Anonymous Witnesses in England and Wales: Charting a Course from Strasbourg?

Published date01 December 2009
DOI10.1350/jcla.2009.73.6.604
Date01 December 2009
Subject MatterArticle
Anonymous Witnesses in
England and Wales: Charting a
Course from Strasbourg?
Jonathan Doak*and Rebecca Huxley-Binns
Abstract The use of anonymous testimony in England and Wales has
recently been the subject of a number of high-prof‌ile appellate decisions
and legislative intervention. As the law currently stands, it is permissible
for the criminal courts to receive such testimony, subject to certain safe-
guards. This article evaluates the position against the threshold for an-
onymous evidence laid down by the European Court of Human Rights. It
is argued that such evidence is too readily admissible under the current
legislative framework. As such, the rules regulating the use of anonymous
testimony should be amended so that they comply fully with the fair trial
rights of the accused.
Keywords Anonymity; Witnesses; Intimidation; Fair trial; Due
process
Recent years have witnessed considerably greater attention being paid
to the problems posed by witness intimidation.1Many jurisdictions have
rolled out witness protection programmes and introduced a range of
measures to protect witnesses when giving evidence in court.2Some,
including England and Wales, make provision for fearful witnesses to
give their testimony in hearsay form, thus avoiding the need to come to
court altogether.3Occasionally, particularly in cases involving young
people and sexual offences, identities of victims and witnesses may be
withheld from the public record and restrictions may be placed on media
* Reader in Law, Nottingham Law School, Nottingham Trent University; e-mail:
jonathan.doak@ntu.ac.uk.
Senior Lecturer in Law, Nottingham Law School, Nottingham Trent University;
e-mail: rebecca.huxleybinns@ntu.ac.uk.
1 Until recently, there was little empirical evidence as to how widespread witness
intimidation may be. However, in 2006, the Home Off‌ice noted that the number
of cases for perverting the course of justice (which includes witness intimidation)
rose by over 30 per cent between 2000 and 2005 (Home Off‌ice, Working with
Intimidated Witnesses (2006)). Drawing on the f‌indings of the 1998 British Crime
Survey, Tarling et al.concluded that intimidation occurs in just under 10 per cent
of reported crime and 20 per cent of unreported crime: R. Tarling, L. Dowds and
T. Budd, Victim and Witness Intimidation: Findings from the British Crime Survey (Home
Off‌ice: London, 2001). Angle et al.’s 2002 survey found that a quarter of all
witnesses felt intimidated by an individual, which was actually higher than the 21
per cent who reported feeling intimidated by the process of giving evidence: H.
Angle, S. Malam and C. Carey, Witness Satisfaction: Findings from the Witness
Satisfaction Survey 2002 (Home Off‌ice: London, 2003).
2 In England and Wales, a range of special measures, including the use of screens
and televised testimony are available in certain circumstances under Pt II of the
3 See Criminal Justice Act 2003, s. 116(2)(e) and the recent Court of Appeal
decision in R v Horncastle [2009] EWCA Crim 964.
508 The Journal of Criminal Law (2009) 73 JCL 508–529
doi:10.1350/jcla.2009.73.6.604
reporting.4Whilst many of these measures are contentious in their own
right, none has caused quite a stir as the receipt of anonymous evidence
where the identity of an opposing witness is withheld from the
defence.
In the view of some observers, the granting of anonymity to prosecu-
tion witnesses is nothing short of an affront to the principle of open
justice. The right of the accused to confront opposing witnesses is said
to incorporate dignitarian, symbolic and instrumental purposes, includ-
ing assisting in the ascertainment of truth, ensuring greater openness,
and offering the defendant a more effective and fairer means of chal-
lenging the prosecutions case.5The dangers of anonymous evidence are
said to include secrecy,6the inability of the accused to challenge oppos-
ing witnesses,7a decline in public conf‌idence,8a shift toward anti-
democratic values;9and the risk of a slippery slope toward further
curtailment of fair trial rights.10 Such disquiet is unsurprising; the prin-
ciple of orality, which lies at the heart of the common law trial, requires
that evidence is given live in court by the witness in person. However, by
the same token, it should be borne in mind that, with the recent rise in
serious organised and gang-related crime, many witnesses will be re-
luctant to testify unless they are provided with a reassurance that their
identity will be concealed from the accused. There is a clear policy
incentive for protecting the identities of informers in such cases;11 and
anonymity is one possible means of achieving that. Moreover, a failure
to offer a suff‌icient level of protection to witnesses at risk of intimidation
could, in certain cases, constitute a breach of their rights under Articles
2, 3 and 8 of the European Convention on Human Rights, as well as a
plethora of international soft-law standards.12
The juxtaposition between these two sets of objectives has recently
been catapulted to the forefront of political and legal debates in England
and Wales, following the decision of the House of Lords in R vDavis and
Others13 in April 2008. In response, the government rushed through
emergency legislation in the form of the Criminal Evidence (Witness
4 See further A. Gillespie and V. Bettinson, Preventing Secondary Victimisation
through Anonymity (2007) 70 MLR 114.
5 See e.g. G. Marcus, Secret Witnesses [1990] PL 207; S. Enright, The Anonymous
Witness (1996) 146 NLJ 1032; R. Friedman, Face to Face: Rediscovering the
Right to Confront Prosecution Witnesses (2004) 8 E & P 1; W. OBrian, The Right
of Confrontation: US and European Perspectives (2005) 121 LQR 481.
6 See e.g. R. Costigan and P. Thomas, Anonymous Witnesses (2000) 51 NILQ 326;
S. Burns, Blind Shots at a Hidden Target (2008) 158 NLJ 1091; D. Lusty,
Anonymous Accusers: An Historical and Comparative Analysis of Secret
Witnesses in Criminal Trials (2002) 24 Sydney Law Review 361; Justice, Secret
Evidence (Justice: London, 2009).
7 See e.g. OBrian, above n. 5; Lusty, above n. 6; Burns, above n. 6.
8 Costigan and Thomas, above n. 6.
9 Ibid.
10 See M. Swift QC, Witness anonymity: a slippery slope, The Times, 27 June 2008.
See also Lusty, above n. 6.
11 See comments of Edmund-Davies LJ in Dv NSPCC [1978] AC 171 at 176.
12 See J. Doak, Victims’ Rights, Human Rights and Criminal Justice: Reconceiving the Role of
Third Parties (Hart: Oxford, 2008) ch. 2.
Anonymous Witnesses in England and Wales: Charting a Course from Strasbourg?
509

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT