Witness intimidation is an offence by virtue of S.51 of the Criminal Justice and Public Order Act 1994 (in relation to criminal proceedings) and S.39 of the Criminal Justice and Police Act 2001 (in relation to civil proceedings). The provisions cover intimidation of anyone who
“is assisting in the investigation of an offence or is a witness or potential witness or juror or potential juror in proceedings for an offence”.
The police and courts clearly take this issue seriously and we have seen convictions for witness intimidation increase by over 30 per cent. between 2000 and 2005.
The Youth Justice and Criminal Evidence Act 1999 provides a range of special measures for witnesses whose evidence is likely to be affected by fear or distress in connection with testifying in criminal proceedings. These measures include the use of screens and live links, and a greater degree of “privacy” in what remains a public hearing, to be applied in sexual cases, or where there is a fear that the witness may be intimidated. Intimidated witnesses may also be permitted to give their evidence in private.
The Serious Organised Crime and Police Act 2005 introduced similar measures for witnesses in proceedings for antisocial behaviour orders. The use of hearsay evidence in civil proceedings involving antisocial behaviour allows witnesses to remain anonymous. In exceptional cases, in criminal proceedings, at the discretion of the court, witnesses in criminal cases, who are unwilling to give evidence through fear for their safety, may also be permitted anonymity.
The Court must consider the potential disadvantages to the defendant and ensure that it is necessary and that the witness is in genuine and justified fear of serious consequences if his true identity became known. It must also ensure that necessary and appropriate precautions are taken to ensure that the trial itself will be fair. When exercising this discretion the court should be mindful of four factors; there must be real grounds for being fearful of the consequences of revealing the identity of the witness, the evidence must be sufficiently important to make it unfair to the prosecution to compel them to proceed without it, the prosecution must satisfy the court as to the creditworthiness of the witness and finally the court must be satisfied that no undue prejudice is caused to the defendant. Provided that appropriate safeguards are applied, and the judge is satisfied that a fair trial can take place, it may permit anonymity. In criminal cases, law enforcement agencies are responsible for providing support for intimidated witnesses and we are doing everything we can to ensure that they are assisted in doing so. We are working with them and other criminal justice agencies to ensure that intimidated witnesses are identified at an early stage and properly supported throughout the criminal justice process.
We fund the National Witness Mobility Service which gives police forces access to support from housing experts to assist in the relocation of intimidated witnesses. The Service has assisted in some serious antisocial behaviour cases. We are planning to extend this support by facilitating access to a wider range of services through the establishment of a central services unit. We have also introduced new legislation which helps forces to secure the assistance they need from others to set up protection arrangements and provides additional safeguards for witnesses. In antisocial behaviour cases, agencies are also encouraged to give witnesses support after the court hearing—for example by keeping them informed about the outcome.
A range of detailed guidance is set out on the TOGETHER website at http://www.together.gov.uk/category.asp?c=339.