R v Mayers, Glasgow & Ors

The 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.

These four otherwise unconnected cases require discussion and analysis of a number of different features of the legislation, a process more usefully addressed in a variety of different factual circumstances than in a single case. The first three cases will be treated as appeals. Two, Mayers and Glasgow, followed convictions after witness anonymity orders were made in July 2007 and May 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.

As this narrative shows, the first three appeals involve convictions returned before the Act came into force. Nevertheless they are to be examined as if it was already in force when the trials took place. Express provision is made for appeals against conviction returned before the Act came into force to be examined on the basis of the Act rather than the common law as declared by the House of Lords in R v Davis. Section 11 provides:

“(1)

This section applies where

(a)

an appeal court is considering an appeal against a conviction in criminal 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 Act must be construed and considered as a whole. However for present purposes it is convenient to begin by considering some of its specific provisions in the light of the various submissions addressed to us in one or other of the four individual cases.

Section 1 creates the new rules which apply to witness anonymity in 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 in criminal 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.

The Act simultaneously seeks to address the provisions of the European Convention of Human Rights and the relevant jurisprudence of the European Court, by seeking to preserve the delicate balance between the rights of the defendant, including his entitlement to a fair trial and public hearing, and to examine or have the witnesses who inculpate him properly examined, (Article 6) and the witness’s right to life (Article 2) and physical security (Article 3) and indeed the right to respect for his or her private life (Article 8). The need for this balance has been addressed in a number of decisions of the European Court, including Kostovski v Netherlands 12 EHRR 434, Doerson v Netherlands 22 EHRR 330 and Van Mechelen v Netherlands 25 EHRR 647.

In his commentary on R v Davis in the House of Lords at [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.

The Act creates what may fairly be regarded as a new statutory special measure. None of the existing provisions, such as, for example, special measures under the Youth Justice and 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.

There was a degree of unreality about the submission that witness relocation should normally provide a practicable alternative to an anonymity order. We shall assume for present purposes that all the necessary funding would be available to relocate every anonymous witness, and provide the witnesses and their families with a new identity and employment. By definition, however, the witnesses would be cut off from all their roots, and have to start completely new lives: so would their spouses or partners and their children. The interference with the life of any such witness would be tumultuous, and would effectively penalise him for doing his duty as a citizen. Witness relocation can only be a practicable alternative in the rarest of circumstances, and certainly if in effect forced on the witness, would itself engage his or her right to a private life.

For the avoidance of doubt, common law principles relating to public interest immunity when such issues arise in the context of witness anonymity are expressly preserved. The authority and guidance of R v H and C [2004] 2AC 124 in relation to public interest immunity are undiminished. The principles which govern the use of special counsel to protect the overall fairness of the trial when the question whether information should be withheld from the defence is being addressed should be adapted when its possible use arises in the context of witness anonymity. Nothing in the legislation suggests, and we can see no justification for any blanket rules, one way or the other. Sometimes special counsel may contribute significantly to the fairness of the process, sometimes not. There is however one significant difference between the use of special counsel for public interest immunity purposes, and such use for the purposes of witness anonymity. The former is concerned with the circumstances in which non-disclosure to the defence may be appropriate, the latter with whether sufficient and complete investigation and consequent disclosure have taken place. If the judge entertains reservations about the good faith of the efforts made by the prosecution investigation into any relevant consideration bearing on the question of witness anonymity, an application for witness anonymity will be met with a point blank refusal. The services of special counsel may however enable the judge to ensure that any investigative steps specific to the case, and not perhaps otherwise apparent, have been taken. Our approach to this issue enables us to highlight that the obligations of the prosecution in the context of a witness anonymity application go much further than the ordinary duties of disclosure. As we shall see when we examine the statutory considerations a detailed investigation into the background of each potential anonymous witness will almost inevitably be required.

The procedural provisions contained in sections 2 and 3 of the Act are self-explanatory, and nothing which follows is intended to impose a gloss on them. Section 2 defines a “witness anonymity order” as an order “that requires such specified measures to be taken in relation to a witness in 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.

As we have explained all the processes are subject to existing principles, not least, that the Crown must comply with its existing duties in relation to full and frank disclosure (save as expressly permitted by the Act in relation to withholding of information on the basis of public interest immunity). The process as a whole must be fair. Disclosure must be complete, in accordance with principles laid down in this court, and the structured pro-active approach indicated by the guidance of the Director of Public Prosecution and the guidelines provided by the Attorney General. At the same time the defence statement provided after 3 November 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.

Nothing in the Act diminishes the overriding responsibility of the trial judge to ensure that the proceedings are conducted fairly. Well understood principles relating not only to the admission of evidence (including the powers of the court under section 78 of the Police and 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.

Section 7 deals expressly with a judicial warning to the jury, “appropriate” to ensure that the defendant is not prejudiced by the “fact” of the order. In general terms, the warning must be sufficient to ensure that the jury does not make any assumptions adverse to the defendant, or favourable to the witness, from the fact that an anonymity order has been made, and in particular must not draw an implication or inference of guilt against the defendant. Section 7 is sufficient, and if it were not, we should in any event expect judges addressing the problem, further to direct the jury about the obvious difficulties facing a defendant who is challenging either the credibility or the accuracy of an anonymous witness. We should add that when considering an appeal against conviction on the broad ground that witnesses anonymity orders should not have been made, and that the subsequent conviction is unsafe, this court should stand back and make its own objective assessment whether the trial was fair, even if, at the time when the judge made the order, it was reasonable and appropriate. On this point the approach suggested by this court in R v Davis was not reversed or criticised in the House of Lords.

These procedural safeguards provide the context in which we can now conveniently examine the pre-conditions to an anonymity order, and the statutory conditions which bear on the question whether they are met.

Section 4 identifies the express pre-conditions which must be established before a witness anonymity order may be made. It provides:

“(1)

This section applies where an application is made for a witness anonymity order to be made in relation to a witness in criminal 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.”

We immediately emphasise that all three conditions, A, B and C, must be met before the jurisdiction to make a witness anonymity order arises. Each is mandatory. Each is distinct. However clearly two of the three conditions are met, the jurisdiction to make an order does not arise unless the third condition is also satisfied. When all three conditions are met, but not until they are met, the jurisdiction to make a witness anonymity order arises. We shall defer attention to these conditions until we have addressed the statutory considerations which bear on the decision.

When the court is considering whether conditions A-C are met, a number of relevant and specific matters are identified for its consideration in section 5. This provides:

“(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 in criminal 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.”

None of these considerations outweighs any of the others, and the order in which they appear does not represent an order of priority or importance. They are not exhaustive nor restricted to those expressly mentioned, and they leave open the possibility that in an individual case some further point may properly arise for consideration Equally, none is conclusive on the question whether the individual defendant will receive a fair trial. Moreover, none precludes the possibility of an anonymity order, but these considerations do not diminish or minimise the crucial requirement that before an order may be made conditions A-C in section 4 must be met. It is nevertheless clear from even a cursory glance that the focus of the considerations in section 5 is the protection of the interests of the defendant.

The first consideration in effect restates the common law principle that the defendant is normally entitled to know the identity of any witness who gives incriminating evidence against him, and incorporates it within the statutory framework. That is his “general right”, and its promulgation also acknowledges the potential disadvantage to the defendant if he is ignorant of the witness’s identity, and reinforces the principle of open justice. This first consideration is linked with the last. Subs (2)(f) reinforces the view we have already expressed that a witness anonymity order does indeed represent the last practical resort.

The considerations in subs (2) (b) (d) and (e) are linked in the broad sense that they relate to the weight to be attached to the evidence of the anonymous witness and the safeguarding of the process by which his credibility may, so far as practicable, be objectively verified, and then tested in cross-examination. They can and indeed should apply to every witness in respect of whom an anonymity order is sought. In this context the process of investigation and disclosure is crucial, not simply in relation to previous occasions when the witness may have been dishonest in general, but also whether there may be any reason to question his honesty or motivation in the particular case. The defence statement provides the benchmark against which the disclosure process must be examined. So, for example, a defendant who believes that he may be the victim of a malevolent plot to incriminate him when he is innocent should normally be able to give some indication of his concerns in his defence statement, and to indicate the identity of anyone who he believes may have a malign motive to incriminate him. It can then, if raised by him, be the subject of further inquiries, perhaps indeed with the use of special counsel.

These three considerations are distinct, but linked, and are likely to require an overall view of the potential impact of the proposed anonymous witness on the trial. Thus, for example, the credibility of the witness may not be in doubt. A perfectly respectable member of the public witnessing the departure of the man running away from the scene of a shooting (which he has not witnessed personally) may see the man jump into a car and drive away. His note of the registration number may provide crucial evidence against the defendant. There is no reason to doubt his integrity, or motive, or his credibility. The issue may be his accuracy, which may be fully tested without his identity being disclosed. In short, the responsibilities of the prosecution to ensure a fair trial, and to reveal any material which may undermine the case for the prosecution or advance the defendant’s own case, and the disclosure process in particular, will all be crucially engaged in addressing this group of considerations. None of these processes is necessarily conclusive, and to the extent that the judge deciding whether to make an order believes that the process has not been fair, full and comprehensive, so he would be less likely to be satisfied that a fair trial can take place.

Subs (2)(c) directly addresses the jurisprudence of the European Court, highlighted by the observations of Lord Mance on this topic in Davis. Taken on its own, the fact that a witness provides the sole or decisive evidence against the defendant is not, of itself, conclusive whether conditions A-C are met: if it were otherwise, it would have been included, not as a consideration under section 5, but within section 4, as a pre-condition against the making of an order. Nevertheless it directly impinges on the question whether condition B may be met. The court is required to consider two distinct questions, whether the evidence of the anonymous witness is the sole evidence, and whether it is the decisive evidence. It may of course be both, in which case although an anonymity order is not precluded, condition B may be harder of fulfilment. As with the word “necessary”, which will arise for consideration when we address the conditions in section 4, it is possible to think of a number of synonyms for “sole” and “decisive”, but, as with “necessary”, they mean what they say. If the evidence of the anonymous witness may be either the sole or the decisive evidence incriminating the defendant, that consideration must be addressed and taken into account when the court is deciding whether condition B has been satisfied.

It follows that the court should also examine whether the anonymous evidence is supported extraneously, or whether there are a number of anonymous witnesses who incriminate the defendant. We do not for one moment suggest that the now antiquated and artificial principles relating to corroboration should or may be revived. However, facts which are independent of the anonymous witness may offer support for the incriminating evidence which he gives, or indeed support his creditworthiness generally, and again as a matter of common sense, the more facts independent of the witness, which tend to support him, the safer it would be to admit anonymous evidence. In many cases, the supporting facts may very well derive from the conduct of the defendant himself.

A different problem may arise where there are a number of incriminating witnesses whose evidence is to be given anonymously. By definition where two or more anonymous witnesses give important incriminating evidence against the defendant, the evidence of one would not provide either the sole evidence or indeed the decisive evidence against him. When this situation arises, it would be as well to investigate whether there is any, and if so the nature of the link, between the witnesses. Again, the ordinary process of the courts is well familiar with the issue. Questions of possible improper collusion between them, or cross-contamination of one another, should be addressed. A number of anonymous witnesses who incriminate the defendant, and who know each other may sometimes provide the only or the crucial evidence against the defendant, and they may, even if unsupported by evidence extraneous from themselves, and provided the statutory conditions are met in respect of each of them, provide sufficient evidence to sustain a proper conviction after a fair trial. Suspicion is less likely to be engendered about the integrity of witnesses who immediately, or virtually immediately, are identified or identify themselves, before there would be a sufficient opportunity to engineer a sophisticated conspiracy grossly to pervert the course of justice involved in blaming an innocent man for murder, than it would be for witnesses who turn up late, and effectively out of the blue. Mayers and Glasgow provide the contrasting positions in relation to civilian witnesses. None of these observations is intended to put any gloss on the statute. They merely reflect the ordinary, indeed the day to day experience, of criminal courts up and down the land as seen through the statutory prism.

In most cases, the most helpful approach would probably be to address condition C first. The interests of justice are undefined. The conviction of the guilty after a fair trial and the acquittal of the innocent are plainly engaged. The order should not be made where the oral testimony of the witness, realistically analysed, is not potentially important or where the proposed anonymous evidence could be addressed by admissions or agreed facts or, subject to proper editing, capable of being read. It must in any event also be clear that notwithstanding, for example, the powers vested in the court in relation to contempt in an appropriate case, the witness will not testify. The test is stark. That the witness might prefer not to testify, or would be reluctant or unhappy at the prospect, is not enough. Condition C is expressly directed to oral testimony, and the evidence envisaged in its provisions is the evidence to be given by a witness who will be called – or at the stage when the application is made – is intended to give oral testimony. Section 12 of the Act identifies those to whom its arrangements may extend. A witness is defined as “any person called, or proposed to be called, to give evidence at the trial…” This consideration has particular relevance to the appeal of V, P and R.

We should perhaps add that it is open to the court to reach the conclusion that the witness would not testify if the circumstances of the offence itself justified the inference, for example, where it is apparent that the witness was present when a gun was fired, or the circumstances of the killing show the kind of outrageous arrogance displayed by the killer (whoever he was) in R v Davis. Unhappily the challenge to the rule of law itself posed by gun and weapon carrying individuals or members of gangs of criminals and the legitimate fears which this engenders in the public, particularly where an attack is carried out in public, is undiminished.

It was suggested in argument that unless the risk to the safety of the witness was attributable to the actions of the defendant personally, condition A could not be established. We disagree. The problem arises if and when the safety of the witness is under threat: the threat may come from any source. Moreover an investigation into the question whether the defendant is personally responsible for the threat would often involve circular, satellite litigation. If it had to be established that the defendant was responsible for the threat to witness safety, it might be necessary to establish that he was guilty of the offence. The argument is circular.

Condition A is linked to sub-section 6. The order must be necessary. Some time was spent at the hearing considering synonyms for “necessary”. None is needed, although we agree that this is a requirement which goes well beyond what may be described as “desirable” or “convenient”. Condition A is not fulfilled unless the order is necessary for the protection of the safety of the witness or any other person, or to prevent serious damage to property or, alternatively, to prevent real harm to the public interest. In relation to human beings, the issue is unembellished by adjectives. The question is safety, and this may encompass the risk of personal injury or death, or a reasonable fear of either. In relation to property however the risk must be serious, and any harm to the public interest must be real. In this context, different consideration may inform the decision of the court when deciding between different civilian witnesses, for example, children and adults, vulnerable and troubled witnesses, and police officers. It is of course possible to envisage situations which may simultaneously cause real or create the potential for real harm to the public interest, as required by condition A and serious danger to the interests of justice as reflected in condition C.

A specific problem arises in relation to police witnesses, particularly those working undercover. They are usually specially trained officers, whose usefulness would dissipate and whose safety would be in danger if the truth about their activities became known. We understand and recognise that senior police officers would be likely to order them not to give evidence if their true identities were disclosed. In reality, we suspect that if the court ordered a senior officer to countermand the prohibition, he would think long and hard before maintaining it. The reality, however, is that there are often sound operational reasons for maintaining the anonymity of undercover police officers, and the court would normally be entitled to follow the unequivocal assertion by an undercover police officer that without an anonymity order he would not be prepared testify. This issue arises in Bahmanzadeh and Costelloe.

In relation to police officers the normal problem is not quite the same as that envisaged by orders for witness anonymity which were considered at the trial of Davis. These witnesses may well be known to the defendant by a false identity, or are using a false identity. Knowledge of their true identities can rarely be of any importance to the defendant, who can advance whatever criticisms of the evidence, or indeed the conduct of the officers, while they continue to be known by their false identities. Condition A covers a potentially very wide group, ranging from undercover officers working in areas of terrorism or counter-terrorism, through undercover police and other officers up to and including test purchase officers employed by local authorities. It goes without saying that the considerations affecting each of these groups are not necessary identical. In the context of condition A it is perhaps worth identifying the public interest which is involved in the deployment of these witnesses. At the most extreme end, modern policing and investigation, on occasion, requires officers to penetrate 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.

The need to protect many of these individuals against the exposure of their personal identities is obvious. At the most dangerous level, undercover officers who have penetrated 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.

Covert operations of this type are likely to be undertaken only as a last resort against those suspected of organised and prolific serious 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.

Naturally, not every case would generate the kind of concern or the need for precautions at this level. To take our second example, the identification of police officers working to identify drug dealing carries significant but less stark risks. The defendant will have seen them, but he may not know which of them is in fact a police officer. The passing encounters in the darkness of a club many months earlier would be unlikely to lead to any true identification of the individual officers working under assumed names, and certainly the chances would be far lower than they would be if the defendant, and his colleagues and associates, were able to spend time looking at the witness as he or she gave evidence. In such a case, the defendant and his associates, would then have valuable information to impart to criminals more highly established on the professional criminal ladder.

For these reasons there has been a regular practice for security, undercover and test purchase officers to give evidence using a pseudonym, with the benefit of a screen, and sometimes with modulation of their voices, but with the jury and defendant fully aware that these witnesses are police officers who are acting in the course of their duties and that they are using a pseudonym. If an order is refused, the Crown will often stay the prosecution rather than expose the witnesses to the risk of identification. None of these considerations needs specific evidence. The difficulties are well within the knowledge and experience of trial judges. Sometimes, of course, specific evidence may be required by the judge so that he can probe it, and indeed if necessary, he can seek the assistance of special counsel. When analysing the statutory conditions, in the context of this type of case, although the credibility of a police or security operation may be challenged, it will be unusual for the defendant to be disadvantaged by ignorance of the true identity of the officer. Whether the integrity of the officers or as is more usual, their accuracy is an issue, full cross examination can proceed on the basis that any matter of criticism can be directed to the witnesses using the name or names by which the defendant, if he knew their names at all, knew them, or the name or names which they assumed for the purposes of the operation. As always, the question whether the statutory conditions have been met involves a fact specific decision.

Condition B is fact specific. The fairness of the trial process as a whole must be preserved, and it is a deeply entrenched principle of our 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.

The court must be satisfied that the conditions are met. There was some discussion about the burden and standard of proof, but in the context of the witness anonymity process as established by the Act, the topic proved arid. The short answer is found in the language of the conditions A-C itself. The use of the word “necessary” requires that the court must be satisfied to the highest standard. “Probably” necessary will not do. Even if the “necessity” foundations for conditions A and C are established, the order cannot be made unless the court is also satisfied that the forthcoming trial, or the current trial, would be, or continues to be fair.

With those general considerations in mind, we shall now address the four individual cases. In doing so the judgment will illustrate the practical impact of the new legislation on the trial process.

On 31 July 2007 in the Crown Court at Kingston upon Thames, before Gross J and jury, Mayers was convicted of murder. On 13 September he was sentenced to custody for life, with a specified minimum term of 16 years.

At about 4.30pm on 28 November 2006, a 19 year old boy, Emmanual Odunew, was stabbed in the course of an incident at a bus stop in Lewisham. He died 2 days later. The bus stop was located in a busy shopping area, directly outside Lewisham Police Station. As many as 30 people were around the bus stop at the time and a large number of them must have witnessed the incident, or something of it.

The prosecution case, as presented at the time when the judge made the anonymity order, was that the deceased had been murdered by the appellant. Three witnesses purported to identify him as the assailant. They were Michael Chambers and Rowan Taylor, two of the victim’s friends, and an anonymous witness, known throughout the trial as “Jeanette Evans”.

The trial was due to start on 9 July. It was not until 28 June that, for the first time, the prosecution notified the defence about the witness, Jeanette Evans, and indicated that an application would be made for her anonymity, screening and voice modulation. Investigations by the prosecution revealed important information about Jeanette Evans which was gathered together and disclosed to the defence in seven short notes. The first note revealed that the witness had a number of previous convictions, and that in June 2006 she had been seen in the company of a man called Marlon Campbell who had been a suspect for the murder, and then in the company of Michael Chambers in March 2007. A further, long note suggested that no one had previously suggested that Jeanette Evans had been a witness to the attack, but also maintained that there was no evidence that she had been offered any inducement to give evidence. This note also answered a number of questions about her contact with the family of the deceased. Before she came forward as a witness there was no known connection between the witness and the deceased, or between her family and his family.

Miss Kim Hollis QC on behalf of the appellant opposed the application. She objected in principle on the basis that to admit such important identification under the cloak of anonymity would deny the appellant a fair trial. Moreover, she relied heavily on the very late entry of this witness into the trial process. This had denied the prosecution the opportunity to make proper inquiries to discover information which might, on disclosure principles, then make good some of the disadvantage which the appellant would face at trial, not least because it would enable a proper challenge to be made to the witness’s credibility.

On 10 July Gross J, considering the application in the context of the decision of the Court of Appeal in R v Davis, and on the basis that identifying evidence would be given against the appellant by Chambers and Taylor, decided that, in the absence of a request for a general adjournment of the trial, the Crown could adduce the evidence of Jeanette Evans as an anonymous witness. He directed that a statement be taken from one of those with whom Jeanette Evans was said to be connected, the witness Chambers, disclosing her real identity to him, so as to enable the prosecution to explore any further connection between them. The ancillary orders supporting the anonymity order need not be recited.

On 12 July a further disclosure note was provided by the prosecution. This recorded:

“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.”

At trial Chambers gave evidence before Jeanette Evans, and Taylor afterwards. Both Chambers and Taylor retracted their identifications. In essence, Chambers suggested that the statement in which he identified the appellant contained rumour and suspicion picked up about the incident rather than any direct evidence of his own, and Taylor, that he had been put under pressure and was emotionally confused when he made his statement. Both were treated as hostile witnesses, and their contradictory accounts were before the jury. Jeanette Evans gave evidence anonymously, and identified the appellant as the assailant.

Supporting evidence was provided by the link between the appellant, his telephone, and the deceased, through a telephone call made a few days before the incident, with further evidence from the appellant’s mobile telephone which showed that he was indeed in the close vicinity of the attack at the time when it occurred. In the days following the stabbing, the appellant stayed away from home. When he was eventually arrested on 2 December he had a number of injuries consistent with having been involved in the incident which culminated in the death of the deceased. They included a cut finger and a swollen right eye. In interview, the appellant elected not to answer any questions.

The appellant gave evidence at trial. He denied any involvement in the incident which culminated in the stabbing of the deceased. He said, and called supporting evidence, that he had cut his finger while cutting some fish on 25 November, and that his injuries had been sustained in an argument with his brother on 27 November which culminated in his brother striking him and causing an injury to his eye.

When the judge summed up, in relation to the evidence of Chambers, he pointed out that, as the prosecution accepted, Chambers “was not a witness the prosecution can rely on to any great extent”, and while reminding the jury that it was for them to make their own assessment, he added that they would be “entitled to say that you could not rely on his evidence at all”. As to the contradictions in Taylor’s evidence, the prosecution had suggested that the jury could rely on what he had said in his initial statement, incriminating the appellant. The judge reminded the jury that they might consider Taylor’s evidence “so unreliable that they would not act on anything he said”. In essence, while leaving the matter to the jury, he left them in no doubt that in reality Jeanette Evans was the only identifying witness upon whom the prosecution could rely.

The issue in this appeal is the anonymity order in respect of Jeanette Evans. We agree with Miss Hollis that an unusual combination of factors attached to her evidence. She came to the attention of the prosecution very close to the trial, at a time when investigations necessary to enable all the relevant information about her to be obtained and then provided to the defence, so as to enable a proper challenge to her credibility (which was very much an issue) could not adequately be undertaken. In the short time available to investigate her evidence, a number of disturbing facts had already emerged. She was a witness with multiple convictions of her own. She was known to one of the other witnesses, and to another man who had been suspected of the 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.

Miss Hollis also reminded us that there were aspects of Jeanette Evans’ evidence which contradicted that of independent eye witnesses who, although they were unable to identify the perpetrator of the stabbing, described the scene. It was therefore put squarely to her that she had not been present at the scene and was lying when she purported to identify the appellant.

Our decision must be based on the terms of the Act, and can be expressed very briefly, but unequivocally. This conviction is unsafe. Notwithstanding the absence of full and comprehensive inquiries needed to set against the disadvantages created for the appellant by the anonymity order, her evidence assumed decisive importance in the case against the appellant. Without it a conviction would have been highly improbable. We do not have sufficient confidence that everything relating to her credibility, motivation and integrity was revealed. In the result, in our judgment, the trial process was unfair.

The appeal will be allowed. The conviction will be quashed. We shall hear further submissions whether a new trial should be ordered.

On 9 May 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.

The victim was a young man called Nathan Foster. In the evening of 3 August 2007 he was shot dead in Marcus Garvey Way, a cul-de-sac in Brixton.

Glasgow was aged just 17 at the time. He owned a valuable gold chain which he wore round his neck. During the evening of 3 August 2007, while he was in Marcus Garvey Way, the gold chain was stolen by another youth, one of a group. Foster was a member of the group. He may have witnessed the theft, but he was not responsible for it.

Later that evening, a group of young men congregated in Marcus Garvey Way, Foster among them. He was sitting on a wall when, at about 9.45pm, a moped/scooter similar to one used by the appellant, drove past the youths to the end of the cul-de-sac. There it turned, and then came back towards them. The driver was wearing a crash helmet. A short distance away from the group of young men the moped/scooter stopped. The rider revealed his face, different witnesses describing that he took off his crash helmet altogether, or raised its visor. He removed a gun from the pocket of his sweat shirt. The group scattered.

Several shots were fired at Nathan Foster. The rider then rode quickly away. Foster was hit in the left shoulder, left hand, chest and buttocks. The fatal injury was a wound to the chest. A bullet had passed through his heart. A number of the group remained at the scene, pending the arrival of the emergency services. Nathan was later pronounced dead at King’s College Hospital at 10.57.

On the day after the shooting, police officers, who had already been given positive identifications of the appellant as the individual responsible, went to his address. Underneath a set of bunk beds, shared by the appellant and his brother, a suit of body armour was found. In the living room the police found a round of blank firing ammunition and, in a cupboard in the hallway, there was an empty firearm magazine. However it was common ground at trial that this magazine was not suitable for use in the gun that was used to shoot the deceased. A ground of appeal relating to the admission of this evidence was not pursued.

At a properly conducted identification parade, four of five eye witnesses to the murder identified the appellant as the man with the gun. One eye witness did not. Three of the four identifying witnesses had been in the same group of youths as the deceased when the shooting took place. The other was not a member of the group.

We shall briefly summarise the evidence of these eye witnesses later in the judgment, but the remainder of the evidence needs no recital.

The appellant was arrested on 8 August in Cambridge. He was travelling in a taxi. On arrest he made no reply. He was in possession of a silver mobile telephone which had a new SIM card, with a new number, purchased on 4 August. The appellant was interviewed. He made no comment. He did not make a defence case statement. That, the judge was told, was a deliberate and conscious decision. At trial he elected not to give evidence.

For the purpose of making his decision on the witness anonymity application the judge was provided with full unredacted copies of the relevant statements and transcripts of all the significant witness interviews; material relating to the character of each witness drawn from the police intelligence database and 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.

The applications were resisted. In essence it was suggested that such applications should only be granted in exceptional circumstances, and if granted in the present case, the defendant would be placed at a significant disadvantage to examine whether the proposed anonymous witnesses had any “gang motive” to provide a false story; whether there was or had been any collusion between them; and whether the identifications on the identity parades may have been tainted by rumours relating to the circumstances of the earlier incident involving the theft of the appellant’s gold chain.

The judge granted the applications for witness anonymity orders in respect of the five eye witnesses, providing a carefully expressed and detailed written ruling. He approached the decision by reference to each individual witness, in effect reflecting the considerations which have now been given statutory force in conditions A-C. He addressed the specific concerns raised with him on behalf of the defence. He concluded that the measures were necessary to protect the safety of the witnesses, that the witnesses would not testify without an anonymity order, that their evidence was important, but that the measures were, in the circumstances, consistent with a fair trial for the defendant.

In the case of the four men who identified the applicant as the gun man, the judge approved the use of pseudonyms for each witness, his screening from the dock and public gallery, mechanical modulation of his voice, and the withholding of his true identity from the defence. In relation to the fifth eye witness, who did not identify the appellant, the judge approved his anonymity and the use of a pseudonym, and his screening from the dock and public gallery.

Accordingly, three of the witnesses, known as Swainby, Alloway and Caldecott gave evidence at trial that they were present with the deceased in a group of youths congregating in Marcus Garvey Way on the evening of the killing. Each described the arrival of the moped/scooter, and the route it took, driving past them to the top of the cul-de-sac, before it turned and came back towards them. Each described how the moped/scooter stopped near them, and how one or two of the group went to speak to the rider. Each witness said that he recognised the appellant as the rider. Each described how close (estimated at between a couple of metres and 10-12 feet) he was to the appellant when the moped/scooter stopped. Each said how the appellant produced a gun and shot the deceased several times before making off on the moped/motorcycle. Each explained the extent of his previous knowledge of the appellant, and the basis on which he was able to recognise him.

Alan Kennett witnessed the theft of the appellant’s gold chain earlier that afternoon. He said that a group of 5-7 youths, which included the deceased, were present in the vicinity when it happened. The appellant was on his moped/scooter at the time, and the chain had been grabbed from his neck by a young man called Kori Bell. The witness said that he had been present in a nearby building at about 10pm when he saw the appellant shoot the deceased. He said that he had seen what happened through a closed window in a darkened room. His precise position and his vantage point over the scene were not known, a feature drawn to the jury’s attention by the judge, but the description he gave of his position was checked by the police and the evidence showed that he would have been able to see what he claimed to have seen. Kennett described the arrival of the appellant on his scooter. He recognised both the appellant and his scooter. He said that the appellant parked briefly and then appeared to be driving back out of the cul-de-sac before he stopped next to a group of youths which included the deceased. They were sitting on the wall at the time. He described the appellant raising the visor of his helmet, taking out a gun, and firing six or seven shots in the direction of the group. He then saw the deceased on the ground. He said that the deceased was the only member of the group that evening who had been present at the earlier incident when the appellant’s gold chain had been stolen.

Gary Martin-Beeston was a local taxi driver who witnessed the shooting. However he did not attend the identification parades because he had not seen the face of the gun man. He said that he had parked in a taxi rank that evening. This gave him a view up the cul-de-sac. He could see about 10 or 11 people in the street in front of him. Someone on a scooter passed by and went to the end of the cul-de-sac. He said that he did not really see the driver who had a light black skin and whose sleeves were rolled up. He was wearing a helmet and a jacket with a hood which was not being worn. He described how one of the group went and spoke to the man on the scooter, and how it moved towards the group and then stopped. The rider took out a gun, and fired two shots and then rode rapidly away.

Mr David Howker QC on behalf of the appellant submitted that the orders made by the judge would not have been made if the 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.

There is no substance in this submission. The judge did address the possibility of relocation, which he rejected as ineffective, and in the case of Martin-Beeston, disproportionate. He was plainly right to do so. Relocation would have been highly disruptive to the witnesses, and, given the evidence of the close knit nature of the community, it would only have served to highlight and identify them, as witnesses. In our judgment there was ample evidence from which the judge could properly conclude that the measures were necessary to protect the safety of the witnesses, and given that this murder took place in public, before a large number of witnesses, and that the murderer (whoever he was) appeared determined to ensure that his identity was known to those who were about at the time. The judge was fully justified in regarding the fear expressed by each witness as entirely reasonable.

It was also submitted by Mr Howker that the measures imposed by the judge were inconsistent with a fair trial. He emphasised that the identifications made by the witnesses were essentially based not on fleeting identification but recognition. These identifying witnesses provided the decisive evidence against the appellant, but could not be properly tested without knowing such matters as their names and addresses, which would then have enabled inquiries to be made about how they knew the appellant, and how well, and how often they had met or seen each other, and in what circumstances, and indeed all matters pertinent to their claimed ability to recognise him. Without such material the appellant would be unable to give instructions whether the witness was someone he had met before, or whether there was any reason for him to lie, or properly explore or challenge the evidence. So far as Kennett was concerned, unless the building in which he was situated when he saw the incident was examined by the defence, it was impossible to cross-examine him properly. In general, Mr Howker suggested that the judge had placed undue reliance on the effectiveness of the background checks carried out by the police into the character and credibility of the eye witnesses, and the disclosure process was simply inadequate to cover the ground which the appellant himself might have been able to provide if the true identity of each witness was revealed.

With the assistance of Mr Edward Brown QC for the Crown we identify a number of additional features of this trial. Notwithstanding the absence of a defence statement, and indeed any evidence from the defendant, the defence submission to the jury was that the witnesses were mistaken about their identification or recognition of the appellant. They could all be cross-examined on matters relevant to the accuracy of their identification, and although this process was slightly more limited in relation to Kennett than it was in relation to the other identifying witnesses, he was one of four identifying witnesses and the other three were very close to the fatal shooting. At the same time there was no evidence to show any possible connection between the three identifying witnesses and Kennett himself. Various discrepancies between the different eye witness accounts could be and were fully explored at trial, and this was done fully, without their true identities being revealed. Full disclosure to the defence had revealed the antecedents of the relevant witnesses and associations between them which, if necessary, the defence was in a position to deploy.

Mr Brown drew attention to a further safeguard. A list of the true names and pseudonyms was provided in the witness box, so that each witness could comment on whether the other witnesses were present and, if so, where they were located. In other words each eye witness could be cross examined about the other witnesses whose true identity was disclosed to each of them.

It is clear that the witnesses who identified the appellant at trial had independently of the other witnesses picked the appellant out at a properly conducted identification parade, having come forward at an early stage in the police investigation. None of the eye witnesses provided either the sole or the decisive evidence against the appellant. There were four such witnesses, three of whom were in very close physical proximity to the man who was carrying the gun when the deceased was shot, and it was a significant supporting feature of their evidence that the victim chosen by the murderer for this public killing was a young man who had been present at and witnessed the theft of the precious gold necklace from the appellant’s neck earlier that day.

In our judgment the judge anticipated and addressed the pre-conditions to the making of a witness anonymity order which are now incorporated within the statutory framework. He reminded himself of his duty to keep the issue under review as the evidence was given, and he continued throughout the trial to evaluate the evidence of each anonymous witness which was capable of being tested fairly while the anonymity was maintained. We have stood back and examined whether, in the result, the appellant was convicted after a fair trial. In our judgment he was. The appeal will be dismissed.

On 2 July 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.

In December 2005 the appellants were made aware of police concerns about the high levels of drug usage at the club. During meetings with the licensing officer during that month, and then later in February and March 2006, both offered assurances that they took the problem very seriously and would introduce a “zero tolerance” approach. To test their commitment, between 28 January and 22 April 2006, 24 undercover police officers attended the club and acted as test purchasers. They were able openly to make numerous purchases of ecstasy. Their evidence added to a strong body of evidence from which the Crown invited the jury to infer that both appellants must have been aware that drugs were being supplied in the club and that they permitted it to take place. The defence contended that the appellants had done everything they reasonably could have done to prevent the supply of drugs and that in support of the “zero tolerance” policy they had neither permitted drugs to be supplied at the premises, nor turned a blind eye to it. Costelloe also argued that in early 2006, his duties at the club had been reduced and he was not engaged in the management of its security.

Throughout the prosecution case, although visible to the judge, the jury and to counsel, the police officers gave evidence from behind screens. Pseudonyms were used. Their true identities were not revealed. No objection was taken to the use of screens, and it was never suggested that their identities should be revealed. In reality their identities were irrelevant to the issues before the jury. Immediately after the decision of the House of Lords in Davis, Mr Alan Newman QC on behalf of Costelloe applied for all the undercover police officers to be recalled to give evidence again, without the benefit of a screen, but of less importance in the context of this case and in the end not pressed, that their true names should be revealed. If they refused, the prosecution should be stayed as an abuse of process. Furthermore, Mr Newman submitted to Judge Gilbert that the evidence of the police officers was the sole or decisive evidence against the appellants. That lent support to his contention that he should be enabled to cross-examine them further without screens. These submissions were supported by Mr Anthony Donne QC, not because he wished further cross examination of the witnesses, but rather because the two defence cases were closely connected, and if the judge concluded that the process thus far had produced unfairness to Costelloe, the same unfairness would apply to Bahmanzadeh.

The purpose of this application, as we understood it, was that the appellants and the other defendants could then see precisely who the witnesses were and they would then perhaps, be able, as Mr Newman put it, to give him further instructions with a view to further cross examination. Mr Newman explained that there were two possible further lines of cross-examination, which he had been unable to deploy. The first was to ask the officers to look at Costelloe and confirm that none of the dealing had taken place in his presence. In fact none of the witnesses had asserted that it had. The second was to pursue Costelloe’s contention that on two occasions he had rejected requests for drugs, in one case made by a man, and in another by a woman, both of whom were acting with what Mr Newman described as a suspicious insistence. They may have been police officers, and if they were, Mr Newman suggested that this might give rise to an argument that they had acted as agent provocateurs and would also serve to undermine the suggestion that Costelloe had encouraged or permitted drug dealing at the club.

Judge Gilbert rejected the application. He closely examined the decision in Davis and noted that the jurisprudence of the European Court left a margin of discretion to permit anonymity to be ordered in appropriate cases. He concluded that the present case was far removed from the facts of Davis because, without the anonymous witnesses, there would have been no case against Davis at all. There was ample evidence from witnesses other than the undercover officers from which the jury could infer that the offence was proved against these appellants. The fairness of the trial did not require the recall of these witnesses, and accordingly the application was rejected. Having examined the evidence, in the light of a detailed analysis by Mr Newman the evidence of ten witnesses whose identity was known to both the Crown and the defence, we have no doubt that when the judge was asked to reconsider his decision, there was ample evidence, outside the evidence emanating from the undercover police officers, from which it would have been open to the jury to conclude that there was substantial dealing in drugs at the club and that no real or alternatively, no adequate steps had been taken by the management to prevent or discourage the sale of drugs. At best occasional token efforts were made, but in essence a blind eye was turned towards the problem.

Mr Newman argued before us that we should look at the overall effect of the evidence of all the undercover officers. Their cumulative impact could be decisive in a way in which the evidence of a single officer would not have been. He did not challenge Judge Gilbert’s original decision in relation to anonymity. He focussed on the fact that the anonymous officers were not visible to the defendants. He pointed out that his client, and Bahmanzadeh were “ordinary individuals”, and that it was never suggested that either had links with major 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.

In relation to specific prejudice, Mr Newman returned to his wish to cross-examine each undercover police officer to confirm that Costelloe was not present at the time of any individual transactions. He did however accept that any such cross-examination of a witness who had not given evidence that he had been present would have been extremely risky and would have demanded considerable forensic courage. In our view that course would have amounted to foolhardiness which, in reality, an experienced advocate like Mr Newman would not have risked. In any event, however, such a line could still have been pursued in this case. The problem was not with the officers seeing Costelloe, but Costelloe seeing the officers. Mr Newman could simply have asked the direct question of the witnesses: “was my client, Mr Costelloe, present when any of these transactions took place?” Equally there was nothing to prevent Mr Newman from showing any individual officer a photograph of his client and suggesting that the witness had not seen the individual depicted in the photograph present at the time of any specific transactions.

As to the suggestion that two individuals who may have been police officers might have pressed their attempts to acquire drugs from Costelloe, and acted as agent provocateurs, and been rebuffed by him, Mr Newman doubtless had instructions, and certainly could have obtained them, with descriptions of the two individuals who had behaved in this way. Nothing prevented him from deploying his instructions to all or any of the witnesses who fitted their descriptions. Alternatively, the point could have been made that the jury should make appropriate allowance for his inability effectively to cross-examine on the point. Indeed both courses would have been open to him.

In his submissions, Mr Donne accepted that even without the evidence of the undercover officers, there was evidence to sustain the Crown’s case, and that even if the undercover officers had not been called, a submission of no case to answer would not have been realistic. In a subsequent written argument he modified this concession and suggested that he would have been able to make a submission that although there was never any issue that drugs were supplied at the club, it was the extent of that supply, as evidenced by, among others, the undercover officers, that gave rise to the inference that the supply of drugs was permitted. Throughout his submission, however, he focussed on the question whether the undercover police evidence was decisive in the sense that it was compelling and of overwhelming influence in the case. It undoubtedly was lengthy, detailed, and incident specific, and included legitimate opinion evidence about the ease with which drugs were supplied in the club. The other evidence was of a different character, effectively non-specific and not distinguishing closely between the use of drugs and their supply. Whether there was a case to answer without the undercover police evidence, or not, he suggested that without it, there would never have been a prosecution.

In our judgment, in relation to each of the anonymous undercover police officers, anonymity, including the shielding of their physical appearance from the defendants, for the reasons examined in paragraphs 30-35 above, was necessary to prevent real harm to the public interest. Assuming that the appellants were “ordinary individuals” with no connections with the 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.

The evidence of the anonymous witnesses was extensively tested, but their individual credibility was not challenged in cross-examination. In essence it was accepted that they were undercover officers, performing a professional duty, who were entirely unconnected with the appellants, the club or, indeed, Plymouth. The accuracy of their evidence could be tested. There was no reason to believe that any of them had a tendency or motive to be dishonest. Although taken cumulatively, these witnesses provided the jury with a graphic illustration of what was happening at the club, once the jury had decided that both appellants were involved in the management or control of the club (which did not depend in the slightest on the anonymous witnesses) the issue was the extent to which each of them knew of drug supplying and what, if anything, each did or did not do, about it. This evidence may well have enabled the jury more easily to infer that the appellants were more involved in what was happening than they were prepared to admit. In reality neither appellant, nor for that matter the defendants who were acquitted by the jury, were prejudiced by the fact that a number of these witnesses gave evidence anonymously, and behind screens, shielded from the sight of the appellants. They were enabled properly and fully to test the evidence of the anonymous witnesses to strengthen their own cases or to undermine the case for the prosecution.

The order made by Judge Gilbert was sound and realistic. These convictions are safe. The appeals are dismissed.

This case, illustrative of the climate of terror created among ordinary members of the public who are witnesses to serious crime, has a complex history.

On 16 September 2006 Dean Myles was shot dead in the Club UK Stoke Croft in Bristol. These defendants were members of a 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.

For present purposes it is sufficient to report that there was ample evidence to suggest that those responsible for the shot fired at P’s house were Dean Myles and his friend, Aaron Flash. This evidence enabled the prosecution to suggest that the motive for what followed, and the murderous attack on Dean Myles, stemmed from the suspicions of the High Street Gang that Myles and Flash were indeed responsible for the shooting and resolved that they should be punished. So it was that a few hours later Myles and Flash were present at Club UK. While they were there they met and chatted up three girls known as Green, Grey and Scarlet. Among others present at the club, four girls made statements using pseudonyms, Blue, Black, James and Brown. A little while after Myles and Flash had come into the club, another group of young men entered it, among them, V, P and R. There was some confusion about what then happened, but CCTV evidence showed that this group of young men approached Myles. As they accept, V and P can be identified in the CCTV pictures. The prosecution suggest, but R disputes, that he too is recognisable. In any event his presence at the club is not in dispute. Flash may have himself tried to pull a gun, but before he could do so a shot was fired at and killed Dean Myles. Immediately after the shooting the second group of young men, who had entered the club together, then departed, V, P and R leaving as members of this group.

Evidence from anonymous witnesses tends to establish that these three defendants were members of the group from which the fatal shot was fired, but their evidence did not establish which of them actually fired the shot. The prosecution case is that the cumulative effect of all the evidence should lead the jury to infer that the group, including V, P and R, were always together, and that whoever actually fired the shot was a member of the same group, and that all the members of the group, including the three defendants, were engaged in a joint enterprise, the object of which was, as each knew and intended, to punish Myles and/or Flash for what had happened earlier. On this basis each could properly be found guilty of murder.

In October 2007 these three defendants, together with Rico Walker, stood trial for the murder of Dean Myles. In due course Walker was acquitted, but the jury were unable to reach verdicts on the remaining defendants. The Crown proposed a re-trial. The trial judge, Royce J, ordered a preparatory hearing before the re-trial to consider various applications by the prosecution for evidence to be given anonymously and for statements of some other anonymous witnesses to be read as hearsay evidence.

Taking it as briefly as we can, there was evidence from anonymous witnesses known as W, X, Y and Z, who are obviously neighbours, which served to establish that a shot was fired at P’s house at about midnight on 15th September 2006. Each of these witnesses knew the High Street Gang by reputation, and each was, as the judge found, in real and justifiable fear that, if it was known that they had provided witness statements to the police, they and their families would be at risk of serious reprisals. Some of them refused even to make a witness statement, and those who did, refused to sign it in their own names. Each refused to give evidence in person at the trial. There was no reason, as the judge had found at an earlier hearing, to believe that any of these witnesses bore any malice against any of the defendants, and the judge concluded that there would have been no unfairness to the defendants or the trial process if their evidence was admitted.

Of the women who were present in the club at the time when Myles was murdered, only Green, Grey and Scarlet were prepared to give evidence at all, and then only on the basis that their identity would be protected both by anonymity and by screens. Blue, Black, James and Brown were not prepared to provide even a statement of evidence if their identity was revealed. All these witnesses provided the same compelling reasons as W, X, Y and Z. The judge accepted that each was terrified of the violence which would result to them and to their families if they were known to have given evidence against members of the gang. The judge found their fears to be genuine and reasonable, and his conclusions on that issue were not and have not been challenged.

Accordingly, at the preparatory hearing on 8 February 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.

The judge was satisfied for the purposes of section 116 (e) of the 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.

Finally he went on to consider the further application that the anonymous evidence of Blue, Black, Brown and James could be given as hearsay evidence, by way of reading their statements, because each refused to give evidence in person. Again after carefully analysing the evidence of each, and its potential for adverse impact on each of the defendants, he considered that although the defendants did not know the identities of the witnesses and could not cross-examine them, a fair trial would nonetheless be possible.

This series of rulings gave rise to applications for leave to appeal by V and P pursuant to section 35(1) of the 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.

On 19 September 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.

The prosecution also made applications in relation to W, X, Y, Z, James, Black, Brown and Blue. Each was too fearful to testify and the prosecution did not propose that any of them should be called to give oral testimony. The prosecution accepted that none of them could be described as a “witness”, as defined by section 12(1) of the 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”.

In short, Royce J concluded “with some reluctance” that he had no power to admit the hearsay statements of anonymous witnesses, and he declined to make the order sought by the prosecution.

The prosecution challenged this decision by way of an application for leave to appeal under section 35 (1) of the 1996 Act. This particular challenge is made against a ruling in which the judge directly addressed the provisions of the 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.

The stark reality is that the 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.

Mr Langdon QC on behalf of the prosecution boldly submits that this problem was simply overlooked. Undaunted, he argues that, notwithstanding the observations in Davis, anonymous hearsay evidence is admissible under the provisions of the 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.

Section 116, which is headed ‘Cases where a witness is unavailable’ provides:

“(1)

In criminal 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) …”

The particular problem presented to Mr Langdon’s argument is found in subsection (1)(b)’s express provision the ‘the person who made the statement … is identified to the court's satisfaction’. Mr Fitton QC helpfully pointed out that this sub-section was not present in the earlier version of this provision in section 23 of the 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’.

The answer to the suggestion that Williams provides an authority for his proposition that anonymous hearsay has always been admissible under the 1988 Act and therefore is admissible under the 2003 Act is that it was decided before the enactment of section 116(1)(b).

Mr Langdon however argued that sub-section (1)(b) does not require the name of the witness to be known; it would suffice if there was an assiduous disclosure by the prosecution of all the relevant information bearing on credibility. In our judgment, the language of the Act is quite clear and it requires disclosure of the witness’s name, not just confidentially or secretly to the judge, but to the defence. In our judgment, therefore, section 116 of the Criminal Justice Act 2003 cannot be applied to anonymous statements.

Mr Landon is therefore forced back onto section 114 of the Criminal Justice Act 2003, which reads:

“(1)

In criminal 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.”

Aware that ‘the interests of justice’ test provides rather unspecific protection for the particular double dangers presented by anonymous hearsay, even as supplemented by the factors to be considered in sub-section (2), Mr Langdon seeks to graft the safeguards of the 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.

Mr Langdon foresees the risk that defence cross-examination of other witnesses might be used not only to undermine the anonymous hearsay but also to identify the maker of the statement. He therefore suggests that further directions – a species of ‘special measures’ - would have to be given to prevent such questions being asked. As special measures, consequent upon the making of a witness anonymity order are separately provided for in section 2 (2) of the 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.

In our judgment, notwithstanding the ingenuity of Mr Langdon’s argument, taken to its logical conclusion, we are being invited to re-write the 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.