The Evolution of the Law on the Anonymity of Witnesses - Essay Example

Introduction: The debate about anonymity of witness in criminal justice system is not new. Witnesses fear intimidation especially in cases where thedefendant is accused of involvement in heinous crimes. Prosecution, too, is of the opinion that many criminals escape justice because witnesses do not come forward to give evidence. To handle this situation, English courts have allowed prosecution witness to give evidence anonymously on case to case basis, in the past two decades. This method is basically aimed to encourage people to give evidence in heinous crimes. One might have passed by when the incident occurred so anonymity of witness allows him to come forward and speak. This concealment of identity is not only from the defendant but also from the public and pseudonym is used during the hearing. To conceal this identity common methods such as placing of sight screen and distortion of voices by electronic media are used. However, the method’s frequent use had raised concern and this practice was challenged. On the other hand, courts held that in absence of any solid reason to contradict the assumption of fair and just trail and where the evidence of anonymous witness could be tested in the adversarial process, admission of evidence in anonymity is allowed. The criminal evidence (witness anonymity) Act, 2008 was introduced soon after the house of lords allowed appeal by Ian Davis in the case of R Vs Davis. Davis was accused of murdering two men in 2002 and his conviction was set aside on the plea of non-admissibility of anonymous evidence in common law as it prevented the defendant to cross examine the witness to determine or establish malafied on their part. This decision created a sudden vacuum and a lot of pending trails collapsed. To fill this gap, Mr. Jack Straw, introduced the bill on 4th of July 2008 which become an Act of parliament on 8th of July 2008. In this paper our main focus will be an analysis of law prevailing before the enactment of Criminal Evidence (Witness Anonymity) Act, 2008, the factors which lead towards the promulgation of the Act, case of R Vs Davis (Lain) 2008 and its contribution in enactment of this Act. Furthermore, a critical compassion of this law with Evidence (Witness Anonymity) Amendment Act 1997 of New Zealand will be made to understand special measures and balance between anonymity and defendant’s right to fair trail. R Vs Davis (Lain) 2008 And Reaction Thereof: R Vs Davis (Lain) has proved to be a landmark case which initiated a series of events including promulgation of criminal evidence (witness Anonymity) Act, 2008. This appeal is briefly about a dual murder charge on Davis (Lain) accusing him of killing of two men towards the end of an all night New year Eve’s party in Hanley in 2002. The accused took the plea of Alibi stating that although he had participated in the party but he had left the party soon before the occurrence of the murders. Trail court found the appearances against him as he had left the country and flew to USA on false passport. Moreover, he was unable to substantial his plea as the burden of proof lied on him. But there was one ground upon which this appeal was allowed the anonymity of witnesses. All the seven witnesses feared their lives in case of evidence and requested for giving evidence in pseudonym through prosecution which was accepted by the court. Three witnesses were allowed to remain secret from public as well as from the defendant’s lawyer by allowing them to sit behind the screen and providing voice distortion to safeguard their identity. This situation raised question as to admissibility of anonymity being contrary to common law of England and its inconsistency with Article 6(3) (d) of the European convention on Human Rights which rendered defendant’s trail unfair. Defendant further raised the objections as to the hindrance in cross examination of those anonymous witnesses and his right to establish an adverse relationship between the defendant and the witness. These grounds were duly raised in Queen’s Bench Division and the Court of appeal which certified its point of public importance. The president of the bench raised the question that was it allowed for a defendant to be convicted where a conviction is based upon deceiving the testimony of one or more anonymous witnesses? This point was further discussed in House of Lords in the instant appeal. Law Lords in the House found that court of appeal was wrong in denying defendant a full opportunity to investigate the truth of witnesses and over-reliance on evidence by anonymous witnesses was inconsistent with the common Law’s principles of free and fair trails, hence, protective measures adopted by court had hampered the due process of law and rendered the trail unfair. Law Lords also gave their opinion about the social conditions which lead the situation to this point and they observed that it would not be appropriate to handle these social issues by disturbing the course of free and fair trails. They opined that the issues of fear among the witnesses shall be addressed by tackling the problem lying behind the fear. And any option to change the law would be second to this. This ruling severely hit the efforts by Government to control crimes. Besides Government machinery, media also criticized the ruling for sabotaging a vital tool for prosecution against criminals and called these Law Lords as ‘lousy’ ‘Crazy’ and ‘Barmy’.(Daily Star, 25th June 2008) However, some scholars did discuss the difficulty and impossibility of accommodating and allowing all the witnesses a cover of anonymity. This situation, off course, would lead the situation to the other extreme. Further, Guardian repeated that this ruling would results in jeopardizing of about 1600 case which would result in serious threats to all witnesses who found the courage to step forward and give evidence including under cover policemen. In short, this was a situation of chaos for prosecution and the Government machinery. (The Guardian, July 4, 2008) Reasons To Rush For The Act: As soon as the ruling of R Vs Davis (2008) was announced by the House of Lords, a lot of ongoing trails where anonymity of evidence was allowed collapsed and a number of appeals stood eligible for admission. This situation created a legal vacuum especially for the police and prosecution departments which were working for eradication of heinous crimes especially murders. This situation was explained by Junior Justice Minister, Maria Eagle, in following words, “Failure to act promptly may lead to a significant number of ongoing and pending trails having to be abundant and potentially, to a large number of appeals against convictions secured, to a greater or less extent on the basis of evidence provided by anonymous witnesses”. (The Times, June 27 2008) Similarly, Jack Straw and others also put their foot down to get the bill passed as soon as possible to avoid an unbridgeable gap in their war to eradicate crime. They emphasized the importance of this clause in trail for innocent witnesses and under-cover officials who will other wise be subject to intimidation by these out-laws gangs and drug mafias. However, attention was made by David Howarth from Liberal Democrats to create balance between fear of witness intimidation and the threat of unfair trails. Common Law: The Law Before Enactment Of The Act: Common law, sometimes called judge made law is based on human wisdom grown over the period of centuries and is recognized as good as the statutory law. Common law establishes the defendant’s right to confront and cross examine the accuser and the witnesses to dig out the truth behind the accusation and the evidence. The defendant has the right to overturn the very veracity of accusation and evidence by establishing malafied on accuser or witnesses’ part. (Coy v. Iowa, 1988) Jurists like Sir Metthew Hale, Blackstone and Bentham also opined in favor of defendant’s right to cross examine the accuser and his aides to establish the truth. (Hale, 1820; Blackstone, 1794 & Bentham, 1827) As a general principle, there was a consensus on open evidence before the jury to determine one’s guilt or otherwise. However, national security concerns introduced the concept of anonymity in evidence to protect the citizens and undercover people from intimidations from outside the country. But this step soon got challenged and in Duke of Dorset v Girdler (1720), it was established that defendant should not to be deprived of an opportunity of confronting the witnesses and examining them publicly which is an effective tool in hand of defendant to carve out the truth for his defense. Bentham argued that examining of witnesses openly and fairly was an indefeasible right of defendant. In recent times, there were many attempts to bring anonymity as an exception to the rule of common law even in England and it was found that it is not possible to conceal complete identity of a witness without compromising the very basic right of the defendant to overturn there veracity and refusal to allow counsel for the defendant to ask even the name of the witness. Apart from England, a number of other countries adopted such principles and even protected the right of fair trial in their respective constitutions. The Sixth Amendment in US constitution provides that in all criminal prosecutions accused shall enjoy the right of free and fair trail in public by an impartial jury. The amendment further directed all the courts to inform the accused all the accusations against him and shall provide him an opportunity to confront all the witness appearing against him to give evidence. (US Constitution, Sixth Amendment) Similar provisions were adopted by many other countries in North America and the principle was upheld in a number of decisions. Criminal Evidence (Witness Anonymity) Act, 2008: Criminal Evidence (Witness Anonymity) Act, 2008, was introduced to nullify the impacts of ruling in R V. Davis. Through this Act, the common law rules relating to witness anonymity were replaced with the statutory provisions. Where the Lords emphasized on the common law, they did not question the right of Parliament to legislate. The Lords provided that though common law protected the right of the defendant for free and fair trail but Parliament had the jurisdiction to amend the law. Therefore, this bill was introduced and later on passed by both the houses of the Parliament. This act was made operative from the date of promulgation and dealt with all the future trails, on going trails and all the pending appeals at any forum. The Act provides the court the power to make orders to protect the identity of the witnesses from all but judges, jury and interpreters through special measures. However, the court should satisfy itself on three counts before granting the permission of anonymity, those are: a- There is a genuine necessity to adopt these special measures to safeguard witness’ or other person’s life, property or a real harm to public interest. (Clause 4(3)) b- These measures are consistent with defendant’s right of free trail. (Clause 4(4)) c- This would otherwise be used in the interests of justice to ensure that an unwilling witness should testify. (Clause 4(5)) However, in order to safeguard the rights of defendant, court has to be satisfied on all the three clauses stated above. In order to establish these rights the court also has to meet criteria given in clause 5 of the Act with any additional safeguard it finds necessary. Clause 7 of the Act provides for an additional safeguard in which court can give jury such warning as the judge deems necessary to safeguard the rights of the defendant. This Act also contains a sunset clause which describes its life till 31st December 2009, because of the emergency nature of bill which is extendable to further a year by the Parliament. However, this act is due to be replaced by incorporation in certain sections of Coroners and Justice Act, 2009 which will be operative from 1st of January 2010. The Criminal Evidence (Witness Anonymity) Act, 2008, also invited critics from a number of quarters. Geoffery Robertson descrived the Act as "perjurerscharter", and further elobrated his point as ,”Defendants could be imprisoned for life solely on secret evidence they can never test by cross-examination so as to reveal, for example, a witnesss malice or personal animosity; spiteful or score-settling motives; a reputation for telling lies or devious relationships with the police”. (The Guardian. 8 July 2008) Different Special Measures: Even before the introduction of the Act of 2008, there were certain provisions to protect the witnesses from intimidation from the offenders. Witnesses, children and sexual victims are being protected since long by permanent or temporary legal arrangements. However, these special measures were meant to disclose the identity of the witness from the parties to the case. The special measures so provided in Youth Justice and Criminal Evidence Act, 1999, to assist fearful witness to give evidence in court of law may be enlisted as follow: Erecting of sight screen: It ensures that defendant could not see the witness. In this way a direct interaction is avoided. However, jury and counsels have the approach. Pre recorded evidence: Pre recorded evidences containing the statement of the witness might be allowed by the court. Live TV link: Court may allow a witness to give evidence from a distance via live TV coverage, especially where the life of the witness might be threatened by personal appearance. In camera evidence: Court may allow recording the evidence by clearing the public gallery of the court to ensure evidence in private. Pre recorded cross examination: in this special measure, pre recorded cross examination of the witness by the defense counsel is shown in court room instead of during the trail proceeding. Permission of intermediaries: court in special circumstances allows evidence with the help of intermediaries approved by the court. Help of communication aides: Children and physically & mentally handicapped witness may be allowed the help of communication aides while giving evidence. However, in any of the above case, the court has to satisfy itself for the need and its effect to improve the quality of evidence. These are special measures and their real motive is not to conceal the identity of the witness but to provide a reasonable protection. Other ways to protect the witness might include: 1- Provision of Police protection for the witness, his family and property from potential threat. 2- Make shift arrangement for security of witness by placing him at some safe house. 3- Temporary migration from native place of the witness may also be considered. Squaring Anonymity with Defendant’s Rights: In the coming lines we will look into the concept of free and fair trail as provided in English jurisprudence and its impact. We will also deliberate upon the impacts of special measures narrated above on fair and free trails with an emphasis upon the importance of cross examination in trail. In the end, we will critically evaluate the Act of 2008 against the provisions of Human Rights’ provisions with the view to find out if this act was able to strike a balance or not. During the course of this analysis, a comparison between laws prevailing in New Zealand on the topic and the Act of 2008 will be the moot point. New Zealand Legislation And The Act of 2008: The Act of 2008 is very similar to New Zealand’s Evidence Act, 2006 in many ways which reinforced the enactments of Evidence Act 1908 (as amended by the Evidence (Witness Anonymity) Amendment Act 1997. it would be important to note that Evidence Act, 2006 was also referred by the House of Lords in R. V. Davis as a possible template for future legislation. Both the Acts are similar as to the conditions of granting anonymity to a witness. Both provide that court has to be satisfied about the need of special measures. However, the list for consideration of the court is different in both the laws. Both the lists recognize the right of accused to know the identity of the witness and provide to identify whether there are other practical means to protect the witness’ identity. Act of 2006 further narrates that permission for anonymity shall not be a general rule but shall only be allowed in exceptional cases, depending upon the gravity of the offence and the importance of evidence the witness is intended to produce in the case. Furthermore the concept of special counsel is also borrowed from New Zealand directly. Act of 2006 provides a clause for appointment of special counsel who on behalf of the court will determine the level of fear and its true nature before admission of application for the anonymity by the court. In the initial bill, this clause was not included but was introduced in the later stages. In New Zealand, like other legal systems, an effort was made to create a balance between rights of accused and the need of the society. Therefore, amendment in year 1997 was made in the law of 1908 to broadened the scope of the law and accommodate those witnesses who fear the criminal elements and to provide a protection to the undercover policemen. The needs of the societies are same in general but the environments are particular. In this law there was an attempt to protect the rights of accused for free and fair trail. Attorney General of New Zealand, while giving his opinion on the proposed bill for Evidence Act, 2006, said that this bill do face difficulties as to the right of fair trail of the accused and identity of the witnesses. He opined that these rights are impliedly provided for in the New Zealand Bill of Rights Act, 1990 in s.s 25 (a), which speaks about the right to fair and public trail and 25(f) which is about the right to examine the witness for prosecution. (Bill of Rights Act, 1990) Judges too, made their observations during the course of their hearing, about the law prevailing at that time. As Thomas J opined that the right to a fair trial is sacrosanct, and the bill was a satisfactory balance in both respects as the making of the various orders requires consideration of the effect on fair trial. (R v Hines, 1997) Further he maintained that the right of fair trail is not an absolute right in all the situations. He went on to say that if the court is concerned about the safety of the witness and his or her property then there must be some provisions to ensure it. These provisions of the Evidence Act were also debated in Rs. V. Atkins(2000) and the court of Appeal maintained that the witness anonymity orders on the basis of the safety of the witnesses and victims should be made. The court further elaborated that witness anonymity orders ‘will be rare cases’ based on their own particular circumstances. This clause shall be used with due care. It is, therefore, found that due care was taken in order to safeguard the rights of the accused viz a viz protection of witnesses. Unlike the English version of the law, New Zealand made a better effort to curtail the use of this tool by providing categories of cases in which a judge can consider an application for anonymity but still there is a long way to achieve a balance. Right To A Fair Trail: Absolute Or Not? Before proceeding further, it would be appropriate to establish that whether the right of fair trail is absolute in term or is comparative to the need of the society? Or it has been balanced with the public interest? Jurists and judges have diverse opinions about this issue. As Thomas J opined in R v Hines, "the right to a fair trial is sacrosanct". Views of Sir Metthew Hale, Blackstone and Bentham have already been produced in this regard who considered this dictum sacred and to be followed in all the circumstances. Sixth Amendment in US constitution provides that in all criminal prosecutions accused shall enjoy a right of free and fair trail in public by an impartial jury. Similarly, Article 6 of the European Convention on Human Rights provides that every accused in a criminal proceeding has the right to fair trail in public within reasonable time by an independent and impartial judiciary. However, public and media may be excluded from the trail in national interest, interests of morals, public order and/or national security. This article further states that an accused shall be presume innocent unless proved otherwise. It sets out minimum rights of an accused as under: a- Right to prompt information -in his language or which he understands- of the nature and cause of the accusation against him; b- Right to have adequate time and opportunities for the preparation of his defense; c- Right to defend himself in person or through legal assistance of his own choice. If he does not have sufficient means to pay for legal assistance he should be given it free of cost when the interests of justice so require; d- Right to examine the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; e- Right to have the free assistance of an interpreter if he cannot understand or speak the language used in court. There are similar provisions present in almost all the legal systems of the world including guideline procedures provided by UN Office Good Practice Guide. However, this is not an absolute law without exceptions. In number of cases courts had allowed the anonymity on application of the witness after satisfying themselves. The example of sexual victims would be an appropriate general exemption in which victims are assigned alphabets instead of their actual names to conceal their identity from the public. Before R v. Davis, in number of cases, this anonymity was allowed by English courts. As in R (Al Fawwaz) v Governor of Brixton Prison (2002), House sets out general guidelines for admissibility of anonymity application to satisfy the court. Similarly, in R v Davies (Iain) and R v Ellis (2006) too, measures taken to disguise the identity of a witness by way of non-disclosure of his true identity, voice modulation and the use of screens were considered legitimate up to the Court of Appeal. It is pertinent to note, though, that the measures to disguise the identity of witness were reverted by the Law Lords. It is indicative of the fact that courts were considering the need of a balance in societal needs and the right of fair trails keeping in view the prevailing circumstances in the society. It would not be naïve to say that to some extent, courts had endorsed the point of view presented by the prosecution and the Government for admissibility of anonymous witnesses to bring some serious criminal to the task. Therefore, it could be concluded that right of fair trail is absolute in principle but in practice there are few departures in larger public interest. Have England and Wales provided a balance between anonymity and defendants rights? Having discussed all possible aspects now it would be the right place to see whether law of England and Wales has provided a balance or not, and if not can we find a way to balance this situation? The Act of 2008 was introduced to bridge the gap produced by the ruling in R V. Davis (lain) by the Law Lords. The ruling, in opinion of the Government, had created an imbalance and jeopardized the efforts made to have a crime free society. Lengthy trails, insufficient evidences and lack of adequate tools in the hand of prosecution are the main reasons for criminals to roam about and feel free. Police and prosecution in many backward nations have repeatedly been reported to opt for the option of illegal encounters of the criminal instead of bringing them to the court of law as the confidence on the legal systems have been lost in those countries. But a civilized nation having a custom of rule of law for centuries can not think of it. To a respectable extent legislation has to empower the police and prosecution with a tool like anonymity of witnesses to help the course of law and this Act provides such tool. It is debated that the right of accused to fair trail is intact. Common law does not recognize any fact other than this very principle and do not doubt the wisdom behind this principle. The only fear in going for permission for anonymity in case of evidence is the fear of prosecution of innocent people and unauthorized use of the permission. It is often said that an unlawful conviction harms the system more than the unlawful release and therefore there should be a guarantee to this effect that no innocent would be harmed by this concession. The answer with respect to such guarantee is negative. There are always chances of false and intimidate evidences which can not be brought to the earth unless they are properly cross examined and in case of absence of the right to question the evidence against the defendant, any body can point out a finger towards the other. In the Act of 2008, certain special measures have been adopted to ensure a fair trail in which the court has to satisfy itself before allowing any anonymity of witnesses. The only further safeguard to this effect is introduction of strong punishment of false evidences in anonymity besides binding the court to take maximum safeguards before allowing any such permission. Cases should be categorized in which such permission may be granted. Furthermore, sole reliance on anonymous evidence should be discouraged. No conviction shall be made solely on the basis of anonymous evidence unless it is corroborated with the other evidences. Conclusion: All the legal systems are facing challenges to help out the prosecution in dispensation of justice and the societal goal of crime free society. The Main reason behind these challenges is the growing power nexus of the criminals in societies and fear among the common people of intimidation in case of evidence against organized crime circles. On the other hand, safeguard as to fair trail for innocent people is again crucial and basic to the legal system. No body should be condemned unheard and it includes the right to cross-examine the accuser and the witnesses in order to dig out the truth. On wake of ruling in R. v. Davis (lain) by the Law Lords there was a vacuum which might hit the government’s effort toward crime free society adversely and in order to control the damage, this emergency legislation was proposed and passed in the Parliament. It is not a unique piece of legislation as many countries have their provisions for admitting anonymous witnesses especially in case of national security. Even the English courts recognized that fact in past. It may, however, be said that there is still a need to create a balance between rights of witnesses and rights of defendants. Work Cited Banthom, 1827, Rational of Judicial Evidence, Vol. II, Bk III, pp 404 &408 Blackstone, 1794, Commentary on Law of England, 12th Edn., Bk III, p 373 Criminal Evidence (Witness Anonymity) Bill, Bill 134 Of 2007-08, Research Paper 08/60, 4th July 2008, Retrieved from House of Commons Library on 13th December 2009 Criminal Evidence (Witness Anonymity) Bill, Review, The Times, 27th June, 2008 Cot v. Iowa, 487 US 1012, 1015 (1988) Constitution of USA, Sixth Amendment Con could walk, 25th June 2008, Daily Star Coroner and Justice Act, 2009 Criminal Evidence (Witness Anonymity) Act, 2008 Duke of Dorset v Girdler (1720) Prec. Ch. 531-532, 24 ER 238 Evidence Act 1908 (as amended by the Evidence (Witness Anonymity) Amendment Act 1997 New Zealand Bill of Rights Act, 1990 R v. Atkins [2000] 2 NZLR 46 R (Al Fawwaz) v Governor of Brixton Prison [2002] 1 A.C 556 HL R v Davies (Iain); R v Ellis [2006] 2 Cr.App.R 32 R v Hines [1997] 3 NZLR 529 Secrecy and Laws, 4th July 2008, The Guardian Sir Metthew Hale 1820, the History of Common Law of England, 6th Edn., pp 345 & 346 There Can Be No Fair Trails With The Prejurer’s Charter, The Guardian. 8 July 2008, retrieved on 13th December 2009from http://www.guardian.co.uk/commentisfree/2008/jul/08/justice.law. Youth Justice and Criminal Evidence Act, 1999 Read More