Good practice in witness protection legislation


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Good practice in witness protection legislation

  1. 1. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONQUERYCould you please provide examples of good practicesin witness protection legislation?PURPOSEWe are making recommendations to the newlyadopted witness protection law in Morocco.CONTENT1. Key features of witness protection legislation2. Country examples3. ReferencesEnquirer: TI MoroccoAuthor(s)Marie Chêne, Transparency International,mchene@@transparency.orgReviewed byRobin Hodess, PH. D., Transparency International,rhodess@transparency.orgDateSubmitted: 08 November 2012Responded: 29.11.12Number: 102SUMMARYSuccessful law enforcement and anti-corruptiondepend on the willingness and ability of individuals toprovide information and give evidence in a court oflaw. As witnesses can be subjected to threats andintimidation from criminals who attempt to obstruct thecourse of justice, witness protection programmes canbe a powerful tool complementing whistleblowerprotection.While originally designed for serious crimes involvingorganised crime, most legislation include corruptionunder the offences covered by their witness protectionlegislation. The UNCAC also calls upon state partiesto take appropriate measures for the protection ofwitness, experts and victims against retaliation orintimidation for their testimony. Measures may includemeasures for ensuring the physical and psychologicalprotection of witnesses as well as for providingevidentiary rules allowing witness to testify in amanner that ensures his/her safety.At minimum, legislation should specify the authorityresponsible for the programme’s implementation,admission/termination criteria and procedures,protection measures that may be used, the rights andobligations of the parties, ensure that theprogramme’s operations are confidential and provideadequate penalties for the disclosure of informationabout protection’s arrangements or about the identityor location of the protected witness.
  2. 2. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATION1 KEY FEATURES OF WITNESSPROTECTION LEGISLATIONOverview of key principlesThere are both human rights and criminal justiceincentives in providing adequate protection towhistleblowers and witness of crimes (UNODCWebsite). Witness can be subjected to threats andintimidation from criminals who attempt to obstruct thecourse of justice. In addition, successful lawenforcement and anti-corruption depend on thewillingness and ability of individuals to provideinformation and testify/give evidence in a court of law.Yet, whistle blowers and witnesses in criminalproceedings may fear retaliation, threats orintimidation from criminals or high ranking officialsinvolved in corruption.Therefore, article 24 of the Organised CrimeConvention (UNTOC) calls state parties to provideeffective protection from potential retaliation orintimidation of witnesses in criminal proceedings forcrimes covered by the convention, which includemoney laundering, and corruption in the public sector.This is especially important when the witness testifiesagainst organised criminal groups.Witness in high profile corruption cases can also beexposed to risks of retaliation or intimidation by highranking officials who are often in a position to abusetheir power. The UNCAC also calls upon state partiesto take appropriate measures for the protection ofwitness, experts and victims against retaliation orintimidation for their testimony. Protection should begranted not only to witnesses but to victims whobecome witness and can be extended to familymembers or persons close to the witness.In national legislations, a number of countries includecorruption among the crimes to be covered by witnessprotection programmes, using the same criteria forconsideration of witnesses in cases involvingorganised crime and corruption. This can potentiallyexclude witness for corruption cases from benefitingfrom the programme, as, while occasionally facingthreat to their lives in grand corruption cases, they aremore often subject to harassment at work, demotionof intimidation to benefit from the programme. (Thelevel of threat against the witness in organised crimethat would give cause to enter a witness protectionprogramme is likely to be much higher). Othercountries have established separate programmes forwitnesses in corruption cases for addressing thisissue and ensure that corruption cases are tackledeffectively (UNODC, 2008).Witness protection measures may include measuresfor ensuring the physical and psychological protectionof witnesses as well as for providing evidentiary rulesallowing witness to testify in a manner that ensureshis/her safety. For example, the articles 32 and 33 ofUNCAC envisage three broad categories of possiblemeasures including:• Physical security procedures, such asrelocation and non-disclosure of informationabout the witness’s identity and whereabouts;• Evidentiary rules to ensure the witness safetyduring the courtroom testimony;• Signing agreements among state parties tofacilitate international relocation of witnesses.A set of core principles lies at the heart of a witnessprotection act (UNODC; 2008 and Kramer, K., 2010),including:• Participation must be voluntary;• Witness protection should not be granted as areward or incentive to testify;• There should be clear criteria for providingprotection to witnesses;• Participation should not make the witnessbetter off than he was before entering theprogramme;• All legal obligations must be kept, includingprotection of the rights of third parties,• Entering a witness protection programmeshould be a last resort tool.• The witness obligations upon admission intothe programme should be outlined in a MOU;• There should be procedures in case ofviolations of the MOU;• Procedures should be established for thedisclosure of information regarding
  3. 3. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONparticipants and penalties for unauthoriseddisclosure of informationMain componentsAt minimum, legislation should specify (Kramer, K.,2010):• Protection measures that may be used;• Application and admission criteria andprocedures;• The authority responsible for the programme’simplementation;• Criteria for removing the witness from theprogramme;• The rights and obligations of the parties;• That the programme’s operations areconfidential;• Provision for penalties for the disclosure ofinformation about protection’s arrangementsor about the identity or location of theprotected witness.Scope and coverageThe UN model witness protection bill refers to witnessas a person who 1) has made or agreed to make astatement/give evidence in relation to the commissionof a serious offence; 2) because of his/her relation tothis person may require protection and 3) for anyother reason may require assistance or protectionunder the act.The UNCAC mandates states to take appropriatemeasures consistent with their legal system to protectwitness, victims or experts against potential retaliationor intimidation. As a result, provisions should applynot only to witness but also to victims who becomewitness as well as extend to family members ofpersons close to the witness. States are alsoencouraged to extend some protections to personsreporting in good faith to competent authoritiesagainst corrupt acts (UNODC, 2006).The concept of witness is not defined in the UNCAC.However, the scope of legislation typically applies topersons who provide testimonial evidence for theoffences covered by the convention and may includeexperts, victims and as appropriate their relatives orpersons close to them. In some countries, witnessprotection can extend to judges, prosecutors andpolice, end even journalists in some cases, may puttheir life in danger (judges, prosecutors, undercoveragents). However, in most counties, it is only inexceptional circumstances that such categories ofpersons are included in witness protection schemes(UNODC, 2008).Informants could also in principle be eligible forprotective measures and the question has come up atnational level (see the Australia example below).However, informants are often persons providingintelligence (as opposed to evidence) to theauthorities for the purpose of investigation and theiridentity is not disclosed, to allow them to continueacting as covet source of information. Most of themare commonly involved or connected with illegalactivities and disclose information for personal benefitfor money or reduction of their liability (Kramer, K.,2010). The UNODC legislative guide for theimplementation of UNCAC calls state parties to applyprotection legislation to persons who haveparticipated in the offence and cooperate with lawenforcement, whether or not they are witness.Countries such as Australia, Canada, and the UnitedKingdom for example allow informants to be admittedinto witness protection schemes.Whistleblowers on the contrary receive no benefit fordisclosing information, except in countries where thelaw provide for rewarding people for disclosingwrongdoing. States are also encouraged by theUNCAC to extend some protections to personsreporting in good faith to competent authoritiesagainst corrupt acts (UNODC, 2006) (see below). Awhistle bower can also become a witness and becalled to testify.The UNODC legislative guide also recommends thatprotection be extended to persons who cooperate andassist in investigations until it is apparent that they willnot be called upon to testify and persons providingrelevant information that will not be required/used incourt because of safety concerns.Criteria for inclusionIn the UNCAC, protection measures are mandatoryfor crimes covered by the convention, but only whenappropriate, necessary, without prejudice to the rights
  4. 4. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONof the defendant and within the means of the state. Asa result, the obligation to provide effective protectionis limited to specific cases or specified conditions andofficials have some discretion in assessing the level ofthreat and decide on protective measures accordingly.Protection measures also need to be within themeans (resources and capacity) of the state (UNODC,2006).Depending on the jurisdictions, a request to benefitfrom the protection can be made by a lawenforcement agency, a prosecutor, a judge or by thewitness, which is typically forwarded to the decisionmaking authority. An assessment of the request willbe made, using criteria such as the level of threat tothe person’s life, the fitness of the person to adjust tothe requirements of the programme, the danger thatthe person may pose to the public in case ofrelocation, the critical value of the testimony forprosecution and impossibility to get this informationfrom another source, the importance of the case andthe family situation of the person (Kramer, K., 2010).Protection measuresThere are a wide range of measures that can betaken, based on an assessment of the risks, fromsimple and affordable security measures to moreformal witness protection schemes involvingrelocation and changes of identity. Criminalprosecution of offenders for intimidating the witnesscan also be a means of protecting the witness.Protection measures foreseen by UNCAC includephysical protection, domestic or foreign relocation,allowing non-disclosure of identity or whereabouts ofwitnesses and special arrangement for givingevidence. Protection measures fall under threecategories (Kramer, K., 2010) :1) Police protection/target hardening: At the firstlevel, police protection includes good investigativepractices such as keeping investigationsconfidential, minimising contacts with police andprosecutors, etc. The second level includesaddressing insecurity with simple measures suchas adequate security briefing, increasing homesecurity (locks, windows), regular police patrolling,mobile phone, etc. At another level, the police canprovide security measures such as closeprotection, regular patrolling around the witnessresidence, installation of security devices,relocation, etc.2) Judicial and procedural measures refer tomeasures taken by the prosecutor or the court toensure that the witness can testify free of fear andintimidation. These measures can be taken toavoid face-to-face confrontation with thedefendant, to make it difficult for the defendant ororganised group to trace the identity of thewitness or to limit the witness exposure to publicor psychological stress. There are usually nostatutory restrictions with regards to the type ofcrimes or witness for which these measures canbe allowed. These types of measures may includeanonymous testimony, presence of anaccompanying person, shields, disguise or voicedistortion, use of pre-trial statement instead of in-court testimony, video testimony, removal of thedefendant from the courtroom.3) Covert witness protection programmes referred toby UNODC as a “formally established covertprogram, subject to strict admission criteria thatprovide for the relocation and change of identity ofwitnesses whose lives are threatened by acriminal group because of their cooperation withlaw enforcement authorities”.4) Optional requirements: Although not mandatory,states have the obligation to considerincorporating measures to provide protectionagainst any unjustified treatment of any personreporting in good faith, on reasonable groundsand to competent authorities facts regardingoffences covered by the UNCAC. This can includemeasures such as career protection, provision ofpsychological support, institutional recognition ofreporting, transfer within the same organisationand relocation to a different organisation(UNODC, 2006).StructureIn many countries such as Canada, Australia, the UK,Hong Kong, witness protection is seen as a policefunction, while others such as the United States, thePhilippines and the Netherlands grant the Ministry of
  5. 5. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONJustice, the Ministry of Interior or the State Prosecutora key role in this regard (Kramer, K., 2010). In a thirdgroup of countries such as Italy and Serbia, a multi-disciplinary body consisting of high levelrepresentatives of law enforcement, judiciary,prosecuting and sometimes civil society organisationsis charged with the implementation of suchprogramme.In any case, there is a growing consensus that it ispreferable to separate the agency responsible forwitness protection from investigative and prosecutorialunits to ensure the objectivity of witness protectionmeasures and the rights of the witness (UNODC,2008). There is also recommendation to establishspecialised witness protection agencies with adequateoperational and budgetary autonomy (Dandurand, Y.,2010).Some authors consider that the location of theprogramme is a secondary issue as long as it meetsthree basic principles, namely: 1) separation frominvestigative agencies; 2) operational autonomy fromthe police and 3) confidentiality of operations (Kramer,K.,2010). On an operational level, vetting the staff istypically mandatory as involved parties, includingadministrative personnel, can relatively easilycompromise the safety of operations and security ofthe witnesses.Reservations/arising issuesRights of the defendants: Measures to protectwitnesses can challenge the basic rights of thedefendant. For example, in some countriesanonymous testimony need to be reconciled with theright of the defendant to confront his accuser, or therequirement that all information detained by theprosecutor be disclosed to the other party to enableadequate defence of the charges. In such cases, thecourt may tailor solutions on case-by-case basis thatmeet both defendant and witness protection rights.Options may include statutory limits on disclosureinformation applicable when some degree of risk hasbeen established; 2) judicial discretion to reviewwritten material and edit out what does not have to bedisclosed and 3) closed hearings of sensitiveevidence (UNODC, 2006).Transparency and accountability: To perform theirfunctions, auditors must have access to all informationregarding expenditures, which may not be possiblewithin the framework of witness protectionprogrammes where information regarding identity,location, etc, may not be disclosed. Theseprogrammes are subsequently typically subject tospecial procedures for auditing and reporting. In NewZealand for example, two special police auditors thathave been security cleared are authorised to checkaccounts, after receipts and operational names havebeen “sanitised”Legislative structure, operation and reviewSome principles applicable to whistle blowinglegislation can also be relevant2 COUNTRY EXAMPLESCanadaCanada’s Witness Protection Programme Act (WPPA)was enacted in June 1996. The Commissioner of theForce or the Royal Canadian Mounted Police have theresponsibility to implement the act.The Act is designed to solely protect witness even ifother agents in the justice process may also bethreatened or at risk. The concept of “witness” isdefined as a person and/or their families who are atrisk and need protection as a result to his/hertestimonies or participation to an inquiry, investigationor prosecution of an offence. Protection measures caninclude relocation, accommodation and change ofidentity as well as counselling and financial support inorder to ensure the security of the protected witnessor facilitate his/her re-establishment.Witnesses need to be recommended for admission bya law enforcement agency or an international criminalcourt or tribunal and agree to enter the protectionprogram. The Commissioner has responsibility todetermine whether a witness is qualified for theprogram and the protection measures deemednecessary. This decision is based on criteria such asthe nature of the risk , the danger to the community ifthe witness is admitted to the Program, the nature of
  6. 6. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONthe inquiry, investigation or prosecution and theimportance of the witness in the matter, the value ofthe information or evidence given, the likelihood of thewitness being able to adjust to the Program, the costof maintaining the witness in the Program, alternatemethods of protecting the witness without admittingthe witness to the Program; and other factors as theCommissioner deems relevant.An agreement between the program and the witnessstipulates the terms and condition with correspondingobligation on the part of the Commissioner and of thewitness requesting protection. There are grounds fortermination of the witness protection agreement maybe terminated on solid evidence, such asmisrepresentation or failure to testify/discloseinformation relevant to the admission of the witness tothe Program or a breach of the obligations of thewitness under the protection agreement.There is a general prohibition to disclose, directly orindirectly, information about the location or a changeof identity of a protected witness or former witness,except if disclosure does not endanger the safety ofthe witness or the protection programme.The Witness Protection Act 1996 can be accessed at: Witness protection act 1994 (UNODC, 2008):• Sets threshold criteria for inclusion of thewitness (referred to as “participants”) into theprotection scheme• Vests the Australian Police with the authorityto govern the placement of the witness andtheir removal from the programme;• Mandates the establishment of a register of“participants” currently or previously under theprotection scheme.• Subjects the inclusion of a person to thesigning of a memorandum of understandingthat setsout the basis of his or herparticipation.• Provides safeguards to ensure thatparticipants do not use their new identity toevade civil or criminal liability and stipulatesthat witness may not be included in theprogramme as a means of encouraging themfor giving evidence or making a statement;• Creates an offence for unlawful divulgation ofinformation about participants and forparticipants disclosing information about theprogramme.The act was later amended to allow participants tomake disclosure for the purpose of filing a complaintor providing information to the Ombudsman, as wellas to allow the inclusion of person into the programmeat the request of the International Criminal Court.The key elements of the Australian witness protectionscheme include (Fenley, J., 1997):• Officers involved in the assessment andplacement of the witness are an operationallydiscrete unit distinct from the operationalpolice dealing with the witness;• Delegation of key functions such as theremoval and placement onto the programmecan not be delegated below specific seniorlevel;• Protected witness can be removed from theprogramme for a number of reasons providedby law:• Any removal from the program or refusal toinclude a witness on the programme issubject to external review.Safeguards in the Act ensure the integrity andaccountability of the witness protection program ismaintained. Members and staff members deployed tothe NWPP hold or occupy designated positions whichhave national security clearance to the level of TopSecret. They can be subject to anti-corruptionstrategies, including drug testing.There have been some concerns on how to deal withinformants under the Australian legislation. As theyare vital to prosecution, informants can be placed onthe witness protection only after they have ceased tobe active informants. When informants are at risk ofinjury, they can be placed on the programme, butthere is no compelling need for the operational policeto place the person on witness protection as there is
  7. 7. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONin court related matters, which may raise some ethicalconcerns. Recommendations in this regard couldinvolve (Fenley, J., 1997):• Registration of informants within the lawenforcement agency• Supervision of the relationship betweeninformant and law enforcement officer• Regular review of the informants’ activitiesand need for protection.• DefinitionMore information on the Witness protection Act 1994can be accessed at: AfricaSouth Africa’s Witness Protection Act 112 of 1998was promulgated in 2000 (UNODC, 2008):The Office of Witness Protection is placed under theauthority of the Minister of Justice and ConstitutionalDevelopment. It is headed by a national directorappointed by the Minister of Justice and has branchesin the provinces. The director makes decision forinclusion or termination of protection based on criteriasimilar than those outlined in the Canadian examplesand recommendations of the provincial branch andrelevant law enforcement officials. Refusals ortermination may be reviewed by the Minister ofJustice.The act covers any witness who has reason to believethat his/her safety or that of other related persons’ isthreatened by reason of being a witness to a crimeunder investigation can benefit from protectionmeasures. The act provides a list of crime for whichwitness may require, including corruption, extortion,fraud, forgery. This list is not exclusive and thedirector has the discretion to approve inclusion ofwitness in respect to any other proceedings.A written agreement is signed between the directorand the witness or the parents or guardian in case ofminor, defining their respective obligations.The law defines offences and severe penalties fordisclosure of information about witness or officials ofthe witness protection office. Violators found guilty ofthe offence and on conviction be liable to a fine or toimprisonment for a period not exceeding 30 years.South Africa’s Witness Protection Act can beaccessed at: KongIn 1994, a witness protection programme was set upby the Hong Kong Police Force. In 1998, a similarprogramme was established under the IndependentCommission Against Corruption. In 2000, the WitnessProtection Ordinance was enacted as a single pieceof legislation providing uniform criteria for bothprogrammes.The act covers persons who have given, (or agreed)to give, evidence , who have provided a statement orother assistance to a public officer in relation to anoffence, who, for any other reason, may requireprotection or who, because of their relationship to orassociation with such persons may require protection.As other acts, the ordinance defines criteria andprocedures for admission and grounds for termination,outlining the obligations of the witness. The ordinancealso establishes an appeals procedure against refusalor termination decisions as well as refusal to changeidentity as part of the applicable measures.Officer with approval authority can take necessary andreasonable action to protect the safety and welfare ofwitnesses that have been admitted or are beingassessed for admission into the programme, includingchanging their identity. Some provisions also providesome protection of witness giving evidence in court,including identification and search of all members ofthe public wishing to enter the court room. Officersworking with the approving authority are protectedfrom suit or proceedings (including criminalproceedings) in respect of actions done in good faithin the exercise of a power conferred by thisOrdinance.Hong Kong’s Witness Protection Ordinance can beaccessed at:
  8. 8. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONmagazines/article2/0503/appendix-ii-hong-kong-witness-protection-ordinance-2000The Organisation of the American Statesmodel lawThe OAS model law was developed as a tool tofacilitate and encourage the reporting of acts ofcorruption and to protect whistleblowers andwitnesses. As it covers both whistleblowers andwitnesses of corruption, it could be particularlyrelevant to countries such as Morocco, which alsocover witness, experts as well as whistleblowers.In particular, Chapter 5 specifically deals with theprotection of witnesses of corruption. The model lawspecifically extend protection to the working conditionsof witness and whistleblowers, stating in its article 20that : access to protection for witnesses of acts ofcorruption is a right that guarantees the exercise andfull enjoyment of the integrity of their persons andproperty and the conservation of their workingconditions, which could possibly be threatened as aresult of their involvement in the proceedings of acorruption investigation.”Protections measures envisaged include: 1)Legalassistance for their participation in the criminal oradministrative proceedings 2) the confidentiality oftheir identities and 3) protection of the workingconditions.With regard to the latter, if the witness is a publicofficial he may be protected against termination, firingor removal from his/her position as a consequence ofhis/her involvement in the investigation proceedings. Ifthe witness is a citizen with no public duties andsuffers workplace hostility, he/she shall receive legalassistance in filing the remedies necessary to asserthis/her rights in accordance with the labor standardsof the private sector.In addition and at the discretion of the competentauthorities and exceptionally, additional protectivemeasures may be granted to witnesses of corruption.In addition to personal protective measures similarthan those discussed above, additional measure mayprotective measures in the workplace such as:1. Transfer of administrative unit within the agency.2. Suspension with pay and without prejudice.3. Change of workplace, if applicable.4. Others established by the authority.The full text of this model law can be accessed at: REFERENCES AND RESOURCESUNODC; 2008, Good practice for the Protection ofWitnesses in Criminal Proceedings InvolvingOrganized Crime, J., 1997, Witness protection schemes: pitfallsand best practice,, K., 2010, Witness protection as a key tool inaddressing serious and organised crime, 2006 Legislative guide for the implementationof UNCAC, 2008, Good practice manual for theprotection of witness manual,, Y., 2010, A review of selected witnessprotection programs,, K., 2010, Protection of witness andwhistleblowers: how to encourage people to comeforward and testimony important information, Federal Police, 2010, Witness Protection
  9. 9. GOOD PRACTICE IN WITNESS PROTECTION LEGISLATIONAnnual Report -Witness Protection Act 1994, model witness protection bill: model law to facilitate and encourage thereporting of acts of corruption and to protectwhistleblowers and witnesses,