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-
- in order to protect the safety of the witness or another person or to prevent any serious damage to property, or
- 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-
- the witness would not testify if the proposed order were not made, or
- 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:
- they or another person would suffer death or injury, or
- 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.
Witness protection and anonymity | The Crown Prosecution Service