Advanced Search

How to use this Legal Guidance

CPS Public Consultations

We want to hear your views about our prosecution policy and so we conduct consultations to help inform our policy making.

There are currently no active public consultations but visit the consultations page to view expired consultations and reports

Home » Professionals » Legal Guidance » V to Z » Witness Protection and Anonymity

Witness protection and anonymity

This Guidance was last updated on 14th August 2008.

Introduction

  1. The openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights (the right to a fair trial). This underpins the requirement for a prosecution witness to be identifiable not only to the defendant, but also to the open court. It supports the ability of the defendant to present his case and to test the prosecution case by cross-examination of prosecution witnesses. In some cases it may also encourage other witnesses to come forward. However, under Convention case law, granting a witness anonymity is not necessarily incompatible with the Convention.
  2. The principle of open justice can act as a bar to successful prosecutions, particularly in homicides, organised crime and gun crime. Witnesses may fear that if their identity is revealed to the defendant or his associates then they - or their friends and family - will be at risk of serious harm.
  3. In most cases the police will establish whether a witness is in fear and should inform the prosecutor. Ideally, a discussion about the type of 'protection' that should be applied for will be the subject of discussion between the police and the prosecutor at the pre charge stage. Occasionally information about a witness being in fear may come from another source (for example the Witness Care Unit or the Witness Service).
  4. When informed that a witness is fearful of giving evidence, prosecutors must liaise closely with the police to consider the range of options available to them both at common law and by virtue of statute. Prosecutors should seek to ensure that, wherever possible, the witness's fear is allayed and that they are given the requisite protection. Prosecutors must also have regard to the fact that witnesses have rights under the ECHR, namely the right to life (Article 2), the prohibition of torture (Article 3) and the right to respect for private and family life (Article 8). As a public authority it is generally unlawful for the CPS to act in any way which is incompatible with a Convention right (section 6(1) Human Rights Act 1998). Articles 2 and 3 are absolute rights, i.e. rights that are strongly protected and cannot be restricted even in times of war or other public emergency. Article 8 is a qualified right, i.e. a right that is to be balanced against the public interest. This right can be restricted where it can be shown that a restriction is: i) prescribed by law; ii) legitimate; iii) necessary and proportionate; and iv) not discriminatory.

Top of page

Special measures

  1. The Youth Justice and Criminal Evidence Act 1999 (YJCEA) sets out a range of measures that are available to witnesses in criminal proceedings who are deemed to be 'intimidated'. The special measures which may be relevant for intimidated witnesses are: screening the witness from the accused; evidence by live link; evidence given in private.
  2. Section 17 of the YJCEA deals with intimidated witnesses and provides that special measures may be provided where the quality of evidence given by a witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with testifying in the proceedings. In determining this, the court must take into account a number of factors including the alleged circumstances of the offence, the age and social background of the witness and any behaviour towards the witness on the part of the accused, likely accused or associates of the accused.
  3. Special measures are not automatically available even if a witness qualifies as an intimidated witness. When an application is made by the prosecutor on behalf of an eligible witness, the judge must consider a number of factors before making a decision. These factors are set out in section 19 of the YJCEA. In essence, the judge must consider whether the special measure applied for would 'improve the quality of the evidence'. The judge must also consider all the circumstances of the case including any views expressed by the witness and whether the measure 'might tend to inhibit ....evidence being effectively tested by a party to the proceedings'.
  4. The procedure for making an application for special measures is governed by Rule 29 of the Criminal Procedure Rules (CPR). In the Crown Court applications should be made within 28 days of committal or service of the prosecution case, although the rules allow for later applications to be made. As a consequence of the time frames imposed by the CPR adult witnesses cannot be offered any guarantees prior to the making of the application that special measures will be granted.
  5. Further information about special measures can be found in Archbold from paragraph 8-53 onwards (2008 edition).

Top of page

Reporting Restrictions

  1. Section 46 of the YJCEA enables courts to make a reporting direction in relation to adult witnesses which prohibits any matter relating to the witness to be included in any publication during the lifetime of the witness if it is likely to lead members of the public to identify the individual as a witness in criminal proceedings.
  2. If a reporting direction is made by the court then the following should be excluded from any report if it is likely to lead to the witness's identification:
    • the witness's name;
    • the witness's address;
    • the identity of any educational establishment attended by the witness;
    • the identity of any place of work; and
    • any still or moving picture of the witness
  3. The power under section 46 can only be exercised on an application by the prosecution (or defence).The court must apply a two stage test to determine whether a witness is eligible for this protection along much the same lines as an application for special measures for an adult under section 16 or section 17 of the YJCEA, namely:
    • is the witness eligible for protection; and
    • is a reporting direction likely to improve the quality of the evidence given by the witness?
  4. A witness will be considered eligible if the court determines that the quality of evidence given by the witness is likely to be diminished by reason of fear or distress on the part of the witness in connection with being identified by members of the public as a witness in the proceedings. The court must also consider whether the making of a reporting direction would be in the interests of justice and consider the public interest in avoiding the imposition of a substantial and unreasonable restriction on the reporting of proceedings.
  5. Prosecutors should ensure that it is made clear to potentially eligible witnesses that this is not an anonymity provision and that, unless other relevant special measures are granted, those present in court will be able to see and hear the witness.
  6. Further detailed information about reporting directions under section 46 YJCEA can be found in Policy Bulletin 051/2004
  7. The court also has relevant powers under the Sexual Offences (Amendment) Act 1992, as amended by the YJCEA 1999, schedule 2. The victim in a case of rape or one of the sexual offences listed in the 1992 Act is entitled to 'anonymity' in the press. Once an allegation of one of the relevant offences has been made, nothing can be published which is likely to lead members of the public to identify the victim. The offences listed in the 1992 Act include most offences under the Sexual Offences Act 2003, part 1.
  8. Section 11 of the Contempt of Court Act 1981 empowers the court to impose a permanent ban on the publication of any name or other matter in connection with the proceedings before it which it has allowed to be withheld from the public. The section complements the common-law power of a court, sitting in public, to receive a small part of the evidence (such as the name or address of a witness) in a form which is not communicated to the public.
  9. Current practice is that witnesses should not be required to disclose their address in open court unless it is necessary, as approved by Lord Bingham CJ in 1996. Witness's addresses should not be disclosed to the defence unless it is relevant and necessary for evidential purposes (e.g. the locus of a burglary).

Top of page

Applications to Hold a Crown Court Hearing in camera

  1. There are certain situations where proceedings can be heard in camera, i.e. in private, when the public are excluded and the doors of the court-room are closed.
  2. At common law, a trial on indictment must be held in a public court with open doors (McPherson v. McPherson [1936]). The same principle applies to proceedings in Magistrates Courts (see section 121(4) Magistrates' Courts Act 1980).
  3. However, excluding the public by virtue of the court's inherent common-law powers is justifiable if the administration of justice so requires (Scott v. Scott[1913] A.C. 417, HL). The question for the court to decide is whether a sitting in private is necessary for the administration of justice, for example if there is a possibility of disorder, as in the case of Scott v. Scott.
  4. A decision to sit in camera is not justified merely on the ground that a witness would find it embarrassing to testify publicly (Malvern Justices, ex parte Evans [1988] QB 540 in which the Divisional Court held that it was an inappropriate exercise of discretion for justices to sit in camera for the sole purpose of sparing the defendant the ordeal of giving evidence of 'embarrassing and intimate details' of her personal life).
  5. The necessity principle may, however, be of relevance if a witness is unable or unwilling to give evidence unless the public gallery is cleared; the principal object of the courts is to secure that justice is done. Before making an application for a hearing, or part of a hearing, to be held in camera, prosecutors must consider whether the concerns of the witness could be adequately met by the use of appropriate special measures.
  6. In the Crown Court the procedure for applying for an order that all or part of a Crown Court trial to be held in camera is set out in the Criminal Procedure Rules, rule 16.10. A prosecutor can make an application for proceedings to be held in camera for reasons of national security or for the protection of the identity of a witness or any other person.
  7. The notice of application must be served upon the court and the defence seven days before the trial is due to begin. The appropriate officer of the Crown Court must arrange for a copy of the notice to be displayed in a prominent place within the precincts of the court. The application is then heard, unless the court orders otherwise, in camera, after the accused has been arraigned but before the jury is sworn. The trial is then adjourned for 24 hours after the making of the order, where no application for leave to appeal from the order is made or after the determination of the appeal where leave to appeal is granted.
  8. The disadvantage of applying for all or part of a case to be heard in camera is that the outcome of the application will not be known until the trial is underway which may not provide the reassurance that witnesses seek at an early stage in the proceedings.

Top of page

Concealing the Names of Witnesses

  1. Ordinarily a private witness will be required to give his or her name at the beginning of examination-in-chief. The name of the witness will already have been disclosed in the statements served upon the defence prior to the commencement of the proceedings.
  2. The trial judge, in the exercise of his inherent jurisdiction to control the proceedings may, however, permit a departure from this practice in appropriate cases and may permit a witness to be referred to by a pseudonym. In certain types of case this has become accepted practice, e.g. blackmail (see R. v. Socialist Worker, ex parte Attorney General [1975] QB 637).
  3. Other departures from the usual practice are rare but have included, for example, prostitutes called to give evidence against a woman charged with exercising control over them (R .v. Jones, Dee and Gilbert, unreported, December 1973, CCC). The judge permitted each of the six girls called to give evidence for the prosecution to be referred to throughout the trial by a letter of the alphabet. The rationale was that, unless the anonymity of these former prostitutes was preserved, grave difficulty would be encountered in obtaining evidence in any future case of that nature.

Top of page

Full Anonymity

  1. Applications for witness anonymity are governed by the Criminal Evidence (Witness Anonymity) Act 2008. The Director's Guidance on Witness Anonymity sets out the procedure to be followed when considering whether or not to apply to the court for a witness anonymity order. The Act and the Guidance apply to all witnesses including undercover police officers and police officers involved in test purchase operations. The Director's Guidance can be found in the Legal Guidance section under 'Anonymity - Director's Guidance on Anonymity of Witnesses' and 'Director's Guidance on Anonymity of Witnesses'.

Top of page

Witness Protection

  1. In some very serious cases the risk to witnesses is so great that they need to relocate to another part of the UK and even change their identity. Witness Protection is the means of providing protection measures for people involved in the criminal justice process who find themselves at risk of serious personal harm as a result of that involvement. Witness Protection, as described within the Serious and Organised Crime and Police Act 2005, is generally directed to those persons who have provided crucial evidence and against whom there is a substantial threat. This does not preclude police forces and law enforcement agencies from offering protection measures to witnesses and others at risk.
  2. Many forces have Witness Protection Units who in turn liaise with the Central Witness Bureau. Witness Protection Units are staffed by specially trained officers who provide protection measures to witnesses to whom senior officers have afforded protected person status under the Serious Organised Crime and Police Act or otherwise find themselves at risk as a result of their involvement in the criminal justice process. Not all forces or law enforcement agencies have dedicated Witness Protection Units. Some areas have a single person who acts as a specific point of contact to deal with enquiries about this type of work.
  3. The ramifications for individual witnesses who have to participate in Witness Protection are immense and it should only be used sparingly. The OIC will advise you if a witness has been afforded Witness Protection.

Top of page