The Criminal Proceedings (Witness Anonymity) Bill has been praised by some members of the legal fraternity as a comprehensive step towards safeguarding witnesses within the court system.
Yet even among its supporters, concerns persist about the practical challenges of protecting witnesses in a small society like Barbados.
King’s Counsel Andrew Pilgrim said the bill was comprehensive and capable of protecting individuals but argued that it should be paired with a formal witness protection act.
He suggested that such legislation could offer greater reassurance to witnesses, especially in cases where the threat posed by a defendant or potential defendant was significant.
Pilgrim noted that relocating witnesses, even to another country, might be necessary in extreme circumstances, and that giving people confidence in their safety was key to encouraging testimony.
“The point is, we need to satisfy those who are willing to give evidence or who want to give evidence that they will be safe,” he said. “Anonymity may be sufficient in 90 per cent of cases, but maybe there will be those few cases that you need to go the extra mile.”
The senior counsel acknowledged that while such cases are uncommon, there have been instances where witnesses declined to testify due to threats made against them or their family members.
“I would not say that it is widespread, but like everywhere else in the world once crime becomes more sophisticated and with the use of firearms, there will be more people being afraid, and the desire for anonymity would become extremely important and people would not want to just think they are anonymous, but would want to think they are safe by being anonymous,” he said.
Acknowledging the difficulty of protecting witnesses’ identities in a close-knit society where “everybody knows everybody”, the defence attorney argued that the bill’s provisions aimed, as best they could, to address those concerns.
“The real challenge in a society like ours is that … quite often an individual will probably be able to figure out and say ‘I don’t recognise that voice now that it’s been modulated, but I know that that will got to be Henry from Dunlow Lane or so and so’, but I don’t know that there’s much more that this act could have done because there’s so many different remedies.
We could give the evidence by live link, you could give it in private, you could give it as a video recording, you could give it behind the screen. There’s really a lot of provision here to ensure that the person’s identity is dealt with, is really concealed,” Pilgrim said.
Echoing this stance, King’s Counsel Michael Lashley called the bill “a necessary step” in the criminal justice system, highlighting that other islands have already made such moves.
“I recall practising in the Cayman Islands, and their legislation actually is very, very, very protective of witnesses, even in rape cases,” he said. “The complainant is actually allowed to be protected by a screen, is allowed even to give evidence out of the court, and to be cross-examined, and then you present the video to the jury. So it is a necessary step in the criminal justice system.”
Adding that for anonymity to occur, it was necessary to remove names, addresses, and telephone numbers from witness statements, the senior attorney highlighted that the current legislation would not only assist the prosecution but also where defence witnesses were willing to give evidence but did not want to appear in court.
Defence attorney Shadia Simpson agreed that protecting witnesses was essential, especially in Barbados’ current climate. While she acknowledged the bill’s provisions aimed to safeguard identities, she remained unconvinced that anonymity alone would prevent individuals from being identified.
“Witness protection should have sufficient measures that even if a person needs to be relocated in terms of maybe their country altogether, then that’s a possibility,” she said.
Simpson expressed doubt about the practical ability to protect witnesses in a small society, particularly in cases where retaliation was a real concern. She also raised issues about the impact on a defendant’s right to a fair trial, noting that credibility can be crucial, especially when a witness may have a personal grievance or a criminal history.
“You don’t want to be in a case and be blindsided,” she said, “or not have those things in your arsenal where they can make a difference for a person who was on trial.” She added that while the legislation allows for voice modification and the use of screens, this could leave defence attorneys “clueless” about who they are cross-examining.
Her concern, she said, was striking the right balance between protecting witnesses and ensuring justice is served for all parties.
Anonymity may be sufficient in most cases, but maybe there will be those few cases that you need to go the extra mile.
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