Like other national and international criminal justice systems, English criminal law has incorporated measures to protect witnesses in adversarial criminal proceedings. While these measures are necessary to keep witness safety/privacy and avoid revictimization, they have impacted the accused’s right to a fair trial, concerning aspects such as public oral hearings and the accused’s knowledge of the witness’s identity. This post focuses on some of these measures, examining their compatibility with this right.        

Special measures

The Youth Justice and Criminal Evidence Act 1999 (YJCEA) measures (‘special measures’) which facilitate vulnerable and intimidated witnesses’ testimonies are considered ‘the most radical rewriting of the orthodox rules for treatment of witnesses in the adversarial system in the common law world’. YJCEA measures (Sections 23-29) include: witness screening vis-à-vis the accused, live link evidence, evidence in private, wig/gown removal, evidence-in-chief video-recording, cross-examination/re-examination video-recording, witness examination through an intermediary, and aid provision for communication. While this Act concerns juvenile offenders, these special measures protect witnesses regardless of their age. Moreover, under international human rights law and international & comparative criminal law standards, the YJCEA special measures are, mutatis mutandis, similar to those measures granted to protect vulnerable witnesses, especially when they have suffered violent crimes or sexual and gender violence.

Concerning the accused’s fair trial right, first, under common law (see, e.g., here, and here): the right to examine witnesses is not free-standing, but only a fair trial element; generally, there is no common law right to confrontation; and the right to witness examination does not involve physical confrontation. Second, while the European Convention on Human Rights (ECHR) (Article 6(3)) and European Court of Human Rights (ECtHR)-jurisprudence (e.g., Van Mechelen v. Netherlands) recognizes the right to witness examination, confrontation is not part of a fair trial: special measures to shield vulnerable witnesses from the accused do not contravene the ECHR if they are strictly necessary. Third, while common law requires evidence given in public, with press access, exceptions are allowed if strictly necessary. Special measures arguably fall into such exceptions. Additionally, ECHR (Article 6 (1)) and related jurisprudence are more permissive and broader. The House of Lords recognized common law exceptions to the orality principle and that special measures respect the ECHR. Fourth, in cases against the United Kingdom, the ECtHR found that witness safety/privacy may limit open and public criminal proceedings when this is strictly necessary and permissible under the ECHR. E.g., it determined that this concerns limitations to public proceedings to protect minors.

Sexual crimes

Regarding sexual crimes, under the YJCEA (Section 41), no evidence may be adduced, and questions cannot be asked by/on behalf of the accused about the complainant’s previous sexual behaviour with a third party/the accused, without judicial permission.

In R v. A, the House of Lords (majority) considered that although the YJCEA pursued desirable goals, it made an ‘excessive inroad’ into the fair trial right: according to Lord Steyn, ‘a prior relationship between a complainant and an accused may sometimes be relevant to what decision was made’. Scholars found YJCEA compatible with the ECHR by invoking the Human Rights Act, as the YJCEA should be read subject to an implicit provision: evidence or questioning needed for a fair trial should be admissible. Occasionally, complainant-accused relevant sexual experiences would be admissible; however, judges could exclude evidence of an isolated incident distant in time and circumstances.

Witness anonymity

An exceptional measure is witness anonymity vis-à-vis the accused and criminal procedure participants. Under the Coroners and Justice Act 2009 (CJA), Section 88(3), witness anonymity orders require: the need for protecting witness’s/another person’s safety or for avoiding serious property damage; consistency with the accused’s fair trial right; and that the witness’s testimony is so important for justice interests that their testimony is needed and the witness would not testify non-anonymously or that public interest would be harmed without anonymity.

Overall, the CJA arguably dilutes the accused’s fair trial right under the ECHR: grounds for allowing anonymity are expanded beyond threats to the safety of the witness or of another person. Moreover, it does not require that convictions cannot be based on anonymous testimony only/decisively. This is inconsistent with ECtHR-jurisprudence. E.g., under Kostovski v. The Netherlands, anonymous testimony should not be the sole/decisive basis for conviction. Al-Khawaja and Tahery v. United Kingdom concluded that ‘Even when “counterbalancing” procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements’. The above-mentioned CJA anonymity conditions seemingly introduce a lower threshold than the ECtHR’s ‘strictly necessary’ standard for measures restricting the accused’s fair trial right. By allowing serious property damage or real harm to the public interest as grounds for anonymity, the CJA diverges from ECtHR-jurisprudence: the latter requires life/integrity threats. Nevertheless, the other above-mentioned CJA-provisions on anonymous witnesses arguably meet ECtHR-jurisprudence, particularly those provisions concerning protections for the defendants, including that, when deciding on witness anonymity, the judge should consider: i) consistency ‘with the defendant receiving a fair trial’ (CJA-Section 88(4)); and ii) the defendant’s general right ‘to know the identity of a witness in the proceedings’ (CJA-Section 89(2)(a)).

The England/Wales Court of Appeals (Lord Chief Justice) in R. v. Mayers and Others soundly emphasized that the judge’s role involves a ‘delicate balance’ between the accused’s fair trial right (ECHR-Article 6) and witnesses’ rights (ECHR-Articles 2 (life), 3 (physical security) and 8 (private life)).

Conclusion

Witness safety/privacy protection drives the above-examined measures, adding a needed dimension that enforces human rights of witnesses, usually victims too, in English criminal law. Nevertheless, balancing this protection against the accused’s fair trial right is expected. Thus, the ECHR/ECtHR-jurisprudence are standards to follow.