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THE PROTECTED PERSONS SERVICE: AN AFTERTHOUGHT OF A FAILING SYSTEM OR STEP IN THE RIGHT DIRECTION?

January 11, 2013

The Protected Persons Service was announced on the 28 December 2012.  It will come under the auspices of the National Crime Agency and it is said will combine the expertise of police forces and other “service providers” with a view to standardising witness protection throughout the United Kingdom.  The ACPO lead for protected persons Andy Cook is reported as saying that this national service will be delivered by the police service at a regional level in the struggle against organised crime.

The introduction of the service seems to have been prompted by the government’s commitment to improve support available for victims and witnesses following release of statistics that 25% of collapsed prosecutions were as a result of witnesses or victims reluctant to give evidence.

Anyone with experience of working with individuals in the current witness protection scheme can only welcome the idea that standardising knowledge, skills and awareness within the law enforcement community is a good thing.  However, the proposal is at risk of paying lip service to the problem of witness protection without really considering the implications of a nationally co-ordinated regime. 

Quite apart from the acceptance that the criminal justice system is letting witnesses and victims down by contributing to a culture where those accused of offences are able to intimate or harass those who may be required to testify there are some really serious questions that need to be asked about how the new service will operate.

The most recurring theme in the context of witness protection issues is the allocation of resources.  Following the inquest into the murders of John and Joan Stirland in 2010, the Deputy Coroner, Karen Monaghan QC was critical of the emphasis placed by officers on resources in that case (amongst other things).  Many individuals go to the police with critically important evidence or intelligence to offer and are immediately promised protection but at this vital time no consideration is given to the financial consequences for those who may have to enter the scheme.  The difficulties in such circumstances were exemplified in a case in the Court of Appeal last year opaquely named An Informer v A Chief Constable [2012] EWCA Civ 197.  In this case the Court of Appeal concluded the extent of the Police Service’s duty of care was limited to the provision of protective security (physical safety and well-being) and not pure financial losses incurred as a consequence of having to go into the witness protection scheme.  The case was unusual on its facts; the claimant beginning life as a covert human intelligence source but later becoming a suspect and then being forced to enter into the scheme because his identity was compromised but participation in criminality did not appear to be a determinative feature of the court’s ruling.  The position therefore in English law presently is that an individual going into the witness protection scheme and who suffers financial losses as a consequence will be unable to recoup these losses from the police even if they were negligent and responsible for compromising the individual’s role as a source.  This fact is likely to have a chilling effect on most individuals providing information to the police where there is a risk they may need subsequent protection.

Overwhelmingly, the announcement in December has all the hallmarks of an afterthought rather than an informative strategic decision.  There is nothing about the National Crime Agency having responsibility for witness protection in their plan published on the organisation’s inception in June 2011 and it does not appear as part of the Agency’s self-styled “vision”.  It is also of concern that even in the present climate many police forces do not have a dedicated witness protection unit and in some cases units that did exist have been dissolved as a result of cutbacks.  This highlights a number of unassailable facts.  Firstly, expertise is short on the ground and it is not clear how or under what circumstances it would be imported into the National Crime Agency’s armoury.  Secondly, even if the agency was able to acquire and develop the necessary expertise it is difficult to envisage how this would be rolled out at a regional level, particularly given the high level of confidentiality that has to exist to manage a witness protection effectively. 

In a climate where resources allocated to the police are a diminishing commodity and training budgets are being slashed, it is difficult to see where the funding will exist to roll out the level of training that is required for officers to understand their legal duties in this area effectively and apply them practicably.  This was another concern of Karen Monaghan in the Stirland case and there is no evidence on the ground that the system has changed since she published her judgment two years ago.

There is a related concern. Over the last few years there has been a troubling and increasing trend.  The number of homicides committed where the victims had prior contact with the police is steadily increasing.  This is counter-intuitive for individuals who have a strong professional commitment to the preservation of protection of life and reveals that many lack the training to understand their legal obligations in this area and to know how to apply them practicably in their daily professional lives.  It is a trend that cannot be reconciled with the aspirations of a protected persons service and both will suffer in public confidence terms unless there is a serious attempt to address the wider problem of witness intimidation and how and what it means to run an effective witness protection scheme.  The announcement of the Protected Persons Service is a step in the right direction but one which is vulnerable of also representing a profound missed opportunity.

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