R v Donovan and another: Court of Appeal, Criminal Division: 18 December 2012
The instant offences formed part of serious incidents of public disorder in UK cities in 2011. R, was travelling by bicycle in order to provide moral support to a friend who was afraid to be alone in her house because she lived close to one of the scenes of public violence. Having reached some disturbances at about 7.30pm, R's bicycle was stolen by members of a group of youths wearing masks or other disguises, some of whom were armed with sticks. Attempts were made to steal his mobile telephone and an unknown male punched him in the face, breaking his jaw and knocking him to the ground.
The defendants were alleged to have been among a number of youths who surrounded R whilst he was sitting on the ground. A man alleged to be the second defendant created the appearance of assisting R by helping him to his feet, whilst a man alleged to be the first defendant investigated the contents of his ruck-sack. When R noticed what was happening, that man pushed him backwards so that he could not prevent the robbery. The man alleged to be the first defendant removed a number of items from the ruck-sack and both men then left the scene.
So far as the man alleged to be the first defendant was concerned, he then formed part of another group, which shortly afterwards broke into and looted a nearby supermarket. R was unable to provide a description of his assailants. Whilst the events were filmed by local residents and were recorded on CCTV, the view of the faces of the perpetrators was too limited to enable any identifications to be made. The prosecution depended on the evidence of one witness, T, who identified the first defendant and another witness, B, who identified the second defendant after the event from the filmed footage, but without being able to recognise the faces of the assailants.
The witnesses were known throughout the proceedings by pseudonyms and, on any view, the identification evidence, although crucial, was not of the best. The prosecution applied, pursuant to section 86 of the Coroners and Justice Act 2009 (the 2009 act), for anonymity orders in respect of T and B. The witnesses each gave a statement for the purposes of the application (T and Bs' statements), to the effect that: (i) they feared for the safety of themselves and their family; (ii) if identified, they would be put in fear of death; and (iii) they would not give evidence if their identity could not be concealed. Whilst accepting that the defence was handicapped by not knowing the identity of the witnesses, the judge concluded that there was nothing leading him to conclude that either T or B was motivated against the person they purported to identify and the anonymity orders were granted (the orders). T and B were never seen by the defendants giving evidence and their voices were disguised. The defendants were convicted of robbery and violent disorder and the first defendant was also convicted of burglary. They appealed against conviction.
They submitted that, in a case in which the convictions had depended on the evidence of anonymous witnesses, the orders had caused irredeemable prejudice to the defendants. Consideration was given, amongst other things, to sections 88 and 89 of the 2009 act. The appeals would be allowed.
It was established law that a witness anonymity order was to be regarded as a special measure of the last practicable resort and, in accordance with long established common law principles, such an order could not be made or upheld if, in the result, the trial would be or was unfair (see  of the judgment). On the facts, the orders ought not to have been made. The court noted passages taken from T and Bs' statements which disclosed factual matters which would have provided a source of significant cross-examination about whether the witnesses had been totally credible, and whether, when assessing their credibility, the jury could have assumed that they had been truly dispassionate and objective.
That material had suggested that the decision to grant anonymity to T and B had meant that, in the case of each defendant, the jury had been prevented from hearing admissible and substantive material which had been relevant to the question whether either or both witnesses might have been lying, or might have had any motivation for lying. In short, material of potential value to the defence, which had provided grounds for believing that both witnesses might have had a motive for incriminating the defendant they had purported to recognise from the filmed footage had indeed been available. Nevertheless, the judge had not alluded to it and his observations had suggested that he had been unaware of its potential relevance. His decision had therefore been flawed and the subsequent trial had been unfair (see , ,  of the judgment). The convictions would be quashed (see  of the judgment). R v Mayers; R v P  2 All ER 145 applied; Stanford International Bank Ltd, Re  All ER (D) 219 (Apr) considered.
Gideon Cammerman (assigned by the Registrar of Criminal Appeals) for the first defendant; I Fessal (assigned by the Registrar of Criminal Appeals) for the second defendant; Mark Dennis QC and Christopher Hehir (instructed by the Crown Prosecution Service) for the Crown.