Fair Trials International’s briefing on the Criminal Evidence (Witness Anonimity) Bill
About Fair Trials International
1) Fair Trials International (FTI) is a UK-based NGO that works for fair trials according to international standards of justice and defends the rights of those facing charges in a country other than their own.
2) FTI pursues its mission by providing individual legal assistance through its expert casework practice. It also addresses the root causes of injustice through broader research and campaigning and builds local legal capacity through targeted training, mentoring and network activities.
3) FTI has a keen interest in Justice and Home Affairs policy. Through our expert casework practice we are uniquely placed to provide evidence on how policy initiatives affect defendants.
4) FTI has significant concerns about the proposed Criminal Evidence (Witness Anonymity) Bill. Recognising that the opportunity for debate or amendment of the Bill is now limited, this briefing does not seek to comprehensively address every detail of the proposed legislation, but highlights FTI’s main concerns with the Bill and makes several recommendations for amendments to be tabled in the Bill’s third reading in the House of Lords on 15th July.
About the proposed Criminal Evidence (Witness Anonymity) Bill
Anonymous witnesses and the right to a fair trial
5) The right of a defendant to face his accuser is central to the principles of the right to a fair trial and open justice, protected by Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). Article 6.3 (d) states that everyone charged with a criminal offence has the right “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”.
6) Fair Trials International has deep reservations about the use of testimony from anonymous witnesses, which can violate the right of the defendant to cross examine witnesses by depriving the defence team of relevant information pertaining to the witness’s credibility and/or reliability.
7) In line with case-law from the European Court of Human Rights, Fair Trials International holds that where anonymous witness testimony is the sole or decisive factor in securing a conviction, this is a clear violation of the defendant’s fair trial rights and must not be permitted.
8) However, FTI recognises that the use of anonymous witness testimony is not in all circumstances incompatible with the right to a fair trial. FTI also acknowledges and respects the need to protect witness from threat and intimidation. The use of anonymous witnesses may therefore be justified in exceptional circumstances, and in cases where there is supporting evidence in addition to anonymous witness testimony.
9) FTI urges the House of Lords to include an amendment to the Bill, making it explicit that the use of anonymous witnesses must be the exception and not the rule, that defendant’s rights must be safeguarded, and that anonymous witness testimony must not be allowed where it is the sole or decisive evidence in a case.
The need for legislation on the use of anonymous witnesses
10) Until the recent Law Lords ruling in R v. Davis [2008], the Courts had the power to grant witness anonymity where the particular circumstances of a case justified it. However, the Davis ruling found that there is not sufficient authority in the common law to support arrangements for the admission of anonymous evidence.
11) FTI therefore recognises the need to legislate on this issue, in order to provide clarity and robust systems of protection for both defendants and witnesses.
12) However, FTI has serious reservations about the speed with which the Criminal Evidence (Witness Anonymity) Bill has been rushed through the legislative process without sufficient time for thorough and proper public and parliamentary scrutiny. Emergency legislation is notorious for being poorly drafted, unfit for purpose and having unintended perverse consequences.
13) In the case of Kostovski v Netherlands (1989), the European Court of Human Rights stated clearly that even though an increase in organised crime and intimidation of witnesses demanded the introduction of appropriate measures, national Governments must weigh “the interest of everybody in a civilised society in a controllable and fair judicial procedure”. The Court further states that, “the right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency”. (Kostovski v. Netherlands (1989) §44)
14) The seriousness and complexity of the issues addressed by the Bill only serves to underline the need for the proposed legislation to be given the proper public and parliamentary scrutiny that such issues deserve.
15) FTI is therefore pleased to see the introduction of a sunset clause into the Bill. However, we are concerned that the clause grants the possibility of extending the legislation for a further 12 months from 31st December 2009 by affirmative order. This process, by longstanding convention, bypasses normal parliamentary scrutiny or opposition. FTI has serious concerns about allowing a piece of emergency legislation rushed through all of its Commons stages in one day, to be extended by a process similarly lacking in adequate public scrutiny.
16) FTI urges the House of Lords to recommend the amendment of the sunset clause, to remove the possibility of extending the Criminal Evidence Bill by affirmative order, and holding the Government to a commitment to review it by 31st December 2009 at the latest.
17) Furthermore, FTI’s preference would be for the legislation to be reviewed as early as possible in the next parliamentary session, as part of the Law Reform, Victims and Witnesses Bill. We therefore urge the House of Lords to include an amendment to this effect.
Proportionality
18) Given that the use of anonymous witnesses has the potential to seriously undermine the right to a fair trial and should only be used in exceptional circumstances, the criteria for granting an anonymity order must be strictly defined. FTI has concerns about the room for broad interpretation of the criteria for granting an anonymity order set out in clause 4 of the Bill.
19) Clause 4 (3) (a) is too vaguely drafted and open to broad interpretation that may make it possible to justify the use of anonymous witnesses as the rule and not the exception. Anonymity should only be granted in cases where there is an objective risk to the personal safety of the witness or another person.
20) It is therefore crucial that comprehensive information is available to the judge who must make the decision whether to grant an anonymity order. The New Zealand system requires Special Advocates to compile extensive reports on the witness and his/her relationship or previous contact with the defendant, in order to advise the judge on decisions about granting an anonymity order and highlight issues that might affect the credibility of the witness. FTI strongly recommends that the Government thoroughly investigates the use of Special Advocates before this legislation is reviewed, and urges the House of Lords to require the Government to produce an impact assessment on the use of Special Advocates when this legislation is reviewed in the next Parliamentary session.
21) FTI has particular concerns about the reference to threat to property as a grounds for granting an anonymity order. The right to a fair trial is intrinsic to the rule of law in a democratic society. To permit the use of anonymous witnesses based on threat to property lacks proportionality. FTI therefore urges the House of Lords to amend Clause 4 to remove the possibility of threat to property being used as a grounds for granting an anonymity order.
22) Clause 4 also permits the granting of an anonymity order based on the ‘threat to the public interest’. FTI has grave concerns over the vague meaning of this phrase, and the broad interpretation that may result from it. FTI urges the House of Lords to amend Clause 4 in line with the Bar Council’s recommendation that the ‘threat to public interest’ is re-drafted with reference to a threat to national security, or prejudice to an ongoing investigation into serious crime.
Retroactivity
23) Finally, FTI is alarmed by the provision that makes this Bill retroactive. Clause 11 removes the possibility of appealing in the grounds that anonymous evidence was used to secure a conviction in current/previous cases, as long as the witness could have been granted anonymity under this new legislation. Clause 11 essentially grants retrospective validation of orders that were potentially unlawful at the time they were made. Yet, non retroactivity of the law is a general principle that applies to all criminal legislation and should be respected in this Bill. FTI strongly urges the House of Lords to amend Clause 11 of the Bill to remove the retroactive application of the Bill.