Memorandum submitted by Ministry of Justice (CJ 18)

 

Coroners and Justice Bill: Witness Anonymity Orders

 

During the oral evidence session on 3 February I undertook, in response to questions from Edward

Gamier, Tim Boswell and David Howarth (Official Report col. 12-14), to provide the Committee with

further details on the operation of the Criminal Evidence (Witness Anonymity) Act 2008 ("the 2008

Act").

 

As it has not been possible to make an application under the common law since the passage of the

2008 Act it is the case that all applications since July 2008 have been made under the new

legislation.

 

Many of the applications made since 21 July 2008, however, necessarily relate to cases (in the

broadest sense) which were already at some stage of development on that date. For example, at one

extreme there may be cases where the police had only just started their investigation and no

proceedings were in prospect. At the other extreme there may be cases where the trial was almost at

an end, an anonymity order had been made, and section 10 of the 2008 Act required the court to

consider if it should re-make the order under the new legislation.

 

As I indicated in Committee there were 135 applications made to the Courts between the 21st July

and the end of December, of which 129 were granted and 6 refused.

 

I can advise the committee that the CPS have identified 17 cases, involving 35 anonymity

applications, submitted to them for consideration of an anonymity application under the common law

prior to 21 July 2008 which have since been the subject of an application under the 2008 Act.

 

I can confirm that none of the 6 (of the 135 applications) refused concerned a threat to property test. I

am happy to provide the following summary of the cases although would ask you to note that, for

reasons I hope you will appreciate, the information I can provide must necessarily be anonymised

and relatively brief.

 

Case 1: 1 anonymity application. The judge took the view that the evidence engaged the witness's

credibility as well as reliability.

 

Case 2: 1 anonymity application. Again the case engaged the witness's credibility and the judge

considered anonymity inappropriate for that reason.

 

Case 3: 3 anonymity applications. These applications were refused under section 4(5)(a) of the 2008

Act, namely on the grounds that it was not important that the witnesses testify.

 

Case 4: 1anonymity application. Again the judge decided that it was not important that the witness

testify.

 

The threat of serious damage to property test and the threat to safety test are both freestanding. If

the prosecutor considered that the threat to property test was made out and the application was

otherwise in order, an application would be made. I understand that so far, the CPS have not been

asked to make any application based solely on a threat to property. The CPS have found 15 cases in

which the police have asked them to make an anonymity application based on both the threat to

property test and the threat to safety test.

 

In addition to the Mayers case which I mentioned during the hearing, we are aware of the case of C

which involved an appeal from a statutory preparatory hearing. As however the Court of Appeal

determined that it had no jurisdiction to hear the appeal, the case casts no further light on the

anonymity legislation. Statistics on appeals involving anonymity are not collected separately.

 

February 2009