Report No. 198
Consideration of Responses to The Questionnaire and Recommendations on The Question of Witness Anonymity
It will be seen that most of the questions contained in the Questionnaire in Chapter VIII of the Consultation Paper have been answered in sufficient detail in the preceding Chapters V to IX of this Report. It is, however, necessary to summarise the answers to the questions in the form of our recommendations. The questions posed in Chapter VIII of the Consultation Paper will now be answered seriatum. (As we are proposing witness anonymity only in relation to offences triable by Courts of Session, the undermentioned discussion will be understood in that sense.)
(1) Should witness anonymity be maintained in all three stages of investigation, inquiry, trial and even at the stage of appeal in a criminal case?
(i) So far as the stage of "investigation" is concerned, we think that a provision is necessary to deal with witness anonymity at that stage. As stated in Chapters VII and VIII, it may be that the Police may consider that witness anonymity is necessary in certain cases during investigation.
Therefore, whether it is at the stage of recording of statements under section 161 or section 164 or forwarding copies given under section 164(6), or when chargesheet and documents are filed under section 173 and copies thereof are supplied under sections 207 and 208, it is necessary to have provision to enable the Police to move the concerned Magistrate through the public prosecutor, seeking anonymity in respect of the witness concerned. Witnesses will, if the Magistrate grants an identity protection order, be described by a pseudonym or by a letter in the English alphabet, though the real identity will be disclosed to the Magistrate.
(ii) We are also of the view, as stated in Chapter VIII, that there must be provisions permitting anonymity to witnesses at the stage of inquiry. Witnesses will be described by letters from English alphabets. If an order of anonymity is granted, it will enure during inquiry and extend to the trial upto conviction or acquittal and beyond.
(iii) We are also of the view that there must be witness identity protection just before the stage of the Sessions trial i.e. before recording evidence of witnesses at the trial, so that protection is available to witnesses in respect of whom no orders were sought or passed during the earlier stages of investigation or inquiry. The witnesses will again have to be described by pseudonym or English alphabets. We are of the view that, at the trial and after the trial, in the judgment of the Sessions Court, the anonymity must be reflected and continued.
(iv) After the judgment in the Sessions Court too, the anonymity must be continued in all appellate proceedings. Even in and after the judgment of the High Court or Supreme Court, as the came may be, the pseudonym or alphabet alone has to be mentioned. Even in the law reports or newspaper publications, the pseudonym or alphabet alone must be used.
We recommend that witness anonymity must be maintained at all the stages, investigation, inquiry, trial and even at the appeal and thereafter also.