Powar & Anor, R. v

Under Criminal Evidence (Anonymity of Witnesses) Act 2008, a pre-commencement anonymity order renders a conviction unsafe only where the order could not have been made under the Act and the defendant consequently did not receive a fair trial. Witness anonymity remains a measure of last resort. It requires necessity for safety or the public interest, a fair trial, and proof that an important witness will not testify without the order.

Fairness requires a practical assessment of the statutory considerations. It may be preserved where anonymous evidence is not sole, there is independent support, credibility can be investigated, and reliability can be effectively tested despite non-disclosure. A witness’s later refusal to resume cross-examination does not necessarily require a discharged jury where appropriate directions and safeguards reduce prejudice.

Following a jury trial at the Central Criminal Court, Harbinder Singh Powar and Kulwinder Singh Powar were convicted of the murder of Rakesh Raithatha. They received life sentences with minimum terms of 15 and 16 years respectively.

The prosecution case was that the brothers jointly attacked the victim outside their home. Several neighbouring eye-witnesses gave evidence anonymously under orders made before the enactment of the Criminal Evidence (Anonymity of Witnesses) Act 2008. One anonymous witness refused to return for cross-examination after giving evidence in chief.

The appellants challenged the anonymity orders, the fairness of the trial, the handling of that witness, and, in Harbinder’s case, causation and sentence. The central issue was whether the anonymity orders could have been made under the 2008 Act and whether they caused unfairness.

1. Appeal dismissed. The anonymity orders could have been made under the Criminal Evidence (Anonymity of Witnesses) Act 2008, the trial was fair, and the convictions were safe.

2. Under section 11, the court had to ask both whether the trial judge could have made the orders had the Act then been in force and whether the orders caused an unfair trial. Condition C was met: the witnesses were important eye-witnesses and the evidence established that they would not testify anonymously merely as a preference, but would not testify at all without protection.

3. Condition A was also met. The witnesses genuinely feared retaliation and their fears were objectively reasonable. The public and brutal nature of the killing, the appellants’ knowledge that local residents had observed it, and the history of violence and intimidation associated with them justified the conclusion that anonymity was necessary for safety.

4. Condition B was met after applying the section 5 considerations. The anonymous witnesses had no apparent motive for dishonesty. Their evidence was important but not sole. Other witnesses and, in Harbinder’s case, forensic evidence independently supported the prosecution. The defence had sufficient material and opportunity to test reliability, including each witness’s viewpoint, distance, lighting and possible obstruction. No realistic alternative protective measure short of rehousing was available.

5. The partial and inadvertent disclosure of information capable of suggesting some witnesses’ identities did not require public confirmation of those identities. Continuing anonymity still reduced risk to the witnesses and their families.

6. The trial judge was entitled not to compel witness D to return after D refused further attendance for cross-examination. A clear jury direction and the invitation to counsel to state the cross-examination points they would have pursued provided appropriate safeguards. Harbinder’s conviction was properly supportable on joint enterprise; leave to advance a separate causation ground and to appeal his minimum term was refused.

• Court of Appeal (Criminal Division): The appeals against conviction were dismissed in [2009] EWCA Crim 594. Harbinder’s renewed applications for leave to appeal on causation and sentence were refused.
• Central Criminal Court: On 6 February 2008, both appellants were convicted of murder. On 18 February 2008, each received life imprisonment, with minimum terms of 15 years for Harbinder and 16 years for Kulwinder.