Chisholm,R. v

Under the Criminal Evidence Witness Anonymity Act 2008, necessity for a witness-anonymity order may be established by a witness’s real and reasonable fear for safety. It does not require proof that an objectively verifiable danger will occur. Fairness requires proactive consideration and disclosure of material affecting an anonymous witness’s credibility, but it does not require disclosure that would defeat anonymity merely to investigate speculative allegations of collusion or improper influence.

Evidence which may be sole or decisive remains a statutory consideration, rather than an automatic bar to anonymity. An appellate court will be slow to interfere with a trial judge’s discretionary admission of bad-character evidence unless the decision was plainly unfair.

The appellant was convicted at Newcastle-upon-Tyne Crown Court of causing grievous bodily harm with intent and violent disorder. He had stabbed the driver of a stationary car after his son attacked the car with an axe. His defence was self-defence.

Several prosecution bystanders gave evidence anonymously under the Criminal Evidence Witness Anonymity Act 2008. The appellant challenged the anonymity orders, particularly the order concerning witness X, and complained of the admission of his bad character. He also appealed an indeterminate sentence imposed for the grievous-bodily-harm offence.

The central issues were whether the anonymity process had made the trial unfair or rendered the convictions unsafe, whether the bad-character ruling was unfair, and whether the appellant was dangerous so that an indeterminate sentence was necessary.

1. Appeals dismissed. The anonymity orders were lawfully made, the convictions were safe, and the indeterminate sentence was upheld.
2. The court had reviewed the closed material. Material capable of affecting the jury’s assessment of witness X’s credibility had been disclosed. Fairness did not require disclosure of the material supporting anonymity applications where disclosure would reveal the witness’s identity, nor did it require investigation of speculative allegations that the witness had been influenced by Smart. The prosecution must proactively address apparent risks to credibility, including possible collusion, but need not prove the absence of unsupported possibilities.
3. On the proper construction of section 4(3) of the Criminal Evidence Witness Anonymity Act 2008, condition A was met if the court was satisfied that the witness had a real and reasonable fear for safety. It was unnecessary to establish that the witness would objectively be in danger without the order. Reasons for an order could properly be given in closed proceedings where open reasons would defeat its purpose; judicial reasons and appellate review provided safeguards.
4. Even if X’s evidence had been sole or decisive, that fact would not automatically prevent an anonymity order. It was in any event neither sole nor decisive: other evidence and the surrounding circumstances strongly supported the prosecution case. The jury’s rejection of self-defence was therefore safe.
5. The judge had been entitled to admit the appellant’s drug-dealing conviction and attempted bribery of a police officer through section 101 of the Criminal Justice Act 2003. The appellate court lacked the trial judge’s full appreciation of the cross-examination and would interfere only if the ruling was plainly unfair. It was not.
6. The judge was entitled to find a significant risk of serious harm from the grave, planned and retaliatory offending, notwithstanding the absence of previous serious violent convictions. An indeterminate sentence was necessary and proportionate for public protection.

Obiter: the court gave tentative guidance on special counsel in anonymity-order appeals. Appointment is not routine, but may be appropriate where justice requires assistance with closed material or submissions unavailable to ordinary counsel.

• Court of Appeal (Criminal Division): In [2010] EWCA Crim 258, dismissed the appeals against conviction and sentence.
• Newcastle-upon-Tyne Crown Court: On 27 January 2009, convicted the appellant of causing grievous bodily harm with intent and violent disorder. The court later imposed imprisonment for public protection with a five-year minimum term for the first offence and a concurrent two-year sentence for the second.