R v Mayers, Glasgow & Ors

A witness anonymity order is an exceptional measure of last practicable resort. The court has jurisdiction to make one only when each of Conditions A, B and C in the Criminal Evidence (Witness Anonymity) Act 2008 is satisfied. The conditions are mandatory and distinct.

The court must assess fairness in the round, including the statutory considerations bearing on the defendant’s ability to test the evidence. Anonymity for undercover officers may be necessary to prevent real harm to the public interest where their true identities are immaterial to a fair challenge to their evidence.

The statutory code permits anonymity for a witness called, or proposed to be called, to testify. It does not authorise anonymous hearsay evidence. A statement under section 116 of the Criminal Justice Act 2003 requires the witness’s identity to be disclosed to the defence.

The court determined four unconnected matters concerning witness anonymity under the Criminal Evidence (Witness Anonymity) Act 2008, enacted after the House of Lords decision in R v Davis [2008] 3 WLR 125.

Mayers and Glasgow appealed murder convictions obtained after civilian eyewitnesses had given anonymous evidence. Bahmanzadeh and Costelloe appealed convictions for permitting premises to be used for the supply of class A drugs, where undercover police officers gave evidence anonymously. Section 11 required the first three appeals to be decided by reference to the 2008 Act.

In the fourth matter, the prosecution appealed under section 35(1) of the Criminal Procedure and Investigations Act 1996 against Royce J’s ruling that the Act did not permit anonymity orders for witnesses whose statements were to be read as hearsay because they would not testify.

1. Mayers’ appeal was allowed and his conviction quashed. The anonymous witness became the decisive identifying witness after the other identifying witnesses retracted. She had emerged shortly before trial, had relevant convictions and connections requiring investigation, and the available time had not permitted full inquiries or disclosure. The court lacked sufficient confidence that material affecting her credibility, motivation and integrity had been revealed. The resulting trial was unfair: paras [50]-[53].

2. Glasgow’s appeal was dismissed. The anonymity measures for five eyewitnesses were necessary for their safety. Relocation would have been disruptive and ineffective. The identification evidence was capable of fair testing through disclosure, cross-examination and the independent identification procedures. Four witnesses identified Glasgow, and their evidence was materially supported by other evidence. The court’s own overall assessment was that the trial was fair: paras [71]-[76].

3. The appeals of Bahmanzadeh and Costelloe were dismissed. Concealing the identities and appearance of undercover officers was necessary to prevent real harm to the public interest. The defendants could test the officers’ accuracy and advance their proposed lines of challenge without seeing their true identities. Their credibility was not in issue, and there was substantial evidence apart from the undercover evidence from which the jury could infer the offences: paras [86]-[88].

4. The prosecution’s interlocutory appeal in V, P and R was dismissed. The statutory code applies to witnesses called, or proposed to be called, to give oral evidence. It gives no power to admit anonymous hearsay. Section 116 of the Criminal Justice Act 2003 requires the maker of a hearsay statement to be identified to the court’s satisfaction, which the court held requires disclosure of the witness’s name to the defence. Section 114 could not be used to create an unprovided-for regime of anonymous hearsay or analogous special measures: paras [103]-[113].

5. More generally, all three statutory conditions for anonymity are mandatory. Condition A does not require a threat attributable to the defendant. Condition C concerns a witness who will be called, or is proposed to be called, to give oral evidence and who would not testify without the order. Condition B requires a fact-specific assessment of whether the trial as a whole will be fair: paras [16]-[19], [26]-[37].

• Court of Appeal (Criminal Division): determined four conjoined matters concerning witness anonymity under the Criminal Evidence (Witness Anonymity) Act 2008.
• Crown Court at Kingston: Gross J convicted Mayers of murder. The conviction was quashed.
• Central Criminal Court: HH Judge Rook QC convicted Glasgow of murder. The appeal was dismissed.
• Crown Court at Plymouth: HH Judge Gilbert QC convicted Bahmanzadeh and Costelloe of permitting premises to be used for the supply of class A drugs. Their appeals were dismissed.
• Preparatory hearing: Royce J ruled that anonymous hearsay could not be admitted under the statutory scheme. The prosecution’s appeal against that ruling was dismissed.