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Assistant Commissioner: We could provide witnesses with greater reassurance

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Bermuda's courtrooms could be less daunting places for frightened witnesses to testify if “special measures” ranging from privacy screens to complete anonymity were used.

That's the view of Assistant Commissioner of Police David Mirfield, who is using his experience cracking gun crime in England to help tackle the outbreak plaguing Bermuda.

“We have got to be able to offer witnesses a safer and more comfortable environment in the court setting because it's already an extremely daunting prospect to give evidence and be cross-examined, and I don't think we can ever underestimate how difficult that is,” he told

The Royal Gazette.

As a Chief Superintendent with West Midlands Police, Mr Mirfield spearheaded a campaign that dramatically reduced gun and gang violence in England's second largest city, Birmingham.

Among the tools used were “special measures” available under UK law where vulnerable and intimidated witnesses can give evidence from behind a screen, via videolink, with their voice distorted and even under a cloak of complete anonymity in extreme cases.

Since arriving in Bermuda just over a year ago, Mr Mirfield says he's sought “every opportunity” to share his views on the potential benefits of using similar measures on the Island, which has seen 16 gun murders since May 2009.

Three of those cases have resulted in the culprits being convicted after Supreme Court trials where prosecution witnesses testified without any UK-style special measures. However, the police have come up against witnesses too scared to go public with valuable evidence in other cases.

“The challenge for Bermuda is to convince people that giving evidence is not only the right thing to do morally and for the country, but also that the potential damage to them as individuals is reduced in every way we can possibly do so,” said Mr Mirfield.

“It's fair to say that at every crime scene there are people that will come forward with information. It's not as though there's a blanket wall of silence. People want to share information and it's our job to make that beneficial for the investigation.”

Bermuda already has a witness care unit that supports people by explaining what they can expect when they come to court. There is also a witness protection programme which goes as far as relocating witnesses abroad in extreme cases. Mr Mirfield said these have proved valuable, but there are other areas that could be improved upon.

“The difficulty we have now in Bermuda is each witness is required to give evidence in person on oath on a standard witness box, which in Supreme Court means they are virtually at arm's length from the defendant, the defence lawyer and the defendant's family,” he noted.

“It just makes it very daunting for the witness to give evidence. Personally, I would like to see more thought go into how we can protect those witnesses from being seen in court. The options in the UK under special measures include screening them from the public gallery and the defendant. That provides an element of privacy. There can be a live video link where a witness is in a different location. They could even be off-Island and still be cross-examined in the normal way.

“They can also give evidence in private, without members of the public and the press, who are not permitted in court. Sometimes they allow one member of the press in to act on behalf of all the media.

“Not allowing the public to be present is something that would only be done in certain circumstances, when there is evidence from the prosecution that the witness is both vulnerable and intimidated. It's down to the judge to be able to make that happen. A more high-tech option is voice distortion, although that brings a whole raft of technical challenges.”

At the extreme end of the scale is total anonymity for witnesses, where no one in the case including the defendant would be told the true identity of the person giving evidence. Lawyers are barred from asking questions that could reveal the witnesses's identity.

“You would need legislation passed, as in the UK, for anonymous witnesses so the person could give evidence in court under a different name,” Mr Mirfield explained. “The jury would not know they were anonymous.”

He acknowledged that such a measure would be fraught with challenges and complications in a small island such as Bermuda, where everyone knows everyone else.

Nonetheless, he said: “I think it should be considered for Bermuda. It needs to be handled very carefully. I think it's another tool in the witness care and witness protection armoury. It's cost effective too the cost of keeping someone in witness protection is steep, but if you're anonymous you don't need any protection; you go about your business and nobody ever knows it was you giving evidence. But I don't dismiss at all how difficult that would be here.”

Mr Mirfield saw first-hand how special measures can achieve real results in one notorious case that came before the courts during his time with West Midlands Police. On January 2 2003, two teenage girls; 17-year-old Letisha Shakespeare and 18-year-old Charlene Ellis, were killed when gang members fired a submachine gun into a crowd attending a party at a hair salon.

Four members of a gang called the Burger Bar Boys were charged with the double killing, and the police felt the full gamut of special measures was required when the case came to trial. The men were eventually convicted and jailed.

“This was a gang-related assassination where four teenage girls were gunned down, two survived with serious gunshot injuries, two died. All the witnesses were scared and their lives changed forever. It was our responsibility to ensure that when they gave evidence they did so in as secure an environment as possible,” said Mr Mirfield, who led the investigation for West Midlands Police.

“That was one of the pivotal cases for witness anonymity. We used several anonymous witnesses and all the special measures available, including voice distortion. The defendants were in a dock encased in glass they could not hear proceedings except through microphones.

“TV screens were used so that the public and the media could listen to what was happening, but they were located in a different courtroom. The evidence was heard by the jury first hand in court given by the witness in person. Even though their voice was distorted to the defendants and the public, the jury heard the evidence in full in the true voice.

“This meant the best evidence was presented. I am convinced that without these measure, those convictions would not have happened.”

He does not expect to see such extreme measures used in Bermuda any time soon, however.

“I'm conscious that these things take time and there's a raft of legislation that's already come in [since the outbreak of gun violence]. I know there's a concern that we will be overly legislated so I understand there may be some reluctance to add to it,” he said.

“But I just think with some simple changes in either policy or legislation, we can provide witnesses with far greater reassurance than they currently have when giving evidence.”

* For more on this series click

here.

Assistant Police Commissioner David Mirfield

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Published September 12, 2011 at 9:00 am (Updated September 12, 2011 at 9:54 am)

Assistant Commissioner: We could provide witnesses with greater reassurance

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