Witness Protection Laws In Bangladesh - A Comparative Study
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Category: Evidence & Procedure
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WITNESS PROTECTION LAWS IN BANGLADESH: A
COMPARATIVE STUDY
Homaira Nowshin Urmi, Assistant Professor, Department of Law, Premier University, Chattogram, Bangladesh
ABSTRACT
The testimony of witnesses of crime is crucial in the criminal justice system to lead the accused to conviction. Thus witnesses play a vital role in criminal investigation or court proceeding. However, witnesses of crime are always threatened or intimidated by the accused or their acquaintances in attempt to get them to not appear before the court or to turn hostile. Witnesses must be given specific rights and protections in order to enable them to testify in court freely, without fear of retaliation, or under any duress. Across the globe in different developed and developing countries, right to protection of witnesses of crime has become an established right. In Bangladesh, legal provisions on witness protection is still inadequate and there is no comprehensive law on it though there exist some legal provisions in some special laws which are not ample.
Bangladesh Law Commission has emphasized the need for enactment of a new law for providing protection to the witnesses of crime which is required to provide justice to that neglected part of our society. In the current situation, a great deal of research in this area is needed to reform current criminal justice system of Bangladesh in order to protect witnesses more effectively and to bring it into compliance with international standards. Furthermore, necessary steps should be taken for providing an effective legal framework relating to protection to witnesses of crime to make stronger the present conditions of them. Keywords: Witnesses of crime, Protection of witness, Criminal justice system, Trial, Witness protection scheme, Effective legal framework.
1. Introduction
In the present day society crimes have been syndicated and organized posing a challenge to the existing administration of law and order. Often witnesses turn hostile or contradict their own statements made during investigation due to threats or pressure from the accused or his associates. It is essential that witnesses have certain rights and protections in order to enable them to testify in court freely, fearlessly, and without coercion. The offenders have a wide range of rights both constitutional and legal in the trial of a criminal case. The law specially article
35 of the Constitution provides that the accused of criminal offence shall get a speedy and
public trial by an independent and impartial court or tribunal, that they shall in the trial of the case be presumed to be innocent until and unless their guilt is proved by the prosecution ‘beyond all reasonable doubts’. Thus it will appear that the law and the principles of criminal justice are all in favour of the right and protection of the accused. However, despite the fact that witnesses are the main source of evidence used by the prosecution to support its case, there is no specific law protecting their rights or offering protection. So there is an urgent need to provide an effective legal regime regarding the rights, privileges and protection of witnesses of crime. This article attempts to observe the existing legal framework on protection to witnesses of crime which is not that much effective and that of other jurisdictions to make a comparison between them.
It also recommends that the Government of Bangladesh work toward passing a new legislation that would acknowledge right to protection as a core right for the witnesses of crime. To that end, it would be beneficial to implement the suggestions included the Draft Bill prepared by the Law Commission of Bangladesh on protection of victims and witnesses of crimes involving grave offences. In order to accomplish the purpose of the article in an eloquent way, the author applied analytical approach and socio-legal approach which is basically based on the review of primary and secondary literatures including books, scholarly articles, legislations etc. Internet browsing is being used for collection of most recent literature on the topic.
2. How does Crime Effect the Witnesses?
All crimes are serious and should be treated as such and even comparatively minor crime can
enormously affect a person’s life. 1 The consequences of crime on crime victims, on their families and friends, on witnesses and even on communities are huge. Since the administration of justice heavily depends on the evidence that complainants and their witnesses present, they play a crucial and important role in the criminal justice system. Witnesses, however, are frequently exposed to threats, coercion, intimidation, duress, harassment, etc. by the offenders or their accomplices that prevent them from testifying before the investigation officer in the stage of investigation or from giving evidences before the court during trial, thereby occasioning the probability of miscarriage of justice. Witnessing a crime or a violent situation may have a negative impact on a person’s emotional and psychological well-being.
2 Witnessing a crime or violent situation may not damage us physically but may cause emotional problems. After witnessing a crime, witness may experience a wide range of emotions. Every witness responds differently after witnessing a crime or violent situation. Some feelings that a witness may experience include shock, fear, stress or anxiety, sadness or depression, anger etc. Most of the time witnesses get in shock or unable to react or feel confused. When the incident involves people who the witness knows, there may be feeling of confusion e. g. , feeling affection towards the offender and, at the same time, disagreeing with what the offender did. 3 Some witnesses get extremely alert regarding everything that happens around, feeling constantly afraid that the situation might happen again and intense fear for their own lives.
Feeling guilty and ashamed because of having not helped the victim is another impact of crime on witnesses. Moreover, they feel worried and insecure about giving evidence in the court due to threats from the offenders and their accomplices. Some health issues may also appear after witnessing a crime. For example, witness may face sleeping problems, nausea, vomiting, dizziness, concentration problems etc. and behavioural changes may also arise. Witness may become more aggressive towards others or withdraw him or her from the closest people. They may get lack of interest for activities once enjoyed or lack of motivation towards school or place of work. They may start avoiding places that bring up memories about what happened. They may even avoid or withdraw from people who were in 1 The Impact of victimization Prepared by Canadian Resource Centre for Victims of Crime, (Mar.
5, 2024, 10:15 AM), http://www. crcvc. ca/docs/victimization. pdf. 2 How does it affect the witness? , (Feb. 27, 2024, 7:08 PM), https://www. apavparajovens. pt/en/go/am-i-awitness-how-does-it-affect-the-witness. 3 Name of the witness: Nur jahan, the witness said, the victim Shah Alam (witness’s father) was a drug addict for a long time. On Friday, he sought money for buying drug. Failing to receive money, he engaged in quarrel with his son Jahedul and other family members. At one stage of their altercation Jahedul hacked his father leaving him critically injured. Interview conducted on Feb 2, 2024.
the experience witnessed especially when the experience involved the closest people. They may have behaviour that are more typical of younger children e. g. sleeping with the lights on. Witnesses may suffer financial loss as an impact of crime. Witness of crime is required to spend money to deal with his health issues suffered aftermath of crime. Sometimes psychological counseling is needed to recover from the emotional problems after witnessing a crime. Attending the trial as a witness also requires transportation costs which witness might not eager to pay. Like victims, witnesses also get victimized by other individuals of the society. Their family members, relatives, friends, persons close to them become rigid with the witnesses because of fear of danger from the offenders and other accomplices.
They are not even eager to help the witnesses while participating in the criminal justice system to avoid the harassment and threats made by the offenders and their accomplices. Sometimes family members of the witnesses do not cooperate them as they feel the whole process of testifying before police or giving evidences before the court are troublesome for their life. Even in some cases family members, neighbours, relatives and friends try to make psychological pressure on witnesses to get them withdraw their name from the witness list. These kinds of social burden victimize the witnesses of crime socially which make them isolated from the society and result their lack of desire in participating in the criminal justice system.
3. International Legal Standards for Protection of Witnesses of Crime
Traditionally, international law has paid insufficient attention to witnesses of crime. International human rights law has been explicit in specifying procedural rights of the accused that are necessary ingredients for fair trial discourse4 and meets the basic procedural rights that are accorded to the offender or wrongdoer alone. It does not explicitly concentrate on the importance of the substantive and formal rights of witnesses of crime in context of criminal proceedings. By the end of the twentieth century, United Nations recommended the Model Witness Protection Bill, 2000 which is imposed with the intention of preventing witnesses from being unprepared to provide testimony without protection from violent or other criminal 4 Hussain Mohammad Fazlul Bari, An Appraisal of Victim Protection in Bangladesh, Vol 61(2) Journal of the Asiatic Society of Bangladesh (Hum.) 183, 184 (2016).
recrimination, which could impede the proper administration of justice in criminal and related proceedings. 5 The Model Witness Protection Bill aims to prevent witnesses from being coerced into giving false testimony without protection from violent or other criminal allegations, so undermining the investigation and prosecution of serious crimes. 6 Witnesses can receive protection and assistance to prevent such recrimination through a programme for witness protection that will be managed and overseen by a designated person or body. 7 The disclosure of information relating to that programme or witnesses on it is made an offence.
8 This Act is intended to safeguard the safety and well-being of witnesses in criminal proceedings who, in the absence of protection, may not testify out of fear of violence, death, or serious injury at the hands of criminal interests that may be impacted by the proceedings, among other related goals. 9 States parties are required to take the necessary steps to effectively protect witnesses who testify in cases involving transnational organized crime from reprisals or intimidation under article 24 of the United Nations Convention against Transnational Organized Crime. 10 In recent years transnational organized crime has grown. Criminal organizations are becoming stronger and more diverse. Their frequency of systematic forms of cooperation, intended to further their criminal activities, is increasing.
It is critical that witnesses, who are the backbone of any successful investigation and prosecution, have faith in the criminal justice systems when it comes to the investigation and prosecution of crime, especially the more serious and intricate forms of organized crime. Witnesses must feel comfortable coming forward to support the prosecution and law enforcement. They must be guaranteed assistance and protection from threats and harm that criminal organizations might try to inflict upon them in an effort to deter or punish them for cooperating. The United Nations Convention against Transnational Organized Crime and its Protocols call upon State Parties to introduce appropriate measures to prevent witness intimidation, coercion, corruption or bodily injury, and to strengthen international cooperation in this regard. However, even in cases where legislation has been put
5 UNDCP MODEL WITNESS PROTECTION BILL, 2000, (Feb. 25, 2024, 8:16 PM),
https://www.unodc.org/pdf/lap_witness-protection_2000.pdf.
6 UNDCP MODEL WITNESS PROTECTION BILL, 2000, (Feb. 25, 2024, 8:49 PM),
https://www.unodc.org/pdf/lap_witness-protection_commentary.pdf.
7 Id.
8 Id.
9 Basic Principles of Justice for Victims of Crime and Abuse of Power, (Mar. 7, 2024, 11:12 AM),
https://www.studocu.com/in/document/aligarh-muslim-university/justice-and-criminal-administration/basicprinciples-of-justice-for-victims-of-crime-and-abuse-of-power/22574582.
10 General Assembly Resolution 55/25, annex I, art 24, (April 2, 2024, 9:42 PM),
https://www.unodc.org/documents.
in place for such measures, their execution is frequently subpar, necessitating more advancements, especially in the area of cross-border collaboration and the relocation and identity change of witnesses who pose a risk. Experience has taught us that there are no simple answers when it comes to witness protection. In order to help Member States establish and run successful witness protection programs, the United Nations Office on Drugs and Crime developed Good Practices for the Protection of Witnesses in Criminal Proceedings involving Organised Crimes 200811 after a series of regional meetings with expert representatives from law enforcement, prosecutorial, and judicial authorities.
It gives a helpful summary of the policies that are in place and presents workable solutions that can be adjusted and incorporated into the operational procedures, legal framework, and unique social, political, and economic conditions of Member States. The Eleventh United Nations Congress on Crime Prevention and Criminal Justice adopted the Bangkok Declaration on Synergies and Responses: Strategic Alliances in Crime Prevention and Criminal Justice12, in which member states affirmed that protecting witnesses and victims of crime and terrorism is of utmost importance under article 17. ECOSOC adopted Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime in 200513 which states that crime is increasingly transitional in nature and there is an urgent need to ensure equivalent assistance and protection to child victims and witnesses all over the world.
This instrument have fundamentally strengthen child victims’ and witnesses’ redress regime. It recognizes assurance of justice for child victims and witnesses of crime while safeguarding rights of accused persons. 14 The objectives of the guidelines are to set forth good practice based on the consensus of contemporary knowledge and relevant international, regional norms, standards and principles. 15 11 United Nations Office on Drugs and Crime, Good Practices for the Protection of Witnesses in Criminal Proceedings Involving Organized Crime, (April 7, 2024, 9:11 PM), https://www. unodc. org/documents/middleeastandnorthafrica/organisedcrime/Good_Practices_for_the_Protection_of_Witnesses_in_Criminal_Proceedings_Involving_Organized_Crim e. pdf.
12 General Assembly Resolution 60/177, (April 7, 2024, 9:57 PM), https://www.unodc.org/documents.
13 ECOSOC Resolution 2005/20, Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, (April 9, 2024, 5:05 PM), https://www.un.org/en/ecosoc/docs/2005/resolution%202005-20.pdf.
14 Id.
15 Id.
4. The Legal Framework in Bangladesh that provides Protection to Witnesses of Crime
Legal provisions on protection to witnesses of crime is still inadequate in Bangladesh and there is no inclusive law on it. The Code of Criminal Procedure, 189816, the Penal Code, 186017, the Evidence Act, 187218 along with few special laws laid the basic foundation of legal regime dealing with substantive offences and criminal procedure that are followed in our criminal justice system.19 The Code of Criminal Procedure, 1898 is almost silent about witness protection. There are very few laws which have some provisions on protection of witnesses of crime. The legislative framework in Bangladesh relating to protection for the witnesses may be traced through the following legislations:
4.1 The Penal Code, 1860
The Penal Code, 1860 has provision for punishment according to section 503 and 506 for those who commit criminal intimidation to any person.20
4.2 The Evidence Act, 1872
The Evidence Act, 1872 clearly provides for court room protection of the witnesses by way of prohibiting indecent, scandalous and insulting questions put to the witnesses by way of cross examination.21
4.3 Nari O Shishu Nirjatan Daman Ain, 200022
Sub-section 6 of section 20 of the Act provides for trial in camera for the protection privacy of witnesses of rape.23 Section 22 of the Act makes provision for the recording of statements of
16 Code of Criminal Procedure, 1898, No. V, Acts of Parliament, 1898 (Bangladesh).
17 Penal Code, 1860, No. XLV, Acts of Parliament, 1860 (Bangladesh).
18 Evidence Act, 1872, No. I, Acts of Parliament, 1872 (Bangladesh).
19 Hussain Mohammad Fazlul Bari, An Appraisal of Sentencing in Bangladesh: Between Conviction and
Punishment, Volume 14 Bangladesh Journal of Law 89, 90 (2014). Also see Shahdeen Malik, Perceiving Crimes and Criminals: Law Making in the early 19th century Bengal, Volume 6 Bangladesh Journal of Law I 59, 59 (2002).
20 Supra note 17, sec. 503, 506.
21 Supra note 18, sec. 151-152.
22 Nari O Shishu Nirjatan Daman Ain, 2000, No. VIII, Acts of Parliament, 2000 (Bangladesh).
23 Id, sec. 20(6).
the witnesses by the Judicial Magistrate at the scene of the crime, or in hospital, instead of calling the witnesses to the court.24
4.4 Prevention and Suppression of Human Trafficking Act, 201225
There is a provision of trial in camera in appropriate cases.26 Section 37 speaks about the protection of the victims and witnesses.27 Protection of victims of human trafficking who are child and child witnesses is also maintained in line with international norms and standard.28
4.5 International Crimes (Tribunals) Act, 197329
Though the 1973 Act contains no provisions for witness protection, the Rules of Procedure contains a new Rule 58 A(1) on Witness and Victim Protection under the new Chapter VIA which states, “The Tribunal on its own initiative, or at the request of either party, may pass necessary orders directing the concerned authorities of the government to ensure the protection, privacy, and well-being of the witnesses and or victims. This procedure will be confidential, and the opposing party will not be informed. ” Sub-rule 02 was amended by the addition of provisions for the lodging of witnesses or victims, as well as other measures relating to a trial in camera and the maintenance of confidentiality, if a violation of such an undertaking is to be prosecuted under section 11(4) of the Act. Most of the criminal laws are silent about the provisions for protection to the witnesses of crime.
Laws in Bangladesh regarding protection to witnesses of crime are inadequate and these laws need thorough reform. Besides, the Government of Bangladesh needs to focus on making a separate scheme for witness protection. The Supreme Court of Bangladesh has discretion to pass judgment to issue appropriate remedy to witnesses of crime by way of making order of protection. In Writ Petition No. 8769 of 2010 filed by BNWLA named Bangladesh National Women’s Lawyers Association v The Government of Bangladesh, the higher judiciary tried to take ‘witness friendly’ initiative. In this writ petition a Bench of the High Court Division (HCD) comprising Justice Imman Ali and
24 Id, sec. 22.
25 Prevention and Suppression of Human Trafficking Act, 2012, No. III, Acts of Parliament, 2012 (Bangladesh).
26 Id, sec. 25.
27 Id, sec.37.
28 Id, sec.38.
29 International Crimes (Tribunals) Act, 1973, No. XIX, Acts of Parliament, 1973 (Bangladesh).
Justice Sheikh Hasan Arif ordered the government to enact a law to protect the witness of sexual harassment on November 2, 2010. 30 A direction for enacting a witness protection law have been ordered by the higher judiciary after a few years. In 2015, a HCD bench passed an order directing for the enactment of a witness protection law which made it clear that the protection of witnesses is the need of the time. 31 In the same year the higher judiciary made same kind of direction which is an indication of the higher judiciary’s intention to ameliorate the suffering of the witnesses of crime. On December 7, 2015, during the hearing of the ‘Rinku murder case’, an HCD bench composed of Justices M. Enayetur Rahim and Amir Hossain passed an order leading the government to enact legislation protecting witnesses of crime.
32 Additionally, in August 2017, the Witness Management Policy for subordinate Courts and Tribunals 2017 was drafted with collaboration of the UNDP and the Supreme Court of Bangladesh. 33 In a few recent cases, the HCD has ordered the formation of a monitoring cell and monitoring committee to ensure the presentation of witnesses in the courts, particularly in the Women and Children Repression Prevention Tribunal cases. 34 The HCD stated that the government will take the necessary steps to enact legislation protecting witnesses of crime. 35 Despite all these steps, no witness protection law or scheme has been enacted to this day.
5. Draft Bill proposed by Law Commission of Bangladesh on providing Protection to
Witnesses of Crime Bangladesh Law Commission prepared a Draft Bill in early 2006 to address the pressing need for a new law that would protect the rights, assistances, and safety of witnesses of crime and crime victims.36 A comprehensive victim and witness protection scheme is now critically needed. Once more, the Commission provided the Law Ministry with a report on the subject in 30 S M Mahbubullah, The state of witness protection in Bangladesh, The Daily Star (May 2, 2024, 10:06 AM), https://www.thedailystar.net/law-our-rights/news/the-state-witness-protection-bangladesh-3291146.
31 Id.
32 Tahmidur Rahman Wahid, Witness Protection Laws in Bangladesh, (May 2, 2024, 11:54 AM),
https://tahmidurrahman.com/witness-protection-laws/.
33 Sujayet Ullah, Protection of Victims of Crime and Victims of Abuse of Power: The Legal System in
Bangladesh vis-a-via the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power – An Overview, (May 5, 2024, 12:26 PM), www.unafei.or.jp/english/pdf/RS_No70/No70_13PA_Ullah.pdf.
34 Mahbubullah, supra note 30.
35 Id.
36 Supra note 10.
2011.37 The rights of the witnesses of crime are to have justice served more frequently and
expeditiously, and to be enabled to provide their best evidence in the safest setting possible. In order to guarantee that witnesses of crime appear before investigative agencies, courts, or tribunals to provide testimony regarding the alleged crime without fear of intimidation or threat from the accused or their associates, the law should protect them and grant them certain rights and benefits. It appears that the Act in the Draft Bill has addressed every aspect of a tenable protection regime. 38 Considering its spirit, extent, and intensity, it would be greatly appreciated. 39 However, there are a few conceptual difficulties with the Draft Bill. A witness of crime who is already experiencing intimidation will not want to go through the difficult application process in order to receive protection.
The witnesses of crime should have provisions made for them so that they can take advantage of the chance to obtain protection more quickly and easily. Additionally, the application process should be calm and affordable.
6. Right to Protection for Witnesses of Crime in other jurisdictions
In USA, the 97th Congress enacted the Victim and Witness Protection Act, 1982 (VWPA). 40 With remarkable speed and support, the VWPA passed both houses of Congress and produced a plethora of tools that improve victim and witness protection. Giving witnesses and victims of federal crimes greater legal protection is one of the goals of VWPA. 41 Another purpose of the VWPA is to serve as a model code for the states because Congress realized that most serious crimes are within the jurisdiction of state and local law enforcement agencies. 42 The federal Witness Security Program (WITSEC), also known as the ‘Witness Protection Program’, is run by the U. S. Marshals Service. 43 The Organized Crime Control Act of 1970 and the Comprehensive Crime Control Act of 1984 both gave the WITSEC authorisation.
44 WITSECprotected witnesses typically provide evidence against members of large criminal 37 108th Final Report on a proposed law relating to protection of victims and witnesses of crimes involving grave offences, Law Commission, (Jan. 16, 2024, 2:33 PM), http://www. lawcommissionbangladesh. org/reports. htm.
38 Farzana Faruq & Mohammed Ziaul Hoque, Compensation for Crime Victims in Bangladesh: A new era in
criminal justice system, Number 03 Stamford Journal of Law, 247, 250 (2012).
39 Id., at 249.
40 Douglas J. Kepple, The Victim and Witness Protection Act of 1982: Retroactive Application for Continuing Crimes, Volume 58 Issue 1 Fordham Law Review 87, 94 (1989).
41 Id.
42 Id.
43 Witness Security, United States Government, (May 17, 2024, 3:18 PM), https://www.usmarshals.gov/whatwe-do/witness-security.
44 Id.
organizations, including gangs, terrorist groups, and conventional organized crime groups. 45 Witnesses and their families usually receive documents that grant them new identities. In addition, they may initially receive financial support for housing and other necessities before becoming self-sufficient. 46 Government witnesses and their authorised family members whose lives are in jeopardy because of their cooperation with the U. S. government are provided safety, security and health that are covered by the WITSEC. 47 All witnesses are given round-the-clock protection by the U. S. Marshals Service when they are in situations where they are under threat, such as during court proceedings and other appearances. 48 A few states have their own programs for protecting witnesses from crimes that fall outside the purview of the federal program e. g.
California, Connecticut, Illinois, New York, Texas, and Virginia and Washington, D. C. ,. 49 The first witness protection program was the US Federal WITSEC, which has been imitated by other nations. Numerous jurisdictions, including Canada and Australia, now use WITSEC as a model. These two nations run comparable federal programs alongside those established by individual states or provinces. However, it is apparent that witness protection is an established right in USA and procedures have been taken to make progress in this field which can be the utmost example for those countries which have not made adequate provisions yet. In UK, Part II Chapter I of Youth Justice and Criminal Evidence Act, 1999 (YJCEA) sets out a range of measures that may be available to witnesses in criminal proceedings who are ‘vulnerable’ or ‘intimidated’.
50 Many witnesses feel anxious and afraid when a crime is being investigated, as well as when they appear in court and provide testimony. 51 Both the volume and quality of communication with and by witnesses of all ages can be impacted by stress. 52 Certain witnesses may face unique challenges when it comes to testifying in court and providing testimony because of their age, unique circumstances, intimidation, fear, or special needs. 53 By assisting witnesses in providing their ‘best evidence’, ‘special measures’ can
enhance the quality of their experience in situations where witnesses are thought to be weak or intimidated. 54 A number of tools were introduced by the YJCEA to help witnesses who are afraid or vulnerable to gather and provide evidence. 55 ‘Special measures’ is the collective term for the measures. Special measures refer to a set of regulations designed to assist witnesses who are weak or feel intimidated in testifying in court and to lessen the burden of testifying. 56 UK has an across the nation witness protection framework oversaw by the UK Protected Persons Service (UKPPS), answerable for the wellbeing of around 3,000 people. 57 Serving the National Crime Agency, National Policing, and other government agencies, the UKPPS is a nationwide service with a regional presence. 58 The provincial government is communicated by the local law enforcement agencies.
59 Before the arrangement of the UKPPS in 2013, witness insurance was exclusively the duty of nearby police powers. 60 The UKPPS works closely with its aligned partners from Metropolitan Police Service, Police Scotland and Police Service of Northern Ireland. 61 When the local police force or referring agency is unable to provide the necessary protection arrangements for an individual, UKPPS offers protection to those who are deemed to be seriously vulnerable. 62 Witnesses of crime, victims of honourbased violence and anyone involved in assisting with the investigation of a serious crime might be included in the protection program offered by UKPPS. 63 Protection is usually bespoke and dependent on the level of threat to the individual in question, however it would usually involve removing people from the area of threat to a new, safe location.
64 The person will subsequently collaborate with regional protected persons units to maintain this location's secrecy and start over in the new community. 65 The individual who is at risk must cooperate with UKPPS in
54 Id.
55 Youth Justice and Criminal Evidence Act 1999, Govt. of UK, (May 25, 2024, 5:09 PM),
https://www.legislation.gov.uk/ukpga/1999/23/contents.
56 Id.
57 UK Protected Persons Service, Wikipedia, (May 25, 2024, 7:02 PM),
https://en.wikipedia.org/wiki/UK_Protected_Persons_Service. 58 Protecting the public from serious and organised crime, National Crime Agency, (June 2, 2024, 4:09 PM), https://www.nationalcrimeagency.gov.uk/what-we-do/how-we-work/providing-specialist-capabilities-for-lawenforcement/protected-persons.
59 Supra note 57.
60 Id.
61 Supra note 58.
62 Id.
63 Id.
64 Id.
65 Working inside the UK Protected Persons Service, National Crime Agency, (June 2, 2024, 6:20 PM),
https://www.wiredgov.net/wg/news.nsf/articles/Working+inside+the+UK+Protected+Persons+Service+18082015091500?open.
order to accomplish this. 66 Protected Persons Units operate in secrecy and with great discretion. 67 People's safety at the new location is aided by the discretion surrounding it. 68 Many of the cases involve witnesses and in all cases UKPPS is governed by rules as to what it can and what it cannot do. 69 UKPPS is committed to treating people fairly, honestly and professionally. 70 Its primary concern is the safety of individuals under its care, and its personnel are experts in their fields. 71 It functions covertly and only with the full consent of those under its supervision. 72 Over the course of the last 20 years or so, Protected Persons Units have handled thousands of cases. 73 People who have been protected discreetly carry on with their new lives, confident that they are safe and well-supported by the authorities where they have relocated.
74 The UKPPS needs to process personal information about the witness so that it is able to perform its functions. 75 The Witness Protection Act, 1994 was drafted using a model and framework recommended by the Parliamentary joint Committee on the National Crime Authority in 1988, following their investigation into witness protection in Australia. 76 The Act created a National Witness Protection Program and gave the commissioner of the Australian Federal Police responsibility for its maintenance. 77 The Evidence (Witness Anonymity) Amendment Act, 1997 was enacted by the Government of New Zealand on December 11, 1997, in rejoinder to the cumulative occurrences of witness aggravation and intimidation. 78 This legislation is unique in that it is the first in a common law jurisdiction to allow witnesses to provide testimony anonymously.
The Act expands on New Zealand's pre-existing witness protection laws by allowing a witness to testify in court or at a
66 Id.
67 Id.
68 Id.
69 Id.
70 Id.
71 Id.
72 Id.
73 Id.
74 Id.
75 Id.
76 Witness Protection Annual Report 2011-12, Govt. of Australia, (June 4, 2024, 11:02 AM),
https://www.afp.gov.au/sites/default/files/PDF/Reports/witness-protection-annual-report-2011-12.pdf.
77 Id.
78 Stuart Beresford, The New Zealand Approach to Witness Anonymity and the Right to a Fair Trial, New Zealand Legal Information Institute, (June 6, 2024, 10:54 AM), http://www.nzlii.org/nz/journals/CanterLawRw/2000/3.html.
pretrial conference without having to reveal their identity to the prosecution or the defendant's employer. 79 On June 20, 1996, the Witness Protection Program Act, 1996 was ratified by the royal assent in Canada. 80 With support of all levels of government and police forces this program is run by the Royal Canadian Mounted Police. 81 China has developed a system of witness protection that dates back to 1979. The current legal framework includes provisions for the security of witnesses of crime and prohibits retaliation against them. 82 Criminal Procedure Law, 1996 and Criminal Law, 1997 encompass provisions regarding protection of witnesses of crime though these legislations lack in various ways. The Witness Protection Act, 2006 is the most extensive piece of legislation pertaining to witness protection in China.
83 It assigns police forces the responsibility of identifying individuals in need of protective services, while courts decide whether or not to enroll a person in the Witness Protection Program. 84 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 in pre-trial, during and post-trial situation. 85 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.
86 A judge or prosecutor may issue an order prohibiting or restricting a person from acting in a certain manner, or from approaching the body, place of employment, or residence of a protected witness, or from someone who is closely related to such a witness. 87 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 one year. 88 One of the salient feature of the witness protection program
79 Id.
80 Witness Protection, Wikipedia, (June 8, 2024, 1:12 PM), https://en.wikipedia.org/wiki/Witness_protection.
81 Id.
82 Gao-Feng Jin, The Protection and Remedies for Victims of Crime and Abuse of Power in China, (June 8, 2024, 7:33 PM), https://www.unafei.or.jp/publications/pdf/RS_No70/No70_15PA_Jin.pdf, accessed January 27 2022.
83 Mohd. Aqib Aslam, Study of the Witness Protection Scheme 2018, (June 10, 2024, 12:03 PM),
https://www.legalserviceindia.com/legal/article-12110-study-of-the-witness-protection-scheme-2018.html.
84 Id.
85 Witness Protection Act, 2006 (China), Article 15.
86 Id., Article 12.
87 Id.
88 Id., Article 13.
in China is the existence of the option of maintaining anonymity of the witness. 89 Article 11 mandates that the personal information that could reveal 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. 90 Article 16 penalizes any person who divulges the personal information of the witness under protection with imprisonment up to seven years. 91 Though Nepal has a Victim Protection Act to ensure the right to justice of crime victims in criminal justice, Nepal does not have any protection mechanism for the witnesses. 92 Relevant witness-related provisions found in the Evidence Act of 1974 and the Civil Code of 1963 only pertain to the process of witness testimony; they have no direct bearing on witness protection.
93 Although there isn't a specific program or policy for witness protection in Nepal, there are some legal provisions that offer witness protection, plea bargaining, and immunity from prosecution scattered throughout various acts, regulations, directives, and practices that are similar to the European Mode. 94 The Witness Protection Bill and Perjury Bill are drafted and kept on the Nepal Law Commission’s website to collect stakeholders’ suggestions and comments for further improvement. 95 In Sri Lanka, the Assistance to and Protection of Victims of Crime and Witnesses Act, 201596 was promulgated on 7 March, 2015 to give effect to appropriate international norms, standards and best practices relating to the protection of witnesses of crime.
97 This comprehensive law satisfies the legal traditions of South Asia by outlining the rights and entitlements of witnesses and protecting and advancing those rights and entitlements. By providing an appropriate legal framework to safeguard the rights of witnesses of crime, this Act seeks to improve the administration of justice. The Supreme Court of India on December 5, 2018 approved the Witness Protection Scheme
89 Id., Article 11.
90 Id.
91 Id., Article 16.
92 Id.
93 Id.
94 Id.
95 Id.
96 Assistance to and Protection of Victims of Crime and Witnesses Act, 2015, No. 4, 2015 (Sri Lanka). 97Assistance to and Protection of Victims of Crime and Witnesses Act, 2015 Sri Lanka, ICRC, (June 10, 2024, 9:10 PM), https://ihl-databases.icrc.org/en/national-practice/assistance-and-protection-victims-crime-andwitnesses-act-2015.
2018 which aimed at enabling a witness to depose fearlessly and truthfully.98 The National
Legal Services Authority and the Bureau of Police Research and Development ultimately made the final changes to the Scheme, which was created with input from 18 States/ Union Territories as well as through a number of public sources that invited recommendations from judges, law enforcement officials, and members of the public. 99 The Supreme Court held that the right of witnesses to testify freely in courts is part of Article 21 of the Constitution (Right to Life). 100 The Scheme will become law under Article 141/142 of the Indian Constitution, the court declared. 101 Additionally, the bench has directed all States and Union Territories to establish vulnerable witness deposition complexes. 102 These rooms will have amenities designed to keep the accused and witness from directly confronting each other.
103 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 14th report examined the factors that prevented witnesses from deposing before a court. Law Commission reports and court rulings have long stressed the importance of witness protection. Since then the Apex Court, the Law Commission and several other committees like Malimath Committee have deliberated upon ‘Witness Identity Protection and Witness Protection Programs’ and have 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.
104 In the case of Zahira Habibullah Sheikh v State of Gujarat105 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.
7. Conclusion
In a trial, witnesses hold a great deal of power. A witness's deposition frequently makes or breaks the case, determining whether justice is done and the truth is maintained, as well as 98 Witness Protection Scheme 2018, Drishti, (June 10, 2024, 7:33 PM), https://www.drishtiias.com/to-thepoints/Paper2/witness-protection-scheme-2018-to-thepoint/print_manually#:~:text=The%20Supreme%20Court%20on%20December,the%20law%20of%20the%20la nd.
99 Id.
100 Id.
101 Id.
102 Id.
103 Id.
104 Mohd., supra note 83.
105 Zahira Habibullah Sheikh v State of Gujarat, (2006) (3) SCALE 104 (India).
whether the defendant is found guilty or not. When a major crime is committed by someone who is wealthy, powerful, or influential and the victims or witnesses come from a community that is marginalized in both social and economic spheres, they are more vulnerable. Girls and women who report sexual violence are frequently even more vulnerable, and the accused may put them under tremendous pressure or even threaten them directly. Because crucial role in the consequence of a case, witnesses are vulnerable to threats against their lives and property, physical harm, and intimidation. In order to avoid depositions, witnesses have been killed on court grounds, and many refuse to testify in court out of concern that their lives, limbs, or property may be threatened. Witnesses must feel comfortable coming forward to support the prosecution and law enforcement.
They must have confidence that they will be looked after and protected. Therefore, it is now urgently necessary to take legislative action to emphasize the ban on tampering with witnesses. There are a number of international instruments which recognize the need to protect witnesses from intimidation, threats and harm. Several states have taken statutory measures to protect witnesses from being threatened or intimidated by the accused or his collaborators. It is the duty of the state to take necessary steps to make statutory provisions regarding protection of witnesses and to implement them. Most of the developed countries started to enact laws regarding victim and witness protection after 1980.
Today USA, UK, Canada, Australia, New Zealand, other European countries, Sri Lanka, India have enacted legislations regarding the rights of victims and witnesses and all of them have their own witness protection schemes. Thus right to protection to and witnesses of crime has become a fundamental part of the criminal justice system of many developed and developing countries. Hence, it could be concluded that although very few rights have been granted to witnesses in our country but still more is required, to give them a fair and respectable status.
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