The Act Commentary on Sections Part 3 - Criminal evidence, investigations and procedure Section 78: Conditions for making order
432.This section sets out the conditions that have to be satisfied when an application for an investigation anonymity order is made.
433.Under subsection (2), an investigation anonymity order may be made where the justice of the peace is satisfied that there are reasonable grounds for believing that the five conditions specified in subsections (3) to (8) are satisfied. This is to avoid placing an unduly high burden of proof on the applicant, particularly at the early stages of an investigation when the information available may be limited but an investigation anonymity order in respect of a particular informant is highly desirable in order to progress the investigation.
434.The condition in subsection (3) is that a qualifying offence has been committed. (Qualifying offence is defined in section 74.)
435.The condition in subsection (4) is that the person likely to have committed the offence was at least 11 but under 30 years old at the time the offence was committed.
436.The condition set out in subsections (5) and (6), is that the person likely to have committed the offence is a member of a group (1) which it is possible to identify from the criminal activities that its members appear to be engaged in and (2) it appears that the majority of the members of the group are at least 11 but under 30 years old. The reason for the conditions in subsections (4) to (6) is that the provisions are targeted at informants in qualifying criminal investigations who are afraid of reprisals from street gangs. The age range set out is the understood age range for membership of such gangs, and the activities are the understood activities of such gangs.
437.The condition in subsection (7) is that the informant in respect of whom the order would be made has reasonable grounds to fear intimidation or harm if he or she were identified as a person who is or was able or willing to assist in the investigation into the homicide at issue.
438.The condition in subsection (8) has two limbs, both of which must be satisfied. The first is that the person who would be specified in the order, is able to provide information that would assist the qualifying criminal investigation, and the second is that that person is more likely than not to provide the information if the order was made.
439.Subsection (9) provides that where more than one person is suspected of having caused the death under investigation, the five conditions need be satisfied only in relation to one of the suspects.
440.Subsection (10) gives power to the Secretary of State to modify or repeal subsections (4) to (6) and subsection (9) by order. The conditions set out in subsections (3), (7) and (8) cannot therefore be modified or repealed using this power. This order making power is subject to the affirmative resolution procedure (see section 176(4)(a) and (5)(c)).
441.Subsection (11) provides that an order made under subsection (10) may modify any provision of this Chapter.