Lecture 5 anonymity of witnesses PDF

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Anonymous evidence, key cases...

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12/10/20! Evidence: anonymity of witnesses (easiest problem question!! - special measures before anonymity) Recap on steps of evidence! - Key Question 1: Is it admissible?! - Key Question 2: Is it relevant?! - Key Question 3: How much weight should we give it?! - Key Question 4: Does it have any probative value?! - Key Question 5: Is it unduly prejudicial?! Anonymous evidence! - When discussing anonymous evidence, remember steps! - Does the use of anonymous evidence weaken the use of open justice – or the notion of fair trial? And why?! - The idea of fair and open justice is enshrined in common law, the Human Rights Act 1998, and so in ECHR Article 6(3)(d) - General principle that (in theory) the defendant in a criminal trial should be able to confront his or her accusers, so that he or she can effectively cross-examine them! - “Accusers” here includes witnesses who saw the alleged offence! Key case! - A 2008 case debated and clarified the issue of witness anonymity! - R v Davis (Iain) [2008] All ER (D) 222 (Jun)! - The judge set up an number of protective special measures to allow them to give evidence:! - Screens; and their voices could only be heard by the judge and jury, not Davis himself! - Without these protective special measures, the witnesses may not have attended! - Judge went beyond special measures! - Davis appealed, arguing:! - that the restrictions on the witnesses were contrary to common law, and inconsistent with his rights under A6(3)(d), and ! - The Court of Appeal dismissed his appeal so Davis went on to the House of Lords ! - The House of Lords held that the accused has the right to confront his or her accusers ! - Their Lordships also said in judgement that, if witness anonymity was needed, there would need to be special legislation! - Do NOT confuse special measures and anonymity - Summer of 2008 – a piece of legislation was (arguably) rushed through – this was the! - Criminal Evidence (Witness Anonymity) Act 2008! - Sunset clause, means it has an expiry! - Much concern about the Act was overcome in legislating for the Coroners and Justice Act 2009 (part 3 is important) - CJA 2009 was aimed at inquests! - The 2009 Act says one can have witness anonymity:! - if necessary to protect the witness from serious injury or death, or ! - if it is in the public interest (CHIS), or! - if, without this measure of witness anonymity, the witness would not give evidence, and that would harm the public interest! - The Act set out ways that the identity of witnesses could be concealed:! - Withholding witness’s name and address, and no evidence of it on any papers! - Use of a pseudonym (e.g. Fido the dog – not really)! - Would not necessarily be asked a particular question, e.g. one which would identify the abode of the witness! - Can be screened, but not from judge and jury! - Witness’s voice can be distorted! - Before the Judge allows these CJA 2009 provisions, they have to consider:! - The credibility of the witness! - Whether they are the sole witness! - The right of the defendant to know who their witness is! - The judge also has to consider whether there is any other means of protecting the witness!

Be clear on the differences! - Special measures! - Screens; evidence by live link; evidence in private; removal of wigs and gowns; video recorded evidence-in-chief, cross-examination or re-examination; examination through an intermediary; aids to communication if disability! - Witness anonymity ! - Means something completely different:! - The identity of the witness is NOT SAID in court or evidence! Is it a necessity or a prejudice to the Jurys mind?!...