WITNESSES & INFORMANTS

WITNESSES & INFORMANTS

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).

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

WITNESS PROTECTION • JUDICIAL • EXTRA-JUDICIAL

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.

ECtHR: 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;

ECtHR: 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".

Protection 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.

Application 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

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

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

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.

Recruitment 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

Documentation 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.

Conducting meetings and tradecraft • Conducting Meetings • Tradecraft

Authorisation, and level of authority required • Authority to use the source • Authority from controller for meeting • Registrar for policy and record-keeping.

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.

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.

Use 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

WITNESSES & INFORMANTS