Grew & Ors, R v

Factual and Procedural Background

The opinion concerns applications by the Defendant relating to several procedural and evidentiary issues in a criminal trial. Specifically, the Defendant sought (a) under common law, permission for witnesses identified by codes and soldiers to give evidence anonymously and screened from the accused, jury, public, and press; (b) alternatively, special measures directions under the Criminal Evidence (Northern Ireland) Order 1999 to have these witnesses screened and their evidence heard in private; and (c) a variation of the place of trial. The court reviewed the applications amidst concerns about significant and unexplained delay by the prosecution in making these applications, which raised issues of compliance with court rules and procedural fairness.

Legal Issues Presented

1. Whether witnesses can be permitted to give evidence anonymously and be screened from the accused, jury, public gallery, and press under common law or under the Criminal Evidence (Northern Ireland) Order 1999.
2. Whether special measures directions should be granted to protect these witnesses, including screening and private hearings.
3. Whether the court should exercise its discretion to vary the place of trial due to concerns about fairness, safety, and logistical constraints.
4. How to address the inordinate and inexcusable delay by the prosecution in making these applications and the court’s discretion to extend or abridge time limits in the interests of justice.

Arguments of the Parties

Defendant's Arguments

• Delay: The Defendant argued the delay in making the applications was inordinate, inexcusable, and inadequately explained, reflecting a culture of non-compliance by the Public Prosecution Service with court rules.
• Anonymity and Screening: The Defendant contended that permitting witnesses to give evidence anonymously and be screened should be approached with scrupulous care, emphasizing the potential prejudice to the Defendant, including the inability to know the identity of accusers and the risk of unfairness.
• Screening Prejudice: The Defendant submitted that screening witnesses from the jury and holding private evidence sessions would prejudice the defence, potentially leading to adverse jury speculation and impairing the fairness of the trial.
• Venue Change: The Defendant raised concerns about the adequacy of courtroom accommodation and fairness in the current venue, suggesting a change of venue might be necessary.

Prosecution's Arguments

• Witness Safety and Operational Effectiveness: The prosecution relied on detailed evidence from law enforcement and Ministry of Defence representatives to assert that the safety of witnesses and their families would be endangered if their identities were disclosed, and that operational effectiveness would be impaired.
• Necessity of Screening: The prosecution argued the necessity of screening witnesses to protect their safety and effectiveness, emphasizing the exceptional nature of such a measure but asserting it was justified in this case.
• Financial and Training Implications: The prosecution highlighted significant financial costs and lengthy timeframes required to train replacement personnel if witnesses’ identities were revealed.
• Venue Concerns: The prosecution noted risks to witness safety and the impact on police resources related to the current venue, supporting a change of venue.

Table of Precedents Cited

Court's Reasoning and Analysis

The court acknowledged the significant delay by the prosecution in applying for special measures and anonymity, noting that such delay was inordinate, inexcusable, and inadequately explained. The court stressed that a culture of non-compliance with court rules should not be tolerated and that time limits are essential to ensure efficient and fair case management. While the court has unfettered discretion to initiate or vary special measures directions even without an application, this discretion must be exercised cautiously, respecting Parliament’s intent that applicants comply with procedural time limits.

Regarding anonymity and screening, the court recognized the potential disadvantages to the Defendant but accepted that the law permits witnesses to give evidence anonymously if there are real and justified fears of serious consequences from disclosure. The court emphasized the need for careful balancing of fairness between prosecution and defence, ensuring that appropriate safeguards are applied so that the trial remains fair. The personal safety of witnesses and their families, as well as operational effectiveness, were considered legitimate grounds for anonymity and screening, supported by detailed evidence from prosecution witnesses.

However, the court noted that screening witnesses from the jury is an exceptional measure and that there was no precedent for such screening from the jury in this case. The court expressed concern about potential prejudice to the Defendant arising from such screening, including adverse jury speculation and the psychological impact on witnesses. It found that the prosecution had not sufficiently demonstrated the necessity of screening in the manner proposed.

On the issue of venue, the court accepted that fairness concerns and logistical limitations, such as inadequate courtroom accommodation and police resource implications, justified consideration of a change of venue to ensure a fair trial.

Holding and Implications

The court made the following determinations:

• On delay: The court underscored that the delay was unjustified and that applications made out of time should only be granted in exceptional circumstances, which were not present here.
• On anonymity: The court recognized the discretion to permit anonymous evidence where justified by real safety concerns and operational effectiveness, provided the trial remains fair with appropriate safeguards.
• On screening: The court found that screening witnesses from the jury and holding evidence in private was not sufficiently justified and posed risks of unfair prejudice to the Defendant.
• On venue: The court accepted that a change of venue may be necessary to secure a fair trial and accommodate logistical needs.

The direct effect of the decision is to impose strict adherence to procedural time limits for special measures applications, to permit witness anonymity only where justified and with safeguards, to reject unwarranted screening from the jury, and to allow venue variation where fairness or practical considerations require it. The opinion does not establish new legal precedent but applies existing principles to the facts before the court.