The use of anonymous witnesses in disciplinary hearings
The current debate concerning the anonymity of witnesses in the Birmingham Schools’ Trojan Horse affair will resonate with the conundrum faced by many university disciplinary panels - is the promise of confidentiality in order to elicit maximum information justified or inimical to natural justice?
Victims of misconduct or other wrong-doing often mistakenly believe that it is for sufficient for them to make an initial complaint anonymously or with the benefit of confidentiality and the procedure will do the rest for them. On the other hand, promising anonymity at an investigation stage can be very effective. It encourages witnesses who would otherwise be reluctant to come forward to make reports of misconduct and to provide information uninhibited by the prospect of immediate disclosure to the alleged perpetrator. Institutions are not prohibited from allowing anonymity to continue until the conclusion of any disciplinary proceedings, but they will need to justify clearly any decision to do so by reference to the specific circumstances of the particular case.
The very kernel of natural justice is that the accused should not only be informed of the case against him/her, but should also be afforded the opportunity to challenge the evidence adduced in support of that case. In most cases, knowing the identity of the witnesses will be a prerequisite to exercising that right. Not knowing can deprive the accused of the very details enabling him/her to demonstrate that the witness is prejudiced, hostile, vindictive or simply unreliable. Statements imputing blame may be untruthful or merely erroneous and the accused will be unable to bring such facts to light if he/she does not have the information enabling him/her to test the witness’s reliability or to call the witness’s credibility into doubt. That in turn will influence the weight a panel can attribute to anonymous evidence and may prevent the university from proving its case on the balance of probabilities, unless there is other persuasive evidence.
Anonymity is likely to warrant serious consideration in circumstances where the witness is genuinely fearful of harm or reprisal as a result of giving evidence. Mere embarrassment or fear of putting one’s head above the parapet are very unlikely to be sufficient justification. Potential witnesses should therefore be advised that while they may request anonymity during the investigative process, it can only be maintained during the substantive decision making process (i.e. the hearings where guilt is decided on the basis of the evidence presented) if justified, taking into consideration the duty of natural justice to the accused.
Where a university does decide that anonymity is reasonable in a particular case, it should:
seek other evidence which corroborates the anonymous witness’s evidence
provide the accused with an anonymised copy of the full witness statement
explain why the witness wishes to remain anonymous to afford the accused an opportunity to challenge the reason
ensure the panel is appropriately trained and hence confident to attribute appropriate weight to anonymous evidence.
Legal Director, Education Team