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witness
protection
This page considers questions about witness protection
schemes.
It covers -
introduction
As the preceding page of this guide noted, protection
of witnesses (and of judges, lawyers and juries) against
intimidation is a fundamental to an effective legal system.
Individuals will not engage with that system if they believe
that they - or those around them, such as family members
- will be injured or even killed.
Murder of informants (and those suspected of being informants)
has a long history, captured in the aphorism that "dead
men tell no tales". It is evident in commercial crime,
such as that involving drug trafficking, and in other
offences such as terrorism or ethnic cleansing in Africa,
the Middle East, South America and the Balkans.
Law enforcement agencies have responded by providing witnesses
with short term physical protection (eg accommodation
in so-called safe houses, provision of guards and screening
of communications to prevent intimidation). The cost can
be considerable: the Victorian government for example
reported that 24/7 security for two witnesses in the 1983
'Operation Aries' cost some $4.5 million.
For major crime they have also resorted to witness protection
schemes that involve -
- waiving
penalties (or simply agreeing not to prosecute) informants
of significant value
- providing
those informants and their families or other witnesses
with a new identity.
That
new identity typically involves provision of official
identity documents in a new name ('rebirthing' that features
officially-sanctioned resume
fraud) and relocation to another city, state or even
nation to impede efforts at retribution. It may involve
a stipend that allows the witness (and family member)
to maintain a standard of living, assistance with accommodation
and job searching.
The extensiveness of that assistance depends on the perceived
value of the witness and the efficiency (or merely budget)
of the particular agency.
Witnesses have thus commented that on occasion some people
are left high and dry, whether through ineptitude or because
the informant was no longer of value to the law enforcement
agency. Observers frequently note that people are more
likely to gain 'deep' protection' if they have been associated
with major offences: a minor gunman will gain less protection
than a senior figure in organised crime or a terrorist
group who promises to denounce his confederates and who
manages the disclosure in a way that maintains his value.
Rebirthing has proved to be controversial on the basis
that some offenders do not change their nature merely
by being given a new name, address and fictitious personal
history. One complaint in the US and Canada, for example,
is that criminals have been provided with fake identities
in return for provision of information (some of which
has proved to be fictitious or of dubious value) and have
then engaged in various offences - including rape and
murder - using the cover provided by that new identity.
Elsewhere there has been criticism that governments have
rebirthed criminals and exported those individuals to
other countries, which are unaware of their past and unable
to determine whether the offender is a risk.
Risdon Slate notes the 1997 comment by the US Marshals
Service that the recidivism rate for protected witnesses
with prior criminal histories who "were later arrested
and charged with crimes is less than 23 percent",
ie roughly a quarter of people in the particular scheme
went on to break the law.
In Canada recent controversy has involved witness Richard
Young, alleged to have provided false information to the
RCMP (which would invalidate the protection under the
national Witness Protection Program Act) and
later convicted of murder. Federal politicians found out
about the case through media reports; because Young is
a protected witness no details can be published or released.
Although witness protection schemes came to prominence
after the mid-1960s, a precedent is provided by initiatives
such as the US government's Operation Paperclip, which
famously rebirthed or merely sheltered Nazi scientists
and intelligence operatives (some of whom were guilty
of war crimes) during the 1940s through 1960s.
Australia
In Australia the salient legislation is the Witness
Protection Act 1994 (Cth). Consistent with the division
of federal and state/territory government responsibilities
discussed here,
the WPA is concerned with offences under national law.
The Act provides a statutory basis for provision of protection
to people who -
- have
given or agreed to give evidence on behalf of the Crown
in criminal or prescribed proceedings and persons who
have
otherwise given or agreed to give evidence in relation
to a criminal offence
-
have made a statement in relation to an offence or
-
may require protection and assistance for any other
reason
and
are perceived to be in danger by reason of that testimony
or statement. It includes protection for persons who are
related to or associated with those people.
Section 22 of the Act creates offences relating to divulging
information without lawful authority about Commonwealth
participants in the WPA scheme. It also creates offences
that apply to participants in the event that they disclose
information related to the scheme.
As of 2006 there were complementary state/territory schemes
-
- Australian
Capital Territory - Witness Protection Act 1996
- New
South Wales - Witness Protection Act 1995
- Northern
Territory - Witness Protection (Northern Territory)
Act 2002
- Queensland
- Witness Protection Act 2000
- South
Australia - Witness Protection Act 1996
- Tasmania
- Witness Protection Act 2000
- Victoria
- Witness Protection Act 1999
- Western
Australia - Witness Protection (Western Australia)
Act 1996 | here
As
of 2006 the formal cost of the federal witness protection
scheme was around $1 million, down from $2.6 million several
years ago, and covered 39 people. (The figure does not
include protection officer salaries. The reported cost
in Queensland (for 136 people) was $4.3 million. Victoria
appears to cover upwards of 73 witnesses and 89 dependents.
The federal WPA enables inclusion, at the request of a
another nation, of foreign nationals or residents who
"may need to live outside their country of origin
pending or following a trial".
Information about the operation of the Australian schemes
is sketchy, although insights are provided by recent disputes.
In 2007 an informant in the case against slain Melbourne
crime figure Mario Condello went to the state Supreme
Court to prevent himself and his wife being removed from
witness protection by the Victoria Police on the grounds
he was no longer at risk and his behaviour was unacceptable.
The original deal featured overseas relocation and financial
measures worth around $1 million. His claims were rejected
by the Court.
National Crime Authority witness 'Mr Gray' and his wife
sued for damages (including a $127,457 income tax bill
for benefits of around $45,000 a year) after spending
seven years on the NSW program, claiming promises that
they would be "looked after". They were removed
from the program in 1998, alleging that they were penniless
and forced to live off the charity after having enjoyed
a more affluent lifestyle prior to participation. They
were awarded $400,000 compensation in 2002, reduced by
the NSW Court of Appeal in 2003.
elsewhere
Development of the Australian regime was strongly influenced
by witness protection schemes in the US, in particular
the Federal Witness Security Program (WPP) established
in 1970.
The authors of the WPP envisaged that that up to 50 people
per year would require protection but by 1997 some 20
to 25 people per month were being added, along with dependents.
The latter typically included 2.5 family members per witness
but in some instances has included extended families of
15 to 30 people. As of 1997 some 16,000 individuals had
been assisted under the WPP, with a reported 17,100 by
late 2004.
Witness protection schemes are in operation in Canada,
Eire, South Africa, Portugal, Netherlands, the Philippines
and New Zealand.
studies
Points of entry to the academic and professional literature
include Risdon Slate's 1997 'The Federal Witness Protection
Program: Its Evolution and Continuing Growing Pains' in
16 Criminal Justice Ethics 2, Witsec: Inside
the Federal Witness Protection Program (New York:
Bantam 2003) by Pete Early & Gerald Schur, the detailed
National Institute of Justice study Preventing Gang-
and Drug-Related Witness Intimidation (PDF)
and Nicholas Fyfe & Heather McKay's 2000 'Desperately
Seeking Safety: Witnesses' Experiences of Intimidation,
Protection and Relocation' in 40 British Journal of
Criminology 4.
Other works of particular value include Fyfe & James
Sheptycki's 2006 'International Trends in the Facilitation
of Witness Co-operation in Organized Crime Cases' in 3
European Journal of Criminology 3, Fyfe's Protecting
Intimidated Witnesses (Aldershot: Ashgate 2001),
Fred Montanino's 1990 'Protecting Organised Crime Witnesses
In The United States' in 14 International Journal
of Comparative & Applied Criminal Justice 1,
Gerald Wood's 1986 'Police Informants in Canada: The Law
and Reality' in 50 Saskatchewan Law Review 2,
Rod Settle's Police Informers: Negotiation and Power
(Leichhardt: Federation Press 1991) and the 2001 briefing
paper (PDF)
on Legal Issues & Witness Protection in Criminal
Issues by Mark Mackarel, Fiona Raitt & Susan
Moody for the Scottish legislature.
For government perspectives see the 1998 Witness Protection
Report by the Australian Parliamentary Joint Committee
on the National Crime Authority and 2000 Witnesses
For The Prosecution: Protected Witnesses In the National
Crime Authority report by the same committee, Douglas
Kash's upbeat 'Hiding In Plain Sight: A peek into the
Witness Security Program' in the May 2004 FBI Law
Enforcement Bulletin, 2005 report
by the Office of the Inspector General on the United
States Marshals Service Administration of the Witness
Security Program.
The Australian Federal Police's annual Protected Witness
Program report for 2005-6 is online (PDF).
Most state parliaments and police ministries have published
reports on their schemes, albeit difficult to assess given
the opacity of much information. Examples are the 1997
Review of the Western Australian Police Witness Protection
Program report, the 2005 Victorian Office of Police
Integrity Review of the Victoria Police Witness Protection
Program report (PDF)
and 1993 Martin report Review of Witness Security
Program in relation to Victoria Police's 'Witsec' programme.
For 'Paperclip' see Clarence Lasby's Operation Paperclip
(New York: Atheneum 1971) and Uki Goni's The Real
Odessa (London: Granta 2002).
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