War Criminal Jack Straw and Conservatives and Lib Dems stitch up to breach of common law rights in allowing anonymous witnesses in criminal cases

The Daily Mail today reports that "Straw will end 'secret witness' ban to prevent more trial collapses"

In a squalid stitch up the leading War criminal Jack Straw has got the backing of both the Tories and the Lib-Dems for the introduction of a new law which will legitimise the use of anonymous witnesses and destroy the rights of the accused founded in centuries of Common Law.

A statement will be put before Parliament next week . Government lawyers are burning midnight oil drafting a bastardised breach ocommon law based around ten (allegedly) simple clauses modelled on the system curently in use in New Zealand. It will it is reported grant anonymity to witnesses for cases such as those involving organised crime, witness intimidation and gun and gang-related crime. It is expected this will go through, "on the nod" and be passed before MPs break for the summer at the end of July.

The Antipodean system is based on the presiding judge hearing applications for witness anonymity on a case-by-case basis behind closed doors before deciding whether they can give evidence without revealing their identity.

They take into account the safety of the witness or whether any other person is likely to be endangered.

The judge must be satisfied the witness has no reason to be dishonest and the making of the order would not deprive the accused of a fair trial. (Thus denying the jury the chance to make their minds up)

The Government will also have to ensure any legislation is compatible with human rights laws guaranteeing a free and fair trial - meaning it will not be in conflict with European based Human Rights legislation.
.
But the judge must be satisfied the witness has no reason to be dishonest and the making of the order would not deprive the accused of a fair trial. One might ask by what divination he makes this judgement - how can he , how can he make enquiries about the witness...perhaps other than asking the prosecution ?

The Davis ruling pointed out that, the prosecution case cannot rely entirely, or largely, on anonymous witnesses. For example there was considerable evidence based on Davis's behaviour and actions after the victim was shot. (See para 2 Davis Judgement) "He had gone to the United States on a false passport shortly after the murders. When questioned by the police after his return to this country he had declined to give any answers. In evidence he had for the first time given details of an alibi, which he had called no further evidence to substantiate."

Mr Straw has acknowledged the need to 'strike a balance' between witness protection and the need to ensure innocent men and women are not convicted on evidence given by witnesses hiding behind the cloak of anonymity

It is interesting that in striving to acheive that balance that In a majority decision of the Court of Appeal of New Zealand in R v Hughes [1986] 2 NZLR 129, Richardson J, (see para 8 Davis Judgement) quoted the Supreme Court of the US pp148/9 "We would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial." and that decsion led to the statutory amendment which it appears will form the basis of our new law, already it seems assured without public debate of passing.

LORD RODGER OF EARLSFERRY remarked (Davis para 40) "Lord Bingham of Cornhill and Lord Carswell, have surveyed the domestic case law which has been developed in these circumstances. What stands out, .... is that the domestic cases which permit the use of anonymous witnesses are all remarkably recent ." ..." the Commission chaired by Lord Diplock (1972) rejected the idea of witnesses giving evidence anonymously as being inconsistent with the very notion of a trial by judicial process in a British court of law. Three years later, for the same reason, Lord Gardiner's committee (1975) also rejected the idea of using anonymous witnesses. "

It is of course premature to make any judgement about the proposed legislation. What is evident however is that from the illegal stitch up which the Police and the CPS have recently relied upon , we will now have to rely on the discretion of a judge in secret and in private based upon as yet unknown rules ... which will be a license for argument and debate, appeal and counter appeal. Good for the lawyers of course.

If we are to have a change in the law, it must be a change in the law, not a burden to the judiciary, for the jury to be denied the opportunity to hear the clear plain and transparent case for the accused and the accuser.

It is worth remembering here the case of Sally Clarke charged with the murder of both her sons. It was revealed by the prosecution after the trial anf her conviction. that by agreement between the defence and prosecution with the agreement (and participation) of the judge, details of Sally Clark's treatment for alcohol abuse was traded for a denial of her defence to bring forward testimony of good character from her family, friends, employers.

Thus denying and misappropriating the opportunity for the jury to hear evidence which had been suppressed without the power of statute, but by a grubby compromise between lawyers.

It also provided the press and TV who knew of her treatment acres of stories and pictures of the drunken mother, to a public unware of how this was concealed throughout the trial, but was to haunt th erest of her yerribly short life after release from prison.

LORD RODGER OF EARLSFERRY again at para 44 of the Davis judgement has pointed out anonymity of witnesses is a recnt development of the rules of evidence by judicial agreement . He points out very forcefully...."that threats of intimidation to witnesses and the challenge which they pose to our system of trial are anything but new. In theory, the common law could have responded to that challenge at any time over the last few hundred years by allowing witnesses to give their evidence under conditions of anonymity."

He went on ..."Lord Diplock saw the common law principle as so fundamental that he felt unable even to recommend that legislation should be passed to interfere with it. In these circumstances, while I am very conscious of the problems confronting the authorities which have led them to adopt these measures, in my view it is not open to this House in its judicial capacity to make such a far-reaching inroad into the common law rights of a defendant as would be involved in endorsing the procedure adopted in the present case."

For Lord Rodger it is clear, there is no cause for legislation or judicial interference to adopt anonmyity for witnesses.

Lord Patel agrees with him.

PS : The Metropolitan Police are still anxious to trace Martin Harvey, who is 45 - ish, black and known to frequent the Haringey area in relation to the Iain Davis case .