The press and the blogosphere has been crawling of late with talk of super-injunctions. In fact, it has been nigh on impossible to escape the debate surrounding them. The issues arising out of the whole gagging order furore are well-known, and you’ll hopefully be relieved when I say that I don’t propose to descend into that particular debate myself here. The tension, as we all know, is between two interests often placed in conflict with one another. The right to keep aspects of one’s life private is pitted against the rights of others to tell and be told. Whether or not as a practical matter super-injunctions actually do what they are intended to do is up for grabs (many suggest not). But the core driving force behind them is the concept of ‘anonymity’ – the super-injunction is designed to cover those claiming them in the cloak of anonymity. Quite understandably, those who strongly support the notion of free expression and a free press are deeply suspicious of anonymity because it places the subject (at least, theoretically) beyond reach and makes them unknowable.
But this isn’t a post about freedom of expression or the right to privacy. This is a post about anonymity. What I want to show here is that the virtues or ills of anonymity shift from context to context, situation to situation. And I also want to show that whilst super-injunctions may, from a human rights perspective, be a cause for concern, there is at least one other utilisation of anonymity we should be just as concerned about.
Anonymity as a communicative tool
There is a tendency, I believe, to view anonymity as an obstacle to communication. Footballers hiding from view and suppressing knowledge of their misdeeds may cause us unease. Most of us are adverse to anonymous phone calls in the middle of the night. We might also be a tad concerned if Members of Parliament were able to vote anonymously on legislative issues and the like. Many bloggers refuse to approve anonymous comments on their posts. Anonymous donations to political parties may be viewed as slightly unsavoury too.
But, there are occasions where we might actively encourage anonymity. Our votes in elections are anonymous. Charitable donations may be made anonymously (particularly large ones). Anyone taking their exams at university right now will probably be getting used to scrawling a unique number of the front of their scripts instead of their name. Anonymity is also favoured by bloggers and writers for various reasons. So we arrive at the situation where, on balance, anonymity is capable of both encouraging or obstructing communication. Anonymity gives us the freedom to do and so as we please without fear of reprisal. It also makes us unimpeachable.
For a interesting piece on anonymity and social norms see: S. Levmore, ‘The Anonymity Tool’ (1995) 144 Pennsylvania Law Review 2191
Now I’m not saying the issue over injunctions and press freedom is unimportant because it obviously is important. But I must admit to feeling slightly bemused by the fact that the issue of whether or not the gutter press can publicise Footy McChav’s transgressions in the sack has caused such uproar (hell, David Cameron has even stuck his oar in) whereas, relatively speaking, an equally significant development occurred a couple of years ago with minimal fuss: the introduction of anonymous witness evidence to the statute book. I’m not even going to suggest that the one issue is necessarily more important than the other, but the difference in the extent of coverage across both issues is curious. Here’s why…
Witness anonymity orders
Back in 2008, the House of Lords gave a judgment the Sun and The Star didn’t like at all. It was decided in R v Davis  UKHL 36;  1 A.C. 1128 that the use of anonymous witness evidence could not be reconciled with a defendant’s right, at common law and under article 6(3)(d) of the ECHR, to confront the witnesses against her where that anonymous evidence was the sole or decisive evidence of guilt.
Anarchy Unleashed! read the Sun’s headline on 25 June 2008
The Star piped up with their typically elegant critique,
Chaos in court as loony Lords spike £6m trial
Guess what – within only four weeks following the decision in Davis (and after only one day of Parliamentary debate), the Criminal Evidence (Witness Anonymity) Act 2008 was passed. Granted, this was an ’emergency’ piece of legislation with a one-year sunset clause. Nevertheless, we still find its provisions firmly intact, nestled safely away in the Coroners and Justice Act 2009.
A bit of law
Under s 86(1) of the 2009 Act, a court is empowered to order ‘such specified measures to be taken in relation to a witness… to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.’ Section 86(2) goes on to set out a non-exhaustive list of measures for preventing disclosure of the witness’s identity. Such measures include withholding the witnesses name or other identifying details; permitting the witness to give evidence under a pseudonym; prohibiting questions that may lead to identification; screening the witness from the public and the accused; and subjecting the witness’s voice to modulation. The court’s discretion here is incredibly wide – there is no limit on the number of measures that can be applied nor are there any restrictions as to their combination.
The granting of a witness anonymity order is dependent upon the satisfaction of three ‘conditions’ set out in s 88. Condition A (s 88(3)) stipulates that the order be necessary to (a) protect the safety of the witness or (b) in order to prevent harm to the public interest. Arguably, the former of these contingencies is directed at intimidation cases, whereas the latter will cater for situations where state agents are called to give evidence. Condition B (s 88(4)) requires that the effect of the proposed order would be consistent with the defendant receiving a fair trial. Finally, Condition C (s 88(5)) provides 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 with the proposed order being made.’
Two observations can be made here. Firstly, from a drafting point of view, it would have been more logical to have made Condition C the first consideration and Condition A the last, since if the proposed order were not in the interests of justice, consideration of A and B would be unnecessary. Secondly, where the court is required to assess the ‘importance’ of the witness’s testimony for the purposes of Condition C: the Act is silent as to how this ought to be calculated.
Crown applications for anonymity orders are governed by s 87(2). On such an application, the identity of the proposed witness can, and regularly will, be withheld from the defence, but must generally be disclosed to the court. This means that the accused will be reliant on the Crown thoroughly investigating the credibility of the witness and subsequent disclosure of anything untoward in a manner consistent with the order. The inequality between the Crown and the accused kicks-in when one looks to s 87(3) which governs anonymity applications made by the accused. Under this regime, the identity of the proposed witness must be revealed both to the court and to the Crown. This requirement is included to enable the Crown to examine the witness’s credibility. Ironically, in the reverse (and more typical) scenario, the defendant can do no such thing.
This is serious stuff.
For a decent commentary on the 2009 Act see: D. Ormerod, A. Choo and R. Easter, ‘Coroners and Justice Act 2009: the “witness anonymity” and “investigation anonymity” provisions’  Crim LR 368
Some facts for the pub
The Criminal Evidence (Witness Anonymity) Act 2008 was the first statutory framework for the admission of anonymous evidence since the days of the much loathed Star Chamber. Not only that, the practice was routinely adopted during the Spanish Inquisition. As you can see, it has a fine old heritage.
But, what about intimidation of witnesses?
Well this is where the argument in favour of anonymous witnesses is at its most persuasive. Much like the competing interests in the injunction debate, here we see the interests of witnesses (articles 2, 3 and 8 of the ECHR may well engage) conflict with a defendant’s right to a fair trial under article 6.
But the phenomenon of witness intimidation is not new and by no means is anonymous evidence a traditional response to it. In R v Davis, Lord Rodger stated that ‘the intimidation of witnesses is an age-old and worldwide problem’ stemming as far back as to the days of Cicero. Fast-forwarding closer to the present, Geoffrey Robertson QC has observed that ‘the Krays and Richardsons terrorised London, yet were convicted without resort to secret witnesses.’ We even see that anonymous evidence was rejected as a means of countering intimidation in the context of terrorist crime in Northern Ireland.
Traditionally, two methods have been used to deal with intimidation. The first is to simply remand the accused into custody prior to the conclusion of the trial where there are substantial grounds for believing that he or she will interfere with witnesses (a preventative measure). The second measure has been to create specific ‘witness intimidation’ offences (a remedial measure).
A third, more comprehensive method of countering the effect of intimidation can been seen in the criminal justice systems of two states where organised crime is, stereotypically, extremely common (and, coincidentally, where anonymous witness evidence is prohibited): Italy and the United States. In Italy, by Law 82/1991 an elaborate state-run system of protection was created (the Italian State Witness Protection Programme (ISWPP)) primarily to deal with situations where former mafiosi turned State’s evidence. The Italian system is comparable to that of the United States’ WITSEC programme, established under Title V of the Organised Crime Control Act 1970, and administered by the US Marshals Service. Under both systems, threatened witnesses are protected before, during and after the conclusion of criminal trials. WITSEC, in particular, enjoys a fairly high degree of prosecutorial success. Between 1979 and 1980, 75% of defendants charged with crimes on the basis of protected witness testimony were convicted (unfortunately, I’ve been unable to get my hands on more recent data).
Why am I banging on about witness anonymity now?
One could quite legitimately say: “Look mate, witness anonymity is on the books and it doesn’t look like it’s going away any time soon. Besides, it’s all a bit old hat now anyway.”
I would counter that for two reasons. First, the injunction debate has brought the issue of anonymity back into public focus. It’s a good moment to pause and consider the role of anonymity in other contexts, such as the criminal courts. Second, witness anonymity is not a done deal yet.
The decision in Al-Khawaja and Tahery v United Kingdom (2009) 49 E.H.R.R. 1, in which it was decided by a chamber of the ECtHR that allowing a witness statement to be admitted as evidence where the witness was not available for cross-examination and that evidence was the sole or decisive basis for convicting the accused violated the right to a fair trial provided in arts 6(1) and 6(3)(d) of the Convention is currently being appealed by the UK government in the Grand Chamber of the ECtHR. A lot depends on the GC’s [eventual] decision, including the width of our domestic anonymity provisions. The GC’s decision is also likely to have a significant bearing on the validity of the Supreme Court’s decision in R v Horncastle  UKSC 14;  2 A.C. 373 (a judgment amounting to a massive two-fingers up to the ECtHR) in which it was held that the statutory regime under the Criminal Justice Act 2003 relating to the admission of the evidence of an absent witness at a criminal trial did not breach the article 6 of the ECHR and that the jurisprudence of the ECHR did not require the regime to be disapplied in favour of a rule that convictions based solely or decisively on such evidence were incompatible with article 6 (which flies right in the face of the decision in Al-Khawaja).
At the heart of the ongoing privacy debate is our attraction or resistance to the idea that people should be able to screen themselves from the gaze of everybody else. The same issue arises in the context of witness anonymity. The latter subject may not be as ‘sexy’ as the former. But I hope this post goes to show that the super-injunction debate aint the only show in town.