|
| |
|
(5) | If an application to discharge an investigation anonymity order is made by a |
| |
person other than the person specified in the order, the justice may not |
| |
determine the application unless— |
| |
(a) | the person specified in the order has had an opportunity to oppose the |
| |
| 5 |
(b) | the justice is satisfied that it is not reasonably practicable to |
| |
communicate with the person. |
| |
(6) | A party to the proceedings may appeal to a judge of the Crown Court against |
| |
| |
(7) | If during the proceedings a party indicates an intention to appeal against a |
| 10 |
determination to discharge the investigation anonymity order, a justice of the |
| |
peace who makes such a determination must provide for the discharge of the |
| |
order not to have effect until the appeal is determined or otherwise disposed |
| |
| |
(8) | “The relevant time” means— |
| 15 |
(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 |
| 20 |
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. |
| 25 |
(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 |
| 30 |
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 | Public interest immunity |
| |
Nothing in this Chapter affects the common law rules as to the withholding of |
| 35 |
information on the grounds of public interest immunity. |
| |
68 | Application to armed forces |
| |
(1) | Subject to subsection (2), nothing in this Chapter applies in relation to any |
| |
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 |
| 40 |
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 |
| |
in this Chapter, subject to such modifications as the Secretary of State considers |
| |
| |
(3) | An order under this section may make provision in such way as the Secretary |
| 5 |
of State considers appropriate, and may in particular apply any of the |
| |
provisions concerned, with or without modifications. |
| |
| |
(a) | “service offence” has the meaning given by section 50(2) of the Armed |
| |
| 10 |
(b) | references to charges are to charges brought under Part 5 of that Act. |
| |
69 | Interpretation of this Chapter |
| |
| |
“enactment” means an enactment contained in or in an instrument made |
| |
| 15 |
(a) | an Act of Parliament, |
| |
(b) | a Measure or Act of the National Assembly for Wales, or |
| |
(c) | Northern Ireland legislation; |
| |
“investigation anonymity order” has the meaning given by section 61; |
| |
“qualifying criminal investigation” has the meaning given by section 60; |
| 20 |
“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 |
| |
district judge (magistrates’ courts); |
| |
(b) | references to a judge of the Crown Court are to be read as references to |
| 25 |
| |
| |
| |
| |
70 | Witness anonymity orders |
| 30 |
(1) | In this Chapter a “witness anonymity order” is an order made by a court that |
| |
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 |
| 35 |
include measures for securing one or more of the following— |
| |
(a) | that the witness’s name and other identifying details may be— |
| |
| |
(ii) | removed from materials disclosed to any party to the |
| |
| 40 |
(b) | that the witness may use a pseudonym; |
| |
|
| |
|
| |
|
(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 |
| |
| 5 |
(3) | Subsection (2) does not affect the generality of subsection (1). |
| |
(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 |
| |
| |
(i) | the judge or other members of the court (if any), or |
| 10 |
(ii) | the jury (if there is one); |
| |
(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 |
| |
| |
(5) | In this section “specified” means specified in the witness anonymity order |
| 15 |
| |
| |
(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 |
| |
| 20 |
(2) | Where an application is made by the prosecutor, the prosecutor— |
| |
(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 |
| 25 |
(ii) | any information that might enable the witness to be identified, |
| |
| 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, |
| |
| 30 |
(b) | (if there is more than one defendant) 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, |
| |
| to any other defendant or his or her legal representatives. |
| 35 |
(4) | Accordingly, where the prosecutor or the defendant proposes to make an |
| |
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 |
| 40 |
(b) | any information that might enable the witness to be identified, |
| |
| 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. |
| 45 |
|
| |
|
| |
|
(6) | The court must give every party to the proceedings the opportunity to be heard |
| |
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. |
| 5 |
(8) | Nothing in this section is to be taken as restricting any power to make rules of |
| |
| |
72 | 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. |
| 10 |
(2) | The court may make such an order only if it is satisfied that Conditions A to C |
| |
| |
(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 |
| 15 |
(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. |
| 20 |
(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. |
| 25 |
(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, |
| 30 |
| if the witness were to be identified. |
| |
73 | Relevant considerations |
| |
(1) | When deciding whether Conditions A to C in section 72 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 |
| 35 |
(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 |
| 40 |
relevant factor when the weight of his or her evidence comes to be |
| |
| |
|
| |
|
| |
|
(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 |
| |
grounds of credibility or otherwise) without his or her identity being |
| |
| 5 |
(e) | whether there is any reason to believe that the witness— |
| |
(i) | has a tendency to be dishonest, or |
| |
(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 |
| 10 |
associates of the defendant; |
| |
(f) | whether it would be reasonably practicable to protect the witness by |
| |
any means other than by making a witness anonymity order specifying |
| |
the measures that are under consideration by the court. |
| |
| 15 |
(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 |
| |
| |
(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 |
| 20 |
not prejudice the defendant. |
| |
| |
75 | 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 |
| 25 |
further vary) the order if it appears to the court to be appropriate to do so in |
| |
view of the provisions of sections 72 and 73 that apply to the making of an |
| |
| |
| |
(a) | on an application made by a party to the proceedings if there has been |
| 30 |
a material change of circumstances since the relevant time, or |
| |
(b) | on its own initiative. |
| |
(3) | The court must give every party to the proceedings the opportunity to be |
| |
| |
(a) | before determining an application made to it under subsection (2); |
| 35 |
(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 |
| |
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. |
| 40 |
(5) | “The relevant time” means— |
| |
(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. |
| |
|
| |
|