New Anon Witness Case: R v Powar

R v Powar & Another [2009] All ER (D) 45 (Apr) in the Court of Appeal

Facts:
Two defendants were convicted of murder of the deceased.
The judge granted anonymity orders the Criminal Evidence (Witness Anonymity) Act 2008
(Soon to be in the Coroners and Justice Bill 2009)
Appeal was on three grounds
(1)Whether the order would have been given if at the time the statute was in place.
(2)Whether conditions A-C were met.
(3)Whether the conviction was unsafe

Held:
(1) Condition A
Anonymity orders should not just be defined to gangland killings or crimes of violence.
Condition A (s4(3) protect serious damage to witness or to property as further defined in subsection 6
subsection 6 (a) serious injury or death to the witness, or serious damage to the property.
R v Mayers applied.

(2) Condition B
In regards to a defendant having the right to know the identify of his accuser (big in R v Davis)
The court held that there was a delicate balance to be made between the rights of the witness (right to life and right to privacy)
and the rights of the defendant.
There was a strong case against the defendant's without the eye witness's evidence.
R v Mayers applied.

(3) Condition C
It was in the public interest to have the orders granted. They were unlikely to testify against the defendants if they were not granted (they lived on the same street as the defendants)


Commentary

The Court of Appeal seem to have got it right on this one, the second appeal case to come to the Court of Appeal on this particular act
Though as the Criminal Evidence (Witness Anonymity) Act 2008 is due to
expire in December 2009 I wonder how many new cases will come before the court.
In R v Davis the House of Lords held that witness anonymity was unlawful that the defendant had a right to face his accusers.
That a conviction based solely on the evidence of anonymous witnesses was unlawful and such convictions should be treated as unsafe.
Most of the House of Lord's concerns made it into the act, albeit into s 5(2) (a)-(f) which a judge only has to have reference to.
One does wonder how the new Act which is tabled to for the Coroners and Justice Bill will turn out and whether Parliament will give it any more detail and be slightly more fleshed out.
It was if you remember passed 3 days after the House's ruling in R v Davis.

Conditions A-C must be met otherwise an order will not be treated as lawful, however it does appear that to a certain degree they will always be met quite easily.
Condition A - which refers to the safety of witnesses or serious damage to property.
Will likely always be satisfied, whether or not there is a reasonable fear or being harmed.
Is it a good thing that it can be easily satisfied?

Condition B - the right to a fair trial - the Court has described this as a delicate balancing act.
A fair trial (and I agreed with their Lordships in R v Davis) cannot take place if the conviction of a defendant rests solely on evidence from anon witnesses.
Who the defendant cannot effectively probe to see if they are lying or in the case of multiple witnesses against the defendant,
cross examine to see if they have been collaborating.(Though covered by s 5(2)(e) however Judges must only have regard to it)

Condition C - says Courts must regard that (a) it is important that the witness testifies, and (b) that the witness would not testify if the order was made(but for causal question to think about)

So it seems likely in any case that an anonymity order will be upheld.

The only successful appeal against conviction (under the new act) using anonymous evidence, was R v Mayers (conjoined appeals, 4 appeals from defendants, one from the prosecution)
(Mayer's conviction was unsafe because of a dodgey witness)