Strict approach to witness protection orders

The High Court has refused to order that the identities of certain witnesses should be protected and that their evidence should be heard in private: Cherney v Deripaska [2012] EWHC 1781 (Comm). The court accepted that it had the power to make such orders where necessary to protect the interests of a witness but, for most of the witnesses concerned, concluded that there was not sufficient evidence to show that there was a real risk of violence against them.

The decision suggests that very compelling evidence will be needed before the court will agree to make a witness anonymity order or sit in private to protect witnesses. It seems that orders will not necessarily be granted where a witness faces danger because of giving evidence; the question is whether any danger would be reduced by the orders sought. Where the witnesses' identities have already been published, or are known to the relevant parties, it may be difficult to obtain an order.

The decision is however subject to appeal, for which the Court of Appeal has granted permission. The hearing has been fixed for 5 September.

Background

The underlying claim relates to the ownership of a multi-billion dollar stake in Russian Aluminium, or Rusal, the world's largest aluminium producer. The defendant alleges that the claimant was involved with Russian organised crime groups ("OCGs") to which the defendant had been forced to pay substantial sums of protection money.

The defendant applied for witness protection orders in respect of the evidence of twelve individuals whom he intended to call to give evidence at trial. In particular, he sought orders under CPR 39.2 that the witnesses' identities must not be disclosed and that the court would sit in private when their evidence was heard. This was on the basis that the witnesses were at risk, or might reasonably fear that they were at risk, that the OCGs might use violence against them or their relatives in order to prevent them giving evidence or to exact revenge against them.

Under CPR 39.2(4) the court may grant an anonymity order if it considers non-disclosure necessary to protect the interests of the party or witness in question. Under CPR 39.2(3) the court may hold a hearing or part of a hearing in private in various circumstances, including where it considers this necessary in the interests of justice.

Decision

The judge (Andrew Smith J) refused the applications in respect of most of the witnesses.

He accepted that there was power to sit in private to protect the interests of witnesses; this was not explicit under CPR 39.2(3) but the expression "interests of justice" was wide enough to include the interests of witnesses. He also accepted that the witnesses were worried and frightened about giving evidence, but concluded that for most of the witnesses there was no real risk that they would be the targets of violence because of their evidence.

The evidence of one witness (witness A) was more significant than the others, but not such as to justify the inference that there was a "real or immediate threat to his life or the lives of his relatives" or that their rights under the European Convention on Human Rights required the orders to be made. There was not sufficient evidence to show that orders would be in the interests of justice or necessary to protect the interests of the witness.

In any event, the judge said that what was important was not simply whether a witness faced a risk or danger because he or she was to give evidence, but whether (and if so how far and in what ways) any risk or danger would be reduced by witness protection orders. Here the witnesses' identities were already known to the claimant, and had already been published on a Russian legal news website (which could still be found via search engines although the article had been removed). Accordingly, any criminal or other person interested could probably find out their identities. The judge said that this consideration reinforced his decision in respect of witness A: even if he or his relatives faced some risks because he was to give evidence, the orders would not sufficiently reduce the risks to justify restrictions on the openness of the trial.

An order was however granted in respect of one witness, whose evidence was that he had belonged to an OCG. The judge thought his circumstances made him particularly vulnerable to attacks, and therefore an order was justified. The Court said it was not necessary to decide whether his Convention rights also required that the court give him protection.

Comment

This decision emphasises the importance of the principle that court proceedings should be conducted in public and, subject to the pending appeal, illustrates the difficulty of justifying any departure from it.

It may be seen as ironic that the one witness for whose benefit the court was persuaded to grant an order was the witness who had, on his own evidence, been involved in the criminal activities of the OCGs. The judge considered an order to be justified in his case, in part because of the "predictable reaction of criminals when those of their own ranks speak about their activities".

Note: The appeal in this case was refused on 5 September.