Criminal Evidence (Witness Anonymity) Bill  

The emergency Criminal Evidence (Witness Anonymity) Bill is in response to a House of Lords judgment in the appeal against a double murder conviction; R v Davis [2008] UKHL 36 , in which the Lords traced the history of anonymity back to Roman times and found that the common law did not allow anonymity for witnesses in criminal trials. Therefore the legislation should be considered to be a hasty attempt to try to put the criminal justice system back to a position that didn’t really exist in the first place, and is likely to further erode the right to a fair trial.

Pete Weatherby commented; “Many lawyers have become concerned about the increase in the use of anonymous witnesses in recent years. The problem with anonymity is that it leads to defence lawyers having to take; ‘blind shots at a hidden target’ [as it had been put in one leading case]. It is a fundamental tenet of criminal trials that the accuser faces the accused, and that the accused can know the identity of witnesses in advance and thereby prepare his or her defence and properly test the prosecution case. With anonymous witnesses the defendant cannot know why the witness is giving such evidence; is it merely mistaken or is it malicious, driven by some animus between witness and accused? In one recent case there were a number of anonymous witnesses identifying the accused as being the gunman in a shooting, The defendant asserted alibi and stated that he did not know why the witnesses identified him, but suspected that one was a disgruntled ex-partner. The case did not reach trial, but if it had, how could the evidence have been tested?”

Pete continued; “The current Bill is hasty and will undoubtedly undermine the fairness of trials in some cases. With emergency legislation the old adage; Act in haste, repent at leisure, is often the result. Everyone agrees that witnesses should not be allowed to be subject to intimidation, and that they should be robustly protected, but not at the expense of due process and fair trials. There are other, better ways to protect the vulnerable and prosecute crime.”

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Background to the Criminal Evidence (Witness Anonymity) Bill:

> Witness law to be debated by MPs - BBC News (08/07/2008)

> Fair trials impossible if fear rules the streets – The Telegraph (07/07/2008)

> Witness anonymity – a slippery slope – The Times (29/06/08)

Nina Grahame , also of Garden Court North Chambers, has considerable experience of defending in trials where all forms of witness protection, including anonymity, have been employed.

In addition to the concerns expressed above, Nina comments :

“Prosecution applications for witness anonymity, where identities are concealed by the combined use of screens, pseudonyms and highly intrusive voice modulation technology have become increasingly familiar during the past few years. In a recent murder trial involving the discharge of firearms in a residential area, prosecution applications for anonymity for numerous witnesses were advanced on the basis that the protection offered by voice distortion was now so common as to be the norm in such cases.

To approach the issue of a fair trial from a slightly different angle, urgent consideration must be given to the perception of jurors in these trials. Most criminal lawyers consider that jurors take their duties very seriously indeed and can be trusted to put aside preconceptions and prejudices when considering a case. However, they are only human.

When first told that they will be sitting in judgement on, for example, defendants accused of very serious violence, most jurors must suffer some degree of anxiety, probably considerable unease. For them to then be faced with witnesses who adopt false names and whose voices are mechanically distorted, particularly where such witnesses may not even know the defendant and do not give directly incriminating evidence, must fill such jurors with trepidation and make it very difficult for them to remember that a defendant is ‘innocent until proven guilty’. The judge will usually direct the jury to ‘pay no attention to such measures’; he may tell them that ‘such protections are relatively normal’. Most jurors know full well that they are no such thing. They will also be told, sometimes just before they and every other participant in the trial (except the defendant) puts on padded headphones, that they ‘should read nothing into them at all…you should not hold it against the defendant’. The defendant might struggle to be reassured that the fairness of the trial was not already seriously at risk."