Witness protection and anonymity

• Introduction
• Special Measures
• Reporting restrictions
• Restricting Public Access
• Withholding the Name and Address of a Witness from the Public
• Other Forms of Protection
• Witness Anonymity Orders
  • Introduction
  • Considering whether to make an application
  • Making an application
  • Arrangements before and at trial
  • Discharge or variation
  • The Magistrates’ Court
  • Applications by private prosecutors
• Anonymity in Investigations
• Records of anonymity applications

Introduction

This guidance replaces both the previous Witness Protection and Anonymity legal guidance and the Director’s Guidance on Witness Anonymity 2009.

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.

The principle of a fair and public trial is enshrined in Article 6 of the European Convention on Human Rights, which includes:

“(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….

(3) Everyone charged with a criminal offence has the following minimum rights:
…
(d) to examine or have examined witnesses against him…”

See Human Rights and Criminal Prosecutions: General Principles for further guidance.

Similarly, an important aspect of the right to a fair trial, well-established in domestic law, is that a defendant is entitled to be confronted by and cross-examine their accuser in court. The importance of open justice is also well-established (see, for example, Guardian News v Westminster Magistrates’ Court [2012] EWCA Civ 420).

However, principles such as the right to be confronted by an accuser and open justice can on occasion act as a barrier to justice. This can include where potential witnesses may fear that if their identity is revealed to the defendant or their associates, or to the wider public, then they or their family or friends will be at risk of serious harm. This can arise, in particular, in cases of homicide or other serious violence, organised crime, and terrorism.

In most cases, the police will identify if the witness is at risk and should inform the prosecutor as soon as it becomes known. This enables a discussion between the police and prosecutor to identify the options available and agree what steps to take regarding both the witness’s evidence and their protection. Prosecutors should seek to ensure that the risk is addressed. Prosecutors must also ensure that the witness’s rights under the ECHR are acknowledged and protected.

The options available in such circumstances are considered below, and include special measures, reporting restrictions, restricting public access to the court, withholding the witness’s name and other information about them from the public domain, and other forms of protection, or a combination thereof. However, there may be some cases where the risk involved cannot be addressed by these options and an application for a witness anonymity order should be made. These orders can also be obtained where they are necessary to prevent real harm to the public interest. Such applications should be a measure of last resort.

Special Measures

Part II Chapter I of Youth Justice and Criminal Evidence Act 1999 (YJCEA 1999) sets out a range of measures that may be available to witnesses in criminal proceedings who are “vulnerable” or “intimidated”. See the legal guidance on Special Measures and Part 18 of the Criminal Procedure Rules.

Section 17(1) YJCEA 1999 provides that a witness is eligible for special measures if the quality of evidence given by that witness is likely to be diminished by reason of fear or distress in connection with testifying in the proceedings.

Section 17(4) and (5) provides that a witness will be automatically eligible for special measures if they are a complainant in respect of a sexual offence or an offence under section 1 or 2 of the Modern Slavery Act 2015 or if they are a witness in proceedings for certain “relevant offences”, unless they inform the court that they do not wish to be so eligible. The relevant offences are listed in Schedule 1A to the YJCEA 1999, and include various violent offences in which a firearm or knife was either used or in some circumstances carried. Even though a witness may be automatically eligible, the type of measures(s) sought will still need to be canvassed with the witness and applied for.

The special measures which may be relevant for intimidated witnesses include screening the witness from the accused, evidence by live link and evidence given in private.

Reporting restrictions

See generally the legal guidance on Contempt of Court, Reporting Restrictions and Restriction on Public Access to Hearings and Reporting Restrictions – Children and Young People as Victims, Witnesses and Defendants. Breach of a reporting restriction is a criminal offence.

The reporting restrictions available depend on the age of the victim, witness or defendant, the nature of the proceedings and the court.

Reporting restrictions which are available to those under 18 include the following:

• Section 49 of the Children and Young Persons Act 1933 (CJPA 1933) provides for automatic reporting restrictions for those under 18 who are defendants or witnesses in criminal proceedings in the youth court and appeals from the youth court. Prosecutors should note that such restrictions will lapse once the person in question reaches the age of 18: section 49(1) states that it applies “while he is under the age of 18” and see also R (on the application of JC) v Central Criminal Court [2014] EWCA Civ 1777 (although this case concerned section 39 CJPA 1933, which is now applicable to civil proceedings only, the reasoning is similarly applicable to section 49).
• Section 45 YJCEA 1999 provides for discretionary reporting restrictions for those under 18 who are defendants or witnesses in other criminal proceedings. Again, prosecutors should note that such restrictions will lapse once the person in question reaches the age of 18: section 45(3) states that it applies “while he is under the age of 18”. 
• To avoid the issue of reporting restrictions lapsing once a child reaches the age of 18, prosecutors may rely on Section 45A YJCEA 1999, which provides for discretionary lifelong reporting restrictions for victims and witnesses who are under 18 when the proceedings commence. Such orders will not automatically lapse on the person reaching 18. The court must be satisfied that (a) the quality of any evidence given by the person, or (b) the level of co-operation given by the person to any party to the proceedings in connection with that party's preparation of its case, is likely to be diminished by reason of fear or distress on the part of the person in connection with being identified by members of the public as a person concerned in the proceedings.

Section 46 YJCEA 1999 provides a similar (discretionary, lifelong) power to section 45A in respect of adult victims and witnesses.

The Sexual Offences (Amendment) Act 1992 creates an automatic prohibition on the publication of details that identify a victim of rape or other serious sexual offences, and there is a similar provision in respect of victims of female genital mutilation under schedule 1 to the Female Genital Mutilation Act 2003.

There are also automatic reporting restrictions on certain pre-trial hearings (see the Contempt of Court, Reporting Restrictions and Restriction on Public Access to Hearings legal guidance). However, such restrictions generally only last until the conclusion of the trial(s).

Prosecutors should obtain information about whether a reporting restriction is sought by a victim or witness. In approaching applications in respect of those under 18, prosecutors should note that the requirement in section 44 of the Children and Young Persons Act 1933 for courts to have regard to the welfare of children and young persons brought before them is not limited to defendants.

Prosecutors should ensure that it is made clear to potentially eligible witnesses that reporting restrictions are not an anonymity provision and that, unless relevant special measures are granted, those present in court will be able to see and hear the witness in court and reference will be made to them by name.

In a case in which a witness is or may be eligible for anonymity or protection, prosecutors should additionally consider whether reporting restrictions may be appropriate to further protect the witness.

Restricting Public Access

The court has a common law power to restrict public access to a courtroom and hear part or all of a trial in private. Such restrictions may only be imposed where it is necessary to avoid the administration of justice from being frustrated or rendered impractical (AG v Leveller Magazine [1979] AC 440). Examples include restricting access to control disorder, for reasons of national security, or for the protection of a witness or any other person. The court may make such a restriction either on application by a party or of its own initiative. See Part 6 of the Criminal Procedure Rules for the relevant procedure and the legal guidance on Contempt of Court, Reporting Restrictions and Restriction on Public Access to Hearings.

Further powers are available in relation to children and young people. It should be noted generally that where Convention rights are engaged, there is an inherent jurisdiction to restrict publicity beyond the statutory provisions: S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47. Note also the restrictions on who may be present in a youth court (section 47(2) CYPA 1933), and the power to exclude the public but not bona fide representatives of the media when a child or young person gives evidence in certain proceedings (section 37(1) CYPA 1933).

Prosecutors should note that the power of a court under common law to restrict public access to a courtroom and to hear evidence in private is separate from the special measure available under section 25 YJCEA 1999 for evidence to be given in private, which prosecutors should consider in the first instance.

Withholding the Name and Address of a Witness from the Public

Courts also have a common law power to withhold the name of a witness or other information about them, such as an address, from the public.

Ordinarily a witness will be required to say their name at the beginning of examination-in-chief. The court, in the exercise of its inherent jurisdiction to control proceedings, may permit a departure from this practice in certain cases. The witness may not be required to give their name in public and instead may be allowed to write their name down. This may be appropriate in some types of cases, such as blackmail, so that the name of the witness, is not in the public domain (although it will still be known to the parties).

Where a court makes such a direction, section 11 of the Contempt of Court Act 1981 provides that the court may also prohibit the publication of that name or matter in connection with the proceedings. Prosecutors should consider asking the court to impose such a restriction to reduce the risk that that anyone with knowledge of the witness’s name could publish it. This is all the more important in the age of social media and instant communication.

A witness should not be required to disclose their address in open court unless it is necessary, such as where it is the location of a burglary.

Other Forms of Protection

In some very serious cases the risk to a witness is so great that they may need to relocate to another part of the country or even change their identity. Witness protection is the means of providing protective measures for people involved in the criminal justice system who find themselves at risk of serious personal harm as a result of that involvement.

Witness protection, as defined in Chapter 4 of Part 2 of the Serious 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. However, this does not preclude police forces and other investigative agencies from offering protection measures to any person whose safety is reasonably believed to be at risk in view of the criminal conduct or possible criminal conduct of another person.

Witness Anonymity Orders

Introduction

Section 86 of the Coroners and Justice Act 2009 defines a witness anonymity order as an order that requires such measures to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings. Such measures may include withholding the witness’s name and that the witness may use a pseudonym, may be screened, may have their voice modified or may not be asked questions which might identify them.

The police should advise the prosecutor of the likely need to make an application for a witness anonymity order as soon it becomes known in any investigation or case. This may be at the Early Advice stage, on the application of the Threshold Test or Full Code Test, or in some cases post-charge, but it should be as early as possible.

Prosecutors should apply this guidance in a thinking way that does not inhibit the effective progress of the case. They must consider whether the conditions for making a witness anonymity order are met, and if so, whether or not other statutory provisions or other common law powers would address the risk. As the Court of Appeal stated in R v Mayers and others [2008] EWCA Crim 2989 and emphasised in R v Donovan and Kafunda [2012] EWCA Crim 2749, ”a witness anonymity order is to be regarded as a special measure of the last practicable resort”.

In every case where consideration is being given to an application for a witness anonymity order, the prosecutor must ensure that the police have obtained as much evidence as possible that it supportive or corroborative of the witness’s evidence. The success of an application may depend on the nature and extent of any support or corroboration, particularly if it is independent of the witness for whom anonymity is sought.

Prosecutors must not apply for a witness anonymity order if the granting of the order would deny the defendant a fair trial.

Any prosecutor dealing with a witness anonymity application should have an appropriate level of security clearance taking into account the nature of the material underlying the application.

Considering whether to make an application

The Law

The court’s power to make a witness anonymity order is conferred by Part 3 Chapter 2 of the Coroners and Justice Act 2009 (“the 2009 Act”).

Section 88 of the 2009 Act sets out Conditions A to C, all of which must be met before the court may make a witness anonymity order:

• Condition A: the proposed order is necessary-
  1. in order to protect the safety of the witness or another person or to prevent any serious damage to property, or
  2. in order 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).
• Condition B: having regard to all the circumstances, the effect of the proposed order would be consistent with the defendant receiving a fair trial.
• Condition C: the importance of the witness's testimony is such that in the interests of justice the witness ought to testify and-
  1. the witness would not testify if the proposed order were not made, or
  2. there would be real harm to the public interest if the witness were to testify without the proposed order being made.

In respect of the first limb of Condition A, Section 88(6) provides that in determining whether the proposed order is necessary to protect the safety of the witness or another person or to prevent serious damage to injury, the court must have regard (in particular) to any reasonable fear on the part of the witness that, if they were to be identified:

1. they or another person would suffer death or injury, or
2. there would be serious damage to property.

Section 89 of the 2009 Act lists some considerations for the court to have regard to in an application for a witness anonymity order. The list is not exhaustive, and the court can take into account such other matters as it considers relevant: section 89(1)(b).

Applying the law

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 all apply.

Prosecutors must ensure that they have sufficient evidence or information to satisfy a court that each of the three conditions has been met. Each application is likely to be fact specific, and applications for civilian witnesses and those for professional witnesses engaged in law enforcement are likely to differ.

In order to show that the proposed order is necessary under Condition A, prosecutors will need to show the steps taken to try to secure the evidence of the witness short of anonymity.

Where section 88(6) is relied on, prosecutors must be able to show that any fear expressed by the witness is reasonable. 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 prosecutor is satisfied that the police have evidence to support the concerns of the witness. It is likely that fear will be more applicable to civilian witnesses rather than law enforcement professionals. Once a prosecutor is satisfied that the fear of the witness is reasonable, they must consider whether any of the alternative measures set out above would address the fear of the witness.

Prosecutors must show that regard has been had to all relevant considerations in section 89. Prosecutors should have particular regard to section 89(2)(b), (d) and (e) which deal with: the extent to which the credibility of the witness is relevant factor; 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.

These questions must be addressed from the outset in the disclosure strategy for the case. They require a thinking approach to identify reasonable lines of enquiry and obtain relevant material.

Where it is clear that the credibility of the witness may be in issue (as opposed to just their reliability), the prosecutor must consider the relative importance of the witness’s evidence to the prosecution case and any corroborative evidence. Where the witness’s evidence remains the sole or decisive evidence, it is unlikely that the defendant will be able effectively to cross-examine an anonymous witness. 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.

Information required

Before an anonymity order may be sought, the prosecutor should ensure that the police provide the information set out below. Where relevant, the documents should be clearly marked with the appropriate security classification.

1. A report or letter from a Superintendent requesting a witness anonymity application. This should not contain any details which could identify the witness. The document should:
   • provide an explanation of why an order is necessary to protect the safety of the witness or another person or to prevent any serious damage to property and/or to prevent real harm to the public interest, including why any protective measures, special measures, or other steps short of anonymity would not be adequate to deal with the risk identified; and
   • if relevant, set out why it is appropriate for the prosecutor to request the court to exercise its discretion under section 87(2)(a) not to be informed of the identity of the witness.
2. Statements from the witness in respect of whom the order is sought:
   • A redacted evidential statement with all elements that could identify the witness removed;
   • An unredacted evidential statement of the witness; this is not required where it is proposed to request the court to exercise its discretion under section 87(2)(a) not to be informed of the identity of the witness, unless the prosecutor decides that they need to see a version which does identify the witness; and,
   • A statement from the witness setting out any fear that, if they were to be identified, they or another person would suffer death or injury or there would be serious damage to property, and/or, where appropriate, setting out whether the witness will not give evidence without anonymity. This statement should not identify the witness. Such a statement will only be necessary where it is intended to rely on section 88(6) (reasonable fear on the part of the witness) and/or on the first limb of Condition C (that the witness would not testify if the proposed order were not made).
3. Any material relating to Conditions A to C and to the relevant considerations under section 89 not already provided.
4. A full risk assessment (complying with Osman v UK (2000) 29 EHRR 345). This should include an explanation of what protective measures, special measures or other steps short of anonymity have been taken or considered and why these would not be adequate to deal with the risk identified, and, where relevant, an assessment of the reasonableness of the witness’s fear. The risk assessment may include information identifying the witness.

Although the contents of these documents are a matter for the police, prosecutors should consider them carefully to determine whether there is sufficient information and evidence to justify an application for an anonymity order, including any request for the court to exercise its discretion under section 87(2)(a) not to be informed of the identity of the witness. Prosecutors should consider whether further information or evidence may strengthen the application. Prosecutors should request additional information or evidence if necessary. If this material may identify the witness it should be provided as a separate document or in the risk assessment.

For applications concerning undercover officers, there will be some risks which are similar across applications. However, prosecutors should ensure that the information provided is sufficient to demonstrate why an order is necessary to protect the safety of the witness or another person or to prevent serious damage to property and/or to prevent real harm to the public interest in the particular circumstances of the officer and the case under consideration.

Disclosure considerations

In an application for a witness anonymity order the prosecution is under an obligation to put before the court all material that is relevant to the application, including any material capable of tending against it being made. In R v Mayers [2008] EWCA Crim 2989 the Lord Chief Justice said 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” and that the prosecution’s obligations of disclosure in an application for a witness anonymity order “go much further than the ordinary duties of disclosure”. The following principles were also highlighted by the court:

• the onus is on the prosecution to ensure a fair trial;
• the disclosure process is crucially engaged in addressing the section 89 considerations and each consideration should specifically be investigated and addressed;
• the prosecution must be proactive, and, if relevant, focus closely on the credibility of the witness; this should if possible be objectively verified;
• 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), and an investigation into the possibility of any improper collusion or cross-contamination between the witness and others involved in the case; and
• the following information should be included within the police report:
  • the background of the witness, including previous convictions, any other bad character evidence, and details of their involvement in any previous case where their evidence may not have been believed;
  • whether the police are aware of any relationship between the witness and the defendant and/or any associates of the defendant; and,
  • whether the police have any reason to believe that the witness may not provide truthful evidence to the court.

In respect of responsibilities for redacting sensitive information, see the Redaction Manual. In respect of disclosure generally, see the Disclosure Manual.

Making an application

General Procedure

Provisions as to making an application for a witness anonymity order and the hearings of such applications are contained in section 87 of the 2009 Act and CPR 18.18 and 18.19, which include the following:

• The required contents of an application are set out in CPR 18.19(1);
• The application must not include anything that might reveal the witness’s identity and any material disclosed before the determination of an application may be disclosed in such a way as to avoid revealing the identity of the witness or any information that might enable the witness to be identified (CPR 18.19(1)(a) and section 87(4));
• However, unless the court otherwise directs, the applicant must identify the witness to the court (but not to any other party) (section 87(2)(a)); if there is a hearing, then this will take place at the hearing and the prosecutor must present to the court (but not to any other party) the witness’s unedited statement(s), the unedited version of any other edited prosecution evidence or material, and any further material relied on to establish that the conditions in section 88 are met (CPR 18.19(2)); if there is no hearing, then the witness must be identified to the court before giving evidence unless the court otherwise directs (CPR 18.19(2); see below, under ‘Arrangements at Trial’);
• The hearing of an application should usually be in private (CPR 18.18(1)(a));
• The court must give every party to the proceedings the opportunity to make representations, but it has the power to consider matters in the absence of a defendant (section 87(6) and (7) and CPR 18.18(1)(b) and (2)); and,
• The general rule at a hearing of an application is that the court must consider representations by the applicant and then any other parties in the presence of all parties, followed by considering any information withheld from the defendant(s) and further representations by the applicant in the absence of the defendant(s) (CPR 18.19(3)).

Accordingly, prosecutors must ensure that any material which may identify the witness is separately provided to the court and only relied upon at the final stage, where the court considers that information and hears representations by the applicant in the absence of the defendant(s).

The prosecutor should engage actively with the defence and the court to establish whether the application is contested and a hearing required or whether the application can be granted on the papers. For example, a hearing may not be necessary where the witness is recognisable by the defendant and known only by an assumed name (such as an undercover police officer) and there is no likelihood that the witness’s credibility will be in issue. The court may indicate a provisional decision and invite representations within a set period, usually 14 days, including representations about whether or not there should be a hearing.

Where the application is to be decided at a hearing rather than on the papers, or where it has not been possible to establish whether the application may be granted on the papers, the prosecutor should liaise with the police to arrange the attendance of a senior investigating officer familiar with the case at the hearing. The officer should bring any information which it is intended to rely on which may identify the witness, so that this can be considered by the court in the absence of the defendant(s). The officer may also give evidence if necessary.

Where possible, the trial judge should determine the application and any hearing should be attended by the parties’ trial advocates. Where the application is made by counsel, prosecutors must ensure that counsel has the appropriate experience and is fully conversant with this guidance.

The prosecutor’s role in an application is set out in the AGO’s guidance Applications for Witness Anonymity Orders: the prosecutor’s role. In particular, Part B of that guidance sets out the prosecutor’s duties, and paragraph B3 provides that, “The prosecutor’s role is:

• to act with scrupulous fairness
• to examine with care, and probe where appropriate, the material provided in support of the application and the evidential basis for it. Prosecutors should in particular objectively assess any statement made by the witness or witnesses in question and the grounds on which it is based
• to be satisfied before making the application that, viewed objectively, it can properly be said that the order is necessary and in the interests of justice and that the defendant can receive a fair trial
• to put before the court all material that is relevant to the application. Courts will rely to a significant extent upon the prosecutor and the investigator to provide relevant material. 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 at all, or for making it in the form sought by the prosecutor. Material is particularly relevant if credibility is or may be in issue, for example if there is a known link between the witness and the defendant or a co-accused
• to disclose as much relevant material to the defence as possible without identifying the witness, including material that may tend to cast doubt on the credibility, reliability or accuracy of the witness’s evidence”.

As this extract states, the prosecutor must ensure that the court is provided with all material relevant to the application, including any material capable of tending against it being made.

Retention of confidential material provided to the court (such as unedited witness statements) is covered in Crim PD V 18D.24, and, as an alternative to being stored in secure conditions by the court officer, the court may give a direction that such material be committed to the safe keeping of the applicant or any other person, which in practice should be the police not the CPS.

Special Counsel

At an inter partes hearing the defence will be able to make representations but will not have sight of any sensitive material disclosed to the judge. If considered necessary in exceptional circumstances, the court may invite the Attorney General to appoint special counsel to assist the court.

Section D of the AGO’s guidance Applications for Witness Anonymity Orders: the prosecutor’s role discusses in greater detail the role of the prosecutor when the court is considering whether to invite the Attorney General to appoint special counsel.

Investigator witnesses

As noted above (under ‘General procedure’), unless the court otherwise directs, the applicant must identify the witness to the court. This general principle should be followed wherever possible. However, where the witness is a police officer or a member of another agency responsible for the investigation of criminal offences, such as an undercover officer, it will often be appropriate to ask the judge to exercise their discretion under section 87(2)(a) of the 2009 Act not to be informed of the identity of the witness.

Where the Superintendent is satisfied that the prosecution should be invited to make such a request of the court, they should make a report to the prosecutor to that effect.

If the prosecutor is satisfied that it is appropriate to make such a request, they should make the application and also invite the judge to exercise their discretion not to be informed of the true identity of the witness concerned.

If the prosecutor is satisfied that it is appropriate to apply for a witness anonymity order but only on the basis that the judge should be informed of the true identity of the witness concerned, they should discuss this aspect of the application with the Superintendent or equivalent. If agreement is reached on that basis, the true identity of the witness should be revealed to the prosecutor in a form that is agreed. The application may then be made and the identity of the witness should be revealed to the judge in the form determined by them. If agreement with the Superintendent or equivalent is not reached, the matter should be referred to the person who would be responsible for authorising the application (see below, under ‘Level of authorisation’). 

Where the court decides that it must be informed of the identity of the witness, and the prosecutor and the police or other investigative 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 for a witness anonymity order should be withdrawn, and consideration given to whether it is possible to proceed with the case.

Level of authorisation

Whilst a prosecutor may consider and draft an application, it is the responsibility of the Head of the Complex Casework Unit (CCU) for an area or Deputy Head of a Central Casework Division (CCD) to decide whether to authorise it.

In the absence of the CCU head, the area Deputy Chief Crown Prosecutor or above may authorise an application. In the absence of the Deputy Head of the CCD, the Head of the relevant CCD or above or a nominated Deputy Head or DCCP may authorise an application.

If a prosecutor decides that it is not appropriate to make an application, then the prosecutor must advise both the police and the person in the CPS who would have been responsible for authorising the application, to allow the police to make further representations if required.

Arrangements before and at trial

Where a witness anonymity order is granted, the prosecution should provide the defence with as much information as is possible, commensurate with the grant of anonymity, to enable the defence to effectively cross-examine the anonymous witness.

Should the judge grant anonymity, then Crim PD 18D.18 lists a number of practical arrangements to be considered by the judge, with the assistance of court staff, to ensure that the witness’s anonymity is not compromised. These are:

• A pre-trial visit by the anonymous witness;
• How the witness will enter and leave the court building;
• Where the witness will wait until they give evidence;
• Provision for prosecution counsel to speak to the anonymous witness at court before they give evidence;
• Provision for the anonymous witness to see their statement or view their ABE interview;
• How the witness will enter and leave the court room;
• Provisions to disguise the identity of the anonymous witness whilst they give evidence (such as voice modulation and screens);
• Provisions for the anonymous witness to have any breaks required; and,
• Provisions to protect the anonymity of the witness in the event of an emergency such as a security alert.

In practice, it is likely that prosecution counsel, the prosecutor, the police and paralegal officers will all be required to assist the judge and court staff in the practical arrangements to ensure that the witness’s anonymity is not compromised. Prosecutors should have regard to any national or local court protocols which may apply, and should proactively ensure that suitable arrangements are in place.

Crim PD 18D.25 emphasises that at trial the greatest possible care must be taken to ensure that nothing compromises the witness’s anonymity. Arrangements to maintain the anonymity must consider the layout of the courtroom and the means of access for the witness, defendant(s) and members of the public. The risk of a chance encounter must be rigorously excluded and, subject to contrary direction by the trial judge, the court staff and those accompanying the witness must adopt necessary measures to ensure that the witness is neither seen nor heard by anyone whose observation might defeat the purpose of the order.

Section 90 of the 2009 Act provides that in the Crown Court the judge must give the jury such warning as they consider appropriate to ensure that the fact an order has been made does not prejudice the defendant.

Discharge or variation

Prosecutors have a continuing duty to review whether or not a witness anonymity order, if granted, remains necessary. If the original basis for making an order is displaced during a trial, the trial may become unfair and the order may need to be revisited (see R v Calvert [2016] EWCA Crim 890). 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.

Section 91 of the 2009 Act provides that a court may vary or discharge a witness anonymity order in the course of proceedings. Any party may apply for variation or discharge if there has been a material change in circumstances. This power may be used, for example, where 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 varying or discharging an order, but may hear a party in the absence of the defendant(s) if it appears appropriate to do so.

Section 92 of the 2009 Act provides that a witness anonymity order may be varied or discharged after proceedings have come to an end. 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 themselves, provided in each case that there has been a material change of circumstances since the conclusion of the proceedings or since any previous application to vary or discharge the order. 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 concluded proceedings and the witness the opportunity to be heard, unless it is not reasonably practicable to communicate with that person. The court may hear a party in the absence of the former defendant(s) if it appears appropriate to do so.

The Court of Appeal can discharge or vary a witness anonymity order made in the proceedings which give rise to the appeal (section 93 of the 2009 Act).

If an order is varied or discharged, the prosecutor must immediately notify the police and the authorising lawyer.

The Magistrates’ Court

The majority of applications for witness anonymity orders are likely to occur in the Crown Court. However, prosecutors should note that such orders may be made in magistrates’ courts, and particularly in the youth court where more serious offences are tried.

In cases that are triable either way, the need for a witness anonymity order is a consideration that may be placed before the court under section 19(3) of the Magistrates’ Courts Act 1980 as a reason why Crown Court trial is more appropriate.

Applications by private prosecutors

Private prosecutors may apply for witness anonymity orders. Where such an application is made, a court officer must notify the Director of Public Prosecutions of the application (CrimPR, r18.20). It is likely that such notifications will be made to the CPS Area in which the application has been made. 

On such receiving such a notification, prosecutors should refer to the Private Prosecutions guidance, specifically the heading ‘When the CPS finds out about a Private Prosecution’. Such notifications do not, without more, amount to a request to intervene in a private prosecution. Accordingly, it will generally be appropriate to take no action unless there are exceptional circumstances, for example, if it appears that the application is fundamentally misconceived. Where there is also a request for the CPS to intervene in a private prosecution, the fact that an application has been made for a witness anonymity order may be a relevant consideration in deciding whether there is a particular need for the CPS to take over the prosecution.

Areas should keep records of such notifications in the same way as they keep records of their own applications; see below, under ‘Records of anonymity order applications’.

Anonymity in Investigations

Applications for investigation anonymity orders can be made under sections 74 to 85 of the 2009 Act. The effect of such orders is to prohibit, subject to certain exceptions, the disclosure of information that identifies the specified person as someone who is or was able or willing to assist an investigation or that might enable the specified person to be identified as such a person (section 76). These orders known can be requested at the very start of an investigation, providing early reassurance to people who may have relevant information.

Investigation anonymity orders are only available in limited circumstances, as set out in section 78:

• a qualifying offence has been committed (murder or manslaughter where the death was caused by a firearm and/or a knife);
• the person likely to have committed the offence was at least 11 but under 30 years old at the time the offence was committed;
• the person likely to have committed the offence is a member of a group which can be identified from the criminal activity that its members appear to engage in and it appears that the majority of the members of the group are at least 11 but under 30 years old; and
• the person in respect of whom the order is sought has reasonable grounds to fear intimidation or harm if they are identified as able or willing to assist the investigation into the qualifying offence; and,
• the person in respect of whom the order is sought is able to provide information that would assist the investigation and is more likely than not, as a consequence of the making of the order, to provide such information.

Provisions relating to making an application are contained in section 77. Applications can be made to a justice of the peace by parties including the chief officer of a police force, the Director General of the NCA and the DPP. These persons may authorise others to exercise these functions on their behalf (section 81).

It is possible to appeal to the Crown Court against the refusal of an application, but the applicant must indicate in the application or at the hearing of the application an intention to appeal a refusal (section 79(1) and (2)). In this case, the justice must make the order, which has effect until the appeal is concluded (section 79(3) and (4)).

Disclosing information in contravention an investigation anonymity order is an either way offence punishable by 5 years imprisonment on indictment (Section 76(10) and (11)).

The granting of an investigation anonymity order does not guarantee that anonymity will be granted at the trial, and a separate application for witness anonymity will have to be made.

Prosecutors who are considering an investigation anonymity order should consult with the person who would be responsible for authorising it (which is the same as for witness anonymity orders; see above, under ‘Level of authorisation’).

Records of anonymity order applications

A record of applications for witness anonymity orders and investigation anonymity orders should be kept by either the Head of the Complex Casework Unit for an area or a Level E Unit Head for a central casework division.