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Witness Anonymity Bill

Attorney General Hon. Samuel Bulgin, QC, JP

Madam Speaker and Members of the Legislative Assembly, I rise to present the Criminal Evidence (Witness Anonymity) Bill, 2010 to this Honourable House.

Madam Speaker, in general, this Bill seeks to make provision for the protection of witnesses thereby allowing for the making of an investigation anonymity order by a magistrate in relation to a person who is willing and able to assist the police with a criminal investigation, where that person would not otherwise do so for fear of harm.

This Bill Madam Speaker also makes provision for the making of a witness anonymity order in relation to a person who is able to give evidence in actual criminal proceedings where that person would not otherwise do so for fear of harm.

Part I of this Bill, Madam Speaker, provides the short title of the Bill and section 2 defines various terms such as common law anonymity order, criminal proceedings, investigation anonymity order and witness anonymity order. Section 3, Madam Speaker, clarifies the application of the law as it applies to criminal investigations and criminal proceedings in particular cases or investigations that are already in progress when this law, if it is passed, comes into effect. That is, a transitional provision!

Part II of the Bill - Anonymity in Investigations - deals with inter alia the anonymity in investigations, in qualifying offences, and the commission of the offence in particular where the offence involved a firearm or other offensive weapon. The specific offences referred to in section 4, Madam Speaker, are murder, attempted murder, manslaughter, robbery, attempted robbery and rape.

Sections 6 to 9, Madam Speaker, discuss in detail the granting of an order by a magistrate in relation to a specified person and thereby prohibiting the disclosure of information and the specifics of that person who is willing and able to assist a particular investigation. Madam Speaker, these sections go on to explain who may make an application for an investigation anonymity order, namely the Commissioner of Police (COP) and the prosecutors which in due course will be the Director of Public Prosecutions (DPP). It also deals with the conditions for making an order and, where a magistrate refuses an application and the circumstances of an appeal for same, and provides inter alia, if a magistrate is approached for an anonymity order and the magistrate is going to refuse this request. The magistrate having been forewarned that a refusal will be appealed, the order will still have to be made and remain in place until an appeal is heard by a judge and dealt with.

Madam Speaker, section 10 of the Bill details the circumstances whereby a magistrate may discharge an investigation anonymity order, who may be party to the proceedings on the application in addition to the applicant, circumstances to be considered by a magistrate in consideration of a discharge and the right of a party to the proceedings to appeal to a judge against the magistrate's decision.

Part III - Anonymity in Criminal Proceedings (as distinct from the investigation stage), Madam Speaker, discusses the reason a court may make a witness anonymity order, the measures that may be required to be taken in relation to a witness to which an order applies, including measures of security. E.g. the witness's name and other identifying details be withheld, or removed from materials to be disclosed to the other party, or using a pseudonym, modulation of voice, (obviously with the aid of appropriate technology), etc., see s.11(2).

Section 12 explains the circumstances in criminal proceedings under which a prosecutor or the defendant may apply for an application for a witness anonymity order. Section 13 and 14 Madam Speaker, specify the conditions that must be met for an application order, how it is determined whether the measures to be specified in the order are necessary to protect the safety of the witness or another person, to prevent serious damage to property or to prevent real harm to the public interest as well as the relevant considerations of the court in determining that these conditions are met. See for examples s.13(1)(a)(b)(c) and s.13(2)(a)(b).

Madam Speaker, in section 15 the judge shall give the jury an appropriate warning to ensure that the order made in relation to a witness does not prejudice the defendant, that is, the entire circumstance and desirability of withholding the anonymity of the witness is taken into account in ensuring that the defendant receives a fair trial. Accordingly, there are stringent safeguards to ensure that courts scrutinize these applications properly.

Sections 16 and 17, Madam Speaker, deal with discharge or variation of order and the discharge or variation of order after criminal proceedings have come to an end. Section 18 discusses the circumstances for the discharge or variation by appeal court.

Part IV - Miscellaneous, Madam Speaker, details in sections 19 through 22 the abolition of common law rules, common law anonymity orders, common law anonymity order appeals and the withholding of information on the grounds of public immunity.

Section 23 states that the Attorney General shall review the operation of this Law and prepare a report of that review as well as lay a copy of the report before the Legislative Assembly before the end of the period of two years from the commencement of this Law.

Section 24, Madam Speaker, allows for the Governor in Cabinet to make regulations prescribing all matters which are required or permitted to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the provisions of this Law.

Madam Speaker, as I alluded at the top of my presentation that this Bill seeks to make provision for the granting of anonymity orders. The effect of such order is to prevent the defendant or his legal representative from knowing the identity of a witness in a qualifying offence.

Indeed, Madam Speaker, in recent times these Islands have experienced a very high level of anxiety as a direct result of the heinous crimes that are being committed with the use of firearms.

The government's response understandably has always includes providing the necessary legislative support to help to combat such problems. This response is consistent with other efforts made in 2005 when these Islands experienced a spike in serious crime. Back then this house amended the law to allow for witness statements to be admitted into evidence, with the leave of the courts, where the witness is kept away from giving evidence because of fear or some other means.

Madam Speaker, this House also passed anti-gang legislation and increased the sentence for certain offences including firearms for which there is a mandatory minimum sentence of ten years. Subsequently the law was changed to say ten years unless there are exceptional circumstances which would reduce it to seven, and also a minimum of seven years upon a guilty plea. It may be that the House might wish to again revisit this threshold if Honourable Members are so inclined.

This Legislative Assembly also amended the law to outlaw the carrying of certain articles (weapons) e.g. machete, baseball bats, etc. in certain public places such as cinemas, and the parking lot of these places.

The law was also amended, Madam Speaker, by this House to change the eligibility period before a person can be considered for Parole when he is convicted and sentenced to imprisonment for certain offences.

Madam Speaker, why is all this relevant? It is relevant, Madam Speaker because it demonstrates that whenever necessary this Assembly has always acted to put in place the necessary legislation to assist with addressing problem of crime.

But as we are only to sharply being made aware these days, as a country we will not be able to legislate our way out of this scourge that is plaguing our country. No amount of legislation is going to tame this beast and fight this scourge without what I like to refer to as the "people power". That is, Madam Speaker, the willingness of members of the public to among other things, come forward and provide information about the commission of crime.

No amount of or, increase in police officers, legislation, CCTV, fingerprinting, stop and searches, unmasking of tinted car windows, etc., will solve or minimise our crime problem unless we can repose our trust in someone, be it a Pastor, a police, a school teacher, a doctor or someone and pass on vital information about crime- we are now at the stage Madam Speaker, where we have to trust someone and tell what we witnessed-irrespective of how insignificant you think the bit of information is. The information we provide to the police might turn out to be that one missing link that the police have been trying to find to piece the chain together, having already received other bits of information from others.

Madam Speaker, some argue that the culture of silence is understandable given the sheer size of our community and therefore the degree of familiarity among other factors. But what must be equally understood is that we are all now at a stage where we have to be the collective eyes and ears of the community in order to counter this level of viciousness that has been plaguing our country.

And so, Madam Speaker, this bit of legislation being debated here today will only be as effective as the users allow it-that is, a witness will only be treated/designated as anonymous if he/she is willing to come forward and give the information or statement in the first place-not being anonymous by staying away. Equally important has to be the responsibility of those who will be responsible for administering this law to ensure that its integrity is not breached and thereby causing the public to lose confidence in its workings to protect those it is supposed to protect. It will only take one breach for the entire thing to unravel.

Accordingly, those of us in authority asking for the public cooperation in coming forward have a serious responsibility to ensure that when the witnesses do come forward we uphold our side of the bargain in not disclosing their identity and thereby exposing them and family to potential harm.

Madam Speaker, from time to time, but more so in recent times, there have been a number of cases involving murders or attempted murders involving the use of firearms in which witnesses have found themselves the victim of both direct and indirect intimidation.

Many of the cases, Madam Speaker, involve an undercurrent of gang activity and where the intimidation is both subtle and disturbing and thereby have the direct effect of perverting the course of justice in such cases.

This is what has caused the COP to call for legislative changes which would permit anonymity of witnesses and, where necessary, judge alone trials.

It is the wish that these measures will ensure that the best evidence is presented to the court once the issue of fear and intimidation is addressed.

Regrettably, Madam Speaker, these Islands are undergoing a changing crime dynamic and cultural shift where violence and the use of firearms have radically impacted the willingness of persons to provide information to the police. Therefore the level of intimidation needs to be halted.

As legislators, we are acutely aware that every accused person has a right to a fair trial of which one important aspect is the general right to/of the accused to be confronted by, and challenge, those who accuse him or her.

The concept of a witness anonymity order is therefore a very fundamental step and can and should only be taken where there are genuine grounds to believe that a court would not otherwise hear evidence that should be available to the court for a fair disposal of the case, and of course in the interests of justice for all, including the interest of the victim or victims, the interest of the witness, the interest of the defendant as well as the wider public interest.

Madam Speaker, a witness testifying anonymously is not incompatible with Article 6 of the European Convention on Human Rights even in instances where that evidence might be the sole or decisive evidence against the accused although such instance would have to be extremely rare, if ever at all.

However, the general issue as to whether its use will render the trial unfair will have to be evaluated on the facts on a case by case basis.

The overall fairness of the proceedings will be guaranteed or at least enhanced by other means available to an accused person to investigate and challenge the accuracy or credibility of the witness's evidence. That is, the disclosure by the Crown, should include all relevant materials that may tend to cast doubt on credibility, reliability or accuracy of the witness's evidence. But in doing so it is incumbent on the prosecutor to take all necessary and reasonable steps consistent with a fair trial and the interest of justice to ensure the safety of a witness or the avoidance of real harm to the public interest or the protection of property.

Madam Speaker, this Bill before the House has been the subject of considerable input from colleagues in the UK, including experts from the Ministry of Justice Criminal Procedures and Evidence section and the Better Trials Unit office for Criminal Justice Reform.

We consider their input very crucial Madam Speaker, given that they have had some practical experience with the use of anonymous witness procedures, underpinned by legislative framework starting with their Criminal Evidence (Witness Anonymity) Act 2008, and after the Court Ruling, the more recent Coroners and Justice Law 2009, in particular sections 76-87 of that Law. This legislative arrangement is also in use in New Zealand, crafted with one eye on the European Convention on Human Rights (ECHR) and the Bill of Rights provision.

Madam Speaker and Honourable Members of the Legislative Assembly, I commend this Bill and seek the approval of this Honourable House in passing the Criminal Evidence (Witness Anonymity) Bill, 2010.