"Anonymising" witness identity and the right of fair trial

Anonymity refers to the keeping of some or all of the witness’s identity detail hidden from the defence and the public.

Anonymity is a complex aspect of witness protection. It is different from confidentiality, in that, confidentiality is an undertaking by parties to ensure that certain information about a person or case is not communicated to the public and media. The defence will still know who is testifying against him and the contents of that testimony.

Anonymity, on the other hand, is different. If anonymity is granted, the offender will not know who the witness is. It is a complex aspect of witness protection as it bears on the right of the defence to know and cross-examine witnesses who have testified against him and challenge the genuineness, accuracy and sincerity of their testimony. For example, in such cases, defence will not be able to verify:

(1) Whether there is cause for prejudiced attitude by that witness against the defendant;

(2) The source of the witness’s knowledge;

(3) Personal history or condition that may affect the witness’s credibility such as a mental condition, criminal record, or a pattern of false accusations.

There is balance to be struck between protecting a witness and protecting the right of defence, both of which are cornerstone to the justice system. For this reason, anonymity is usually granted to witnesses:

(1) Whose identity is not already known to the defence but who would likely be in danger if their true identity became known to the defence;

(2) If the testimony itself will not lead to the identification of the witness; and

(3) Where the testimony can be corroborated by other evidence.

The witness may still be examined in court by the defence but he/she is not obliged to state his or her true name or provide other personal details. A law enforcement officer may even sit in place of the witness and relay the witness’s statement in court, stating what the witness saw. The defence is then allowed to challenge the testimony as relayed. Additionally, the defence has the right to submit in writing questions to be put to the anonymous witness, who will subsequently report the answers back to the court.

Usually, a conviction will need to be corroborated by other material evidence and cannot be solely based on an anonymous testimony. The grounds for anonymity are also periodically reviewed at different stages of the criminal proceedings to check if the grounds for a continuing grant of anonymity are still present.

Depending on the nature of the risk, different combination of measures should be used to ensure that at-risk persons are protected as far as is possible. For lawyers requesting protection measures, it is also important to prepare to answer questions in relation to the reasonability or necessity of those measures in view of defendant’s right to a fair trial. This balancing exercise determines if the witness’ need for anonymity outweighs the defendant’s right to a fair trial.

Having said that, safety is a legitimate expectation of a witness who cooperates with the justice system and which in turn, gives credence to public confidence and use of the justice system. In that regard, one cannot uphold the rule of law without first ensuring that witnesses are adequately protected.

We are working to improve witness protection in Afghanistan and India. If you are a lawyer or an expert on this matter, do connect with us as we are keen on learning from you.