Witness Anonymity Under the Spotlight
(Article courtesy of Barrister Magazine http://www.barristermagazine.com/)

The Law Lords ruling in the case of R v Davis in June 2008 reflects the long-held common law tenet that a defendant has a right to know and see his accusers, prompted a flurry of legislative activity. The introduction of emergency legislation in the shape of the Criminal Evidence (Witness Anonymity) Act 2008 saw vigorous debate within the Houses of Parliament and the media. Now that we can reflect on the Act and consider it with the benefit of a little time and distance, what are the implications for our criminal justice system?

Basic Tenets

The right of every defendant to know and see his accusers has been a pillar of
our justice system because it prevents those with a grudge from falsely accusing defendants with impunity. However, recent years have seen increased use of
protection measures, outside of a statutory context for the vulnerable, such as pseudonyms, voice distortion or screens in court when it is thought that key
witnesses may be at risk of retribution. This has become particularly prevalent in
cases which have emerged from police campaigns which target gun crime and gang culture - Operation Trident is one such example.

The police argue that witness protection measures now form an indispensable
part of their work, enabling vulnerable witnesses to come forward in communities where they would otherwise face retribution. However, the concern which was considered in R v Davis was that these protective measures were so effective that rigorous cross-examination became almost impossible. The defendants legal team was unable to peruse a key plank of their clients defence. Their Lordships agreed that the defence had been gravely impeded and that the conviction was unsafe.

The question then for Parliament, and for all those concerned about our legal system, is how to balance a defendants right to know who is accusing them, which has an umbilical connection to the presumption of innocence, against the need to protect witnesses who, with justification, fear for their safety. This is a delicate balance and one which must be subject to ongoing review.

Legislation

The Bar Council supports the Governments view that if there is a problem with witness intimidation it is one which must be addressed by statute. The gradual creep of the availability of witness protection measures had however resulted in a situation in which their use was beginning to become commonplace. This trend should be arrested, and instead a statutory procedure must be used. Applications for witness protection measures must be dealt with in Court with R v Davis[200 8] UKHL 36 judges ensuring that a consistent approach is taken to evaluate sensitive and contentious applications.

The Criminal Evidence (Witness Anonymity) Act 2008, which received Royal Assent in July, aimed to put in place a framework whereby witness anonymity orders could be granted by the court. The Bar Council, together with the Criminal Bar Association, had significant concerns about any blanket granting of such orders. We therefore lobbied to ensure, amongst other things, that the name of the witness who was subject to a potential anonymity application be supplied to the judge. This measure, which was adopted in the Bill, is an important one; it allows the judge, and not simply one party, to determine whether the witnesss identity should be disclosed to the legal team representing the adverse party in
the case, be it prosecution or defence.

The Bar Council was also concerned that there are potential dangers if a criminal conviction were to rest solely and exclusively on the basis of evidence given by an anonymous witness. The Act in the form in which it received Royal Assent included a provision concerning this issue. In granting an anonymity order a judge must have regard to it.

The Act is subject to a sunset clause. No witness anonymity orders can be made under the provisions of the Act after 31 December 2009. The Act will be
reconsidered by Parliament when it debates the Law Reform, Victims and Witnesses Bill 2009, which is due to be introduced in this years Queens Speech
on 3 December 2008. There will not have been much time to evaluate the essons learned from Julys emergency legislation. This new Bill will give vulnerable and intimidated witnesses, in particular in respect of gang violence, the best possible protection, right from the early stages of the criminal justice
process. While the details of the Bill have not yet been revealed, the Bar Council will be taking a close interest in this piece of legislation. One of our
duties, as the representative body for all barristers across England and Wales, is to ensure that the criminal justice system remains robust, so that it works in the
|public interest and that trials are fair. Fairness means from both the Prosecution and the Defence perspective.

Public Interest

Barristers are public servants who live in the communities they serve, and who take their responsibilities to those they represent seriously. I represent a
profession which is hard-working and committed to the highest standards of advocacy. Our criminal justice system, of which we are as a nation so rightly
proud, rests in part, on the shoulders of barristers who work long hours on behalf of those they represent. Their clients are often among societys most vulnerable.  The fearless advocate representing the accused in the face of the State is, in our adversarial system, a sine qua non of a fair and just system of justice.

A fair trial is at the heart of a civilised society, and the Bar Council has always said that barristers must be properly qualified, trained and properly remunerated.
Cases which involve anonymous witnesses are often long, complex trials which Require barristers with many years of expertise to conduct them. It is vital that
these cases are tried within the right legislative framework, and that the professionals, be they barristers or solicitors, conducting the case are able to
carry out their duties, and exercise professional judgment, within a system where the legal aid budget is appropriately set. The Criminal Evidence (Witness Anonymity) Act 2008 is by no means a straightforward piece of legislation. I have no doubt that a body of case law will develop around it and its successor. Work will be required by barristers and solicitors, evaluation will be required of yet more evidence, with written and oral submissions. There are legal aid budgetary
implications for every single piece of criminal legislation. I am not aware of any investment in the Legal Aid system consequent upon this, nor other recent
pieces of legislation. Somehow barristers and solicitors are expected to carry on.

Investment in the legal aid system must go hand in hand with legislation and procedural rules, which ensure that cases run smoothly; vulnerable witnesses
are protected; and that the justice system works in the public interest. What use can optimal legislative arrangements for a criminal justice system be, if quality advocates are deterred from such public service by a yawning gulf between the rewards of public service and private practice? And what does it say as a society about our values if the interests of those accused of a crime by the state are set apart from those who can afford private representation by the demands of the exchequer?

Witness anonymity has caught the medias attention and rightly so: it is a part of the justice system and affects some of the most serious and complicated criminal cases. However, it is important to remember that criminal barristers are doing vital work on societys behalf; they are the unsung heroes of the hour, putting in long hours for little thanks both as prosecutors as well as defence advocates. As we look to the future, with a new parliamentary session in sight as well as a General Election on the cards let us not forget those barristers and solicitors who are working tirelessly behind the scenes, for little economic reward, in the interest of the greater good.

Tim Dutton QC
Chairman
Bar Council