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The Director's Guidance on Witness Anonymity

December 2009

Introduction

1. The Coroners and Justice Act 2009 ("the 2009 Act"), which comes into force on 1 January 2010, replaces the Criminal Evidence (Witness Anonymity) Act 2008 ("the CEWAA").

2. This revised Guidance must be read in conjunction with the Attorney General's Guidelines on The Prosecutor's Role in Applications for Witness Anonymity Orders. Those Guidelines and this Guidance set out how Crown Prosecutors must deal with applications for anonymity under the 2009 Act, and associated matters. Crown Prosecutors must also have regard to Rule 29 of the Criminal Procedure Rules.

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General principles

3. The overarching principle of criminal justice is that the defendant must receive a fair trial. The prosecution has a vital role to play in delivering fair trials. Where the prosecution can only present its case in a way which denies the defendant's right to a fair trial, it is under a duty to stop the case, no matter how serious the allegation may be.

4. There is a long-established principle that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial is entitled to be confronted by his accuser in court.

5. If the evidence provided by a proposed anonymous witness is truly the sole or decisive evidence against an accused, the application for an anonymity order is likely to fail. Therefore in every case where consideration is to be given to an application the Crown Prosecutor must ensure that the police have obtained as much corroborative evidence as possible. On occasion any delay in the seeking of such evidence may compromise the ability to secure it and so immediate action in this respect is important. Where the proposed anonymous evidence will not be the sole or decisive evidence it will nevertheless remain important to continue to seek corroboration and the success of an application may depend on the nature and extent of any support, particularly if it is independent of the witness.

6. An application for a witness anonymity order should only be made when, after full consideration of all the available alternatives, a clear view is taken that conditions A, B and C in section 88 of the 2009 Act apply.

7. Chief Crown Prosecutors must ensure that arrangements are in place with police forces so that the CPS has the earliest notification of any case or investigation in which witness anonymity may be sought.

8. It is not possible to set down guidance that will cover every eventuality. Some cases may be at an early stage of investigation; in others, the question of anonymity may first come to the attention of the Crown Prosecutor after charge. Crown Prosecutors must apply the following guidance in a way that does not inhibit the effective progress of the case, while ensuring that proper consideration is given to the questions of anonymity at the most appropriate time.

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Information required when considering whether an order is needed

9. If an anonymity order may be sought, the Crown Prosecutor must ensure that the police provide, in writing, the information set out below. Where appropriate, the documents should be marked clearly with the word "SENSITIVE". The Crown Prosecutor must ensure that the police have evidenced each of the conditions A, B and C to ensure that the conditions are satisfied as far as is reasonably practicable (section 88) and all the relevant considerations (section 89) have been taken into account and where necessary examined.

10. The primary responsibility of editing any sensitive information from the otherwise disclosable documentation lies with the police. When the editing and/or copying process falls to be completed by the CPS for disclosure or any other purposes, the editing must be completed by the Crown Prosecutor and again checked by the Crown Prosecutor following its copying, prior to the documentation being sent to the defence. If a document with sensitive information is to be disclosed during a trial the responsibility for checking the editing of any sensitive information before it is disclosed to the defence lies with prosecuting counsel. The following documentation is required:

  1. a Superintendent's request for a witness anonymity application on behalf of a named prosecution witness;
  2. either:
    • a full evidential statement from the witness giving their true identity; or
    • where that person is a police officer or a member of any other agency responsible for the investigation of criminal offences, a report from the Superintendent setting out why it is appropriate for the Crown Prosecutor to apply to the court to exercise its discretion under section 87(2)(a) not to be informed of the identity of the witness;
  3. a redacted version of the witness' full evidential statement with all elements that could identify the witness removed;
  4. either:
    • a statement from the witness setting out their fear about giving evidence if their identity is made known to the defendant, and, where appropriate, whether the witness will not give evidence without anonymity; or
    • for police witnesses only, confirmation that witness anonymity is required to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise);
  5. a report which includes:
    • a full risk assessment undertaken by the police (complying with Osman v UK (2000) 29 EHRR 345), which should include an assessment of the reasonableness of the witness' fear and explaining why any protection measures are not adequate;
    • a consideration of special measures and the reasons why a special measure, or a combination of special measures, would not be adequate to deal with the risk identified;
    • an indication whether any special arrangements have been made with the witness (for example, a house move).

Disclosure

11. It was said by the Court of Appeal in R v Mayers ([2008] EWCA Crim 1418 that "if the judge entertains reservations about the good faith of the efforts made by the prosecution investigation into any relevant consideration bearing on the question of witness anonymity, an application will be met with a point blank refusal". The following principles of disclosure were highlighted by the court:

  1. the onus is on the prosecution to ensure a fair trial. Where an application for anonymity is being considered, the obligations of the prosecution in respect of disclosure go much further than the ordinary duties of disclosure;
  2. the disclosure process is crucially engaged in addressing the section 89 considerations and each consideration should specifically be investigated and addressed;
  3. the prosecution must be proactive, and, if relevant, focus closely on the credibility of the witness. This should if possible be objectively verified;
  4. a detailed examination of the background of each anonymous witness will almost inevitably be required. This is likely to include a detailed examination into any relationship between the anonymous witness and (i) the victim, (ii) the victim's family and associates, and (iii) other witnesses (including anonymous witnesses). This will include an investigation into the possibility of any improper collusion or cross-contamination between the witness and others involved in the case; and
  5. the following information should be included within the police report:
    • the background of the witness, including previous convictions, any other the background of the witness, including previous convictions, any other bad character evidence and details of their involvement in any previous case where the police know that their evidence may not have been believed;
    • whether the police are aware of any relationship between the witness and the defendant and any associates of the defendant;
    • whether the police have any reason to believe that the witness may not provide truthful evidence to the court.

12. In coming to a decision, the Crown Prosecutor must first evaluate the reasonableness of the fear of the witness. The fear may be connected to a specific incident (such as a threat made to the witness), or it may be based on a general climate of fear in the environment in which the witness lives. In either case, it is essential that the Crown Prosecutor is satisfied that the police have evidence to support the concerns of the witness.

Special provisions for police officers or members of any other agency responsible for the investigation of criminal offences

13. In any case involving a witness who is a member of the public, the police must provide an unredacted statement providing the true identity of the witness in respect of whom an application is sought.

14. However, in a case involving a witness who is a police officer or a member of any other agency responsible for the investigation of criminal offences, the position may be different. Although the general principle that the Crown Prosecutor should be made aware of the true identity of the witness should be followed wherever possible, there may be occasions when the agency considers that it is appropriate for the court to exercise its discretion under Section 87(2)(a) and not be informed of the identity of the witness.

15. Where the Superintendent is satisfied that the prosecution should be invited to make such an application to the court, he should make a report to that effect to the Crown Prosecutor. In such instances, the police need not supply a full evidential statement from the witness giving their true identity at this stage.

16. The Crown Prosecutor must consider such a request together with all the other material supplied in accordance with paragraphs 10 and 11 of this Guidance. The Crown Prosecutor should follow paragraphs 24 - 35 of the Guidance which sets out the process for considering whether to make an application.

17. If the Crown Prosecutor is satisfied that it is appropriate to apply for a witness anonymity order and to invite the court not to require the identity of the witness to be supplied to it, the Crown Prosecutor should follow paragraphs 39 - 46 of the Guidance but also invite the court to exercise its discretion under Section 87(2)(a) not to require it to be informed of the true identity of the witness concerned.

18. If the Crown Prosecutor is satisfied that it is appropriate to apply for a witness anonymity order but on the basis that the court should be informed of the true identity of the witness concerned, they should discuss this aspect of the application with the Superintendent. If agreement is reached on that basis, the true identity of the witness should be revealed to the Crown Prosecutor in a form that is agreed. The application to the court may then be made in accordance with Section 87(2) and the identity of the witness should be revealed to the court in the form determined by the court.

19. If agreement with the Superintendent is not reached about the way forward, the matter should be referred to the Head of the Complex Casework Unit or the Head of HQ Casework Division in accordance with paragraph 40 of the Guidance.

20. It is a matter for the court to decide whether to grant the order and whether it shall be informed of the identity of the witness.

21. Where the court decides that it must be informed of the identity of the witness, the Crown Prosecutor and the relevant agency must decide whether they are willing to comply with that part of the court's order.

22. Where the Crown Prosecutor and the agency decide that it would not be in the public interest for the identity of the witness to be given to the court, the application of a witness anonymity order should be withdrawn.

23. Where the Crown Prosecutor and the agency decide that it is appropriate to inform the court of the identity of the witness, both the court and the prosecutor should be informed.

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Considering whether to make an application

24. Section 88 of the 2009 Act sets out the conditions (A - C) that must be met before the court will make a witness anonymity order. Accordingly, Crown Prosecutors must be sure that they have sufficient evidence or information to satisfy each of these conditions. An anonymity order should be regarded as an exceptional measure of last practicable resort. A judge must be satisfied of each of the three Conditions before an order can be made and each application is likely to be fact specific. It may often be helpful to consider condition C first, then A and then B. As the statutory regime makes clear, only those orders that are truly necessary and that are consistent with a fair trail will be made.

25. Crown Prosecutors must also be able to show that any fear expressed by the witness that they, or any other person, would suffer death or injury, or that there would be serious damage to property, if they were identified to the defendant, is reasonable. This could be, for example, a threat to the witness's children ("we'll get your kids") or a fear that their home will be damaged ("we'll fire-bomb your house").

26. Once the Crown Prosecutor is satisfied that the fear of the witness is reasonable, they must consider whether any statutory special measures or protective measures available to the police would address the fear of the witness. These include:

  • applying to have the statement of the witness read (section116 Criminal Justice Act 2003);
  • applying for one of the measures provided by the Youth Justice and Criminal Evidence Act 1999 for intimidated witnesses - screening the witness from the accused; evidence by live link; evidence given in private;
  • applying for reporting restrictions (section 46 YJCEA 1999);
  • any safeguards that the police could provide, including any witness protection scheme; prosecutors should, however, note the comments of the Lord Chief Justice in Mayers, namely that "witness relocation can only be a practicable alternative in the rarest of circumstances".

27. Section 89 of the Act sets out some relevant considerations for the court to take into account in deciding whether to make a witness anonymity order. Crown Prosecutors should have particular regard to Sections 89(2)(b), (d) and (e) which deal with the credibility of the witness; whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed; and whether there is reason to believe that the witness has a tendency, or motive, to be dishonest.

28. Crown Prosecutors should carefully consider any defence statement provided. However, a defence statement may only be served after a decision to apply for anonymity has been made and after the initial detailed disclosure exercise in respect of the anonymous witness has been undertaken. The question of disclosure in respect of the anonymous witness should specifically be addressed again immediately upon receipt of the defence statement and further investigations made if necessary.

The distinction between credibility and reliability

29. A key issue for the Crown Prosecutor centres on the distinction between the witness' credibility and their reliability.

30. In many instances, the only issue for the defence will be the reliability of the witness and the accuracy of their evidence. Here, it may be less critical to know the identity of the witness.

31. This may be the case where the witness is a police officer acting undercover, or a civilian witness of good character, unconnected with the defendant or other witnesses.

32. In other cases, for example where the witness may be involved in criminal activity or knows the defendant, and particularly where there may be some criminal association between them, the credibility of the witness may be substantially in issue. Crown Prosecutors will have considered any issues surrounding the credibility of the witness when they received the various reports referred to in paragraphs 10 and 11 of this Guidance. But at this stage of the process it is essential that the issue is reconsidered in the light of section 89(2) of the 2009 Act.

33. Where it is clear that the credibility of the witness may be in issue, the Crown Prosecutor must consider the relative importance of the witness' evidence to the prosecution case. Where it remains the sole or decisive evidence, it is unlikely that the defendant will be able effectively to cross-examine an anonymised witness.

34. However, each case must be decided on its own facts. Sometimes, even where credibility may be in issue, the prosecution will be able to provide sufficient material to the defence, short of identifying the witness, to allow an effective cross-examination to take place.

35. Crown Prosecutors must not allow cases to continue where they have genuine grounds for believing that the granting of a witness anonymity order would prevent the defendant from having a fair trial.

Level of authorisation within the CPS

36. Where a Crown Prosecutor is satisfied that it is appropriate to apply to the court for a witness anonymity order, they must inform the Head of their Complex Casework Unit or Head of their HQ Casework Division. It is the responsibility of the Head of the Complex Casework Unit, or the Head of HQ Casework Division, to decide whether to authorise an application to the court for a witness anonymity order. In relation to test purchase officers and surveillance officers, this function can be devolved from CCU Heads to any Level E lawyer and also to Level D lawyers who have been specifically designated by their CCP to undertake this role. Areas will need to record the names of lawyers who have been so designated. However authorisation for anonymity applications for civilian witnesses will be retained by CCU Heads.

37. In the absence of the CCU Head, the 'owning' Chief Crown Prosecutor should be authorised to take the decision. Therefore, for those cases that meet the criteria for automatic submission to the CCU (that is, because of the type of case, irrespective of any application for witness anonymity orders), authorisation is delegated to the Chief Crown Prosecutor - Group Chair. For all other cases, authorisation is delegated to the Chief Crown Prosecutor for the Area where the case is being handled.

38. For the Greater Manchester Area, in the absence of the CCU Head and the Chief Crown Prosecutor, the power to authorise applications is delegated to a Level E lawyer nominated by the Chief Crown Prosecutor for the purpose.

39. For HQ Casework Divisions, the nominated Deputy should be authorised to take the decision in the absence of the Head of Casework Division.

When the Crown Prosecutor decides not to make an application

40. Where a Crown Prosecutor decides that it is not appropriate to make an application, they must advise the police promptly. Where the police are not content with the decision, the Crown Prosecutor should notify the Head of the Complex Casework Unit or the Head of HQ Casework Division, so that the issue may be considered further.

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Scope of the 2009 Act

41. The vast majority of applications are likely to occur in the Crown Court. However, Crown Prosecutors should note that such orders may be made in magistrates' courts, and particularly in the Youth Court where more serious offences are tried.

42. In cases that are triable either way, Crown Prosecutors will bear in mind that the need for an anonymous witness order is a consideration that may be placed before the court under section 19(3) Magistrates' Courts Act 1980 as a reason why Crown Court trial is more appropriate.

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Making the application

43. An application for a prosecution witness anonymity order may only be made by a Crown Prosecutor or by counsel instructed on their behalf. Crown Prosecutors must ensure that counsel has the appropriate experience and is fully conversant with this Guidance.

44. Generally, the Crown Prosecutor should advise the court and the defence that the prosecution intends to apply for a witness anonymity order no later than the Plea and Case Management Hearing.

45. Sections 87(2) to (4) of the Act and Rule 29 of the Criminal Procedure Rules set out how the court should deal with any application. The court must give every party to the proceedings the opportunity to be heard on an application for a witness anonymity order, but it also has the power to hear from the prosecution in the absence of the defendant and his legal representative.

46. In making an application, the prosecutor must ensure that the court is provided with all material relevant to the application. This should include information about the decision-making process leading up to the application. The information listed at paragraphs 10 and11 should be supplied to the court as a matter of routine. Material will be relevant if the prosecutor relies upon it to support the application, or if it may tend to undermine or qualify the justification for making the order or for making it in the form sought by the prosecutor. The Crown Prosecutor must ensure that the court is addressed on each of the three conditions set down in section 88 of the 2009 Act and has regard to any relevant considerations (section 89). The court must be informed of the steps taken by the prosecution to try to secure the evidence of the witness short of anonymity.

47. At the inter-partes hearing, the defence will be able to make representations, but will not have sight of any sensitive material disclosed to the judge.

48. If they consider it necessary, judges may invite the Attorney General to appoint a Special Counsel to assist the court.

49. A request from the court for the appointment of a Special Counsel is made to the Attorney General's Office. Where the judge decides to seek Special Counsel, the Crown Prosecutor must promptly notify their Complex Casework Unit Head, or HQ Casework Division Head, who will immediately inform Sue Patten by telephone (020 7271 2456) and/or by e-mail.

50. The Attorney General's Guidelines refer in greater detail to the role of the prosecutor when the court is considering whether to invite the Attorney to appoint Special Counsel. The Guidelines set out the duty of the prosecutor in ensuring that the Attorney is provided with all relevant material.

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Successful applications

51. Where a witness anonymity order is granted, there is an absolute duty upon the prosecution to provide the defence with as much information as possible - commensurate with the granting of anonymity - to enable the defence effectively to cross-examine the anonymous witness. This particularly relates to material that might undermine the prosecution case or assist the defence.

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Discharge or variation of a witness anonymity order

52. Any party may apply for a witness anonymity order to be varied or discharged if there has been a material change in circumstances. This power may be used where, for example, a witness who previously gave evidence anonymously is content for the anonymity to be lifted. The court can also vary or discharge an order of its own initiative. The court must give every party to the proceedings an opportunity to be heard before determining an application for variation or discharge or before varying or discharging an order on its own initiative.

53. A witness anonymity order may be varied or discharged after proceedings have finished. The court may vary or discharge the order either on an application by a party to the proceedings or on an application by the witness him or her self. This may be appropriate for example, if a considerable period of time has elapsed since the trial and the circumstances of the witness have changed. Before discharging or varying an order the court must provide all parties to the proceedings and the witness the opportunity to be heard unless it is not reasonably practicable to do so.

54. An "appeal court" (defined in the Act as the Court of Appeal, Court of Appeal in Northern Ireland or Court Martial Appeal Court) can discharge or vary a witness anonymity order made in the proceedings which gave rise to the appeal. There is no provision for an application procedure; it is intended that the power will be exercised by the appeal court of its own motion, how and when it thinks fit.

55. If an order is varied or discharged, the prosecutor must notify the police and CCU Head or HQ Casework Division Head immediately. Once an order is made, the prosecution advocate has a duty to ensure that the conditions are kept under review during the trial and that, should there be a material change in circumstances, the judge is informed.

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Power to make orders under the 2008 Act

56. Sections 1 to 9 and 14 of the CEWAA (which provide for making a witness anonymity under that Act) are repealed. Paragraphs 16 and 17 of schedule 22 to the 2009 Act preserve the effect of a witness anonymity order made under the CEWAA before 1 January 2010 and set out how such orders are to operate.

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Maintaining records of applications

57. The CPS has undertaken to maintain a register of all cases in which an application for a witness anonymity order is made. That register must contain:

  1. details of the case;
  2. the nature of the witness in respect of whom a witness anonymity order was sought (civilian, undercover police officer; test purchase officer; other (to be specified));
  3. on what grounds the order was sought;
  4. details of any requested order that was not sought;
  5. whether Special Counsel was sought by the court;
  6. the outcome of the application and any reasons given by the court; and
  7. the outcome of the case, and whether the case was stopped because an order was not granted.

58. Complex Casework Unit Heads and HQ Casework Division Heads are personally responsible for maintaining the register. The register is at Annex A. An annotated version of the register to assist completion is at Annex B.

59. The register should be updated during the life of the case and sent to Dan Jones and Anne White in Policy Directorate on the last working day of each month. Complex Casework Unit Heads and HQ Casework Division Heads must submit nil returns where appropriate.

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Conclusion

60. The use of an anonymous witness should only be considered where it is justified under the 2009 Act and where such a course is consistent with a fair trial. Applications should be made only in those cases where it is absolutely necessary.

61. This guidance will be kept under review.

KEIR STARMER QC
DIRECTOR OF PUBLIC PROSECUTIONS
DECEMBER 2009