Anonymous testimony: “a perjurer’s charter”

Geoffrey Robertson: There can be no fair trials with this perjurer’s charter (from the Guardian today)

Geoffrey Robertson QC (a senior British lawyer, with an interest in human rights and anti-censorship issues) on the bill going through Parliament right now, which allows people to give evidence anonymously and with digitally distorted voices. The bill is opposed to article 6 of the European Convention on Human Rights, which provides for the accused to “examine or have examined witnesses against him”, and to time-honoured English legal provisions going back to 1641, and which inspired the Sixth Amendment to the US Constitution; and without such anonymity, British law dealt with the Kray twins and terrorism in Northern Ireland:

The bill is being rushed through before the summer recess to empower all criminal courts and courts martial to receive voice-distorted evidence from witnesses whose identity defendants and their lawyers will never be allowed to know and whose faces they will never see. Defendants could be imprisoned for life solely on secret evidence they can never test by cross-examination so as to reveal, for example, a witness’s malice or personal animosity; spiteful or score-settling motives; a reputation for telling lies or devious relationships with the police. Such witnesses will now be handed a perjurer’s charter, by way of a statutory “anonymity order” that will keep their identity for ever hidden.

The bill will in effect place the trial process in the hands of the police, who will offer anonymity in most investigations into violent crime; the prosecution will be permitted to make an application in secret to the trial judge to claim that witnesses will not testify unless an anonymity order is made. The judge will have no way of weighing this claim, because the defence will not be present to challenge it. On many occasions at these one-sided hearings, judges will give in to the untestable claim (a form of forensic blackmail) that without these orders trials cannot proceed.

There are no safeguards for the citizen. The prosecution does not even have to prove that a witness has been intimidated or fears any kind of mental or physical threat: any “harm to the public interest” is sufficient - a formula that might cover up questionable police operations. There is no safeguard against a conviction relying entirely on the evidence of an anonymous witness; incredibly, this bill does not require judges to ensure corroboration (independent evidence pointing to guilt), or even to warn juries about the dangers of convicting on the word of witnesses who can’t be effectively cross-examined. There is no right of appeal against the granting of anonymity orders.

The law, Robertson concludes, will inspire tyrants in other countries with a Common Law heritage, including Zimbabwe, and is not necessary given that other countries successfully use witness protection schemes to defend people against revenge from the Mafia. It seems like yet another ancient right will be torn away to appease the anti-civil-libertarian press and its “do something” culture.

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