the new ruling

iamivy · 21st June 2008, 03:43 PM

http://business.timesonline.co.uk/to...cle4185742.ece

Quote:

The government is examining ways to allow anonymous evidence in court cases, in the wake of this week's Law Lords ruling that defendants have a right to know who is in the witness box.

Wouldn't witnesses hesitate to come forward with this new ruling?

Darat · 21st June 2008, 03:50 PM

It's a very interesting issue. From my understanding the reason for the ruling in this case was not as broad as the article makes out. What it boils down to is - if the prosecution is relying on the evidence of an anonymous (to the defendant) witness to such an extent that the conviction hinged on such evidence and the anonymity meant that the defence counsel could not adequately cross-examine or bring to the court's attention relevant information (for instance that the witness may have some connection with the defendant) then and only then is it a problem.

iamivy · 21st June 2008, 07:09 PM

Thankyou Darat, your understanding must be right. I just found this

Quote:

In the instant case, the trial was not fair since the ability of counsel for the defendant to cross-examine the decisive witnesses against him was gravely compromised. Similarly, the trial did not meet the standard required by art 6 of the European Convention on Human Rights. Not only was the evidence on any view the sole or decisive basis on which alone the defendant could have been convicted, but effective cross-examination depended upon investigating the potential motives for the three witnesses giving what the defence maintained was a lying and presumably conspiratorial account. Cross-examination was also hampered by the witnesses’ anonymity, by the mechanical distortion of their voices and by their giving evidence from behind screens, so that the defendant could not see them. Assuming that the sole or decisive nature of the evidence was not itself fatal, it was on any view an important factor which would require to be very clearly counter-balanced by other factors. In the instant case there were none. Moreover, the other factors were very prejudicial in their impact on effective cross-examination.

gdnp · 21st June 2008, 07:28 PM

Interesting. I have heard of no case in the US where similar tactics have been used. The sixth amendment to the constitution states:

Quote:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The "confronted with the witnesses against him" is generally interpreted as the right to cross-examine witnesses. This has become problematic in cases of child molestation, where many cases are not prosecuted because the trauma of having the child testify and be cross-examined was felt to be too great. I don't think testimony and cross-examination of an anonymous witness, where the jury cannot even evaluate the body language and voice of the person testifying, and the defense cannot challenge the person's credibility, would pass constitutional muster*

*Unless the person were testifying against accused terrorists, in which the Bush administration wishes to be able to do whatever they damn well please.

Beerina · 24th June 2008, 07:27 AM

Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you?

That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse.

Jaggy Bunnet · 24th June 2008, 08:21 AM

Originally Posted by Beerina

Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you?

That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse.

Sort of.

The right to silence generally remains but from 1988 (Thatcher) in Northern Ireland and from 1994 (Major) in England & Wales it has been possible for "adverse inferences" to be drawn from the fact that an accused person has exercised that right.

I don't think there are similar provisions in Scotland but IANAL.

fuelair · 24th June 2008, 08:52 AM

Originally Posted by Beerina

Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you?

That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse.

Just checking, and can't specify for England/UK, but we have had cases where people who testified were found murdered later. I would think with certain known, if not indictable, slime that would create a very good reason for anononymity for witnesses.

Darat · 24th June 2008, 09:23 AM

Originally Posted by Beerina

Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you?

That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse.

Not so much used as evidence against you can now be mentioned in court. Which I have to say I don't disagree with - after all a barrister can say "And if you remember Darat said X and from that isn't it likely he is ..." so I can't see being allowed to say "And if you remember Darat was silent on X and from that isn't it likely he is...." is any different or any fundamental right being breached.

iamivy · 24th June 2008, 10:37 AM

Murder trial hit by anonymous witnesses ruling

Quote:

A £6 million murder trial was halted at the Old Bailey today following a Law Lords ruling on witnesses giving evidence anonymously.

The murder trial of two men accused of shooting east London businessman Charles Butler was stopped after lawyers considered last week's ruling.

The Law Lords, in allowing an appeal in another murder case, ruled that defendants have the right to know who is giving evidence against them.

Quote:

Four witnesses had given evidence under false names and from behind screens.

Prosecutor Timothy Cray said a retrial was expected to be held next year after the ramifications of the ruling had ended.

In an ironic twist, Judge Paget was also the judge in the case of Iain Davis in 2004 which was successfully appealed.

The government might consider witness protection provisions since it is all getting complicated.

21st June 2008, 03:43 PM	#1
iamivy Thinker Join Date: Oct 2007 Posts: 136	the new ruling http://business.timesonline.co.uk/to...cle4185742.ece Quote: The government is examining ways to allow anonymous evidence in court cases, in the wake of this week's Law Lords ruling that defendants have a right to know who is in the witness box. Wouldn't witnesses hesitate to come forward with this new ruling?
iamivy Thinker Join Date: Oct 2007 Posts: 136

21st June 2008, 03:50 PM	#2
Darat Lackey Administrator / JREF Forum Liaison Join Date: Aug 2001 Location: South East, UK Posts: 64,732	It's a very interesting issue. From my understanding the reason for the ruling in this case was not as broad as the article makes out. What it boils down to is - if the prosecution is relying on the evidence of an anonymous (to the defendant) witness to such an extent that the conviction hinged on such evidence and the anonymity meant that the defence counsel could not adequately cross-examine or bring to the court's attention relevant information (for instance that the witness may have some connection with the defendant) then and only then is it a problem.
	__________________ If it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart? - Aleksandr Solzhenitsyn 1918-2008

21st June 2008, 07:09 PM	#3
iamivy Thinker Join Date: Oct 2007 Posts: 136	Thankyou Darat, your understanding must be right. I just found this Quote: In the instant case, the trial was not fair since the ability of counsel for the defendant to cross-examine the decisive witnesses against him was gravely compromised. Similarly, the trial did not meet the standard required by art 6 of the European Convention on Human Rights. Not only was the evidence on any view the sole or decisive basis on which alone the defendant could have been convicted, but effective cross-examination depended upon investigating the potential motives for the three witnesses giving what the defence maintained was a lying and presumably conspiratorial account. Cross-examination was also hampered by the witnesses’ anonymity, by the mechanical distortion of their voices and by their giving evidence from behind screens, so that the defendant could not see them. Assuming that the sole or decisive nature of the evidence was not itself fatal, it was on any view an important factor which would require to be very clearly counter-balanced by other factors. In the instant case there were none. Moreover, the other factors were very prejudicial in their impact on effective cross-examination.
iamivy Thinker Join Date: Oct 2007 Posts: 136

24th June 2008, 07:27 AM	#5
Beerina Sarcastic Conqueror of Notions Join Date: Mar 2004 Location: A floating island above the clouds Posts: 23,835	Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you? That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse.
	__________________ "Great innovations should not be forced [by way of] slender majorities." - Thomas Jefferson The government should nationalize it! Socialized, single-payer video game development and sales *now!* More, cheaper, better games, right? Right?

24th June 2008, 08:52 AM	#7
fuelair Cythraul Enfys Join Date: May 2006 Posts: 28,881	Originally Posted by Beerina Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you? That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse. Just checking, and can't specify for England/UK, but we have had cases where people who testified were found murdered later. I would think with certain known, if not indictable, slime that would create a very good reason for anononymity for witnesses.
fuelair Cythraul Enfys Join Date: May 2006 Posts: 28,881

21st June 2008, 07:28 PM	#4
gdnp useless idiot Join Date: May 2008 Location: New Jersey-You gotta problem wit dat? Posts: 4,999	Interesting. I have heard of no case in the US where similar tactics have been used. The sixth amendment to the constitution states: Quote: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The "confronted with the witnesses against him" is generally interpreted as the right to cross-examine witnesses. This has become problematic in cases of child molestation, where many cases are not prosecuted because the trauma of having the child testify and be cross-examined was felt to be too great. I don't think testimony and cross-examination of an anonymous witness, where the jury cannot even evaluate the body language and voice of the person testifying, and the defense cannot challenge the person's credibility, would pass constitutional muster* *Unless the person were testifying against accused terrorists, in which the Bush administration wishes to be able to do whatever they damn well please.

24th June 2008, 08:21 AM	#6
Jaggy Bunnet Philosopher Join Date: May 2003 Location: Sunny Leith Posts: 6,146	Originally Posted by Beerina Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you? That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse. Sort of. The right to silence generally remains but from 1988 (Thatcher) in Northern Ireland and from 1994 (Major) in England & Wales it has been possible for "adverse inferences" to be drawn from the fact that an accused person has exercised that right. I don't think there are similar provisions in Scotland but IANAL.

24th June 2008, 09:23 AM	#8
Darat Lackey Administrator / JREF Forum Liaison Join Date: Aug 2001 Location: South East, UK Posts: 64,732	Originally Posted by Beerina Didn't Britain get rid of another basic right unde Thatcher, where they decided that, in the case of Irish terrorists, your silence could be used as evidence against you? That was very disturbing. Don't give up the fight! Yes, the issues discussed are bad, but a government that can trump up anonymous witnesses is worse. Not so much used as evidence against you can now be mentioned in court. Which I have to say I don't disagree with - after all a barrister can say "And if you remember Darat said X and from that isn't it likely he is ..." so I can't see being allowed to say "And if you remember Darat was silent on X and from that isn't it likely he is...." is any different or any fundamental right being breached.
	__________________ If it were all so simple! If only there were evil people somewhere insidiously committing evil deeds, and it were necessary only to separate them from the rest of us and destroy them. But the line dividing good and evil cuts through the heart of every human being. And who is willing to destroy a piece of his own heart? - Aleksandr Solzhenitsyn 1918-2008

24th June 2008, 10:37 AM	#9
iamivy Thinker Join Date: Oct 2007 Posts: 136	Murder trial hit by anonymous witnesses ruling Quote: A £6 million murder trial was halted at the Old Bailey today following a Law Lords ruling on witnesses giving evidence anonymously. The murder trial of two men accused of shooting east London businessman Charles Butler was stopped after lawyers considered last week's ruling. The Law Lords, in allowing an appeal in another murder case, ruled that defendants have the right to know who is giving evidence against them. Quote: Four witnesses had given evidence under false names and from behind screens. Prosecutor Timothy Cray said a retrial was expected to be held next year after the ramifications of the ruling had ended. In an ironic twist, Judge Paget was also the judge in the case of Iain Davis in 2004 which was successfully appealed. The government might consider witness protection provisions since it is all getting complicated.
iamivy Thinker Join Date: Oct 2007 Posts: 136