Report No. 198

The Murphy Case (1989):

R. v. Murphy: (Northern Ireland Crown Court)(1989)(unreported) related to the murder of two British army corporals at an I.R.A. funeral in 1988. Some 27 "media" witnesses were subpoenaed principally to give evidence of the authenticity of the video and photographic material, taken during the course of the violent incidents.

The Crown filed an application for an order that these witnesses should not be identified in Court and, in particular, that when they give evidence, their faces should not be seen by the accused or by the public or the press, but should be seen only by the Court and by the counsel and solicitors appearing on behalf of the prosecution and the defence. Hutton L.C. J, after holding in favour of the inherent power of the Court, held that the identity of the witnesses should be kept secret not only from the accused but also from the defence lawyer, in order to save the ends of justice He did not prohibit the press or the public from noticing the identity of the witness.

So far as the accused was concerned, he held that by the use of photographs, defence counsel could ask the witness whether, if the person shown in certain photographs was proved to be one of the accused, and if he (witness) had seen that accused in places different from where he was alleged to have been. (See 'Secret Witnesses' by Mr. Gilbert Marcus, (1990) Public Law 207 (214).

After the Diplock Commission, a Tribunal to inquire into the incidents on 30.1.72 (Bloody Sunday) was constituted and it was headed by Lord Widgery who decided that inquiry should be held in London and not in Ireland, where the incidents took place. Later, he was succeeded by Lord Saville of Newdigate, in whose tenure number of precedents laid down by the said lawlord in the Commission were set aside by the Courts, in the interests of the safety of accused or witnesses.

6.2.11 Lord Saville of Newdigate and others (I) (1999)(28.7.99): Anonymity of witnesses:

It is necessary to refer to the several principles laid down by Lord Woolf in the Court of Appeal in R v. Lord Saville of Newdigate and others v. ex parte A & Others 1999(4) All ER 860(CA) (dt. 28.7.99). The matter arose out of the orders dt. 5.5.1999 passed by the Tribunal appointed under the Tribunals of Inquiry (Evidence) Act, 1921 headed by Lord Saville, to inquire into the shooting of 26 people during a demonstration at Londonderry (N. Ireland) on 30th January, 1972 (called the Bloody Sunday). The Tribunal rejected the application of the State for granting "anonymity" to the military witnesses (who were in the position of accused) as it would violate the principle of open trial. It, however, held that the apprehension of the witnesses as to danger to their life was a reasonable one.

The decision was appealed against by 17 soldiers who had actually opened fire contending that the military witnesses should have been given anonymity. The Divisional Court allowed their appeal on 17.6.99 and held that anonymity be given to the military witnesses. The Court of Appeal affirmed the decision of the Divisional Court.

On further appeal, Lord Woolf, in the Court of Appeal, observed that it seemed that the subsequent tribunal of Lord Saville had not been sufficiently aware that the denial of anonymity would affect the soldiers perception of the fairness of the inquiry. The anonymity would only have a limited effect on the openness of the inquiry since the soldiers would still be giving their evidence in public, their names would be known to the tribunal, their higher officers would be named, a particular soldier could still be named if there was reason to do so, and the tribunal's ability to search for truth would not be undermined.

Accordingly, the grant of anonymity to the soldiers was the only possible decision open to the tribunal. After referring to the principle of open justice in a democratic society and to the 'compelling countervailing factors', Lord Woolf stated: (p.877)

"It is difficult to envisage a more compelling factor than that the withdrawal of anonymity could subject the soldiers to risk of a fatal attack. Furthermore, it is important not to overstate the extent to which the failure to name the soldiers would detract from the open search for truth. The soldiers would still give evidence openly in public. The tribunal and counsel for the tribunal would know their names. If any investigation as to their credibility was required, the tribunal could carry out this investigation.

Having carefully considered Mr. Clarke's submission, we are left with the clear impression that not only would the tribunal not be hampered in its objective of finding the truth, but in fact the open search for the truth would only be restricted in a marginal way the tribunal has not assessed what would be the real disadvantage of the soldiers giving their evidence under labels rather than in their own names."

Referring to the burden of proof, Lord Woolf supported the view that once a prima facie case was made out for such an order, the party which is opposing the anonymity order must satisfy the Court why the risk to the witness needs be increased. Lord Woolf stated (p 878) that the approach of the tribunal was not fair to the soldiers:

"The problem about the risk to which they are subjected is that once their identity is revealed, the dye is cast and it is too late for the protection provided by anonymity, to be restored. The increased risk referred to earlier has subsequent relented. It could again increase."

The risk to the soldiers and their families was serious, and the risk was 'a serious possibility', and there was 'reasonable chance' or 'substantial ground for thinking' so. (Fernandez v. Govt. of Singapore: 1971(2) All ER 691 (HC)).

Lord Woolf observed: (at p.882)

"When what is at stake is the safety of the former soldiers and their families, adopting Lord Diplock's approach, the risk is extremely significant. After all, the individual's right to life is, as Lord Bridge stated in Bugdaycay v. Secy. of State for Home Department 1987(1) All ER 940 (952), the most fundamental of all human rights."

and concluded:

"We do not consider that any decision was possible other than to grant the anonymity to the soldiers."

Lord Saville of Newdigate II: Venue Case (19.12.2001)

This case decided by the Court of Appeal reversed the decision of Lord Saville Tribunal, to conduct the inquiry in Ireland and consequently the original venue at London as decided by Lord Widgery was restored. This case lays down principles of law as to when the trial at the place of occurrence of the crime, can be shifted outside.

This case reported in Lord Saville of Newdigate & others v. Widgey Soldiers & others: 2002(1)WLR 1249 = (2001 EWCA (19.12.2001)(CA) 2048 is known as the "venue" case. It was decided by Lord Philips MR, Lord Justice Jonathan Parker, Lord Justice Dyson.

The case arose out of the proceedings of the Lord Saville Tribunal subsequent to the judgment referred to earlier in this para, namely, R v. Lord Saville of Newdigate Exp A: 1999(4) All ER 860. It appears that earlier, Lord Widgery Tribunal had fixed the venue for trial to be at London rather than at Londonderry in Ireland, but the Lord Saville Tribunal shifted it to Londonderry in N.

Ireland, purportedly to enable the family members of Irish victims to witness the open trial in Ireland. This was challenged successfully by the soldiers before the Administrative Court. They contended that once the venue was fixed at London, there must be 'compelling reasons' to shift the venue from London to Londonderry. This plea was accepted. The Lord Saville Tribunal appealed before the Court of Appeal.

The reasoning of the Court of Appeal, while affirming the decision of the Administrative Court, was as follows. It referred to the earlier judgment of Lord Woolf dt. 28.7.99 in Newdigate where the Court of Appeal had held that the soldiers had reasonable grounds for fearing for their lives if they were identified and that in those circumstances, and once that was prima facie proved, the Tribunal had to demonstrate that there were compelling reasons for naming them and not giving them anonymity.

On the same lines, it was now held that there must be 'compelling reasons' as to why the witnesses should give evidence at Londonderry in Ireland rather than at London. There were good grounds for evidence being recorded at Londo.- away from Londonderry in Ireland,- in as much as the witnesses' life would not be in danger in London and they would not be under any mental stress. The procedure must be fair to the witnesses too.

The Court of Appeal stated, "The majority in Londonderry and that majority includes the families of those who were killed or injured on Bloody Sunday, wish the inquiry well and are anxious that it should continue to be peacefully held in Londonderry. It is, however, common ground that there were, in Londonderry in particular but also elsewhere, dissident Republican elements who are not prepared to observe the cease-fire, but are anxious to disrupt the peace process. These elements pose a threat to the inquiry and those who are or will be taking part in it, and in particular, the soldier witnesses. The security agencies considered that this threat is "sufficiently real and imminent" to call for precautionary measures".

The soldiers here, it was held, have a subjective element of fear which was relevant. Their subjective fear had to be assessed and it was to be seen if their fear could be alleviated in case they gave evidence at a place other than Londonderry. This balancing exercise was for the Court. As the Administrative Court observed, if heavy security was arranged at Londonderry, it might be treated as a hostile and intimidating environment by witnesses. The witnesses, if indeed they had to go to Londonderry, would go there with a subjective fear. Recent events showed that violence might indeed increase. The Court observed:

"Assessment of terrorist risk involves consideration of both threat and vulnerability. Threat is the likelihood that terrorist will seek to attack an individual. Vulnerability is the susceptibility of that individual to an attack. It will depend in part upon the precautionary measures that are in place to protect against attack. Threat and vulnerability are interrelated in that terrorists will be likely to attempt an attack where the target is vulnerable."

Changing the venue, it was held, would not affect the Tribunal's capacity to arrive at the truth. The families of deceased or injured could see from Londonderry what transpired at London in as much as facilities would be put in place for that purpose.

"There would be live video-linkage to Londonderry. The public confidence will not be eroded by holding a part of the inquiry in London."

Donaughy Re Application for Judicial Review: (2002) NICA (8.5.2002)

This is a further continuation of the second Newdigate case. The case dealt with the need to use of 'screening' techniques to protect the safety of "police" witnesses, while they deposed at London.

This appeal was before the Court of Appeal in Northern Ireland and was against the decision of the Queen's Bench Division (Kerry J). The earlier cases related to evidence of the "military" officers who had fired and whose safety was involved. The present case involved "police" witnesses living in Ireland.

The Tribunal had accepted 'screening' the police witnesses while deposing at London and had held:

"We, in short, accept that the applicants do have reasonable and genuine fears for their safety, and we further accept that these fears could be alleviated to a significant degree by screening."

The appellant sought the quashing of the decision of the Tribunal allowing police officers to give evidence from behind screens.

The Court of Appeal affirmed 'screening' and observed as follows:-

"As expressed, this assessment relates to all the police witnesses who thus face a risk to their lives which cannot be shrugged off as an unrealistic one. Further more, the risk is expressed to be greater than that faced by military personnel, the risk to whom, in the opinion of the English Court of Appeal in the Venue decision, justified the more draconian remedy of a change of venue."

The "police" witnesses, it was observed, live in Northern Ireland and hundreds of their colleagues had died due to terrorist activity over the last 30 years. If they are not to be screened, they will be easily identified by their names which are known. The subjective fear was genuine. The police witnesses, no doubt, will not be seen by the family members of the deceased or wounded persons but will be certainly visible to their lawyers, the Tribunal and the family members can hear the replies of the police witnesses. Screening them to this limited extent will not prejudice a fair trial.

Thus, these various judgments lay down that the Court has inherent power to order evidence to be recorded by video-screening protecting the witnesses or the accused.

6.2.12 In 1992, Guidelines were issued by the Attorney General in UK (see 1982(1) All ER 734) (which included non disclosure where witnesses' life could be endangered). For other cases, R v. Trevor Douglas: (1993) 97 Crl. Appeal Reports 342; R vs.Davis, Johnson and Rowe: 1993(1) Weekly Law Rep. 613 (non disclosure can be permitted in ex parte proceedings); R v. Rasheed: (20 May 1994, Times); R v. Winston Brown 1995(1) crl. App. Rep. 191; R v. Turner: 1995(1) W.LR 264.

6.2.13 Certain other statutes in UK:

The Criminal Procedure and Investigations Act, 1996 requires primary and secondary disclosure of evidence to accused. Consequent to the judgment of the European Court of Human Rights in Chahel v. UK (15.11.96) and Tinnelly & Sons Ltd and Others & McElduff & others v. UK (10.7.98), the UK had introduced legislation making provision for appointment of 'special counsel' in certain cases involving national security. The provisions are contained in the Special Judgment on Appeals Commission Act, 1997 and the Northern Ireland Act, 1998.

Under this legislation, where it is necessary on national security grounds for the relevant Courts to sit in camera, in the absence of the affected individual and his or her legal representatives, the Attorne.- General may appoint a special counsel to represent the interests of the individual in the proceedings. The legislation provides that the special counsel is not however "responsible to the persons whose interest he is appointed to represent", thus ensuring that the special counsel is both entitled and obliged to keep confidential any information which cannot be disclosed.

For example, in the immigration context, the relevant Rules under the 1997 Act are contained in the Supreme Immigration Appeals Act Commission (Procedure) Rules, 1978 (Statutory Instrument No. 1998/1881). Rule 3 provides that in exercising its functions, the Commission shall secure that information is not disclosed contrary to the interests of national security, the international relations of the UK, the detection and prevention of crime or in any other circumstances where disclosure is likely to harm public interest. Rule 7 relates to the special advocate established by section 6 of the 1997 Act. Rule permits that the special advocate is to represent the interest of the appellant by

(a) making submissions to the Commission in any proceedings from which the appellant or his representatives are excluded,

(b) cross examining witnesses at any such proceeding, and

(c) making written submissions to the Commission.

The advocate shall not communicate with the appellant except

(1) before the Secretary of State making the material available to him;

(2) when, after such material is received, the special advocate seeks directions from the Commission to seek information from the appellant/representative, and

(3) after hearing the security of State and such application.

(b) 6.3 Australia:

Australian Courts too have ruled in favour of the inherent power of courts to grant 'anonymity' to witnesses. In a number of cases, the Courts have laid down necessary guidelines therefor.

6.3.1 Initially, in 1993, in R v. The Stipendiary Magistrate at Southport ex parte Gibson: 1993(2) Qd R 687, no doubt, the Full Court of Queensland held that the true identity of a witness must be disclosed to the defence during committal proceedings and at trial. Williams J was of the view that to hold otherwise would infringe the basic principle of natural justice, namely, that a defendant should know the name of the principal prosecution witness and not be deprived of the opportunity of testifying the prosecution's evidence. The Court did not have occasion to consider the question if there could be exceptions to the rule. But, as we shall presently show, this view has not been accepted by the State Supreme Court in Victoria.

6.3.2 The Supreme Court of Victoria in Jarvie & Another v. The Magistrate's Court of Victoria at Brunswick and others: (1995) 1. V.R. 84, declined to follow the Queensland decision above referred to. The issue there was whether the true identity of two undercover police officers could be withheld from the defendant at the committal proceedings. The Court decided that the trial Court had jurisdiction to make an 'anonymity order' and that the witnesses should be permitted to give evidence without disclosing their real identity. The Court's order was applicable to the stage of committal as well as at the trial.

The Court upheld that this principle was not limited to undercover police officers. It applied "to other witnesses whose personal safety may be endangered by the disclosure of their identity". The opinion draws a parallel between witness anonymity and the principle of exclusion of evidence based on public interest immunity. In Australia, on grounds of executive privilege, certain documentary evidence could be excluded if their disclosure was contrary to public interest as in the English case of Duncan. Those broad principles were applied in criminal cases not only in regard to receiving documentary evidence but also oral evidence.

The relevant factors to be kept in mind are whether there is a real threat of danger, injury, or death to the witness and to the effectiveness of Witness Protection Programmes. If there is good reason to believe that disclosure of the witness's identity may be of substantial assistance to the accused, then there should be no anonymity. However, if knowing the witness's identity is only of slight assistance, anonymity should be granted subject to the rule that it will not be granted merely because of embarrassment to the witness or invasion of his privacy or personal damage to him as a result of media coverage.