Critchley Hall News
Secret Witnesses, We Don't Need Them Now
Articles appear from time to time which will be of interest. This article is by Geoffrey Robertson QC and is posted with his kind permission.
Anonymous Witnesses
This week, Parliament will be asked to make the most serious assault on liberty within living memory. The Witness Anonymity Bill abolishes a defendant’s right to know the identity of his accuser. It will result in hundreds (in due course, thousands) of unfair trials, producing some wrongful convictions and a few wrongful acquittals. The principles of open justice and fair trial, which this nation has contributed to the lexicon of human rights, are gutted by this panic stricken measure, which encourages courts, in criminal cases of any kind, to suppress the identity of crucial witnesses.
The bill is being rushed through before the summer recess to empower all criminal courts and army court martials to receive voice-distorted evidence from witnesses whose identity the defendant and his lawyers will never be allowed to know and whose faces they will never see. Henceforth defendants can be imprisoned for life solely on secret evidence they can never test for truth by cross-examination so as to reveal eg. a witness’s malice or personal animosity, spiteful or score settling motives or their reputation for telling lies or their devious relationships with the police. Such witnesses will now be handed a perjurous charter, by way of a statutory “anonymity order” that will keep their identity forever hidden from the defendant and his lawyers and of course from the press and hence from the public.
The bill’s effect is to place the trial process in the hands of the police. It is they who will offer anonymity in the course of most investigations into violent crime and the prosecution will in consequence be permitted to make an application in secret to the trial judge, in the absence of the defence, to claim that witnesses will not testify if an anonymity order is not made. The judge will have no way of sensibly weighing this claim, because the defence will not be pleasant to challenge it. On many occasions at these secret hearings, judges will give in to the prosecution argument but without anonymity orders the trial cannot proceed. The Bill does not confine such orders to cases of murder or terrorism: they will frequently be granted, I would expect, in cases of sexual assault and affray and sometimes to malicious informants who enlist police to arrest disliked neighbours or ex-partners on allegations about their commission of less serious crimes.
There are no safeguards for the citizen in this bill. It enjoins judges to make anonymity orders if the witness is important and the police claim (usually by hearsay evidence) that they would otherwise refuse to testify. The prosecution does not even have to prove that the witness has been intimidated or fears any kind of mental or physical threat – any “harm to the public interest” is sufficient – a formula which might be used to cover up questionable police operations. There is no safeguard against the defendant being convicted entirely upon the evidence of an anonymous witness – it is a measure of the contempt for the prospect of justice miscarrying that the drafters of this statute do not require judges to ensure that there is independent evidence pointing to guilt or even to give a specific warning to juries about the dangers of convicting upon the word of a witness who cannot be effectively cross-examined. There is no right to appeal against the grant of an anonymity order.
The bill is prefaced by an incorrect statement from Jack Straw that it conforms with the European Convention on Human Rights. It does not: Article 6 of the Convention says in terms that “everyone charged with a criminal offence” has, at minimum, a right “to examine or have examined witnesses against him” – and you cannot “examine” a distorted voice. The Sixth Amendment of the US Constitution enshrines for all Americans the right to confront their accusers. These provisions derived, of course, from English precedents which go back to the revulsion against the anonymous witness who secured the wrongful conviction of Sir Walter Ralegh. It was the great achievement of the long Parliament in 1641 to abolish the court of Star Chamber with its hated reliance upon anonymous witnesses and torture and in turn of “free-born John” Lilburne, the Leveller leader, who insisted that the proceedings at his treason trial be heard in open court. For centuries thereafter, this nation could boast of the fairness of its trials compared with countries in Europe where, as Jeremy Bentham pointed out, evidence was heard beneath a “veil of secrecy”, leaving the door “wide open to mendacity, falsehood and partiality”.
The truth of Bentham’s comment was illustrated when the war crimes court in the Hague briefly permitted anonymity: under its cloak a witness was permitted to testify that he had seen the Serb defendant kill 30 muslims, including the witness’s own father. This convincing evidence was only refuted months later, when his father turned up, alive and well, and the witness confessed he had been paid to lie by politicians keen to exaggerate Serbian crimes. Defence witnesses may be equally untrustworthy when shrouded in secrecy: some years ago a witness in a drugs trial at the Old Bailey hoodwinked the court into believing that he was a senior official in a friendly secret service, thus procuring the acquittal of his “agent”, the defendant Howard Marks. The bill gives the defence the power to apply for anonymity orders for its witnesses as well, so wrongful acquittals will be on the cards as well.
The bill is the result of a panic engendered by police after last month’s decision in R v Davis when the law Lords ruled, unanimously, that under the principles of English common law and of Article 6 of the European Convention, a defendant could not be convicted “solely or to a decisive extent upon the testimony of one or more anonymous witnesses”. This should never have been doubted: as a matter of common sense, no trial can be fair if critical evidence is incapable of challenge. However, as a result of the misapplication of a precedent which had been permitted non crucial evidence to be given anonymously, trial judges had in the last few years been prevailed upon by prosecutors to allow anonymity for more important witnesses. In 2006 the Court of Appeal in the Davis case erroneously endorsed this unlawful practice, which led to an immediate flood of applications from the police – some 600 are said to have been granted before the House of Lords decision in Davis ruled them invalid. One unedifying reason for rushing the bill through this week is to validate, retrospectively, orders that were unlawful when they were made.
That so many such orders were made is undoubtedly a matter of regret – but not a matter for regret about the common laws historic protection for fair trial. What is regrettable is that police were encouraged – by the CPS, which should have known better – to make routine promises of anonymity, and that so many judges allowed themselves to be so readily induced to grant them. It is a matter of greatest regret that the media, which should be dubbed the “watchdog of open justice” in the days when journalists like Tim Crook and David Leigh went to court to strike down secrecy orders, has so utterly failed to protest against, or even to report, these recent secrecy developments. As for the Bar Council, it must forget about the distortions of Criminal Justice on the BBC and seriously consider the ethical duties of its members if criminal justice in our courts is to be distorted by this legislation. Surely barristers have a duty not to lend the credibility of their presence to a court which is conducting a blatantly unfair trial: should they, in conscience, then appear and lend credibility at a trial at which they cannot cross-examine the sole or decisive prosecution witness? Police claim that they cannot secure convictions without anonymity orders because of an increase in witness intimidation. But this is a problem as old as adversary trial itself. It was more rife when the Crays and Richardsons terrorized the East End – yet they were convicted without resort to secret witnesses. At the height of intimidation in Northern Ireland, Lord Gardner, Jack Straw’s greatest of predecessors when Lord Chancellor – rejected a proposal for witness anonymity for the very reason that it infringed the right to fair trial. In the US and Italy today, the threat of reprisals from mafia gangs is minimised by effective witness protection schemes. The cost of the Witness Anonymity Bill will be massive, in terms of expenditure upon statutory anonymity applications, on “special advocates” and on unravelling the miscarriages of justice that will inevitably occur: the money would be much better spent on protecting witnesses rather than anonymising them. Indeed, citizens who courageously do their duty and testify against dangerous suspects will be better protected by a system that provides round the clock security rather than a court order that will sometimes – through corruption or laziness – give their names away.
Police difficulties in obtaining testimony from frightened observers or associates of criminal gangs must not be underestimated, but the importance of convicting dangerous offenders does not justify abandoning a common law rule which has come to embody the fundamental human right to a fair trial. Other common law countries – Zimbabwe comes to mind – will be all too keen to follow the UK’s lead, permitting anonymous evidence on treason charges that may carry the death penalty. Our standing to insist on proper standards for trials abroad will be seriously compromised. The greatest irony is that the bill says that an order should be granted only when “consistent with the defendant receiving a fair trial”. These are infamously weasel words (President Bush said that Guantanamo detainees should receive treatment “consistent with” the Geneva Convention, and they were water-boarded). The truth, as the law lords pointed out in Davis is that anonymity for decisive witnesses is never consistent with fair trial, and a bill that aims to legitimise and encourage it is a dangerous nonsense.
Geofffrey Robertson QC is author of Media Law and The Justice Game.
Post Script the Criminal Evidence (Witness Anonymity) Act received Royal Assent on 21 July 2008