Lawyers warn against new laws on witness anonymity

Plans for emergency legislation to allow witnesses to give anonymous evidence in court have been outlined by justice secretary, Jack Straw.

The move follows the House of Lords’ (HL) ruling in R v Davis that there was not sufficient authority in common law to provide for the current arrangements for the admission of anonymous evidence. The law lords said this was a matter for Parliament.

The ruling, says Straw, could affect hundreds of cases in the prosecution pipeline and raises fears that serious convicted criminals could seek to use the technicality of the judgment to have their convictions quashed.

Says Straw: “Anonymous evidence is these days fundamental to the successful prosecution of a significant number of cases, some of which involve murder, blackmail, violent disorder and terrorism. Such cases could be jeopardised if we do not quickly fill the gap created by their lordships’ judgment.” Under the new Bill, he says, the trial judge will have to be satisfied that the need for anonymity is established, that a fair trial will be possible and that it is in the interests of justice to make such an order.

Stephen Parkinson, head of Kingsley Napley’s criminal and regulatory department says those who condemn the HL judgment are saying in effect that the court should have allowed an unfair trial to take place which “cannot be right”.

“The HL found that because of the protections given to the witnesses, the defendant was having to take blind shots at a hidden target when (through his counsel) he was cross-examining them. He couldn’t see or identify them. That had to be unfair.”

He says that while there is a case for protecting vulnerable witnesses, a situation cannot be allowed to develop in this country whereby people are liable to be convicted where they cannot effectively challenge the case against them.

“The law lords did not rule out the possibility that evidence could be given anonymously in all circumstances, but they did rule it out where the case depends solely or to a decisive extent upon the statements and testimony of anonymous witnesses. I have not heard any compelling reason why that should not continue to be the law,” he says.

JUSTICE director, Roger Smith, says the CPS’s estimates that the number of cases where it wants witness anonymity “is likely to run into some hundreds” suggests that “what might be acceptable if exceptional is becoming routine”.

“The US manages this problem through witness protection rather than violate the fair trial rights of the defendant. This might provide a better way forward. There needs to be time for proper consideration of a difficult problem,” he says.