Witness Anonymity

The introduction of the Youth Justice and Criminal Evidence Act 1999 (“YJCEA”) provided substantial protection for witnesses.

Section 46 of the YJCEA enables courts to make a reporting direction in relation to adult witnesses which prohibits any matter relating to the witness to be included in any publication during the lifetime of the witness if it is likely to lead members of the public to identify the individual as a witness in criminal proceedings.

It should be noted that this application can only be made by a “party to proceedings”. This is generally limited to the CPS and the Defence.

The Court will need to be satisfied that the witness is eligible for protection, the test being that the quality of evidence/level of co-operation by that witness is likely to be diminished by reason of fear or distress on the part of witness in connection with being identified by members of the public as a witness in the proceedings.

There are various factors set out in Section 46 (4) that would be taken into account when determining an application.

Specific Sexual Offences

The court has relevant powers under the Sexual Offences (Amendment) Act 1992. The victim in a case of rape or one of the sexual offences listed in the 1992 Act is entitled to 'anonymity' in the press.

Once an allegation of one of the relevant offences has been made, nothing can be published which is likely to lead members of the public to identify the victim. The offences listed in the 1992 Act include most offences under the Sexual Offences Act 2003.

This is what the starting point was in respect of Ms Harrison. However, she chose to waive that right and to have her identity made public.

If the offence charged is one of those listed in the schedule, the reporting restrictions are automatic, and no application is required. The Independent Press Standards Organisation’s guidance is extremely strict in respect of anonymity for those victims of sexual offences.

Witness Anonymity

A witness will ordinarily be required to give his or her name at the beginning of examination-in-chief.  The Trial Judge can exercise their discretion to depart from this procedure in appropriate cases pursuant to the Coroners and Justice Act 2009. Sections 76 – 85 deal with anonymity during an investigation, this is limited to a very narrow range of offences. These do not extend to sexual offences and we are now past this stage in any event.

Section 86 sets out the rules relating to Witness Anonymity Orders as repealed and replaced, albeit identically, in the Criminal Evidence (Witness Anonymity) Act 2008. Again, these can only be applied for by the Prosecution or Defence. These orders can include any of the following:

1. that the witness's name and other identifying details may be—
2. withheld;
3. removed from materials disclosed to any party to the proceedings;
4. that the witness may use a pseudonym;
5. that the witness is not asked questions of any specified description that might lead to the identification of the witness;
6. that the witness is screened to any specified extent;
7. that the witness's voice is subjected to modulation to any specified extent.

The Conditions for Witness Anonymity

Condition A: That it is necessary either to protect the safety of a witness or to prevent serious damage to property; or to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

Condition B: That the order is consistent with a fair trial.

Condition C: That the importance is such that it is in the interests of justice for the witness to give evidence and either the witness would not give evidence without the order or there would be real harm to the public interest if the witness were to give evidence without the order being made.