International Trends in the Facilitation of Witness Cooperation in OK Cases

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DOI: 10.1177/1477370806065585 2006; 3; 319 European Journal of Criminology

Nicholas Fyfe and James Sheptycki Organized Crime Cases

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International Trends in the Facilitationof Witness Co-operation in OrganizedCrime CasesNicholas FyfeUniversity of Dundee, UK

James SheptyckiYork University, Canada

A B S T R A C T

This article surveys the existing literature on the facilitation of witness co-operation in the USA and a variety of European countries. It highlights trends inthe evolution of the legal landscape concerning the use of criminal informantsand witnesses as the central approach to the investigation and prosecution oforganized crime. It also looks at the use of plea-bargaining, witness immunity,and criminal informant and undercover police testimony. It provides compar-isons in the development of these techniques and it does so by reference to thenarrative histories of practice and legal debate about the efficacy of thesemeasures in various countries. The article concludes that, although significantmoral hazards are associated with these developments, and although theefficacy of these techniques has not been fully demonstrated by solid empiricalresearch, they are likely to remain in force for the foreseeable future.

K E Y W O R D S

Comparative Criminal Justice Systems / Moral Hazard / Organized Crime / Plea-Bargaining / Witness Immunity / Witness Protection.

Introduction

Organized crime has become a top policy priority for criminal justicesystems in most European jurisdictions and, indeed, globally. One effect ofthis policy priority has been the trend towards the use of criminal informants

Volume 3 (3): 319–355: 1477-3708DOI: 10.1177/1477370806065585

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and witnesses as the central approach in the investigation and prosecution oforganized crime. There has increasingly been a resort to ‘accomplice testi-mony’ from so-called ‘co-operating’ or ‘crown’ witnesses who in some casesmay be ‘compelled’ to give testimony and in other instances may require‘protection’ due to the intimidation they might face. An increasing numberof countries have introduced legislation and policy to facilitate witness co-operation in organized crime investigations – most recently the UK, with thepassing of the Serious Organized Crime and Police Act 2005. In addition toestablishing a new Serious Organized Crime Agency (SOCA) for the UK,this Act also includes, for the first time, specific provisions covering: the‘protection of witnesses and other persons’ involved in investigations orproceedings related to organized crime; immunity from prosecution foroffenders assisting investigations and prosecutions; and plea-bargaining inrelation to assistance provided by a defendant.

In this article we draw together the published literature to produce apicture of the international trends in this area of legal innovation. The firstsection reviews the legislation which established and subsequently revisedthe United States Federal Witness Security Program (known as WITSEC).WITSEC has been described as the ‘paradigm programme’ (Roberts-Smith2000) because of its influence on the development of witness protectionarrangements elsewhere in the world. In the second section this influence isillustrated by examining the European context. Both the US and Europeanexperience of witness protection raise key questions concerning the rela-tionship between costs and effectiveness and the perceived legitimacy andethics of witness protection programmes. The issues of cost and effective-ness are considered in the third section. Other measures that have beendeployed in the USA and Europe to facilitate witness cooperation inorganized crime cases include accomplice testimony, plea bargaining andwitness immunity. These measures are reviewed in the fourth section and thewider issues of ethics and legitimacy are examined in the fifth section.

It needs to be acknowledged at the outset that social scientific andlegal research in the areas of witness protection, accomplice testimony, pleabargaining, and witness compellability in the context of organized crime isstill in its infancy and in some countries appears to be non-existent. Witnessprotection has gained the greatest research attention in the USA which hasthe longest established programme for protecting witnesses in organizedcrime cases. There is relatively less research in Europe and this reflects acombination of influences, particularly the newness of the approach. Muchof this article, therefore, relies on secondary sources and particularly a so-called ‘grey literature’ of policy-based research. What is largely lacking inthis field is independent, evaluative research on the efficacy of thesemeasures. Furthermore, since this is a relatively new area of policy innova-

320 European Journal of Criminology 3(3)




tion there is little in the way of critical scholarship, especially that whichconsiders the ethical issues surrounding the use of testimony by criminal-witness informants and undercover police. While this article ultimatelycannot answer the policy question ‘what measures work where and why?’,it does provide a comparative account of the literature that describes thedevelopment of these measures in Europe and North America and, thereby,provides something of a base-line account on which future evaluativeresearch and ethical consideration may rest.

The paradigm programme; the US Federal Witness SecurityProgram (WITSEC)

Described as ‘the paradigm programme’ (Roberts-Smith 2000) on whichmany other countries’ witness protection programmes are modelled, the USFederal Witness Security Program (WITSEC) was established by the 1970Organized Crime Control Act. The background to the Act was the limitedsuccess in the 1960s of the Justice Department’s attempts to tackle Italian–American organized crime and, in particular, the problems created by theMafia code of omerta, the code of silence, which created difficulties insecuring convictions against members of ‘the mob’ (Earley and Schur2002). By providing a high level of security to mob witnesses, includingsecret relocation and a change of identity, WITSEC became the key tobreaking omerta.

The Organized Crime Control Act states that ‘The Attorney Generalshall provide for the care and protection of witnesses in whatever manneris deemed most useful under the special circumstances of each case’. Keyprovisions of the Act include:

• specifying that qualification for protection under the Act witness testimony mustbe pertinent to a specific case and there must be evidence that it would be in thefederal interest for the Justice Department to offer protection;

• giving the Attorney General the authority to provide for the security of govern-ment witnesses and their families in organized crime cases;

• allowing the protection of a witness and their family to continue for as long asthese people are, in the Attorney General’s judgement, in danger; and

• giving the Attorney General authority to determine what kind of facilities are tobe provided for a witness and their family such as housing, welfare and healthcare.

Although viewed as one of ‘the most effective law enforcement toolsfor organized crime’ (Montanino 1990: 502), several important problemsbegan to emerge with WITSEC soon after it was established. First, therewas no clear definition of the boundaries of protection, resulting in the type

Fyfe and Sheptycki Organized crime cases 321




of assistance being resolved on a case-by-case basis. Second, little considera-tion was given to the unintended victims of witness relocation. Theseincluded individuals and organizations being unable to recover unpaid debtsfrom witnesses and their dependants; denial of access to non-relocatedparents of children taken into protection with a partner; problems forcommunities into which witnesses were moved given that most of theprotected witnesses had criminal convictions, and, therefore, posed a poten-tial threat. Third, under-staffing and under-training of the Marshals Service,led to breaches in security, delays in dealing with the documentation neededfor new identities and an inability to respond effectively to the welfare needsof witnesses and their families trying to adjust to their new lives.

Against this background, Congress reviewed the structure and opera-tion of WITSEC, tipping the balance somewhat in favour of the rights andinterests of the public when those rights and interests conflicted with thepurpose of WITSEC (Lawson 1992). In 1984 these (and other) issues wereaddressed in the ‘Protection of Witnesses’ chapter of the ComprehensiveCrime Control Act. This broadened the Attorney General’s authority tooffer relocation or other protection to a witness, their immediate family ora person closely associated with the witness if that person was also indanger, in official proceedings concerning organized criminal activity, drugtrafficking offences, or other serious federal or state felonies where thewitnesses’ testimony was likely to lead to retaliation by violence or threatsof violence. The Act also defined what the Attorney General could providefor a protected witness in terms of establishing a new identity, housing,subsistence payments, help in finding employment and any services neededto help the witness become self-sufficient. Also, when selecting witnessesfor the programme, the Attorney General must provide a written assess-ment to evaluate whether the need for a person’s testimony outweighs therisk of danger to the public, including potential harm to innocent victims.In relation to parent–child relationships, for example, the Attorney Generalmust give an assurance that relocation will not infringe any of the non-relocated parent’s custody or visitation rights.

These new provisions represented an advance on the original legisla-tion, by helping to define ‘the moral boundaries within which . . . “im-proved” protection must take place’ (Montanino 1987: 404). However,even with these improvements, the government’s policy of witness protec-tion appeared to place harm to the public from organized crime aboveharm to the public from protecting witnesses. Critics of WITSEC continuedto draw attention to ‘the overarching questions of practical feasibility,intrinsic morality and fairness to the public’ (Lawson 1992: 1455). Lawsonasks whether there are ‘reasonable alternatives to carrying out the govern-ment’s duty of protection that do not make purposeful misrepresentation,





excessive expenditures and interference in the lives of innocent parties?’(Lawson 1992: 1455). One suggestion has been for stricter standards in theselection of witnesses for WITSEC by means of an independent reviewboard that would focus on the possible future dangerousness of a protectedwitness rather than simply on the importance of their evidence. Addition-ally, several US states have established alternative forms of witness protec-tion programmes. Examples include the Short Term Protection Programestablished in Washington in 1991 in response to localized criminal andstreet gang organizations, and the Illinois Gang Crime Witness ProtectionProgram established by State legislation in 1996 (Illinois Criminal JusticeInformation Authority 1997). The latter is administered by the Illinois StatePolice and aims to facilitate the prosecution of perpetrators of gang crimesby providing financial and technical assistance to state’s attorneys and theattorney general for the protection and relocation of gang crime victimsand witnesses.

Witness protection in Europe

WITSEC has provided an important ‘model’ for other countries. US-stylewitness protection programmes have become a new feature of the criminaljustice landscape in a variety of European jurisdictions over the past 10 to15 years and are now viewed by many as a crucial tool in cases involvingproblems of organized crime and terrorism. Variations in the nature andextent of these problems, as well as differences in legal systems mean thatthe precise form of witness protection arrangements varies from country tocountry (see Table 1). Four main differences can be identified. First thereare differences in legislation governing the operation of witness protectionprogrammes and in some instances, like the UK, it is only very recently thatmoves have been made to place it on a statutory footing.1 Despite thesedifferences in legislative context, however, the eligibility criteria for witnessprotection measures are broadly similar. Protected witnesses need to begiving evidence in relation to the most serious crimes and those who areclose to the witness who might be endangered are also eligible for protec-tion. The forms of protection available are also quite similar (regardless ofspecific legislation) and normally involve the relocation of a witness and hisor her close family, the possibility of formally changing their identity, and

1 The publication in March 2004 of a UK Government White Paper entitled One Step Ahead:A 21st century strategy to defeat organized crime included a raft of new anti-organized crimemeasures including witness protection, witness immunity and plea-bargaining (Home Office2004) that were subsequently incorporated into the Serious Organized Crime and Police Act2005.





Table 1 A summary of the key features of legislation relating to witness protection in European states

Country

Date ofrelevantlegislation

Title of relevantlegislation

Who is eligible forprotection?

What types of protection and supportare available?

Who decides on who isprotected?

Who providesprotection?

Austria – Code of PolicePractice andCode of CriminalProcedure.

Individuals ‘able tosupply information ona dangerous assault ororganized crime andwho are thereforeespeciallyendangered’.

Restricted participation in trial thoughuse of audio and/or videotransmission; exclusion of public ordefendant during trial; ‘particularprotection’ provided by lawenforcement authorities; change ofidentity.

The investigating judge canrestrict a witness’ participationin a trial; the presiding judgecan exclude public ordefendant from courtroom; theFederal Minister of the Interioris responsible for changes ofidentity.

‘Particularprotection’ isprovided by lawenforcementauthorities.

Belgium 2002 Rules relating tothe protection ofvulnerablewitnesses andother provisions.

Persons placed at riskas a result ofstatements made inconnection with acriminal case, theirfamily members andother relatives.

Distinction between ‘ordinaryprotective measures’ and ‘specialprotection’. The former includes:protection of data on the personprotected held by the Census Boardand Registrar General, provision ofalarms, police patrols, monitoring ofphone calls, direct physical protection,and relocation for a maximum of 45days. Special protection includes:relocation for more than 45 days anda new identity; monthly subsistencepayments; a one-off businessestablishment payment. A personbenefiting from special protectivemeasures will also automatically havethe right to psychological assistanceand assistance with finding a job.

The Witness Protection Board(comprises the Federal PublicProsecutor [Chair], a PublicProsecutor, the AttorneyGeneral, the Commissioner ofthe Criminal InvestigationDepartment of the FederalPolice, and in an advisory, non-voting capacity, representativesof the Ministry of Justice andMinistry of Interior). TheWitness Protection Board cangrant ‘ordinary’ or ‘special’protection.

Protection co-ordinated by theWitness ProtectionDepartment of theDirectorate-Generalof the CriminalInvestigationDepartment of theFederal Police.Implementation lieswith the DirectorGeneral ofOperational Supportof the Federal Police.

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CzechRepublic

2001 The specialprotection ofwitnesses andother persons inconnections withcriminalproceedings.

A ‘protected person’ isan ‘endangeredperson’ provided withspecial protection. Anendangered person isa witness or otherperson (includingthose in a ‘closerelationship’ with thewitness and theaccused if they testifyto assist with criminalproceeding) ‘in dangerof bodily harm or inother grave jeopardy’.

‘Special protection and assistance’includes personal protection,relocation and help with ‘socialassimilation in the new environment’,‘covering up the real identity of theprotected person’. ‘Special financialmeans’ are also available to pay someexpenses associated with ‘specialprotection.

A Supreme Court judge mustapprove a police proposal toprovide special protection butthe consent of the ‘endangeredperson’ concerning theconditions of special protectionmust have been acquired first.If the threat is immediate, thepolice with the approval of thePolice President or, if theperson is in prison, the head ofthe Penitentiary Service, can beprovided temporarily before theSupreme Court approves theproposal.

It is for the Minister to decideon the termination of specialprotection based onrecommendations from thepolice.

The police or, if the‘endangered person’is in prison, thePenitentiary Service,organize and provide‘special protection’.Public administrativeauthorities have astatutory duty to co-operate.

France 2001/2002

‘Everydaysecurity’ and‘internal security’.

A witness is defined as‘a person in respect ofwhom there is noindication of his/herhaving committed orattempted to commitan offence and who islikely to be able tocontribute evidence ofrelevance to theproceedings’.

Distinguish between ‘physicalprotection’ and ‘legal protection’. Theformer includes police protectionbefore and after trial, use of audio oraudio-visual devices duringproceedings and allowing a witness toappear before the defendant fromwithin or outside French nationalterritory using appropriatetechnologies. Legal protection relatesto scope for witnesses to testifyanonymously.

Authorization of publicprosecutor or examiningmagistrate required for‘physical’ and legal protection.

Although no ‘witnessprotection service’exists. Frenchinternal securitypolicy provides forthe appointment ofpolice andgendarmerie officersin each region ‘toensure the safety ofwitnesses before andafter judgement’.

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Table 1 Continued

Country







Germany 2001 WitnessProtectionHarmonisationAct.

A person curial tocriminal proceedings ,who faces seriousdanger if they testify,and is suited to witnessprotection measures;family members orothers close to witnessand are suited towitness protection.

The type of protection is matter forwitness protection units (WPUs)‘Temporary cover identities’ can berequested by WPUs who can alsoprovide allowances to witnesses.

Normally the police and, inparticular, the bureau of theprotection of witnesses which islocated in every region.

Police witnessprotection units baseat the regional level.Only in rare caseswould the FederalBureau ofInvestigation beinvolved (BKA).

Italy 1991(revised2001)

Provisions for theprotection ofpersonscooperating withjustice – specialprotectionmeasures.

Witnesses to drugs,mafia or murderoffence and alloffences where thesentence is between 5and 20 years.Informants for mafia,terrorism and drugtrafficking offences.Those close towitnesses orinformants who arealso in danger can beprotected as well.

Three types of protection are available:(1) a ‘Temporary plan’ involvingrelocation and subsistence and lastingfor 180 days.(2) ‘Special measures’ involvingprovision of protection and socialreintegration plans of relocated.If ‘special measures’ are inadequatethen:(3) ‘Special protection programme’:provides relocation, provisional identitydocumentation, financial assistance(monthly allowance, house rent,health care, social and legalassistance), and, as a last resort, newlegal identities.Informants co-operating with justicewho are in prison must serve at least aquarter of their sentence or, if in forlife, 10 years.

A Public Prosecutor whoseoffice is investigating a case orthe Head of Police recommendsindividuals for inclusion to aCentral Commissioncomprising: Under-Secretary ofState at the Ministry of theInterior [chair], two judges/prosecutors; five experts in thefield of organized crime.Decisions are by majorityvoting; Chair has casting vote.Members of the Commissionshould NOT work in officesconducting investigativeactivities related to organizedcrime of the mafia or terrorists.Authorization for a change ofidentity must be given by theCentral Protection Service.

‘Special measures’are implemented byCivil Governors(Prefetti) at a locallevel. The CentralProtection Service isresponsible for theimplementation andenforcement of thespecial protectionprogrammes and haslocal operationalunits. The Service isdivided into twodivisions: one forinformants the otherfor witnesses.

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Lithuania 1993 Programme toprotect witnessesand victimsagainstintimidation.

Witnesses, victims,experts, defencecounsel, the accused,defendants andconvicted persons, andsecurity officials ifinvestigations intoserious crime indicate‘their lives, health andproperty, as well asbasic rights andfreedoms embodied inthe constitution are atrisk’. Also eligible arethose close to theabove people.

Direct personal protection; temporaryrelocation; ‘data stop’ on officialrecords; permanent relocation with jobor place in full-time education; a newidentity; cosmetic surgery; issuing ofweapon. Also trilateral agreementsexist with Estonia and Latvia to allowlegal stay by person being protectedin another country and assistance withthat person’s integration.

Application for protectivemeasures is made to thenational chief of police, theprosecutor general, the headsof public prosecutors’ offices,and of the policesuperintendents for the areaconcerned or the competentinvestigator.

National chief ofpolice decides on thenature and scope ofprotective measures.A specialized unit forthe protection ofwitnesses and victimsexists within thepolice divisions ofthe Ministry ofInterior.

Poland 1997 Law on ProtectedWitnesses.

Eligibility restrictedlargely to being awitness in casesinvolving organizedcrime.

Personal protection, relocation,assistance with changing employment,and ‘in particularly justified cases’change of identity.

The Prosecutor decides onestablishing the protection orassistance for a witness but TheCouncil of Ministers ‘shalldetermine in an ordinance thedetailed conditions, scope andmanner in which protectionand assistance . . . shall begranted and withdrawn’.

The Chief of Police.

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Table 1 Continued

Country







Portugal 1999 – Anyone in possessionof information/knowledge necessaryto the disclosure,apprehension orevaluation of the factssubject toinvestigation. Thiscovers the co-defendant and victim,and protectionmeasures can coverwitnesses’ relatives orothers close to them.

(i) Concealment and teleconferencing:the witness’s image or voice can bedistorted to avoid recognition; awitness can deliver evidence remotelyvia teleconferencing but a judge mustbe present with the witness.(ii) Non-disclosure of witness’s identity(iii) Specific security measures whichinclude transport to court in Statevehicle, provision of secure room atcourt, and police protection ofwitness, relatives and others with aclose relationship.(iv) Specific security programmesincludes change of identity, changes inthe ‘physiognomy or the body’,relocation, provision of conditions for‘obtaining means of maintenance’,and granting of a subsistenceallowance.

Decisions regardingconcealment andteleconferencing are decided bythe court at the request of thePublic Prosecutor, defendant orwitness. The non-disclosure of awitness’s identity is decided byan Examining Magistrate uponrequest from the PublicProsecutor but only if testimonyrelates to certain criminaloffences (including trafficking inhuman beings, organizedcrime, drug-trafficking,terrorism and terroristorganizations), the witnessfaces serious danger and theirtestimony is crucial. Theprovision of ‘specific securitymeasures’ can be ordered bythe ‘judicial authority in chargeof proceedings’ or uponrequest by interested parties orat the proposal of the criminalpolice authorities. Specificsecurity programmes are onlyavailable in cases concerning

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serious criminal offences andare handled by the Commissionfor Special SecurityProgrammes, supervised by theMinistry of Justice whichappoints President andSecretary of the Commissionand which also includes ajudge and a Pubic Prosecutorwith experience of violent andorganized crime.

SlovakRepublic

1998 Protection of thewitness.

Protection is availableto witnesses and theirimmediate relatives‘whose lives andhealth becomethreatened as a resultof their testimonies bythe perpetrators of themost serious andespecially of organizedforms of criminalactivities’. Protection isalso available to theaccused and/ordefendant.

Protection measures ‘may be relatedpredominantly to the identity,appearance, domicile, provision ofsocial security and professional re-qualification’ of the witness. Beforejudicial proceedings begin, the Unit ofthe Police Corps will consult with theChief Justice of the Court about theadministrative and technical measuresrequired.

Decision taken by TheCommission, comprising fourmembers and a Chair. TheChair and one member areappointed by the Minister ofInterior from among membersof the Police Corps. Twomembers are appointed by theMinister of Justice from amonghis/her ‘subordinates’. Onemember shall be appointed bythe General Prosecutor fromamong the prosecutors in his/her office.

A unit within thePolice Corps.

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Table 1 Continued

Country Date ofrelevantlegislation






Spain 1994 Protection ofWitnesses andExperts onCriminalProceedings.

Anyone who as awitness or an expert isobliged to participatein the criminal processand who the JudicialAuthority rationallysees as being in‘severe jeopardy’.Those enjoying a closerelationship withwitness or expert arealso eligible.

Non-disclosure of personal details ofwitness during trial; use of measuresto prevent visual identification duringtrial; secure transport to andaccommodation at court; policeprotection; change of identity andprovision of financial resources in forrelocation of residence or workplace.

Examining Magistrate

UK 2005 SeriousOrganised Crimeand Police Act.

Persons involved incriminal investigationsor proceedings havingregard for: (a) thenature and risk to theperson’s safety (b) thecost of thearrangements (c) theability of the person toadjust to their changein circumstances (d) ifa witness, the natureof the proceeding andthe importance oftheir testimony.

Not specified in the Act but couldinclude relocation and assumptionof a new identity.

Chief Police Officers, theDirector General of the SeriousOrganised Crime Agency(SOCA), the Director of theScottish Drug EnforcementAgency (SDEA), Commissionersof Her Majesty’s Revenue andCustoms.

Police, SOCA, SDEA,Her Majesty’sRevenue andCustoms. The Actalso places a duty onpublic authorities toprovide assistance ifrequired.

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help with social and economic assimilation in the communities to whichthey are moved.

A second important difference within Europe is that some countries,including the UK, view witness protection as largely a police function (seeFyfe 2001), whereas others give a key role to the judiciary and governmentministries. In Belgium, for example, a Witness Protection Board, compris-ing public prosecutors, senior police officers and members of the ministriesof Justice and the Interior, takes decisions about who is protected. In Italya Central Commission takes the decisions, chaired by the Under-Secretaryof State at the Ministry of the Interior. By contrast, traditionally in the UK,decisions about inclusion on protection programmes have been taken by asenior police officer.

A third difference is that in some countries, most notably Italy, thenature and scale of organized crime means that there are thousands ofparticipants on witness protection programmes, whereas in other countriesthere are probably no more than a few hundred. In The Netherlands andGermany, for example, the number of participants on witness protectionprogrammes is estimated to be between one and three people per millioninhabitants (in Germany about 650 people a year are taken on to witnessprotection programmes); in Italy there are currently about 91 participantsin such programmes per million inhabitants, equivalent to over 5000people in total, of whom slightly more than 1000 are witnesses while theremainder are their close relatives (Van der Heijden 2001; Italian Ministryof the Interior 2001).

Despite these differences there have been clear attempts to harmonizeaspects of witness protection arrangements across Europe (Council of theEuropean Union 1995, 1997). A European Liaison Network, co-ordinatedby Europol and comprising the heads of specialist witness protection units,was established in 2000. As a Europol document explains, the main goal ofthe Network is ‘to create a useful, common platform for future co-operation and to give those Member States in which the implementation ofwitness protection is still underway the great chance to avoid waste of timein “reinventing the wheel” again’ (Europol 1999). More recently theCouncil of the European Union (2005) adopted a recommendation on the‘the protection of witnesses and collaborators of justice’ which acknowl-edges the need for ‘member states to develop a common crime policy inrelation to witness protection’. In developing such a policy, the Council ofEurope urges member states to be guided by particular principles, includingorganizing protection of witnesses before, during, and after the trial, andfinding alternative methods of giving evidence which protect witnessesfrom face-to-face confrontation with the accused. In terms of protectionmeasures and programmes, the Council of Europe recommends a range of





initiatives from using audio-visual recording of statements made by wit-nesses or devices that would protect the identification of witnesses at court,through to relocation or change of identity but only when ‘no othermeasures are deemed sufficient to protect witnesses’ (Council of theEuropean Union). Where witness protection programmes are established,the ‘main objective of these programmes should be to safeguard the life andpersonal security of witnesses/collaborators of justice, and people close tothem, aiming in particular at providing the appropriate physical, psycho-logical, social and financial protection and support’.

The costs, effectiveness and legitimacy of witness protectionprogrammes

Despite the widespread use of witness protection programmes to tackleorganized crime, there is remarkably little research evaluating either thecosts or the effectiveness of these measures. There is some evidence relatingto the financial costs of witness protection programmes in different parts ofthe world. In one unnamed European country, the costs (as of 1999) variedbetween US$80,000 (c.£50,000) and US$160,000 (c.£100,000) per partici-pant; in another unnamed European country the average cost for a witnessand family of three people was US$80,000 (£50,000) a year and theaverage duration of protection was five years making total costUS$400,000 (c.£250,000) (Heijden 2001). In the UK the average costs toprotect a witness and their family has been estimated at between £10,000and £50,000 but one study found the average cost to be nearer £4000 (Fyfe2001). In Italy the Central Protection Service, which has 700 employeesand protects just over 5000 people has a budget of approximately £72million a year, which is equivalent to £14,500 per participant (ItalianMinistry of the Interior 2001).

In terms of the ‘effectiveness’ of witness protection programmes, theavailable evidence is a mix of anecdotal observations (largely from self-interested practitioners) and conviction data. In the USA, the federalgovernment has declared that ‘The Federal Witness Protection Program hasbecome so essential that it is difficult to imagine federal law enforcementwithout it’ (quoted in Earley and Schur 2002: 228) while Greer, drawinglargely on newspaper reportage, claims that WITSEC ‘had hit the ItalianMafia hard’ (2001: 126). Similar claims have been made in Europe.According to Van der Heijden, witness protection programmes in Germany,Italy and The Netherlands ‘are highly effective in the sense that not a singleparticipant nor a relative of a protected witness has become the victim ofan attack by the source of the threat’ (p. 6). Echoing the views of Earleyand Schur in the USA, Van der Heijden (2001) goes on to note, ‘The major





effect of witness protection programmes is the conviction of numerousleaders and other important members of highly organized criminal groupson the basis of testimonies that otherwise would not have been given’(pp. 6–7). Not everybody agrees with the centrality of this method ineffective organized crime policy. Other scholars have argued that thesuccess in tackling organized crime in places like New York, has been‘accomplished by a shift of reliance away from criminal enforcement(usually followed by the replacement of one jailed Mafioso with another)and toward a regulatory strategy’ (Braithwaite 2000: 229), which focusedon denying business licences to mob-controlled firms.

In addition to the anecdotal evidence, a handful of studies attempt todemonstrate the efficacy of witness protection schemes in terms of convic-tions. In the USA, for example, the Government Accounting Office re-viewed cases that were initiated via protected witness testimony between1979 and 1980. In this period, 1283 defendants, mainly involved inorganized crime, were charged with crimes from the testimony of 220protected witnesses resulting in 965 of the defendants (or 75%) beingfound guilty (Montanino 1990). An important issue in interpreting anyconviction data in comparative perspective relates to differences in the legalsystems between countries. In Italy, for example, the minimum require-ments of evidence are fewer in cases in which the defendant is accused oforganized crime. Furthermore, in such cases the defendant can be convictedon the basis of the testimonies of two co-defendants who are collaboratingwith justice, as long as there is some material evidence as well. However,recent concerns about the validity of the statements of collaborators has ledto a new law which requires collaborators to be isolated from otherwitnesses and to declare everything they know about a criminal group andits activities in a limited time period (Van der Heijden 2001: 2).

Witness protection measures are essentially a situational approach todealing with the problem of witness intimidation. Like other situationalmeasures, they are vulnerable to the criticism that they displace rather thantackle the problems they seek to address – in this case, by shifting the targetof intimidation to the families and friends of witnesses or even to jurors.Moreover, witness protection programmes clearly deal with the symptomsrather than the causes of intimidation. They are concerned with ‘riskminimization’ not the reasons behind witness intimidation. If progress is tobe made in tackling the causes of intimidation then it is vital to explore thepossibility of so-called ‘social’, rather than situational, approaches to theproblem of crime by addressing some of the underlying reasons that lead towitness intimidation. The situational perspective means that the success oreffectiveness of witness protection programmes is viewed largely in terms ofthe physical security of the witness and their participation in the legal





process. Indeed, as indicated above one measure of the success of theseprogrammes is whether any witness has been physically harmed or killedwhile under protection. Yet for relocated witnesses, and other programmeparticipants, their physical security is a necessary but insufficient conditionfor their sense of social and psychological well-being. As studies focusingon the experiences of those relocated via these programmes graphicallyillustrate, participants experience chronic feelings of anxiety and insecurity,causing extreme mental distress. Indeed, there is a tragic irony that theabove average suicide rate for protected witnesses revealed in the USAmeans that it is often their own anxieties that lead them to endanger theirphysical safety (see Koedam 1993; Fyfe and McKay 2000a, 2000b).

One other cost may be associated with this issue of displacement.Advocates of WITSEC-style innovations have argued that they provide ‘anexit strategy for career criminals’ and that they provide ‘the criminal witha legitimate place in society’ (Kelly et al. 1994: 501). There is some reasonfor caution in this regard. Citing data from the US General AccountingOffice (GAO), Albanese (1996) observed that 21 per cent of protectedwitnesses were arrested within two years of being put on the programme(p. 195). It is not surprising that career criminals are recidivists and, giventhe reputation that many professional criminals have for violence (Hobbs1995) the roughly 20 per cent recidivism rate makes releasing criminalswho testify a rather high-risk strategy. In the UK this problem has alreadycome to light on at least one occasion in a case involving one, John Haase,who was arrested on charges relating to heroin trafficking and laterreleased after having served only 11 months of an 18-year sentence. Haasewas released because of evidence he gave in the prosecution of a number ofothers who were said to be ‘lesser fish’. He was later arrested on charges ofgun-trafficking (Daily Telegraph 1996, 2001). This case amply illustratesthe need for systematic research on recidivism of protected witnesses.

Over and above concerns about the costs and effectiveness of witnessprotection programmes are issues of legitimacy. In the USA, several com-mentators have expressed their concerns about the ‘intrinsic morality andfairness to the public’ of WITSEC:

If witness testimony is the fundamental weapon in the fight against organized crime,is protection and relocation of those witnesses through concerted government-supported subterfuge the most effective method to employ that weapon? Are therereasonable alternatives to carry out the government’s duty of protection that do notinvolve purposeful misrepresentation, excessive expenditures, and interference in thelives of innocent third parties? (Lawson 1992: 1455)

Indeed, Lawson goes on to argue that, while the US government shouldcontinue to improve the programme, there must also be serious considera-





tion of viable alternatives to WITSEC in order ‘to ensure the properbalance between the public interest in fighting organized crime and theinterest of the public in protection from deceit and violence perpetrated byparticipants in the government’s Witness Protection Program’ (p. 1459).The possible alternatives to WITSEC that Lawson identifies include inde-pendent relocation and protection arrangements, which would involve awitness providing testimony in exchange for a lump-sum payment, afterwhich a witness would be required to make his or her own protectionarrangements. One advantage of this approach, Lawson argues, is that ‘itdisentangles the government from the web of formal misrepresentation andmanipulation that characterizes the current Witness Protection Program’(p. 1457). Although there might be concerns about the safety of witnesses,Lawson claims there is evidence that fears about the risks of retributivephysical harm have been exaggerated. Lawson also suggests that ‘SpecialProtective Incarceration’ in the form of a network of safe houses might beused in order ‘to reduce the cost both in terms of financial expenditures aswell as in terms of the potential human cost occasioned by infiltratingformer criminals back into society’ (p. 1457).

Accomplice testimony, plea-bargaining and witnessimmunity

Witness protection programmes are practically intertwined with the busi-ness of plea-bargaining and immunity in the prosecution of cases involvingorganized crime. This centres on the role played by ‘accomplice testimony’provided by criminal informants who become so-called ‘crown witnesses’,‘government witnesses’ or ‘co-operating witnesses’; individuals to whom apromise has been made about the future handling of any criminal proceed-ings against them in exchange for witness co-operation. There are, ofcourse, important variations between countries in the use of these meas-ures. Japan and France, for example, have no system of plea-bargaining orwitness immunity, whereas the USA and Italy have well established prac-tices in these areas. In the UK, witness immunity and plea-bargaining haveonly recently been placed on a statutory footing as a result of the SeriousOrganized Crime and Police Act 2005. Table 2 summarizes some of thesedifferences for countries for which evidence was available.

Although revealing, this tabulation of similarities and differencesneeds to be read in the context of the practical application of thesemeasures and the debates that subsequently arise. The sub-sections thatfollow examine this in more detail, focusing specifically on the USA, Italy,Germany and Ireland. These jurisdictions have been chosen for a number





Table 2 Summary of measures used with respect to co-operating, criminal witnesses

Country

Terms used todescribe co-operating criminalwitnesses or theirevidence

Measures used with respect to co-operating, criminalwitnesses

Germany ‘Staatszeugen’(State’s witnesses)or ‘Kronzeuge’(Crown witnesses).

Crown Witness Act (Kronzeugengesetz) 1989:when a crown witness who has committed criminaloffences relating to organized crime but whocooperates with law enforcement agencies with theresult that the offences are prevented or offendersarrested, statutory regulations allow chargesagainst the crown witness to be dropped, or forthe crown witness to remain unpunished orpunished by a less severe sentence. Crimes ofgenocide, murder and manslaughter are specificallyexcluded.

Italy ‘Pentiti’ or‘collaboratore dellagiustizia’.

Premali (reward regulations) are used with regardto four kinds of crime to induce accomplices tocooperate: terrorism, kidnapping with the aim toobtain ransom, production of and dealing in drugsand organized (Mafia) crime. For each of thesekinds of crime a crown witness regulation exists sothat a judge may decide not to sentence or toimpose a less sever sentence. For those involved inMafia crime and have been found guilty of criminaloffences carrying life imprisonment, punishmentwill be a prison sentence of 12–20 years; if theoffences carry a temporary prison sentence this willbe reduced by one-third or two-thirds. To ensurethe truthfulness of statements, a review procedureexists which allows sentence to be raised if a crownwitness had made false statements. A crownwitness does also not have to be personally presentat the trial; his hearing and interrogation can takeplace ‘at a distance’.

NorthernIreland

Supergrasses. Supergrasses were initially offered full immunitybut this was later replaced by the offer of reducedsentences and the promise of new identities afterserving them.

Spain Arrependitos. Penal Code 1995: permits a system of extendedremission of punishment for those implicated incrimes relating to terrorism or drug trafficking butwho collaborate with the police and judicialauthorities. In relation to drug crimes, the personmust engage in ‘active collaboration’ to prevent acrime or to provide evidence that can lead to theidentification or capture of suspects.





of reasons. The USA is the global bellwether in matters relating toorganized crime prosecution, and Italy has a long track-record in Europe.Germany presents a particularly interesting case because of the jurispruden-tial ramifications of these practices in that jurisdiction, whereas the historyof these measures in the context of Northern Ireland provides a ‘hard test’for these tactics.

The US experience

Although state and local level prosecutors might be involved in theprosecution of organized crime, we focus here on the federal level. Severalfeatures of federal law combine to give federal prosecutors certain advan-tages over their state and local counterparts in the investigation andprosecution of organized crime cases (Jeffries and Gleeson 1995). One ofthese advantages is the Racketeer Influence Corrupt Organizations Act(discussed by Levi and Smith 2002) but other advantages include the use ofaccomplice testimony, plea-bargaining and witness immunity.

Given that one of the key characteristics of organized crime is that theleaders of criminal organizations typically operate through intermediaries,

Table 2 Continued

Country

Terms used todescribe co-operating criminalwitnesses or theirevidence

Measures used with respect to co-operating, criminalwitnesses

UK Informants. Serious Organised Crime and Police Act 2005:permits a prosecutor to offer an offender immunityfrom prosecution if it is deemed ‘appropriate’ forthe purposes of the investigation or prosecution ofany offence. The Act also allows a court, whendeciding sentence, to take into account the extentand nature of the assistance provided or offered bya defendant who pleads guilty to an offence.

USA Informantwitnesses.

Plea- bargaining: Federal Rules of CriminalProcedure specifically sanction plea-bargaining inrespect of accomplice testimony;Witness immunity: federal prosecutors can coercetestimony by granting limited immunity for the useof witness testimony whereby a prosecutorpromises that what the witness says will not beused against them although granting of immunitydoes not cover perjury.





the establishment of guilt via testimony from victims, eyewitnesses orforensic evidence has been problematic. Successful prosecution of orga-nized crime entrepreneurs has, therefore, come to depend on accomplicetestimony. In US federal courts, a defendant (unlike a defendant in manystate courts) can be convicted on the uncorroborated testimony of anaccomplice, although juries are cautioned to use care in evaluating thetestimony of accomplices. Because juries may be sceptical of such testi-mony, federal prosecutors rarely rely solely on evidence supplied byaccomplices. Nevertheless, federal courts are more permissive than statecourts in allowing uncorroborated testimony. This is viewed as a crucialadvantage in the federal prosecution of organized crime because suchtestimony can provide a richly detailed context that can help make the caseagainst a defendant compelling.

The federal Sentencing Guidelines introduced in 1987 established amechanism to prescribe sentences for federal crimes with judicial discretionnarrowly restricted by the creation of sentencing ‘ranges’. Although origi-nally produced to address the absence of uniformity in the sentences offederal defendants, the Guidelines became a tool in the hands of federal lawenforcement authorities to turn targets and defendants into accomplicewitnesses (Jeffries and Gleeson 1995). Before the Guidelines it was difficultto ‘turn’ members of an organized criminal group because investigatorswere unable to make a ‘persuasive plea offer’ given the uncertainties aboutthe reward an accomplice witness might receive for cooperating. With theGuidelines, however, a ‘prospective co-operator’ can be shown exactlywhere they will fall within the ‘sentencing chart’ if found guilty and that theonly way out of the position on the chart is to cooperate with thegovernment. The prosecution can then offer the individual the opportunityto plead guilty, typically to the most serious offence, and to testify for thegovernment in exchange for a ‘substantial assistance motion’ (described byBowman 1999, as ‘the most powerful prosecutorial tool in modern federalcriminal law’). The court is also provided with a report on the nature andvalue of the cooperation rendered. This arrangement allows the prosecutorto argue to the jury that any leniency the witness receives will come fromthe court and therefore counter any suggestions by the defence that theaccomplice’s willingness to testify in exchange for leniency makes him orher an unreliable witness. Jeffries and Gleeson (1995) argue that this is themeans whereby the US Congress has greatly strengthened the hands offederal prosecutors in dealing with organized crime: it is by creating asystem in which the prosecutor alone can make an accomplice witnesseligible for leniency, but in which the terms of that leniency are determinedafterward by the court.

The US has both federal and state level witness immunity statutes,





which allow a witness with a valid Fifth Amendment privilege (i.e. theprivilege that no person ‘shall be compelled in any criminal case to be awitness against himself’) to be compelled to testify by a court if theprosecution determines that the testimony is necessary and in the publicinterest. If the prosecutor makes such a determination, the witness isgranted limited immunity that protects them from the use of their testi-mony as evidence against them in a criminal prosecution. The rationalegiven by the proponents of immunity statutes is this: ‘the Fifth Amendmentprotects only compelled testimony that tends to incriminate, and thereforeif a person is granted immunity from prosecution for his incriminatingstatements, the Fifth Amendment does not apply and that person may thusbe compelled to testify’ (Menza 1999).

The use of ‘crown witnesses’ in Europe

The use of criminal informants in pursuit of organized and serious crime isnow well known across Europe (den Boer 1997; Tak 1997; den Boer andDoelle 2000). At present in many countries in Western Europe, policeintelligence systems have developed a considerable capacity to identify andrecruit criminal informants in the illicit or underground economies thatfeed organized crime. These capacities have been developed in the contextof perceived failure to control these markets by traditional law enforcementmeans. Informers who have been deployed in the criminal milieu maycontribute useful information that directs other aspects of police investiga-tions (such as suggestions about where to target other surveillance efforts –namely telephone intercepts, financial monitoring and so on). However,there is a current of opinion that the ability of these criminal informers tobecome ‘crown witnesses’ in the context of criminal trials has the greatestpotential to impact upon organized crime (and terrorism). Given the uniquecharacteristics of each European country’s criminal justice system, and theuniqueness of historical circumstance in the different national jurisdictions,the evolution of these techniques has not been straightforward. This evolu-tion continues apace giving rise to a need for further empirical research.

The Italian experience

The Italian anti-Mafia trials depended significantly on pentiti (crownwitness) testimony facilitated by premiali (reward regulations). Such reg-ulations pertain to four kinds of crime: terrorism, kidnapping with ransomaims, production of and dealing in drugs, and organized (Mafia) crime.Premiali for all four types of crime are established along similar lines. Thejudge may decide not to sentence or to impose a less severe sentence in lightof co-operation given to police. The conditions for the application of





premiali vary, but the main requirement is that the co-operation must beaimed at preventing or thwarting criminal offences or at supplying informa-tion which is crucial to the progress of an investigation (Tak 1997: 18–9).

The use of this approach in Italy commenced with the efforts againstthe Red Brigades, but mutated into an anti-mafia tactic in the wake of thearrest and trial of Tommaso Buscetta in the USA in 1984 (Greer 1995).Information provided by Buscetta, plus the evidence of one SalvatoreContorno led to the first ‘maxi-trial’ against the Mafia, which involved475 defendants and ended in December 1987, 22 months after it began,with 338 convictions. By early 1989 only 60 of those convicted at themaxi-trial were still in prison. Virtually all of the convictions were tossedout on appeal, mainly due to minor technicalities. Most of these appealsdecisions were produced by Corrado Carnevale, a judge reputedly in thepay of the Mafia. Carnevale earned the nickname l’Ammazza-sentenze(The Sentence Killer) because of his tendency to overturn Mafia convic-tions for trivial reasons.

In contrast to the lack of success against organized crime in Italy,enforcement efforts against terrorist cells bent on the ‘subversion of thedemocratic order by violent means’ met with evident success; at least for atime. According to Greer, (2001: 131–3) an important part of the explana-tion for the diminution of political and ideological terror in Italy after itsinception in the late 1970s has to do with the narrow social base that itsprang from. This stands in notable contrast to the more broadly rootedMafia-related crime (and which, given its propensity to corrupt officials inthe highest offices of the state and judiciary, can also be said to have apolitical dimension). Greer (2001) charted a series of temporary legalinnovations that were made in the wake of the activities of the RedBrigades. These included:

• The creation of a crime of ‘terrorism or subversion of the democratic order’ (LawN. 191, 21 March 1978). The law contained statutes providing for new in-telligence gathering provisions (including telephone surveillance) and extra policepowers to detain suspects and conduct interviews without the presence of alawyer.

• The Cossiga Act (Law N.15 of 15 February 1980), which made it an offence tojoin, promote, organize or direct an association aimed at the subversion of thedemocratic order by violent means. Article 5 gave immunity from punishment forthose who collaborated with the authorities in order to prevent crimes against thestate, and who provided substantial evidence regarding conspiracies, the modus

operandi of their crimes, and identification of conspirators.• A temporary pentiti statute (Law N. 304 of 29 May 1982) offering immunity

from prosecution and/or reductions of penalties to persons involved in terrorist





activities providing that they had dissociated themselves from such activities,made full confessions and helped to reduce the impact of their wrongdoing.

• An act which provided formal conditions for the reduction of penalties (Law N.34 of 18 February 1987) requiring dissociation, confession, repudiation andreformation, but not active co-operation in the judicial process.

• No legal instruments came into force (or, apparently, were considered) to providepentiti with formal witness protection (Tak 1997: 19).

Greer characterized the pentiti programme in the combat againstterrorism in Italy as a success. This judgement was made not only becauseof the number of arrests and successful prosecutions, but also because ofthe apparent diminution of such activity. It is perhaps worth noting that in1999, the reborn Red Brigades claimed responsibility for killing anotherpolitical consultant, Professor Sergio D’Antona, in broad daylight on astreet in Rome. The rekindling of political violence was apparent to all.Even if it was not on the same scale as that of the 1970s, this violenceclaimed the life of at least one police officer.

Greer’s analysis of the contribution of pentiti strategies and associatedwitness protection to effective control of organized crime was less positive.In his estimation, the pentiti process was ‘dogged by controversy andmarked by peaks and troughs’ (2001: 127). The controversies surroundingthe credibility of witnesses and their motives, as well as a ‘series of familiarpolitical crises’ cast doubt on the witness protection programme which had,by the end of the 1990s, more than a thousand pentiti under its wing. Hewas not able to provide any quantitative data that could show the impactof these crime control measures on organized crime and corruption in Italy.Nevertheless, in summing up his analysis, Greer observed that the newmillennium has ‘dawned in Italy, with the Mafia weakened, but notdefeated, and with the credibility of the pentiti as a legitimate and viablemethod of dealing with it in serious doubt’ (Greer 2001: 128).

According to Tak (1997):

As the years have passed, it has become clear that the figure of the crown witnesscould be crucial to the fight against other forms of organized crime, if parallel legaland administrative measures were developed to do full justice to the role of thecrown witness inside and outside the criminal procedure. The latest crown witnesslegislation is, therefore, part of a package of measures which have considerablystrengthened their position in the criminal procedure. These measures also offermore certainty about the credibility of statements, provide the necessary protectionagainst revenge attacks and produce broader acceptance of this figure by thejudiciary and the public at large. These measures were urgently required when thereliability of crown witnesses in Mafia trials was questioned. (p. 19)

Tak’s analysis provided a close view of the legal innovations surroundingthe pentiti process, but did not seek to provide any measure of impact. He





revealed considerable trouble in co-ordinating the multi-agency effortsrequired in managing witness protection (p. 22). This is similar to Norrisand Dunnighan’s analysis of inter-agency conflicts in the management ofinformants at the pre-trial stage in the UK (2000). Italian Minister ofInterior Massimo Brutti acknowledged the evident difficulties of managingwitness protection in the Italian context in 2001. Brutti confirmed a seriesof botched witness protection cases reported in La Repubblica, (some ofwhich culminated in the murder of protected witnesses) saying that thecases were representative but would not recur under a law passed inJanuary of that year. He stated at that time that ‘Now there is a structurefor witnesses and one for judicial collaborators. I do not deny there was alot of confusion’ (Carroll 2001). Table 1 refers to this revised structure.

The German experience

Like the Italian case, the use of state’s witnesses (Staatszeugen) in Germany– sometimes known as crown witnesses (Kronzeuge) – evolved out ofearlier experiments in trials of those accused of terrorism (Greer 1995). Theprosecution case against the so-called Baader-Meinhof gang hinged uponcrown witness testimony provided by an associate of the group, oneGerhard Muller. However, it was somewhat later, in the mid-1980s, thatthis type of evidence became systematically used in the trial process, andthen in the context of neo-Nazi groups (Kolinsky 1988). These were viewedas somewhat exceptional circumstances and when it was first suggestedthat these legal innovations be further adapted to address organized crime,legal scholars, the Bar and the judiciary declared themselves against (Tak1997: 12). Pursuant to the Verbrechensbekamfungsgesetz (crime-fighting-law) of 28 October 1994 (BGB1 I p. 3186) provision was made for thistype of witness testimony in cases involving participants in organized crime(Tak 1997). As Tak notes:

The Explanatory Memorandum to the regulation goes into its extraordinarynature. The regulation violates the principle of legality which in Germany is thebasis of prosecution, as well as the principle of the rule of law. More particularly,it touches on the principle of equal treatment and endangers the purpose ofcriminal administration of justice, namely the irrefutability of legal order (Un-verbruchlichkeit der Rechtsordnung). All this is, however, taken for granted withregard to strictly defined forms of organized crime because they constitute a veryserious threat to society. (p. 13)

Other scholars criticized the new laws on the grounds that, very often, theevidence seemed to lack credibility, there was no corroboration require-ment, the approach was of doubtful efficacy and the legitimacy of thecriminal justice system could be damaged by the appearance of a deal being





struck with criminals (Vercher 1992. Given these grave doubts the legalframework that developed for witness protection, especially as it involvesthe use of undercover police methods and criminal informants, is highlycircumscribed.2 The most comprehensive digest of relevant legislation forGermany that is currently available was penned by the former Head ofDivision of Judicial System, Federal Ministry of Justice (Hilger 2001). Anumber of relevant points can be drawn from this source.

• Section 68 of the Code of Criminal Procedure (StPO) provides for the anonymityof witnesses in cases where their safety is in question.

• But, exemption from stating one’s identity does not release one from the duty tostate in the main trial (when asked) in what capacity the observations were made.This is aimed specifically at persons acting in an undercover capacity.

• The fact that prosecuting authorities employed undercover methods may thereforecome to light during the trial, and if there is a compelling wish to avoid this ‘suchwitnesses will have to be dispensed with’ (Hilger 2001: 100).

• Section 223 allows such witnesses to be questioned by the appointed judge via avideo link.

• Section 247 allows that the accused can be removed from the courtroom ‘if thefear exists that a co-accused or a witness will not tell the truth if questioned in thepresence of the accused’ (p. 100).

• Section 247 also allows for proceedings to be held in camera, and specificallystates that the court has a duty to protect witnesses.

• Section 96 allows that ‘the court may not require an authority to submit files orinformation if the highest service authority states that the disclosure . . . would bedisadvantageous to the state’ (p. 101).

• Section 96 also allows that, where it is necessary for the protection of the witness,their anonymity may be preserved; other individuals (police, public prosecutor,judge) who have questioned the witness during the investigation are then requiredto provide evidence on a hearsay basis (p. 101).

• Sections 110b and 110d allow for the new and secret identities of undercoverofficers to be preserved in perpetuity.

2 The anxiety about the use of informers and police undercover methods in Germany duringthis period was probably heightened because of various scandals. In the mid-1990s theGerman press reported that a secret agent and an interpreter with the BND had been involvedin two cases of entrapment, one concerning Russian plutonium and the other Colombiancocaine. The plutonium scam was shown to be a set-up which enabled the federal governmentto mount an international propaganda campaign about the Russian mafia peril and the needto bolster the authority of President Boris Yeltsin at the height of the war in Chechnya. Aboveall, it enabled the BND to justify the large secret service budget even though the Cold War hadended. The Colombian cocaine plot was intended to trap traffickers bringing 330 kg of thedrug into Germany. In the end it came to nothing, but nobody knows whether the cocaine didget into the country or not. Competition between the Bavarian police and the federal secretservices was at the bottom of the leaks to the press, especially to the monthly magazine Stern.The magazine reported that the mole Rafael ‘Rafa’ Ferreiras, unhappy with the amount hewas paid for the plutonium scam, pulled out of the cocaine deal.





• Witness Protection Act (Zeugenschutzgesetz) Sections 58a, 168e and 255a, allowsfor evidence to be provided via video-link or videotape. In its decision to allow forthis the court is required to balance: the duty to effectively detect and controlcrime in a manner consistent with the principles of justice; respect for the interestof the accused, in particular their right to ask comprehensive questions of thewitness; and the duty to protect witnesses

The Witness Protection Act also acknowledged that measures toprotect witnesses ‘may have a considerable impact . . . on the potential forascertaining the truth and on the interests of the defence’ and musttherefore be applied with great caution. Indirect evidence, in particular,must take this into account and ‘the principle innocent until proved guiltymay take on outstanding significance in individual cases’ (p. 103).

Hilger draws his overview to a close by saying that:

Witness protection is a task not solely for the judiciary and the police, but forsociety as a whole, in particular for all state bodies which need to accept andsupport the witness protection measures implemented by the judiciary and thepolice. . . The statutory provisions in Germany may be in need of improvement,but they are currently sufficient if properly applied to meet all the interests whichneed to be taken into account (2001: 104–5).

The Irish experience

The experience in Northern Ireland is arguably more problematic than anyof the national experiences discussed previously. The use of the ‘supergrass’– that is ‘state’s witnesses’ – was introduced there in the 1980s. This waspart of a series of initiatives intended to address the problem of politicalviolence (Hogan and Walker 1989; Bonner 1993; Donohue 2001; Gearty1991; Greer 1995, 2001). The adoption of the supergrass came on the backof refinements in counter-terrorist intelligence-gathering. Beginning in1979, there was a serious attempt by the authorities in Northern Ireland torationalize intelligence acquisition using human sources; the idea of ‘turn-ing’ criminal or terrorist informants and persuading them to give Queen’sevidence was a natural extension of these developments (Greer 2001). Inthe middle years of the 1980s, some 600 suspects were placed under arrestas a consequence of evidence supplied by about 25 supergrasses, who hadbeen offered immunity from prosecution.3 One key issue was that ofcorroboration, since some individuals were being convicted by a judgesitting alone without a jury according to the special procedures set upfollowing the recommendations of the Diplock report and on the strength

3 At least in the early stages. Public criticism of substantial and full immunity was laterreplaced by the offer of reduced sentences and the promise of new identities after servingthem.





of criminal informant evidence alone. In his analysis of the arrival anddeparture of the ‘supergrass process’ Greer observed that it:

. . . turned out to be merely a fresh means for identifying defendants, obtainingconfessions, and ensuring that certain key suspects were remanded in custody,which in a handful of cases, lasted for up to four years as those concerned wereshunted from one supergrass to another before eventually being acquitted orhaving their convictions quashed. (2001: 130)4

Issues surrounding the lack of corroboration of supergrass testimonycannot be viewed in isolation. In Diplock trials, where there is no jury andonly the judge to decide on the facts, the traditional rule that the arbiter offacts must be warned about the dangers of drawing inferences fromuncorroborated testimony ‘in effect merely requires the trial judge to warnhimself to take utmost care in assessing the evidence and drawing inferencesfrom it’ (Bonner 1993: 184). A concern raised in the UK House of Commonswas that ‘When we sit in and observe trials in [other] countries, our positionand the respect in which British law is held in those countries will be severelydiminished and hampered’ (quoted in Donohue 2001: 348).

Connor Gearty (1991) has argued that in the grey area that existssomewhere between the use of political terror and the response of a strongstate to suppress it there lies the issue of legitimacy. Legitimacy is weakenedwhen carefully calculated and restrained subversion meets draconian andsecretive state action but it is emboldened when hardened terrorism meetsa ‘culture of lawfulness’ (Godson 2003), wherein state action is trans-parent, rule-governed, upright and dispassionate. The question of legiti-macy is not unconnected to the practical issue of effectiveness. Greer arguesthat the effectiveness of the supergrass system in Northern Ireland was ‘atbest marginal and short-lived’ (Greer 2001: 130). He suggested that thelocking up of large numbers of active members of paramilitaries onsupergrass evidence may have had some effect on the terrorist murder rate(and, by extension, on other aspects of paramilitary action), but he went onto observe that the diminution of paramilitary violence was equally expli-cable as the consequence of the political rise of Sinn Fein (p. 130) and thechanging tactics of paramilitary groups. Commenting on the problems

4 A somewhat similar, albeit more pointed, view has been put. Matassa and Newburn (2003)observe that the supergrass system yielded 25 informants and 600 people arrested and chargedwith terrorist offences in Northern Ireland. Ultimately most of the convictions were over-turned and, according to these authors, the supergrass system thus served as a means ofholding people in prison for considerable periods without the prospect of ultimately convict-ing them (p. 487). The authors would like to thank the anonymous reviewer who brought thisreference to our attention.





the ‘supergrass years’ created for law enforcement in Northern Ireland,Ellison and Smyth observed that:

The legal system was called into further disrepute and the integrity of thejudiciary questioned as the sight of members of the legal profession earning vastfees by engaging in supergrass trials was not a pleasant one . . . the RUC hadonce again embarked upon a high-risk strategy to defeat the IRA with noappreciable success apart from damaging their own battered reputation (Ellisonand Smyth 2000: 113–4).

Bonner (1993) is less condemnatory, arguing that the question of effective-ness is ‘highly complex and controversial’ and ‘while anti-terrorist meas-ures may play some role’, the Republican pursuit of an electoral strategymay also have had some effect. His conclusion is ‘that anti-terroristmeasures [he examines a raft of them including economic, legal andpolitical ones], are likely to be with us for the foreseeable future and mustcontinue to be strictly scrutinized’ (p. 200).

The overspill in violence from the civil conflict in Northern Ireland tothe Irish Republic has had important implications for how the IrishGovernment tackles organized crime. In particular, there is evidence of theincreasing use of the Special Criminal Court for trying organized crimecases. Established under section 38.3 of the Irish Constitution for the trialof offences in cases where it may be determined in accordance with suchlaw that the ordinary courts are inadequate to secure the effective admin-istration of justice and the preservation of public peace and order, theSpecial Criminal Court comprises three judges and no jury. The mainreason for this development, which began in 1972, was a concern thatjuries in cases connected with para-military activities were likely to be thesubject of intimidation. Its continuation reflects the Irish Government’sbelief that organized crime poses a threat to juries equivalent to that posedby paramilitaries.

This proved somewhat controversial. In a recent report of the Com-mittee set up to review the Offences against the State Acts and othermatters (Department of Justice, Equality and Law Reform 2002), a major-ity of the Committee supported the use of the Special Criminal Court inorganized crime cases given the potential threat to the administration ofjustice posed by organized criminals. The Committee largely concurredwith the view put forward by Charleton and McDermott that given ‘theextent to which [organized crime] can grow and dominate society, thearrogance of those involved with their gangs and their determination not toabide by any rules of decency and standards makes . . . a reasonable casefor the measured use of multi-judge, non-jury courts on an emergencybasis’ (2000: 141–2).





More generally, given that the Special Criminal Court has the samerules of evidence and rights of appeal as other criminal courts in Irelandand is comparable to other standard, non-jury court systems in othercountries, its use in organized crime cases has been viewed as an acceptablemeasure (Davis 2003). A minority of the Committee, however, dissentedfrom this view. They drew attention to other common law jurisdictions,like the USA, England and Australia, where the risks of jury intimidation inorganized crime cases have not provided grounds for non-jury trials in aSpecial Criminal Court. Further, there are other measures which could beemployed to address the risk of jury intimidation, including the use ofanonymous juries, providing jury protection during a trial, and allowing ajury to observe the trial remotely via a video link. The minority report ofthe Committee concluded that the case in favour of the Special CriminalCourt had not been made and that concerns about jury intimidation can beaddressed in other ways: ‘if the jury are anonymous and at a secure andsecret location, the risk of effective jury intimidation would not be verygreat’ (Department of Justice, Equality and Law Reform 2002: para. 9.95).The United Nations Human Rights Committee raised concerns that ‘thelaw establishing the Special Criminal Court does not specify clearly thecases which are to be assigned to that Court but leaves it to the broadlydefined discretion of the Director of Public Prosecutions’ (Department ofJustice, Equality and Law Reform 2002: para. 9.61). In response to thiscriticism the Committee reviewing the Offences against the State Actsrecommended that any decisions by the DPP to send an accused to trial tothe Court should be subject to ‘a positive review mechanism’ (para. 9.64).

Questions of legitimacy in the use of plea-bargaining, witnessimmunity and accomplice testimony

Several concerns exist in the USA about plea-bargaining and ‘substantialassistance’ recommendations by federal prosecutors. In particular, critics ofcurrent practices argue that ‘buying’ testimony is wrong because ‘testi-mony’ purchased with promises of leniency present too great a risk ofperjury and thus of wrongful convictions. Creating an environment inwhich providing ‘substantial assistance’ is the main way informants whogive evidence in court can get reduced sentences may also generate a rangeof unfair results. It risks the so-called ‘cooperation paradox’ whereby‘kingpins’ receive lower sentences than their underlings because the ‘king-pins’ have more information to exchange for a ‘substantial assistance’recommendation.

Several arguments against witness immunity have been advanced inthe USA, with Menza (1999) describing it as ‘unconstitutional, unfair and





unconscionable’. According to this view, witness immunity undermines theprinciple of equal protection under the law by violating the Equal Protec-tion Clause of the 14th Amendment (which provides that no state shall‘deny to any person within its jurisdiction the equal protection of thelaws’). For example, a person who has committed a murder might begranted immunity if he or she agreed to testify against a person who theprosecutor believes is a ‘mafia boss’ and, therefore, in the prosecutor’sopinion, is more important to convict. The concern is that a prosecutor haswide discretion in deciding whom to prosecute and to whom to grantimmunity but is not required to explain immunity decisions to a court.Further, no standard exists for selection in immunity cases other than ageneral assertion that ‘it is in the interests of justice’. With no standards toguide a prosecutor in the exercise of discretion to grant immunity and nojudicial oversight to restrain its use, it is possible to contend that there isreal potential for abuse.

In addition, Menza also observes that witness immunity might be seenas a ‘bribe’. In 1998, in a judgement that ‘sent shock waves through thenational criminal justice community’ (Bowman 1999), a panel of judgesdeclared in the case of the United States versus Singleton that the grantingof leniency to a cooperating witness constituted a bribe and drew attentionto the US Criminal Code which prohibits the giving, offering or promisinganything of value to a witness for, or because of, his or her testimony(Johnston 1999; Hollis 2000). In its judgement the court stated, ‘If justiceis perverted when a criminal defendant seeks to buy testimony from awitness, it is no less perverted when the government does so’. Although thisjudgment was quickly over-ruled on the basis that the federal briberystatute does not apply to the government and that discontinuing thepervasive practice of buying testimony for leniency would jeopardize lawenforcement, Menza maintains that the use of offers of leniency or immu-nity in exchange for testimony may still undermine public confidence in thelegal system.

Scholarly debate among legal academics in the USA has focused onthe moral hazards of police use of informants giving state’s evidence (seeZimmerman 1994; Schreiber 2001). These studies catalogue the manyinstances where federal law enforcement agencies and prosecutors’ officesin the USA have engaged in questionable, unethical and illegal conductinvolving criminal informants. They criticize curative suggestions from lawenforcement such as the issuance of new guidelines, training, lists of do’sand don’ts, and anti-corruption investigations as being unlikely to produceuseful results. They also offer considerable criticism of attempts to curtailmisuse of informants in the trial process (which happen, very often, withthe collusion of prosecuting attorneys). This tack-on reform suggests that





expanded defence cross-examinations of informants, prior judicial reviewof informant use, and expansion of habeas corpus relief for those convictedwith perjured testimony would provide sufficient safeguards. According toits critics, this rights-based approach maintains the assumption that thebasic informant-handler relationship is not ethically problematic. Whileacknowledging that the rights-based approach might contribute to identify-ing violations of specific rights resulting from the mishandling or miscon-duct of informants in specific cases, they argue that, what remains absent isa rigorous examination of the moral hazards that infuse the informant–handler relationship. The rights-based approach appears to remain con-cerned with questions of efficacy at the expense of questions of moraljustification and, hence, fails to grasp the issues at a systemic level. Theyconclude that, without an effective deterrent, informant mishandling andmisconduct are destined to continue.

Schrieber (2001) notes that the anonymity of confidential informantspresents some of the most vexing issues in law enforcement. She drawsattention to the criticisms that can be made with regard to the role thatcriminal informants may play in the instigation of criminal activity, theirquestionable motivations for providing information, and their credibility aswitnesses. Zimmerman (1994) cites cases where a multitude of benefits(including monetary payments, immunity from prosecution and theanonymity provided by a witness protection programme) produces amplemotives for giving detailed information ‘regardless of the truth’. In conclud-ing his exhaustive analysis of moral hazards, Zimmerman argues that thekey to stopping the abuses of the informant relationship is to ‘apply arebuttable presumption that informant conduct is state action and actionunder the color of law’ (1994). According to his analysis, this will ‘instilresponsibility in law enforcement agencies for their decision to use inform-ants’ and will ‘have a significant impact on how courts view informants’since it creates a linkage between government and informant that will forcelaw enforcement to take responsibility for the use of informants.

Conclusions

Evidence provided by witnesses is vital to the effective investigation ofcrime. It helps to identify and build a case against the accused. Therefore,facilitating witness co-operation is a key objective of all criminal justicesystems (Harris 1991). In the context of organized crime, however, theserious problems posed by witness intimidation and the importance ofaccomplice testimony provided by ‘crown witnesses’ make the issue ofwitness co-operation particularly acute. In recent years, an increasing





number of countries have introduced measures allowing the use of criminalinformants and witnesses as the central approach for the investigation andprosecution of organized crime. This article reveals that there are inter-esting variations between countries in terms of what types of measures theyhave introduced, and when. This reflects differences in the scale and natureof the problems of organized crime and terrorism that are faced, and is alsopartly linked to differences in legal traditions and institutional environ-ments in different countries. In the USA, for example, measures like witnessprotection and plea-bargaining are well established; France, by contrast, isonly now considering introducing plea-bargaining but in the face of strongopposition from magistrates and lawyers who have denounced it as a‘decline in the rights of the defence and the presumption of innocence, andthe . . . marginalization of the function of judges in favour of ever morepowerful prosecutors’ (Tagliabue 2003: A14). The measures discussed herealso vary considerably in terms of their spatial and temporal scope and interms of the range of individuals and agencies involved. Plea-bargainingand discussions of witness immunity are, for example, typically focused onthe trial phase of the criminal justice process and involve a narrow range ofactors, such as judges, prosecutors and defence teams. Witness protectionarrangements, by contrast, are normally introduced early in an investiga-tion, typically provide long-term support in a variety of different locations,and involve a wide range of agencies both within and outside the criminaljustice system. Despite these differences between the various measuresconsidered here, however, there clearly needs to be a degree of integrationbetween them if they are to be effective. Offers of witness immunity orcompelling individuals to testify may only be successful if there are arrange-ments to provide witnesses with long-term protection.

The increasing development and use of different measures to facili-tate witness co-operation in organized crime investigations also raises keyquestions about how to measure the ‘success’ and ‘effectiveness’ of theseapproaches. The evidence-base on which to judge efficacy is weak andthere is a need for further empirical research. Although there are clearlydifficulties of researching in this field it is reasonable to concur with Bean(2001) that no policing strategy should remain so secretive that it remainsoutside the boundaries of critical evaluation. We have argued that anyresearch agenda focused on issues of costs and effectiveness also needs toconsider questions of ethics, legitimacy and accountability. There aremoral hazards associated with these techniques and the potential to dragthe law through scandal into disrepute is present. The existing Europeanliterature on this topic has yet to confront some profoundly difficultethical issues surrounding state use of offenders-turned-informants andundercover police methods generally. In Europe, the facilitation of witness





co-operation in serious organized crime cases has been primarily driven bygovernmental programmers working within a narrow ‘what works’ policyagenda, irrespective of the moral hazards that may arise. These techniquesare likely here to stay, but we end with a note of caution, for if they areto be used at all, they should only be employed in the context of stronglaws that ensure legitimacy, high ethical standards and robust evidence asto their effectiveness.

Acknowledgement

The authors are grateful to the Home Office who funded the research on which thisarticle is based. The views expressed are those of the authors.

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Nicholas Fyfe

Nicholas Fyfe is Reader in Human Geography at the University of Dundeewith research interests in the inter-relationships between society, space andthe criminal justice system. He is author of Protecting Intimidated Witnesses(Ashgate, 2001) and co-editor of Crime, Policing and Place (Routledge,1992)[email protected]

James Sheptycki

James Sheptycki is Associate Professor in the Division of Social Science atYork University, Toronto. He has published widely on transnational policingand is author of In Search of Transnational Policing (Ashgate, 2002) andeditor of Issues in Transnational Policing (Routledge, 2000)[email protected]





International Trends in the Facilitation of Witness Cooperation in OK Cases

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