Friday, June 27, 2008

Anonymous witnesses

The House of Lords, Britain's Supreme Court, has ruled that prosecution witnesses cannot remain anonymous. The defence has the right under Common Law to know their identity and to cross-examine them. If their identities are not known then there cannot be a fair trial. These seems to be fundamentally correct. I have an absolute right to know who my accuser is and to show that he is lying. If he is anonymous my ability to do that is impaired.

Anonymous witnesses have been allowed in certain murder trials because witnesses were so intimidated that they did not give evidence for fear of their lives. The Law Lords decision means that several murder trials cannot proceed and that 40-50 convicted murderers may be let out on appeal.

Of course, this is not a new problem. In order to fight the Mafia's witness intimidation in America, witnesses were taken into protective custody and then given new identities and relocated. Relocation is much more possible in America where the vast distances and huge population allows it. It is believed that some British witnesses have been relocated to Australia and New Zealand. But even relocation is a cruel punishment on the innocent. How would you like to me permanently separated from your friends and family because you happened to witness a gangland killing?

The Justice Secretary is planning to bring in a law allowing anonymous witnesses but labor does not have a majority in the Lords and might find it difficult to get their Bill through that Chamber. Also the European Convention on Human Rights has now been incorporated into British law, and that Convention might well decree that anonymous witnesses are invalid.

Although civil liberty is in retreat in the UK, with concerns about the DNA database, identity cards and 42 days detention without charge being overridden by the government, and many people confused about how much weight to throw behind the protection against terrorism and how much to throw behind protection of civil liberties, this particular question is a longstanding one concerning the rule of law.

Evil men will seek to subvert the whole of a community to their will. The law is there to prevent it happening. But the law must be fair; it must not bring about a good end by illegal means. We can't have a regiment of 'Dirty Harrys' enforcing the will of the law in the way that evil men enforce their will with hit men, because what is to stop the law becoming corrupt? We know from past experience that it happens.

Consider this scenario. A local gang boss is responsible for a number of murders. A witness offers to testify against him on condition that he remains anonymous. He is given that assurance and so testifies. The gang boss is convicted, but the following year there is a new gang boss causing havoc. He is the witness who had testified anonymously the previous year and whose lying testimony the previous gang boss was unable to challenge.

It may be that the investigating magistrate of the Napoleonic system would be better adapted to prevent this sort of abuse.

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