Report No. 198
Inherent Power of The Criminal Court To Protect Victims and Witnesses & Position in India
One of the other important issues relates to the power of the Criminal Courts to grant victim or witness identity protection. It is based on the 'inherent power' of the Court to pass orders as to such protection or whether such a power has to be conferred by statute?
We shall refer to the relevant case law on the subject.
The House of Lords in Attorney General v. Leveller Magazine 1979 AC 440 clarified that the Court can pass anonymity orders in respect of witnesses under its 'inherent power'. The Court described the prosecution witness not by his name but as 'Colonel B'. It was held that there can be exceptions to the rule of open trial, because the rule as well as the exceptions were both in the interests of administration of justice. Though the Court could pass orders as to anonymity without legislation or rules made therefor, the legislature could also legislate on the subject. Lord Diplock stated (at p. 450) as follows:
"However, since the purpose of the general rule is to serve the ends of justice, it may be necessary to depart from it where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable, the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rules.
Apart from statutory exceptions, however, where a Court in the exercise of its inherent power to control the conduct of proceedings before it departs in anyway from the general rule, the departure is justified to the extent and to no more than the extent that the Court reasonably believes it to be necessary in order to serve the ends of justice"(emphasis supplied)
In the course of the judgment, Lord Diplock referred to the decision of the Court of Appeal, New Zealand in Taylor v. Attorney General: 1975 (2) NZLR 675 to the effect that the Court had inherent power to make an order directing to what extent the proceedings should or should not be published outside Court.
'Inherent power of Court' was also emphasized in R v. Murphy (1980) (see para 6.2.10 of the Consultation Paper)