Dangers of anonymity

| 21/02/2010

It is not surprising that the recent announcement that witnesses will soon be able to give evidence to the courts anonymously has been well received, given the current escalation in violent crime. However, the legislative proposal is by no means a silver bullet for our crime problems and may even cause more problems than it hopes to solve.

While it is easy to think that witnesses to crime are upstanding, decent members of the community that are just too afraid to come forward because of perceived threats, that is not always the case. People that see, or for that matter don’t see, often have their own motivation for saying and doing or not saying and doing certain things when it comes to crime.

There are those among us, sadly, that will pervert the criminal justice system to meet their own ends and the cloak of anonymity designed to protect the innocent witness could very easily be exploited by those with reasons to falsely accuse others.

If the police are using anonymous witness testimony to help them bolster a case where forensic and circumstantial evidence also points to the guilt of an individual there will be less cause for alarm, but where a case will depend greatly on that testimony of one anonymous witness the justice system will need to tread very carefully. The very precious and fundamental right all of us have to defend ourselves in court should not be undermined because of gang violence. Those charged must be able to cross examine their accusers to ensure justice is done through a fair trial.

The use of anonymous witnesses in cases where the testimony is of the utmost integrity will still have to stand up to scrutiny by the Court of Appeal, and in those where their evidence is discredited a defendant must be allowed to point out to the court the reasons why a witnesses may be offering false testimony, otherwise the fundamental issues of fairness and justice will be undermined — something that should cause all of us alarm. Nor is this just a question of protecting the basic human right to a fair trial but it also goes to the heart of the security of convictions.

The police cannot be allowed to think their case is over because they have a witness prepared to say from behind a sheet who did the shooting — they need more. In many Grand Court cases the integrity of exhibits, the thoroughness of investigations and the general pursuit of evidence and motive by the police have often been called into question, opening the door for doubt in the collective mind of the jury even in what appeared to be open and shut cases.

Given the increasing number of shootings on the island and the historic precedent that says witnesses and jurors are at risk protecting their identity is important. Police do need eyewitness accounts to help convictions but it is far better when those accounts can stand up to scrutiny in court or, better still, lead investigators to the forensic and circumstantial evidence that makes convictions more solid.

There area number of areas of weakness within the RCIPS which need to be addressed through the necessary training and improvements in the quality of policing before civil liberties are attacked. The island is also in desperate need of its own forensic lab to protect evidence when it is found. The police need to be trained in how to conduct taped and audio interviews as soon as possible to protect the evidence they gather from suspects as much as to protect those they arrest, something made very clear in the latest Grand Court trial.

The introduction of legislation to allow anonymous testimony in the UK has been accompanied by changes to legislation in the rules that govern the way police do their job, changes that have not yet reached the Cayman Islands. Without the safety net that comes with a modernised and highly trained police service, tools such as this anonymity proposal can easily be exploited by both police and witnesses, which in the end may achieve the opposite of the desired result.

Allowing a genuine gunman to walk free because of technicalities in the way testimony was taken and presented or having a conviction overturned for the same reason will leave the community back at square one. 

Unfortunately, the country’s resources are currently strained but the need for more highly trained police has never been more pressing than it is at the moment. Legislative changes that challenge the basic human right to a fair trial cannot be sacrificed as a substitute to solid police work and evidence collection. Moreover, demonstrating to the community that the RCIPS is not leaking information and finding the weapons would be considerably more valuable.  Genuine and anonymous intelligence that leads the police to the smoking gun will be a lot more convincing to a jury than the distorted voice of a scared or, even worse, a vindictive witness.

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Comments (9)

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  1. Sole Provider says:

    There has been a marked decline in witnesses coming forward ever since the man in the local witness protection program got shot at the Islander Hotel premises.

    This new Anonymous testamony legislation is only dealing with the symptom of the problem.

    The real problem is the perceived corruption in the police force.

    Only when that problem is solved will witnesses step forward.

     

    • anony says:

      Dear Wendy,

      Thank you for that very enlightening letter. I hope every RCIP, the Governor, Pthe Comm. of Police Baines and the premier and the entire legislature did read the entire contents of this very informed letter.

      As we all are aware.  Here in the Cayman Islands, gossip, making up stories, and lies on each other out of pure envy;, jealousy, hatred and strife is very common. Shall I mention the hatred between the X-pats and Caymanians?  I can see them blaming each other for the crimes what a dangerous situation. There is not always fire where there’s smoke. Sometimes its just "Dust" (not real) I can imagine the newspapers printing the results of such a system..

      Headlines: X-Pat frames Caymanian in a murder!

                         Caymanian Frames X-pat  in a murder!

      VINDICTIVE, WE ARE !

      RCIP  has got to put in place a system that will work for us and not against us, this witness protective measure to receive evidence is not sufficient not in a malicious society such as this one. People have been known to tell lies on each other out of pure hate and malice. I was lied on  and slandered, not even able to recognize the label, much less the slander. so he who feels it knows it.The danger in it all is that too much family in the RCIP are related to the criminals. They should be required to state and declare upon application whether he or she is related to a known criminal  this will put the new RCIP recruit on notice and on guard for any leak of information.

      There are XXXX people in the courts office as well who we need to be careful of. No onecan be truly trusted. They are all sinners and do not dowhat is right all the time. so God help us if we are left into their hands to protect our lives.

      The most dangerous aspect to such a law is the politicians vendetta for the constituients that have been a thorn in their side or who oppose them!

  2. Rhum-point-pole says:

    Tough times lead to bad legislation.  This could be too much too soon.

  3. Anonymous says:

    Allowing secret testimony allows those in power (i.e.: the government) to engage in Stalinesque tactics as well as vindictive fraudulent accusers to imprison their opponents.  How can one defend one’s self against a phantom accuser?

    I’m not saying that this would 100% happen.

    I’m just saying that it opens the door.

    I think a more rational approach is to

    -enforce existing laws

    -increase penalties for inappropriate release of information

    -arm the police

    -zero tolerance for violent crime with no parole +/- death penalty

    -enable a "castle doctrine" and the right of the people to bear arms. 

    -decriminalize or tolerate small amounts of soft drugs.

    People should feel safe in their homes.

    The police should feel safe in their investigations.

    Drug dealers should profit less from the illicit nature of the drugs.

    Criminals should fear attacking residents’ homes.

    Amirite?

    What is the alternative to the above?  More "calling for witnesses"?  What is the police supposed to do?

     

     

     

  4. Anonymous says:

    This should not be introduced to this country, period.  The defendant should have the right of being confronted by their accusers, and the prosecution should have the concrete testimony to stand by so there will be no questioning of the necessary verdict by the jury or the judge.  If people are so concerned about their anonymity, Cayman should set up a witness protection programme that can operate in the UK (and, therefore, provides a much larger population to blend with than Cayman does) for the witness(es) and any endangered family members. 

    • Anonymous says:

      NO – I do not believe that anyone should be forced to leave their home and family and country in order to provide evidence in court. That places too great a burden on people – not only the person/family forced to move, but also the community that is obliged to pay the cost for the relocation.

      I would not have any objection to offering relocation to another country as one OPTION for anyone asked to provide testimony. However I believe that for most people the OPTION of providing anonymous evidence would be preferred.

      Rights have to be balanced. The right to face one’s accuser has to be balanced with the right to personal security, the right to a normal family life, and other rights of the accuser. The rights to security of the community also need to be considered.

      In the present circumstances in which criminal thugs are paralysing our community with their violence and threats, that balance is absent.

      I fully support offering those asked to testify the option of testifying anonymously. In offering this support I am comforted by the knowledge that an accuser offering false testimony risks not only a loss of anonymity but also many years in prison for perjury- if they survive that long. 

  5. Shock and Awe says:

    My thoughts exactly, as when I read the statement saying officers would be "dismissed", I didn’t know quite what to make of it.  It is is serious offence.

    If the Commissioner is trying to instill confidence in the public to come forward with needed eye witness testimony that statement fell short.

    Although I’m not certain if being worried about officers relaying information can be used an overall excuse by those who DO have information.

    It could be that perhaps intimidation, a gang’s ultimate weapon against the public, has become more powerful that we have realized. 

    In that case it will be for the police to prove that they are in control of the situation. Then it becomes a Catch-22 situation, as they will need to apprehend, prosecute, and convict gang members without the advantage of witnesses. 

    In my mind, this is a miserable excuse for a terrorized public to use. This is warfare and someone saw something. 

    And someone has needed information to bring a prosecution forward.  And they areSILENT.

    Has anyone ever been to East L.A.??

    If people are fearful now watch what happens when gangs feel even more in control. Your life, and the lives of your family, are meaningless.

    Think about it.

     

  6. John Evans says:

    One of the key areas that must also be addressed is the protection of witnesses from hostile publicity in the media.

    Based on my experience, the Cayman Islands has effectively established a principle in law that a daily publication can identify witnesses long before a trial commences, publish specific details of their activities, attack their credibility and then, once the trial had actually begun, mis-report their testimony in court. That same publication may also publish a series of editorials quite clearly designed to influence the due process of law and interfere with an on-going police investigation – again identifying those involved.

    In the UK, any or all of these acts would result in action against the publication concerned. In the Cayman Islands it is apparently tolerated and that must change.

    How can anyone come forward to assist the police when they know for certain that if the investigation touches on certain people, or their friends, the next thing they may know is that their details are in the press?

    I am certain that Cayman Islands’ law contains exactly the same restrictions on media reporting of criminal trials, and the same witness safeguards, as UK law. The difference is that over here the police and the courts are not influenced by who writes the material but by what effect that material has on the course of justice.

    On the general issue of anonymity it is worth bearing in mind that Operation Tempura/Cealt took on board a vast amount of malicious information, mainly coming from one source or people close to it, that was given under a blanket guarantee that the informants would not have to testify in court. As we can see it all came to nothing and wasted a vast amount of resources. If the already over-stretched RCIPS go down the same road is it really going to aid law enforcement?

     

  7. Anonymous says:

    Balancing the many issues involved is indeed difficult and part of the process must involve not only an assessment of the limitations of the police, but also the extremely difficult tasks which they face.

    Requiring the police to demonstrate a negative as you suggest they should do, "demonstrating to the community that the RCIPS is not leaking information" is simply not doable within any acceptable time frame without a legislative change which you do not suggest. It is the required legislative change which will make it possible to convince at least a meaningful segment of the public that there are real penalties for police who disclose any information provided to the police by members of the public to any unauthorised person either within the police force or outside of it. 

    Posts made in response to earlier stories have noted that the prosecution of police officers for the perversion of justice in instances in which information is provided by officers to the criminal element may be possible, but this would bea difficult offence to prosecute successfully and I am not aware that it has ever occurred in Cayman.

    There is however a relatively straight forward legislative fix should any politician be awake enough to note, one for which Cayman already has a template in existing legislation.

    The Confidential Relationships Preservation Law already makes it a criminal offence for persons working in positions of trust in the financial services sector to disclose information to anyone not entitled to the information. It would be a very simple thing to mirror the application of this legislation to persons working in positions of trust in the police and related enforcement agencies. The relevant definitions would require only minor adjustments in order to create the required new legislation. 

    When Commissioner Baines is able to say to critics – not just that he will fire police officers disclosing information regarding police informants, but that he will fire officers involved AND that the police officer involved will be charged with a criminal offence which could result in 10 or more years in prison, then the public will have more confidence that information which they provide will be handled with appropriate care.