Speaking out – the use of anonymous witness evidence in anti-social behaviour cases
12th July, 2013
Housing Officers will regularly encounter this frustrating problem – residents complain about a tenant or their visitors causing nuisance but are too afraid of the potential consequences of giving evidence against them to allow the landlord to take Court action. It is understandable – after all, whilst proceedings are ongoing, they still have to live near to the tenant.
Do witnesses have to be named?
No – would-be witnesses can give anonymous witness statements. No names or addresses are given and the witnesses do not attend Court – their written statements are simply attached as an exhibit to the Housing Officer’s management statement.
Anonymous witness statements can however be challenged. The general rule of the Court is that, at trial, witnesses should come to Court and give oral evidence as to any fact raised in their written statement that needs to be proved.
Is there a way around witnesses appearing at court?
Court rules do allow for the admission of ‘hearsay evidence’ – i.e. written witness statements given without the witness attending a Hearing to give oral evidence. Section 4 of the Civil Evidence Act 1995 supplements this rule by listing a number of factors a Judge ought to take into account when deciding how much weight to give to hearsay evidence.
This was an issue of dispute in the recent case of Boyd v Incommunities Ltd [2013] EWCA Civ 756. Incommunities had sought possession against Boyd on grounds of anti-social behaviour – it had relied upon anonymous witness statements from neighbours, who had been reluctant to go on record due to fear of reprisals from Boyd.
What happened in the case?
The Judge granted a suspended possession Order; and made a number of findings as to the allegations of anti-social behaviour based upon those statements. Boyd appealed, claiming the Judge had failed to take into account the factors set out in the Civil Evidence Act; and had given too much weight to the anonymous statements.
The Court of Appeal dismissed the appeal. The Court found that, aside from the rules as to hearsay evidence, the practice of admitting anonymous evidence in this type of case was well established and had previously been approved by the Court of Appeal on at least two occasions. Further, although the first Judge did not expressly refer to Section 4 of the Civil Evidence Act, he had referred to the factors he ought to consider when deciding what weight to give the hearsay evidence.
What does this mean for me?
The case further reinforces that witnesses should be encouraged to give evidence to assist the landlord in anti-social behaviour cases; and that their identity can be preserved through anonymous statements if they are not willing to be named.
However, anonymous statements should be drafted carefully – considering any reference that might inadvertently identify the witness such as their gender, age, any children they have or how closely they live to the perpetrator.
How can Ward Hadaway help?
We can assist with the preparation or checking of witness statements, and provide in-depth advice on evidential and case management issues. Please get in touch.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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