There is no Justice in Anonymity

(Article first published in Counsel magazine, August 2008.  It was cited in the House of Commons research paper on the Coroners’ and Justice Bill, 22.2.2009 (at pp 38/39).)

The legislation creating the U K ’s Supreme Court was introduced by a Government that claimed to be providing for a new relationship with the judiciary: one at least based upon respect for its wisdom and experience. The publication of the Criminal Evidence (Witness Anonymity) Bill has put those intentions into sharp focus, however. The Bill was published on 3 July, less than three weeks after the House of Lords gave judgment in R v Davis ([2008] UKHL 36), the case which the Bill was intended to overturn. Five days later, the House of Commons was given a mere day to debate its provisions (see Hansard, 8 July 2008). While many MPs made valiant attempts to improve the Bill, little consideration was given to the principled grounds of the House of Lords judgment, where witness anonymity was subjected to a thorough and penetrating analysis.

Their Lordships’ conclusion in Davis was both refreshing and necessary: that it is a basic tenet of English law that an accused knows the identity of those who accuse him; and that witness anonymity unjustly compromises the ability of defendants to test adequately the evidence against them. The spectre of the violent intimidation of witnesses was not ignored in the judgment. Lord Rodgers referred to the continuity between the intimidation of witnesses in Cicero’s Sicily and that of the Mafia through the 20th century law of omerta. More pertinently, Lord Carswell—who sat as a judge in Northern Ireland during the worst years of the troubles before serving as its Lord Chief Justice—refused to accept that witness anonymity is a proportionate response to the problem of intimidation.

The House did not come to its judgment blind to the gravity of the challenge of gangland terror, though it did question whether the problem is any greater in contemporary London than it was in the ages of the Krays and of Northern Irish terrorism. Violent attempts to pervert the course of justice are a universal problem—one requiring careful onsideration, not emergency legislation in a whipped and guillotined House of Commons. Moreover, the fact that anonymity is applied only to the most serious of crimes cannot justify measures that are found to compromise the very possibility of a fair trial. One might think that fairness becomes ever more important the graver the allegation being tried.

INJUSTICE BY RESTRICTION

The case of Davis turned upon the evidence of three witnesses who claimed to identify the defendant as having shot two men on New Year’s Eve in 2002. All three claimed to be in fear of their lives, although no evidence suggested that those threats derived from the defendant. The trial judge accepted their fear as genuine and granted them complete anonymity, an investigation affirmed by the Court of Appeal in upholding the conviction. On appeal, the House found that the defendant had been caused particular injustice by the almost complete restriction put upon an essential part of his defence: that his ex-girlfriend procured evidence against him. The witnesses’ anonymity prevented the defence from investigating whether any of the witnesses were even known to that woman, let alone subjecting them to informed cross-examination. Such a prohibition would apply to any trial conducted under the Bill’s provisions, where the defence may not ask “questions of any specified description that might lead to the identification of the witness” (s 2(2)(c)).

The possibility of injustice was no idle claim. Lord Mance referred the House to the case of Tadic (10 August 1995, IT-95-14) a Bosnian tried by the War Crimes Tribunal of the former Yugoslavia in 1995. Tadic had been accused of war crimes by a number of anonymous witnesses, one of whom was a man who claimed that the defendant had murdered his (the witness’) father. Yet when this man’s identity became known to the defence, it led to the father being found unharmed and indeed to him giving evidence in Tadic’s defence.

RISK OF AXES TO GRIND

Another possible effect of witness anonymity was raised by Bob Marshall-Andrews, QC, MP, in the Committee stage of debate on the Bill (Hansard, ibid). He spoke of the prospect of a case where: “It appears from the case papers that the witness does not have an axe to grind and was a bystander or someone who was otherwise innocently involved” but where his client sees “things [in the] papers that lead me to believe that I can identify the witness”, who is no “innocent bystander”. In such circumstances, defence counsel would be unable either to adduce that evidence from the defendant or otherwise to allow it to inform his cross-examination of the witness—even where he knew it to relate to him—as to do so would risk the witness’s identification.

FUNDAMENTAL RIGHT TO KNOW

These examples demonstrate that the right of defendants and their lawyers to know the identity of their accusers is fundamental and not tangential. As the US Supreme Court said in Smith v Illinois (390 US (1968) 129 at 131, cited in Davis) “the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’s name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.” No measures could ever avoid the risk that miscarriages of justice will be caused by witness anonymity because—as is amply developed by the three examples above—investigations by the judge or special counsel will never have the benefit of the defendant’s unique knowledge.

INADEQUACY OF SAFEGUARDS IN THE ACT

Though the protective measures applied by the trial judge in Davis recognised the need of the defendant’s counsel to cross-examine as to credibility— the prosecution having served the defence with the previous convictions of the witness—this material proved useless when removed from its context. It did not permit any investigation that might have produced evidence in support of the defendant’s claims. Nor did it allow the defence sufficient material to question and criticise the course of the investigation. And it made the defence wholly reliant upon the Crown for disclosure, the veracity of which the defendant could have had no opportunity to challenge. Most who have practised at the Criminal Bar have known cases where full disclosure was only achieved through a client’s knowledge of the factual background to a case, which may well include his knowing a particular witness. Worryingly, the Bill contains no requirement that even redacted disclosure relating to credibility be served on the defence.

Even the most basic assumption behind the provision of special measures was questioned within the speeches in Davis. Rather than consider whether anonymous testimony was likely to “improve the quality” of a witnesses testimony (in the words of the Youth Justice and Criminal Evidence Act 1999, eg ss 17 and 19), their Lordships asked whether its very reliability might be affected. Would witnesses be as careful to abide by their oath as they would be when giving evidence at court facing the unfettered cross-examination of defence counsel? Or might their anonymity “further heighten the witness’s sense of impregnability and increase the temptation to falsify or exaggerate”, as thought the South African Supreme Court (S v Leepile (5) (1986) 4 SA 187, cited in Davis)? The knowledge that the defence do not know a witness’s connection to the defendant (if any) and that they will never be able to
investigate his truthfulness is bound to increase that temptation.

It is true that s 5 of the Bill provides that the court must recognise the “general right of a defendant in criminal proceedings to know the identity of a witness in the proceedings”. Yet these provisions fail to answer the fundamental objection to anonymous testimony: that the defendant is the only person who can know whether a witness’s identity might have some bearing on his credibility; and that the inability of the defence to investigate a witness’s testimony is a denial of a right fundamental to any fair trial. This should concern all who believe that “we cannot balance the right to a fair trial against anything else, because it is an absolute right” (unlike Andrew Dismore, MP, Chairman of the Joint Committee on Human Rights, Hansard, 7.2008, ibid).

DEMOCRATIC RESPONSIBILITIES

Of course it is worrying that as many as 40 trials may be affected by the ruling, including a number of notorious murder cases. Yet is it not more alarming that measures granting anonymity have come to be granted as a matter of routine without any real debate? A democratic society under the rule of law has a responsibility to ensure that those guilty of the worst crimes are unable to avoid just conviction through their intimidation of witnesses. But steps that violate the right to a fair trial will not lead to just convictions. Where defendants are unaware of the very identity of those making the gravest accusations, they are stripped of their right to know an essential part of the case against them. Such trials offend against a free society’s need for public justice. It is disturbing that a cross-party consensus appears to have sleep walked into yet another ill thought out, authoritarian response to a considered judgment in the best traditions of the common law: one handed down to protect from injustice those least able to defend themselves.

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