Report No. 198

Part II

Witness Protection Programmes

Chapter XI

The Consultation Paper and Responses

The Consultation Paper was published in August 2004 and it invited responses from various quarters. Part III and IV of the said Paper dealt with Witness Protection Programmes. Each of these Parts contained a single chapter. Chapter VII in Part III dealt with the details of programmes in force in Australia, South Africa, Canada, United States of America, Philippines, Hong Kong and also in Portugal, France, Czechoslovakia, Republic of Korea, Japan, Netherlands, Germany and Italy.

Chapter VIII in Part IV contained the Questionnaire both in relation to Witness-Identity Protection and Witness Protection Programmes, separately. There were 14 questions on this subject of Witness Protection Programmes in Chapter VIII. At the end of the Consultation Paper, the rules relating to the programmes in Portugal were appended as a model.

Forty responses to the Consultation Paper on this subject supported the need for Witness Protection Programmes in our country. Among the 40, there were 10 from State Governments, 10 from Senior Police Officials, 3 from Judges, 17 from lawyers, Jurists and others.

We do not propose to repeat, in this final Report, all the literature containing Witness Protection Programmes to which we have referred in Chapter VII of the Consultation Paper. We shall, however, try to summarise the basic features common to the various programmes in other countries.

Basic features of Witness Protection Programmes in other countries

At present, we do not have any Witness Protection Programmes in our country which deal with the protection to victims and witnesses, outside Court proceedings.

From the various programmes in force in several countries, as referred in the Consultation Paper, certain basic features can be gathered. They are as follows:

(1) There is a determination, initially, either by a Senior Police Officer or by a Court that a victim witness or other witnesses requires protection (i.e. protection outside Court);

(2) The protection is generally granted in the case of witnesses who have to depose in trials relating to 'serious' crimes.

(3) The protection is granted at the stage of investigation, and is continued thereafter till the trial is completed;

(4) The State/Police in charge of protection programmes and the victim-witness or other witnesses have to enter into an MOU which specifies the mutual obligations of both sides;

(5) Among the types of protection, the most important are those relating to (a) giving the witness a 'new identity' and/or (b) relocation in a different place;

(6) As a consequence of the MOU, the witness agrees to give evidence as required in the proceedings while the State has to bear the expenses of relocation, custody and maintenance of children, tax obligations of the victim-witnesses or other witnesses;

(7) The witness may be granted accommodation in the Court or police premises subject to surveillance and security;

(8) Protection may be extended in addition to physical protection of relatives;

(9) There can be change in the physiognomy or the body of the protected person;

(10) No person is allowed to disclose the name of the witness admitted to the programme or of his identity in any manner whatsoever, nor draw any picture, illustration or painting or photograph, pamphlet, poster etc. of the witness;

(11) (a) In respect of other civil proceedings to which a protected person is a party or in which he is a witness, if it appears to a Superior Court that if the protected person is to file or defend a civil case or be a witness therein, his safety is likely to be endangered when he initiates, defends or continues the civil proceedings, the Court may make an appropriate order with regard to allowing him to file the case, defend or continue it under his new identity or the Court may stay the proceedings.

The purpose of the stay order is to prevent disclosure of the new identity or relocation of the said protected person. The Court may take steps to ensure on the one hand that the rights or obligations of the protected person are not unduly restricted while on the other hand, it may direct his identity or relocation be kept secret;

(b) If the protected person has to file a criminal case, he may do so under his new identity and such stay thereof. If he is an accused or a witness in a criminal case, after disclosing his real identity to the Court, the proceeding has to be stayed.

(12) The identity and relocation will not be published in any Court proceedings or documents nor given publicity outside court or in the media;

(13) Breach of MOU by the prosecution witness would enable the State to terminate the MOU.

These are the general features contained in the witness protection programmes of various countries.

The question is as to the procedure to be followed in our country in respect of witness protection programmes.

In the next chapter (Chapter XII), we shall set out the responses to the Questionnaire contained in the Consultation Paper, in relation to Witness Protection Programmes.

In the chapter thereafter (Chapter XIII), we shall consider the responses and give our recommendations.