An old problem
The problem of witness intimidation is as old as justice itself. However, in a judgment last week which today led to the abandoning of a £6 million murder trial, the Law Lords explained that the principle that a defendant should be confronted by his accusers to cross-examine and challenge originates in ancient Rome and remains a principle of English law today.
I thought you might like to see how one of the judges, Lord Rodger of Earlsferry put the issue in an historical context.
My Lords, When Cicero was intent on prosecuting Verres for his reign of terror in Sicily, highly-placed henchmen of Verres threatened "the fearful and oppressed Sicilian witnesses" with dire consequences if they gave evidence against him. Two thousand years later, still in Sicily, prosecutions of Mafia bosses have been bedevilled by the prevailing atmosphere of intimidation, with its insidious counterpart, the code of silence, omertà. The same goes for prosecutions of Camorra clan members in Campania and drug traffickers in Colombia. Hollywood has made everyone familiar with the problem of witness intimidation in the United States, whether today or in former times. For many years the wall of silence in London's East End frustrated attempts to prosecute the Kray Twins, until they were taken into custody in 1968 and people felt able to come forward to give evidence. In 1996 worries about the effects of witness intimidation led Strathclyde Police to introduce a Witness Protection Programme.
So what do people think about this issue today - particularly in light of the increasing number of gang-related prosecutions that rely on evidence from anonymous witnesses?
I am sure that many will recognise that some of the most vicious criminals can escape justice by threatening those who might give evidence against them.
But the Law Lords do have a point, don't they? If you are standing in the dock accused of murder, it is surely just that you can challenge those who threaten your liberty.
The government promises possible emergency legislation within days to allow anonymous evidence.
As ever, I'd be grateful for your thoughts.
I'm 
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It's a poor decision:
1. it's unnecessary - there's plenty of scope in the judge's summing up for the jury to be reminded that the defence was unable to examine the character of the witness, and that the testimony might be motivated by spite.
2. it's poorly reasoned - justice is not about the opportunity to challenge the witness; it's about the opportunity to challenge the evidence of the witness. If all the defence has is the character of the prosecution witness, you're in a pretty sorry state, and it seems highly dubious that a defendent should be able to force the case to go untried because of that alone.
3. it will have unintended consequences - the police and security services will find themselves acting to "disrupt" criminal activities because under cover personnel will simply be unable to testify. This will lead to less scrutiny of police and security service evidence in court, it will encourage at best a "flexing of the rules" in the efforts to disrupt, rather than convict.
A legal system that trusts itself to the good sense of the jury should do just that and let such evidence be admitted with suitable cautions around it.
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The obvious problem with anonymous witnesses is the potential for fraudulent claims to be made against innocent people without recourse to face to face confrontation.
It is better that a few guilty people go free than for one innocent person to be falsely accused and convicted.
Our society is slowly developing a 'mob mentality' when it comes to crime and punishment. We are in danger of heading back to the time of the 'spectacle' where we want to see criminals punished in public (by making them wear coloured garb) and convicted behind closed doors.
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The right of habeas corpus is irrevocable.
I have worked as a court officer in NYC and I've observed scores of trials over the years. Sometimes the courtroom is closed to the public so that a sensitive witness may testify without blowing his cover. (Say, an undercover police detective who participates in drug stings.) Measures are also taken to protect child witnesses in cases of sexual crimes. But the witnesses must come forward in order to justify the complaint.
This is why people are so upset with the situation of the detainees (read, prisoners) at Guantanamo. They are still awaiting what should be a basic right of the accused--the right to hear the evidence against them.
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The problem is that on the one hand, the Lords are right, that it is vital for a suspect to be able to hear their attackers and respond to them, while on the other hand, anonymous testimonies are needed to protect witnesses.
I think it would be relatively simple to devise a system that would work according to the following principles, which would both respect the Lords decision and the necessities of the justice system:
- Anonymous testimonies should in principle be allowed, with the following provisions.
- No prosecution or charge should be based solely on one or several anonymous testimonies. If the CPS has no other witnesses or evidence, the presumption of innocence should prevail. Trials based only on witnesses, anonymous or otherwise, are extremely rare anyway.
- for an anonymous testimony to be allowed, the CPS should prove to the judge that 1- the witness has reasonable reasons to want anonymity and 2- Anonymity will not render the suspect unable to defend himself (i.e. the CPS need to be able to prove that the identity of the witness does not matter for the case)
- A suspect should be able to appeal of a decision to allow anonymous witnesses to be used in their trial.
- the defence should be allowed to counter-interrogate the witness as long as their anonymity is respected, unless the CPS can prove that by so doing, the defence may discover the identity of the witness.
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In a fundamentally adversarial legal system it is key that cross-examination is possible in all cases. Remember that the only evidence that a jury is allowed to consider is that which is presented to it. Furthermore, witnesses are required to answer questions posed to them by council - this means that a witness rarely gives a narrative on a series of events without some steering from the defence or prosecution. If you allow anonymous witnesses, and deny cross-examination, it is trivial for the prosecution to present only 1/2 of the story, and leave the defence unable to refute that half of the story. This means that the defence would be unable to do such basic things as ascertain how far the witness was from the scene they are reporting on, or their state of sobriety, or whether they were wearing their glasses. Let's say the witness is a mile away from an incident, without questioning the witness on where they were, the defence may have no way to get that fact in front of the judge. The Jury have to be allowed to make a decision on the facts, but they should not be denied access to some of the facts just because the prosecution don't want them to know those facts.
The poster at (1) claims that the Judge can handle this during his summing up, but he can't. You can say to the Jury that they should take account of the fact that the defence was denied cross-examination, but what is the significance of this? The significance might be anything from the fact that the witness was scared for their life, to the fact that the witness was a mile away and it was pitch black at the time. In both cases the believability of the evidence is different, and the jury is denied knowledge of that difference.
Feel free to introduce things where cross-examination must be done by counsel, rather than the defendant (already there for sexual assault I believe). But don't deny cross-examination.
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It all smacks of Natzism to me, conviction on the basis of an anonymous witness' evidence. How long before parents, step-parents and guardians are being convicted of, for instance, abuse, purely on the basis of a resentful child's evidence? I suspect Hitler Youth members may have done exactly this prior to, and during WW2.
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I agree with sleepingrichiec and tailindil - surely the important thing is that someone says you did it, not who that someone is..
Besides, worrying about witnesses is so quaint and old-fashioned. Millions of us now have criminal records based on automatic cameras talking directly to computers, with no humans in the chain at all.
I, for one, would vote for a streamlined court system where the criminals are picked up as soon as they travel (perhaps when they use their Oyster cards?) and slotted straight into a holding system where we can vote on their punishment over the internet. They could be processed like the bags in the new T5 building! The Police could be paid on throughput, just like the speed camera partnerships.
That would be a justice system fit for modern Britain!
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Yet another example of how out of touch our judiciary has become, with their rose-tinted spectacles and Dixon of Dock Green view of life. After Court rises, they go back to their privileged existences, to their homes in nice upper middle class neighbourhoods, thier children most likely at private school and wives who don't work and have no idea what life out there is really like.
Try living on a rough Council estate, where appearing as a witness against the thugs who terrorise you may mean initmidation, injury or even death - not just against you, but against your family, against your children. Then try agreeing to give evidence openly in Court.
Bobble 293 (post 6) thinks conviction by anonymous witnesses is the road to Natzism. I disagree. Failure to allow witnesses to give evidence anonymously will lead inexorably to a gangland culture in rough areas, and then, inevitably, to the rise of protection rackets and mafia style terror promoted by drug gangs and organised crime, who will turn such neighbourhoods into complete no-go areas for the police.
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The Law Lords obviously have no idea what it's like to be a witness, knowing what will happen to your property, your family and yourself if you are identified publicly. Even for petty crimes (in comparison to gang related) there can be repercussions from the culprit's family and friends. It's not about rights it's about common sense. Better security and protection, punishments to fit the crime, and people will become more willing to speak out.
I find it hard to believe that ancient laws still apply in th 21st Century. The scales of justice are balanced in favour of the wrongdoer, and battles are no longer fair. We can't let the present and future be strangled by the past. Learn, lest it pass and move on.
Next will be the appeals from convicts and millions of pounds claimed in compensation.
Within reason a defendant can challenge the witness in a civilised manner if a serious allegation is made. However if the witnesses life will be made a misery if they are identified I'm sure the police within the community would confirm the reliability of the witness and the probability that the accused is guilty. Surely the men and women working at the tough end have a say too?
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Reducing hard won civil liberties is always justified as being necessary in new and special circumstances but those liberties are never restored when the special circumstances no longer pertain and so the power of those who would control us grows ever stronger.
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The accused must have the right to question the prosecution witnesses.
However, anyone who is found guilty of intimidating witnesses should be punished harshly, and by that I mean a life sentence. This might seem a bit over the top, but the rule of law must be the primary concern.
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hundreds of potential witnesses will now have no protection if they choose to testify in court. People simply will not testify against gang or mafia leaders if their identity is revealed.
This is another stupid law that the government has thought up. The end result is that criminals will walk free, as witnesses will be too scared to testify. Crime will rocket, as gang and mafia members know that there will be no witnesses willing to put their, and their families lives, in danger
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I agree a defendant should have a fair trial - but how fair' is a trial where many witnesses refuse to give evidence because of intimidation or likely retaliation? These cases are extremely few and far between, and the CPS has to pass strict tests before a judge will consider allowing such anonymous testimony. These act as exactly the sort of safeguards suggested by tailindil, to prevent fraudulent allegations taking advantage of the situation.
As for the 'mob mentality' suggested by Endada, you have the wrong party in mind. Anonymity is only considered in exceptional circumstances. As SuperJulianR says, being a witness in that sort of case takes a lot of courage - an individual has their health, their family, their property all at risk if the defendant and his mates are minded to 'persuade' you giving evidence is not in your best interests...
And dencdenc - when was the right to intimidate in order to escape conviction a 'civil liberty'?!
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The important thing about all this is not that it might let the guilty go free. It's that it has the very real potential to convict the innocent. How many people who support anonymous witnesses would be happy to be convicted on the say so of some anonymous people?
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Information from an anonymous witness can be used to start an investigation, but if that information is directly used as evidence, there must be some way for the defense to cross-examine the evidence.
For those who insist that they could only be safe if they could testify anonymously, that is actually the surest way to LOSE your safety. If you can testify anonymously against someone else, what is to prevent another person from accusing you in the same manner?
Maybe the solution is to have the threatened witnesses testify in a closed court session with only counsel and the judge(s) present, without the defendant him or herself knowing the identity of the witness. But the idea of secret witness testimony being entered into the record and used to decide guilt or innocence, when that testimony cannot be questioned, is and must remain anathema to any fair justice system.
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Why does anonymity mean that the defence is unable to successfully cross examine a witness? Cross examination is there to place the evidence under scrutiny.
If 5 people witnesses a road traffic accident and all give evidence in court anonymously, and all the testimony is subject to cross examination, if the combined evidence leads the jury to give a verdict, then how can the conviction or otherwise be considered unsafe?
As long as the court, the judge, can be satisfied that none of the witnesses had a connection either with one of the parties or to each other that might lead to their evidence being tainted or corrupt then each testimony is as valid just as if each witness had given their identity.
I’m well aware of the need to protect the innocent, to prevent miscarriages of justice, but to those who use the argument that it’s better to let “a few” guilty people go free than convict one innocent person, I question how many murders are they prepared to let one person commit and get a not guilty verdict when brought before the courts due to witness intimidation before they start to question the value of that principal.
If the idea is that you should be able to simply see you accuser in order to make a defence, why is the statue above the high court blindfold? Surely that’s because it’s the evidence that’s being weighed not the witness.
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Perhaps this is the reason Rome fell. After all, it was something to do with corruption. Loss of the legal restraignt. Isn't it about time we looked at the law in the same light as other such things and UPDATED. Instead of making the same mistakes, over and over again.
People on the ground can't understand why the powers that be, are protecting the criminals?
Can someone please explain to me three things.
1. Why I go to work to earn money to pay solicitors to get criminals set free. The very people who are hurting and stealing from my co workers.
2. Why am I powerless to stop this.
3. Why am I paying for criminals to have the right to have anonimity, when we the tax paying, law abiding citizen, does NOT!
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The British legal system now finds itself between the devil and the deep blue sea, in not only one area!
On the one hand, it is deridable to remove 'gangland' criminals from circulation, but on the other hand, there is a problem in hearing evidence from 'unnamed' witnesses.
Imagine being a jury member, being faced with accepting evidence from a witness 'anonymously'. Straight away, you will assume that this witness is so afraid to give evidence in the normal way, that the accused MUST be guilty. This immediately gives a slant to the proceedings and the overall fairness of the trial.
What we really need, is for people to stand up and be counted, but in this day and age, when it's the devil's job to get anyone to witness even the time of day, this is increasingly more difficult to achieve.
The only real alternative to a jury trial is the equivalent of the Diplock Courts, only instead of just one judge presiding, three (or maybe even five) judges would form a 'Judicial Panel' to hear the evidence, with each being free to announce their own verdict, the majority being the accepted finding of guilt or innocence (hence the odd-number of judges).
This type of court, in addition to the 'witness intimidation' trials, could also be used in the long and complex trials concerning 'company fraud', or long trials involving much 'expert' evidence, which to be frank, overwhelms many 'common man' jurors, who never have to come across this type of thing in day to day life, and simply cannot understand it, not due to a lack of intelligence, but due to its specific complexity.
Whilst I am all for the concept of a person being tried by his peers, and accusers being subjected to cross-examination, there must come a time when the legal process can employ flexibility to ensure that justice prevails. As long as it is FAIR flexibily, and operated in good faith, I see nothing wrong in jury-less trials or the 'anonymity' of witnesses where circumstances dictate that justice could only be carried out if this was done.
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Why should I testify if I see a gangland shooting? Why should I put my life on the line in return for nothing?
Well done house of lords, you've just guaranteed that Britain turns into 1930's Chicago. We now have no guarantee that witnesses to a crime can be safe and virtually no way of defending ourselves (seeing as Tony Martin home security gets you 5 years)
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Mark:
I suppose it depends on the severity of the crime. I understand that we ideally 'ought' to 'see' those giving evidence against us. But, sometimes it's prudent to realise that leaving a witness vulnerable to possible threats etc. does no one any good. And let's not forget that while it's not a perfect system, there are avenues to go down if it is felt justice hasn't been served.
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I think first of all A smaller trial looking at the witness statement and facts of how it fits together should be held to determine whether the Witness is credible enough to be protected. The jury at this small trial should consist of a jury who are made up from members of the public. They should look at aspect of the witness including previous history character and likely knowledge.
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So if I have this straight ...
Criminals are taking advantage of the system, abusing civil and human rights to get away with (sometimes literally) murder.
And the answer is ...
Toss all those rights out the window so criminals can't take advantage of them?
I guess it would make sense if you think anyone brought before the court *must* be guilty by default.
You've already done away with double jeopardy, habeus corpus is on the ropes, and "Innocent until proven guilty" was shot down in flames by tabloids many years ago (and those tabloids are ending up more and more as the preferred outsourced judge, jury, and executioner).
The legal system isn't the reason criminals are getting more brazen every day. Sheeple allow their rights to go out the window for the vague perception of security, they're easy meat for the wolves of society.
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conundrum....my daughter asked to be prosec. witness....indirect threats have been made to her and against the whole family....
I want her to appear but want her protected from retaliation...
The judge will make a decision on the day after a submission of evidence for screens to be put up.
That will really make her feel better and safe...
By the way the offence the defendant is facing is W with intent GBH...
What a choice to face?
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as a lawyer, to correct some of the misconceptions above, 'anonymous' does not mean the defence cannot cross-examine - it's just the witness answers from behind a screen and without giving their name at the start. The prosecution would also be in under a duty to consider any material they had suggestive of a motive to lie/previous convictions etc before getting the anonymity from a judge, and disclose it if it didn't give the identity away. Most witnesses (where the context of their evidence does not make it obvious who they are) would never have been cross-examined on such areas anyway.
Anonymity is still not an ideal situation, but it's a balance to be struck in 'gangland' cases etc and in those circumstances you can understand why the government might want to overturn this decision of the judges.
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amadkiwi0 (post 12) suggests that " . . . This is another stupid law that the government has thought up . . . ".
As I understand it, the judgement was made by the Law Lords, NOT the Government, and as Mark Easton points out in his blog, the Government " . . . promises possible emergency legislation within days to allow anonymous evidence . . . "
So blaming the Government for this decision is about as wrong as it's possible to be!
Personally, I am with E553X80Y (post 14), Endada (post 2), and bobble293 (post 6) on this issue - while I recognise that in many cases it requires great courage to testify, and there is a chance that some criminals may escape justice for years through intimidating witnesses, it would be far worse to convict an innocent person on the strength of an uncorroborated statement from an anonymous witness.
Guilt requires proof 'beyond reasonable doubt' and all defendents (however unsavoury they may be) are innocent until proven guilty. Once we lose these principles, it's only a short step towards witch hunts and trial by mob.
Or maybe we are already there, given the recent phenomenon of 'trial by media' - one report I read at the time suggested that almost 90% of Americans surveyed just before the start of the OJ Simpson trial had already made up their mind whether he was guilty or not - and that was before any evidence was laid before the jury!
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