Let’s unmask this travesty of justice
The use of anonymous witnesses in criminal trials is an assault on open justice and the presumption of innocence.
In 2004, Iain Davis was convicted of murdering two men at a New Year’s Eve Party in Hackney, London. In no small part, the guilty verdict against Davis was reached through the use of anonymous witnesses, something which, according to one leading defence lawyer, is occurring with ‘staggering’ frequency in criminal trials in the UK (1).
The conviction of Davis in 2004 may have passed largely unnoticed, but the Law Lords’ decision last week to overturn his conviction certainly did not. Their conclusion was unequivocal: ‘No conviction should be based solely or to a decisive extent upon the statements and testimony of anonymous witnesses.’
With a number of high-profile convictions now deemed unsafe, because they were secured on the basis of anonymous evidence, the nervous, crime-obsessed tabloid, the Sun, has declared: ‘Anarchy is unleashed.’ Some in the press are panicking that if anonymous evidence is ruled unfit, then gangsters and killers might go free.
If the press is outraged, then the government feels positively humiliated: the Law Lords’ judgement comes as a crushing blow to New Labour. There has been a steady increase in applications for witness anonymity under New Labour’s rule – between 550 and 600 applications in recent years, says one senior lawyer – and the government was planning to make the use of anonymous witnesses even more routine, especially in trials for gang crime (2).
This became clear last June when home secretary Jacqui Smith announced that early assurance of witness anonymity would be a key aspect of her Tackling Gangs Action Programme. In a speech, she argued: ‘In many gun and gang crimes, witnesses know that defendants and their associates have access to firearms and are prepared to use them. We cannot tolerate a situation where witnesses are too scared to come forward, where they are denied the right to access the courts and give evidence free from fear.’ (3)
In other words, witnesses are more likely to testify against someone if the possibility of reprisal is minimised. And what better way to do this than conceal their identity from both the accused, and just as importantly, from the accused’s associates? To this end, witnesses are able to give their evidence from behind screens, visible only to the judge and jury; sometimes even voice-distorting machinery is used, so that their voices are so transformed one cannot tell if they are male or female, young or old.
For all the government, police and media claims that we need to assure witness anonymity in certain cases, there is one major problem: the use of anonymous witnesses is a travesty of justice. As the Law Lords recognised in quashing Davis’ conviction, witness anonymity violates ‘a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence’ (4).
The defendant must know the identity of his accuser; this is essential in order to assess the credibility of the witness’s evidence. It allows both the defendant to challenge a witness on the basis of their particular relationship – perhaps the witness is an embittered ex-lover or a former friend with an axe to grind – and it allows the jury to see how each of the parties responds during the open interaction.
Concealing the identity of a witness from the accused undermines any notion of an open trial. Instead, proposing to grant witness anonymity in an increasing range of cases effectively gives rise to ‘closed court’ procedures, and it implicitly damages the presumption of innocence. We should remember that, whether the defendant is suspected of gangsterism or murder, he is supposed to be innocent until proven guilty; yet the use of hidden, voice-distorted witnesses sends a powerful message that the defendant is dangerous and must have something to hide. As Nigel Rumfitt QC argues: ‘Once the jury see a witness screened off and with their voice distorted, you worry that, despite warnings from the judge and prosecutor not to do so, they will simply assume that the defendant is a dangerous criminal capable of serious violence.’ (5)
Of course, justice might well be done in these cases, but – and this is vital if we are to defend any notion of an open society – it will no longer be seen to be done. In effect, witness anonymity rigs trials in advance. By turning justice into something that proceeds behind the backs of citizens, the state makes a mere show of the legal process.
The question of witness anonymity is not one for students of jurisprudence alone. It has consequences for each and every citizen. We should be suspicious of any measures that make it easier for the liberty of the individual to be withdrawn at the behest of the state. The fact that the authorities are calling for witness anonymity in ‘special cases’ – usually murders, including gangland killings – should only heighten our resistance. It is precisely because there is so much at stake in these cases, where a defendant can potentially be imprisoned for the rest of his or her life, that the trial must be open, free, fair and rigorous.
From 42 days’ detention without charge to the use of anonymous witnesses, from attacks on trial by jury to the undermining of the right to silence, an historic assault has been launched against individual rights and the notion of a fair trial. In the process, individual liberty itself is being clawed back by the authorities. At spiked we believe enough is enough; it is time to defend our rights against the ever lengthening arm of the authoritarian state. Sign up to our campaign – read our 10-point action plan for rescuing rights here, and sign up to the Facebook page here.
Tim Black is senior writer at spiked.
Brendan O’Neill set out spiked‘s 10-point action plan for rescuing democratic rights, and said the use of anonymous witnesses is an affront to natural justice. John Fitzpatrick argued against the double jeopardy rule. Helen Reece thought neither rape defendants nor rape complainants should have the right to anonymity. Claire Fox said TV cameras should be allowed into courtrooms. Or read more at spiked issue Liberties.
(1) Dozens of murder cases at risk after collapse of hitman trial, The Times, 25 June 2008
(2) Dozens of murder cases at risk after collapse of hitman trial, The Times, 25 June 2008
(3) Tackling knife crime, Home Office Press Office, June 2008
(4) Judgments – R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division)) , House of Lords publications, Session 2007-08
(5) Can justice afford witness anonymity, The Times, 23 June 2008
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