The Cayman Islands Court of Appeal heard objections last week to a witness anonymity order, not only for legal reasons, but also for the practical problems that could arise. Court president Sir John Chadwick noted it was the first application of its kind to reach the court since the law was passed in March.

What an anonymity order means

When the Crown applies for and receives a witness anonymity order, it means not only that the person’s identity is withheld from the public, but also that it is not disclosed to any defendant or his legal representative.

Solicitor General Cheryll Richards began her presentation last week by noting that the Criminal Evidence (Witness Anonymity) Law provides for appeal to the Court of Appeal when another court has refused an application. Proceedings were therefore by way of a rehearing.

She explained the need for an order that would allow a witness to give evidence anonymously in a particular case. She told the court the offence was serious and the evidence of the potential witness was critical. The witness had told authorities “I would like justice for [the victim], while at the same time I fear for the safety of myself and my family.”

One of the measures the law provides for ensuring that the witness’ identity is not disclosed is the modulation of his voice when giving evidence in court. Ms Richards asked for an order that voice modulation be done by way of a TV link so that the witness would not have to be in the same room.

Defence counsels Timothy Spencer and Orlando Pownall of the UK, both of whom were instructed by local attorneys, raised numerous objections.

Mr. Spencer said that would be a procedure unprecedented in any jurisdiction he knew of. “There is no reported case where an anonymous witness has not been in the courtroom and is seen by the judge and jury, albeit not by the rest of the courtroom.” He pointed out that the demeanour of the witness is highly important for the judge and jury to see.

Justice Chadwick said he thought the question of TV screens would be relatively easy to deal with and the voice modulation issue could probably be dealt with by using separate headphones. He did not refer to specific facilities available locally, but Court Five was built with private viewing screens for jurors and separate consoles for the judge and attorneys.

However, the court president asked, “Once you let the jury see the witness, how far is his identity protected?”  If the jury does not see the witness, it doesn’t matter if the witness is in court or not, he said.

Mr. Spencer argued it was important for the jury to see the witness and hear his voice not distorted. Any headway made by the defence attorney who cross-examines the witness is lost if jurors can’t see the witness’ demeanour and hear any change in his voice, he said.

Mr. Pownall pointed out the difference between a case in which innocent bystanders have the misfortune of witnessing events and then have their names disseminated amongst gangsters and a case of alleged gang feuding in which “everybody is tainted”.

Provisions of the law

The Criminal Evidence (Witness Anonymity) Law sets out factors a court must consider when an application is made for a witness anonymity order. They include: the general right of a defendant to know the identity of a witness; the extent to which witness credibility would be relevant when is evidence is assessed; whether his evidence might be “the sole or decisive” evidence implicating the defendant; whether his evidence could be properly tested without his identity being disclosed; and whether there was reason to believe he had a tendency or motive to be dishonest.

Justice Elliott Mottley commented that when the Crown contends that two or more defendants were acting in concert, the evidence against one would be against all.

Justice Abdullah Conteh observed that without knowing who the anonymous witness is, defence attorneys would not have a full opportunity to test his credibility.

Also noted was the distinction between protecting the witness’ identity and protecting his safety. Some jurisdictions relocate their witnesses -- how would that work in Cayman? Or would the witness be relocated to another jurisdiction?

After all the defence arguments were heard, Ms Richards began her response by dealing with the issue of voice modulation by TV link. She shared her understanding from technical experts that, in the absence of a soundproof facility with the witness speaking into a microphone, people in the room would still hear his voice. She accepted that the judge and jury need to hear the witness’ normal voice, but the TV link request took into account the difficulties faced in the courtrooms available.

Ms Richards also addressed concerns about witness credibility, reminding the court of all the material that had been disclosed to the Defence.

The next step was for the court to hear from Ms Richards why the application for a witness anonymity order should be granted. This was done in the absence of the public and in the absence of defendants and their attorneys.

When proceedings resumed in open court, Justice Chawdwick said he and his fellow judges were not satisfied that measures proposed by the prosecution would be consistent with the defendants in this particular case getting a fair trial.

He said the judges would put detailed reasons into writing. That judgment will serve as guidance in future applications for witness anonymity orders.