This module is a resource for lecturers
The ability to provide effective protection to witnesses, as well as assistance and protection to victims, is critically important to ensuring the successful investigation into and prosecution of organized criminal groups. The protection of witnesses is included in article 24 of the Organized Crime Convention. The purpose of this provision is to protect witnesses in criminal cases from potential retaliation or intimidation. These measures can include physical protection such as relocation, and allowing witnesses to testify in a manner that ensures the safety of the witnesses.
Witnesses fall into three main categories:
- Justice collaborators (informants, other participants in the criminal conduct)
- Other types of witnesses (innocent bystanders, expert witnesses, and others)
Witness protection programme characteristics
A review of witness protection programmes in 12 countries (Australia, Canada, Germany, Ireland, Italy, Jamaica, Kenya, New Zealand, Philippines, South Africa, United Kingdom and United States of America) found some important similarities and differences in their operation (Dandurand and Farr, 2010). In particular:
- Most cases of witness intimidation resulting in witness protection were caused by individuals linked to criminal organizations.
- The majority of protected witnesses were criminally-involved police informants or criminal associates of defendants; the protection of non-criminal witnesses or victims was very rare.
- The level of risk faced by a witness dictates the nature and extent of the protective measures that must be taken.
- Most witness protection programmes are managed by national or regional police forces, and most programmes are legislatively based.
- Generally, the media and the public understand the necessity of and support the existence of witness protection programmes.
- Better oversight, evaluation, and protection of the interests of witnesses is identified as a need in most jurisdictions.
- Sufficient open-source information does not exist to accurately compare the effectiveness of witness protection programmes across jurisdictions.
- Few attempts have been made to systematically evaluate witness protection programmes in any jurisdiction.
The reason for specific procedures for witness protection is to permit a witness to give testimony in a judicial setting, or to cooperate with law enforcement investigations, without fear or threat of intimidation or reprisal. Such protection is essential to maintaining the rule of law.
Protection may be as simple as providing a police escort to the courtroom or a separate waiting room. Other judicial protection measures include providing for confidentiality of information about the protected witness, closing the court, sealing records of the trial, offering temporary residence in a safe house, use of voice distortion and facial disguise, or using video conferencing for testimony.
There are also cases, however, where cooperation by a witness is critical to the prosecution, but the power and control of the organized criminal group involved are so far-reaching that additional measures are required through a formal witness protection programme. In these cases, resettlement of the witness under a new identity in a new, undisclosed place of residence in the same country or even abroad may be the only viable alternative to insure safety of the witness.
Types of witness protection programmes
The UNODC carried out a review of available formal protection programmes for witnesses in criminal proceedings in 43 Member States. Of these, 14 (33%) jurisdictions had full-fledged witness protection programmes that were able to relocate and change the identity of threatened witnesses, four jurisdictions (9%) had enacted new legislation providing for the establishment of witness protection programmes, but the programmes were not yet operational. Eighteen jurisdictions (42%) had no established programmes but had some form of security measures, such as police or procedural in-court protection, and 7 jurisdictions (16%) had no witness protection measures at all (UNODC, 2008).
Significant differences exist among countries in their legal traditions, political environment, stage of development, society and culture, and levels and types of crime (Dammer and Albanese, 2014; Reichel, 2017). These differences reflect the type and extent of protection that each country provides.
Protection of court personnel and other key actors in organized crime cases
It is important to consider also whether protections exist for court personnel. In most countries, it is only in exceptional circumstances that judges, prosecutors, undercover agents, expert witnesses, interpreters, transcribers or jurors are included in witness protection programmes. Intimidation or threats against their lives are considered to be related to the performance of their duties. They can qualify for special police protection, job transfers or early retirement, but their protection differs in nature from the protection measures intended for at-risk witnesses.
The similarities among national witness protection programmes can be summarized as follows:
- There is a combination of witness protection, mitigated punishment, and testimony;
- There is an almost exclusive focus on the small number of critical witnesses who offer to change sides and cooperate with the prosecution but demand protection to stay alive;
- The use of relocation and re-identification -based on almost the same criteria (type of crime, threat, suitability, voluntary participation) -as a last resort in ensuring witness security.
Some of the most important elements for the establishment and operation of witness protection programmes include clear criteria and policies (UNODC, 2008). Examples of the kinds of policies provided are summarized below:
- A clear legal or policy basis for designing a methodology and carrying out operations;
- Adequate financing that is stable and continues for several years;
- Strict personnel qualifications and vetting procedures;
- Protection of the programme's integrity;
- Close coordination with judicial and other government authorities engaged in law enforcement and intelligence, prison administration, public housing, health and social security services, among others;
- Accountability and transparency that conform to the programme's special security needs;
- Obligation of government authorities to provide appropriate assistance, safeguarding the information disclosed to them;
- Ability to offer assistance to national and international law enforcement agencies.
In addition to the procedural issues in operating a formal witness protection programme, there are also several crucial administrative issues that require attention. For example, protecting witnesses through a formal witness protection programme is more difficult than it may appear. In some cases, the witness' relatives or others close to them are threatened or harmed in an effort to intimidate the protected witness. Spouses and children who are relocated with the witness also suffer, because they must give up everything and move to a new place with a new identity without their extended family. Three primary problems faced by those in the relocation programmes are money, secrecy, and home (Earley and Shur, 2002; Kelly, Schatzberg and Chin, 1994; Violet and Partington, 2011).
- Never enough money: Many justice collaborators are spendthrifts who may not have skills to budget or save their money and may lack the discipline to work a regular job. These skills have to be learned.
- Perpetual secrecy: Even though offenders are told not to tell anyone their new location, there is a tendency to tell parents, siblings, or friends. This information can leak and threatens the security of the person in the programme.
- Never going home: There is an innate desire to return home ultimately to see family, friends, and the old neighbourhood. The risk of doing this is very high, and the witness protection programme must work very hard to convince offenders of the need to leave the past behind forever.
These three aspects of human nature make witness relocation very difficult to manage because of the need to be continually vigilant in protecting the witness and their families from retaliation, and from a witness' own desire to return to the way things were. The witness protection programme requires a high level of motivation on the part of protected witnesses to change their lives entirely, and this is often difficult to do.
Costs of witness protection programmes
Costs of the witness protection programme involve both the costs of relocation and assistance provided to these witnesses, and also the possibility that protected witnesses who are criminals may commit new crimes after being relocated. There is also concern for protecting witnesses who are foreign nationals, which involves cost for the national authorities as well as safety and domestic responsibility (Abdel-Monem, 2003; Trotter, 2012).
Regional perspective: Pacific Islands Region
Fiji Criminal Procedure Act 2009
PART 20 PROTECTING VULNERABLE WITNESSES
[CP 295] Directions as to mode by which a vulnerable witness's evidence is to be given
- (1) Before the commencement of any trial, a prosecutor may apply to a Judge or Magistrate for directions as to the procedures by which the evidence of a vulnerable complainant or witness is to be given at the trial.
- (2) The Judge or Magistrate shall hear and determine an application made under subsection (1) in chambers, and shall give each party an opportunity to be heard in respect of the application.
- (3) The Judge or Magistrate may call for and receive any reports from any persons whom the Judge or Magistrate considers to be qualified to advise on the effect on the complainant or the vulnerable witness of giving evidence in person in the ordinary way or in any particular mode provided for in section 296.
- (4) In considering what directions (if any) to give under section 296 the Judge or Magistrate shall have regard to the need to minimise stress on the complainant or the vulnerable witness, while at the same time ensuring a fair trial for the accused.
- (5) A Judge or Magistrate may hear and consider an application by either party made during the course of any trial for an order prescribing the procedures by which the evidence of a vulnerable complainant or witness is to be given in the trial.
[CP 296] Modes in which evidence may be given by vulnerable complainants or witnesses
- (1) On an application under section 295, the Judge or Magistrate may give any of the following directions in respect of the mode in which the evidence of a vulnerable complainant or witness is to be given at the trial -
- (a) where a videotape of the evidence was shown at a preliminary hearing, a direction that the evidence be admitted in the form of that videotape, with such exclusions (if any) as the Judge or Magistrate may order under subsection (2);
- (b) where the Judge or Magistrate is satisfied that the necessary facilities and equipment are available, a direction that the complainant or vulnerable witness shall give his or her evidence outside the courtroom but within a Court precinct, or from some other suitable location, the evidence being transmitted to the courtroom by means of closed circuit television or such similar quality secure audio visual electronic means;
- (c) a direction that, while the complainant or vulnerable witness is giving evidence or is being examined in respect of his or her evidence, a screen, or one-way glass, be so placed in relation to the complainant or vulnerable witness that -
- (i) he or she cannot see the accused; but
- (ii) the Judge or Magistrate, the assessors and counsel for the accused can see the person;
- (d) where the Judge or Magistrate is satisfied that the necessary facilities and equipment are available, a direction that, while the complainant or the vulnerable witness is giving evidence or is being examined in respect of his or her evidence, he or she be placed behind a wall or partition, constructed in such a manner and of such materials as to enable those in the courtroom to see the complainant or witness while preventing the complainant or witness from seeing them, the evidence of the complainant or witness being given through an appropriate audio link;
- (e) where the Judge or Magistrate is satisfied that the necessary facilities and equipment are available, a direction that -
- (i) the complainant or vulnerable witness gives his or her evidence at a location outside the court precincts; and
- (ii) that those present while the complainant or vulnerable witness is giving evidence include the Judge or Magistrate, the accused, counsel, and such other persons as the Judge or Magistrate thinks fit; and
- (iii) that the giving of evidence by the complainant or vulnerable witness be recorded and that the complainant's evidence be admitted in the form of that recording with such excisions (if any) as the Judge or Magistrate may order under subsection (2).
- (2) Where a recording of the complainant's or vulnerable witness's evidence is to be shown at the trial, the Judge or Magistrate shall view the recording before it is shown, and may order excised from the recording any matters that, if the evidence were to be given in person in the ordinary way, would be excluded either -
- (a) in accordance with any rule of law relating to the admissibility of evidence; or
- (b) pursuant to any discretion of a Judge or Magistrate to order the exclusion of any evidence.
- (3) Where a recording of any evidence is to be shown at the trial, the Judge or Magistrate shall give such directions under this section as the Judge or Magistrate may think fit relating to the manner in which any cross-examination or re-examination of the witness is to be conducted.
- (4) Where the witness is to give his or her evidence in the mode provided for in subsection (1)(b) or (d), the Judge or Magistrate may direct that any questions to be put to them shall be given through an appropriate link to a person, approved by the Judge or Magistrate, placed next to the witness, who shall repeat the question to them.
- (5) Where the witness is to give his or her evidence at a location outside the court precincts, the Judge or Magistrate may also give any directions under subsection (1)(c) and (d) that the Judge or Magistrate thinks fit.
- (6) Where a direction is given under this section, the evidence of the witness shall be given substantially in accordance with the terms of the direction; but no such evidence shall be challenged in any proceedings on the ground of any failure to observe strictly all the terms of the direction.