R v Davis [2008] UKHL 36, [2008] All ER (D) 222 (Jun)
House of Lords
Lord Bingham, Lord Rodger, Lord Carswell, Lord Brown and Lord Mance
18 June 2008
Subject to statutory exceptions, the common law requires that the defendant in a criminal trial should be confronted by his accusers; it is possible in principle to allow departures from the basic rule of open justice to some extent, but a clear case of necessity has to be made out.
Malcolm Swift QC and Susan Rodham (instructed by Goldkorns) for the defendant. David Perry QC and Simon Ray (instructed by the Crown Prosecution Service) for the Crown.
The defendant was charged with murdering two men by shooting them. Three witnesses, who identified the defendant as the gunman, claimed to be in fear for their lives if it became known that they had given evidence against the defendant. To ensure their safety and to induce them to give evidence, the trial judge made an order that they were each to give evidence under a pseudonym; their addresses and personal details were to be withheld from the defendant and his legal advisers; and the defendant’s counsel was not to be permitted to ask them questions which might enable any of them to be identified. The witnesses were to give evidence behind screens so that they could be seen by the judge and jury but not the defendant; and the witnesses’ natural voices were to be heard by the judge and jury but not by the defendant or his counsel.
The defendant was convicted and appealed. He argued that the restrictions on witnesses were contrary to the common law and inconsistent with his right under Art 6(3)(d) of the European Convention on Human Rights (the Convention) and had, accordingly, rendered the trial unfair. The Court of Appeal rejected those submissions and he appealed to the House of Lords.
LORD CARSWELL:
The prosecution submitted: (i) that the problem of witness intimidation was real and prevalent and witnesses would not give evidence unless their identity was withheld from the defence. If they would not give evidence, dangerous criminals would walk free and both society and the administration of justice would suffer; (ii) it was settled law that the paramount object had always been to do justice and that if, in order to do justice, some adaptation of ordinary procedure was called for, it should be made, so long as the overall fairness of the trial was not compromised; (iii) recent case law supported the adoption of protective measures; (iv) the Strasbourg jurisprudence, properly understood, did not condemn the use of protective measures; and (v) the defendant was protected from the risk of unfairness by the prosecutor’s duty of disclosure.
His lordship considered Scott (otherwise Morgan) v Scott [1913] AC 417 and Doorson v Netherlands (App No 20524/92) 22 EHRR 330. It was possible to discern the following principles:
(a) There was a presumption in favour of open justice and confrontation of a defendant by his accuser.
(b) It was possible in principle to allow departures from the basic rule of open justice to some extent, but a clear case of necessity should be made out.
(c) The court should be sufficiently satisfied that the witness’s reluctance to give evidence in the ordinary manner was genuine and that the extent of his or her fear justified a degree of anonymity.
(d) Anonymising expedients might 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 advisers.
(e) The more of those expedients the court might consider adopting, the stronger the case had to be for invading the principle of open justice. Determination of the question depended upon balancing to ensure that the trial continued to be fair.
(f) An important consideration was the relative importance of the witness’s testimony in the prosecution case. If it constituted the sole or decisive evidence against the defendant, anonymising which prevented or unduly hindered the defendant and his advisers from taking steps to undermine the credit of the witness was most likely to operate unfairly. It was a question of fact in any given case what, if any, measures would be compatible with sufficient fairness of the trial. Courts trying criminal cases should not be over-ready to resort to such measures, and his lordship would commend to them R v Arnold [2004] EWCA Crim 1293, [2004] All ER (D) 329 (May), para 30.
As a general rule it was unlikely that the trial would be fair if a very substantial degree of anonymising of evidence was permitted where the testimony of the witnesses concerned constituted the sole or decisive evidence implicating the defendant.
His lordship agreed with Lord Bingham that the appeal should be allowed and the case remitted to the Court of Appeal, inviting that court to quash the conviction and decide, if application was made, to order a retrial.
LORD BROWN:
His lordship agreed the appeal had to be allowed. He would not, however, accept that the problem could be dealt with on so flexible a basis as Lord Carswell proposed.
LORD MANCE:
The Strasbourg Court had repeatedly stated that the use of anonymous evidence was not under all circumstances incompatible with the Convention (see Doorson).
In practice, where the Strasbourg Court had found a violation of the right to a fair trial, it had commonly done so by reference to a conjunction of considerations, and not because the conviction was based solely or decisively on anonymous evidence.
The extent of any handicap and the extent to which anonymous evidence was decisive were not separate, but inter-related, aspects of a single overall question, viz whether the trial was “fair”.
His lordship considered on the facts that the Strasbourg Court would not accept that the use of anonymous evidence in the instant case satisfied the requirements of Art 6. He held, however, that a careful statutory modification of basic common law principles might well be appropriate. It was clear from the Strasbourg jurisprudence that there was scope within the Convention for such modification. His lordship would allow the appeal accordingly.
Lord Bingham and Lord Rodger agreed.
