Okuwa, R. v

For a pre-statutory witness-anonymity order, section 11 of the Criminal Evidence (Witness Anonymity) Act 2008 requires the appellate court to ask whether the order could have been made under the statutory conditions and whether it caused an unfair trial. Anonymity remains a measure of last practicable resort. Necessity must be established to a high standard, and the conditions of safety, fair trial, and indispensable testimony must all be met.

Disclosure failures are serious in anonymity cases, but they render a conviction unsafe only if they materially affect the defence or trial fairness. A suitable anonymity warning and the absence of a co-defendant warning will be assessed in the context of the whole trial.

The appellant was convicted of murdering a drug dealer at the Central Criminal Court. The prosecution case relied in part on evidence from two witnesses who gave evidence anonymously. The appellant challenged the anonymity orders, late disclosure concerning the witnesses, the adequacy of the jury warning on anonymity, and the absence of a tailored warning about evidence adverse to him from his co-defendants.

The central questions were whether the anonymity orders could lawfully have been made under the later statutory regime, whether disclosure and anonymity had deprived the appellant of a fair trial, and whether the jury directions made the conviction unsafe.

1. Appeal dismissed. The conviction was safe. Although the court criticised the prosecution's disclosure process and noted the exceptional character of witness anonymity, neither the non-disclosure nor the anonymity orders caused an unfair trial.

2. Under section 11 of the Criminal Evidence (Witness Anonymity) Act 2008, a conviction cannot be treated as unsafe merely because the trial court lacked a common-law power to make an anonymity order. The court had instead to decide whether the orders could have been made under sections 88 and 89 of the Coroners and Justice Act 2009, and whether the orders had denied the appellant a fair trial.

3. All three statutory conditions for anonymity were satisfied. The witnesses' objectively justified fears made the orders necessary. It was open to the judge to infer that each witness would not have testified if identified. The orders were also consistent with a fair trial because the defence knew much of the relevant background, could cross-examine on all legitimate matters, and was not prevented from testing the witnesses' evidence. The judge's reliance on the threefold test in The family of Derek Bennett v Officers ‘A’ and ‘B’ and HM Coroner and Commissioner of Police for the Metropolis [2004] EWCA Civ 1439 was misplaced, since that case concerned an inquest rather than a criminal trial, but this did not make the orders unlawful or unfair.

4. The Crown's disclosure obligations are especially exacting where it seeks witness anonymity. The omitted material was nevertheless largely intelligence or material of limited forensic use. It would not materially have changed the defence's conduct, established collusion, or provided a substantial new basis for impeaching either witness.

5. The jury received an adequate warning that anonymity should not prejudice the witnesses and could hinder the defence. Repetition in the summing-up would have been preferable, but the omission did not affect safety because the defence had substantial information about both witnesses and cross-examined them fully.

6. A warning that co-defendants may have their own interests to serve is ordinarily desirable where they give adverse evidence. In this mirror-image cut-throat defence, however, the competing interests were obvious. The absence of that additional warning, viewed with the directions actually given and the conduct of the trial, did not undermine the safety of the conviction.

• Court of Appeal (Criminal Division): Dismissed the appellant's appeal against conviction and held that the murder conviction was safe.
• Central Criminal Court: On 13 December 2005, His Honour Judge Pontius convicted the appellant of murder. The co-accused were acquitted.