THE PRESS SATURDAY, DECEMBER 7, 1985. Blowing the cover

Press, 7 December 1985, Page 18

THE PRESS SATURDAY, DECEMBER 7, 1985. Blowing the cover

An established practice in the battle against serious and devious crime, particularly against the illegal traffic in drugs, has been the guarantee of anonymity for police undercover agents when the time comes for them to give evidence in court. The normal course has been for the Court to establish, to its own satisfaction, the bona fides and credentials of undercover police officers, who then give evidence in the names they have adopted for undercover activities and by which they have been known to the accused and the criminal world.

The practice now has been challenged successfully in the High Court and the new ruling would require full and accurate identification of undercover officers in future proceedings. This would negate the sound reason that has been advanced for keeping secret the identity of the undercover witnesses: disclosure lays undercover police officers and their families open to retaliation from people in the crime world. Vicious assaults and murder are an all too frequent part of the multi-million dollar drug scene in New Zealand and the undercover police officers run grave enough risks of discovery while doing the job, without them and their families becoming targets for revenge at the end of the day. Secondment to undercover duties has relied in the past on the understanding that anonymity would be guaranteed. Under the court ruling, it is most unlikely that the police can continue the undercover programme, first because the force is unwilling to increase the risk to its officers and their families, and second because very few officers would be prepared to tackle the job on terms so prejudicial to their safety. To abandon undercover work, however, would be a severe — some would say fatal — handicap to efforts to restrict the illegal drug trade. This is why urgent consideration is being given to changing the present law to allow the accepted, but apparently unlawful, practice of guaranteeing anonymity to continue during a court hearing. Changing the law is more than just a matter of convenience. It is only sensible to regularise a system that has worked satisfactorily, or at least without any notable shortcomings, and which is highly desirable for the safety of police officers and for the effective pursuit of drug traffickers. Nevertheless, the proposal probably will meet some fundamental objections from civil libertarians and legal philosophers. In the British philosophy of justice, it has long been a tradition that the accused may know his accusers. To be precise, the Crown is the accuser in the cases being considered;

nevertheless, the idea of accepting anonymous witnesses in court has an air about it that is quite different from merely forbidding the publication of witnesses’ names outside the court.

It might fairly be asked what is the value of an oath to tell the truth when the person taking the oath does not even have to give his or her name truthfully? How is it possible to contest the credibility of the witness if his name is not available? Where should the line be drawn on anonymity? Should it apply only to police officers? Should it rely on the gravity of the charge? What conditions, if any, should the Courts require before acceding to a request for continued anonymity? It must be admitted that any change to the law will have to be formulated carefully if it is not to create more shortcomings than it seeks to remedy. Many of these questions will be answered by referring to the results of past practice. One would have to look for examples of unreliable evidence being given by undercover police and connect this with the secrecy over their names. The fact that the practice has gone unchallenged for a long time implies that anonymity has not been the origin of improper evidence. There seems to be no reason to expect that a correctly named police officer will give more or less reliable evidence. In almost every case, the witness will be recognised by the accused and the question of name will be neither here nor there. Devising a satisfactory formula to meet conflicting requirements should not prove an insurmountable task. It is certainly worth the effort to find a solution, either within present legislation or by changing the law. On balance, more weight should be given to the prosecution of the war against drugs than to perpetuating constitutional niceties. The law is meant to protect society as well as the individual, and society is under greater threat from the evils of illegal drug trafficking and other damaging crime than the individual would be from any supposed loss of judicial purity that might arise from preserving the anonymity of a witness. In the long run, judges and juries will decide whether witnesses are telling the truth, and what weight should be given to their evidence. A witness’s demeanour while giving evidence and under cross-examination ultimately will make more impression on a jury or a judge than whether they are dealing with Thomas, Richard, or Harold. This is the way it should be and this is what matters, not the name by which the witness is known to the Court.