Legislative Scrutiny: Coroners and Justice Bill - Human Rights Joint Committee Contents


5.  Witness Anonymity

Witness Anonymity

BACKGROUND

1.115 The Bill re-enacts[105] the Criminal Evidence (Witness Anonymity) Act 2008 on which we reported during its hasty passage through Parliament.[106] During the Act's passage, on an emergency basis, the Government acknowledged that there had been limited opportunity for parliamentary scrutiny and undertook to re-enact its provisions to allow further and fuller parliamentary debate. The Act provides for the legislation to cease to have effect from 31 December 2009.[107] In our report on the Bill we commented on the regrettable lack of time for detailed parliamentary consideration of the Bill. We therefore welcome the early opportunity to give further consideration to the human rights issues raised by witness anonymity orders.

1.116 We were satisfied that the 2008 Act was compatible with Article 6 ECHR on the basis of its express protection of the right to a fair trial and the discretion left to the trial judge to determine that issue.[108] However, we did have concerns about certain issues and raised questions about them for debate. We were concerned, for example, by the absence from the legislation of any express acknowledgment of the exceptional nature of witness anonymity orders.[109] We were also concerned by the inclusion of "serious damage to property" as one of the possible triggers for a witness anonymity order.[110] We were concerned too by the lack of express provision in the Bill for the appointment of special counsel to represent the interests of both the accused and the witness at hearings for anonymity orders.[111] We return to each of these issues below.

1.117 Since the passage of the Act, detailed guidance on its practical implementation has been forthcoming from a number of sources. The Attorney General has issued Guidelines on the prosecutor's role in applications for witness anonymity orders, setting out the overarching principles by which a prosecutor should consider, and if appropriate apply for, a witness anonymity order in accordance with the considerations set out in the 2008 Act.[112] The DPP has also issued detailed Guidance on Witness Anonymity for Crown Prosecutors, to be read in conjunction with the Attorney General's Guidelines, setting out how Crown Prosecutors must deal with applications for anonymity under the 2008 Act..[113] The Lord Chief Justice has also issued a Practice Direction concerning witness anonymity orders, and the Court of Appeal has provided further guidance in a recent case considering the 2008 Act in detail.[114]

1.118 Some statistical information about the practical operation of the witness anonymity provisions is also available, because the CPS has been maintaining a register of all cases in which an application for a witness anonymity order has been made.[115] We welcome the CPS's initiative in compiling this register of all applications: it provides an important source of information to enable the practical operation of the witness anonymity provisions to be independently scrutinised and is a valuable human rights safeguard.

1.119 The DPP provided the Public Bill Committee with the figures for the period July to December 2008.[116] During that 6 month period, the police identified 137 cases for application, comprising 346 individual witnesses (there may be more than one witness within each case). The CPS considered those witnesses and made applications for witness anonymity orders in relation to 135 out of the 346 witnesses. 129 applications were granted and six refused. The DPP's conclusion was that "In that sense, it appears that the measure is working well. In the cases that we have considered, there is a high success rate when they are put before the court." We comment on the significance of these figures below.

EXCEPTIONALITY

1.120 In our report on the 2008 Act, we pointed out to Parliament that the equivalent New Zealand legislation expressly requires the court to have regard to "the principle that witness anonymity orders are justified only in exceptional circumstances".[117] We observed that there may be some merit in extending the list of relevant considerations to which the court is required to have regard so as to include an express reference to the exceptional nature of such orders. The DPP, in his evidence to us in relation to that Bill, did not agree. He thought that the Bill spoke for itself: the scheme was clearly designed to apply only in exceptional circumstances. Nevertheless we considered that the question ought to be debated in Parliament.

1.121 Since the passage of the Act, both the Attorney General's Guidelines and the DPP's Guidance to Crown Prosecutors have made the exceptional nature of witness anonymity orders clear. The Attorney General's Guidelines, for example, begin by stating that an important aspect of a fair trial is the right of the defendant to be confronted by, and to challenge, those who accuse him or her, and go on to say that applying for a witness anonymity order is:

1.122 a serious step, to be taken by the prosecutor only where there are genuine grounds to believe that the court would not otherwise hear evidence that should be available to in the interests of justice; that other measures falling short of anonymity would not be sufficient; and that the defendant will have a fair trial if the order is made.

1.123 The Director's Guidance similarly begins by reiterating that the overarching principle of criminal justice is that the defendant must receive a fair trial. It makes clear that the use of an anonymous witness should only be considered where such a course is consistent with a fair trial and only in those cases where it is "absolutely necessary." Applications for a witness anonymity order should only be made when, after full consideration of all the available alternatives, a clear view is taken that the Act applies.

1.124 We welcome the express acknowledgment of the exceptional nature of witness anonymity orders in both the Attorney General's Guidelines and the DPP's Guidance. We also welcome the Minister's acceptance that "anonymity orders should not become routine instead of exceptional."[118] We do not consider the number of witness anonymity orders applied for in the first 6 months of the legislation's operation to suggest that the orders are being treated as other than exceptional. We therefore do not regard it as necessary for the legislation to be amended to insert an express reference to the exceptional nature of witness anonymity orders, such as that contained in the equivalent New Zealand legislation.

1.125 We do have a concern, however, about the striking discrepancy between the number of cases in which the police have considered an application for a witness anonymity order to be appropriate (346 to December 2008) and the number of cases in which the CPS has considered such an application to be appropriate (136 in the same period). This suggests to us that the police may regard witness anonymity orders as much less exceptional than the CPS. While we are pleased to see that the CPS is in practice operating as an effective filter, we are concerned by the relatively large number of cases in which the police appear to have thought an application for an anonymity order to be appropriate. We recommend that appropriate guidelines be drawn up for the police concerning their role in the application for witness anonymity orders, which reflects, in a manner accessible to front line police officers, the clear guidance to prosecutors that witness anonymity orders are justified only in exceptional circumstances.

"SERIOUS DAMAGE TO PROPERTY"

1.126 In our report on the 2008 Act, we pointed out that the Bill enabled a witness anonymity order to be made on the basis that a witness had a reasonable fear of "serious damage to property" if the witness were identified. We pointed out that this raised the question of whether the threshold for the making of a witness anonymity order was sufficiently high to avoid breaches of the right to a fair trial in practice, as an anonymity order based solely on the risk of damage to property might well lead to a finding of an unfair trial.

1.127 The Government has told us that so far no applications for witness anonymity orders have been made solely on the basis of a fear of serious damage to property.[119] The DPP told the Public Bill Committee that the CPS has identified a total of "15 cases in which the police have asked prosecutors to make an anonymity application based on both the threat to property test and the threat to safety test."[120] We welcome this approach, which reflects what the Minister told the House of Commons during the passage of the 2008 Act: "The protection of property is not the reason for the provision. It is there because a risk of serious damage would in most cases be likely to have an effect on the witness's safety, and certainly on his perception of his safety."[121]

1.128 However, some uncertainty about the correctness of this interpretation has now been introduced as a result of the Minister's response to a probing amendment on this issue in Public Bill Committee. The Minister, opposing the amendment, appeared to suggest that threats to disable someone's car which they use to get to work would constitute "serious damage to property" for the purposes of the Act.[122] This appears to be at odds with her view during the passage of the 2008 Act that a serious damage to property would in most cases be likely to have an effect on the witness's safety. It potentially lowers the threshold for witness anonymity orders significantly and in a way which correspondingly increases the risk that they will lead to breaches of the right to a fair trial in practice.

1.129 We recommend that future editions of the Director's Guidance, which expressly states that it will be kept under review, provides some guidance as to what the Director is likely to regard as constituting "serious damage to property" when considering whether to make an application for a witness anonymity order. In particular, guidance would be welcome as to whether, in the DPP's view, there will usually need to be some kind of risk to persons for the damage to property to be "serious", which was the human rights compatible interpretation of the same phrase by the Attorney General of New Zealand.

SPECIAL COUNSEL

1.130 In our report on the 2008 Act, we recommended that the Bill be amended to give the trial judge a discretion to appoint special counsel. The Secretary of State undertook to give active and urgent consideration to whether a statutory scheme for special counsel was necessary and to consult the judiciary on whether they would find them useful.

1.131 In a letter dated 3 December 2008 to Nick Herbert MP, copied to our Chair, the Secretary of State for Justice explained the reasons for the Government's view that the re-enacted provisions should not make any express provision for special counsel.[123] In the Government's view, in the rare cases where special counsel might be required, the present arrangements, which permit judges to invite the Attorney General to request the appointment of special counsel, are adequate.

1.132 The Attorney General's Guidelines state that such an invitation by a court to the Attorney General to appoint special counsel should be regarded as "exceptional." The Guidelines do state, however, that "a prosecutor making an application for a witness anonymity order should always be prepared to assist the court to consider whether the circumstances are such that, exceptionally, the appointment of special counsel may be called for. When appropriate a prosecutor should draw to the attention of the court any aspect of an application for a witness anonymity order or any aspect of the case that may, viewed objectively, call for the appointment of special counsel." The only reference to special counsel in the DPP's Guidance, however, is to the fact that judges may invite the AG to appoint special counsel "if they consider it necessary." It does not suggest that the prosecutor has any role in relation to that question,

1.133 To date, it appears that there have been only two applications to the Attorney General for special counsel to assist the court with a witness anonymity application, and both of those applications have been granted.[124] The Government argues that this shows that the current arrangements are working well: courts can ask the Attorney General for assistance if they consider it is necessary and where those requests have, exceptionally, been made, they have been granted.

1.134 We accept that fairness will not require special counsel to be appointed in every cae where an application for an anonymity order is made. It will depend on the circumstances of the case. We are concerned, however, by the very small number of cases in which special counsel has so far been appointed: two out of a total of 136 applications. This suggests that the appointment of special counsel may be being treated as a wholly exceptional course rather than one which fairness may sometimes requires on the facts of a particular case. We note that there is no record of the number of times special counsel were requested or applied for by the defence but that request or application was not acceded to by the court. The information collected by the CPS for the purposes of its register does not capture this. It is possible that the appointments of special counsel has been requested by the defence many more times than the two occasions on which it has been requested by the court.

1.135 In our previous report we also drew attention to the fact that there is considerable uncertainty whether magistrates' courts have the power to invite the appointment of special counsel, because they are creatures of statute and therefore do not possess inherent jurisdiction. We note that the vast majority of applications for witness anonymity orders have been made in the Crown Court, but that three orders have been made in the magistrates court.[125] So long as there remains the possibility of applications for anonymity being made in the magistrates court, it is undesirable that there remains uncertainty about whether there is power to appoint special counsel in such cases.

1.136 Finally we note that at the time of the passage of the 2008 Act, the Government told Parliament that courts had power under their inherent jurisdiction to appoint special counsel as and when they (the court) considered it appropriate. Since that date, the Attorney General has adopted a different position about the power of the courts to appoint special advocates, arguing that it is the Attorney General, not the courts, that has the power to appoint. Courts can request the Attorney General to appoint special advocates, but whether or not to do so is a matter for the Attorney General. In our view, this further strengthens the case for putting the power of the court to appoint special counsel onto an express statutory footing.

1.137 We therefore remain of the view that the legislation should be amended to place on an express statutory footing the trial judge's discretion to appoint special counsel and the right of the defence to request the appointment of such special counsel.

Page 41, Line 45, insert new sub-clause:

(7A) The court has the power to appoint special counsel to represent the interests of the defendant in his or her absence, if it appears to the court to be appropriate to do so in the circumstances of the case.

Alternatively, we recommend that such express provision be made in the new rules of court on witness anonymity being drafted by the Criminal Procedure Rule Committee chaired by the Lord Chief Justice.[126]

1.138 We also recommend that the DPP's Guidance covers the assistance prosecutors should be prepared to provide to the court to consider whether, in the particular circumstances of the case, fairness requires the appointment of special counsel; and that the DPP's register of anonymity applications should additionally record whether any request or application was made to the court to appoint special counsel and the outcome of that request or application.

Investigation anonymity orders

1.139 The Bill also provides for investigative witness anonymity orders to be available in cases of murder or manslaughter where death was caused by a gun or a knife. The rationale for making such an extension of the anonymous witness provisions is to encourage witnesses to come forward in the most serious gang-related crimes where witnesses may be reluctant to do so because they fear reprisals.

1.140 An investigative witness anonymity order can be applied for by the police, or other investigative body, as well as by the DPP. There is an obvious practical problem about the effectiveness of such orders: unless the witness is also confident that their anonymity will be protected at trial they are unlikely to come forward. But the investigating authorities are not in a position to know whether such a trial anonymity order is likely to be applied for by the DPP, let alone given by the court. A requirement that an applicant for such an investigation anonymity order first obtain the consent of the DPP would address this practical problem.

1.141 We wrote to the Minister pointing this out and asking if there is any reason why the consent of the DPP should not be required before an application for an investigation anonymity order is made. The Government's answer is that an investigation anonymity order is essentially an investigative tool to assist the police in their investigation of a particular kind of crime, and it may be used at the early stage of an investigation before the CPS is involved. The Government therefore does not consider it appropriate to require the DPP to consent before the police apply for these orders.[127]

1.142 We accept that investigation anonymity orders and witness anonymity orders serve different purposes at different stages of the case. However, the Government's answer does not meet our concern about the practical utility of investigation anonymity orders if the CPS is not involved. As the Minister herself acknowledges, in her response:

1.143 When approaching the witness about an investigation order, it will be necessary for the police to explain its effect and to make clear that if the witness is required to give evidence at a later date, it would be necessary to make a separate application for a trial order and there is no guarantee this will be granted.

1.144 We are also concerned, as we have pointed out above, that the evidence suggests that the police have in practice not regarded applications for witness anonymity orders as being "exceptional". Without requiring the CPS's involvement in investigative anonymity orders, there must be a risk that the number of such applications by the police would be disproportionately large.

1.145 We therefore recommend that the Bill be amended to require the consent of the DPP before an application for an investigation witness anonymity order is made.

Page 37, line 40, at the end insert-

(8A) The condition in this subsection is that the DPP has given his consent to the application.


105   Clauses 69-79. Back

106   Twenty-sixth Report of Session 2007-08, Legislative Scrutiny: Criminal Evidence (Witness Anonymity) Bill, HL 153/HC 950. Back

107   Section 14. Back

108   Ibid at para. 1.9. Back

109   Ibid. at paras 1.17-1.21. Back

110   Ibid. at paras 1.22-1.25. Back

111   Ibid. at paras 1.26-1.33. Back

112   Attorney General's Guidelines: The Prosecutor's Role in Applications for Witness Anonymity Orders, Criminal Evidence (Witness Anonymity) Act 2008 (21 July 2008). Back

113   The Director's Guidance on Witness Anonymity (August 2008). Back

114   R v Mayers [2008] EWCA Crim 2989. Back

115   The DPP's Guidance helpfully prescribes the details of each case which must be kept on the register. Back

116   PBC, 5 Feb 2009, Col. 109 (Q265). Back

117   New Zealand Evidence Act 2006, s. 112(5)(b). Back

118   PBC, 5 March 2009, Col. 563. Back

119   Ev 23 Back

120   DPP's Supplementary Memorandum to the Public Bill Committee, February 2009. Back

121   Maria Eagle, HC Deb, 8 July 2008, col 1375. Back

122   PBC, 5 March 2009 Col 553. Back

123   Ev 36 - 37 Back

124   PBC, 5 March 2009, Col. 547 Back

125   DPP's Supplementary Memorandum. Back

126   See PBC, 5 March 2009, Col. 542. Back

127   Ev 23 - 24 Back


 
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