Helen McEntee (Meath East, Fine Gael) | Oireachtas source

I move amendment No. 8:

In page 19, after line 32, to insert the following:

"PART 6

ANONYMITY OF WITNESSES IN CRIMINAL PROCEEDINGS

Anonymity of witnesses in criminal proceedings

35.(1) Without prejudice to any enactment or rule of law, a court may order such measures (referred to in this section as "anonymity measures") to be taken in relation to a witness in criminal proceedings as the court considers appropriate to ensure that the identity of the witness is not disclosed in or in connection with the proceedings.

(2) Without prejudice to the generality of subsection (1), the anonymity measures referred to in that subsection may include—

(a) that the witness's name and other identifying details may be—

(i) withheld,

(ii) removed from materials disclosed to any party to the proceedings, or

(iii) both,

(b) that the witness may use a pseudonym,

(c) that the witness shall not be asked questions of a description specified by the court that might lead to the identification of the witness,

(d) that the witness shall be screened to an extent specified by the court, and

(e) that the witness's voice shall be altered by appropriate means specified by the court.

(3) Anonymity measures shall not include measures to prevent—

(a) the witness from being visible to the judge or judges, or to the jury (if any), or

(b) the witness’s unaltered voice being heard by the judge or judges, or by the jury.

(4) The court shall not order anonymity measures unless it is satisfied that—

(a) the measures are necessary to—

(i) protect the safety of the witness concerned or of another person connected to the witness or to prevent serious damage to property,

(ii) protect the anonymity of a law enforcement official, where that anonymity is necessary for the proper performance of that official’s duties, or

(iii) avoid harm to the public interest,

and

(b) the measures would be consistent with the defendant receiving a fair trial.

(5) In determining whether measures should be ordered, the court shall have regard to—

(a) the general principle that a defendant should know the identity of witnesses,

(b) the extent to which the credibility of the witness is at issue,

(c) whether the evidence of the witness may be the sole or decisive evidence,

(d) whether the evidence of the witness is corroborated,

(e) whether the evidence of the witness may be properly tested without his or her identity being disclosed,

(f) whether there is any reason to believe the witness is or may be dishonest, or has any motive to be dishonest in the particular case, and

(g) such other factors as the court considers relevant.

(6) A determination by the court that the evidence of the witness may be the sole or decisive evidence shall not, in and of itself, preclude the court from ordering anonymity measures, provided that the court is satisfied that the conditions in subsection (4)apply.

(7) An application for anonymity measures may be made by the prosecutor or the defendant and—

(a) where it is made by the prosecutor, he or she—

(i) shall, (unless the court directs otherwise) inform the court of the identity of the witness, and

(ii) is not required to disclose the identity of the witness, or any information that might enable the witness to be identified, to any other party to the proceedings or to the defendant’s legal representatives,

or

(b) where it is made by the defendant, he or she—

(i) shall inform the court and the prosecutor of the identity of the witness, and

(ii) is not required to disclose the identity of the witness, or any information that might enable the witness to be identified, to any other defendant or to that other defendant’s legal representatives.

(8) The court shall give every party to the proceedings the opportunity to be heard with regard to an application to which subsection (7)refers.

(9) Where the court considers it necessary for the purpose of properly considering an application to which subsection (7)(a) refers, it may—

(a) hear one or more parties, or

(b) examine the proposed witness in relation to whom the application is made, or other witnesses, in the absence of the defendant and his or her legal representatives.

(10) Where a person proposes to make an application to which subsection (7)refers, he or she may, subject to paragraphs (a)(i) and (b)(i)of that subsection, disclose documents or other material that fall to be disclosed, or are sought to be relied on, by him or her, subject to such redactions as are necessary to avoid identifying the witness in respect of whom the application was made or enabling that witness to be identified.

(11) Where a witness in relation to whom anonymity measures apply has given evidence in a trial before a jury, the judge shall caution the jury in such terms as he or she considers necessary for the purpose of avoiding prejudice to the defendant.

(12) A court may, on notice, vary or discharge an order to which subsection (1)refers where the court is satisfied that it is in the interest of justice to do so.".

The ability of certain witnesses to give evidence without disclosing their identity is vital to protecting the safety of witnesses and ensuring the ongoing effectiveness of law enforcement operations. However, there is no current statutory basis for the granting of anonymity and courts have limited guidance in determining whether and how it should be granted. The Court of Appeal, in its judgment in DPP v. Bates, highlighted the need for a statutory basis, and this amendment will provide this. It seeks to ensure that a court has a very clear legal basis for determining whether and under what conditions such evidence should be allowed. The default position is, of course, that a person should know the identity of the witness giving the evidence against him or her. Anonymous evidence cannot be allowed if it would undermine the ability of a person to receive a fair trial. However, in certain cases, giving evidence anonymously may be safely allowed without affecting the fairness of a trial, provided that appropriate safeguards are in place.

The two most common situations where a need for anonymity may arise are in respect of law-enforcement officials - for example, National Surveillance Unit gardaí or gardaí carrying out undercover operations - and where witnesses fear for their safety if giving evidence. The sad reality of organised crime is that many potential witnesses may not give evidence due to intimidation and fear. Accordingly, the amendment provides that anonymous evidence may be allowed to protect the safety of the witness are another person connected to that witness and protect the anonymity of a law-enforcement official where that anonymity is needed for the proper performance of that official's duties or to avoid harm to the public interest. It may be allowed only where it would not prevent the defendant from receiving a fair trial.

Anonymity measures may not prevent the judge and jury from seeing the witness. This will continue to be essential to ensure that the credibility of evidence given can be assessed. In determining whether to allow anonymous evidence, the court must have regard to several things: the general principle that the defendant should know the identity of the witness; the extent to which the credibility of the witness is at issue; whether the evidence of the witness may be the sole or decisive evidence; whether the evidence of the witness is corroborated; whether the evidence of the witness may be tested properly without the witness's identity being disclosed; and whether there is any reason to believe the witness is, or may be, dishonest or has any motive to be dishonest in the particular case. This provision has been drafted in very careful consultation with the Office of the Attorney General and with a view to ensuring an appropriate balance is struck between the need to protect witnesses and the need to protect the public interest while ensuring a fair trial for all involved.