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Report No. 198

Chapter V.- Witness anonymity and balancing of rights of accuse.- a comparative study of case law and other countries

In the United Kingdom, the judgment of the House of Lords in Scott v. Scott 1913 AC 417 required that the exception to the general rule that administration of justice should take place in open court should be based "upon the operation of some other overriding principle which ... does not leave its limits to the individual discretion of the Judge."

In the Leveller Magazine case (1979) it was held by the House of Lords that apart from statutory exceptions it was open to the court "in the exercise of its inherent powers to control the conduct of proceedings" so long as the court "reasonably believes it to be necessary in order to save the ends of justice." This was subsequently recognised by the enactment of s.11 of the (UK) Contempt of Court Act, 1981.

Under s.24 of the Youth Justice and Criminal Evidence Act, 1999 evidence may be given through a live telecast link where the witness is outside UK or is a child. Ss.16 to 33 of the same Act require the court to consider special measures of various kinds for the protection of vulnerable and intimidated witnesses. In R v. DJX, SCY, GCZ (1991) Crl. A Rep. 36, the Court of Appeal allowed child witnesses to be screened from the accused. In R v. Tailor (Gary) 1995 Crl. LR 253 (CA), various guidelines were issued.

The Lord Diplock Commission, appointed to consider various issues concerning the violent confrontations in Ireland, suggested that witnesses could be screened from the accused. In R v. Murphy (1989) it was held that identity of the witness should be kept secret not only from the accused but also from the defence lawyer. In R v. Lord Saville of Newdigate 1999 (4) All ER 860 the Court of Appeal overturned the decision of the Lord Saville Tribunal appointed to enquire into the incident of shooting of 26 people during a demonstration at Londonderry, refusing to grant anonymity to military witnesses.

The Court of Appeal held that the approach of the Tribunal was not fair to the soldiers as the risk to them and their families was "a serious possibility." In the second round (Lord Saville v. Widgery Soldiers 2002 (1) WLR 1249), the Court of Appeal overturned the decision of the Lord Saville Tribunal to shift the enquiry from London to Londonderry in Northern Ireland holding that the elements at Londonderry in Ireland "pose a threat to the enquiry and those who are or will be taking part in it, and in particular, a solider witnesses."

The venue, according to the Court of Appeal, should be London only. Further, since there would be live video linkage to Londonderry "the public confidence will not be eroded by holding a part of the enquiry in London." The same approach was adopted in regard to the recording of the evidence of police witnesses.

Following the ruling of the European Court on Human Rights in Chahel v. UK, the Special Judgment on Appeals Commission Act, 1997 and the Northern Ireland Act, 1998 have been enacted which provide for courts to sit in camera where it was necessary on national security grounds and for appointing special counsel to represent individuals in those proceedings.

In Australia, the Supreme Court of Victoria (Australia) in Jarvie (1995) approved of non-disclosure of the names and addresses of informers and undercover police officers as well as other witnesses whose personal safety would be endangered by the disclosure of their identity. This has been followed in a series of other cases as well. Australia also has 8 different statutes (in each of the States) dealing with witness protection but not with the anonymity or screening aspects. S.2A (1)(b) of the Australian Evidence Act, 1989 deals with special witnesse.- suffering from trauma or likely to be intimidated.

In New Zealand, under s.13A of the (New Zealand) Evidence Act, 1908 (introduced 1986), protection is available to undercover officers in cases involving drug offences and offences tried on indictment attracting a maximum penalty of at least 7 years imprisonment. A certificate has to be given by the Commissioner of Police to the court that the police officer requiring protection has not been convicted of any offence. In 1997, s.13G was introduced making protection applicable to all witnesses if their lives were likely to be endangered.

In R v. L 1994 (2) NZLR 54 (CA), this provision came to be tested on the anvil of s.25(f) of the New Zealand Bill of Rights which provides for the right to cross-examination to an accused. The court upheld the provision on the ground that the right of crossexamination was not absolute. Under s.13C(4) the Judge, might make an anonymity order where he is satisfied that the safety of a witness is likely to be endangered if his identity was disclosed.

Sub-section (5) of section 13C provides for the factors to be accounted for by the court and sub-section (6), the conditions to be fulfilled. The power of the court to exclude the public or to direct screening of the witnesses or to give evidence by close circuit television is provided under s.13G. The 1997 legislation is comprehensive and has been held by the courts to be 'fair' vis-à-vis the New Zealand Bill of Rights in R v. Atkins 2000(2) NZLR 46(CA).

In Canada, the courts have granted more importance to the exception of 'innocence at stake' rather than the needs of administration of justice. In other words, anonymity of witnesses is treated as a privilege granted under the common law unless there is a material to show that it will jeopardize the proof of innocence of the accused. The important cases in this regard are R v. Durette 1994 (1) SCR 469; R v. Khela 1995 (4) SCR 201; CBC v. New Brunswick 1996 (3) SCR 480; p and R v. Mentuck 2001 (3) SCR 442.

In South Africa, the approach is on a case by case basis in order to balance the conflict of interests with a view to ensuring proper administration of justice. S.153 of the (South Africa) Criminal Procedure Code permits criminal proceedings to be held in camera to protect privacy to the witness. S.154 gives discretion to the court to refuse publication of the name of the accused. The South African courts have permitted the witness to give evidence behind close doors or to give witness anonymity. The courts prefer to prohibit the press from reporting on identity rather than exclude them from the court room. The important cases are S v. Leepile 1986 (4) SA 187 and S v. Pastoors 1986 (4) SA 222.

The courts in the US have held that the constitutional protection in favour of the right to confrontation by way of cross examination, as provided in the 6th Amendment to the Constitution, is not absolute and could be restricted for the purpose of protecting witness identity by using video link or by shielding the witness from the accused though not from the lawyers to the defence or the court or the jury.

The important cases are Alford v. US (1931); Pointer v. Texas (1965) and Smith v. Illinois (1968). In Maryland v. Craig (1990), the court upheld the procedure under the Maryland Courts and Judicial Procedure Code which provided for protection of child witnesses by way of one-way closed-circuit procedure and held that it did not violate the right to confrontation guaranteed by the 6th Amendment.

The European Court of human rights has in Kostovski (1990), Doorson (1996), Vissier (2002) and Fitt (2002) recognised the need to protect anonymity of witnesses while, on account of Article 6 of the European Convention, more importance appears to have been given to the rights of the accused. If national courts had determined that anonymity was necessary or not necessary in public interest, the European court could not interfere.

The judgments of the International Criminal Tribunal for former Yugoslavia (ICTY) in the 'Tadic' and 'Delaic' cases in the context of protection of witnesses, anonymity, re-traumatisitation and general and special measures for their protection have been discussed in detail. Likewise, the decisions of the International Criminal Tribunal for Rwanda (ICTR) (1994) with reference to the relevant statute which provide for protection of victims and witnesses have also been discussed in great detail in the Consultation Paper.

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