Practice and Procedure

Criminal law: witness anonymity, ?automatic deportation

PUBLISHED April 29, 2009

In R v Davis [2008] UKHL 36, the House of Lords held that the use of anonymous witnesses whose evidence was critical to the conviction, rendered a trial unfair without a statutory scheme being in force.

As a result the Criminal Evidence (Witness Anonymity) Act 2008 was rushed through parliament in 17 days. This statute remains in force until 31 December 2009, but the provisions will be re-enacted in the coming parliamentary sessions.

The current act allows for a witness anonymity order in criminal proceedings where this is consistent with a defendant?s right to a fair trial. The orders can include anonymity, pseudonyms, screening and voice modulation. Save for public interest immunity cases, the common law rules on anonymity are abolished. Breach of an anonymity order is a contempt of court. The orders are available to all the parties, including the defence, but the prosecution must always know the true identity of the witness.

The preconditions for the making of an order under section 4 are that:

  • it is necessary to protect the safety of a witness or another person, or to prevent real harm to the public interest (condition A);
  • it must be consistent with the defendant receiving a fair trial (condition B); and
  • the order must be in the interests of justice because a witness would not testify without the order being made (condition C).

Section 5 provides that the relevant considerations to be considered when an order is sought include:

(a) the general right of a defendant to know the identity of a witness in the proceedings;
(b) the extent to which the credibility of the witness concerned would be a relevant factor;
(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;
(d) whether the witness?s evidence could be properly tested without his or her identity being disclosed;
(e) whether there is any reason to believe that the witness:
(i) has a tendency to be dishonest; or
(ii) has any motive to be dishonest in the circumstances of the case, having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;
(f) whether it would be reasonably practicable to protect the witness?s identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court.

The act does not restrict the making of these orders to serious crime, and that may be an issue that is reconsidered in the parliamentary debates. Both the attorney general and the director of public prosecutions have issued guidance on the use of the act, and the DPP distinguishes the reliability of a witness when anonymity is less problematic from issues of credibility. Under the consolidated criminal practice direction as amended in October 2008, there is a right to apply to the attorney general for independent advocates to be appointed to review the relevant material. This will be particularly important when there may be issues going to credibility or where a witness has a tendency or motive to be dishonest.

The act received its first judicial consideration by a five-judge Court of Appeal in R v Mayers and ors [2008 EWCA] Crim 1418. In a series of conjoined appeals, the court confirmed that there was no reason why undercover police officers should not take advantage of the terms of the act. However, because of the precise terms of the statute, it held that if a witness anonymity order was made, that witness?s statement could not be read as admissible hearsay even if the witness was in fear.

The court played down the possibility in reality of using witness relocation schemes. At all times after an anonymity order has been made, the trial judge should keep under review the fairness of the trial and, if necessary, use the provisions of section 78 of the Police and Criminal Evidence Act 1984 to exclude evidence. The threat to the safety of a witness need not come directly from the defendant. The order must be necessary, and this goes beyond a requirement that it is desirable or convenient.

Automatic deportation
For offences committed on or after 1 August 2008 relevant parts of the UK Borders Act 2007 were brought into force, introducing the concept of automatic deportation to the criminal courts. The part of the act in force provides that if a defendant receives a period of imprisonment of at least 12 months, and is not a British national, they must be made subject to a deportation order. In calculating whether there is a sentence of at least 12 months, consecutive sentences may not be added together. Activated suspended sentences are included but not such a sentence when first imposed.

The powers that previously existed to recommend deportation continue to exist in those cases where automatic deportation does not apply. There are exceptions to the automatic deportation rule:

  • where removal would breach a person?s convention rights or the UK?s obligation under the Refugee Convention;
  • where the secretary of state thinks that the foreign criminal was under the age of 18 on the date of conviction;
  • where removal would breach the right of the foreign criminal under the community?s treaties;
  • where the foreign criminal is the subject of Extradition Act 2003 ­proceedings;
  • where the foreign criminal is the subject of a Mental Health Act 1983 (or its equivalent in Scotland or Northern Ireland) order or direction; and
  • where there is a breach of UK obligations under the Council of Europe Convention Action Against Trafficking in Human Beings.

In addition, exemptions from deportation are provided by sections 7 and 8 of the Immigration Act 1971 ? that is, long-term residents who are Commonwealth citizens or citizens of the Republic of Ireland, crews of ships or aircraft, military personnel and persons with diplomatic immunity.

There is no appeal against these orders in the criminal courts, but an appeal does lie under the framework established by the Nationality Immigration and Asylum Act 2002. If, therefore, a criminal law solicitor has a client who is not a British national who may receive a sentence of 12 months or more, it is critical that an immigration solicitor is involved at a very early stage.