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Thursday, July 03, 2008 

Anonymity or bust.

Somewhat related to the previous post, as Unity notes on Lib Con the government has published its "solution" to the law lords' ruling on anonymity. His conclusion could have been predicted:

In short, its just what we’ve come to expect from emergency legislation - a badly conceived and prejudicial mess in which political expediency takes precedence over civil liberties.

You can understand why the government has rushed to legislate - the prospect of various unsavoury individuals, to put it lightly, being freed, including potentially the gang "killers" of Charlene and Letisha Shakespeare on what will be described as a "technicality" is enough to get a party of government scared at the potential consequences. Some of the blame has to be however levelled at the police, who unlike the government greatly encouraged the expansion of anonymous witnesses while knowing full well that it had not been properly defined in the legislation which introduced it in the first place. Rather than making clear that it could only be considered as a last resort in cases where otherwise the guilty would go free, it was instead starting to be offered as a first resort, as evidenced by them making clear that the law lords ruling would not affect anyone who was frightened of giving evidence in the Ben Kinsella case, where three individuals have now been charged with his murder anyway.

It isn't just the police though - Louise Casey proposed it for the disabled and elderly who had been victims of anti-social behaviour in her criminal justice system review. The bill does at least contain the clause that a judge will have to consider the possibility of a witnesses' potential to be dishonest before granting an anonymity order, but it still can't be challenged by the defence. While, as with almost everything else at the moment, there isn't a simple solution, witness protection programmes, while expensive, could potentially stop this problem in its tracks. Failing that, as Michael Clarke suggests in the comments, a potential compromise could be allowing the defence to know who the witness is - but restricting them on pain of being expelled from the Bar Council and also being held in contempt of court of revealing the identity to the defendant themselves. The right to a fair trial needs to be paramount - and bad legislation brought in to fix a a temporary problem threatens that.

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