Details of a proposal that would
allow certain witnesses in criminal investigations and trials to testify
anonymously have now been laid out in the Criminal Evidence (Witness Anonymity)
The Cayman Islands Legislative
Assembly is expected to consider the bill as early as Wednesday.
The bill would allow anonymous
witnesses to be used in criminal investigations related to the following
allegations: murder, attempted murder, manslaughter, robbery, attempted
robbery, and rape. Any firearms-related offences committed in connection with
those crimes can also qualify for the use of anonymous witnesses by either
authorities or criminal defendants.
To obtain a qualification for an
investigation anonymity order, either the commissioner of police or Cayman Islands attorney general would have to make
application to a magistrate. The magistrate’s decision on the application can
be appealed to a Grand Court
judge by the applicant.
According to the bill, the
applicant for the anonymity order does not have to give notice of that application
to the individual suspected of committing the offence, or their attorney.
The magistrate reviewing the
application for anonymity may make a decision without a formal hearing.
The magistrate would have to
determine before granting an anonymity order that the person being protected
has “reasonable grounds for fearing intimidation or harm if identified as a person
who is or was able or willing to assist the criminal investigations…”
Also, the suspect in the crime must
be at least 16 years old. Anonymous witnesses statements cannot be used against
someone younger than 16.
In the case of gang activity, the
magistrate would have to determine that the majority of people in the group
involved in the offence were at least 16 years old before issuing an anonymity
Anyone who discloses the identity
or statements of someone protected by an anonymity order in a criminal
investigation can be punished by up to a four year prison sentence upon
Under the bill, a court may also
make a witness anonymity order to protect the identity witnesses testifying
before a court.
Those measures can include: that a
witness’s name be withheld or stricken from court records disclosed to any
party in the proceedings; using a pseudonym for the witness; not asking
questions of the witness which might lead to their identification; the
screening of the witness in a courtroom; and the use of a modulator to disguise
the voice of a testifying witness.
The court would not necessarily be
authorised to shield the witness’s identity, by use of a screen for example,
from a judge or from a trial jury.
Witness anonymity requests can be
made to the court by either the prosecutor or the defendant.
Before granting a witness anonymity
order, the court would have to consider whether it is needed to prevent harm to
a witness or to the public’s interest. A judge would also have to consider the
circumstances of each case and determine whether issuing such an order would be
“consistent with the defendant receiving a fair trial”.
Again, the court may hear parties
requesting the anonymity order in the absence of the defendant or their
attorneys “if it appears to the court to be appropriate to do so” in the circumstances.
Read more about this story in this
week’s versions of the Caymanian Compass…