New witness anonymity act aims to strike the right balance

The new witness anonymity act needs to strike the right balance between protecting those who give evidence in court from intimidation and possible violence, while ensuring defendants receive a fair trial, according to Julie Liburd one of our dispute resolution experts.

Julie also believes the new act, which was introduced swiftly to prevent previous convictions based on the evidence of anonymous witness being quashed, will not just be the preserve of high profile Crown Court cases involving guns and drug crime. She said: "The act may also be regularly used in magistrates' court cases brought by Local Authorities where there is genuine witness intimidation.

"The aims of the act are to be fair to the defendant, protect the public from dangerous offenders and ensure that witnesses receive the protection they need. Anonymous evidence is crucial to an ever increasing number of cases, but its use cannot be justified if it means that the defendant does not get a fair trial.

"Hopefully, the new measures contained within the act will go some way towards reassuring those defence lawyers who argue that the legislation will seriously damage a defendant's right to a fair trial. There will always be a balancing act between the competing interests of the prosecution and those of the defendant and only time will tell if a successful balance has been achieved. However, no amount of legislation can guard against the prejudice that the defendant will automatically face by the mere fact that a witness anonymity order has been granted in the first place."

The Criminal Evidence (Witness Anonymity) Act 2008 came into force less than three weeks after being introduced into Parliament. It followed a House of Lords judgment in a high profile murder trial during which three witnesses gave evidence under pseudonyms and from behind a screen with their voices altered electronically.

The House of Lords held there was insufficient authority in common law to allow admission of anonymous evidence. It also found the common law principle that a defendant should know his accusers in order that he may challenge their evidence cannot be modified by developments of the common law alone and that any modification should be by legislation.

For that reason it was essential for the Government to act swiftly to ensure anonymity can continue to be granted to witnesses in the future and prevent those whose convictions have been based on the evidence given by an anonymous witness from having their conviction quashed.

There are also transitional provisions in the act to deal with cases which are part heard, where the anonymous witness has already started to give evidence or the trial has commenced but the anonymous witness has not yet given evidence. In these cases the court is required to consider whether the anonymity order made could have been made under the new law.

Before granting an anonymity order under the act the court will be required to consider whether the measures specified in the order are necessary to protect the witness or public interest, whether the defendant will receive a fair trial and if it is necessary to make the order in the interests of justice.

If you would like to know more about the nature of Julie's work, you can contact her at julieliburd@hewitsons.com or call her on 01604 233233