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Clause 63: Conditions for making order

395.     Subsection (1) applies this clause where an application for an investigation anonymity order is made.

396.     Under subsection (2), an investigation anonymity order may be made where the justice of the peace is satisfied that there are reasonable grounds for believing that the five conditions specified in subsections (3) to (8) are satisfied. This is to avoid placing an unduly high burden of proof on the applicant, particularly at the early stages of an investigation when the information available may be limited but an investigation anonymity order in respect of a particular informant is highly desirable in order to progress the investigation.

397.     The condition in subsection (3) is that a qualifying offence has been committed (qualifying offence is defined in clause 59).

398.     The condition in subsection (4) is 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.

399.     The condition set out in subsections (5) and (6), is that the person likely to have committed the offence is a member of a group (1) which it is possible to identify from the criminal activities that its members appear to be engaged in and (2) it appears that the majority of the members of the group are at least 11 but under 30 years old. The reason for the conditions in subsections (4) to (6) is that the provisions are targeted at informants in qualifying criminal investigations who are afraid of reprisals from street gangs. The age range set out is the understood age range for membership of such gangs, and the activities are the understood activities of such gangs.

400.     The condition in subsection (7) is that the informant in respect of whom the order would be made has reasonable grounds to fear intimidation or harm if he or she were identified as having assisted or as willing to assist in the investigation into the homicide at issue.

401.     The condition in subsection (8) has two limbs, both of which must be satisfied. The first is that the person who would be specified in the order, is able to provide information that would assist the qualifying criminal investigation, and the second is that that person is more likely than not to provide the information if the order was made. The purpose of the order is to encourage informants to come forward.

402.     Subsection (9) provides that where more than one person is suspected of having caused the death under investigation, the five conditions need be satisfied only in relation to one of the suspects.

403.     Subsection (10) gives power to the Secretary of State to modify or repeal subsections (4) to (6) and subsection (9) by order. The conditions set out in subsections (3), (7) and (8) cannot therefore be modified or repealed using this power. This order making power is subject to the affirmative resolution procedure (see clause 155 (3)(a) and (4)).

404.     Subsection (11) provides that an order made under subsection (10) may modify any provision of this Chapter.

Clause 64: Appeal against refusal of order

405.     Subsection (1) permits an applicant to appeal to a judge of the Crown Court if the justice of the peace refuses the application for an investigation anonymity order.

406.     Subsection (2) requires that in order to appeal a refusal of an application, the applicant must indicate an intention to appeal a refusal either in the application for the order or before the justice of the peace at the hearing if there is one. Otherwise no appeal will be possible.

407.     Subsections (3) and (4) provide that if the applicant has given an indication of intention to appeal, in the event of a refusal of the application the justice must nevertheless make the investigation anonymity order which has been applied for. The order will continue in force until the appeal is determined or disposed of. This is to err on the side of caution and to protect the informant’s identity until such time as the appeal has been dealt with.

408.     Subsection (5) provides that an appeal is to be by way of rehearing. In other words, the appeal is to be treated as if a new application was being made.

Clause 65: Discharge of order

409.     Situations may arise in which an investigation anonymity order should be discharged, for example, the informant no longer has any fear of reprisals. Subsection (1) therefore permits a justice of the peace to discharge an investigation anonymity order if it appears to the justice to be appropriate to do so.

410.     Subsection (2) provides that a justice of the peace may discharge an order on the application where the person who applied for the original order so applies or on the application of the Director of Public Prosecutions, the Director of Revenue and Customs Prosecutions, the Director of Public Prosecutions for Northern Ireland or the informant in respect of whom the order was made.

411.     Under subsections (3) and (7) an application for the discharge of an investigation anonymity order may be made only if there has been a material change of circumstances since the order was originally made, or since the last application to discharge the order was made. It will be for the justice of the peace to determine what amounts to a material change in circumstances.

412.     Subsection (4) provides that any person who is eligible to apply for the discharge of the order may be party to the proceedings.

413.     Subsection (5) provides a party to the proceedings with a right to appeal the justice of the peace’s decision to the Crown Court.

414.     Subsection (6) allows the justice of the peace to delay the discharge of the order until such time as any appeal has been determined.

Clause 66: Delegation of functions

415.     By virtue of clause 62, the power to apply for an investigation anonymity order is vested in a number of individuals, such as the chief officer of police of a police force. Clause 66 makes provision for those individuals to delegate their functions in relation to investigation anonymity orders to other persons. It would not be conducive to operational efficiency for chief officers to deal with every order personally.

Clause 67: Application to armed forces

416.     By subsection (1), the provisions of this Chapter of the Bill do not apply to investigations concerning service offences as defined by the Armed Forces Act 2006. However, subsections (2) and (3) give power to the Secretary of State to, by order, make provision as regards any investigation mentioned in subsection (1) equivalent to the provisions in this Chapter (subject to any modifications the Secretary of State considers appropriate), and provision may be made such way as the Secretary of State considers appropriate, including applying any of the provisions, with or without modifications. This will allow the Secretary of State to provide for the use of investigation anonymity orders in investigations concerning service offences. An order made under this power is subject to the negative resolution procedure (clause 155(3)).

Clause 68: Interpretation

417.     Clause 68 defines terms which are used in this Chapter of the Bill.

Chapter 2: Anonymity of Witnesses

Clause 69: Witness anonymity orders

418.     Subsection (1) sets out what a witness anonymity order is. Breach of the order by the unauthorised disclosure of a witness’s identity will fall to be dealt with as contempt of court. Subsection (1) defines the order in such a way as to grant the court a wide discretion as to how the court protects the anonymity of a witness in any particular case. For example, in some cases the court might consider that it is only necessary to screen the witness from the defendant and public; in others it might think it necessary to apply a whole range of measures.

419.     Subsection (2) lists the kinds of measures the court may use to secure the witness’s anonymity. The list is only illustrative; the court may employ other measures if it thinks fit. Technological developments and the practical arrangements in the court may affect such decisions.

420.     Under subsection (4) the court may not make a witness anonymity order which prevents the judge, magistrates or jury either from seeing the witness or from hearing the witness’s natural voice. The judge, magistrates and jury must always be able to see and hear the witness.

Clause 70: Applications

421.     Subsection (1) provides that applications for a witness anonymity order may be made by defendants as well as prosecutors. This reflects the position in the case of Davis, where the Court of Appeal allowed a defence witness as well as prosecution witnesses to give evidence anonymously. The Government expects that defence applications are most likely to be made in multi-handed cases (that is, where there is more than one defendant) where one defendant does not wish a witness’s identity to be known by the other defendant or defendants. But this subsection does not exclude the possibility of a defence application in a single-handed case.

422.     Subsection (2) provides that, where an application for an witness anonymity order is made by the prosecutor, the identity of witnesses may be withheld from the defence before and during the making of the application. This ensures that the operation of the legislation is not impeded by procedural challenges to the power of the prosecution to withhold this information pending the court’s determination of the application for the witness anonymity order.

423.     Subsection (2) therefore provides that prosecutors are under no obligation to disclose the witness’s identity to the defence at the application stage but must inform the court of the identity of the witness. Similar provision is made for the defence in subsection (3), except that the defence must always disclose the identity of the witness to the prosecutor and the court but do not have to disclose it to any other defendant.

424.     In addition, subsection (4) provides that where the prosecution or the defendant proposes to make an application for a witness anonymity order, information that might identify the witness can be taken out of any relevant material which is disclosed before the application has been determined. This does not, however, override the obligation to disclose the identity of the witness to the court (in the case of a prosecution application) or to the court and prosecutor (in the case of a defence application).

425.     Subsection (2) also enables the court to direct that it should not be informed of the identity of the witness. This provides for the possibility that, whilst in the vast majority of cases the court will require to be informed of the witness’s identity, there may be rare cases (particularly national security related cases) where even the court will neither need nor wish to know it.

426.     Subsections (6) and (7) set out two basic principles. Subsection (6) states that on an application for a witness anonymity order every party to the proceedings must be given the opportunity to be heard. However, it may be necessary in the course of making the application to reveal some or all of the very information to which the application relates: for example, the name and address of the witness who is fearful of being identified. So subsection (7) provides that the court has the power to hear any party without a defendant or his or her legal representatives being present. This reflects the existing practice, by which prosecution applications were expected to be made in the absence of any other parties in the case, with the defence able to make representations later at a hearing with the prosecution (and possibly other defendants) present. It is expected that defence applications will be permitted without other defendants being present but will always be made in the presence of the prosecution.

427.     Subsection (8) confirms that this clause does not affect the power of the Criminal Procedure Rule Committee to set out further procedures relating to witness anonymity in the Criminal Procedure Rules.

Clause 71: Conditions for making order

428.     Subsection (2) requires three conditions to be met before a court can make a witness anonymity order. They are described as conditions A, B and C.

429.     Subsection (3) sets out condition A, which is that the measures to be specified in the order are necessary for one of two reasons. The first is to protect the safety of the witness or another person or to prevent serious damage to property. There is no requirement for any actual threat to the witness or any other person. The second is to prevent real harm to the public interest. This will include, but will not be restricted to, the public interest in police or security service undercover officers being able to carry out future operations, whether or not they are fearful in any particular case.

430.     Subsection (4) sets out condition B, which is that the effect of the order would be consistent with the defendant receiving a fair trial. Thus the grant of the order must be compliant with Article 6 of the ECHR.

431.     Subsection (5) sets out condition C, which is that the witness’s testimony is such that in the interests of justice the witness ought to testify and that either the witness would not testify if the order was not made or there would be real harm to the public interest if the witness were to testify without an order being made (such harm might, for example, arise as a result of the identity of a member of the security services being made public).

432.     Subsection (6) specifies that in determining for the purposes of condition A whether the order is necessary to protect the safety of the witness, another person or prevent damage to property, the court must have regard to the witness’s reasonable fear of death or injury either to himself or herself or to another person (“we’ll get your kids”) or reasonable fear that there would be serious damage to property (“we’ll fire-bomb your house”).

Clause 72: Relevant considerations

433.     Subsection (1) requires the court to have regard to the considerations set out in subsection (2) when deciding whether to make an order. The court must also have regard to any other factors it considers relevant.

434.     The considerations in subsection (2) are the defendant’s general right to know the identity of a witness, the extent to which credibility of the witness is relevant in assessing the weight of the evidence he or she gives, whether the witness’s evidence might be the sole or decisive evidence, whether the witness’s evidence can be properly tested without knowing the witness’s identity, whether the witness has a tendency or any motive to be dishonest and whether alternative means could be used to protect the witness’s identity.

Clause 73: Warning to jury

435.     This clause requires the judge to warn the jury in a Crown Court trial, in such way as the judge considers appropriate, so as to ensure that the fact that the order was made does not prejudice the defendant. The provision is based on section 32 of the Youth Justice and Criminal Evidence Act 1999 (the 1999 Act) which makes similar provision for jury warnings where a special measures direction has been made to assist a vulnerable or intimidated witness.

Clause 74: Discharge or variation of order

436.     The Bill does not provide for a right of appeal against the making of, or refusal to make, a witness anonymity order. The Government considers that existing appeal procedures are sufficient. Thus in the case of the prosecutor, the appeal against a terminating ruling under Part 9 of the 2003 Act or Part IV of the Criminal Justice (Northern Ireland) Order 2004 is available. In the case of a defendant, the matter may be raised on appeal against conviction. Clause 74 does however provide for the court that made an order to discharge or vary it in those proceedings, either on an application by a party to the proceedings or on its own initiative. This power may be used where, for example, a witness who previously gave evidence anonymously is content for the anonymity to be lifted.

437.     Under subsection (3) the court must give every party to the proceedings an opportunity to be heard before determining an application for variation or discharge of an order or before varying or discharging an order on its own initiative.

Clause 75: Discharge or variation after proceedings

438.     This clause provides the court that makes a witness anonymity order with the power to discharge or vary that order after the proceedings have finished. The court may vary or discharge the order either on an application by a party to the proceedings or on an application made by the witness. This may be appropriate for example, if a considerable period of time has elapsed since the trial and the circumstances of the witness have changed.

439.     Subsection (4) requires that the court, prior to discharging or varying a witness anonymity order, provide all parties to the proceedings and the witness the opportunity to be heard unless it is not reasonably practicable to do so, for example, if it is not possible to trace the person concerned.

Clause 76: Discharge or variation by appeal court

440.     This clause provides that an “appeal court” (defined in subsection (5) as the Court of Appeal, Court of Appeal in Northern Ireland or Court Martial Appeal Court) can discharge or vary a witness anonymity order made in the proceedings which gave rise to the appeal. Unlike certain other appellate courts, an “appeal court” does not automatically have all the powers of the court below it. Under the CEWAA, an appeal court already has the power to make a witness anonymity order itself. However, this power does not of itself give it the power to discharge or vary an order made by the lower court.

441.     This clause gives an appeal court the flexibility it requires. There is no provision for an application procedure: it is intended that the power will be exercised by the appeal court of its own motion, how and when it thinks fit. The provision also applies to witness anonymity orders made under the CEWAA (see paragraphs 15 and 16 of Schedule 20).

442.     Subsection (1) sets out that the power applies where a court has made a witness anonymity order in a criminal trial and the defendant has been convicted, found not guilty by reason of insanity or been found to be under a disability and to have done the act charged. The new power will therefore apply in any appeal against conviction or other finding.

443.     Subsection (2) gives an appeal court the discretion to take into account a wide range of factors before discharging or varying an anonymity order.

444.     Subsection (3) requires the appeal court to hear any representations made by the parties to the trial proceedings, unless it would be impracticable to communicate with them. This mirrors the duty of the lower court to hear representations from the parties before making, discharging or varying an order during the course of the trial.

445.     However under subsection (4) the duty to hear representations does not fetter the appeal court’s power to hear a party in the absence of one or more of the defendants and their legal representatives.

Clause 77: Special provisions for service courts

446.     This clause provides for the application of the witness anonymity provisions in relation to criminal proceedings before the service courts. Matters of law arising in the service courts, with the exception of the Court Martial Appeal Court and its successor under the Armed Forces Act 2006, are dealt with by the judge advocate. There are no juries in the service courts but such courts do have lay members. Subsection (3) requires the lay members to be warned as to the effect of the making of an order in the same way as juries are warned.

Clause 78: Public interest immunity

447.     This clause provides that this chapter of the Bill does not affect the common law rules on public interest immunity. Public interest immunity applications will often be made by the prosecution in cases involving witness anonymity.

Clause 79: Power to make orders under the 2008 Act

448.     Subsection (1) repeals section 1 to 9 and 14 of the CEWAA, which provide for making a witness anonymity order under that Act. Paragraphs 15 and 16 of Schedule 20 preserve the effect of a witness anonymity order made under the 2008 Act before 1 January 2010 and set out how such orders are to operate.

Clause 80: Interpretation

449.     This clause defines terms which are used in this chapter of the Bill.

Chapter 3: Vulnerable and Intimidated Witnesses

Clause 81: Eligibility for special measures: age of child witnesses

450.     Chapter 1 of Part 2 of the 1999 Act enables a court in criminal proceedings to give a direction that one or more special measures should apply to a witness when giving evidence. A special measures direction can only be made in relation to a witness who is eligible for assistance. The criteria for eligibility are also set out in that Part.

451.     Clause 81 amends section 16(1)(a) of the 1999 Act so that all persons aged under 18 will automatically qualify as witnesses eligible for assistance under Part 2. Currently, only witness aged under 17 are automatically eligible for assistance.

Clause 82: Eligibility for special measures: offences involving weapons

452.     Section 17 of the 1999 Act provides that a witness is eligible for assistance if the court is satisfied that the quality of the witness’ evidence would be reduced on the grounds of fear or distress about testifying.

453.     Clause 82 extends section 17 and gives automatic eligibility for assistance to witnesses in proceedings related to “relevant offences”. The court does not need to be satisfied that the quality of the witness’ evidence will be diminished. Relevant offences are specified gun and knife crimes which are listed in Schedule 12. A witness can inform the court that he or she does not wish to be eligible for assistance.

454.     The list of relevant offences is inserted as a new Schedule 1A to the 1999 Act and the list can be amended by order made by the Secretary of State. The effect of subsection (3) is that the order-making power is subject to the negative resolution procedure.

Clause 83: Special measures directions for child witnesses

455.     Clause 83 amends section 21 of the 1999 Act so as to modify the “primary rule” that applies to child witnesses. This rule requires all child witnesses to give evidence in chief by a video recorded statement and any further evidence by live link, unless (except for child witnesses in need of “special protection” in certain sexual and other offence cases) the court is satisfied that to do so will not improve the quality of that child’s evidence.

456.     Subsections (2) and (7) remove the special category of child witnesses who are “in need of special protection”. The effect is to place all child witnesses on the same footing, regardless of the offence to which the proceedings relate.

457.     Subsections (4) and (5) modify the primary rule to allow a child witness to opt out of giving evidence by a combination of video recorded evidence in chief and live link provided the court is satisfied, after taking into account certain factors, that not giving evidence in that way will not diminish the quality of the child’s evidence. If as a result of opting out of the primary rule, the child witness would fall to give his or her evidence in court (and not by way of a live link) a secondary requirement applies. This obliges the child witness to give evidence in court in accordance with the special measure in section 23 of the 1999 Act, that is, from behind a screen that shields the witness from viewing the defendant. The secondary requirement does not apply if the court considers it would not maximise the quality of the child’s evidence. The child may also opt out of this secondary requirement, subject to the agreement of the court.

458.     Subsection (6) inserts new subsection (4C) into section 21 of the 1999 Act which sets out the factors the court must consider in deciding whether the child witness may opt out of the primary rule and also in deciding whether the child witness may opt out of the secondary requirement to give evidence from behind a screen. These are: the witness’ age and maturity, the witness’s ability to understand the consequences of giving their evidence in court rather than via video-recorded statement, any relationship between the witness and accused, the witness’ social, cultural and ethnic background, the nature and circumstances of the offence being tried as well as any other factors the court considers relevant.

459.     Subsection (8) makes a consequential amendment to section 22, which relates to witnesses who attain the age of 18 after the video recorded statement is made.

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Prepared: 15 January 2009