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You are here: BAILII >> Databases >> Crown Court for Northern Ireland Decisions >> McKenna & Ors, R. v [2009] NICC 44 (22 May 2009) URL: http://www.bailii.org/nie/cases/NICC/2009/44.html Cite as: [2009] NICC 44

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Neutral Citation No. [2009] NICC 44	Ref:	HAR7481
Judgment: approved by the Court for handing down	Delivered:	22/5/2009
(subject to editorial corrections)*

IN THE CROWN COURT IN NORTHERN IRELAND ______ BELFAST CROWN COURT _______ THE QUEEN -v- DAMIEN WILLIAM McKENNA, GARY TOMAN AND SEAN GERARD PATRICK McCONVILLE ________

HART J

[1]      The prosecution has applied for witness anonymity orders under the Criminal Evidence (Witness Anonymity) Act 2008 (the 2008 Act) for witnesses referred to as Soldiers B to J who it wishes to call as witnesses upon the trial of the defendants who are charged with conspiracy to cause an explosion, possession of explosives with intent and possession of explosives in suspicious circumstances on a date unknown between 28 March 2007 and 6 April 2007 at Lurgan, County Armagh.
[2]      The applications are that:

(i) The witnesses be referred to as Soldiers B to J respectively when giving evidence.

(ii) The witnesses' names and other identifying details are withheld and removed from materials disclosed to any party to the proceedings.

(iii) The witnesses are not asked questions of any specified description that might lead to the identification of the witnesses.

(iv) That Soldiers B-J be screened from all persons in the court except the judge, the prosecution and the defendants legally qualified representatives.

[2]      The applications were based upon the evidence of William Geoffrey Byatt, a senior civil servant in the Ministry of Defence; certificates dated 11 November 2008 and 1 April 2009, together with an annex to each certificate, from the Right Honourable Bob Ainsworth MP, Minister for the Armed Forces; Detective Superintendent David McConville and Detective Constable Galbraith. In addition the prosecution rely upon a number of statements made by Soldiers B to J in which they refer to their wish to have their identities concealed.
[3]      These applications are opposed by each of the defendants, and I have had the benefit of extensive written and oral submissions from counsel for the prosecution and the defence and whilst I do not propose to refer to all of the details of these submissions I have taken them into account. Before considering the various issues that arise in this case it is necessary first of all to describe the evidence upon which the prosecution seek to rely in order that the applications can be placed in their proper context.
[4]      The evidence may be said to fall within a number of different chronological stages. The first stage relates to events on 29 March 2007 when it is alleged that Soldiers B, C, D and E were carrying out surveillance in Lurgan. Soldier B's evidence is that whilst carrying out surveillance at about 8.30 pm on 29 March 2007 he saw the defendant McKenna on the Levin Road for about 10-15 seconds in the street lighting when he was about 30 metres away. He recognised McKenna as he had known him by name and to see for over six months. At that time McKenna was on his own, but a Primera car with no lights on was parked nearby. About 15 minutes later he saw McKenna about five metres away. McKenna was with two others, and all three were walking countrywards on the Cornakinnegar Road. When cross-examined by Mr Devine for McKenna at the committal proceedings Soldier B agreed that McKenna looked directly towards him at one point, made eye contact with him, and at that time he, Soldier B, was visible to McKenna and not concealed from McKenna in any way.
[5]      Soldier E was also carrying out surveillance observations on the Cornakinnegar Road on that date starting at about 9.05 pm. During his period of observation he saw a group of people in a field nearby, but was unable to say how many people were in the group, nor was he able to identify their appearance, or say what activity they were engaged in. He observed them by using night vision equipment. This field is the field in which the device to which I shall later refer was subsequently found. He saw one person run across the field to the hedge adjacent to the Cornakinnegar Road, this person seemed to look left and right and then run back across the field to the group. This person ran to and from the fence crouched over. Shortly afterwards the group moved parallel to the railway line for a short distance and then he lost sight of them. Later he saw a group of persons walking on a footpath on the Cornakinnegar Road who then crossed the road at the junction with North Circular Road at an open grassy area. The group thinned out and he saw that there were four persons who walked across an open area towards terraced houses and a car park.
[6]      Soldier D was carrying out surveillance at about 10.00 pm when he saw four males whom he was unable to identify walking from the Cornakinnegar Road onto the North Circular Road, and then onto rough ground in Lurgantarry, and then onto a car park. He saw a Primera SAZ 3423 parked near where the four males were standing. All four males got into the Primera, it flashed its headlights 5-6 times and then drove off.
[7]      Soldier C was driving along the Antrim Road at approximately 10.13 pm when he saw four males walking along the road, he only had them in his sight for a short period of time. He drove past and then returned approximately five minutes later. He saw a Primera waiting to turn right at the junction of Kilwilkie estate on the Antrim Road. Although the rear windows were steamed up he was able to see the silhouettes of four people inside the car.
[8]      Before turning to the next chronological stage of the events it is convenient to refer at this stage to the evidence of Soldiers F-J. Part of the prosecution evidence is that the area was being monitored by what Mr Kerr referred to as an "aerial platform", film from which is a prosecution exhibit. In their statements Soldiers F, G, H and I give evidence about the film and the continuity of the recording and copies that were made of it. Soldier J was in command of the soldiers and carried out a debrief of them afterwards.
[9]      The second chronological stage relates to the stopping and searching of the Primera SAZ 3423 by police at 10.19 pm adjacent to the junction of Antrim Road and Antrim Court. The three defendants and a fourth male were in the car.
[10]      The accused McKenna was in the front passenger seat, his jeans below the knees were observed to be very wet and soiled, his boots were very wet and dirty and his hands were dirty. These conditions appeared to be fresh. A circuit tester and a number of small cables were found in his right front jacket pocket, and a pair of cream gloves were found in his left front jacket pocket. In his right front trouser pocket were found a pair of wire cutters, and in his left front trouser pocket a pair of wire strippers. McKenna is a plasterer by trade.
[11]      Subsequent forensic examination of swabs taken from the jeans and jacket worn by McKenna revealed the presence of PETN, and PETN was also found on the gloves taken from his front left hand jacket pocket. PETN was also found on a glove recovered from a coat on the rear offside seat of the vehicle. The conclusion of Mr McMillan of FSNI is that PETN is an explosive compound, and the high level of PETN found on the gloves from McKenna's front left hand jacket pocket indicate a direct contact of the gloves with PETN on a sample of explosive, or a surface heavily contaminated with PETN.
[12]      McConville was the driver of the car and in a subsequent interview said that he did not know who owned the vehicle and that he had taken it for a drive around the estate. When the car was stopped his trousers were also observed to be wet up to just below the knees, his boots were also wet and muddy and his hands were muddy.
[13]      A pair of gloves found in a pocket of a coat worn by McConville were also linked to him by DNA analysis. The gloves were found to have fibres linking them to the gate of the field where the explosive device was found to which these charges relate. There are also fibres linking the gloves to the mortar and mortar shell.
[14]      Toman was a rear seat passenger in the Primera sitting on the passenger side, and a DNA profile matching Toman was obtained from the coat in the car in which the glove was found with residues of PETN on it. Fibres matching a black sock found under the driver's seat of the car were also found on the mortar tube.
[15]      The third chronological stage in the sequence concerns what one witness describes as "a general area sweep" of the field adjacent to Malone's Bridge which had been under observation by Soldier E. This general area sweep of the field was carried out on 30 and 31 March 2007 and did not result in the discovery of any device.
[16]      The fourth and final chronological stage concerns what was described as "a high assurance area search" of the same field carried out on 5 April 2007. This resulted in the discovery of an improvised direct-fire launch tube and improvised mortar, both of which were covered in dead grass and vegetation. The explosive device was found to contain the explosive compounds PETN and RDX.
[17]      The defendants, who had been arrested and questioned on 29 March 2007 after the car was stopped, were then released but were re-arrested and questioned. McKenna and Toman were re-arrested on 16 April 2007, and McConville was arrested by arrangement at his solicitor's office on 17 April 2007. Each made essentially no comment responses throughout their interviews.
[18]      Before turning to the evidence given in support of these applications it is appropriate that I should first of all give my reasons for the brief ex tempore ruling I gave on 26 March 2009 upon the preliminary objection taken by Mr Devine and Mr Rodgers as to the admissibility of the Minister's Certificate. The first certificate, as did the second certificate of 1 April 2009, set out the reasons advanced in support of the prosecution application. The second certificate is in the same terms as the first, except that it corrects an error in the first certificate where a reference was made to the resident magistrate which should have been a reference to the Crown Court judge. The second certificate also added Soldier J to the list of witnesses for whom the various orders are sought. Soldier J was not originally a witness in the case. The annex to the second certificate adds to a list of what are described on both as "recent significant dissident terrorist-related incidents" the murder of the police officer in Lurgan on 9 March 2009, and the murder of the two soldiers, together with the wounding of two further soldiers and two civilians, in Antrim on 7 March 2009.
[19]      Having set out in some detail the reasons for the applications each certificate concludes with the following paragraphs:

"(15) Disclosure of the identities and appearance of the witnesses would cause real harm to the work of their unit which would in turn damage national security. It would also endanger the lives of the witnesses. It is my firm view that the witnesses should be screened from the press, public and the defendants and that they should be referred to by ciphers so that their names are not publicly disclosed. The individual soldiers can identify themselves to the judge.

(16) In making this claim I accept that the Court has final responsibility for determining questions of disclosure but if the Court requires further assistance from me in order to reach its own determination, I am ready to provide it."

[20]      Mr Devine's objection was that the contents of the certificate are hearsay and that there had been no application to admit the certificates as hearsay under the provisions of Part III of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 (the 2004 Order).
[21]      As Mr Kerr QC pointed out on behalf of the prosecution, it has been the practice for many years in both civil and criminal cases where the Government wishes to assert a claim that the public interest should be taken into account by the court when making decisions about the disclosure of documents, to place before the court those views, and the detailed reasons for them, in the form of a certificate or affidavit. Two cases which illustrate this practice are Belfour v Foreign and Commonwealth Office [1994] 2 All ER 588, and Doherty v The Ministry of Defence [1991] 1 NIJB 68.
[22]      As there is no difference in the substantive content between the two certificates I shall simply refer to them as "the Certificate". Much of the evidence contained in the Certificate in the present case is undoubtedly hearsay as it expressly, or impliedly, relates to matters concerning the training and operational deployment of these soldiers, matters which are outside the Minister's personal knowledge, as can be seen from in particular paragraphs [3] and [9] where he states that "I am informed" etc. Nevertheless, the reception by courts of such certificates is of such longstanding that the propriety of the practice cannot be questioned. Courts have recognised for many years that it is appropriate to receive from the responsible Minister the Government's view as to the nature of the public interest that is connected with the issue that the court is called upon to determine. Whether this is done in the form of a certificate, an affidavit, or, as in a criminal case, a witness statement, is a matter for the court to decide. That evidence may be given in this way appears never to have been questioned and, as the authorities to which I have referred demonstrate, it is a long-established practice. Insofar as it is necessary to place the pre-existing practice in the context of the hearsay rule I am satisfied that production of evidence in this way should be regarded as an exception to the hearsay rule.
[23]      Mr Devine's argument is that, save for those rules of law (of which this is not one) expressly preserved by Article 22(1) of the 2004 Order, Article 22(2) has abolished "the common law rules governing the admissibility of hearsay evidence in criminal proceedings".
[24]      Whilst that is undoubtedly the case, that does not mean that the evidence may not be admissible. Article 18(1)(d) of the 2004 Order provides that:

"In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if –

(d) The court is satisfied that it is in the interests of justice for it to be admissible."

The effect of Article 118(1)(d) is to preserve:

"Without altering in substance certain common law exceptions to the rule against hearsay. These exceptions now operate as part of the statutory framework, although they retain their common law character and are applied as before."

See Murphy on Evidence 10^th Edition at pages 248 and 249. This provision creates what Professor Spencer aptly describes as the "inclusionary discretion" discussed in Chapter 5 of his Hearsay Evidence in Criminal Proceedings.

[25]      I am satisfied that a ministerial certificate, or for that matter a witness statement, in which matters which the prosecution seek to rely upon as being in the public interest may properly be regarded as an exception to the hearsay rule and admissible by virtue of Article 18(1)(d) of the 2004 Order, subject to the court having regard to the factors set out at Article 18(2) of the 2004 Order. Not only is this a well-established method of communicating the Government's contentions in such matters, but in the context of the present applications the court is required by s. 4(3)(b) of the 2008 Act to consider whether a witness anonymity order is "necessary in order to prevent real harm to the public interest", and therefore the prosecution is entitled to place such evidence as it considers appropriate before the court in order to support its application for these orders, including the views of a responsible minister as to what the public interest requires.
[26]      When considering whether to admit the Minister's Certificate by virtue of Article 18(1)(d) of the 2004 Order, I propose to bear these considerations in mind, in addition to the nine factors specifically enumerated in Article 18(2). The statement and its contents have obvious probative value and are important in the context of the case as a whole. The circumstances in which the statement was made, that is that it was made after advice by a Minister, is relevant to Article 18(d),(e) and (f). In addition Mr Byatt was available to give evidence, and in the event did give evidence, about a number of matters referred to in the Certificate, and therefore to that extent Article 18(2)(g) was satisfied in that some of the evidence was given orally, and provided the defence with the ability to cross-examine him, and therefore challenge at least some parts of the Certificate. That is relevant insofar as Article 18 2(h) is concerned. Many of the matters referred to in the annex are matters of such notoriety concerning recent terrorist offences in Northern Ireland that the court would in any event be entitled to take judicial notice of them. The first certificate was served on the defendant on 20 October 2008 with the application for the witness anonymity orders. It is apparent from the judgment of District Judge White that the certificate from the Minister made for the committal proceedings was before him at the committal stage, and therefore the defence have had ample time to consider and respond to the assertions therein. That is relevant to Article 18(2)(h).
[27]      Taking all of these matters into account I am satisfied that it is appropriate to regard the Minister's Certificate as being admissible by virtue of Article 18(1)(d) of the 2004 Order because I am satisfied that it is in the interests of justice that this information should be placed before the court. It is trite law, but nevertheless is necessary to repeat, that the decision as to whether witness anonymity orders should be granted, and if so in what form, remains a matter for the court to determine as the extracts from the Certificate which I have already quoted make clear.
[28]      Whilst the Certificate is admissible by virtue of Article 18(1)(d) of the 2004 Order, the Lord Chief Justice's Practice Direction in relation to applications for witness anonymity orders requires that:

"Any notice including a witness statement which is sought to be admitted as hearsay evidence under Articles 18 and 20 of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 should also contain the requisite 'hearsay' notice as required by the applicable court rules."

Whilst the Certificate may not fall within the definition of a "witness statement" in the sense that expression is used in the Practice Direction, it is analogous thereto and I am satisfied that the same practice should apply.

[29]      In any event, Rule 44O of the Crown Court Rules provides that any reliance upon Article 18(1)(a) to (d) of the 2004 Order involves the serving of a notice.

"(1) This rule shall apply where a party wishes to adduce evidence on one or more of the grounds set out in Article 18(1)(a) to (d) of the 2004 Order and in this rule, such evidence is referred to as 'hearsay evidence'."

Therefore both the Practice Direction and the Crown Court Rules require a notice to be given of the intention to rely upon Article 18(1)(d), and no such notice was given in the present case. However, the evidence was given in a form that has been accepted by the courts for many years, it was apparently given without objection at the committal in a similar form, and I am satisfied that the defence have suffered no prejudice whatever by the absence of a hearsay notice. Rule 44O(8) states that:

"The Court may, if it considers that it is in the interests of justice to do so –

(a) Dispense with the requirement to give notice of intention to adduce hearsay evidence."

[30]      I was satisfied that it was in the interests of justice to dispense with the requirement in the present instance for the reasons I have given and I therefore permitted the Certificate to be given in evidence.
[31]      A further evidential objection related to the form in which the statements purporting to come from Soldier D of 18 and 25 March 2009, and of Soldier H, had been made. In each case the statement was on a standard "statement of witness" form used in criminal proceedings in this jurisdiction. It therefore contained the usual printed statement stating that the contents of his statement were true, and provided for the date to be entered and for the document to be signed by the member by whom the statement was recorded or received, as well as being signed by the witness. None of the three statements were signed by the member by whom the statement was recorded or received, and in the case of Soldier H it was also undated. As required by the Lord Chief Justice's Practice Direction these witness statements accompanied hearsay notices lodged under the provisions of the 2004 Order.
[32]      Mr Mulholland on behalf of McConville, in arguments adopted by Mr Devine for McKenna and Mr Rodgers for Toman, argued that the evidence should not be received in this form. I ruled against the application and said I would give my reasons later which I now do.
[33]      That a witness wishes to remain anonymous will always be because either (a) the witness fears for his or her safety, or that of his or her family, if identified; or (b) because the future effectiveness of the witness as an undercover law enforcement officer or soldier will be in peril; or both. So far as any element of fear is concerned, it is well-established that first hand hearsay as to the state of mind of a witness is admissible, see Neill v. North Antrim Magistrates' Court [1992] 4 All ER 846. The 2008 Act does not prescribe that this information is to be placed before the court in support of such an application in a particular form, and so such evidence could be given orally by someone who has spoken to the witness, but the Practice Direction requires a witness statement to be served, and prescribes that this must be accompanied by the appropriate hearsay application, as was done in the present case. This ensures that the opposing party, usually the defendant, is able to consider, and if necessary, oppose the application for a witness anonymity order. To require the witness to attend in person would be inappropriate and would defeat the purpose of the application. As the Lord Chief Justice pointed out in the analogous circumstances of an application for a special measures direction under the provisions of the Criminal Evidence (Northern Ireland) Order 1999 (the 1999 Order):

"It certainly would be anomalous that they should be required to give the evidence themselves since this would defeat the purpose of protecting witnesses in the vulnerable category to which the complainants belong."

See JA's Application [2008] NI 74 at [26]. A similar view has been expressed in relation to applications under s. 116(2)(e) of the Criminal Justice Act 2003, the equivalent of the 2004 Order, in relation to applications brought under Article 20 of the 2004 Order. See Davies [2006] EWCA Crim 2643. I am satisfied that the same principle should be applied to applications for witness anonymity orders, and that the witness should not be required to attend before the court in person to support a witness anonymity order. Provided the court has no reason to question the authenticity of the views attributed to the witness, the court must take into account the views of the witness in whatever form they are conveyed to the court.

[34]      The form in which the views of the witness are conveyed to the court, and the views of the witness, go to weight rather than admissibility. In the present case Detective Constable Galbraith's evidence was to be that he had spoken to both Soldier D and Soldier H and that these views were in fact the views of the soldiers concerned. The absence of a date in relation to the statement of Soldier H is unimportant because the witness statement from Constable Galbraith dated 25 March 2009 said that he had spoken to Soldier H by telephone on 24 March 2009, and on its face the statement from Soldier H is consistent with its having been prepared as a result of that conversation.
[35]      That the statements were not signed by the officer who received them is not fatal to the admissibility of these statements. The requirement for such a signature relates only to the committal proceedings and it is not therefore essential in such circumstances as these, though it may be desirable if an issue arises as to the authenticity of the statement. For these reasons I ruled that the statements should be admitted in the form in which they were placed before the court.
[36]      I now turn to the evidence given in support of these applications. Mr Byatt, a senior civil servant who has the policy lead in the Ministry of Defence for PII business, explained the cost of training what he described as "a small number of very highly trained specialist soldiers" was in the region of £200,000 per individual, compared to £30,000 to train an ordinary infantry soldier to the point where he joins his battalion. He also described the selection process as being a rigorous one which many fail. After selection, there is rigorous and arduous training, with a number falling out of the training process.
[37]      Whilst he contended that it would be more difficult to recruit soldiers for this role if their identities and appearances were not protected whilst giving evidence, he conceded that he was unable to say whether undercover soldiers having given evidence unscreened in other cases had affected recruitment. He also said that whilst anonymity might assuage the soldiers' concerns to a small degree, for them to be screened from the general public would be a significant safeguard.
[38]      He also said that in the event that the requested precautions were not granted the soldiers "chain of command" will not require them to give evidence if they do not wish to, and the final decision whether or not to give evidence in such circumstances will be left to the soldiers. Mr Byatt also said that the reference to the "resident magistrate" in the Certificate, when it should have said "the judge" was "a disgraceful mistake". As Mr Mulholland pointed out in his final submissions, whilst the Certificate of 1 April 2009 corrected that error, paragraph 3 of the Certificate did not refer to Soldier J, although paragraph 4 does. I am satisfied that this oversight does not prevent the court considering the application of Soldier J, but Mr Mulholland justifiably described this error as "slipshod". Greater care should be taken in drafting such documents in future.
[39]      Evidence in support of the applications was also given by Detective Superintendent McConville of the PSNI. In his witness statement of 18 June 2008 he explained that:

"Their deployments are carefully managed and evaluated. In many instances they operate alone in hostile environments, gathering evidence and intelligence on experienced and dedicated criminal and terrorist suspects. This includes close personal deployment on suspects. Their anonymity in the public domain is an essential criteria to their continued involvement in this aspect of police operations".

[40]      During cross examination he elaborated on this, saying that if the witnesses were to be unscreened whilst giving evidence it would affect their future effectiveness in this jurisdiction, as such soldiers would be a significant and attractive target for terrorists.
[41]      In his statement of 18 June he said:

"Each of the witnesses has confirmed to me that they have a real fear of their identity being revealed in court and explained how this would impact on their personal safety and that of their wider family circle."

This plainly infers that he had personal contact with Soldiers B to I (because J was not a prosecution witness at that stage), but during cross examination by Mr Mulholland he said that he had short conversations with two of the witnesses, probably in 2007. So far as the remainder were concerned, the information came to him from police officers who had spoken to each. He said that the statement could have been better phrased, but I consider it was inaccurate and misleading in this respect.

[42]      Evidence as to the attitude of the witnesses themselves was given by Detective Constable Galbraith, and I am satisfied that he has spoken to each of the soldiers, or was present when Detective Sergeant Cross did so. Soldiers B to I all made statements, either in 2007 or 2008, about the events of 29 March 2007 or following days. With the exception of F, each statement concluded with the following passage:

"I am willing to give evidence in court in relation to this matter on the basis that my identity is protected and appropriate security measures are in place".

F went somewhat further, saying

"I am willing to give evidence in court in relation to this matter on the basis that my identity is protected and appropriate security measures are taken because I would be concerned for my safety".

[43]      Applications in similar terms to the present applications were granted by District Judge White for Soldiers B to I for the committal proceedings, although it appears from the committal papers that only Soldiers B, C, D, E and F actually gave evidence.
[44]      Following the committal the prosecution made the present applications, which now include Soldier J in respect of whom a notice of additional evidence dated 11 February 2009 has been served. Surprisingly in view of the earlier applications in relation to the other soldiers, and in contrast to their statements, Soldier J's statement of 11 February 2009 made no reference to any desire on his part to be anonymous or to be screened. These matters were referred to in a further statement by Soldier J recorded by Detective Constable Galbraith on 5 March 2009.

"I am willing to give evidence in court in relation to this matter on the basis that my identity is protected and appropriate security measures are taken. I want it protected because my future employability in my current role in the UK and in particular Northern Ireland and any other employability within and outside the military would be jeopardised. Also, I have fears for the personal security of myself, my family, friends and colleagues if my identity is disclosed".

[45]      A statement by Soldier I in essentially the same terms was also recorded by Detective Constable Galbraith on 5 March 2009. Statements were made by each of the other soldiers on various dates in 2009. Some were in similar terms to those of I and J, others were less detailed. For example B said on 21 January 2009 –

"Also I am still happy to give evidence in court in relation to this incident providing my identity is protected. Without this protection in place I fear for my life and my colleagues".

[46]      Two further matters were stated by Mr Kerr on behalf of the prosecution in answer to requests made by defence counsel. The first was that of the nine soldiers, two have what he described as "a substantial connection with Northern Ireland", although the individual soldiers and the nature of their connection was not stated. The second was that so long as any of the soldiers concerned remain with their unit they can be required to serve in Northern Ireland if circumstances require that, and it cannot be determined in advance whether that would be necessary. I should also point out that the Certificate states that G:

"Although not currently serving with a specialist unit, may do so again in the future".

I am satisfied that as G may serve in this capacity again, no distinction should be made between that witness and the other soldiers, nor was it suggested that any distinction should be made.

[47]      Before considering the evidence in the light of the provisions of the 2008 Act, it is appropriate to say something about the principles governing the application of the 2008 Act. I was referred by counsel to a number of decisions predating the 2008 Act, notably the decision of the House of Lords in R v. Davis [2008] 3 All ER 461. However, it is plain that the intention of the 2008 Act is to provide a statutory framework for the granting of anonymity in response to the decision in Davis, obviously in response to the view expressed by some of their Lordships that, as Lord Rodger put it, that:

"Parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial".

Decisions of the courts before the 2008 Act are therefore of limited value.

[48]      The provisions of the 2008 Act have now been considered in a number of decisions in England and Wales, notably by Lord Judge CJ presiding over a five judge court in R v. Mayers and others [2009] 2 All ER 145. Mayers provides a helpful and authorative exposition of the provisions of the 2008 Act, and the manner in which they should be interpreted and applied, and I propose to merely summarise those parts of the judgment that apply to the facts of this case.
[49]      In Mayers at [30] to [35] Lord Judge dealt in detail with the problems that arise in the case of police and comparable witnesses whose identity has been concealed from the defendant, particularly witnesses working under cover. He did not refer to soldiers performing undercover surveillance duties. However, as I will explain later, I am satisfied that such soldiers are specially trained, and to adopt Lord Judge's words in Mayers at [30], their usefulness would be dissipated and their safety would be in danger were they to be recognised as such if they were carrying out surveillance in certain areas of Northern Ireland. I am satisfied that such witnesses should be regarded as being within the general category of undercover witnesses as described by Lord Judge.
[50]      The following principles applicable to the circumstances of this case can be extracted from Mayers (and I include the paragraphs numbers by way of reference to the more extended passages of the judgment).

(1) An anonymity order should be regarded as the special measure of last practicable resort. [9].

(2) That the witness might prefer not to testify, or would be reluctant or unhappy at the prospect, is not enough. It must be clear that the witness will not testify. [26].

(3) So far as disclosure is concerned, disclosure must be complete, and the prosecution must be pro active in considering disclosure, focusing closely on the credibility of the anonymous witness and the interests of justice; and the defence statement provides the benchmark against which the disclosure process must be examined. [21].

(4) Conditions A, B and C must all be met before a witness anonymity order can be made. [17].

(5) "Necessary" in Conditions A, B and C requires the court to be satisfied to the highest standard. Even if an order is "necessary" it cannot be made unless the court is satisfied that the trial will be fair. [37].

(6) Whether the evidence of the anonymous witness (es) may be the sole or decisive evidence incriminating the defendant must be taken into account when deciding whether conditions A to C are satisfied. If it is, that is not conclusive whether those Conditions are met. Nevertheless, it directly impinges on whether Condition B may be met. [23].

(7) There are often sound operational reasons for maintaining the anonymity of undercover witnesses, and the court would normally be entitled to follow the unequivocal assertion by an undercover witness that without an anonymity order he would not be prepared to testify. [30].

(8) For the true identities of undercover witnesses to be revealed, or for them to be exposed to a defendant, or his colleagues, or to anyone else in court, would often create a real risk to their own safety, and that of their colleagues. In any event, their potential for future use in similar operations would be reduced, if not extinguished, something which is itself harmful to the public interest. [32].

(9) Although the credibility of a security operation may be challenged, it will be unusual for the defendant to be disadvantaged by ignorance of the true identity of the witness. Whether their integrity, or their accuracy is an issue, full cross examination can proceed on the basis that any matter of criticism can be directed to the witnesses using the name or names which they have assumed. [35].

[51]      The anonymous witnesses may be said to fall into two groups. The first group consists of Soldiers B, C, D, E and F who were carrying out surveillance. The second group consists of Soldiers G to J who were responsible for subsequently copying or transferring recorded material, or in the case of J, monitoring transmissions made by the soldiers and later debriefing Soldiers B, C, D, E and F according to the deposition of Soldier C. As the relevance of the evidence to be given by the two groups is different I shall consider them separately where appropriate, and for convenience will refer to them as the first and second group respectively.

Condition C

[52]      In Mayers and in R v. Powar [2009] EWCA Crim 594 it was suggested that it is perhaps more logical to consider Condition C first, and that is the course I intend to follow. I am satisfied that it is important that all of the soldiers in both the first and second group should testify. The evidence which they can give, whether of observations, or in the case of those whose evidence is confined to the continuity of the recording, is plainly fundamental to the part of the prosecution case that seeks to establish the movements of the defendants before the Primera car was stopped by the police. Indeed there was no suggestion that this evidence was not important, and so far as the soldiers in the first group in particular are concerned, their oral testimony is obviously essential, not least so that they can be cross examined on behalf of the defendants.
[53]      Section 4(5)(d) provides that it is necessary that the witnesses would not testify if an anonymity order is not made. Mr Devine for McKenna, in submissions adopted by Mr Rodgers and by Mr Mulholland, submitted that this condition had not been met, emphasising that not one of the soldiers had actually said that they will not give evidence if the orders sought for anonymity and screening are not granted. I am satisfied that the soldiers (with the exception of J) have made it clear for a long time that their willingness to give evidence is dependent upon their being anonymous and being screened, and Soldier J has also done so more recently. It would, in my opinion, be unreal to parse their statements in the way that the defence suggest, and I am satisfied that the witnesses have made it clear that they will not testify unless their identity is protected. I accept Mr Byatt's evidence that it would be for each witness to decide whether he or she gives evidence. I am satisfied that it is necessary in the interests of justice to make the order and that Condition C is met.

Condition A

[54]      I now turn to Condition A. Sections 4(3)(a) and (6) are concerned with the safety of the witness:

"(3) Condition A is that the measures to be specified in the order are necessary –

(a) in order to protect the safety of the witness or another person or to prevent any serious damage to property, or

(b) in order to prevent real harm to the public interest (whether affecting the carrying on of any activities in the public interest or the safety of a person involved in carrying on such activities, or otherwise).

(6) In determining whether the measures to be specified in the order are necessary for the purpose mentioned in subsection (3)(a), the court must have regard (in particular) to any reasonable fear on the part of the witness –

(a) that the witness or another person would suffer death or injury, or

(b) that there would be serious damage to property,

if the witness were to be identified."

[55]      The evidence of Mr Byatt and Detective Superintendent McConville, and the assertions of the witnesses themselves, relate to both headings. Much emphasis was placed upon the danger to the soldiers, their families, friends and colleagues in the future were they to be identified as undercover soldiers. Of the nine witnesses as already explained two are said to have a "substantial connection with Northern Ireland" but which of the nine have such a connection has not been stated, nor, understandably, has the nature of that connection. For the purposes of the present case I do not consider that it has been established that either anonymity or screening are necessary to protect the safety of these witnesses, or their friends or families, in so far as the witnesses live, or carry out their duties, outside Northern Ireland. No evidence has been given of any problems experienced outside Northern Ireland by any witnesses who have given evidence unscreened in Northern Ireland or elsewhere. The situation may be different so far as the two unidentified witnesses who have a substantial connection with Northern Ireland are concerned, but as I do not know which of the witnesses the two in question are I could not be so satisfied in respect of them.
[56]      However, the applications in the present case appear to me to fall to be considered under s. 4(3)(b) which relates to situations where it is necessary to prevent real harm to the public interest, and the manner in which that harm might come about is by affecting the carrying on of any activities that are in the public interest, or by affecting the safety of someone involved in carrying on such activities.
[57]      I am satisfied that it is in the public interest that those who work under cover, whether they are soldiers, policemen or others, have their identity concealed, because once their identity is revealed their future usefulness as such is gravely impaired, and in all likelihood completely destroyed. Their usefulness is entirely dependent upon them not being known to be soldiers, policemen or whatever. This is self evident, but if authority is needed for that it is to be found in Mayers. It is also recognised in the Convention jurisprudence in Van Mechelen v. Netherlands (1997) 25 EHRR 647 at [57] where it was stated that:

"On the other hand, the Court has recognised in principle that, provided that the rights of the defence are respected, it may be legitimate for the police authorities to wish to preserve the anonymity of an agent deployed in undercover activities, for his own or his family's protection and so as to not impair his usefulness for future operations".

[58]      In the Minister's Certificate it is stated that:

"The unit the witnesses were part of often operates in situations of extreme personal risk which has, in the past, resulted in a number of unit members losing their lives. This accepted risk is absolutely necessary for the detection and prevention of acts of terrorism, but it must be minimised wherever possible. To that end we regularly seek to protect their identities, training, operational methods and intelligence".

In his statement Detective Superintendent McConville described how "in many instances they operate alone in hostile environments". Although that statement was prepared in June 2008 I have no doubt that there remain areas of Northern Ireland where undercover soldiers or police would be in grave danger if they were recognised as such. That there remain individuals with the will and ability to murder members of the security forces has been recently and tragically demonstrated by a number of incidents referred to in the annex to the Certificate, culminating in the murders of two soldiers, and wounding of four other individuals, at Massereene Barracks on 7 March 2009, and the murder of a police constable in Craigavon on 9 March 2009. Whilst such episodes continue, it must be recognised that there will be a continuing need for the deployment of soldiers such as these witnesses in Northern Ireland, and I am satisfied that it is necessary in the public interest that their operational effectiveness in that role, and their safety, be protected. I am satisfied that Condition A is met.

Condition B

[59]      I now turn to Condition B which relates to the fairness of the trial if the orders are granted. Although s. 5(1) requires the court to have regard to the considerations set out in s. 5(2), as well as such other matters as the court considers relevant, when considering Conditions A to C in the present case the main thrust of the defence submissions was directed at the s. 5(2) considerations in the context of Condition B, that is to the fairness of the trial, and I will consider those matters in turn.
[60]      Section 5(2)(a) recognises that the defendant has a general right to know the identity of a witness in the proceedings. The present case is very different to Davis, where there was a concern that because the defendant was unaware of the identity of the witness he was unable to effectively explore with the witness his case that false evidence was procured by a former girlfriend with whom he had fallen out. See Lord Bingham at [32]. In such circumstances there are strong grounds for saying that a defendant is prejudiced by his ignorance of the true identity of the witnesses. However, in the present case none of the defence counsel were able to explain how ignorance of the soldiers' names would harm the defendants' defence. Indeed Mr Devine "hesitantly" accepted that for the identities of some of the witnesses not to be revealed may not be prejudicial. Mr Mulholland also acknowledged that it was not necessary that the defendant should know the names and addresses of the witnesses, and I am satisfied that is the position. Whatever may be the position in cases such as Davis, in the present case the evidence of the second group of soldiers is largely of a formal nature, subject to the possible question of the destruction of notes which may be raised with Soldier J in particular because he conducted the debriefing, and I shall return to the destruction of the notes in due course. The evidence of the first group is more incriminating of McKenna in particular, but I cannot envisage how ignorance of the names of these witnesses can prejudice the defendants in any way, or prevent them from having a fair trial.
[61]      The defendants submitted that to screen the soldiers from the public, and in particular from the defendants, would be unjustified. So far as screening the witnesses from the public is concerned, I am satisfied this would not impinge in any way upon the ability of the defendants to defend themselves, nor upon the fairness of the trial. However, were the soldiers to be exposed to public view I have no doubt that this would seriously impair their usefulness in the future and endanger their safety were they to serve in an undercover role in Northern Ireland for the reasons I have already given. I am therefore satisfied that it is necessary that all of the soldiers should be screened from the public whilst giving evidence.
[62]      The main thrust of the defence submissions was that none of the soldiers should be screened from the defendants. However, so far as the second group are concerned, because they were not involved in actual surveillance that night their evidence, with the possible exception of J, is less controversial than the evidence of those who were, and I can see no prejudice to the defendants from not being able to see Soldiers G to J whilst those witnesses give evidence. The witnesses in the first group are in a somewhat different position because they were actually involved in surveillance that night. However with the exception of B, none purports to identify any of the defendants. Leaving B to one side for a moment, it is very difficult to see how the defendants being able to see the other soldiers can assist their defence in any way. As there is a prima facie case against the defendants that they were engaged in a terrorist crime, for the soldiers appearances to be revealed to the defendants would impair their usefulness and could place their safety at risk were they to serve in Northern Ireland in the future.
[63]      B is in a different position because during cross examination at the committal he accepted that he and McKenna engaged in eye contact. I can see that there may be circumstances in which McKenna takes issue with what B says, and that because it appears McKenna saw B he should be able to challenge whether B was there and what he saw. In such circumstances I accept McKenna is entitled to see his accuser, and therefore any witness anonymity order in respect of Soldier B will not screen him from the defendants. Although B only implicates McKenna, I do not consider it practicable or appropriate to screen him from one defendant only. So far as Soldiers C to J are concerned I am satisfied that it is necessary that they be screened from the defendants, and that to do so is consistent with the defendants having a fair trial.
[64]      Section 5(2)(b) requires the court to have regard to the extent to which the credibility of the witnesses would be a relevant factor when the weight of his or her evidence comes to be assessed. As has been pointed out in Mayers at [22], and in Powar at [86], there is a distinction between credibility and reliability or accuracy. A perfectly credible witness may not be reliable or accurate despite being an honest witness, and honesty and its bearing on reliability have to be considered under s. 5(2)(e). Nevertheless, although credibility and reliability are distinct concepts, there is a degree of overlap between them (as the court recognised in Powar at [96]) and so it is convenient in the circumstances of this case do deal with s. 5(2)(b) and (e) together.
[65]      All of the soldiers were members of the same unit, and were deployed on surveillance duties. They were not accidental witnesses to the events they describe, and so their evidence is credible in that limited sense. The defence suggested that the very fact that they were part of the same unit renders their evidence questionable. As the written submissions for McKenna put it:

"The soldiers were engaged in a planned operation against targets they perceived to have military agendas directly at odds with their own. They cannot therefore be compared with an independent witness who has relevant evidence to give . . .".

For Toman, Mr Rodgers' supplementary submissions made a broadly similar point, namely:

". . . the witnesses form a unit with a common purpose the "defeat of terrorism". They do not operate in a sterile environment but are exposed to "intelligence" and "background information" which is capable of influencing their interpretation of their observations. The presentation of a "group picture" can lead to an individual tailoring his or her evidence to fit the "group picture"".

[66]      At this stage of the proceedings these objections, without more, are of little if any validity, amounting as they do to a blanket condemnation of any member of an organised and disciplined organisation involved in the prevention and detection of crime. The trial judge will be fully aware of the relevance of such points when assessing the evidence of such witnesses, and in any event in the present case the members of the first group, with the exception of B, do not purport to identify any of the defendants. Of greater significance is the reliance by each of the defendants upon the destruction by the soldiers of any notes they made. Those who made depositions said that was the practice of their unit at the time. Whether that is correct, and what significance should be attributed to it, is a matter that the defendants will no doubt explore, and as one of the Defence Statements says that this will be the subject of an abuse of process application I say nothing more about the point, save that there is no suggestion that either the anonymity or screening of the soldiers will in any way inhibit a full exploration of this issue, and I have been unable to conceive of any such handicap to a defendant if anonymity and screening is permitted.
[67]      So far as dishonesty of the witnesses is concerned, the prosecution are obliged to disclose any materials suggesting that any of the witnesses has either a tendency or a motive to be dishonest, and none has been placed before the court. Nor is there any material that the defence can point to that suggests that any of the soldiers is likely to have any relationship with the defendants by virtue of his or her undercover surveillance work, other than B's statement that he had previous sightings of McKenna and knew who he was. Taking s. 5(2)(b) and (e) together, I am satisfied that there is no reason to believe that either (a) the credibility (as opposed to the reliability) of the soldiers would be a relevant factor in assessing their evidence; or (b) that they have a tendency or motive to be dishonest in this case.
[68]      Section 5(2)(d) requires the court to consider whether the evidence of the witnesses could be properly tested without their identity being disclosed or their being screened. So far as all of the soldiers are concerned, it is extremely difficult to see how withholding their names or any details which might otherwise identify them can have any bearing whatever on testing their evidence in this case when they were carrying out surveillance, certainly in the case of Toman and McConville when the solders do not identify them in the way that Soldier B purports to recognise McKenna, and their defence statements consist of a general denial of the charges. The position so far as B's appearance is concerned may be different, and I will consider the question of screening all or some of the soldiers when I deal with s. 5(2)(f). So far as testing the soldiers' evidence without disclosing their identities, as opposed to their appearance, is concerned I am satisfied that s. 5(2)(d) has been met.
[69]      Section 5(2)(c) requires the court to consider whether evidence given by the witness might be the sole or decisive evidence implicating the defendants, and all defence counsel asserted that the surveillance evidence of the soldiers was the sole or decisive evidence against their clients. It may be a difficult exercise in many cases to identify whether the evidence of the anonymous witness can be said to be decisive where there is other evidence against a defendant. That difficulty may be more acute when, as in the present case, the other evidence is circumstantial in nature and consists of different strands of evidence of varying degrees of strength. In the present case it is unnecessary to explore difficulties such as these because the forensic evidence linking the defendants to the device found in the field is entirely separate from the surveillance evidence, even in the case of B. I do not propose to rehearse every detail of the forensic evidence described earlier. The surveillance evidence is important, and strengthens the prosecution case, but it is certainly neither the sole nor the decisive evidence against any of the defendants as is apparent from the forensic and circumstantial evidence against them.
[70]      The condition of McKenna's jeans, boots and hands, the electrical items and tools found on his person when he was a plasterer by trade, and the high level of PETN found on the gloves from his pocket provide a strong link to the components of the device found in the field. The condition of McConville's trousers, boots and hands, the DNA link to the gloves found in the pocket of his coat, and the fibres linking him to the gate of the field and to the device found in the field also provide a strong link to the device. The DNA evidence linking Toman to the coat in which were found residues of PETN links him to the device. Further strands in the circumstantial case against all three are that fibres found on the mortar tube match a black sock found in the car, and that all three are found in the same vehicle when each can be linked to the device found in the field. I am therefore satisfied that the evidence of the soldiers cannot be said to be evidence which might be the sole or decisive evidence against any of the defendants.
[71]      This brings me to s. 5(2)(f). I do not consider, nor has it been suggested, that it would be reasonably practicable to protect the identities of any of these witnesses other than by making a witness anonymity order concealing their identities and screening them.
[72]      For these reasons I am satisfied that Conditions A, B and C have been met; that it is necessary that witness anonymity orders be made in the following terms, and that the orders are consistent with the defendants' receiving a fair trial. The orders will be as follows.

(i) The witnesses are to be referred to as Soldiers B to J respectively when giving evidence.

(ii) The witnesses' names and other identifying details are to be withheld and removed from materials disclosed to any party to the proceedings.

(iii) The witnesses are not to be asked questions that might lead to the identification of the witnesses without leave of the court.

(iv) That Soldiers C to J be screened from all persons in court except the judge, the court staff, the prosecution and the defendants' legally qualified representatives.

(v) That Soldier B be screened from all persons in court except the judge, court staff, the prosecution, the defendants' legally qualified representatives and the defendants.

[73]      Section 3(2)(a) provides that the prosecution must inform the court of the identities of the witnesses unless the court otherwise orders. In this jurisdiction the usual practice has been for the identity of the witnesses to be written by the witness on a piece of paper, handed to the judge and then placed in an envelope which is then sealed, marked with the pseudonym of the witness, and retained in the court records. In the past that has usually been done at the trial itself, but in view of s. 3(2)(a) it is appropriate that this should be done when the application is made so that at the trial the witness can be shown the name and asked to confirm that he or she is the witness concerned. The name can then be replaced in a new sealed envelope for retention by the court. The prosecution must now arrange for this to be done.