When considering the range of anti-social behaviour matters that our Property Litigation team are regularly asked to assist with, there is one question that seems to be asked time and time again by landlords: what can be done when witnesses in support of a claim are unwilling to give evidence?
When we are talking about anti-social behaviour, such cases often involve people feeling intimidated at the hands of the perpetrator, with threats and violence unfortunately being all too common. So, it is perhaps not surprising that people who have witnessed anti-social behaviour, and could give evidence in support of a claim, for a possession or injunction for example, are not prepared to come forward. The fear of the perpetrator becoming aware of the witness’ involvement in a claim and the evidence being used against them is an understandable one, with reprisals being a real possibility.
In this article, we will explore the law surrounding anonymous witness evidence, and how this can be useful for a landlord. We will also outline some practical tips for landlords when preparing a witness statement on this basis.
How can anonymous evidence be useful?
Requesting a witness to put their name to a witness statement in an anti-social behaviour case, in the knowledge that this document will almost certainly come to the attention of the Defendant, is a big ask. That witness is putting themselves in a difficult situation, particularly if they have seen first-hand the Defendant acting in an aggressive way towards them or others.
Often with anti-social behaviour cases, it is the neighbours of a perpetrator who are the ones suffering, and their evidence is hugely important to a claim. Indeed, entire cases frequently rest on the evidence of neighbours. However, this makes matters even more difficult when asking witnesses to get involved with preparing and signing a statement. If a witness knows that there is a chance of reprisals and retaliation, and the perpetrator lives in close proximity to them, it is not difficult to imagine that some witnesses see more cons than pros to giving evidence. Witnesses can often feel that openly challenging the perpetrator’s behaviour by giving evidence in support of a claim just isn’t worth it, especially if there is a chance that anti-social behaviour could be directed towards them and/or worsen as a result.
However, where the witness has the option of providing their evidence anonymously, this can make a huge difference to the outlook of a case. A witness giving an anonymous witness statement is not named in the evidence, and neither is their address given. Those witnesses are not expected to attend Court, and their statements can simply be attached as an exhibit to another statement prepared on behalf of the landlord, for example the statement of a Housing Officer who has spoken with the anonymous witnesses. If the identity of a fearful witness can be preserved through an anonymous statement then predictably, and certainly in our experience, that witness is much more likely to be incentivised to formally set out their version of events.
Can anonymous witness evidence actually be relied upon?
The short answer is yes. The practice of admitting anonymous evidence in anti-social behaviour cases is well-established. If a witness gives an anonymous statement and does not attend Court so as to give evidence in person, this is in effect ‘hearsay’ evidence, but the Courts will still allow for its admission.
The Court of Appeal case Boyd v Incommunities Ltd [2013] EWCA Civ 756 supports that principle. Whilst the judgment is not a recent one, being nearly 10 years old, it is still good law and useful for Claimants pursuing action regarding anti-social behaviour.
In that case, the High Court granted possession to a social housing landlord of a property occupied by the Defendant on grounds of rent arrears and anti-social behaviour. The findings of anti-social behaviour were based on hearsay evidence from three witnesses who were interviewed by the Claimant landlord and whose anonymous witness statements were exhibited to the Claimant’s witness statement, each bearing a confirmation that the facts contained therein were true.
In assessing what weight to attach to the hearsay evidence, the Judge at first instance considered it was reasonable for the witnesses to remain anonymous given the Defendant’s long history of offences of dishonesty and violence. The Judge had also taken into account that the witnesses were not from the same household and there was no suggestion that they knew each other. Rather, the witnesses had all made similar allegations against the Defendant and the Defendant had failed to give any credible reason as to why they might be lying.
The Defendant appealed the decision of the Judge at first instance, stating that the High Court had given too much weight to anonymous witness statements, but the Court of Appeal disagreed with that view. It was held by the Court of Appeal that the practice of admitting anonymous evidence in this type of case was well-established and the Judge at first instance had in fact considered various factors under section 4 of the Civil Evidence Act 1995 when deciding what weight to give the hearsay evidence.
The case of Boyd v Incommunities Ltd was undoubtedly a case that assisted, and continues to assist, landlords with pulling evidence together, however those factors under section 4 of the Civil Evidence Act 1995 are also an important consideration. This provision states that:-
“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any interference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following-
- whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
- whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;
- whether the evidence involves multiple hearsay;
- whether any person involved had any motive to conceal or misrepresent matters;
- whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
- whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
Are there any drawbacks to using anonymous witness evidence?
It is correct to say that the Court will always attract most weight to named witnesses who are prepared to attend Court to give live evidence. If a witness is prepared to put their name to evidence and then attend Court in person to give testimony in support of that, this is the most compelling type of evidence and, if possible, should be pursued. This is because the Defendant is then able to cross examine the witness and the Judge will be in a better position to assess the strength of the evidence and the credibility of the witness. The details of specific events or incidents are easier to establish if the parties involved are present in Court and able to answer questions.
In addition, in order to truly anonymise a statement and ensure the Defendant cannot identify the witness, sometimes it is difficult to provide as much precise detail about events as otherwise would be the case. We would therefore always view anonymising witness statements as a last resort and only considered if key witnesses are genuinely fearful.
However, where live evidence is simply not an option, and the risk of reprisals and repercussions is very real, anonymous witness evidence is certainly better than no evidence at all and should not be viewed as a barrier to taking legal action.
Practical tips when using anonymous evidence
We know from experience just how challenging it can be to encourage witnesses to give evidence in anti-social behaviour cases, and it can be a real irritation for landlords when the evidence exists in support of a claim but cannot be formally obtained so as to put before the Court in a witness statement. As a matter of best practice, landlords should take care when liaising with fearful witnesses and in the drafting of their witness statements. We would strongly advise landlords to adopt the following measures:-
- Speak with other neighbours to establish if any other witnesses may exist and may be willing to come forward. Often key witnesses can be reassured and feel less exposed and at risk if they know other witnesses are giving evidence;
- Take care when drafting anonymous statements to ensure they do not include anything that might unintentionally identify a witness such as their gender, age, any children they have or how closely they live to the Defendant;
- Make sure that the anonymous statement clearly sets out the reasons why the witness is fearful of reprisals as this will reassure the Judge that this is not simply an attempt to avoid scrutiny;
- Ensure the statement from the landlord’s employee/representative explains that they have spoken directly with the anonymous witness(es) and are of the view that they are genuinely fearful and that they have presented as truthful, referring to any corroborating evidence where possible;
- Consider all legal options available, for example if the behaviour involves threats of violence and is serious, an injunction application made without notice and seeking a Power of Arrest could be an option and may reassure witnesses protection will be in place before the Defendant is aware of the proceedings. This remains an option as a tandem claim alongside possession proceedings and may allow witnesses to feel comfortable being named.
If you would like to discuss any of the issues raised in this article, please contact David Low or Lewis Brown, or call 0191 384 2441. Alternatively, please visit our website at www.swinburnemaddison.co.uk.
