The use of an unnamed witness in arbitral proceedings is less common than it is in, say, criminal proceedings, but that said, it is not unheard of. This article considers the legal and moral issues which become relevant in circumstances where unnamed witnesses are relied upon in arbitral proceedings.
The biggest issue in relation to the use of an unnamed witness is whether such use is contrary to a defendant’s right to a fair hearing. The right to know the identity of an accuser has long been held to be a fundamental element of a fair hearing in jurisdictions across the world.
The IBA Rules on the Taking of Evidence in International Arbitration (the “IBA Rules”) provide at Article 4(5) that if a party wishes to rely on witness evidence, a witness statement should be provided and should contain the following:
- the full name and address of the witness;
- an explanation of that witness’ relationship with the parties; and
- a description of that witness' background, qualifications, training and experience, if they are relevant to the dispute.
One of the reasons the IBA Rules require the identity and description of a witness to be revealed in proceedings is to allow the party opposing the statement, and the arbitrator, the opportunity to assess the credibility of the witness and the basis on which the witness makes his comments. It has been suggested that depriving a defendant the opportunity to cross-examine those giving evidence against him, puts him at an immediate disadvantage and effectively denies that defendant the right to a fair hearing, contrary to Article 6 of the European Convention on Human Rights (the “EC Convention”).
There are a number of cases which outline the importance of being able to confront an adverse witness. In R v Hughes2 , Judge Richardson observed that “any notion of a fair trial…must include the right for the defence to ascertain the true identity of an accuser where questions of credibility are in issue”.
In S v Leepile and Others3 , Judge Ackerman observed a number of difficulties with allowing a witness to remain anonymous: “legal representatives [could not carry out investigations] into the witness’ background to ascertain whether he has a general reputation for untruthfulness”. Judge Ackerman went on to say that “it would make it more difficult to establish that the witness was not at places on the occasions mentioned by him” and that “it would further heighten the witness’ sense of impregnability and increase the temptation to falsify or exaggerate”.
Parties who argue in favour of using anonymised witnesses in proceedings have suggested that in certain circumstances, an analogy can be drawn with criminal proceedings, the rules for which commonly provide that the anonymity of a witness may be preserved if the participation of that witness may expose him to a serious danger threatening his life, or another serious inconvenience.
And there lies the conflict: does a defendant’s right to a fair hearing outweigh a witness’ right to be free from danger? And how exactly is a “serious danger’ or a ’serious inconvenience’ to be interpreted?
Whilst the IBA Rules do not explicitly provide for circumstances in which a witness may be protected, case law has shown that, whether in criminal, litigious or arbitral proceedings, this will only be permitted in exceptional circumstances.
In Visser v the Netherlands4 the European Court of Human Rights (“ECHR”) was asked to consider whether the use of an unnamed witness was in breach of Article 6(1) and (3)(d) of the EC Convention or whether such use was justified in the circumstances. The ECHR applied strict criteria for allowing the evidence, determining that the threat to the witness should be serious and real enough to justify the severe restriction on the defendant’s right to be heard. These criteria now form the basis upon which the issue of witness anonymity is considered across many different jurisdictions.
In the Court of Arbitration for Sport decision, Pobeda5 , the arbitration panel allowed the introduction of statements made by unnamed witnesses on the basis that the witnesses had been “exposed to threats, insults, pressure and intimidation”, and therefore had “good reasons to remain anonymous”. In Pobeda, the lives and personal safety of the witnesses and their families were at risk. Compare this to a situation where the consequences to a witness of being named in proceedings are that he is subject to intense media scrutiny, adverse consequences on his reputation and potential negative effects in his employment. Whilst these consequences may be considered by the witness to be a ‘serious inconvenience’, they are speculative, at best, and certainly not to be classified as a ‘serious danger’. Accordingly, in the interests of justice preservation, there needs to be a real danger or a threat of danger in order for witness anonymity to take precedence over a defendant’s right to a fair hearing.
It is quite clear that there is a place for unnamed witnesses in criminal, litigious and arbitral proceedings. That said, the benefits of keeping a witness anonymous should be carefully weighed against the need to preserve a defendant’s right to a fair trial. Only in exceptional circumstances, where there is a real and actual threat to the witness’ well-being, and not simply a threat to a witness’ reputation or credibility, should the identity of that witness be kept anonymous. A defendant’s right to a fair hearing will, in almost all circumstances, prevail.