Anonymous Witnesses in England and Wales: Charting a Course from Strasbourg?

Abstract

The use of anonymous testimony in England and Wales has recently been the subject of a number of high-profile appellate decisions and legislative intervention. As the law currently stands, it is permissible for the criminal courts to receive such testimony, subject to certain safeguards. This article evaluates the position against the threshold for anonymous evidence laid down by the European Court of Human Rights. It is argued that such evidence is too readily admissible under the current legislative framework. As such, the rules regulating the use of anonymous testimony should be amended so that they comply fully with the fair trial rights of the accused.

Victims’ Status at International and Hybrid Criminal Courts: Victims’ Status as Witnesses, Victim Participants/Civil Parties and Reparations Claimants

“…1525 Concerning the compatibility of the CJA with the ECHR and ECtHR's case law, it has been said that it dilutes the accused's right under article 6 of the ECHR by broadening the grounds based on which an anonymity order may be granted. 1526 Indeed, an important omission is the requirement whereby convictions shall not be solely or decisively based on anonymous testimony, being envisaged only as 'a relevant consideration' for the court. 1527 Since the courts are not in principle obliged to refuse to issue an order under those circumstances, an accused may at least in theory be convicted solely or decisively on the basis of an anonymous witness's testimony.…”

“…1527 Since the courts are not in principle obliged to refuse to issue an order under those circumstances, an accused may at least in theory be convicted solely or decisively on the basis of an anonymous witness's testimony. 1528 This indeed goes against reiterated ECtHR's case law, starting with its seminal case Kostovski v. The Netherlands, according to which, anonymous testimony should not form the sole or decisive basis for any conviction. 1529 Furthermore, in Al-Khawaja and Tahery v. United Kingdom, the ECtHR concluded that 'Even when "counterbalancing" procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements'.…”

Witness Anonymity at the International Criminal Court: Due Process for Defendants, Witnesses or Both?

“…49 Here the court observed that: "while it is true that the Court has often examined whether the procedures followed in the domestic courts were such as to counterbalance the difficulties caused to the defence, this has been principally in cases of anonymous witnesses whose evidence has not been regarded as decisive and who have been subjected to an examination in some form or other." 50 Arguably this settles the issue and counterbalancing measures will not prevent a violation, even, if as Doak and Huxley-Binns point out "a plethora of counterbalancing measures has been put in place" 51 . The real issue therefore is the extent to which a conviction is based on the evidence of anonymous witnesses.…”

“…There is academic opinion arguing that Al-Khawaja and Tahery leaves the Strasbourg position on anonymous witnesses "relatively clear". 73 However the United Kingdom Government has referred the decision to the Grand Chamber at Strasbourg and the UK Supreme Court has "squared up" to Strasbourg 74 on the issue in R v Horncastle. 75 Here Lord Phillips was highly critical of the Strasbourg Court"s approach to making exceptions to the Article 6(3)(d) principle which he observed "has resulted in a jurisprudence that lacks clarity".…”