Government legislation relating to witness anonymity could seriously damage a defendant’s right to a fair trial

Following the House of Lords judgment in the case of R v Davis, the government is rushing through legislation in relation to anonymous witnesses with indecent haste. There clearly is a sense of panic in both the Ministry of Justice and the Home Office with regard to the number of trials that may be affected by the ruling.

It is said that witness anonymity is a necessary tool for the prosecution. In this country we have used witness anonymity to secure convictions in some celebrated cases involving gangs and gangland torture, for example R v Kray and R v Richardson. Is it therefore true that anonymity for witnesses is a necessity? I accept that there may be some cases where it is desirable to achieve a conviction, but at what cost?

Once the witness anonymity order is made, the defence in the main are precluded from asking any questions which may help identity the witness. You may therefore, by virtue of the fact of the order, be stopped from knowing full details of the witness’s previous convictions, the date of those convictions or the court in which they occurred. You may be precluded from knowing whether the witness concerned may have a vested interest in giving false evidence to secure a conviction against your client. You will not be able to examine the background of that witness and, in truth, what happens is that the defence case is emasculated to such a degree that the right to a fair trial can disappear.

Not only do you have to cope as a defence practitioner with all the difficulties a witness anonymity order may create, you also have to deal with the prejudice that is caused by the very fact that one has been made. How do jurors stop themselves from thinking that the defendant or defendants must be extremely violent people if the witnesses have to remain anonymous. Our justice system is about achieving a fair balance between justice for the prosecution and justice for the accused.

I am extremely concerned to note that the government talks about witness anonymity orders only being used in exceptional cases, yet we see in this new legislation that it is envisaged that such orders could even be made in the magistrates’ and youth courts. There is no doubt the police will see this new legislation as a tool to be waved in front of witnesses – there will be the temptation to promise them anonymity even before the Crown Prosecution Service is involved. We have to ensure this does not happen. Once the genie is out of the bottle in the shape of a suggestion of anonymity it will be very difficult to put it back in.

Conflict of interestHow will defence practitioners know at the outset whether or not they have a conflict of interest? They cannot, of course. As trials unfold, one can see situations arising where it becomes apparent that the defence team is precluded from acting because there is such a conflict. It is vital that the government takes time to pause and reflect on this legislation. The rush to secure justice in a very limited number of cases may in five years’ time contribute to rough justice in a considerable number of cases. The consequences of this legislation need to be considered in detail – some of the drafting is unclear and raises more questions than answers. The law lords stated rightly that it has been a cornerstone of the English judicial system for hundreds of years that a defendant should know his accuser. This is a right that should not be legislated away in the blink of an eye.

We must not forget that the decision of the House of Lords was unanimous and the judgments handed down set out the position clearly. Why must we now be faced with emergency legislation? Is it to allow a number of trials currently in the pipeline to proceed? Why had no one considered that the House of Lords may find for the appellant? It is all very well for the government to promise that Parliament will reconsider matters in six months’ time, when there will be consultation, but once six months have passed many of the trials will have concluded and, one suspects, convictions obtained. Are we therefore to expect any significant change to the legislation? Clearly, if that happens, we would be left with those having been convicted in the interim asking the courts to reconsider.

It is in many ways an Alice in Wonderland scenario. All I can say is if the government acts in haste, it may well repent at leisure.

Ian Kelcey is chairman of the Criminal Law Solicitors Association