The Anonymity Crisis

LAW IN ACTION BBC Radio 4's Law In Action Tuesday 24 June 1600 BST On Radio 4 and online Latest programme

A House of Lords judgement on witness anonymity has created huge headaches for courts and lawmakers - but is there a way forward?

Two weeks ago Law In Action reported on the increasing use of anonymous witnesses in criminal trials, especially in the most serious cases of violence and murder.

Without the protection of anonymity, we were told, witnesses would be simply too frightened to come forward.

We anticipated a groundbreaking House of Lords judgement on the issue, in the case of R vs Davis.

The ruling, which applies to England and Wales, states that it is unsafe to achieve a conviction solely or decisively on the basis of anonymous witnesses. The ancient right to see and confront an accuser was ruled essential to a fair trial.

Royal Assent

The Lords strongly hinted that it was up to Parliament to legislate if it wanted to continue the use of anonymous witnesses.

Law In Action has learned that the government intends to bring forward a bill within days and to have it receive Royal Assent before the end of the current term.

That means rushing the bill through all its stages within just a few weeks.

Edward Garnier QC, the shadow Justice Secretary, warns that there are considerable risks if Parliament gets it wrong.

Any legislation will still have to be compatible with the European Convention on Human Rights and the Human Rights Act.

Contributors on Witness Anonymity Philip Katz QC Anita Hudson, mother of murder victim Chief Superintendent Helen Ball, head Operation Trident Errol Robinson, defence solicitor Sandra Shakespeare, aunt of murder victim Letitia Shakespeare

If the bill fails to include sufficient safeguards, it could simply lead to successful appeals a few years into the future.

Philip Katz QC suggests one solution: increasing the prosecution's duty of disclosure when it puts forward anonymous witnesses, so they actively search for anything that might affect the witness's credibility.

Another possible solution would be moving towards the Scottish model of compelling unwilling witnesses to appear.

Zimbabwe

Zimbabwe's flag

Could the future of Zimbabwe be decided - at least partly - in the courts? That's one hope of the opposition Movement for Democratic Change, led by Morgan Tsvangirai.

He beat Robert Mugabe in the first round of the presidential election, but after a long delay, the official results gave Mr. Tsvangirai less than a majority

Now two legal opinions say that the second round election on Friday is illegal. Andrew Makoni, a Zimbabwean human rights lawyer who fled the country for South Africa a couple of weeks ago, tells the programme about the grounds for a challenge.

One revolves around the delay in holding the run-off election. The other is that if the run-off election is not properly conducted, then results of the first round should be judged the final result.

However, Justice Minister Patrick Chinamasa dismisses the arguments. He tells the programme that the Electoral Commission had the right to delay the second round.

He adds that Zimbabwe is the "most stable country in the world" and that people are safer in Zimbabwe than in London.

Coming Up

In next week's Law In Action we'll be looking at the defence of insanity.

If you have thoughts on any of the topics we've covered, or any other legal issues, Law In Action would like to hear from you.

You can contact us by email at [e-mail] or by post at Law In Action, BBC White City, Wood Lane, London W12 7TS or you can call us on 020 8752 5646.

Memory - Your Thoughts

We had a strong response from listeners to last week's report on memory and the law. Here are some of your comments:

Several times the mantra was repeated that things had been working reasonably OK for several hundred years, that juries were perfectly capable, when expertly guided by advocates and judges, to establish the reliability of memory. This completely missed the point about the fundamental nature of human memory – that if it is not supported by objective evidence it is highly fallible, whatever jurors, the judge, or the witness themselves think. It has been amply demonstrated that it is possible for false memories to be created, whether deliberately or otherwise, which are as reliable as any “true” memory. The witnesses involved can be as convinced of a “false” memory as any other. None of this is to argue that lawyers should be blindly led by scientists; quite the reverse. It’s the very lack of understanding of scientific method and evidence among much of the legal profession that is a problem here, and the evidence of this programme is that this could be pervasive.

Steve Jones

I am not an expert, but I respect new findings that challenge our assumptions when they are backed by solid research. I have been fascinated more than once by the changes in our understanding on memory as something fixed and constant which have been covered by other Radio 4 programmes, such as the book discussed on Start the Week some months ago, "Memory" by Harriet Harvey Wood. I suppose the big giveaway here is that I am not a lawyer. Perhaps that dismisses my opinion. Perhaps a qualification one needs in order to be a lawyer is a determination not to accept the possibility there may be something new to learn from science that could help our work? I prefer to hope that there is a range of opinion among lawyers and that as the report suggests, jurors could also be helped by having a clearer understanding of memory.

Joelle Marlow

To lose your right to freedom and face years of incarceration for something of which you are innocent because the courts have chosen to exclude sound expert evidence on memory is a travesty of British justice. As Professor Martin Conway stated, "Most researchers today would not accept an account of memory without additional evidence". Neither should the courts.

Madeline Greenhalgh, Director, The British False Memory Society

Law In Action was broadcast on Tuesday 24 June 2008 at 1600 BST on BBC Radio 4.