which the defendant needs to know the identity of the witness in order to challenge the witness’s evidence. The Order must be consistent with a fair trial.
The witness in question must be essential to the prosecution case. The Crown Prosecutor should first consider whether it is possible to secure other corroborative evidence and whether this may be sufficient to allow the case to continue without the anonymous witness evidence. If the answer is no then a Witness Anonymity Order may be sought.
There are a number of requirements placed upon the Police.
A request must come from a Superintendant containing a full evidential statement from the witness giving their full identity or in the case where the person is a Police Officer (or a member of any other investigatory agency), there must be a report from the Superintendant setting out why the Crown Prosecutor should apply to the Court to exercise its discretion not to be informed of the identity of the witness.
The Crown Prosecutor should be provided with:
- redacted version of the statement.
- a statement from the witness setting out their fears about giving evidence if their identity is known.
- a risk assessment undertaken by the Police.
- consideration of the Special Measures required and the reasons for those measures.
- an indication as to special arrangements which have been made.
- background of the witness including previous convictions and other bad character whether the Police are aware of any relationship between witness and defendant/associates of defendant.
- whether the Police have any reason believe that the witness may not provide truthful evidence.
The Crown Prosecutor must evaluate the reasonableness of the fear of the witness.
Once satisfied that the fear is reasonable the Crown Prosecutor must consider whether any statutory special measures or protective measures would address the fear. For example having the statement read out, applying for special measures under the Youth Justice and Criminal Evidence Act 1999 for intimidated witnesses (screens, video evidence, evidence in private), applying for reporting restrictions, safeguards within the Witness Protection Scheme.
Provisions for Police Officers/Members of Other Investigatory Agencies
In a case involving a Police witness (or a member of any other investigatory agency) the identity of the witness need not be disclosed.
If the Superintendant is satisfied that an application should be made to the Court to exercise discretion not to be informed of witness identity the Police need not supply full evidential statement from the witness giving their true identity.
The Crown Prosecutor will consider such a request and, if satisfied that it is appropriate, apply for Witness Anonymity Order and invite the Court not to require the identity of the witness to be supplied.
If the Court decides that it must be informed of the identity of the witness, the Crown Prosecutor and the police must decide whether they are willing to comply with that part of the Court Order. This may lead to the application of the Witness Anonymity Order being withdrawn.
Considerations on the Part of the Prosecutor
Certain conditions must be met before the Court will make an Order. There are three conditions and the Court must be satisfied that they all apply.
- The Anonymity Order must be necessary to protect the safety of the witness or other person or to prevent serious damage to property or in order to prevent real harm to the public interest.
- Having regard to all the circumstances, the Anonymity Order must be consistent with the defendant receiving a fair trial.
- It must be necessary to make the Order in the interest of justice by reason of the face that it appears to the Court that it is important that the witness should testify and the witness would not testify if the Order were not made.
Not only must Prosecutors be satisfied that they have sufficient evidence or information to satisfy these conditions, they also need to show that any fear expressed by the witness that they would suffer death or injury or damage to property, is reasonable.
They also need to consider issues of credibility and whether the sole or decisive evidence in the case comes from the particular witness and whether there is any tendency or motive to be dishonest.
The distinction between credibility and reliability is important.
Where the only issue for the defence is the reliability of a witness and the accuracy of their evidence it is less important to know their identity. This would ordinarily apply to an undercover police officer or a civilian witness of good character with no connection to the defendant.
In many cases the witness themselves may be involved in criminal activity or know the defendant. This is a point at which their credibility needs to be considered. Here the Crown Prosecutor must consider the relative importance of the evidence to the prosecution case because if it is the only evidence or of it is decisive it is unlikely that the defendant will be able to cross examine the anonymous witness.
The Crown Prosecutor cannot allow cases to continue if they have genuine grounds for believing that the granting of a Witness Anonymity Order would prevent a fair trial.
The Role of Special Counsel in Applications for Witness Anonymity
Whilst there is no provision for the appointment of Special Counsel the Court may invite the Attorney General to appoint Special Counsel.
The need for Special Counsel has to be shown and should be regarded as exceptional, never automatic, a course of last and never first resort, R-v-H and C (2004) UKHL3 issues of seriousness of the issue and whether credibility is an issue are likely to be important considerations in deciding whether Special Counsel could further the defendant’s case.
If appointed the role of Special Counsel is to make representations on behalf of the accused in any closed proceedings.
The Attorney General considers each invitation to appoint Special Counsel on its merits having regard to all the circumstances of the case here. The Prosecutor may draw to the attention of the Court any aspect of the application which may call for the appointment of Special Counsel.