Grave implications of witness ruling

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By Professor Jon Silverman University of Bedfordshire

Ministers face a legal dilemma in the wake of the Law Lords' ruling

A Law Lords ruling making anonymous witnesses in court illegal has left ministers urgently seeking to change the law. Until then, those who have committed serious crimes could walk free.

For once, the government is grappling with a legal problem which is not the result of the Human Rights Act.

Yet, ironically, remedying it could put it into headlong conflict with one of the cherished provisions of the European Human Rights Convention - the right to a fair trial.

This is the dilemma which ministers face if they are to fulfil their pledge to legislate to allow witnesses in criminal trials to give evidence anonymously.

It is, on the face of it, surprising that such a long-established principle of English common law - that a defendant should be confronted by his accuser - has been eroded over the last 15 years or so with so little comment.

Even at the height of the troubles in Northern Ireland, where violent intimidation was widespread, witness anonymity was rejected as a way forward.

But under pressure from police and prosecution looking for every available measure to tackle organised crime and breach the "wall of silence" which surrounds many murders and gang attacks, judges have begun to look more favourably on so-called "special measures" for witnesses.

Key witnesses

This trend has been buttressed by three pieces of legislation - in 1988, 1999 and 2003 - which have widened the statutory grounds for imposing such measures.

Diana Ellis QC, who defends in many murder trials, has watched this development with mounting concern.

In some cases, where the evidence is not crucial to the prosecution, anonymity may be acceptable Diana Ellis QC

"At one time, even if the name of a witness was withheld from the wider public, it would be made available to the defendant and counsel.

"But, increasingly, potential witnesses are demanding complete anonymity as a condition of testifying. And, in many cases, judges are granting it."

And it is not only in murder trials. Animal rights and drugs prosecutions have also benefited from measures designed to protect the identity of key witnesses.

And many anti-social behaviour orders have been imposed only because anonymous and hearsay testimony is permissible.

Parliamentary role

Senior police officers are warning that as many as 40 trials may be affected by the lords' ruling but, in truth, the use of anonymity and protective measures has permeated the culture of the criminal justice system, especially under the present government, in a way which will not be easy to roll back.

So, can the government legislate swiftly, as it has promised? Faced with similar problems, the governments of New Zealand and the Netherlands have done so and one of the law lords, Lord Carswell, thought it would be possible for Parliament to prescribe how anonymity should operate.

But Diana Ellis sees difficulties. "How do you legislate to prevent an unfair trial?

"In some cases, where the evidence is not crucial to the prosecution, anonymity may be acceptable.

"In others, it clearly is not. But it must be up to the judge to decide the parameters.

"And just as judges have followed 'fashion' by becoming more permissive of anonymity, perhaps this shock to the system will make them less receptive to it."

In the meantime, there will quite probably be people walking free who have committed serious crimes - whether because trials are stayed or convictions overturned - and that has grave implications for the whole of society.