Tighter rules on when witnesses can claim anonymity in court were issued yesterday to ensure that trials are not undermined because defendants do not know the identity of witnesses.

The guidelines are expected to lead to some prosecutions being dropped after law lords expressed concern over the widespread use of anonymous witnesses.

Witnesses may seek anonymity only if they can show a “reasonable fear of injury or death or damage to property”. If a witness’s credibility is the “sole or decisive” evidence, then granting anonymity would deny some defendants from having a fair trial, the Director of Public Prosecution, Sir Ken Macdonald, has told prosecutors.

In those circumstances, prosecutors should not allow the case to proceed, he said.

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The DPP’s guidance went out to prosecutors along with broader guidelines from the Attorney-General to prosecuting authorities.

It was drawn up in line with emergency legislation rushed through by Jack Straw, the Justice Secretary, which received Royal Assent yesterday. This was drawn up after a law lords’ ruling that the anonymity of a witness could underline the defendant’s right to a fair trial.

The CPS has identified about 580 cases involving anonymous witnesses — of whom 50 were members of the public and the rest were police or other officials, Sir Ken said recently.

The cases where anonymity was chiefly an issue totalled some 30 — such as those connected with Operation Trident, an investigation of “black-on-black” shootings, rather than the vast majority involving undercover police or security services.

Prosecutors will have to evaluate the whether a witness’s fear is reasonable: this can be based either on a specific threat, or the climate of fear in the environment where they live.

Prosecutors must also have to be satisfied that the police have evidence to support the witness’s concerns, the guidance says.

They must also be satisfied that other statutory “special” or protective measures cannot be used, such as having a statement read; being screened or giving evidence by live link.

A key issue is the distinction between a witness’s credibility and his or her reliability, the DPP’s guidance adds.

If the only issue for the defence is the reliability of the witness and accuracy of his or her evidence, then “it may be less critical to know the identity of the witness.”

“This may be the case where the witness is a police officer acting undercover, or a civilian witness of good character, who does not have any connection to the defendant.”

In other cases, where the witness may be involved in criminal activity or knows the defendant and particularly where there may be “some criminal association between them”, the credibility of the witness may be “substantially in issue,” it says.

Where such evidence remains the sole or decisive evidence in such cases, it is “unlikely that the defendant will be able effectively to cross-examine an anonymised witness.”

In such cases, prosecutors are advised that they must “not allow cases to continue where they have genuine grounds for believing that the granting of a witness anonymity order would prevent the defendant from having a fair trial.”

In her parallel guidelines, the Attorney-General, Baroness Scotland, also makes clear that the new legislation enables defendants as well as prosecutors to apply for witness anonymity orders.

Courts can also appoint special counsel to act in exceptional cases (such as those involving national security) on behalf of the accused where an application for anonymity is being made in a closed session.)

The Attorney emphasises that making a witness anonymity order is a “serious step” to be taken by a prosecutor only where there are genuine grounds to believe that a court would be otherwise denied evidence that it should hear in the interests of justice; that other measures will not suffice and the defendant will have a fair trial if an order is made.

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