Practice and Procedure


PUBLISHED March 17, 2003

Where two witnesses gave evidence behind screens to protect their identity there was only a remote possibility of prejudice to the defendants and that had to be balanced against evidence that if the witnesses were identified they faced a real risk of danger. The convictions were therefore safe.Appeal against conviction with leave of the single judge. On 12 February 2002 at Blackfriars Crown Court, before HH Judge McMullen, the defendants ('B' and 'S') were convicted of wounding with intent to do grievous bodily harm and violent disorder. They were sentenced on 24 April 2002 to a total of five years' imprisonment. Another co-accused was acquitted at the judge's direction and another absconded before trial. On 10 March 2001 two separate groups of people were drinking at a bar in a restaurant. One group comprised the defendants and their co-accused; the other was made up of six men and one woman ('the victims'). As the victims left the restaurant a disturbance broke out and the victims were attacked by the defendants' group with knives. The victims suffered very serious injuries. It was common ground that both groups had consumed a considerable amount of alcohol. It was the prosecution's case that the defendants had gone to the restaurant with knives looking for trouble and were acting on a joint enterprise. B and S accepted they were in the restaurant and accepted physical involvement but stated that they were attacked and acted in self-defence and in defence of their friends. Two of the victims ('X' and 'Y') were members of the security services and an application was made for their evidence to be given behind a screen to protect their identity. When the judge gave his ruling, in favour of the prosecution, it was clear that he had been under the impression that if he did not permit X and Y to give evidence behind a screen they would not give evidence at all. The prosecution informed the judge that the true position was that X and Y would give evidence if anonymity was granted and they gave evidence in camera but that they were very reluctant to do so. The judge ruled again in favour of the prosecution and held that: (i) there might be some prejudice to B and S if they could not see X and Y but that could be cured by the prosecution stipulating the weight and height of X and Y and identifying the clothes they wore on the night of the incident; (ii) the evidence of X and Y was relevant evidence of the joint enterprise and the absence of their evidence would be prejudicial to the prosecution; and (iii) even if the evidence was given in camera it was possible that B and S could be approached by someone unscrupulous and asked to identify X and Y. Consequently, X and Y were screened from B and S but were in view of the jury and counsel. B and S appealed against conviction on the ground that the judge was wrong to allow the application. They contended that the judge was influenced only by the fact that B and S might be approached and could give a description of X and Y, and that it was unrealistic to see that as a danger justifying interference with the normal course of the trial.HELD: (1) The law in cases of this sort was clear and the principles of the approach to adopt were set out in R v Taylor and Crabb (22/7/1994, unreported). The security services did not have a passport to the use of screens and anonymity: it had to be decided on a case by case basis and it was possible that a judge might not be satisfied there was any risk. (2) In the present case the Secretary of State for the Home Department granted a Public Immunity Certificate, the contents of which were disclosed to the defence. The certificate had a schedule that was not disclosed and was seen only by the judge. The Court of Appeal had seen that schedule and was satisfied that X and Y were at risk. (3) Any prejudice faced by B and S was remote. The identity of X and Y was of no relevance to the issue before the jury. X and Y's appearance may have been of some relevance but it was limited. S gave a description of a person involved and it was quite clear that it was Y. (4) The judge was absolutely right to come to the conclusion that there was only a remote possibility of prejudice. Against that was evidence that X and Y could face a real risk of danger. The judge had to balance the considerations in R v Taylor and Crabb (supra): he had to ensure a fair trial for B and S but was also responsible for the safety of the witnesses. The judge correctly exercised his discretion, no prejudice was caused and nothing happened that resulted in an unfair trial. (5) On many occasions the administration of justice was adversely affected because witnesses were frightened to come forward in case they were subject to retaliation. It was the responsibility of the court to protect witnesses.Appeals dismissed.

[2003] EWCA Crim 935