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WITNESSES & INFORMANTS

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WITNESSES: ISSUES & RISKS

In proactive investigations: risks to health/safety; entrapment/provocation; ongoing protection.

In reactive investigations: Lack of independence; credibility; inducement; protection (& whistleblower/employment issues).

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CO-OPERATING DEFENDANT/ASSISTING OFFENDER

Methodology varies from State to State, depending on legal framework

Common principles though: ensuring credibility, obtaining a thorough ‘debrief’, avoiding suggestion of ‘inducement

Variations: Whether immunity may be given, size of sentence reduction, availability of ‘defence’ of effective regret or similar, or ‘concussion’ (pressure/duress) or similar

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WITNESS PROTECTION

JUDICIALEXTRA-JUDICIAL

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AT COURT (JUDICIAL)

Principle:  The interests of justice require that vulnerable

witnesses, both child and adult, are afforded as much protection as possible to enable them to give evidence in a way which:-maintains the quality of that evidence; and-minimises the trauma suffered.

Equally, justice requires that measures to protect vulnerable witnesses do not deprive the defendant of his right to a fair trial, and that any restriction on the principle of open justice must be fully justified.

 

Amicus Legal ConsultantsECTHR: DOORSON V

NETHERLANDS (1996) 22 E.H.H.R. 330

Are there sufficient safeguards in the case to counterbalance "the handicaps under which the defence laboured“?

Here the anonymous witnesses had been questioned in the presence of Counsel by an investigating magistrate who knew of true identity;

 The Magistrate was able to note the circumstances on the basis of which he was able to draw conclusions as to the reliability of their evidence;

Amicus Legal ConsultantsECTHR: DOORSON V

NETHERLANDS (1996) 22 E.H.H.R. 330

Counsel was not only present, but was able to ask any questions he wished other than those which might lead to the identification of the witness;

A conviction "should not be based solely or to a decisive extent on anonymous statements" but that was not the case in Doorson v Netherlands, ante; and

“Evidence obtained from witnesses under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care". 

Amicus Legal ConsultantsPROTECTION OF ADULT

WITNESSES

An application for protective measures (eg, screens) should be rare; likely circumstances are: 

Where the witness is a member of the security services, an undercover police officer, customs agents or informant; or 

Where a defendant has sought to dominate intimidate or humiliate the complainant or it is reasonably expected will do so

Where the alternative would be for the statement to be read by the court, thus depriving the defendant of the opportunity to cross-examine.

Amicus Legal ConsultantsAPPLICATION FOR ANONYMITY

A last resort!For witness anonymity, the court will consider factors such as the following: 

There must be real grounds for being fearful of the consequences if the evidence is given and the identity of the witness is revealed

The evidence must be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it

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APPLICATION FOR ANONYMITY (CONTD.)

The prosecution must satisfy the court that the credit worthiness of the witness has been fully investigated and the result of that inquiry disclosed to the defence so far as is consistent with the anonymity sought.

The court must be satisfied that no undue prejudice is caused to the defendant

The court can balance the need for protection, including the extent of the necessary protection, against unfairness or the appearance of unfairness in the particular case

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EXTRA-JUDICIAL PROTECTION An ongoing duty of care/human rights duty on the part of

those handling the witness to the witness and his family Risk assessments must be carried out at appropriate

intervals, and commensurate protective measures put in place

These will range from a panic alarm, relocation, right through to a change of identity

The duty of care is ongoing, for as long as a risk exists (regular assessments etc)

The witness protection duties, including those of risk assessment, must be carried out by trained operatives, independent of the investigation

The investigation needs to be party to matters relevant to it (disclosure/rebutting of inducement suggestions etc)

Witness protection may be organised nationally or locally; might involve cross-border agreements

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SOURCES/INFORMANTS

An informant will be tasked to use his relationship with the target(s) to gather information covertly. It follows, therefore, that there is likely to be a breach of the right to a private/personal life of the target(s). Thus, there must be:

An express basis in accessible, national law that provides for the use and conduct of the informant; and

A proper framework in place for authorisation and oversight; and

Necessity and proportionality.  

Amicus Legal ConsultantsRECRUITMENT AND

ASSESSMENT OF AN INFORMANT

This should be a four-stage process:

Identification Research Assessment of information/ Character of

individual Assessment of character and review of such

Amicus Legal ConsultantsDOCUMENTATION IN RESPECT OF

A SOURCE

Detailing the recruitment process used Terms and conditions given to the source

prior to deployment. Reviews Authorisations of meetings with the source Record of the contents of the meeting with

the source.

Amicus Legal ConsultantsCONDUCTING MEETINGS AND

TRADECRAFT

Conducting Meetings

Tradecraft 

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AUTHORISATION, AND LEVEL OF AUTHORITY REQUIRED

Authority to use the source Authority from controller for meeting Registrar for policy and record-keeping.

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REGISTRAR

Consider devising a system whereby you record the intelligence, and place it onto a database with a unique number.

Each unit or department can have its own such database, which will have all sensitive information from a variety of sources on it.

The unit’s intelligence cell should control the database. They place the intelligence onto any general intelligence system used by the agency/force.

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REGISTRAR (CONTD.)

The overall effect of this is as follows: To any person seeing the information, they

will know what intelligence cell it has come from. What they will not know is the source of the information. This is because the unique number will lead them into the relevant intelligence cell, but will not divulge the source.

To establish the source, they would have to contact the relevant intelligence cell and the trail will stop there, unless authority to further it is given by the source controller.

This gives protection to the informant.

Amicus Legal ConsultantsUSE OF A SOURCE IN AN

UNDERCOVER ROLE AS A ‘PARTICIPATOR’ In some States, a source may be granted an authority

to participate in a specified crime for the purpose of progressing an investigation

Only if there are no other, conventional, methods available and the crime under investigation is serious

Such use must be properly authorised, and must be proportionate and necessary

Must be a basis in national law for this activity to take place

The role of the source must be minor He cannot provoke/entrap (beyond ‘opportunity’) The crime must already be in existence