Donovan & Anor v R.

A witness anonymity order is an exceptional measure of last practicable resort. Under the Coroners and Justice Act 2009, the court must ensure that anonymity remains consistent with a fair trial, particularly where the witness supplies sole or decisive evidence and credibility or motive is material.

An order cannot stand if it prevents the jury from hearing admissible, substantive material bearing on whether a decisive anonymous witness may be dishonest or motivated to lie. The resulting trial is unfair and the conviction unsafe.

The appellants were convicted at Wood Green Crown Court of robbery and violent disorder arising from the public disorder of August 2011. Donovan was also convicted of burglary.

The prosecution case against each appellant depended decisively on an anonymous witness who purported to recognise him from filmed footage. The witnesses gave evidence under pseudonyms, unseen by the appellants and with disguised voices. The Crown had obtained anonymity orders under the Coroners and Justice Act 2009.

On appeal, the appellants' sole ground challenged those orders. The central issue was whether the concealment of the witnesses' identities and relevant identifying information had made the trials unfair.

1. The appeals were allowed and the convictions were quashed. A witness anonymity order may be made only if the cumulative statutory conditions are met. It is an exceptional, last-resort measure. The overriding question was whether the order was consistent with a fair trial under the Coroners and Justice Act 2009.

2. The identification evidence was decisive in each case. Without it, there would have been no case to answer. It was not overwhelming recognition evidence: the witnesses could not identify particular facial features from the footage, and their accounts depended on clothing, gait, manner and limited profile.

3. The court held that the statutory fairness inquiry required particular attention to whether the evidence could properly be tested without disclosure and whether either witness had a possible motive to be dishonest. This reflected the approach in R v Mayers [2009] 1 Cr. App. R 30.

4. The undisclosed handwritten statements contained factual matters capable of significant cross-examination on credibility, dispassion and a motive to incriminate. The material had been before the judge, but the court proceeded on the agreed basis that it had not been specifically drawn to his attention. His conclusion that there was no reason to think either witness was motivated against the relevant appellant was therefore flawed.

5. The Crown, when seeking an order at a hearing from which the defendant is absent and unrepresented, had to assist the judge through full and frank disclosure, consistently with the observation in In re Stanford International Limited [2011] Ch. 33. Because anonymity prevented the jury from hearing admissible and substantive material relevant to possible dishonesty or motive, the trial was unfair. The orders should not have been made.

• Court of Appeal (Criminal Division) — Allowed the appeals and quashed the convictions: [2012] EWCA Crim 2749.

• Wood Green Crown Court — Convicted both appellants of robbery and violent disorder on 2 March 2012; convicted Donovan additionally of burglary.