Introduction

According to Jeremy Bentham, ‘Witnesses are the eyes and ears of justice’. Witnesses wield an immense amount of power in a trial.  In many instances it is the deposition of witnesses that makes or breaks the case that determines whether the case will end in acquittal or conviction, whether justice is served and the truth upheld. Due to their pivotal role in the outcome of a case, witnesses have been highly susceptible and have been subjected to threat to life and property, injury and intimidation. Witnesses have been murdered on court grounds to prevent a deposition, many refuse to give a statement before court due to fear of actualization of impending threat on their life, limb or property. It is the primary duty of the court in any trial to arrive at the truth, however in many instances the hostility of witnesses has acted as a major barrier to the quest for truth and the dispensation of justice. In the case of Zahira Habibullah Sheikh v. State of Gujarat[1], the Supreme Court laid stress upon the importance of an honest witness to ensure a fair trial and emphasized on urgent requirement of ‘Witness Identity and Witness Protection Programs’ in India.

Why Witness Protection?

While there has been considerable development in the criminal jurisprudence around the rights of the accused, the concept of a fair trial and admissibility of evidence, the witness has for long been an avoided entity. A fair trial is one which entails a triangulation of interests of the accused, the victim and the witness, but there exists a mismatch of rights between the accused and the witnesses.[2]The accused are entitled to, a fair and public trial[3], the freedom of expression and information[4], to have evidence recorded in their presence[5]but these rights are not absolute and maybe withdrawn in the interest of justice.[6]. Witness protection programs are necessary to strike a balance between the rights of the accused and the witnesses in a trial.

Though witnesses by deposing before a court carry out a service to the State, out of which they obtain no personal benefit, the State seems to have no obligation to provide security to witnesses in the legal scheme. Their rights are almost non-existent and protection under the law meager. There are no concrete provisions in the law to protect the witnesses from external threats, inducements or intimidation and also no clear-cut legislation to punish or deal with a hostile witness.[7] Witnesses turn hostile under monetary incitements or under threat, intimidation from defense especially when the accused wields power. Sometimes witnesses refuse to depose out of fear of becoming a target due to lack of rights and protection or even out of hesitation to be involved in the long and cumbersome judicial process. Witness protection is thus necessary to prevent hostility of witnesses and to ensure a fair trial.

The question of why witness protection program was the need of the hour in India has been in discussion since 1958 when the law commission in its 14^th report examined the factors that prevented witnesses from deposing before a court. Since then the Apex Court, the law commission and several other committees have deliberated upon ‘Witness Identity Protection and Witness Protection Programs’ and have in their judgments and reports have emphasized on its requirement, suggested a framework and extensively discussed its application in India drawing inspiration from the ‘Witness Protection Program’ models of countries such as New Zealand, Netherlands, UK, USA to name a few.

1.      The Law Commission Reports

The 14^th Law Commission was the first to identify witnesses as legal entities entitled to dignity, rights and protections. In its report the commission noticed that there was ‘inadequate arrangements for witnesses in the Courthouse’.[8] In many states, witnesses have to wait under trees in the Court grounds or in the verandah’s of the court house exposed to the elements. The Commission In some courts witnesses are herded together as cattle in structures known as witness sheds and wait for hours before they are taken into the court room. Witnesses are also not provided with travel allowances and are rarely compensated for their travel expenses which is gravely inconvenient and unjust to a witness especially those of lower means who have to frequent the court due to constant adjournments. The Commission sated that courts must ensure that ‘due respect is rendered to the convenience and comfort of witnesses and must be provided with compensation for sparing their valuable time’.[9] The commission further opined that if such conveniences are not provided, witnesses have no incentive and may become indifferent to assisting the court in the dispensation of justice.

While the 14^th Law commission report focused on harassment and ill-treatment of witnesses the 42^nd report highlighted the issue of the growing frequency of threats being meted out to witnesses discouraging them to depose before the court. In the report, the commission proposed the addition of three new sections to the Indian Penal Code[10], one of which penalized the act of interfering with the witness. The proposed provision i.e., Section 229-A read,

‘Whoever, by threats, bribes or other corrupt means, dissuades or attempts to dissuade any person from giving evidence before a public servant, legally competent to examine him as a witness, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both’.[11]

The commission also opined that merely punishing the offender was not sufficient. It observed that in order to eradicate the problem of hostile witnesses, they must be ensured adequate relief and protection in the form of identity security, anonymity and physical protection.

The 154^thlaw commission referring to the 14^th law commission report stated that there was ‘plenty of justification for the reluctance of witnesses to come forward to attend Court promptly in obedience to the summonses’. The Law Commission was of the view that inconveniences meted out to the witnesses coming to courts, lack of facilities to the witnesses, frequent adjournments and inadequate allowances are the reasons behind the reluctance of the witnesses to cooperate with the law enforcement agencies[12]. The commission considered the plight of the witnesses who were caught between the devil and the deep sea for they would be have to bear the penalty if they refused to depose but would have to incur the wrath of the accused (specifically if they are government higher-up or habitual or hardened criminals), putting their life at peril, if they deposed incriminating the accused. The Commission observed that it is necessary to build confidence in the system of criminal trial and laid down the following recommendations for better protection and convenience of witnesses.

·         ‘The allowances payable to the witnesses for their attendance in courts should be fixed on a realistic basis and that payment should be effected through a simple procedure which would avoid delay and inconvenience.

·         Adequate facilities should be provided in the court premises for their stay.

·         The treatment afforded to them right from the stage of investigation up to the stage of conclusion of the trial should be in a fitting manner giving them due respect and removing all causes which contribute to any anguish on their part.

·         Necessary confidence has to be created in the minds of the witnesses that they would be protected from the wrath of the accused in any eventuality.

·         Listing of the cases should be done in such a way that the witnesses who are summoned are examined on the day they are summoned and adjournments should be avoided meticulously.’[13]

However, the law commission in its 154^th report failed to elucidate the criteria and framework for providing protection to the witnesses.

The concept of witness protection was further discussed, rather narrowly in the 172^nd Law Commission Report which was the result of a writ petition[14] filed by a women’s group, Sakshi which demanded that amendments be made to the Indian Penal Code, Indian Evidence Act and the Criminal Procedure Code. The Supreme Court requested the Law Commission ‘to examine the issues submitted by the petitioners and examine the feasibility of making recommendations for amendments of the Indian Penal Code or to deal with the same in any other manner so as to plug the loopholes.’ The petitioner prayed for an amendment in the definition of the term ‘sexual intercourse’ and also requested that where the witness or victim to a sexual assault is a minor; he/she shall not be compelled to give oral evidence in the presence of the accused as this would be traumatic to the minor. The petitioner requested that the law be amended for such procedure to take effect. Under section 273 of the Code of Criminal Procedure all evidence is to be recorded in the presence of the accused, but ‘the Law Commission took the view that this general principle, which is founded upon natural justice, should not be done away with altogether in trials and enquiries concerning sexual offence. However, in order to protect the child witness the Commission recommended that it may be open to the prosecution to request the Court to provide a screen in such a manner that the victim does not see the accused, while at the same time providing an opportunity to the accused to listen to the testimony of the victim and give appropriate instructions to his advocate for an effective cross-examination’.[15]

The law commission recommended the insertion of a provision to section 273 which read,

‘Provided that where the evidence of a person below sixteen years who is alleged to have been subjected to sexual assault or any other sexual offence, is to be recorded, the Court may, take appropriate measures to ensure that such person is not confronted by the accused while at the same time ensuring the right of cross-examination of the accused[16].’

The commission opined that the screening technique need not be confined to minor witnesses in cases of sexual assault but may also be applied for by the prosecution for the protection of their witnesses by concealing the identity of the witness. The 178^th report of the Law Commission found a brief mention of the issue of witness hostility where the commission observed, ‘the experience shows that where the accused happens to be rich and/ or influential person or member of mafia gangs, the witnesses very often turn hostile either because of the inducements offered to them or because of the threats given to them or may be on account of promises that may be made to them."[17]The Law Commission its report laid down the following recommendation to prevent witnesses from turning hostile,

·         Introducing certain checks so that witnesses do not turn hostile, such as taking the signature of a witness on his police statement and sending it to an appropriate Magistrate and a senior police officer.

·          In all serious offences, punishable with ten or more years of imprisonment, the statement of important witnesses should be recorded, at the earliest, by a Magistrate under Section 164 of the Code of Criminal Procedure, 1973.

While it identified the existence of a problem, in its report the Commission did not take into consideration the physical protection or method of maintaining the anonymity of the witnesses.

Perhaps the most comprehensive of the law commission reports on the subject of witness protection, is its 198^th report. The law commission dealt with aspects of ‘Witness Identity Protection and Witness Protection Programs’. Witness Identity Protection involves taking steps to maintain the anonymity and conceal the identity of the witness form the accused and his lawyer. By this method of witness protection, the screen technique is used and their name does not appear on documents of the court. The Law Commission was of the opinion that not all witnesses require the same degree of protection, for this, the commission classified witnesses into 3 categories:

1.            Victim-witnesses who are known to the accused;

2.            Victims-witnesses not known to the accused;

3.            Witnesses whose identity is not known to the accused.

Category (1) requires protection from trauma and categories (2) and (3) requires protection against disclosure of identity. In category (i) above, as the victim is known to the accused, there is no need to protect the identity of the victim but still the victim may desire that his or her examination in the Court may be allowed to be given separately and not in the immediate presence of the accused because if he or she were to depose in the physical presence of the accused, there can be tremendous trauma and it may be difficult for the witness to depose without fear or trepidation. But, in categories (ii) and (iii), victims and witnesses who are not known to the accused have a more serious problem if there is likelihood of danger to their lives or property or to the lives and properties of their close relatives, in case their identity kept secret at all stages of a criminal case, namely, investigation, inquiry and trial.”[18]

According to the report protection must be provided to witnesses over three stages- before trial, during trial (while recording evidence) and after trial. The Commission has recommended the adoption of in-camera sessions, anonymity and concealment of identity as methods to protect witnesses before and during trial and the creation of ‘Witness Protection Programs’ for protection of witnesses post-trial i.e., outside the court. The objective of Witness Protection Programs is to make the witness disappear and to make them untraceable. Under these programs, witnesses whose life and property are under threat or where there exists potential for threat due to a deposition, such witnesses are provided with a new name and identity and re-located to another State or Country to protect them from the accused. The Commission suggested the following model of Witness Protection Programs to be adopted in India,

‘At the instance of the public prosecutor, the witness can be given a new identity by a Magistrate after conducting an ex parte inquiry in his chambers. In case of likelihood of danger of his life, he is given a different identity and may, if need be, even relocated in a different place along with his dependents till be trial of the case against the accused is completed. The expenses for maintenance of all the persons must be met by the State Legal Aid Authority through the District Legal Aid Authority. The witness has to sign a Memorandum of Understanding (MOU) which will list out the obligations of the State as well as the witness. Being admitted to the program, the witness has an obligation to depose and the State has an obligation to protect him physically outside Court. Breach of MOU by the witness will result in his being taken out of the program.’[19]

The Witness Protection Scheme, 2018 is vaguely based on the categorizations and the framework proposed in the 198^th Law Commission Report.

Judicial Trends

The Supreme Court of India and High Courts in the country have over the years through their judgment emphasized on the importance of witness protection for a fair trial and their favour towards the adoption of ‘Witness Protection Programs’ in India.

The prime objective of any Court is to arrive at the truth. When witnesses due to external influence fear and intimidation do not depose truthfully, it defeats the purpose of a trial and does a great injustice to the victims and to the witness themselves. In the landmark case of         Neelam Katara v. Union of India,[20]the Supreme Court while stressing on the importance of an environment of judicial calm during trial, stated that, if witnesses are deposing under fear or intimidation or for favour or allurement, the foundation of administration of justice not only gets weakened, but it may even get obliterated. In Swaran Singh v. State of Punjab[21]it was held, ‘when a witness is threatened, maimed, done away with or even bribed and there is no protection for him, the purpose of a criminal jurisprudence is defeated’. In the case ofTalab Haji Hussain v. Madhukar Purushottam Mondka[22]the Supreme Court observed that 'witnesses should be able to give evidence without inducement or threat either from the prosecutor or the defence'.   

The Supreme Court in the case of Zahira Bibi Sheikh v. State of Gujarat, emphasized on the need for witness protection programs to ensure a fair trial, stating that, if the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial.’  Further, the Court emphasized on the role of the State in protecting witnesses. The court opined that the State has a constitutional obligation to protect the life and liberty of citizens, and all witnesses are citizens entitled to protection of life, limb and property. The Court held that  ‘the State has to ensure that during the trial in the Court the witness could safely depose the truth without any fear of being haunted by those against whom he had deposed’. The Court opined that ‘Witness protection programs are imperative as well as imminent in the context of alarming rate of somersaults by witnesses’. In Hira Nath Mishra v. Principal, Rajendra Medical College[23], the court held that care must be taken in cases where the accused is a hardened criminal, to ensure that the identity of witnesses is not exposed. In the case of National Human Rights Commission v. State of Gujarat[24] highlighted the legislative void on the subject of witness protection and emphasized on the necessity of the immediate introduction of legislation for the protection of witnesses. The Court stated,

‘No law has yet been enacted, not even a scheme has been framed by the Union of India or by the State Government for giving protection to the witnesses. Legislative measures to emphasize prohibition against tampering with witnesses, victims or informants, have become imminent and inevitable need of the day’.

In the Delhi Domestic Working Women’s Forum v. Union of India[25], the Supreme Court, while indicating the broad parameters that can assist the victims of rape, emphasized that in all rape trials “anonymity” of the victims and witnesses must be maintained as far as necessary so that the name is shielded from the media and public.

The Delhi High Court in the case of Ms Neelam Katara v. Union of India[26] issued guidelines for witness protection. The following were the guidelines issued by the Delhi High Court:

Admission of Protection:

The competent Authority, on receipt of a request from a witness shall determine whether the witness requires police protection, to what extent and for what duration.

Factors to be considered:

In determining whether or not a witness should be provided police protection, Competent Authority shall take into account the following factors:

The nature of the risk to the security of the witness which may emanate from the accused or his associates.

The nature of the investigation or the criminal case.

The importance of the witness in the matter and the value of the information or evidence given or agreed to be given by the witness.

The cost of providing police protection to the witness.

Obligation of Police:

While recording statement of the witness Under Section 161 Cr.P.C., it will be the duty of the Investigating Officer to make the witness aware of the “Witness Protection Guidelines” and also the fact that in case of any threat he can approach the Competent Authority. This the Investigation Officer will inform in writing duly acknowledged by the witness.

It shall be the duty of the Commissioner of Police to provide security to a witness in respect of whom an order has been passed by the Competent Authority directing police protection.’

15 years after, the Delhi High Court laid down theses guidelines, the Witness Protection Scheme, 2018 was passed by the legislature propelled by the circumstances of Prem Chand v. State of NCT Delhi[27]. During the trial of this case, a witness was shot dead inside the court complex for having refused to turn hostile, despite having a police escort. The court held that these incidents pose a ‘grave threat to security of Courts and interfere with the administration of justice’. Such incidents affect the ‘willingness of witnesses to state the truth’. The Apex Court issued a notice to the Union of India for the expeditious drafting of the scheme. Consequently, upon the order of the Ministry of Home Affairs, the NALSA and BPR&D drafted India’s First Witness Protection Scheme, 2018.

Witness Protection Scheme, 2018 

Witnesses need to be given the confidence to come forward to assist law enforcement and judicial authorities with full assurance of safety. The aim and objective of the scheme is to ensure that the investigation, prosecution and trial of criminal offences are not prejudiced because witnesses are intimidated or frightened to give evidence without protection from violent or other criminal recrimination.  The scheme intends to promote law enforcement by facilitating the protection of persons who are involved directly or indirectly in providing assistance to criminal law enforcement agencies and overall administration of justice. It lays down measures to protect and to safeguard witnesses and their family members from intimidation or threats against their lives reputation and property. Under the scheme, witnesses are categorized on the basis of threat perception. The three categories formulated on the basis of potential threat are:

Category A: Pertains to the scenario where the threat is graver and extends to life of a witness or his family members;

Category B: Comprises that degree where threat is to the safety, reputation, property of witness or family members

Category C: Comprises of the degree where threats are more moderate as compared to the threats conceptualised in the categories A and B. Category C extends to harassment or intimidation of the witness or his family members reputation

Procedural Framework

The first step involves the filing of an application for seeking a protection order before a competent authority as per jurisdiction. A ‘Competent Authority’ under the clause 7 of the definition clause includes, the Secretary, District Legal Services Authority (DLSA).  The competent authority alone can pass witness protection order for the witness protection ,issue orders for protection of identity/change of identity/relocation of a witness, categorisation of threat, duration and types of protection to be rendered.

Upon receiving an application for protection of witness, the competent authority may pass an order for a Threat Analysis Report from the Commissioner of Police of the district where the case is being investigated. Depending upon the degree of imminent threat, the Authority may pass an interim protection order for the witness and family members during the pendency of the application.

The Threat Analysis Report must be prepared in full confidentiality and expeditiously within five days of receipt of the order. The report must categorize the degree of threat perception and shall provide suggestive measure for providing adequate protection to the witness and their family.

In order to ascertain the degree of protection requirement of the witness, during the processing of the application, the Competent Authority shall interact with the witness and their family members in person or through electronic means.

All the hearings on Witness Protection Application shall be held in-camera by the Competent Authority while maintaining full confidentiality.

An application shall be disposed of within five working days of receipt of Threat Analysis Report from the Police authorities.

 The Witness Protection Order passed by the Competent Authority shall be implemented by the Witness Protection Cell of the State or Union Territories. While the overall responsibility of implementation of the scheme lies upon the Head of Police in the State, orders passed by the authority for change of identity or relocation shall be implemented by Department of Home of the State or Union Territory.

Upon passing of a Witness Protection Order, the Witness Protection Cell shall file a monthly follow-up report before the Competent Authority.

In case the Competent Authority finds that there is a need to revise the Witness Protection Order or an application is moved in this regard, a fresh Threat Analysis Report may be called for from the Commissioner of Police in the District.

Review can be filed before the Competent Authority within 30 days, and an appeal can be filed before the Chairperson of DLSA in case aggrieved by the review order passed by Secretary, DLSA. The appeal against the orders passed by Competent Authority under Parts IV& V of the Scheme can be filed before Member Secretary, State Legal Services Authority.

One of the salient features of the scheme is the State Witness Protection Fund, put in use for all the expenses incurred in the witness protection procedure. The sources of the State Witness Protection Fund are: Budgetary allocation made in the Annual Budget by the State Government; Receipt of amount of fines imposed (under Section 357 of the CrPC) ordered to be deposited by the courts or tribunals in the Witness Protection Fund; Donations or contributions from International/National/Philanthropist/CharitableInstitutions/Organizations and individuals permitted by Central/State Governments and Funds contributed under Corporate Social Responsibility scheme. In case the witness has lodged a false complaint, the State Legal Service Authority can initiate proceedings for recovery of the expenditure incurred to recoup the Witness Protection Fund.

Types of Protection Measures

The types of protection measures proposed under this scheme are to be applied on the basis of threat perception. The protection orders are valid for a specific period of time and do not continue for eternity, where the threat has been extinguished, the protection measures are lifted. The following are the protection measures proposed under scheme:

(a) Ensuring that witness and accused do not come face to face during investigation or trial;

(b) Monitoring of mail and telephone calls;

(c) Arrangement with the telephone company to change the witness’s telephone number or assign him or her unlisted telephone number;

(d) Installation of security devices in the witness’s home such as security doors, CCTV, alarms, fencing etc.

(e) Concealment of identity of the witness by referring to him/her with the changed name or alphabet;

(f) Emergency contact persons for the witness;

(g) Close protection, regular patrolling around the witness’s house;

(h) Temporary change of residence to a relative’s house or a nearby town;

(i) Escort to and from the court and provision of Government vehicle or a State funded conveyance for the date of hearing;

(j) Holding of in-camera trials;

(k) Allowing a support person to remain present during recording of statement and deposition;

(l) Usage of specially designed vulnerable witness court rooms which have special arrangements like live links, one way mirrors and screens apart from separate passages for witnesses and accused, with option to modify the image of face of the witness and to modify the audio feed of the witness’ voice, so that he/she is not identifiable;

(m) Ensuring expeditious recording of deposition during trial on day to day basis without adjournments;

(n) Awarding time to time periodical financial aids/grants to the witness from Witness Protection Fund for the purpose of re-location, sustenance or starting new vocation/profession, if desired;

Measures which may be resorted to in graver circumstances include ‘Protection of Identity’,         ‘Change of Identity’ and ‘Relocation of Witness for protection of Identity’- these protective measures are allowed by the competent authority based on the degree of threat perception on the Threat Analysis Report.

WITNESS PROTECTION PROGRAMS WORLDWIDE

Though the Witness Protection Scheme is a fairly new addition to the Indian Criminal Jurisprudence, in most other countries the witness protection programs have existed for over decades and consequently has been better integrated into the judicial system. The Witness Protection Scheme of 2018 is highly influenced by the Witness Protection Programs in countries like the United Kingdom, the United States of America, Australia and New Zealand.

 

United Kingdom

Section 82 of the Serious and Organised Crime Police Act, 2005(SOCPA) provides protection measures to witnesses and other individuals who meet the Metropolitan Police Service (MPS) eligibility criteria for protection laid down in the Standard Operating Procedure (SOP). Under the SOP(and protection under the SOCPA), applies to police officers, police staff including their families and other officers who work on the Police force on a contract basis. Schedule 5 of Section 82 of the SOCPA extends protection to individuals involved in legal proceedings i.e., law enforcement and other officers, informants, witnesses and family members of informants or witnesses. The Witness Protection Program (WPP), in the UK unlike the WPS, 2018 in India thus, applies not only to witnesses but any individual, including police officers and members of law enforcement who satisfy the eligibility criteria for protection under Section 82. An individual in included into the government funded WPP only if the following criteria are fulfilled:

·      The individual must be willing to give essential evidence in respect of a serious crime which includes, murder, attempted murder, kidnap, serious sexual offences, organized crime where five year of imprisonment may be awarded upon conviction, any other offence at the discretion of the WPP management or

·      The individual must be a Covert Human Intelligence Source (CHIS) or a former CHIS whose status and identity has been compromised and

·      There must be a fully documented real and imminent threat to life of the individual, or member of their family as a result of hi/her willingness to give evidence and

·      The Individual must have made a full evidential statement and be prepared to co-operate in further evidential procedures and

·      The individual must be willing to sign an agreement agreeing to abide by the conditions of participation and failure of breach of any such condition would result in the removal from the program.

 

In order to determine the level of protection to be meted out to the individual who has fulfilled the criteria for protection, the Criminal Justice Protection Unit is required to conduct a Threat Assessment and an assessment of an individual’s long-term suitability to be accepted onto the WPP. The WPP mainly involves relocation and identity change of the witness and their family to keep them off the radar and make them un-traceable. Unlike under the Indian system where protection is guaranteed only for 3 months irrespective of the existence of threat, in the UK protection under the program is permanent and can be lifted only on the hundredth birthday of the youngest member of those relocated.

United States of America

The US Federal Witness Security Program (WITSEC) was the first witness protection program, and has served as a model for other countries. From its commencement in 1971, the US Marshals Service has been operating the WITSEC program for over 4 decades. Its core feature is the secret and permanent relocation, often coupled with an identity change, offered to witnesses and their immediate families.[28] If the witness’s testimony is essential to the case, and if the act of testifying places the witness’s life, or the life of his or her family, in jeopardy, the OEO can offer the witness protection through the WITSEC program. The decision to allow a witness to receive protection lies with the Office of the Attorney General with the US Department of Justice: Office of Enforcement Operations is the authorizing agency. Only those individuals who have been witnesses and have provided essential evidence in cases of organized crime, drug trafficking, or any serious federal/state felony that could result in retaliation against a witness or have been involved in any civil or administrative proceeding that could jeopardize a witness’ safety, are eligible and are afforded protective services. These protective services include the complete relocation of the witness and their families and change of identity of every member along with the provision of official, new and legal documentation, housing and assistance with basic living expenses such as medical care. Through WITSEC, witnesses also receive 24-hour protection when they actually give testimony at trial, or when they attend any other “high-threat” event or court proceeding. At these times, for example, armed guards provide physical security when the witness travels to the courthouse. The witness might also be sequestered in a secret location before and during the trial, and then transitioned into their new life after the trial concludes.

Australia

In 1988, the Parliamentary Joint Committee on The National Crime Authority inquired into witness protection in Australia and suggested a model and framework based on which the Witness Protection Act of 1994 was drafted. The Act created the National Witness Protection program (NWPP) and gave the commissioner of the Australian Federal Police (AFP) responsibility for its maintenance. Section 3 of the Act defines a witness as,

 ‘(a)  a person who has given, or who has agreed to give, evidence on behalf of the Crown in right of the Commonwealth or of a State or Territory in:

                              (i)  Proceedings for an offence; or

                             (ii)  Hearings or proceedings before an authority that is declared by the Minister by notice in the Gazette to be an authority to which this paragraph applies; or

(b) a person who has given, or who has agreed to give, evidence otherwise than as mentioned in paragraph (a) in relation to the commission or possible commission of an offence against a law of the Commonwealth or of a State or Territory; or

(c) A person who has made a statement to the Australian Federal Police or an approved authority in relation to an offence against a law of the Commonwealth or of a State or Territory; or

(d)A person who, for any other reason, may require protection or other assistance under the NWPP; or

(e) A person who, because of his or her relationship to, or association with, a person referred to in paragraph (a), (b), (c) or (d) may require protection or other assistance under the NWPP.’

A witness under the Act is eligible to apply for protection from the NWPP. Protective services such as relocation and identity alteration under NWPP is not afforded only to Australian nationals but also to foreign nationals upon request of foreign law enforcement agencies or the International Criminal Courts (Section 10). Upon relocation, and change in identity witnesses are provided with a statutory right of being provided with identity documents recognized by the Commonwealth(Section 24) and also ensures that the program is not used as a means to escape civil or criminal liability existing against them (Section 20). The factor that sets the NWPP apart from the WPP in the USA is the existence of a re-integration program. Along with providing a basic allowance and physical protection the NWPP employs operating methods designed to ensure the safe integration of witnesses and their families participating in the NWPP back into the community in which they have been re-located and once the imminent threat or danger is seen to be non-existed, the NWPP provides assistance to re-integrate into the community when they are no longer under the program.

The People’s Republic of China

The most comprehensive legislation on Witness Protection in Chine is the Witness Protect Act. Under the Act, the Police forces are put in charge of identifying individuals requiring protective services and the Court are made responsible for deciding whether an individual requires being included in the Witness Protection Program. Article 15 of the Act states that, the provisions of the Act is to apply to the informant, reporter, complainant or the victim which implies that witness protection services are made available pre-, during and post-trial. Article 6 lays down the criteria upon which the Courts are to decide whether protection is to be afforded to the individual. The following are the factors listed in Article 6,

·         The magnitude and imminence of danger faced by the protected witness and the person who is closely related to such witness

·         The facts of the criminal offender or the gangster conduct;

·         The danger of the criminal offense or the gangsters

·         The importance of the witness' testimony;

·         The situation of the witness or of the person who is closely related to such witness

·         The relationship between the witness and the criminal offense or the gangster activity;

·         The stage of the handling case;

·         The restrictions imposed on the rights and interests of the defendant or the transferred person;

·         The maintenance of the public interest.

 

In addition to relocation and change in identity, under Article 12 of the Act, depending on the degree of perceived harm the judge or the prosecutor may ‘order the judicial police agency to assign a police officer to personally protect the witness or the person who is closely related to such witness within a certain period of time. The judge or prosecutor may issue an order to prohibit or restrain a specific person to act in a particular way or to prohibit or restrain a specific person to approach the body, residence, work place of the protected witness or the person who is closely related to such witness. The forgoing protective order should be delivered to the applicant, the prohibited or restrained person, and the executing judicial police agency or relevant authority’. Further, under Article 13, where there exists imminent danger to any person related to the witness, the court may order the judicial police agency to assist them in obtaining a new job or a residence for temporary re-location not exceeding a period of 1 year. One of the salient features of the witness protection program in China is the existence of the option of maintaining anonymity of the witness. Article 11 mandates that the identity, the true name(use code name instead), permanent address, birth date, identification number, passport number  or any other personal information that could revel identity or sever the confidentiality of the witness shall not appear on any official court documents or orders in order to preserve the anonymity of the witness. Article 16 penalizes any person who divulges the personal information of the witness under protection with imprisonment up to 7 years. Unlike the Witness Protection Program in USA, the program in China is not permanent. Article 9 of the Act lays down the grounds for termination of the protective services as,

·                     Upon the agreement of the protected person to terminate protection

·                     Upon conviction of protected witness of perjury

·                     Upon destruction of confidentiality

·                     Upon removal of protected person to prison or penitentiary

·                     Upon disappearance of reasons for inclusion in protection program.

DRAWBACKS OF THE SCHEME

While the Scheme was drafted with the best intentions, to confer rights upon and protect witness’s pre-trial, during and post-trial, there seems to be some inherent flaws and loopholes in the Scheme which does not raise confidence of its effectiveness. One of the most flawed assumptions made by the drafters of the Scheme is of the objectivity and sincerity of Police officials. Under the Scheme, a protection order is passed based on the Threat Analysis Report drawn up by the Head of the Police in each district. These Police officials can be brought under pressure to provide a false report and classification of the witness into the categories provided in the scheme, especially in cases where influential individuals like politicians, or business tycoons are involved. No scheme can succeed if a corrupt administration or police department is invested with the authority to assuage the threat perception and then categorize witnesses on the basis of its assessment. The second mis-step is the cap laid on the time period for which protection is accorded. A protection order is valid only for 3 months, after which the witness is once again made vulnerable to the threats of the accused. This renders it redundant as the possibility of threat from the accused cannot be eliminated once protection is terminated Instead of laying a fixed cap for every witness, protection must be accorded until it can be ensured that there exists no imminent or potential threat to the life, limb or property of the witness. Where the threat has ceased to exist, protection to the witness under the Scheme may also be seized. The Scheme also does not penalize threats accorded to witnesses despite protection. The third flaw is the lack of infrastructure for the implementation of the Scheme. The functioning criminal justice system is the responsibility of the State and some states may not have adequate resources to implement this scheme effectively. The lower courts, where all the witnesses have to appear, may not have the infrastructure to satisfy the mandate of the Witness Protection Scheme.