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Report No. 198

Open justice and exceptions:

"In the United Kingdom, the principle of "open justice" is of ancient origin dating back to the days before the Norman Conquest1 . There are references to the principle in the reports of the seventeenth century trials. Hale in the seventeenth century and Blackstone, in the eighteenth century, proclaimed the virtues of a public trial. Secrecy would breed abuse while openness would result in transparency. Public attendance would secure strong confidence in the judicial system.

The principle of "open justice" has, in fact, been described as the enduring contribution of Britain to the law of other nations before it became engrafted into the European Convention which came into force in 1953. But, at the same time, it has always been accepted that the principle of "open justice" is subject to exceptions.

1. See " Secret Witnesses" by Mr. Gilbert Marcuse, 1990 Public Law 207 and Phipson' Law of Evidence (15th Edn., 2000)

Art. 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms which applies to United Kingdom, speaks not only of the right to "open justice" but also to the need for exceptions in the interests of morals, public order, national security and for protecting the privacy of juveniles and others where publicity could otherwise prejudice the interests of justice. Article 6(1) of the Convention reads as follows:

Art. 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and 1 1. See "Secret Witnesses" by Mr. Gilbert Marcus 1990 Public Law 207 and Phipsons's Law of Evidence (15th Edition, 2000). public hearing within a reasonable time by an independent and impartial tribunal established by law.

Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interest of justice."

6.2.1 Scott v. Scott (1913): Principle of "open justice" and exceptions thereto:

We start with the earliest case on the subject, decided by the House of Lords. In Scott v. Scott (1913 AC 417) Viscount Haldane L.C. referred to 'open justice' as the rule and stated that any exceptions thereto must be based on some overriding principle which defines the field of the exception and not leave it to the discretion of the Judge. He said (at p.435):

"The power of an ordinary Court of justice to hear in private cannot rest merely on the discretion of the Judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing shall take place in private. If there is any exception to the fixed principle which requires the administration of justice to take place in open court, that exception must be based upon the operation of some other overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge."

The Crown Court Rules provide for the exercise of certain kinds of jurisdiction in Chambers to permit evidence excluding the public (Rule 27), such as where national security is involved or cases falling under section 8 (4) of the Official Secrets Act, 1920. This latter Act permits the Court to exclude members of the public from the Court in the trial of offences under the said Act on the ground that the publication of evidence could prejudice national safety. However, it states that the passing of the sentence must be in public. In Youth Courts, the public are excluded but the press is admitted under section 47(2) of the Children and Young Persons Act, 1933.

In some cases, an order restricting the reporting of all or part of the proceedings may suffice. This is permitted by section 11 of the Contempt of Courts Act, 1981. A Court can, under section 4(2) of that Act, also postpone publication of Court proceedings, where it is necessary to avoid risk of prejudice to the administration of justice; the Court can prohibit publication of identity of a child or young person under 18 years and also in appropriate cases, the names, identity of victims of rape and other sexual offences.

6.2.2 We shall next refer to certain leading cases decided after Scott, chronologically.

It has been held that the names of allegedly blackmailed witnesses in a case of blackmail may be withheld (R v. Socialist Worker Printers etc. ex parte. Attorney Gen: 1975 QB 637. It has been pointed out that there may be cases in which it is necessary to exclude the public from the court though not the press; (R v. Walterfield: (1975) 60 Crl Ap. Rep 296).

6.2.3 "Leveller Magazine" case (1979.- 'anonymity' order under statutory or inherent power of Court

In UK, the power of the Court to withhold the name of the witness in a criminal trial is treated as inherent in the Court. Such a power may also be conferred by statute.

Attorney General v. Leveller Magazine (1979 A.C. 440) arose under the Contempt of Courts Act which was in force before the 1981 Act. In certain committal proceedings of Nov. 1977, in relation to offences under the Official Secrets Act, the Magistrate initially allowed an application filed by the prosecution seeking that the prosecution witness be described as 'Colonel B' and that his actual name should be known only to the defendants and their counsel and the Court, for reasons of national safety.

But, the said prohibition was violated and consequently proceedings under the Contempt of Courts Act were taken out by the Attorney General against the press which published the evidence given in the criminal proceedings. The defence in the contempt case was that "Col B" had, in fact, disclosed his real name and address at the criminal trial and that therefore, he must be deemed to have waived the protection given to him under the order for anonymity.

This contention was ultimately accepted and it was held that there was no contempt. But during the course of the judgment, Lord Diplock laid down the general principle of open justice and pointed out that there could be exceptions to that principle of open trial either by statute or under the inherent powers of the Court. Lord Diplock stated (p. 450):

"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 rule.

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 any way 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 save the ends of justice."(emphasis supplied)

In the course of the judgment, Lord Diplock referred to the decision of the Court of Appeal of New Zealand in Taylor v. Att. Gen:1975(2) NZLR 675 to the effect that the Court had inherent power to make an express order directing to what extent the proceedings should be published or not published outside Court.

6.2.4 Section 11 of the Contempt of Courts Act, 1981:

After the above said 1979 judgment in Leveller Magazine case, the legislature in UK recognized the principle laid down in the case by making adequate provision in section 11 of the (UK) Contempt of Court Act, 1981, which provided that

"In any case where a Court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the Court, the Court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the Court to be necessary for the purpose for which it was so withheld."

It may, however, be noted that the House of Lords, in the Leveller Magazine case, did not have occasion to consider the question of balancing the rights of the accused for an open trial as against the right of the victim/witness to seek anonymity while adducing evidence.

6.2.5 Evidence through Television: certain statutes:

Evidence through television links is permissible under section 24 of the Youth Justice and Criminal Evidence Act, 1999. Evidence may be given by a witness (other than the defendant) through a live telecast link, with the leave of the Court, in two situations (a) if the witness is outside UK and (b) if the witness is a child. (see also section 32(1) of Criminal Justice Act, 1988 and section 55 of Criminal Justice Act, 1991).

6.2.6 Video-recorded evidence: certain statutes

Video recorded evidence is admissible in certain cases: (a) an offence which involves an assault on or injury or a threat of injury to, a person (b) offences of cruelty to persons under the age of 16 years, contrary to section 1 of the Child and Young Persons Act, 1933; (c) offences under the Sexual Protection Act, 1956, Indecency with Children Act, 1960, Sexual Offences Act, 1967, section 54 of Criminal Law Act 1977 and Protection of Children Act, 1978 etc.

6.2.7 Anonymity and screening of witnesses:

It is a proper practice in criminal trials in UK where children give evidence about sexual abuse to allow a screen to be erected between the witness and the defendant. If a defendant in person seeks to dominate, intimidate or humiliate a complainant, or should it be reasonably apprehended that he will do so, a screen can be erected (R v. Brown (Milton) 1998(2) Crl. App R 364 CA). Sections 16 to 33 of the Youth Justice and Criminal Evidence Act, 1999 require the Court to consider special measures of various kinds for protection of vulnerable and intimidated witnesses.

Section 23 of that Act deals with 'screening witness from accused'. Subsection (2) however provides that the screen or the other arrangement (which screens the witness) must not prevent the witness from being able to see and to be seen by

(a) the Judge, Jury

(b) legal representative acting in the proceedings,

(c) any interpreter or other person appointed to assist the witness.

6.2.8 Cases after 1990:

In Re Crook, 1991Crl App p 17, it was held that the public can be excluded from the trial.

R v. DJX, SCY, GCZ: (1990) 91. Crl. App R 36 (CA) concerned children who were allowed to be shielded from the defendants (accused). After stating that there can be exceptions to the rule of open cross examination, and directing a screen to be used, Lord Lane CJ observed:

"What it really means is, he (the trial Judge) has got to see that the system operates fairly: fairly not only to the defendants but also to the prosecution and also to the witness. Sometimes, he has to make decisions as to where the balance of fairness lies. He may come to the conclusion that in this case the necessity of trying to ensure that these children would be able to give evidence outweighed any possible prejudice to the defendant by the erection of the screen."

In R v. Watford ex parte Lehman (1993) Crim LR 388 where a group of youths had rampaged through Watford and violently attacked four people, witnesses had serious concerns about their personal safety. The Divisional Court followed Lord Lane CJ's observations referred to above and upheld the decision of the trial Judge to allow the witnesses to give evidence anonymously at the committal stage, by screening them from the defendant but not counsel. Their voices were disguised, and their names were withheld from the defence.

In another case in R v. Taylor (Gary): (1995) Crim LR 253, (CA), the Court of Appeal upheld a decision of the trial court directing witnesses to be given anonymity. The witness's evidence was crucial as it provided the only independent corroboration of the removal of the victim's body from the pub where the murder allegedly took place. The judgment in the case referred to the last two cases referred to above. The Court held that for maintaining the appropriate balance, the following factors must be satisfied before an order for witness's anonymity can be granted:

(1) there must be real grounds for fearing the consequences if a witness gives evidence and his or her identity is revealed. Those consequences need not be limited to the witness himself or herself;

(2) the evidence must be sufficiently relevant and important to make it unfair to compel the prosecution to proceed without it;

(3) the prosecution must satisfy the Court that the creditworthiness of the witness has been fully investigated and the results of that inquiry have been disclosed to the defence, so far as is consistent with the anonymity sought;

(4) the Court must be satisfied that no undue prejudice is caused to the defendant (the term 'undue' is used deliberately since some prejudice will be inevitable); and

(5) the Court can balance the need for anonymit.- including the consideration of other ways of providing witness protection (e.g. screening the witness or holding in camera hearing where members of public are excluded.- against the unfairness or appearance of unfairness in the particular case.

In 1996, the judgment in Taylor's case has been followed in R v. Liverpool City Magistrates' Court ex parte Director of Public Instruction: ( CO 1148 Queen's Bench Division, d. 19.7.96)(Bedlam LJ (Smith J). R v. Ward: 1993(2) ALL ER 577.

R v. Ward, 1993(2) ALL ER 577 decided by the Court of Appeal laid down that the prosecution was bound to disclose all evidence which it had, to the accused and, if indeed, it wanted to claim public interest immunity on the ground of national security or danger to witnesses' life, it should leave the matter to the Court to give a decision on the question of such non-disclosure and that the prosecution could not itself be the Judge of such questions.

In that case which involved the death of several persons by bomb explosion, the accused, a lady, was finally acquitted by the Court of Appeal, reversing the conviction by the trial Court, because the decision as to non-disclosure of several pieces of evidence to the accused on the ground of public interest immunity, ought not to have been taken by the prosecution and that hence the trial was not fair to the accused.

6.2.9 Montgomery (1995): an unjust decision:

We may also refer to the rather extraordinary judgment of the Court of Appeal in Montgomery: 1995(2) All ER 28, where a witness was punished for three months imprisonment even though the refusal by him to give evidence was due to fear of reprisals by the accused. The witness had earlier supplied the police with a statement that he was one of the persons concerned in the hurling of missiles at police vehicles, in which a police officer was seriously injured.

Subsequently, he refused to take oath and to give evidence at the trial of the ten accused persons. The trial Judge then permitted his statement to be read in evidence under section 23(3)(b) of the Criminal Justice Act, 1988 on the ground that the witnesses had refused to give oral evidence through fear. But, at the same time the Judge imposed a punishment of imprisonment for twelve months on the witness for his refusal to give evidence, though it was on account of fear. Section 23(3)(b) contained certain curious provisions.

"Section 23: (1) A statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if.........

(2)..........

(3) (a)...........................

(b) The person who made it does not give oral evidence through fear or because he is kept out of the way...."

There was, in fact, an earlier precedent to the contrary before the above case in Montgomery was decided. In an earlier case in Action Justices and Others (1991) 92 Cr App. R 98(105), Watkin L J in the Court of Appeal observed:

"Fear of what and whether that is relevant is a matter for the Court's consideration in the given circumstances."

and he said it was sufficient that the Court is sure that the witness is in fear as a consequence of the commission of the material offence or of something said or done subsequently in relation to that offence and the possibility of the witness testifying to it.

But, in spite of the above precedent, the Court of Appeal, in Montgomery, confirmed the conviction but merely reduced the sentence of imprisonment to three months. The reduction of sentence from twelve months to three months was on the basis that the relatives and supporters of the ten accused were in the gallery when Mr. Montgomery refused to give evidence. The judgment has been widely criticized. Nicholas Reville observes: (see 'The Fearful Witness' in (1995) Vol. 145, New Law Journal p. 1774):

"it is difficult to see why Mr. Montgomery was convicted and punished for contempt when he was in fear. If someone in Mr. Montgomery's position refuses to testify through fear , the imposition of a penalty would be unjustified as retribution and irrelevant as a deterrent. When the fear is based on reasonable ground, it would be unreasonable for the law to impose a duty of heroism on the reluctant testifier."

6.2.10 North Ireland Bloody Sunday cases and "Diplock Courts":

We shall next deal with the cases which arose from Northern Ireland and where important principles were laid down.

The specialty of the Irish cases is that here the issue related to the protection of the accused who were military officers whose life was in danger. Likewise, there were police witnesses who claimed protection. The common issue however was whether video screening evidence could be allowed under the inherent powers of the Court. These rulings have been followed by the Courts in New Zealand while dealing with protection of prosecution witnesses. (see paras 6.4.7, 6.4.8 in this chapter)

In Ireland, towards the end of 1972, three years after the deployment of British troops and in the wake of a series of bloody sectarian confrontations, Lord Diplock Commission was appointed to consider various issues concerning the terrorist problems. The Commission, keeping Art. 6 of the European Convention in mind, suggested that witness safety must be protected if witnesses were to testify voluntarily and without fear of revenge. With several of these amendments being accepted, the Northern Ireland (Emergency Provisions) Act, 1973 was enacted giving birth to the 'Diplock Courts', where witnesses could be 'screened' from the accused.



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