David Pannick
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The Justice Secretary, Jack Straw, yesterday told the Commons that the Government intends to publish a Bill next week that will allow witnesses who fear intimidation to give evidence anonymously in criminal trials.
But legislation will not achieve the desired objective of ensuring the conviction of the guilty and will only delay the need to consider alternative means of addressing the problem of intimidation.
Last week, the House of Lords allowed an appeal by Iain Davis against his conviction for murdering two men in Hackney, East London, on New Year's Day, 2002. Three witnesses who identified him as the gunman feared for their lives if they gave evidence. They were allowed to testify under pseudonyms, with all particulars of their identity withheld from the defence. They gave evidence from behind a screen, with their voices disguised.
The House of Lords decided that common law prohibited the use of such anonymous evidence because it prevented the defendant from being able to challenge in cross-examination whether the witnesses had a motive for lying or exaggerating. The law lords said that if reform of the law is needed to address the mischief of witness intimidation, it is a matter for Parliament. Other murder convictions are now vulnerable on appeal. An Old Bailey murder trial collapsed this week because of the ruling. Mr Straw said on Wednesday that “there is a difficult balance to strike here, between giving witnesses who fear for their safety the confidence to give evidence in court and ensuring that innocent people are not convicted”.
He is wrong. There is no such balance. The law lords have repeatedly explained that Article 6 of the European Convention on Human Rights confers an absolute right to a fair trial, which cannot be balanced against other considerations, even in relation to measures taken to protect society against terrorism.
The Justice Secretary and Parliament are bound by the UK's international obligations in this respect. Those echo and were strongly influenced by the common law traditions of our legal system, as Lord Bingham of Cornhill emphasised in R v Davis.
Mr Straw's difficulty is that the demands of a fair trial preclude the use of anonymous evidence in almost all circumstances in which it would be crucial to obtaining a conviction. Lord Mance explained for the House of Lords that the European Court of Human Rights regards a criminal trial as unfair where both of two conditions are satisfied. The first is that anonymous evidence is the sole or decisive basis on which the defendant is convicted and the second is where the anonymous nature of the evidence prevents effective cross-examination of witnesses to support the defence case that their evidence should be rejected by the jury.
Other than in the most exceptional circumstances, a defendant who pleads not guilty will be hindered in challenging the evidence of a crucial witness who is anonymous. Defendants will almost always be able to say that because of the anonymity, their counsel was prevented from testing whether the witness had a motive for lying, such as a grudge against the defendant or a link with the deceased.
So any legislation will have to recognise an express exception for cases where knowing the identity of the witness is crucial to cross-examination, or will have to leave it to the discretion of the judge. Either would mean that the police would be unable to guarantee anonymity to witnesses, and judges will regularly refuse applications for anonymity.
The Justice Secretary should think carefully before rushing to Parliament with legislative proposals. An alternative approach, much more likely to be productive, would be to recognise that witness intimidation is not new, and that violent crime has been punished in the past without compromising fair trials. In 70BC, in his prosecution of Gaius Verres for imposing tyranny as the governor of Sicily, Cicero accused the defendant's supporters of “intimidation... to frighten witnesses”. In the House of Lords in R v Davis, Lord Rodger of Earlsferry drew attention to the fear imposed on the East End of London by the Kray brothers in the 1960s, and the longstanding intimidation of witnesses by paramilitary groups in Northern Ireland, neither leading to the use of anonymous evidence.
The second limb of an alternative approach would be to focus on ways to encourage potential witnesses to provide information and give evidence: improved police protection, giving priority to the speedy detection and prosecution of alleged intimidation, and greater police efforts in communities to encourage people to co-operate. As explained in the memoirs of Sir Norman Skelhorn, the Director of Public Prosecutions at the time of the successful prosecution of the vicious Richardson gang in 1967, intimidation may have to be met by the prosecution “relying on criminals or those who had to live by their wits”.
Such alternatives would be time-consuming, expensive and far from ideal. But they would be much more likely to bear fruit than enacting a futile law as a gesture that has no prospect of intimidating judges and lawyers into abandoning the right of defendants to a fair trial.
David Pannick, QC, is a practising barrister at Blackstone Chambers and a Fellow of All Souls College, Oxford
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What a great post Shaun O'Connell.
I mean, really, Magna Catra, did she die in vain?
Tony, East Cheam,
The Senior Judiciary are the last line of defence against our authoritarian government who are intent on removing all civil rights in the name of security. Any citizen who values liberty should support the Judges in this matter.
John, Cornwall, UK
Sir,
Wouldn't it be reassuring if the Judges were as concerned about eg. the regular murder of innocent victims by perpetrators they have released on bail as they are about anonymous witnesses.??
Have Judges ever refused appointment or pay from the Government, to preclude any influence upon them?
Martin , North Staffordshire, UK
Those who criticize the judges for upholding what is clearly jurisprudent ignore the real issue. Who is responsible for the fact that today criminals can so easily intimidate witnesses? Thirty years ago cases of intimidation were negligible because laws against such were upheld by the police. Were!!
Steve, Sutton,
So the murderers have their identities and whereabouts protected but an innocent witness has to give his or her name and address to the Defence so they and their families can be intimidated or killed. Anyone think this loads the dice in favour of creeps?
Annabelle, Tavistock, UK
If the witness is a gang member how reliable is the evidence anyway? It could only be part of the evidence. If the witness is an old lady of good character the only person who benefits from knowing is the violent criminal who can threaten the family. Court can establish mental and visual health.
Bernard, Halifax, UK
Teresa, I havn't.seen it yet but will view it with an open mind. It's fiction but I assume well researched?
In the same spirit can I invite you to check the FBI websites
www.fbi.gov/page2/april07/gotti040207.htm
www.fbi.gov/page2/feb08/mafia_takedown020708.html
Nospace for more sources
John Goode, Welwyn Garden City, UK
Just a few points; the objective is not to ensure the conviction of the guilty, but must by its nature, only aid in conviction. only the word "fair" is 'absolute' therefore a balance IS possible between merely 'giving confidence' and ensuring a correct conviction.witnesses wont be anon to the judge.
david mills, Belfast, United Kingdom
What's it like living in an ivory tower?
Mike, Liverpool, UK
M Wilson of Bidache in France says: "I have nothing against fair trials as long as those on trial are hanged after the proceedings."
What a brilliant comment. Those on trial (as opposed to those found guilty) should be hanged regardless of the offence. Then we'd have justice.
John, London,
Dave from Broxbourne,
Generally, witnesses in family courts do NOT have anonymity - their identities are made known to all those involved in the case. They can be, and are, vigorously cross examined. I know - I have been doing just that for many years as a child care solicitor.
Stephen Mannering, Nottingham,
It is time for Police/CPS to prosecute without exception all those arrested who make any threats to the police themselves, complainants or witnesses. The warnings given in the past for such behaviour should stop. Prosecute, and such a criminal record will protect future witnesses from crims/ lawyers
alan, worcs, UK
Right to a fair trial.
Not in the secret family courts.
Just hearsay and the word of a social worker and you are in prison for nothing.
I witnessed the corruption all the way to Lord Justices, and now know the truth.
Lady Portia, London, UK
The Courts seem to have their reasoning right but what many ignore is that the European Convention merely sets out minimum rights. Magna Carta and the Bill of rights are the basis of our common law and are stronger by far than the Euro Convention. We should not water down our rights at all.
Shaun O'Connell, Portsmouth, UK
In some countries, intimidation of witnesses is routinely used to sabotage trials. In Trinidad it is such a serious problem that many trials are aborted through witnesses refusing to testify, and those who do so are often murdered pre trial. How does the state deal with murderers in these situations
Rodney, St. George, Barbados
It is foolish to think the court would allow an anomymous
witness to lie under cross and they would be challenged as usual. . A witnesses bona fides would have had to have been made known to the court and any possible corruption of his evidence to the jury also. Just as now.
Richard, Peckham, UK
Next time I intend to look the other way.
JB, Nantwich,
The European Convention was not handed down by God on High. When found wanting - as it is in these circumstances - it can be amended. Or denounced. As to the idea that Judges will 'never' allow crucial witnesses to be anonynmous - well they DID DO for years up to Court of Appeal level. Rightly
Rhys Burriss, Lisbon, Portugal
I can envisage an anonymous witness providing false evidence against an innocent party, because they are so terrified of the person they know to be the real culprit.
Chris W, Kendal,
Well said. The House of Lords is made up of people who are experts in the issue of justice. It is plainly daft to ignore what they say. I get the impression however that this govermnet is all too eager to do so.
Simon, Birmingham, Uk
Even to the simplest of individual it must obvious anonymity can lead to unsafe verdicts. As for the hanging comment, there have been far too many "safe" guilty verdicts later found wrong to ever justify its use. Think cot deaths!
mike gee, bournemouth, uk
In real life, criminal gangs can control a local area and remain invulnerable to the law. Even witness relocation imposes unacceptable hardship. Anonymous evidence does contravene Common Law, but I have yet to see an acceptable alternative. Dirty Harry, where are you?
Terry Hamblin, Bournemouth,
John, you clearly have not seen "The Wire"! It is very difficult to get a wire "up" on any "detail". Also, "gangs" are only to aware of the possibility that they may be tapped and don't disucss criminal activity on the phones!
Teresa, Belfast , Antrim
The problem stems from the inability of witnesses to defend themselves. The criminals are armed, and the witnesses are defenceless. There are too many of them for the police to protect.
Until people are given the means to defend themselves, we will lose more and more of our civil liberties.
Bishop Hill, Scotland,
it seems worrying that this anonymity has been allowed in recent years
joe, london,
I have nothing against fair trials as long as those on trial are hanged after the proceedings.
M Wilson, Bidache, france
Agreed David. We should not be eroding a basic civil right when there are other alternatives. Why don't we look at how the FBI successfully took down the Mafia. They used witness relocation and intercept evidence. For gangs in this mobile phone age intercept evidence could be critical
John Goode, Welwyn Garden City, UK
One solution might be to give defendants a choice - they may insist on knowing witnesses' identity or may waive that right.. But if any identified witness or their family is then threatened or harmed, the accused is automatically held responsible unless they can prove their innocence.
Ross, Germany,
Perhaps it would be timely to review the issue of secrecy surrounding family law courts. Without putting children at risk it should be explored how this is being abused by some legal professionals who plunder the legal aid system. There again this would rely on the Law Lords in Walter Mitty Land!
Dave Farmer, Broxbourne, England
Agree completely. It is impossible to guarantee a verdicts safety when evidence is given anonymously. The idea is ludicrous. The defence cannot cross examine, and how do they then contest this evidence, as they have a fundamental right to do? Magna Carta dealt with this sort of issue!
Jacqueline Dalrymple, Robigana, Australia