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Conceptualising Confrontation | Part 5 | Anonymous Witness Evidence (Generally)

In the first four parts of this series of posts on confrontation I have argued that the right of confrontation consists of four components: (i) publicity; (ii) face-to-face confrontation; (iii) cross-examination; and (iv) disclosure of witness’s identities. It was argued that these four components do not sit in isolation from each other. Rather, a model of confrontation was advanced in which the four components combine and interlock to form a unified whole. It was demonstrated, by analysing the extent to which the four components are interdependent, that disclosure of identity is the keystone of the right of confrontation because where this component is denied, the remaining three are at best significantly emasculated and at worst cease to operate altogether. Further, it was noted that under English law the operation of each of the four components may be restricted or cut back. It will be recalled that courts may sit in camera (engaging the publicity component); witnesses may be screened from the accused (engaging the face-to-face component); and restrictions may be placed on the content and form of cross- examination.

The focus of these posts now shifts to consider the primary means by which English law permits incursions to be made into the keystone confrontational component of disclosure of the identity of witnesses, by permitting courts to receive anonymous witness evidence. But first, a look at witness anonymity generally.

(a) Definition

For the purposes of this post, and those succeeding it, an anonymous witness is any witness whose real identity, by virtue of the operation of a rule of law, is concealed from the accused and his legal advisers.

(b) Anonymity as a communicational tool

Before moving on to deal with the use of anonymous evidence in the adjudicative process, a brief consideration of ‘anonymous communications’ against the wider backdrop of social norms is worthwhile.

Saul Levmore states that ‘anonymous communications may be exalted or discouraged by both legal and social norms.’ (S. Levmore, ‘The Anonymity Tool’ (1995) 144 Pennsylvania Law Review 2191, 2192) Anonymity is encouraged in electoral voting, the submission of academic examination and coursework scripts and in the making of charitable donations. In other situations, society may frown upon anonymous communications. Here, examples might include anonymous telephone calls or anonymous voting by elected Members of Parliament on legislative matters. (Ibid) In any event, ‘anonymity allows communication without retribution’ (Ibid, 2193) no matter what the context. Where the source of a communication is identifiable, they can be held accountable for its content. In this way, ‘anonymity may encourage honest communication but…it may also stimulate dishonest, corrupt, or simply socially undesirable decision-making or communications.’ (Ibid) It is this risk of the cultivation of dishonest and unimpeachable communications that has informed the law’s traditional reluctance to entertain anonymous evidence. The attitudes of lawmakers and judges may well have started to view anonymity in a more favourable light, but it is submitted that it still presents the same inherent risks. These risks are well illustrated by the first case tried by the International Criminal Tribunal for the Former Yugoslavia: Prosecutor v Tadic (Case No IT-94-1, ICTY). In that case, the accused face a number of extremely serious charges, including murder and rape. The prosecution sought to call a witness, L, who would testify to the effect that he witnessed the accused execute 30 prisoners, one of whom was L’s father. L was granted protective measures by the court, including partial anonymity. Testifying at an in camera hearing, L came up to proof. However, by what can only be described as good fortune, Tadic’s defence team discovered that L’s father was in face alive. During cross-examination, it was put to L that his father was in face still alive, a suggestion which was flatly denied by L until the defence produced L’s father alive and well to the court. Subsequent investigations revealed that L had been trained to give perjured evidence against Tadic.

(c) Witness intimidation and undercover agents

There are two broad circumstances in which the concealment of a witness’s identity may be sought. Firstly, it may be claimed that witness anonymity serves as an effective method of preventing or countering the phenomenon of witness intimidation, i.e., where threats to a person are made by or on behalf of the accused in order to discourage them from assisting law enforcement or judicial authorities in the investigation and prosecution of crimes. As Maffei notes, the problem of witness intimidation is particularly prevalent in the context of serious organised crime. (S. Maffei, The European Right to Confrontation in Criminal Proceedings (Groningen, 2006), p. 49) In a recommendation by the Committee Ministers of the Council of Europe, it was observed that ‘in some areas of criminality, such as organised crime…there is an increasing risk that witnesses will be subjected to intimidation.’ (Committee of the Council of Ministers of the Council of Europe, Recommendation R (97) 13 Concerning the Intimidation of Witnesses and the Rights of the Defence (1997), p. 1) Recent years have seen a number of European countries, including the UK, adopt anonymity measures as a means of fighting witness intimidation. Indeed, anonymous witness evidence is permitted under Dutch (Code of Criminal Procedure (1921), articles 226-226f), Norwegian (Criminal Procedure Act 1981, article 130a (inserted 2001)), Belgian (Code d’instruction criminelle articles 86bis-86quinquies (inserted 2002)) and French law.

However, the phenomenon of witness intimidation is not new and by no means is anonymous evidence a traditional response to it. In R v Davis [2008] 1 AC 1128 Lord Rodger stated, at p 1150, 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.’ (G. Robertson, ‘There can be no fair trials with this perjurer’s charter’ Guardian 8 July 2008) We even see that anonymous evidence was rejected as a means of countering intimidation in the context of terrorist crime in Northern Ireland. (Report of the Commission to Consider Legal Procedures to deal with Terrorist Activities in Northern Ireland (London, 1972) at paras 12-16; and Report of a Committee to Consider, in the Context of Civil Liberties and Human Rights, Measures to deal with Terrorism in Northern Ireland (London, 1975) at paras 54-5 ) It is apparent therefore, that the use of anonymous witnesses is a relatively new response to the witness intimidation phenomenon.

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), (e.g. Criminal Justice and Police Act 2001 s 39).

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 (F. Allum and N. Fyfe, ‘Developments in State Witness Protection Programmes: The Italian Experience in an International Comparative Perspective’ (2008) 2 Oxford Journal of Policing 92, 100- 1).

Importantly, the three methods of countering witness intimidation outlined above all share a common characteristic: none of them afford the witness protection by modifying the procedure of the trial. Each method, unlike measures allowing witnesses to testify anonymously, set down procedures that function out-of-court rather than in-court.

Anonymity may also be sought for law enforcement or intelligence officers who are involved in undercover investigations. In this respect, the primary goal of anonymity is to insulate intelligence personnel and their investigative methods from discovery in order to preserve ‘their future operational usefulness.’ (R. Costigan and P. Thomas, ‘Anonymous Witnesses’ (2000) 51 Northern Ireland Legal Quarterly 326, 339) In this respect, the protection of state agents presents a different problem altogether from that of civilian witnesses. In the case of the latter, it may be enough to protect them from out-of-court reprisals by relocating them or providing them with new names. However, in the case of undercover agents (such as those in the employ of the Security Service or Secret Intelligence Service), the state has a legitimate interest in ensuring that individuals are not identified as being connected with the intelligence community. Accordingly, Maffei argues that the cost of the disclosure of the identity of a state agent ‘greatly exceeds what…society was prepared to pay when it acknowledged the Right to Confrontation’. (Ibid, 51) This may very well be so, but as lawyers the crucial question we need to answer is whether the future operational utility of a state agent is capable of outweighing the accused’ right to a fair trial.

So, that’s a look at witness anonymity in general terms. The next post will examine anonymous witness evidence in English law.

Previous parts in this series

Part 1 | Introduction (click here)
Part 2 | The Contents of the Right (click here)
Part 3 | The Relationship Between the Four Components of the Conceptual Model (click here)
Part 4 | Rationalising the Right to Confrontation (click here)

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Filed under: Confrontation, Criminal law, Evidence, Longer pieces, Witness Anonymity

About the Author

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I am a law reporter employed by the Incorporated Council of Law Reporting for England & Wales. I write law reports for the Official Law Reports, the Weekly Law Reports and the Public and Third Sector Reports. I also write on a freelance basis for the Road Traffic Reports and the Times Reports.

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