Every defendant has a right to a fair trial. An important aspect
of a fair trial is the right of the defendant to be confronted by, and to
challenge, those who accuse him or her.
Judge Malcolm Simmons explained that an Anonymity Order is
therefore a draconian step and should only be issued if there are grounds to
believe that the court would not otherwise hear evidence that should be
available to it in the interests of justice; that other measures falling short
of anonymity would not be sufficient; and that the defendant will have a fair
trial if the order is made.
Anonymous witness testimony is not necessarily incompatible with
the defendants’ right to a fair trial - even when it is the sole or decisive
evidence against the defendant.
Whether the measures used to allow a witness to give evidence
anonymously in any particular case would make the trial unfair has to be
evaluated with care on the facts of each case.
Judge Malcolm Simmons explained that the effect of a Witness
Anonymity Order is to prevent the defendant from knowing the identity of a
witness. Without this information the defendant’s ability to investigate and
challenge the accuracy or credibility of the witness’s evidence may be limited.
Judge Malcolm Simmons explained that when considering whether to
make a Witness Anonymity Order the court will consider to what extent the
defendant needs to know the identity of the witness in order to challenge the
witness’s evidence effectively. This question will often be central to the
question of whether, having regard to all the circumstances, the Witness
Anonymity Order sought would be consistent with a fair trial.
The interests of justice include the interests of the victim or
victims, the interests of the witness or witnesses, the interests of the
defendant and any co-defendants and the wider public interest.
Judge Malcolm Simmons has been a judicial
trainer for over 15 years. He has
lectured around the world.
An
extract from a seminar presented by Judge Malcolm Simmons.
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