Coroners and Justice Bill

House of Commons

Session 2008 - 09
Internet Publications
Other Bills before Parliament

Coroners and Justice Bill

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 1 — Anonymity in investigations
39

(3)
An application may not be made under subsection (2) unless there has been a
material change of circumstances since the relevant time.
(4)
Any person eligible to apply for the discharge of the order may be party to the
proceedings on the application in addition to the applicant.
(5)
A party to the proceedings may appeal to the Crown Court against the justice’s
5
decision.
(6)
A justice of the peace may by order provide for the discharge of an
investigation anonymity order to be delayed pending the making and
determination of any appeal.
(7)
“The relevant time” means—
10
(a)
the time when the order was made, or
(b)
if a previous application has been made under subsection (2), the time
when the application (or the last application) was made.
66
Delegation of functions
(1)
A chief officer of police of a police force in England and Wales may authorise
15
a person to exercise the chief officer’s functions under this Chapter.
(2)
The Chief Constable of the British Transport Police Force may authorise a
person to exercise the Chief Constable’s functions under this Chapter.
(3)
The Director General of the Serious Organised Crime Agency may authorise a
person to exercise the Director General’s functions under this Chapter.
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(4)
The Chief Constable of the Police Service of Northern Ireland may authorise a
person to exercise the Chief Constable’s functions under this Chapter.
(5)
The Director of Public Prosecutions may authorise a person to exercise the
Director’s functions under this Chapter.
(6)
The Director of Revenue and Customs Prosecutions may authorise a person to
25
exercise the Director’s functions under this Chapter.
(7)
The Director of Public Prosecutions for Northern Ireland may authorise a
person to exercise the Director’s functions under this Chapter.
67
Application to armed forces
(1)
Subject to subsection (2), nothing in this Chapter applies in relation to any
30
investigation conducted with a view to its being ascertained whether a person
should be charged with a service offence or whether a person charged with
such an offence is guilty of it.
(2)
The Secretary of State may by order make as regards any investigation
mentioned in subsection (1) provision equivalent to the provisions contained
35
in this Chapter, subject to such modifications as the Secretary of State considers
appropriate.
(3)
An order under this section may make provision in such way as the Secretary
of State considers appropriate, and may in particular apply any of the
provisions concerned, with or without modifications.
40
(4)
In this section—

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
40

(a)
“service offence” has the meaning given by section 50(2) of the Armed
Forces Act 2006 (c. 52);
(b)
references to charges are to charges brought under Part 5 of that Act.
68
Interpretation
(1)
In this Chapter—
5
“enactment” means an enactment contained in or in an instrument made
by virtue of—
(a)
an Act of Parliament,
(b)
a Measure or Act of the National Assembly for Wales, or
(c)
Northern Ireland legislation;
10
“investigation anonymity order” has the meaning given by section 61;
“qualifying criminal investigation” has the meaning given by section 60;
“qualifying offence” has the meaning given by section 59.
(2)
In the application of this Chapter to Northern Ireland—
(a)
references to a justice of the peace are to be read as references to a
15
district judge (magistrates’ courts);
(b)
the reference to the Crown Court is to be read as a reference to the
county court;
(c)
the reference to a judge of the Crown Court is to be read as a reference
to a county court judge.
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Chapter 2
Anonymity of witnesses
Witness anonymity orders
69
Witness anonymity orders
(1)
In this Chapter a “witness anonymity order” is an order made by a court that
25
requires such specified measures to be taken in relation to a witness in criminal
proceedings as the court considers appropriate to ensure that the identity of the
witness is not disclosed in or in connection with the proceedings.
(2)
The kinds of measures that may be required to be taken in relation to a witness
include measures for securing one or more of the following—
30
(a)
that the witness’s name and other identifying details may be—
(i)
withheld;
(ii)
removed from materials disclosed to any party to the
proceedings;
(b)
that the witness may use a pseudonym;
35
(c)
that the witness is not asked questions of any specified description that
might lead to the identification of the witness;
(d)
that the witness is screened to any specified extent;
(e)
that the witness’s voice is subjected to modulation to any specified
extent.
40
(3)
Subsection (2) does not affect the generality of subsection (1).

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
41

(4)
Nothing in this section authorises the court to require—
(a)
the witness to be screened to such an extent that the witness cannot be
seen by—
(i)
the judge or other members of the court (if any), or
(ii)
the jury (if there is one);
5
(b)
the witness’s voice to be modulated to such an extent that the witness’s
natural voice cannot be heard by any persons within paragraph (a)(i) or
(ii).
(5)
In this section “specified” means specified in the witness anonymity order
concerned.
10
70
Applications
(1)
An application for a witness anonymity order to be made in relation to a
witness in criminal proceedings may be made to the court by the prosecutor or
the defendant.
(2)
Where an application is made by the prosecutor, the prosecutor—
15
(a)
must (unless the court directs otherwise) inform the court of the
identity of the witness, but
(b)
is not required to disclose in connection with the application—
(i)
the identity of the witness, or
(ii)
any information that might enable the witness to be identified,
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to any other party to the proceedings or his or her legal representatives.
(3)
Where an application is made by the defendant, the defendant—
(a)
must inform the court and the prosecutor of the identity of the witness,
but
(b)
(if there is more than one defendant) is not required to disclose in
25
connection with the application—
(i)
the identity of the witness, or
(ii)
any information that might enable the witness to be identified,

to any other defendant or his or her legal representatives.
(4)
Accordingly, where the prosecutor or the defendant proposes to make an
30
application under this section in respect of a witness, any relevant material
which is disclosed by or on behalf of that party before the determination of the
application may be disclosed in such a way as to prevent—
(a)
the identity of the witness, or
(b)
any information that might enable the witness to be identified,
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from being disclosed except as required by subsection (2)(a) or (3)(a).
(5)
“Relevant material” means any document or other material which falls to be
disclosed, or is sought to be relied on, by or on behalf of the party concerned in
connection with the proceedings or proceedings preliminary to them.
(6)
The court must give every party to the proceedings the opportunity to be heard
40
on an application under this section.
(7)
But subsection (6) does not prevent the court from hearing one or more parties
in the absence of a defendant and his or her legal representatives, if it appears
to the court to be appropriate to do so in the circumstances of the case.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
42

(8)
Nothing in this section is to be taken as restricting any power to make rules of
court.
71
Conditions for making order
(1)
This section applies where an application is made for a witness anonymity
order to be made in relation to a witness in criminal proceedings.
5
(2)
The court may make such an order only if it is satisfied that Conditions A to C
below are met.
(3)
Condition A is that the proposed order is necessary—
(a)
in order to protect the safety of the witness or another person or to
prevent any serious damage to property, or
10
(b)
in order to prevent real harm to the public interest (whether affecting
the carrying on of any activities in the public interest or the safety of a
person involved in carrying on such activities, or otherwise).
(4)
Condition B is that, having regard to all the circumstances, the effect of the
proposed order would be consistent with the defendant receiving a fair trial.
15
(5)
Condition C is that the importance of the witness’s testimony is such that in the
interests of justice the witness ought to testify and—
(a)
the witness would not testify if the proposed order were not made, or
(b)
there would be real harm to the public interest if the witness were to
testify without the proposed order being made.
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(6)
In determining whether the proposed order is necessary for the purpose
mentioned in subsection (3)(a), the court must have regard (in particular) to
any reasonable fear on the part of the witness—
(a)
that the witness or another person would suffer death or injury, or
(b)
that there would be serious damage to property,
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if the witness were to be identified.
72
Relevant considerations
(1)
When deciding whether Conditions A to C in section 71 are met in the case of
an application for a witness anonymity order, the court must have regard to—
(a)
the considerations mentioned in subsection (2) below, and
30
(b)
such other matters as the court considers relevant.
(2)
The considerations are—
(a)
the general right of a defendant in criminal proceedings to know the
identity of a witness in the proceedings;
(b)
the extent to which the credibility of the witness concerned would be a
35
relevant factor when the weight of his or her evidence comes to be
assessed;
(c)
whether evidence given by the witness might be the sole or decisive
evidence implicating the defendant;
(d)
whether the witness’s evidence could be properly tested (whether on
40
grounds of credibility or otherwise) without his or her identity being
disclosed;
(e)
whether there is any reason to believe that the witness—
(i)
has a tendency to be dishonest, or

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
43

(ii)
has any motive to be dishonest in the circumstances of the case,

having regard (in particular) to any previous convictions of the witness
and to any relationship between the witness and the defendant or any
associates of the defendant;
(f)
whether it would be reasonably practicable to protect the witness by
5
any means other than by making a witness anonymity order specifying
the measures that are under consideration by the court.
73
Warning to jury
(1)
Subsection (2) applies where, on a trial on indictment with a jury, any evidence
has been given by a witness at a time when a witness anonymity order applied
10
to the witness.
(2)
The judge must give the jury such warning as the judge considers appropriate
to ensure that the fact that the order was made in relation to the witness does
not prejudice the defendant.
Discharge and variation
15
74
Discharge or variation of order
(1)
A court that has made a witness anonymity order in relation to any criminal
proceedings may in those proceedings subsequently discharge or vary (or
further vary) the order if it appears to the court to be appropriate to do so in
view of the provisions of sections 71 and 72 that apply to the making of an
20
order.
(2)
The court may do so—
(a)
on an application made by a party to the proceedings if there has been
a material change of circumstances since the relevant time, or
(b)
on its own initiative.
25
(3)
The court must give every party to the proceedings the opportunity to be
heard—
(a)
before determining an application made to it under subsection (2);
(b)
before discharging or varying the order on its own initiative.
(4)
But subsection (3) does not prevent the court hearing one or more of the parties
30
to the proceedings in the absence of a defendant in the proceedings and his or
her legal representatives, if it appears to the court to be appropriate to do so in
the circumstances of the case.
(5)
“The relevant time” means—
(a)
the time when the order was made, or
35
(b)
if a previous application has been made under subsection (2), the time
when the application (or the last application) was made.
75
Discharge or variation after proceedings
(1)
This section applies if—
(a)
a court has made a witness anonymity order in relation to a witness in
40
criminal proceedings (“the old proceedings”), and
(b)
the old proceedings have come to an end.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
44

(2)
The court that made the order may discharge or vary (or further vary) the order
if it appears to the court to be appropriate to do so in view of—
(a)
the provisions of sections 71 and 72 that apply to the making of a
witness anonymity order, and
(b)
such other matters as the court considers relevant.
5
(3)
The court may do so—
(a)
on an application made by a party to the old proceedings if there has
been a material change of circumstances since the relevant time, or
(b)
on an application made by the witness if there has been a material
change of circumstances since the relevant time.
10
(4)
The court may not determine an application made to it under subsection (3)
unless in the case of each of the parties to the old proceedings and the
witness—
(a)
it has given the person the opportunity to be heard, or
(b)
it is satisfied that it is not reasonably practicable to communicate with
15
the person.
(5)
Subsection (4) does not prevent the court hearing one or more of the persons
mentioned in that subsection in the absence of a person who was a defendant
in the old proceedings and that person’s legal representatives, if it appears to
the court to be appropriate to do so in the circumstances of the case.
20
(6)
“The relevant time” means—
(a)
the time when the old proceedings came to an end, or
(b)
if a previous application has been made under subsection (3), the time
when the application (or the last application) was made.
76
Discharge or variation by appeal court
25
(1)
This section applies if—
(a)
a court has made a witness anonymity order in relation to a witness in
criminal proceedings (“the trial proceedings”), and
(b)
a defendant in the trial proceedings has in those proceedings—
(i)
been convicted,
30
(ii)
been found not guilty by reason of insanity, or
(iii)
been found to be under a disability and to have done the act
charged in respect of an offence.
(2)
The appeal court may in proceedings on or in connection with an appeal by the
defendant from the trial proceedings discharge or vary (or further vary) the
35
order if it appears to the court to be appropriate to do so in view of—
(a)
the provisions of sections 71 and 72 that apply to the making of a
witness anonymity order, and
(b)
such other matters as the court considers relevant.
(3)
The appeal court may not discharge or vary the order unless in the case of each
40
party to the trial proceedings—
(a)
it has given the person the opportunity to be heard, or
(b)
it is satisfied that it is not reasonably practicable to communicate with
the person.

Coroners and Justice Bill
Part 3 — Criminal evidence, investigations and procedure
Chapter 2 — Anonymity of witnesses
45

(4)
But subsection (3) does not prevent the appeal court hearing one or more of the
parties to the trial proceedings in the absence of a person who was a defendant
in the trial proceedings and that person’s legal representatives, if it appears to
the court to be appropriate to do so in the circumstances of the case.
(5)
In this section a reference to the doing of an act includes a reference to a failure
5
to act.
(6)
“Appeal court” means—
(a)
the Court of Appeal,
(b)
the Court of Appeal in Northern Ireland, or
(c)
the Court Martial Appeal Court.
10
Service courts
77
Special provisions for service courts
(1)
Subsections (2) and (3) apply in relation to a service court consisting of a judge
advocate and other members.
(2)
Any decision falling to be made by the court under sections 69 to 75 is to be
15
made by the judge advocate alone.
(3)
If any evidence is given by a witness in criminal proceedings before the court
at a time when a witness anonymity order applies to the witness, the judge
advocate must give the other members such warning as the judge advocate
considers appropriate to ensure that the fact that the order was made in
20
relation to the witness does not prejudice the defendant.
Public interest immunity
78
Public interest immunity
Nothing in this Chapter affects the common law rules as to the withholding of
information on the grounds of public interest immunity.
25
The Criminal Evidence (Witness Anonymity) Act 2008
79
Power to make orders under the 2008 Act
Sections 1 to 9 and 14 of the Criminal Evidence (Witness Anonymity) Act 2008
(c. 15) cease to have effect.
Interpretation
30
80
Interpretation
In this Chapter—
“court” means—
(a)
in relation to England and Wales, a magistrates’ court, the
Crown Court or the criminal division of the Court of Appeal,
35