By James Wood QC
James Wood QC reviews the use of witness anonymity orders 10 years on from the hiatus created by the House of Lords decision in R v Davis  1 AC 1128. Having recently been involved in lengthy proceedings in which the prosecution eventually offered no evidence against a person charged with conspiracy to commit misconduct in a public office, when her defence to the allegations was that she had reasonable justification for corrupting two police officers to secure information as to the alleged identity of an anonymous witness on grounds that the material disclosed there had been significant and substantial non-disclosure concerning the anonymous witness, who had played a significant part in the conviction of her son for murder.
Is it not time for the statutory anonymous witness regime to be fully reviewed? Application for anonymous witnesses involving secret hearings where judges consider extensive PII material which might undermine a witness’s credibility or establish a motive for dishonesty where only the prosecution are represented, and where review on appeal seems all but impossible, are becoming a mainstay of our justice system.
It is now just over ten years since the April 2008 House of Lords decision in R v Davis  1 AC 1128 in which the court firmly rejected the growing practice of allowing anonymous witnesses to give evidence in British criminal trials. The court’s judgement had the effect of overturning the growing practice within the criminal courts, which had its origins in security trials in Northern Ireland, and which had been adopted by one or two judge’s at the Old Bailey during the 1990s., The Court of Appeal had upheld this practice in R v Taylor and Crabb  Crim L R 253, and in subsequent cases. Lord Bingham, by ruling in his seminal judgment in the House of Lords that “It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. This principle originated in ancient Rome:”. He described how the practice had been established, the courts having “By a series of small steps, largely unobjectionable on their own facts….have arrived at a position which is irreconcilable with long-standing principle.” (para 29) and ruling that “At no point in its judgment does the Court of Appeal acknowledge that the right to be confronted by ones accusers is a right recognised by the common law for centuries, and it is not enough if counsel sees the accusers if they are unknown to and unseen by the defendant. I feel bound to conclude that the protective measures imposed by the court in this case hampered the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair.”
Parliament was determined to see this long established principle eroded and abandoned. Its response to the judgment was swift and brutal, passing within 33 days the Criminal Evidence (Witness Anonymity) Act 2008, which came into force for a temporary period of just one year. What was initially temporary, proved permanent, when the Coroners and Justices Act 2009 (section 86-94) was passed. CPS guidance promptly issued after the enactment in 2009 remains unamended ten years later. The Court of Appeal decisions in Mayers  1 Cr App R 30 and R v Donovan and Kafunda  EWCA Crim 2749 whilst playing lip service to the principle that “a witness anonymity order is to be regarded as a special measure of the last practicable resort”, have failed to sufficiently safeguard the interest of the accused, and have set up the framework for the application of the statutory test for trial judge’s whilst endorsing the one sided process. Meanwhile the ECHR found the practice compatible with Article 6 fair trial rights Al-Khawaja (2012) 54 E.H.R.R. 23; (in connection with absent witnesses), as long as the evidence was not the “sole or decisive” evidence. Since then it has applied these principles expressly to the statutory regime concerning anonymous witnesses in rejecting an application in the case of Ellis, Simms and Martin in 2012. So firmly entrenched is the statutory procedure that the Criminal procedure Rules have now been amended to enshrine the procedure. See D V Evidence 18D: WITNESS ANONYMITY ORDERS.
Whilst the CPR (at 18D.14) refers to the possible intervention of Special Counsel in the PII aspect of these application, the inclusion of the words from R v H  2 AC 134 that, ‘Such an appointment will always be exceptional, never automatic; a course of last and never first resort. It should not be ordered unless and until the trial judge is satisfied that no other course will adequately meet the overriding requirement of fairness to the defendant” appear to have had the effect of discouraging judges from approaching the AG and encouraging the AG to reject such applications. Has the appointment of Special Counsel in an anonymous witness application ever happened in recent years?
Perhaps more worrying is the absence of any distinct or detailed guidance from the Court of Appeal or the Supreme Court which might assist trial judges in determining when the testimony of a potential anonymous witness is “decisive”. The admission of such decisive anonymous evidence is incompatible with article 6 rights. Yet what is “decisive” in this context has never been ruled upon. Can one necessary link in a chain of evidence be “decisive”, can one necessary brick in a wall of circumstantial evidence be decisive. The answer must be yes if the verdict might otherwise be not guilty. Sadly “decisive” anonymous evidence can be placed before a jury under the statutory regime for anonymous witnesses, yet its admission is incompatible with fair trial rights and breaches the principles identified in by Lord Bingham in Davis. Is it not time for more judicial guidance, a review on how the principles are being applied, and more regular use of special counsel in associated PII hearings, when anonymous evidence could be “decisive” to the trial process. The case of Ross  EWCA Crim 1021 is certainly now one which calls for reconsideration. How many others potentially languish in jail as a result of “decisive” anonymous testimony which has been inadequately tested as a result of judicially sanctioned inadequate disclosure? The answer is nobody knows, nor can anyone find out.
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