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26 June 2008
Issue: 7327 / Categories: Case law , Public , Law digest , Human rights
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CRIMINAL LITIGATION

R v Davis [2008] UKHL 36, [2008] All ER (D) 222 (Jun)

(i) There is a presumption in favour of open justice and confrontation of a defendant by his accuser.
(ii) It is possible in principle to allow departures from the basic rule of open justice, but a clear case of necessity has to be made out.
(iii) The court should be sufficiently satisfied that the witness’s reluctance to give evidence in the ordinary manner is genuine and that the extent of his fear justifies a degree of anonymity.
(iv) Anonymising expedients may include the withholding of the witness’s name and address, screening of the witness from the defendant and the public, screening from the defendant’s legal advisers, disguising of the witness’s voice from the defendant and the public and disguising of the voice from the legal advisers.
(v) The more of these expedients the court might consider adopting, the stronger the case must be for invading the principle of open justice. Determination of the question depends upon balancing to ensure that the trial continues to be fair.
(vi) An important consideration is the relative importance of the witness’s testimony in the prosecution case. If it constitutes the sole or decisive evidence against the defendant, anonymising which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly. It is a question of fact in any given case what, if any, measures would be compatible with the fairness of the trial. Courts trying criminal cases should not be over-ready to resort to such measures. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the European Convention on Human Rights (the Convention). As a general rule it is unlikely that the trial will be fair if a very substantial degree of anonymising of evidence is permitted where the testimony of the witnesses concerned constitutes the sole or decisive evidence implicating the defendant (Lord Carswell at 59).

Issue: 7327 / Categories: Case law , Public , Law digest , Human rights
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MOVERS & SHAKERS

Jurit LLP—Caroline Williams

Jurit LLP—Caroline Williams

Private wealth and tax team welcomes cross-border specialist as consultant

Freeths—Michelle Kirkland Elias

Freeths—Michelle Kirkland Elias

International hospitality and leisure specialist joins corporate team as partner

Flint Bishop—Deborah Niven

Flint Bishop—Deborah Niven

Firm appoints head of intellectual property to drive northern growth

NEWS
Talk of a reserved ‘Welsh seat’ on the Supreme Court is misplaced. In NLJ this week, Professor Graham Zellick KC explains that the Constitutional Reform Act treats ‘England and Wales’ as one jurisdiction, with no statutory Welsh slot
The government’s plan to curb jury trials has sparked ‘jury furore’. Writing in NLJ this week, David Locke, partner at Hill Dickinson, says the rationale is ‘grossly inadequate’
A year after the $1.5bn Bybit heist, crypto fraud is booming—but so is recovery. Writing in NLJ this week, Neil Holloway, founder and CEO of M2 Recovery, warns that scams hit at least $14bn in 2025, fuelled by ‘pig butchering’ cons and AI deepfakes
After Woodcock confirmed no general duty to warn, debate turns to the criminal law. Writing in NLJ this week, Charles Davey of The Barrister Group urges revival of misprision or a modern equivalent
Family courts are tightening control of expert evidence. Writing in NLJ this week, Dr Chris Pamplin says there is ‘no automatic right’ to call experts; attendance must be ‘necessary in the interests of justice’ under FPR Pt 25
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