The High Court recently ruled “it is highly undesirable to exclude family members from the hearing room, and should not be done unless it is absolutely necessary”. This judgment arose from the application for the judicial review of a coroner’s decision regarding screening of witnesses giving evidence in an inquest (The Queen (on the application of) Claudia Hicks and Others and the Senior Coroner for Inner North London and Others (Defendants)[2016]EWHC 1726 ( Admin)).

Threats were made via social media to the lives and safety of the police officer witnesses involved in a car chase which resulted in the death of Henry Hicks. There were concerns that, if the family members were to see the witnesses, then they would pass on descriptions of them to others who might seek to harm them.

Due to the limited space and facilities in the St Pancras Coroner’s Court, arrangements were put in place to relay the proceedings by live audio feed to an overflow room in a building nearby, where the family would be present. They would be excluded from the principal court room whilst the four officers were giving evidence.

However, the High Court ruled it was appropriate for the witnesses to be screened from the family and arranged for the inquest to take place in the Royal Courts of Justice, meaning the witnesses could be screened but still give evidence in the same room as the family.

The protection of any vulnerable witnesses should always be considered, both when discussing with the coroner who should give evidence and in subsequent arrangements for their appearance in court. Browne Jacobson has successfully obtained court orders to allow witnesses to give evidence from behind screens and also on an anonymous basis.

Rule 18 Coroners (Inquests) Rules 2013 (Evidence Given from Behind a Screen) states that the coroner, when contemplating such a direction, must consider all the circumstances arising, in particular:

  • any views expressed by the witness or any interested person
  • whether it would be in the interests of justice or national security
  • whether it would impede the effectiveness of the questioning of the witness by an interested person or their representatives. 

If a witness is to be screened, then this must be balanced against the fundamental principle of open justice. Once a reason for anonymity had been established on an objective basis e.g. fears for personal safety of the witness or his/her family, that has to be balanced by the need not to turn the inquiry into a secret hearing, 'the risk factor against the open justice factor'.

In re Officer L in 2007, the House of Lords stated, in the context of a public inquiry in Northern Ireland, this common law balancing test could also take into account factors such as:

  • the seriousness of the applicant’s fear and its impact upon him or her
  • the reasons for the applicant’s fear
  • the likely effect of granting anonymity reducing the applicant’s fears
  • the effect upon the public’s perception of the impartiality of the inquiry
  • the likely effect on the inquiry’s ability to arrive at the truth, if it refused or granted the application in whole or in part.

If a real or immediate risk to life is established, then the state’s Article 2 positive duty to protect the life of the witness must also be considered, which could result in the anonymity of the witness, or of screening.

Hence it may be possible to allow witnesses to give evidence from behind a screen if there is a real fear for their safety or their lives. However, witnesses do need to understand this is the exception rather than the rule. It is certainly not an option generally open to all witnesses - much as many would prefer it was. Ideally, in the context of an inquest or trial, such concerns are raised in good time so they can be dealt with at a pre-inquest review or case management conference as is appropriate, but not left to such a late stage as to disrupt proceedings.

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