NationStates Jolt Archive

New laws on anonymous court witnesses could be proposed within days, the government has promised.

It follows a Law Lords ruling that defendants need to know the identity of those testifying against them - making the use of anonymous witnesses illegal.

In the latest case a £6m trial of two men accused of murder was halted at the Old Bailey, and must be retried.

Senior police officers said the Law Lords' decision, covering England and Wales, was "potentially disastrous".

'Difficult balance'

Justice Minister Maria Eagle told the BBC: "We're looking very urgently at the implications of the judgement.


We are working now... to look at what we need to do to put this right
Home Secretary Jacqui Smith

Mother defends secret witnesses

"There is a difficult balance to strike here, as the Law Lords themselves recognised, between giving witnesses who fear for their safety the confidence to give their evidence, and making sure that innocent people aren't convicted in the courts and that we have the right to a fair trial."

"We're considering this matter urgently and hopefully within the next few days we'll be able to announce the way forward.

"But obviously the issues raised here are very serious."

The Crown Prosecution Service revealed it was seeking to put on hold all cases relying on anonymous evidence.

A CPS spokesman said: "We've asked our prosecutors to seek an adjournment in all cases using anonymous witnesses to allow us to assess the implications of the House of Lords judgement in each particular case."

'Case by case basis'

Reports that the Metropolitan Police had scrapped its anonymous witness programe as a result of the Lords' ruling were denied however.

A police spokesman said that requests by witnesses to give evidence anonymously were still being considered "case-by-case basis".

Home Secretary Jacqui Smith said: "I certainly accept, and I said some time ago, that there is a problem here that we need to solve.

"We are working now... to look at what we need to do to put this right."

In their ruling last week, the Law Lords argued it has been a fundamental principle of English Law that the accused should be able to see his accusers and challenge them.

They said in their ruling: "No conviction should be based solely or to a decisive extent upon the statements and testimony of anonymous witnesses."

Derailed

On Tuesday, Judge David Paget said the Old Bailey murder trial had been "derailed" by last week's ruling.

The case, the first to be affected following the ruling, will be retried in February 2009.

Four witnesses had given evidence under false names and from behind screens during the two-month trial over the murder of Charles Butler in Dagenham, east London, in 2004.

Douglas Johnson, 27, and David Austin, 41, both of south London, have denied murder.

Several recent, high-profile trials have also used anonymous witness testimony, including those following the murders of schoolboy Michael Dosunmu and care worker Magda Pniewska.

The solicitor for two of the four men found guilty of murdering Birmingham teenagers Charlene Ellis and Letisha Shakespeare in 2003 has said they will also appeal against the convictions, because anonymous witnesses were used.



I think the ruling of the Law Lords is ridiculous and I'm glad that the Government are bringing in emergency measures to overturn this ruling. Anonymous witnesses have been key in many cases and I don't see why their safety should be jeopardised.

So what do you think? Law Lords right or wrong?

ya but how can you present a defense if you dont know who is testifying against you?

Why do you think the decision is "ridiculous"? (in contrast with simply undesirable).

A criminal defendant has the right to mount a defense in any way possible. How could he possibly know that if he doesn't know who is testifying against him?

What about people that testify against the Russian Mob style groups?

Why do you think the decision is "ridiculous"? (in contrast with simply undesirable).

Alright wrong word usage on my part, ridiculous may seem a bit too far. Undesirable in the fact that a lot of witnesses, especially in cases with connections to gang violence fear for their lives. Being forced to give evidence without the option of being anonymous is unfair on them. At least allow the witness the choice to allow the suspect to know who they are or to keep screened so they are not uncomfortable/scared.

Alright wrong word usage on my part, ridiculous may seem a bit too far. Undesirable in the fact that a lot of witnesses, especially in cases with connections to gang violence fear for their lives. Being forced to give evidence without the option of being anonymous is unfair on them. At least allow the witness the choice to allow the suspect to know who they are or to keep screened so they are not uncomfortable/scared.

But without cross examination the evidence is not tested properly, a biased witness might not have their bias brought to the attention of the jury.

But without cross examination the evidence is not tested properly, a biased witness might not have their bias brought to the attention of the jury.

Good point but with this sudden ruling by the Law Lords over 500 cases nationwide have been compromised. One trial had to be halted which had so far cost in the region of £6 million. Anonymous witnesses have been key in a number of cases.

However like every system it can be improved. I'm not totally sure if anonymous witnesses have checks done on them with all dealings they have had with the suspect, if any. If not then that should be implemented. If it has then I believe the jury has access to these links.

Eh, as they say it's a hard balance. You can't cross-examine anonymous people. Nor can you tell if they've got a grudge. On the other hand, you can't set your mates on them.

I dunno. In gang-related stuff, aye, anonymity is useful for certain witnesses. In more regular trials, it just obstructs the proper running of things.

Good point but with this sudden ruling by the Law Lords over 500 cases nationwide have been compromised. One trial had to be halted which had so far cost in the region of £6 million. Anonymous witnesses have been key in a number of cases.
Good, I'm glad they've been stopped. But the principle at least should have been tested before putting that amount of money into it.


However like every system it can be improved. I'm not totally sure if anonymous witnesses have checks done on them with all dealings they have had with the suspect, if any. If not then that should be implemented. If it has then I believe the jury has access to these links.
But those checks are limited. Especially if both witnesses are from the criminal underground, gangs and so on there's going to be no way of verifying what the witness says are the only links.

Clearly this is a move by The Church of $cientology attempting to quash Anonymous.

ya but how can you present a defense if you dont know who is testifying against you?

You still get to know the testimony, right?

It's not the same as not knowing who your accuser is. Obviously if you're accused of wronging "someone" you can't present a coherent defense. You don't know what you're defending yourself against.

But the identity of witnesses, especially against violent criminals, should be protected.

I was just reading a book called "Under and Alone" by William Queen. He was writing about his 2 year undercover operation with the Mongol Biker Gang.

There was one case in which one of his Biker "Brothers" killed a guy (perhaps just beat half to death, the stories were all on the same theme) and was arrested. The gang posted bail for him and he hired a private detective to get him a copy of the police report. The report identified the witnesses who he then went and beat up and/or stabbed. He never got convicted on that charge. But of course, the story was being told by the undercover AFT agent who was spying on him, so he eventually got convicted of something.

You still get to know the testimony, right?

It's not the same as not knowing who your accuser is. Obviously if you're accused of wronging "someone" you can't present a coherent defense. You don't know what you're defending yourself against.

But the identity of witnesses, especially against violent criminals, should be protected.

I was just reading a book called "Under and Alone" by William Queen. He was writing about his 2 year undercover operation with the Mongol Biker Gang.

There was one case in which one of his Biker "Brothers" killed a guy (perhaps just beat half to death, the stories were all on the same theme) and was arrested. The gang posted bail for him and he hired a private detective to get him a copy of the police report. The report identified the witnesses who he then went and beat up and/or stabbed. He never got convicted on that charge. But of course, the story was being told by the undercover AFT agent who was spying on him, so he eventually got convicted of something.


i know that we use some amount of annonymous witnesses in US trials in just those kinds of circumstances. i have no idea how they get around the contitutional requirement to be able to face witnesses against you. and i have no idea how they can keep the gangsters from knowing who the witness is based on the kind of testimony they can give.

but you do need to have some way to challenge testimony. its not enough to know what is being claimed and to say "no i never did that" you also have to be able to show why the witness might be mstaken or why they might have reason to lie about you.

it seems to me that there h as to be a delicate balance between keeping witnesses safe and guarding the defendants right to cross examine witnesses.

Couldn't you set up a satellite feed to an undisclosed location where the witness is for the purpose of cross-examination (complete with voice modulation and facial obscuring)?

I think the ruling of the Law Lords is ridiculous and I'm glad that the Government are bringing in emergency measures to overturn this ruling. Anonymous witnesses have been key in many cases and I don't see why their safety should be jeopardised.

So what do you think? Law Lords right or wrong?

I think the law lords are right. In addition to the problems I have with a defendant being unable to confront his accuser, I question the effective of defense that counsel can provide.

Here in the US, we theoretically have the right to face our accusers in court and the right to be presumed innocent until proven guilty. In the UK, I understand that you have similar concepts but on a looser scale. For example, can't Brits be held without charge for several days on mere suspicion?

We have witness protection programs where those who fear that their testimony might endanger thenselves are set up with new identities at least until the trial is over, if not longer. Does Britain have something like that? I kow we have a 'slight' geographical advantage, but I think the folks over the pond could manage something.

I know we've fallen from our former standards already with Gitmo and the PATRIOT act, and I've heard some justification for these erosions of our principles as "well, other countries aren't as careful in protecting the rights of suspects".

Here in the US, we theoretically have the right to face our accusers in court and the right to be presumed innocent until proven guilty. In the UK, I understand that you have similar concepts but on a looser scale. For example, can't Brits be held without charge for several days on mere suspicion?
Yes, with a judge's repeated OKs we're now up to 28 (possibly to become 42) days on terrorrism charges.

We have witness protection programs where those who fear that their testimony might endanger thenselves are set up with new identities at least until the trial is over, if not longer. Does Britain have something like that? I kow we have a 'slight' geographical advantage, but I think the folks over the pond could manage something.


I believe we do, but I think this comes to a head mainly when the witness is an undercover cop whom they want to keep undercover, or it's impractical to put them and all their family/close friends/etc into witness protection.

You still get to know the testimony, right?

Someone testifies they saw me rob a gas station. It turns out that the person who testified against me happens to be an ex girlfriend, who happens to have taken the breakup badly and just so happened to tell me that she'd "get back at me" for it.

I can have her cross examined, and admit to all of this on the stand. I can attack her credibility on the stand and raise the question to the jury as to the matter of her truthfulness. Maybe she is actually telling the truth, and maybe she is out to get me. That's an issue I can present to the jury for their consideration.

The fact that she could be lying to get revenge is a possible defense. As a defendant, I have the right to be presumed innocent until my guilt is proven beyond all reasonable doubt, and if I can cast reasonable doubt on the prosecution's case in chief, through any means I win.

And if I can demonstrate that the witness' testimony might not be truthfu due to some disability, deficiency, bias, or vendetta, that is my right as the accused, and is a perfectly valid defense. But I can't do that if I don't know who the witness is. By denying me the right to know who is testifying against me, you're denying me the right to mount a full and complete defense.

And that is an anathma to justice.

So what do you think? Law Lords right or wrong?

Once again, I think the Law Lords have got it absolutely right. And, once again, the Government is planning to stamp all over justice and screw around with things for the sake of a quick headline.

And that is an anathma to justice.

I consider those things - finding out whether the witness is credible - to primarily be the responsibility of the justice system, not the defendant, hence the anonymity of a witness should not be a criticial, deciding, factor in any trial.


Then again, I come from a civil law country.

A criminal defendant has the right to mount a defense in any way possible. How could he possibly know that if he doesn't know who is testifying against him?

This is true. But how can a witness be expected to testify against well connected, or influential people who are in a position to cause them great harm, even from behind bars?

I suppose they could be given a 24 hour bodyguard service then. At state expense of course. But that will be a poor replacement of simply not being known as a witness by those willing to have someone killed as a matter of revenge.

I consider those things - finding out whether the witness is credible - to primarily be the responsibility of the justice system, not the defendant, hence the anonymity of a witness should not be a criticial, deciding, factor in any trial.


Then again, I come from a civil law country.

How exactly is the 'justice system' to work out the credibility of the witness? Is it to keep track of all of our relationships, everything we say and do, all the personal grudges we've ever held?

Furthermore, if the 'justice system' decides that the witness is credible, what happens then? Is the Judge to tell the jury that 'this witness is credible', and, therefore, stamp his own personal approval on the version of events that they are giving? Because if that isn't prejudicial to a fair trial, I don't know what is.

I would rather live in a country with a few criminals on the loose than one where I could be sent to prison for something I didn't do based on an anonymous accusation and anonymous witnesses. Some of you should read the Trial by Kafka. Think of what a government could do with these powers.

Once again, I think the Law Lords have got it absolutely right. And, once again, the Government is planning to stamp all over justice and screw around with things for the sake of a quick headline.
It's getting depressing how much better the unelected chamber is than the elected chamber at protecting the rights of the people.


How exactly is the 'justice system' to work out the credibility of the witness? Is it to keep track of all of our relationships, everything we say and do, all the personal grudges we've ever held?

Furthermore, if the 'justice system' decides that the witness is credible, what happens then? Is the Judge to tell the jury that 'this witness is credible', and, therefore, stamp his own personal approval on the version of events that they are giving? Because if that isn't prejudicial to a fair trial, I don't know what is.
I believe he comes from a country with an inquisitorial rather than adversarial system of trials. So the judge would have a much more active role in questioning witnesses and so on than in the adversarial system.

This is true. But how can a witness be expected to testify against well connected, or influential people who are in a position to cause them great harm, even from behind bars?

I suppose they could be given a 24 hour bodyguard service then. At state expense of course. But that will be a poor replacement of simply not being known as a witness by those willing to have someone killed as a matter of revenge.

The problem being, at what point does protection from danger become protection for witch hunters?

The problem being, at what point does protection from danger become protection for witch hunters?

Therein comes the issue of witness protection programs. Witnesses are protected when there is a judgment made that the witness is in potentially lethal danger when testifying against people in a position to commit harm to the witness via proxy. This is particularly true of cases involving trials against gangs and members of organized crime.

Why not use the same standard then?

So what do you think? Law Lords right or wrong?

Wrong. I suspect the difficulties arising from the implementation of the law lord's provision would be deleterious for the judicial process, and allow the guilty to walk free.

This is why I want to hug George Washington and his associates. We've had the right to face our accusers for over 200 years now.

Welcome to the modern age, guys.

Is the Judge to tell the jury that 'this witness is credible', and, therefore, stamp his own personal approval on the version of events that they are giving? Because if that isn't prejudicial to a fair trial, I don't know what is.
Well, for starters there's no 'jury' here...

Though lowest level court can have up to 3 laymen, appointed by municipal cabinet (which itself is chosen by democratically elected city council), assisting a professional judge in judging the case. But their role is not similar to what 'jury' is normally percieved to be, even though the result is determined by a vote.

Higher level courts consist only of professionals who know the law so there's no law by popularity in force here.

The rest was succinctly expressed by Forsakia.

btw. It should be noted that lower level courts can try simple cases without holding a session where every party is present by going through available documents & evidence and reaching a descision...which can then be appealed if result is disfavorable to prosecution or defendant.

This is why I want to hug George Washington and his associates. We've had the right to face our accusers for over 200 years now.

Welcome to the modern age, guys.

er...perhaps you need to check your timeline. This is a case dealing with the erosion of an existing right, not giving us a new right.

So your comment makes no sense whatsoever. :)

Well, for starters there's no 'jury' here...

Though lowest level court can have up to 3 laymen, appointed by municipal cabinet (which itself is chosen by democratically elected city council), assisting a professional judge in judging the case. But their role is not similar to what 'jury' is normally percieved to be, even though the result is determined by a vote.

Higher level courts consist only of professionals who know the law so there's no law by popularity in force here.

The rest was succinctly expressed by Forsakia.

btw. It should be noted that lower level courts can try simple cases without holding a session where every party is present by going through available documents & evidence and reaching a descision...which can then be appealed if result is disfavorable to prosecution or defendant.

Even in a non-jury system, however, the judge cannot possibly be expected to know everything about the relationship between the defendant and the witness. If the defendant can't see them and say "that's my ex/enemy/I ran over his dog", then whoever is trying the facts will not know a potentially vital part of a defence.

This is especially worrying because this desire to give anonymity seems to be aimed at gang cases, so the defendant and the witness may well have a huge back story that the court doesn't know about.

Finally, while you may think this would work better in your system, the fact is that this is about ours - and we do have juries. And if a judge tells a jury that a witness is credible because it is up to him to decide that, then this will undoubtedly have an impact on the weight given by those jurors to that evidence.

It's getting depressing how much better the unelected chamber is than the elected chamber at protecting the rights of the people.
This is completely unsurprising, though. If you need peoples' votes to stay in power, you will take popular actions regardless of whether they're actually the right thing to do or not, because if you don't, you'll lose your job.

The Lords don't have to worry about this, so they can act as in sensible rather than as is popular. For example, the 42-day detention without trial issue is going to get a mauling when it goes to the Lords, and they'll resubmit it, causing more debate on it, and hopefully this time the DUP will vote with the Lib Dems and Tories, instead of getting bribed into voting for New Labour.

I think it is very thoughtful of the Labour party to try and remove all civil liberties. It will save the BNP a lot of trouble when they come to power.

Even in a non-jury system, however, the judge cannot possibly be expected to know everything about the relationship between the defendant and the witness. If the defendant can't see them and say "that's my ex/enemy/I ran over his dog", then whoever is trying the facts will not know a potentially vital part of a defence.

This is especially worrying because this desire to give anonymity seems to be aimed at gang cases, so the defendant and the witness may well have a huge back story that the court doesn't know about.

OTOH he or she might be a person you have insulted but he or she might still be telling the truth...

When someone is given anonymity in a case it's almost guaranteed the reason is because of controversial ties with some participant of the court which means that the testimony is BOUND to be at least partly biased.

I therefore think that a professional board is naturally more capable of dissecting the truth out of witness's claims than any jury consisting of laymen, especially as they aren't restricted by the anonymity clause - Remember, role of the judges is more inquisitive.

Finally, while you may think this would work better in your system, the fact is that this is about ours - and we do have juries. And if a judge tells a jury that a witness is credible because it is up to him to decide that, then this will undoubtedly have an impact on the weight given by those jurors to that evidence.
Of course, because the trial itself is a popularity contest :p

Though, my original comment wasn't really targeted at the absurdness of anonymity but absurdness of the need to demonstrate something that should be bloody obvious to the court already: If a court deems that anonymous witness is dishonest then his or her testimony should be dismissed, it's as simple as that to me.