Commentary on Sections
Section 4: Conditions for making order
35.Subsection (2) introduces the conditions for making a witness anonymity order. There are three conditions, described as A, B and C, and they must all be satisfied. If they are not there can be no order.
36.Subsection (3) sets out the first condition for making a witness anonymity order, condition A. The measures to be specified in the order must be “necessary”. That necessity may arise in one of two ways – see paragraphs (a) and (b). The first is the protection of the safety of the witness or another person or the prevention of serious damage to property. There is no requirement for any actual threat to the witness or any other person. The second is the prevention of real harm to the public interest. This will include, but will not be restricted to, the public interest in police or security service under-cover officers being able to carry out future operations, whether or not they are fearful in any particular case.
37.Condition B, the requirement that the defendant receives a fair trial, is set out in subsection (4). Thus the grant of the order must be compliant with Article 6 of the European Convention on Human Rights (ECHR). Condition C, set out in subsection (5), is that the order is in the interests of justice, by reason of the fact that it is important that the witness should testify, and the witness would not testify if the order were not made.
38.Subsection (6) specifies that in determining whether the order is necessary to protect the safety of the witness, the court must have regard to the witness’s reasonable fear of death or injury either to him or herself or to another person (“we’ll get your kids”) or fear that there would be serious damage to property (“we’ll fire-bomb your house”).
