A case for anonymity

Simon McKay, solicitor advocate, of McKay Law Solicitors & Advocates of Leeds, argues that any application for witness ‘screens’ or anonymity should be granted only after the most exhaustive consideration of the competing factors.

There is something instinctively troubling about witnesses giving evidence behind a screen or otherwise anonymously. As a boy I recall watching Witness for the Prosecution, an old black and white movie in which the lawyer protagonist tested the honesty of his witnesses in a murder trial by getting the light to reflect off his monocle and shine in their eyes.

There was also the great courtroom moment in To Kill a Mockingbird, when Atticus Finch throws an object at the accused to demonstrate that he was left-handed. None of these histrionics are possible if the witness is shielded from view. But courtroom theatre aside, there are fundamental issues at stake in criminal justice terms if, to use the eloquent phrase adopted by one senior judge recently, there is an “efflorescence of anonymity orders”.

In the space of a week recently, one lawyer had to consider two different legal challenges following the refusal by a court to grant anonymity to a surveillance officer in a terrorist case and against a ruling that a complainant who alleged her partner had “pulled her hair” should benefit from giving evidence behind a screen.

In respect of the former the court weighed carefully the competing interests of fair trial and protection of life. In the latter case, the court seemed persuaded that the complainant needed the “comfort” of a screen as “she didn’t want to look at the defendant when she gave her evidence” (although after she did so, she happily sat in court for the remainder of the proceedings in full view of the accused). In both cases the outcome was very unsatisfactory and the law is crying out for a clear statement of the principles that apply in this difficult area. Last week the Supreme Court took the first steps to do so.  

The starting point should be very clear and compelling reasons why witnesses should give evidence without screens or anonymity. There are legitimate grounds that exist in legislation and the common law to regulate this to some extent (none of which include the “comfort” of the witness).

Classic examples include the protection of national security, the identity of informers or covert human intelligence sources, cases where there is evidence of intimidation or threat to life. These are all sensible and proper grounds upon which the otherwise transparent process of giving evidence can be, providing certain circumstances exist, be curtailed.

In Re Guardian and Media News Limited and others, one of the first decisions of the new Supreme Court, the issue was whether an individual should have been granted an anonymity order in proceedings challenging a freezing order made under anti-terrorism legislation. This fell outside the statutory law and needed to be resolved by reference to the competing interests engaged under the European Convention on Human Rights. These on the facts were rights under Article 8 (the right to respect for family and private life) and Article 10 (freedom of expression). Both rights had equal status in legal terms following an earlier decision in Re S (a child) in 2005. In resolving the issue, the court had to have regard to the individual facts of the case and weigh the importance of the rival interests to see which should in the final analysis prevail asking itself the question, whether the public interest in publishing information that could identify an individual could be curtailed having regard to the impact disclosure could have on the individual’s right to a private life (including damage to reputation) if no order was made.

The argument for anonymity in the case was that without it, the individual felt unable to bring the challenge against the allegations made that he had involvement in terrorism. The counter-arguments included the possibilit