Safeguarding the witness

Published November 28, 2020
The writer is former deputy chief constable of West Yorkshire Police, UK.
The writer is former deputy chief constable of West Yorkshire Police, UK.

THERE is frequent reference to and comment on witness protection, or more accurately the lack thereof, but one is often left wondering whether the issue is properly understood in the first place. In an editorial published on Nov 20, this paper has rightly highlighted the need for witnesses to be protected in order for justice to be better served.

It is a truism that the criminal justice system needs the participation of witnesses for justice to be administered. Witnesses must feel secure and confident in order to give the best evidence. Sadly, while it is true for other jurisdictions also, the prevalence of witness intimidation, coercion and murder in Pakistan is at a level where the criminal justice system cannot function effectively. When witnesses are murdered within court precincts, even in courtrooms as in one recent case, it is time to worry.

Solutions proffered are churned out — new identity, relocation, etc — as though they provide a magic solution, with little thought being given to practicalities, financial and human resources, not to mention the impact on the protected witnesses and their families. In Pakistani culture, where the concept of family goes well beyond the immediate family, the problems are multiplied many times. Imagine the implications of relocating a family far from their home without the proper support, financial or practical, that serves not only their daily requirements but also their emotional and psychological needs.

Something is seriously wrong when channels broadcast footage shot in police lock-ups and give details of victims.

So if that is the problem, what is the solution? It is neither simple nor cheap, is the answer.

Many law-enforcement agencies around the world recognise that there is a serious threat to the security of their information, and this, as much as anything else, can compromise the safety of victims and witnesses. This threat is not always external — arguably the internal threat is much more serious. For example, it is quite common to note both in print and electronic media the details of victims, witnesses and even informants — with a total disregard not only for due process and legal proceedings but also the safety of the witnesses involved. One has to ask how the media acquired that information, and even more importantly, why and how the law-enforcement agency revealed that information. One knows there is something seriously wrong when television channels are broadcasting footage shot in police lock-ups and giving details of victims, including in sexual offence cases.

Rather than thinking in terms of witness-protection programmes involving new identities and relocation (which may be necessary in some cases) it is more beneficial to think in terms of witness safeguarding which would include witness protection. All elements of the criminal justice system must identify the points of vulnerability for the witness as they make their journey through the process from the start of the investigation to the post-conviction period. This then allows witness needs to be identified, which in turn are required to be addressed by the most relevant agency.

Whilst there is existing legislation that is specifically designed for the protection of witnesses, the reality is it is not much more than a paper law whose implementation is virtually non-existent due to lack of budgetary provisions, operational procedures and training.

Some basics security measures can be implemented at little cost and they may suffice in most cases. This can include basic security advice and some target hardening of the witnesses’ places of business and residences. However, even before these measures are considered, there is a need to identify what other measures can be taken by the criminal justice system to safeguard witnesses. For example, giving evidence from behind screens or via video link, thus not revealing the identity of the witness, are measures that can help to mitigate risks. If the legislation does not provide for these measures, then the legislature needs to take urgent action.

So, what if that isn’t enough? The more complex, resource-intensive measures necessary in the more serious cases where the threat cannot be mitigated by the foregoing measures also need to be available. However, these measures require a national agency to take ownership, supported by the relevant legislation and appropriate budgetary provisions, to coordinate the work of local witness-protection units. None of this will be of any use if the security measures in place are not sufficiently robust to safeguard the information. If agencies are not seen to be capable of keeping secure the personal information of victims and witnesses (or worse still, are unable to do so due to corrupt practices) then no witness-protection programme can succeed.

Of course, for any such scheme to work the witness has to agree to participate and enter into a contract with the responsible agency. For their part the agencies involved — from law enforcement to the prosecutors to the judiciary — have to play their part and be open and honest with the witness as to what is available, achievable and in what circumstances. False or misleading promises will benefit no one and only serve to discredit the agencies and endanger lives.

In order to address the issues highlighted it is suggested that the following actions be taken:

— Develop a national witness-safeguarding strategy, which includes a specific witness-protection scheme.

— Develop an operational framework and policy guidance that meets the strategic aims of the witness-safeguarding strategy.

— Legislate as necessary to meet the aims of the witness-safeguarding strategy and support the associated policy guidance.

— Make reasonable budgetary provisions to implement the witness-safeguarding strategy.

There is plenty of good practice on how this can be achieved but it is not simple or cheap. But then neither is life.

The writer is former deputy chief constable of West Yorkshire Police, UK.

Published in Dawn, November 28th, 2020

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