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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> R v Mayers, Glasgow & Ors [2008] EWCA Crim 2989 (12 December 2008) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2008/2989.html Cite as: [2009] 2 All ER 145, [2008] EWCA Crim 2989, [2009] WLR 1915, [2009] Crim LR 272, [2009] 1 Cr App R 30, [2009] 1 WLR 1915, [2009] 1 Cr App Rep 30 |
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2008] EWCA Crim 2989 | ||
2008/03091/D4 (2)
2008/04667/B1(3)
2008/04154/B1(4)
2008/01405/B5 (5)
2008/00959/B5 (6)
2008/5134/B5 (7) |
COURT OF APPEAL (
CRIMINAL
DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON
MR JUSTICE GROSS (1)
ON APPEAL FROM THE CENTRAL
CRIMINAL
COURT
HIS HONOUR JUDGE ROOK QC (2)
ON APPEAL FROM THE CROWN COURT AT PLYMOUTH
HIS HONOUR JUDGE GILBERT QC (3)(4)
Strand, London, WC2A 2LL |
||
2008 |
B e f o r e :
LORD JUSTICE LEVESON
MR JUSTICE FORBES
MR JUSTICE OPENSHAW
And
MR JUSTICE BURNETT
____________________
| R |
||
| - v - |
||
| Mayers (1) Glasgow (2) Costelloe (3) and Bahmanzadeh (4) |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr D. Howker QC and Mr J Traversi for Glasgow (2)
Mr A Newman QC for Costelloe (3)
Mr A Donne QC and Mr A Rafati for Bahmanzadeh (4)
Mr E. Brown QC and Miss S Whitehouse for the Prosecution
Interlocutory application under section 35 (1) of the
Criminal
Procedure and Investigations Act 1996
R
-v-
P (5),V (6) and R (7)
Mr A Langdon QC and Mr C Quinlan for the Crown Prosecution Service
Mr M Fitton QC and Mr T Rose for P (5)
Mr I Peart QC and Mr R. Wilson for V (6)
Mr D. Hughes for R (7)
Hearing date: 29th October
2008
____________________
Crown Copyright ©
Lord Chief Justice of England and Wales:
This is the judgment of the court, to which each member has contributed.
Criminal
Evidence (Witness Anonymity) Act
2008
(the Act) represents Parliament's response to the decision of the House of Lords dated 18 June
2008
in R v Davis [
2008]
3WLR 125. The Act received Royal Assent and came into force on 21 July
2008.
The common law rules relating to the anonymity of witnesses were abolished. Witness anonymity orders continue to be permissible, provided they are made in accordance with the provisions of the statute.
2008
respectively, reflecting the principles as understood from the decision of the Court of Appeal in R v Davis [2006] 1WLR 3130, before its reversal by the House of Lords. Both these appeals involve anonymous eye witness evidence in murder cases, Mayers following the public stabbing and Glasgow the public shooting of the deceased. In the third appeal, Bahmanzadeh and Costelloe were convicted on 2 July
2008
of less serious offences in connection with the use of premises for the supply of class A drugs, after anonymity orders were made before the decision of the House of Lords in Davis, and reconsidered before the end of the trial in the light of that decision. The evidence of numerous undercover police officers was anonymised, and raised an altogether different problem to that raised in Mayers and Glasgow. The fourth case V, P, and R involves a murder in which the victim was shot in full view of a number of witnesses present at a club. This is not an appeal against conviction, but an interlocutory appeal by the prosecution against a decision on 19 September
2008
that the Act did not permit a witness anonymity order to be made unless it was proposed that the witness or witnesses would be called to give evidence.
"(1) This section applies where
(a) an appeal court is considering an appeal against a conviction incriminal
proceedings in a case where the trial ended before commencement,
(b) the court from which the appeal lies ("the trial court") made a pre-commencement anonymity order in relation to a witness at the trial.
(2) The appeal court –
(a) may not treat the conviction as unsafe solely on the ground that the trial had no power at common law to make the order mentioned in sub-section (1)(b), but
(b) must treat the conviction as unsafe if it considers
(i) that the order was not one that the trial judge could have made if this Act had been in force at the material time; and
(ii) that, as a result of the order, the defendant did not receive a fair trial."
This statutory structure directs the approach of the court to the question whether pre-commencement convictions in which the evidence of anonymous witnesses was deployed are "unsafe" for the purposes of section 2 of the
Criminal
Appeal Act 1995. In effect the Act governs the issue of witness anonymity whenever it arises for decision.
The Legislative Structure
Discussion
criminal
proceedings. The section continues:
"….(2) The common law rules relating to the power of a court to make an order for securing that the identity of a witness incriminal
proceedings is withheld from the defendant (or, on a defence application, from other defendants) are abolished.
(3) Nothing in this Act affects the common law rules as to the withholding of information on the grounds of public interest immunity."
Notwithstanding the abolition of the common law rules, it is abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the Act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained.
2008]
Crim
LR 917 Professor Andrew Ashworth highlighted a point of contrast between the approach of the House of Lords in Davis, which focused significantly on the protection of the interests of defendants and G [2008] 1 WLR 1379, which appears to have concentrated more closely on the rights of witnesses. The Act must be taken to reflect Parliament's view of how best to address the countervailing interests which arise in every
criminal
trial, those of the defendant, the witnesses and victims, as well as the public interest in a fair trial process which protects the interests of both, and so far as possible, secures the conviction of those who are guilty and the acquittal of those who are not. It provides a comprehensive statutory structure to deal with the many potentially conflicting problems to which witness anonymity may give rise. It does so in the context of numerous other provisions which address the fairness of the trial process as well as the protection of witnesses and the preservation of their rights, whether they are to be found in statute, the common law or in the jurisprudence of the European Court.
Procedural Issues
Criminal
Evidence Act 1999, the arrangements relating to the admissibility of evidence in accordance with section 116 of the
Criminal
Justice Act 2003 where a witness is unavailable and indeed, the requirements relating to the contents of the defence statement, governed by section 6A of the
Criminal
Procedure and Investigations Act 1996, as inserted by section 33(2) of the
Criminal
Justice Act 2003, as amended by section 60 of the
Criminal
Justice and Immigration Act
2008,
are abrogated by the abolition of the common law rules relating to witness anonymity. It is however clear that an anonymity order should be regarded as the special measure of last practicable resort.
criminal
proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings". Section 2(2) illustrates the kinds of measures that may be required to be taken in relation to a witness which include "measures for securing …(a) that the witness's name and other identifying details may be (i) withheld; (ii) removed from material disclosed to any party to the proceedings", or allowing "(b) the witness to use a pseudonym" or that he may be screened from the defendant and public gallery; or that his voice may be subjected to modulation, so as to enable the defendant and his counsel to hear the witness's distorted voice. However, when giving his evidence, the witness must be seen by the judge and jury, and any relevant interpreter, and they should hear his undistorted natural voice. They should not be deprived of the crucial advantage of seeing and hearing every witness whose credibility must be assessed. Both the prosecutor and the defendant or defendants may apply for an anonymity order. The regimes which apply to them under section 3 are not identical, but no recital of the differences is required.
2008,
which provides for broader identification by the defence of the issues, is a crucial document, which must help inform and focus the disclosure process. The disclosure process cannot be circumscribed by a minute analysis of the text of the defence statement, and some of the considerations identified in section 5, (to which we shall return) such as, for example, the possibility of collusion between intended anonymous witnesses, where there is more than one, should be specifically investigated and addressed in the context of disclosure, not least because the defence may be ignorant of material which could or would be included in the case statement if it was known to the defendant In short, the Crown must be proactive, focussing closely on the credibility of the anonymous witness and the interests of justice.
Criminal
Evidence Act 1984 to exclude evidence) are unchanged. Beyond that, the judge is entitled and normally should reflect both at the close of the prosecution case, and indeed if the defendant has given evidence, when the defence evidence is concluded, whether properly directed, notwithstanding that crucial incriminating evidence was given by an anonymous witness or witnesses, and in the light of the evidence as a whole, the case can safely be left to the jury. Indeed express provision is made by section 6 of the Act for the discharge and variation of an order, at the behest of either side where there has been a change of circumstances, but, if appropriate, on the court's own initiative. The consequences should follow any such order would, of course, be addressed in the context of the individual case.
The Statutory Conditions
"(1) This section applies where an application is made for a witness anonymity order to be made in relation to a witness incriminal
proceedings.
(2) The court may make such an order only if it is satisfied that Conditions A to C below are met.
(3) Condition A is that the measures to be specified in the order are necessary –
(a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or
(b) in order 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).
(4) Condition B is that, having regard to all the circumstances, the taking of those measures would be consistent with the defendant receiving a fair trial.
(5) Condition C is that it is necessary to make the order in the interests of justice by reason of the fact that it appears to the court that –
(a) it is important that the witness should testify, and
(b) the witness would not testify if the order were not made.
(6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness –
(a) that the witness or another person would suffer death or injury, or
(b) that there would be serious damage to property,
if the witness were to be identified."
The Statutory Considerations
"(1) When deciding whether Conditions A to C in section 4 are met in the case of an application for a witness anonymity order, the court must have regard to –
(a) the considerations mentioned in subsection (2) below, and
(b) such other matters as the court considers relevant.
(2) The considerations are –
(a) the general right of a defendant incriminal
proceedings to know the identity of a witness in the proceedings;
(b) the extent to which the credibility of the witness concerned would be a relevant factor when the weight of his or her evidence comes to be assessed;
(c) whether evidence given by the witness might be the sole or decisive evidence implicating the defendant;
(d) whether the witness's evidence could be properly tested (whether on grounds of credibility or otherwise) without his or her identity being disclosed;
(e) whether there is any reason to believe that the witness –
(i) has a tendency to be dishonest, or
(ii) has any motive to be dishonest in the circumstance of the case,
having regard (in particular) to any previous convictions of the witness and to any relationship between the witness and the defendant or any associates of the defendant;
(f) whether it would be reasonably practicable to protect the witness's identity by any means other than by making a witness anonymity order specifying the measures that are under consideration by the court."
criminal
courts up and down the land as seen through the statutory prism.
The Statutory Conditions
criminals
and the legitimate fears which this engenders in the public, particularly where an attack is carried out in public, is undiminished.
criminal
associations in order to gather evidence. This inevitably means that they will become closely involved with extremely dangerous
criminals
who would think nothing of killing or otherwise undermining by threats or otherwise, anyone who might pose a risk to their activities. An example would be an undercover officer infiltrating a terrorist cell for the purpose of identifying both the target of and the participants in a terrorist plot. At another level, officers may be required to create and act out a personality which allows
criminals
to feel safe when dealing or associating with them. An example in this category would be that of an officer posing as a low level dealer or user of drugs, and purchasing supplies from a wholesaler, while gathering evidence about the extent of a drug supply chain from an importer downwards. At the lowest level, there might be a test purchase officer monitoring traders for infringements of food and drugs, weights and measures or trade description legislation.
criminal
associations can face death or very serious injuries. They operate under assumed names and identities. It is not fanciful to expect that extreme measures might be taken to discover their identity, not merely for revenge purposes, but to prevent their future use as witnesses, and to compromise or damage sensitive covert techniques or to discourage them or others from continuing with their activities (all of which serve a valuable public interest). For their true identities to be revealed, or for them to be re-exposed to a defendant, or his colleagues, or indeed to anyone else in court would often create a real risk to their own safety, and that of their colleagues. In any event, their potential for future use in similar operations would be reduced, if not extinguished, itself harmful to the public interest.
crime,
who have been sufficiently careful to render themselves impervious to more traditional forms of police work. The work itself is extremely dangerous and requires considerable public investment by way of training. At best, it will not appeal to many, and it would certainly not appeal to the limited number of potential recruits for this kind of work if it were thought that there was any risk that their true identities might be revealed.
criminals
more highly established on the professional
criminal
ladder.
criminal
justice process that a safe conviction cannot be produced by an unfair trial. The Act itself demonstrates that witness anonymity does not and is not deemed to produce an unfair trial. Oddly, because a fair trial must be fair both to the prosecution and the defence, condition B appears to be focussed on the defendant receiving such a fair trial, even when it is the defendant who is seeking the anonymity order. Be that as it may, in the vast majority of cases all the express considerations in section 5, which bear on the proper protection of the interests of the defendant, will require attention, and it is only after each has been addressed that it may be possible for the court to conclude that condition B has been established. We do not propose to reflect again on these express conditions which we have already addressed in detail. In the end, the trial must be fair, and, so far as this court is concerned, a conviction cannot be upheld unless we ourselves are satisfied that looked at overall the defendant was convicted after a fair trial.
Jordan Mayers
"1. Mrs Odunew heard about "Jeanette Evans" as a potential witness through an intermediary ("X ") "X" has no known association with the events of 28 November 2006.
2. "Jeanette Evans" told "X" that she had witnessed the incident that had occurred on 28 November 2006.
3. Mrs Odunew met "X" at an anti-gun and anti-knife march/rally.
4. Subsequently, on 27 June 2007, "X" told Mrs Odunew that "Jeanette Evans" had witnessed the incident in which Emmanuel had been killed."
crime.
She had come to the attention of the prosecution via the mother of the deceased, who was herself acting on information from an intermediary who had himself or herself been anonymised, and who was in any event said to have mentioned two possible witnesses to the incident, although the second had not been found. In addition the witness named a friend with whom she said she had been present at the time, but this friend, too, had not, and could not, in the circumstances be traced.
Junior Glasgow
2008,
at the Central
Criminal
Court, before HH Judge Rook QC and a jury, Glasgow was convicted of murder. On 6 June he was sentenced to be detained at Her Majesty's pleasure. The specified minimum term was 21 years.
crime
reports; the result of police inquiries into any association between each of the witnesses, the deceased, and the defendant; and statements from the witnesses describing their fear for their safety if their identities were to be revealed, together with statements from two investigating officers in which they described their meetings with one of the witnesses, during which he had said that he would only give an account of what he had seen on the basis that no one would ever discover that he had assisted the police. All this material was disclosed in full to the defence.
2008
Act had been in force at the material time. As a result of the orders the appellant did not receive a fair trial. In support of his general submission, Mr Howker suggested that the judge was wrong to have accepted at face value the various expressions of fear, without addressing the question whether such fears were objectively justified. He contended that when considering whether the measures to be specified in an order were necessary, the court was required to have regard to any reasonable fear on the part of the witness. He urged that it was not alleged that the appellant had been behind any direct threat to any of the witnesses. He emphasised that the shooting had taken place in a public street and that the various witnesses had remained in the street pending the arrival of the emergency services and the police, in full view of other local residents who had arrived to assist. This was not a case where the witnesses would be unknown to the community at large and, in any event, it was the prosecution case that the appellant and the witnesses who claimed to recognise him were or must have been well known to each other. Finally it was suggested that the judge had not properly considered the possibility of relocation of the witnesses. The measures specified in the orders were not necessary to protect their safety.
Manouchehr Bahmanzadeh and Thomas Patrick Costelloe
2008,
in the Crown Court at Plymouth, before His Honour Judge Gilbert QC and a jury, Bahmanzadeh and Costelloe were convicted of permitting premises, a club known as "The Dance Academy", in Plymouth, to be used for supplying controlled drugs of class A. Bahmanzadeh owned the premises and had run a club there since about 1997. He was the sole director of two companies of which the club was the only asset. He lived in a flat above the club, and attended from time to time when it was open on Friday and Saturday nights. He was able to view the premises from his flat via a monitor. The club generated high levels of profit. He banked between £30,000 and £40,000 every week. He was sentenced to 9 years' imprisonment. Costelloe was employed as the general manager of the club and the company secretary of the associated companies. He was actively involved in the day to day management of the club, although there was an issue as to his precise status. He was sentenced to 5 years' imprisonment. A third defendant, described as the "designated premises supervisor", was acquitted, and the jury were discharged from returning a verdict in relation to a fourth defendant, who was employed as head doorman.
criminal
gangs which would provide a threat to the security of the officers, who in any event, by their accents, clearly did not come from the Plymouth area. He suggested that it was not necessary to prevent real harm to the public interest for the witnesses to remain unseen by the defendants nor necessary to make the order in the interests of justice. He argued that the order was inconsistent with the appellants receiving a fair trial, both because they were deprived of the right to cross-examine along the lines indicated to the judge at the Crown Court, but also because the witnesses in truth provided decisive evidence against both appellants. It would have been reasonably practical to protect them by retaining all the measures ordered by the judge, except for the screen, which could have been swept aside as far as the defendants were concerned, without imperilling any of the witnesses.
criminal
fraternity, their knowledge of the identity of a number of undercover police officers was information potentially useful, and alternatively, might have exposed them to pressure from
criminals
to provide such information. It would not have been sensible to have depended on the understanding of these appellants of the principles of confidentiality to secure the safety of the officers. In accordance with principles that have long been followed in relation to the kind of evidence deployed in the present case, and given that the case against the appellants depended on inference rather than evidence of their direct participation in the supply of drugs, the real issue in this appeal is whether the appellants were convicted after a fair trial.
V P and R
crime,
has a complex history.
criminal
organisation known as the High Street Gang, which was active in the Easton area of Bristol. A man known as P lived at 38 High Street, Easton, an address where members of this gang were known to associate. At about midnight on 15/16 November 2006 a gun was fired from a passing car at P's house. The car sped away. A number of members of the gang, perhaps as many as ten, spilled out of 38 High Street and chased after the car. None of the present defendants was identified at the scene.
2008,
there were applications by the prosecution that the evidence of all these eleven witnesses, W, X, Y and Z (in relation to the incident at High Street, Easton) and Grey, Green, Scarlet, James, Black, Blue and Brown (in relation to events at the time of the fatal shooting in the club) should be given anonymously. Furthermore, the prosecution sought leave to read the evidence of the anonymous witnesses W, X, Y and Z as well as, James, Black, Blue and Brown. We need not summarise the evidence of each individual witness, but for convenience we shall refer to the reading of the statements of anonymous witnesses as hearsay evidence.
Criminal
Justice Act 2003 that W, X, Y and Z were, through reasonable fear, unwilling to give evidence. He concluded that there were compelling reasons why their anonymity should be preserved, and that the admission of their evidence would ensure that the interests of justice would not be defeated by the climate of fear which pervaded in the locality in which they lived. He also decided that a fair trial could take place with their hearsay evidence being given anonymously. He considered the anonymity of the witnesses at the club. As each one of them was genuinely and reasonably in fear, and their evidence was important, and could not be adduced without anonymity, he decided that an anonymity order should be made. He had in mind the strong public interest in ensuring that live evidence should be given in gun killing cases such as this one, notwithstanding the pervading climate of fear. He was satisfied that the evidence of these witnesses did not stand alone, and was supported by the CCTV footage. In any event, each of the defendants accepted that he was present in the club at the material time. The judge noted the processes of disclosure in relation to each witness, and the ordinary safeguards otherwise within the trial process, including his power to review the anonymity order at any stage, and accordingly, notwithstanding the anonymity of the seven witnesses, concluded that a fair trial could take place.
Criminal
Procedure and Investigations Act 1996. However on 18 June
2008,
as we have already indicated, the House of Lords decision in Davis was promulgated and on 21 July the
2008
Act came into force. Accordingly, in the light of these developments, Royce J decided to hold a further preparatory hearing to reconsider his previous ruling.
2008,
the prosecution sought the same orders in relation to the witnesses that had been made by Royce J in February, but in relation to Green, Scarlet and Grey, each of whom would be called at the re-trial, witness anonymity orders, pursuant to section 2 of the
2008
Act, were sought. The judge was satisfied, for the reasons given in his earlier ruling, that these measures were necessary in the interests of justice because it was important that each of these witnesses should testify at the trial and none would testify without an anonymity order. The measures were necessary to protect their safety, and would be consistent with the defendants receiving a fair trial. A further special measure included provision for the witnesses to give their evidence via a video link. There is no appeal by the defendants against this ruling.
2008
Act. Accordingly, and we agree, the prosecution concluded that the Act made no express provision in relation to the anonymity of any potential witness who was not actually called to give live evidence at the trial. However, it was contended, that the statements of the anonymous witnesses could be admissible as hearsay evidence under the relevant provisions of the
Criminal
Justice Act 2003. The judge heard full argument, and having done so, he gave a detailed and careful ruling that he was
"…driven, with some reluctance, to the conclusion that the defence contention is correct. I conclude that I have no power to make an anonymity order unless it is proposed that the witness will be called. My reluctance stems from what I said in February:
"The climate of fear in these cases is like a cancer. It stealthy and ugly growth may bring to an end the prospect of getting witnesses to court. It has here…That will no doubt be regarded as a triumph by those who have created it. In the words of the President, Lord Justice Judge in R v Davis, R v Ellis this fear serves "to silence, blind and deafen witnesses. Without witnesses justice cannot be done." There is, in my judgment, an extremely powerful public interest in such evidence being admitted if a fair trial can be achieved. The courts have to move with the times and this real threat to justice has to be met. Justice does not look in one direction. It must take into account the interests of the defendant, the interests of the prosecution and the public interest"
I concluded then, and would have been minded to conclude now, that the evidence could be adduced in hearsay form consistently with a fair trial.
It is an unfortunate consequence of the new Act that evidence of witnesses …who were originally willing to give evidence but who were "frightened off", cannot now be given. There will be a strong incentive where anonymity orders are made to intensify the climate of fear so witnesses will change their minds and will not testify. This is of serious concern".
2008
Act. The risks attendant on the use of anonymous evidence are clearly set out in the Act itself. As we have already discussed, the
2008
Act has swept away the common law rules relating to anonymity and replaced it with a detailed statutory code. However, the Act itself is silent about the possible use of anonymous hearsay evidence. Dealing with it in general terms, any witness who gives oral testimony at trial, whether anonymously, or screened, is there to be cross-examined, and the jury is provided with some opportunity to see the evidence tested, and to form their own view of the veracity and demeanour of the witness. However, as we have indicated earlier in this judgment, if the evidence of the anonymous witness is read, the judge and jury are deprived of an important aspect of the trial which should normally inform their assessment of any contentious witness. Although Davis no longer has any direct bearing on the principles relating to anonymity, it continues to illustrate some of the problems which may arise when the court permits the reading of statements made by witnesses kept away from court by fear. As Lord Bingham explained,
"Such cases, it was rightly said, showed that there could be departures from the principle that a defendant is entitled to be confronted in court by his accusers. These departures have, however, been the subject of express statutory authorisation…none of these statutory provisions permits the adducing of a statement by any witness whose name and identity are not disclosed to the defendant and his advisers."
This approach is undiminished by the abolition of the common law rules governing witness anonymity.
2008
Act is entirely silent about the use of anonymous hearsay evidence, or evidence made in the form of a statement by an unidentified and unidentifiable witness which is simply read to the jury as part of the evidence. This procedure is not authorised by any express statutory provision.
Criminal
Justice Act 2003. He relied somewhat half-heartedly on the slender, indeed flimsy, foundation provided by R v Isichei [2006]
EWCA
Crim
1815, which touches transiently on the point at paragraph 15 of the judgment of Auld LJ. The attention of the court was however not there focussed on the admissibility of anonymous hearsay. Slightly more relevant is Williams, decided in this court on the 18 March 1999, [case number 97/7714W2] where anonymous hearsay under section 23 of the
Criminal
Justice Act 1988 was admitted. However, as we discuss later, this case was decided before the enactment of section 116 (1) (b) of the
Criminal
Justice Act 2003.
"(1) Incriminal
proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court's satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are …
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.
(3) For the purposes of subsection (2)(e) "fear" is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—
(a) to the statement's contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence) …"
Criminal
Justice Act 1988. He has further submitted – and we agree – that the safeguards provided by section 124 (which makes admissible material relevant to the credibility of witnesses whose evidence is adduced by way of hearsay) would be rendered virtually ineffective unless at least the name of the witness is provided. Indeed it seems clear that section 116 (1) (b) was specifically added to 'enable the opposing party to challenge the absent witness's credibility under section 124'.
Criminal
Justice Act 2003 cannot be applied to anonymous statements.
Criminal
Justice Act 2003, which reads:
"(1) Incriminal
proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if … (d) the court is satisfied that it is in the interests of justice for it to be admissible."
2008
Act onto section 114 of the 2003 Act. He suggests that the judge considering the admissibility of the hearsay statement of an anonymous witness should apply the same criteria as set out in the
2008
Act and consider if he would have made an anonymity order if that witness was to be called to give evidence and then, if that hurdle is crossed, the judge should go on to consider whether the hearsay statement of that witness should be read 'in the interests of justice'. He reinforces that by suggesting that the prosecution's duty of disclosure, now applicable to witness anonymity orders, would apply with equal force to these applications under section 114.
2008
Act, Mr Langdon is in effect asking us to devise analogous special measures dealing with anonymous hearsay, for which there is no statutory authority.
2008
Act by extending anonymous witness orders to permit anonymous hearsay evidence to be read to the jury. We cannot do so. Neither the common law, nor the 2003 Act, nor the
2008
Act, permits it. The 2003 Act contains its own express limits on the circumstances in which a witness statement may be read. No surviving common law power to allow for witness anonymity survives the
2008
Act. The
2008 Act addresses and allows for the anonymity of witnesses who testify in court. This jurisdiction is governed by statute, and any steps to extend it must be taken by Parliament. Accordingly, the prosecution's appeal will be dismissed. We agree with Royce J's reasoning and his ruling.