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|Judgments - R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division))
HOUSE OF LORDS
 UKHL 36
on appeal from:  EWCA Crim 1155
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division))
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Malcolm Swift QC
David Perry QC
(Instructed by Crown Prosecution Service)
7 AND 8 APRIL 2008
WEDNESDAY 18 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R v Davies (Appellant) (On appeal from the Court of Appeal (Criminal Division))
 UKHL 36
LORD BINGHAM OF CORNHILL
1. At about 9.30 am on New Years Day 2002, towards the end of an all-night New Years Eve party held in a flat in Hackney, a shot was fired which killed two men. The appellant Iain Davis was in due course extradited from the United States, indicted on two counts of murder, tried at the Central Criminal Court before His Honour Judge Paget QC and a jury and, on 25 May 2004, convicted on both counts. He appeals to the House against the dismissal of his appeal against conviction by the Court of Appeal Criminal Division on 19 May 2006:  EWCA Crim 1155,  1 WLR 3130.
2. At trial the appellant admitted that he had been at the party but claimed that he had left before the shooting and denied having been the gunman. Appearances were against him. He had gone to the United States on a false passport shortly after the murders. When questioned by the police after his return to this country he had declined to give any answers. In evidence he had for the first time given details of an alibi, which he had called no further evidence to substantiate. But there was one unusual feature of the trial, which gives rise to the issue in this appeal.
3. Seven witnesses claimed to be in fear for their lives if it became known that they had given evidence against the appellant. Among them were three witnesses, the only witnesses in the case who identified the appellant as the gunman. These claims were investigated and accepted as genuine by the trial judge and the Court of Appeal, and have not been the subject of argument in the House. To ensure the safety of these three witnesses, and induce them to give evidence, the trial judge made an order to the following effect:
(1) The witnesses were each to give evidence under a pseudonym.
(2) The addresses and personal details, and any particulars which might identify the witnesses, were to be withheld from the appellant and his legal advisers.
(3) The appellants counsel was permitted to ask the witnesses no question which might enable any of them to be identified.
(4) The witnesses were to give evidence behind screens so that they could be seen by the judge and the jury but not by the appellant.
(5) The witnesses natural voices were to be heard by the judge and the jury but were to be heard by the appellant and his counsel subject to mechanical distortion so as to prevent recognition by the appellant.
The judges order did not deny the appellants counsel, then as now Mr Malcolm Swift QC, the opportunity to see the witnesses as they gave evidence, but Mr Swift regarded it as incompatible with the relationship between counsel and client to receive information which he could not communicate to the appellant in order to obtain instructions, and he accordingly submitted to the restriction imposed on the appellant. It has not been suggested that he should have acted otherwise. Without the evidence of the three witnesses the appellant could not have been convicted.
4. Mr Swift objected to these restrictions at trial, and argued on appeal that they were contrary to the common law of England, inconsistent with article 6(3)(d) of the European Convention on Human Rights and rendered the appellants trial unfair. For reasons given by the President of the Queens Bench Division, the Court of Appeal (Sir Igor Judge P, Mitting and Fulford JJ) rejected these submissions. The court certified the following point of law of general public importance as involved in its decision:
Is it permissible for a defendant to be convicted where a conviction is based solely or to a decisive extent upon the testimony of one or more anonymous witnesses?
The appellants challenge does not, however, rest on the anonymity of the witnesses alone but on the combination of restrictions listed in para 3 above, to which I shall in this opinion, to avoid repetition, refer as protective measures". It is the lawfulness of the protective measures, and their effect (if any) on the fairness of the appellants trial, which must be considered in this appeal.
The common law principle
5. It is a long-established principle of the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. This principle originated in ancient Rome: see generally Coy v Iowa 487 US 1012, 1015 (1988); Crawford v Washington 124 S Ct 1354, 1359 (2004); David Lusty, Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials", 24 Sydney Law Rev (2002) 361, 363-364. But in continental Europe the principle was greatly attenuated in early mediaeval times and the procedure of the Inquisition, directed to the extirpation of heresy and the preservation of society, depended heavily on evidence given secretly by anonymous witnesses whom the suspect was denied the opportunity to confront. In England, where proof of crime depended on calling live evidence before a jury to convince it of a defendants guilt, there was no room for such procedures. But concern as to national security and intimidation of witnesses did lead to reliance on secret, anonymous evidence and evidence not adduced in court, and thus to departures from the rule of confrontation, notably in the Court of Star Chamber and in common law trials for treason, as notoriously at the trial of Sir Walter Raleigh. The Court of Star Chamber, popular at first, came over time to attract the same popular loathing as the Inquisition, its procedures regarded as foreign, cruel, oppressive and unfair. It was promptly abolished by the Long Parliament in 1641, and steps were taken (as, for example, by the statute 13 Car.2 c.1) to bring the procedure of treason trials into line with that required at common law. Thus, in 1720, in a civil case, the court declared in Duke of Dorset v Girdler (1720) Prec. Ch. 531-532, 24 ER 238, that
the other side ought not to be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found the most effectual method of discovering of the truth.
The practice of confronting defendants with their accusers so that the latter may be cross-examined and the truth established was recognised by such authorities as Sir Matthew Hale (The History of the Common Law of England (6th ed, 1820, pp 345-346), Blackstone (Commentaries on the Law of England (12th ed, 1794, Bk III, p 373) and Bentham (Rationale of Judicial Evidence (1827), Vol II, Bk III, pp 404, 408, 423). The latter regarded the cross-examination of adverse witnesses as the indefeasible right of each party, in all sorts of causes and criticised inquisitorial procedures practised on the continent of Europe, where evidence was received under a veil of secrecy and the door was left wide open to mendacity, falsehood, and partiality. The common law right to be confronted by ones accusers was included within the colonial constitutions of several North American colonies (among them Massachusetts, New Hampshire, North Carolina, Maryland and Virginia: see Alvarado v Superior Court of Los Angeles County 23 Cal 4th 1121, 1137-1140 (2000)) and other states adopted similar declarations at the time of independence. By the sixth amendment to the United States constitution adopted in 1791 it was provided that In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him ". The rule has been strictly applied: in Alford v United States 282 US 687 (1931) a conviction was quashed where a government witness had been excused from answering a question about where he lived.
6. There have been long-recognised exceptions to the right of confrontation in this country (dying declarations and statements part of the res gestae are examples), and further exceptions have been enacted by statute, to which reference will be made below. But there has until recently been no precedent for protective measures of the kind now under consideration, even when the problem of witness intimidation has been extreme. Such was the case in Northern Ireland in 1972 when a commission chaired by Lord Diplock reported on Legal Procedures to Deal with Terrorist Activities there. The commission concluded (Chapter 2, para 7(b)) that the problem of witness intimidation could not be overcome by any changes in the conduct of the trial, the rules of evidence or the onus of proof which it would regard as appropriate to trial by judicial process in a court of law. It considered (chapter 4, para 20) that the minimum requirements for criminal trial by a court of law called for the accused to be informed in detail of the nature of the accusation against him and to examine or have examined witnesses against him. The commission could see no way (ibid) of keeping the identity of witnesses secret without gravely handicapping the defence or exposing counsel to a conflict between his duty to his client and a duty to the state inconsistent with the role of the defendants lawyer in a judicial process. A committee under the chairmanship of Lord Gardiner to consider, in the context of civil liberties and human rights, measures to deal with terrorism in Northern Ireland", reporting in 1975 (Cmnd. 5847), considered the possibility of measures to conceal the identity of witnesses but concluded (chapter 2, para 55) that the very serious limitations they would place on effective cross-examination would imperil the whole concept of a fair trial, and the committee regarded this, as the Diplock Commission had done, as a conclusive argument against such measures.
7. As already noted, the right to confrontation, borrowed from the English common law, was adopted in the United States as a constitutional right. As such it has been described as an essential and fundamental requirement for the kind of fair trial which is this countrys constitutional goal (Pointer v Texas 380 US 400, 405 (1965)) and as one of the fundamental guarantees of life and liberty (Kirby v United States 174 US 47, 55 (1899)). The practical significance of this right was explained in a majority opinion of the Supreme Court in Smith v Illinois 390 US 129, 131 (1968) (footnotes omitted):
In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
8. In other countries influenced by the common law tradition, the right to confrontation has not achieved constitutional protection but has been treated as an important right. In a majority decision of the Court of Appeal of New Zealand in R v Hughes  2 NZLR 129, Richardson J, having cited Smith v Illinois, above, observed (p 147):
Clearly the accused cannot be assured of a true and full defence to the charge unless he is supplied with sufficient information about his accuser in order to decide on investigation whether his credibility should be challenged.
Then, in a passage which has frequently been quoted, he continued (at pp 148-149):
We would be on a slippery slope as a society if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial. Today the claim is that the name of the witness need not be given: tomorrow, and by the same logic, it will be that the risk of physical identification of the witness must be eliminated in the interests of justice in the detection and prosecution of crime, either by allowing the witness to testify with anonymity, for example from behind a screen, in which case his demeanour could not be observed, or by removing the accused from the Court, or both. The right to confront an adverse witness is basic to any civilised notion of a fair trial. That must include the right for the defence to ascertain the true identity of an accuser where questions of credibility are in issue.
That decision led to a statutory amendment. But when a similar question arose again, in a different context, in R v Hines  3 NZLR 529, a majority of the Court of Appeal adhered to the ratio of the Hughes decision, regarding any departure from the common law rule as a matter for Parliament. In both cases, the dissentients recognised the difficulty of restricting the rights of the defence in cases where the credibility of an unidentified witness was in issue: see Cooke P and McMullin J at pp 144 and 153 respectively of R v Hughes and Gault and Thomas JJ at pp 554 and 576 respectively of R v Hines. Following the decision in R v Hines there was again a statutory amendment.
9. In a criminal trial in South Africa the prosecution applied to withhold the name and identity of a witness from the defendant. This application gave rise to a series of rulings by Ackermann J: S v Leepile (1-3) 1986 (2) SA 333; (4) 1986 (3) SA 661; (5) 1986 (4) SA 187. In the last of these rulings, the judge concluded that there was no statutory authority to grant the application and said (p 189):
The wide direction regarding secrecy sought by the State in the present application has far more drastic consequences for the accused than an in camera hearing with a restriction on the publication to the public of a witness identity. The consequences to the accused of such a wide direction are, inter alia, the following:
(a) No investigation could be conducted by the accuseds legal representatives into the witness background to ascertain whether he has a general reputation for untruthfulness, whether he has made previous inconsistent statements nor to investigate other matters which might be relevant to his credibility in general.
(b) It would make it more difficult to make enquiries to establish that the witness was not at places on the occasions mentioned by him.
(c) It would further heighten the witness sense of impregnability and increase the temptation to falsify or exaggerate
The judge distinguished the anonymity sought from a situation in which a witness identity is withheld from the general public and commented (p 190) that prosecuting counsel had been unable to refer him to any case, either in South Africa or in England, in which the principle of anonymity had been taken as far as the State sought to take it in the case before him. He continued (p 190):
I have further difficulty with the absolute anonymity which the State is seeking for the witness referred to as Mpise', and that is the practical implementation of an order granting such anonymity.
To what extent must defence counsels cross-examination be restricted in order to comply with the order? How much information may he be allowed to elicit from the witness regarding his birth, training, marital status, family, residence and general biographical detail before he runs the risk of infringing the order? If counsel by chance should become aware of the witness true identity and this leads to the discovery of valuable information regarding the witness credibility, may this information not be used in cross-examination if it involves disclosure or verification of the witness true identity? I do not think it far-fetched to imagine that serious difficulties regarding the resolution of these questions could arise. If the dispute is resolved in favour of the accused, the order is infringed. If in favour of the State, the accused could be prejudiced and the extent of the prejudice difficult, if not impossible, to assess.
The judge did not regard the examples he had given as far-fetched, but thought they illustrated the serious, if not irresoluble difficulties which might follow upon the grant of an order in the wide terms sought by the State". He concluded (p 190):
The real possibility of such difficulties arising, taken in conjunction with the fact that an order in such wide terms would, for the reasons mentioned, constitute a startling departure from the fundamental principles on which criminal justice is administered in this country, would in my view require the clearest language on the part of the legislature to make such an order competent.
In a judgment delivered by another judge in the same court a few months later this ruling of Ackermann J was not referred to, although an earlier ruling was, and a different decision was given on the same question: S v Pastoors 1986 (4) SA 222. A later decision supported the latter ruling, relying on the English judgments in the Watford case and R v Taylor and Crabb (see below): S v Ntoae (6 October 1999, 2000 JDR 0063 (W)). In Australia also there are conflicting state decisions: R v Stipendiary Magistrate at Southport, Ex p Gibson  2 Qd R 687 and Jarvie v Magistrates Court of Victoria at Brunswick  1 VR 84.
Recent United Kingdom authorities
10. The first judicial departure from established principle in the United Kingdom occurred in a trial in Belfast arising from the murder of two British army corporals, of which two defendants were accused and convicted. At trial the prosecution adduced the evidence of a number of television journalists who, in the course of their work, had filmed the scene of the killing. The trial judge (Sir Brian Hutton CJ) had given leave that these witnesses should not be identified by name and that, when giving evidence, they might be screened so that their faces should be seen only by the judge and the lawyers on each side, but not by the defendants or the public. The Court of Appeal in Northern Ireland upheld the trial judges decision: R v Murphy and Another  NI 306.
11. It appears (see p 334) that in making the order he did the judge relied on Attorney General v Butterworth  1 QB 696, R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney-General  QB 637 and Attorney-General v Leveller Magazine Ltd  AC 440. But the first of these cases related to penalisation of a witness who had given evidence in contempt of court; the second was also a case of contempt, in the publication of the names of blackmail victims (Mr Y and Mr Z), whose true names had been publicly withheld at trial; the third case arose in a similar way concerning a witness referred to at the trial as Colonel B. In none of the cases was any relevant information withheld from the defendant, and in the third (p 447) Lord Diplock observed, obiter, that the justices had correctly rejected an application that the name of another witness should not be disclosed to anyone. In upholding the trial judges order the Northern Ireland Court of Appeal (pp 334-335) cited Scott v Scott  AC 417. That is an important case, recognising that in some exceptional situations there may be a departure from the principle of open justice when justice may only be done if administered in private. Thus it provides for denial of information to the general public, but says nothing about the denial of information to a litigating party, let alone a criminal defendant.
12. If a departure from established principle, the decision in R v Murphy was nonetheless a small one: at trial, defence counsel raised no objection to the identities of the witnesses being withheld (p 332); the defence did not challenge that the witnesses feared for their safety if their identities were revealed, nor that it was in the interests of justice that the evidence should be received (p 334); the evidence of these witnesses, although a necessary formal link in the prosecution case, did not implicate the defendants in the commission of crime (pp 332, 335); and the credibility, as opposed to the reliability, of the witnesses was not in issue (p 335). On these last two grounds the court distinguished the strong contrary statements in Smith v Illinois 390 US 129 (1968) and S v Leepile and Others (5) 1986 4 SA 187 quoted above.
13. In 1992 His Honour Judge Denison QC, sitting at the Central Criminal Court, permitted three witnesses in R v Brindle and Brindle (31 March 1992, unreported) to give evidence anonymously in a murder trial (see Lusty, op cit, p 391), recognising that this would impose some inhibition on the full and proper presentation of the defence but holding that if the wider interests of justice make it necessary for anonymity then the interests of the defence must be subordinated to those wider interests". It does not seem that his decision was appealed. But shortly after, in a challenge to a decision made by a justice at a committal hearing, the Queens Bench Divisional Court (Beldam LJ and Laws J) were required to consider this procedure: R v Watford Magistrates Court, Ex p Lenman  Crim LR 388, transcript 7 May 1992. The case concerned an offence of violent disorder when a group of youths were said to have rampaged through Watford town centre attacking a number of victims. Several witnesses, fearing for their safety if identified, made statements to the police under pseudonyms, and at the committal hearing application was made that the witnesses should give evidence under these pseudonyms, behind screens and with their voices disguised. The defendants opposed this application and the magistrates court ruled that the witnesses should retain their anonymity but that the advocates and legal representatives should be able to see the witnesses. The hearing was then adjourned in order that the ruling could be challenged. Giving judgment, Beldam LJ said it was well established that there may be occasions upon which the interests of justice require that the identity of witnesses should be withheld". The only authority cited in support of that proposition was R v DJX, SCY and GCZ (1989) 91 Cr App R 36 (R v X, Y and Z). That was a case in which screens had been erected so that child victims and the defendants accused of abusing them could not see each other, a procedure approved by the Court of Appeal. But it was a case in which the victims and the defendants were all related to each other and the identity of the child witnesses was very well known to the defendants. The witnesses did not give evidence anonymously and their identities were not withheld. This authority did not support the magistrates courts decision or that of the Divisional Court upholding it. But the challenge in the Watford case related to committal proceedings, not a trial, and Beldam LJ accepted that the ruling might have to be re-considered if it appeared that real prejudice might be caused to any defendant. He also expressly left open the question whether, if the defendants were committed for trial, the witnesses should then be permitted to withhold their identities and give evidence in conditions which would preserve their anonymity.