Criminal evidence

Anonymity - Intimidation of witnesses - Right to fair trial - Special measures

R v Davis: HL (Lords Bingham of Cornhill, Rodger of Earlsferry, Carswell, Brown of Eaton-under-Heywood, Mance): 18 June 2008

The appellant (D) appealed against the Court of Appeal’s dismissal ([2006] EWCA Crim 1155, [2006] 1 WLR 3130) of his appeal against his conviction for murder.

At D’s trial, witnesses who identified him as the killer, and without whom he could not have been convicted, were accepted to be in fear of their lives were it to become known that they had given evidence against him. To protect their safety and to induce them to give evidence, the trial judge ordered that each should give ­ evidence under a pseudonym; that their addresses, personal details and any particulars that might identify them should be withheld from D and his legal advisers; that D’s counsel should not be permitted to ask ­questions that might enable them to be identified; that they should give ­ evidence behind screens so that they could be seen by the judge and the jury but not by D; and that their voices should be distorted for all but the judge and jury.

The Court of Appeal rejected D’s argument that those measures were contrary to common law and ­ inconsistent with article 6(3)(d) of the European Convention on Human Rights. The court certified the ­ question of whether it was permissible for a defendant to be convicted where the conviction was based solely or to a decisive extent on the testimony of one or more anonymous witnesses. In addition, the court had to consider the lawfulness of the measures and their effect on the fairness of D’s trial. The Crown submitted that (1) witness intimidation was a prevalent problem and in the present case the witnesses would not have given evidence unless their identity was withheld from the defence; (2) as indicated in Scott (aka Morgan v Scott [1913] AC 417 HL), the court’s paramount object was to do justice and if, in order so to do, some adaptation of ordinary procedure was called for, that should happen so long as the overall fairness of the trial was not compromised; (3) the adoption of protective measures was supported by the decision in R v Taylor (Gary) The Times, 17 August, 1994 CA (Crim Div); (4) Strasbourg jurisprudence did not condemn the use of protective ­measures; and (5) the defendant was protected from unfairness by the Crown’s duty of disclosure.

Held: (1) Threats of intimidation to witnesses and the challenges they posed to the trial system were not new but the common law had never responded by allowing witnesses to give evidence anonymously. When considering, in 1972, the problem of witness intimidation in Northern Ireland, the commission chaired by Lord Diplock regarded the common law principle as so fundamental that it was unable to recommend that ­ legislation should be passed to ­ interfere with it. In those ­circumstances, it was not open to the House in its judicial capacity to make such a far-reaching inroad into the common law rights of a defendant as would be involved in endorsing the protective measures in the present case. (2) Scott addressed the principle that justice had to be administered in public, but recognised that there could be a departure from that rule in some circumstances. However, nothing in Scott was authority for the power of a court to abrogate a long-standing common law right directly bearing on the ability of a criminal defendant to defend himself, Scott not applied. (3) While Taylor was binding on the Court of Appeal, the reasons given to support that and other decisions were not sound. Support in authority was very slight; the court had given no ­ reason for disregarding the judgments in Smith v Illinois 390 US 129 US Court and South Africa v Leepile [1986] (4) SA 187 0 which, to the extent that they reflected the common law, were relevant authorities; and there was a degree of inconsistency between the assertion that an accused had a ­fundamental right to see and know the identity of his accusers save in rare and exceptional circumstances, and the guidance given by the court for the exercise of its discretion in that respect, Taylor doubted, Smith and Leepile considered.

By a series of small steps, largely unobjectionable on their own facts, the courts had arrived at a position that was irreconcilable with long-standing principle. (4) While Strasbourg did not set its face absolutely against the admission of anonymous evidence in all circumstances, it did say that a ­conviction should not be based solely or to a decisive extent on anonymous statements, Doorson v Netherlands [1996] 22 EHRR 330 ECHR, Kostovski v Netherlands (A/166) [1990] 12 EHRR 434 ECHR and Ludi v Switzerland (A/238) [1993] 15 EHRR 173 ECHR ­considered. In any event, Strasbourg would not accept that the measures taken in the present case satisfied the requirements of article 6. Not only was the witness evidence the sole or ­decisive basis on which D was ­convicted, but effective ­cross-examination was hampered. (5) The fairness of a trial should not largely depend on the Crown’s diligent ­performance of its duties, and to decide whether the protective ­measures operated unfairly it was necessary to consider their impact on the conduct of the defence. D’s defence, which went to the probity and credibility of the witnesses, was gravely impeded by his counsel’s inability to explore who the witnesses were and the nature of their contact with D. Ultimately, the protective measures imposed hampered the ­conduct of the defence in a manner and to an extent that was unlawful and rendered the trial unfair.

Appeal allowed.

David Perry QC, Simon Ray (instructed by the Crown Prosecution Service) for the Crown; Malcolm Swift QC, Susan Rodham for the appellant.