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Straw publishes anonymity bill


6:40 pm - July 3rd 2008

by Unity    


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The government has now published the text of its emergency Criminal Evidence (Anonymity Bill) in response to a recent ruling by the Law Lords that the use of anonymous witnesses under existing common law provisions is prejudicial and breaches the defendent’s right to a fair trial.
To give a quick analysis of the main points, the good news is that it will be the judiciary and not the Home Secretary or Minister of Justice (Straw) who will decide whether to grant an anonymity order.

And the bad news is…

1. While the Bill allows for applications for witness anonymity orders from both prosecution and defence, the defence will be required to disclose the identity of the witness to the prosecution, but not vice versa. This still leaves the defence with no means of challenging the credibility of an anonymous witness, which the issue that the Law Lords deemed to be unfair.

2. One of the conditions for granting an order is that it appears to the court that the testimony of a witness will be important and that they will not give evidence if not granted anonymity but not whether their attempt to place conditions on giving evidence is reasonable, which is the standard test of conduct in more legal proceedings.

3. The credibility of an anonymous witness in terms of any tendency to be dishonest or any motive for dishonesty in the context of the case will be determined by a judge at the time they consider whether or not to grant an anonymity order, and not by the jury. It will also be based only on information provided by the prosecution that cannot be disclosed to or challenged by the defence, because this would disclose the identity of the witness.

4. Although the Bill gives judges the discretion to warn the jury not to see the granting of an anonymity order as proof of the reliability of a witness’s testimony, the mere fact that the credibility of the witness is a factor in the decision to grant an anonymity order will inevitably be taken by juries as an indication that their testimony can be relied upon unless the warning given by the judge is so strong as to fatally undermine the prosecution case – and you can imagine what kind of response that would provoke.

5. As drafted, the Bill does require the prosecution to make a full disclosure of a witnesses prior criminal record or any other information that might be relevant to their credibility when applying for an anonymity order. This could allow prosecutors to disclose only information only if this is unavoidable, i.e. specifically relevant to the case, when applying for an anonymity order, leaving the application process wide open to abuse.

Several lawyers have noted, since the Law Lords’ ruling, that if the evidence of an anonymous witness is critical to the prosecution of a case then anything which prevents the defence from putting the credibility of the witness to the test and carrying out a full cross examination is unfair, prejudicial and a breach of the right to a fair trial. The Bill does nothing at all to resolve that situation and, if anything, makes matters worse by making explicit the unfair disadvantages it imposes on defendants.

In short, its just what we’ve come to expect from emergency legislation – a badly conceived and prejudicial mess in which political expediency takes precedence over civil liberties.

Now go catch-up with Sunny’s updates on today’s cleaner’s strike and David Davis’s campaign…

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About the author
'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Story Filed Under: Crime ,News ,Realpolitik

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Reader comments


1. Shawcross

More pure fascism from Labour – where’s John B got to? He wimped out of giving me a straight answer to my long response on the “Liberals should be fighting Tories” thread.

2. Michael Clarke

Ridiculous, what’s the point of creating legislation which is undoubtably illegal? Seems like Brown is doing a Bush by playing cat and mouse with the judiciary over our civil liberties.

Even if you approve of a bill that breaches the right to a fair trial, this will be shot down by the Law Lords and/or the European Court of Human Rights.

Michael – that’s the opinion I’ve been hearing from human rights lawyers – that nothing short of a derogation from Article 6(3)(d) of ECHR will cover this…

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

And I’m not sure that article 6 can be derogated other than in a national emergency.

Clearly, the conditions aren’t the same if the defence is required to disclose the identity of an anonymous witness to the prosecution but not vice versa.

What Straw is trying to do is draw a very narrow definition of ‘the same conditions’ that is explicitly limited to what can be visibly seen in the court room and which excludes any questions of information asymmetry between prosecution and defence.

4. Paul Luton

Well it is all very well playing legalistic games but surely a bit of asymmetry is better than gangs of thugs getting away with murder (literally) by intimidating potential witnesses. A case of not confusing the Law with Justice ?

5. Michael Clarke

@ Unity

Exactly, a more suitable compromise would be to allow the defense team to know the identity of the witness but not the defendant him/herself. This could be implemented by holding members of a defendants legal team in contempt of court and removing their license to practice law if the revealed the witnesses identity to their client.

However, if the ECHR provides the right of a defendant to represent him/her-self in court (like the US does), then such a compromise would still be deemed illegal. Additionally, it would still restrict the defense because if a witness held a grudge against the defendant or had had a past relationship with the defendant, it may be the case that only the defendant him/her-self would have knowledge of this. After all, the defense team can not know all the past and present acquaintances of their client.

Unfortunately, there is no easy answer. It would appear that for the moment, the best option would be to shore up investment in witness protection schemes. However, how many witnesses would be prepared to make the huge sacrifice of having to go into witness protection to put someone behind bars?

If there is the likelihood, or even remote possibility, of someone being intimidated or attacked for being a witness then that is entirely why the police exist in this situation…to protect witnesses as they would any other person threatened. The trouble is that perhaps they haven’t got the resources to do this kind of secure monitoring and protection of individuals over long periods of time.

It’s typical of a Labour government to sit there and come up with truly bizarre legislation to cover for the fact they simply do not want to fund and resource our police forces appropriately, at least this is my view.

Extraordinary ’emergency’ powers like this bills provides are brought in to compensate for earlier procedural failure.

If the case being prosecuted is so tenuous that it hangs on verbal evidence we should ask why it is being brought in the first place.

Surely more emphasis should be placed on detection and prevention than on unfairly stitching up the rules of hearing because politicians are putting pressure on others to do their job for them and wasting everybody’s time in the process.

While I understand the concerns here, and am uneasy about any emergency legislation which is invariably hasty and ill-thought out, one thing puzzles me. During most court cases the jury are not told of the defendant’s previous criminal convictions (if any) the theory being that the case should be judged on the evidence, not on the character of the accused. Why then shouldn’t it be the same for witnesses; that we judge them on what they say, rather than who they are? I’m not trying to be funny, just curious, and trying to get my head around this.

9. Paul Luton

Lee Griffin – “It’s typical of a Labour government to sit there and come up with truly bizarre legislation to cover for the fact they simply do not want to fund and resource our police forces appropriately” but as Michael pointed out before police protection is not only expensive for the police (ie the citizen) but likely to be restrictive, and hence onerous, for the protectee.

Quinn – our trust in what people say depends to some extent on who they are. An anonymous witness with a criminal record for perjury might lack credibility.

Yes, it may be restrictive, but it also doesn’t mean people have to accept the statements of a complete unknown. Is this really the best solution? Others above have suggested quite the opposite.

Why then shouldn’t it be the same for witnesses; that we judge them on what they say, rather than who they are?

Because its not ‘we’ – a jury – making that judgment – it will be for a judge sitting alone to decide that under conditions in which the defence cannot subject the credibility of the witness to cross-examination.

You’re right that, generally, the introduction of information on prior convictions is not allowed in relation to the defendant but when it comes to witnesses the defence can draw that information out in cross -examination if its relevant to their credibility, in order that the jury can fairly make its assessment of whether or not to accept the witnesses testimony in view of the relevant facts, subject only to the judge’s view of the admissibility of such evidence.

That simply cannot happen under the provisions of this bill and its that that’s prejudicial in the extreme.

Paul:

The defendent is still presumed innocent until proven guilty beyond reasonable doubt and that is the touchstone of justice in a free and democratic society.

It may not play well on the front page of the Daily Mail, but I and many others, including the vast majority of the legal profession, I strongly suspect, still very much accept and adhere to Blackstone’s formulation that it is “better that ten guilty persons escape than that one innocent suffer”.

If you look closely enough, you’ll find that principle expressed in the Bible (Genesis 18, 23-32) in which Abraham entreats Jehovah to spare the City of Sodom if but ten righteous men can be found living in it.

It was also used and expanded on by the great medieval Jewish philosopher, Mamonides, who argued that “”it is better and more satisfactory to acquit a thousand guilty persons than to put a single innocent one to death.”

You’ll find a variation in Fortescue’s De Laudibus Legum Angliae (c. 1470) in which the ratio given is the acquittal of twenty guilty to one innocent and the same 10 to 1 ratio cited by Blackstone was also cited by Increase Mather during the Salem witch trials of 1692, while Benjamin Franklin thought 100 to 1 to be a more fitting expression of the principle.

By way of contrast Bismark is supposed to have framed it in opposite terms as “it is better that ten innocent men suffer than one guilty man escape;” and Pol Pot is claimed to have expressed a similar sentiment.

So, on one side we have the Bible, Mamonides, Fortescue, Mather, Franklin and Blackstone and on the other, perhaps apocryphally, Bismark and Pol Pot.

I don’t know about anyone else but, unlike the government, that ain’t a tough call from where I’m sitting – I’ll take Blackstone et al.

I’m sorry Unity, perhaps I am being especially obtuse (quite likely), but while you have perfectly explained the differences pertaining to witnesses and defendants under the current system, I don’t see any intrinsic reason why a witness’s credibility can be questioned whilst defendant’s can’t. Contrariwise, if a defendant’s credibility is not relevant, why should a witness’s be?

Michael

Ridiculous, what’s the point of creating legislation which is undoubtably illegal?

Expediency. Makes them look like they’re doing something. A few court battles and years later the courts will make a “declaration of incompatibility.” Then the politicians can blame judges again.

Unity

And I’m not sure that article 6 can be derogated other than in a national emergency.

Quite right. Article 15 ECHR:

In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

But of course they don’t need to derogate.

You may also be interested in nguitly men.

14. Andrew Adams

I was on jury service earlier this year and the defendent’s previous convictions were certainly mentioned. I was thinking the law must have been changed.

15. Robin Levett

@Quinn (#12):

Defendant’s convictions are kept out because it is generally accepted that the jury will often believe that propensity is probative of guilt. If, however, the defendant puts credit in issue – if he says “believe me, because the prosecution witnesses are lying” – his record does go in.

On a more general point – the fact that the defence can never keep its witnesses anonymous from the prosecution means that witness intimidation by Crown witnesses remains unimpeded by this legislation; and anyone who thinks that in the precise circumstances where defence intimidation is a major issue – gang disputes – prosecution intimidation (by gang witnesses and their associates) wouldn’t take place is living in cloud-cuckoo land.

(First-timer here – found you googling for this issue)

Andrew:

IIRC, prior convictions can be referenced in court in cross examination if directly relevant to the case at hand.

Information about a prior conviction is admissible if it can be shown to have a material connection to the case before the court.

So, for example, in a defendant is up on a stranger rape charge the prosecution couldn’t just lob in a prior for a date rape and invite the jury to infer that because the defendant has a prior conviction for rape they must be guilty as charged. If the prior were for another stranger rape and information from the prior case/conviction would establish a particular modus operandi or signature that would show that the two cases are connected to the same individual, then it may be possible to introduce that information because its relevant to the case at hand as long its not just generally prejudicial.

UKL:

Ah yes, Volokh’s essay – haven’t seen it for a while but it is very good.

Robin:

Thanks – I knew there was something more than direct material relevance that could get priors in.

18. Robin Levett

@Unity (#17):

In fact, I was incomplete/wrong – or, rather, not up to date.

Evidence of prior convictions (plural) for the same offence (not just similar fact) is now (subject of course to the Court giving leave) admissible from the start, and the test is merely propensity – only if there is simply a single previous conviction will the Court need to look at whether the facts are similar. Attack the prosecution’s credit, however, and it all goes in, whatever the previous offence.

I seem to find myself on the opposite side of the argument to most of the people I usually agree with on this one. However, IANAL.

I’m considered, like Paul Luton, that the law as it stands following the ruling swings the balance too much in favour of the defendant. Some kind of modification is needed, and it looks like that’s what Straw is trying to do.

The legal “balance” is perfectly fine, it’s the incapability of police and security forces to protect those that they want to testify that is the problem. The lawful balance is where it should be.

Unity @16 is referring to Part II of the Criminal Justice Act 2003.

22. Robin Levett

Hmm; noted from today’s Independent – of the 550 trials where anonymous evidence orders have been made, 350 remain live – and of those only 50 involve non-police witnesses giving anonymous evidence.

So the claim that anonymous witness orders are necessary to persuade members of the public to come forward is exposed as a “shading” of the truth. In most cases, it’s to persuade police officers to do their job. (Yes, I know that being a policeman dealing with gang crime is a dangerous life – so don’t do it if unless you are prepared to give evidence at the end of it).


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