| CRIME — Evidence— Witness—Anonymous witnesses— Whether conditions for making of anonymity order met— Whether trial fair — Whether power to admit statements of anonymous witnesses made otherwise than in oral evidence in the proceedings — Criminal Justice Act 2003, ss 114, 116— Criminal Evidence (Witness Anonymity) Act 2008, ss 4, 11
R v Mayers; R v Glasgow; R v Costelloe; R v Bahmanzadeh; R v P and others [2008] EWCA Crim 1418; [2008] WLR (D) 390
CA: Lord Judge CJ, Leveson LJ, Forbes, Openshaw and Burnett JJ: 12 December 2008
In relation to criminal proceedings there was no power, whether under the Criminal Evidence (Witness Anonymity) Act 2008 or otherwise, to admit statements of anonymous witnesses made otherwise than in oral evidence in the proceedings.
The Court of Appeal (Criminal Division) so held in allowing the appeal of Jordan Jamal Mayers against his conviction at the Crown Court at Kingston upon Thames (Gross J and a jury) on 31 July 2007 of murder, dismissing the appeal of Junior Ashley Glasgow against his conviction at the Central Criminal Court (Judge Rook QC and a jury) on 9 May 2008 of murder, dismissing the appeals of Thomas Patrick Costelloe and Manoucehr Bahmanzadeh against their convictions in the Crown Court at Plymouth (Judge Gilbert QC and a jury) on 2 July 2008 of permitting premises to be used for supplying controlled drugs of Class A, and dismissing an appeal by the prosecution under section 35 (1) of the Criminal Procedure and Investigations Act 1996 in respect of a ruling in the Crown Court at Bristol (Royce J) on 19 September 2008 relating to a retrial of P, V and R for murder.
LORD JUDGE CJ, giving the judgment of the court, said that the Criminal Evidence (Witness Anonymity) Act 2008 represented Parliament’s response to the decision of the House of Lords in R v Davis [2008] 3 WLR 125. The common law rules relating to the anonymity of witnesses had been abolished, but witness anonymity orders continued to be permissible provided that they were made in accordance with the Act. The effect of s 11, which governed the position where an appeal court was considering a case in which an anonymity order had been made in a trial which had ended before the commencement of the Act, was that the order had to be reconsidered as if the conditions in the Act had applied. The Act sought to preserve the delicate balance between the rights of the defendant and the rights of witnesses under the Convention for the Protection of Human Rights and Fundamental Freedoms. An anonymity order should be regarded as the special measure of last practicable resort. The court could not accept that witness relocation would normally provide a practicable alternative to an anonymity order. Existing principles were to be applied, not least the principle that the prosecution must comply with its duties in relation to full and frank disclosure (subject, however, to public interest immunity). The process as a whole must be fair. The pre-conditions which had to be established before a witness anonymity order might be made were set out in s 4. The condition in s 4(3)(a), relating to the safety of the witness or another person, was not limited to risks attributable to the actions of the defendant personally, but applied where there was a threat from any source. In relation to undercover police officers the normal problem was not the same as that consider in R v Davis, because knowledge of the true identities of the officers would rarely be of importance to the defendant. On application of the principles, the conviction in R v Mayers was unsafe since the court could not be confident that everything relating to the witness’s credibility, motivation and integrity had been revealed, but the convictions in R v Glasgow, R v Costelloe and R v Bahmanzadeh were safe. R v P concerned a retrial in respect of which the trial judge had reconsidered an earlier ruling about anonymity, and the prosecution challenged his conclusion that he had no power to admit statements of anonymous witnesses made otherwise than in oral evidence in the proceedings. The Act was silent about the use of such evidence, which was generally governed by s116 Criminal Justice Act 2003. Contrary to the prosecution’s argument, the language of s116(1)(b) was clear and required disclosure of the witness’s name, not just confidentially or secretly to the judge, but to the defence. Further the prosecution’s alternative argument, relying on s114 of the 2003 Act, which governed admissibility “in the interests of justice”, could not be accepted because its logical conclusion would involve rewriting the 2008 Act. |
