West Law Report

Accused has the right to confront his accusers

Posted in House of Lords (case), Times Law Report by mrkooenglish on June 26, 2008

From The TimesJune 19, 2008

Accused has the right to confront his accusers
House of Lords
Published June 19, 2008
Regina v Davis (Iain)
Before Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance
Speeches June 18, 2008

Protective measures, which ensured the anonymity of three witnesses without whose evidence the defendant could not have been convicted of murder, rendered the trial unfair and were, accordingly, unlawful.

The House of Lords so held when allowing an appeal by Iain Davis from the dismissal by the Court of Appeal (Sir Igor Judge, President, Mr Justice Mitting and Mr Justice Fulford) (The Times June 1, 2006; [2006] 1 WLR 3130) of his appeal against his conviction on May 25, 2004, at the Central Criminal Court (Judge Paget, QC and a jury) of two counts of murder. The case was remitted to the Court of Appeal with an invitation to quash the conviction and decide, if applicable, whether to order a retrial.

The trial judge, accepting that the witnesses’ fear for their lives was genuine, directed: (i) they would give evidence under pseudonyms, (ii) their personal identifying details would be withheld from the defendant and his advisers, (iii) his counsel would not be permitted to ask any question from which they might be identified, (iv) they would give evidence screened from the defendant and (v) their voices would be distorted to prevent him recognising them.

Mr Malcolm Swift, QC and Miss Susan Rodham for the defendant; Mr David Perry, QC and Mr Simon Ray for the Crown.

LORD BINGHAM said that it was 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 might crossexamine them and challenge their evidence.

There were long-recognised exceptions to that principle, and further exceptions enacted by statute, but until recently there had been no precedent for protective measures of the present kind, even when the problem of witness intimidation had been extreme.

His Lordship referred to the adoption of that principle in the United States as a constitutional right and its importance in other countries influenced by the common-law tradition. His Lordship also analysed a number of recent United Kingdom cases involving witness anonymity in criminal, coronial and extradition proceedings.

With regard to the European Convention on Human Rights, the right of confrontation was well recognised and established in England long before adoption of the Convention. The introduction of article 6.3(d), guaranteeing the defendant’s right to examine witnesses against him, did not add anything of significance to any requirements of English law for witnesses to give their evidence in the presence of the accused: see R (D) v Camberwell Green Youth Court (The Times February 1, 2005; [2005] 1 WLR 393, paragraph 10).

Adopting Lord Mance’s analysis of case law of the European Court of Human Rights at Strasbourg, he said that the rule as it now stood, vouched by a series of authorities, was that no conviction should be based solely or to a decisive extent on the statements or testimony of anonymous witnesses. The reason was that such a conviction resulted from a trial which could not be regarded as fair. That was the view traditionally taken by the common law.

The Crown relied on five propositions:

1 The problem of witness intimidation was real and prevalent: witnesses would not give evidence unless their identity was withheld from the defence; if they did not give evidence dangerous criminals would walk free and both society and the administration of justice would suffer.

His Lordship did not doubt the reality of that proposition; it was not a new problem but it was a serious one and might well call for urgent attention by Parliament.

2 The paramount object must always be to do justice: see Scott v Scott ([1913] AC 417); if, to do justice, some adaptation of ordinary procedure was called for, it should be made, provided the overall fairness of the trial was not compromised.

While Scott recognised that there might in some circumstances be a departure from the rule that justice should be administered in public, the rights of a litigating party were the same whether a trial was conducted in camera or open court. 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.

3 Recent case law, particularly R v Taylor (Gary) (The Times August 17, 1994), supported the adoption of protective measures.

Some of the recent case law, in particular Taylor, was binding on the Court of Appeal. But the reasons given to support those decisions were, as his Lordship’s analysis suggested, unsound. By a series of small steps, largely unobjectionable on their facts, the courts had arrived at a position irreconcilable with long-standing principle.

4 The Strasbourg jurisprudence, properly understood, did not condemn the use of protective measures.

His Lordship could not, for the reasons given by Lord Mance, accept that their use was compatible with the Strasbourg court’s jurisprudence.

5 The defendant was protected from the risk of unfairness by the prosecutor’s duty to disclose material known to him as damaging to an unidentified witness or of a previous inconsistent statement made by such a witness.

Undoubtedly, the prosecutor here performed that duty diligently and conscientiously but the fairness of a trial should not largely depend on such diligent performance of duty. The disclosure made to the defence, consistently with the protective measures, contained nothing which would enable the defendant to identify the witnesses giving evidence.

His Lordship turned to whether the protective measures operated unfairly; their impact on the defence had to be considered.

Having referred to the defendant’s denial of guilt and his belief that the witnesses’ false evidence was procured by a former girlfriend with whom he had fallen out, his Lordship said that defence counsel was gravely impeded from pursuing that suggestion in cross-examination by ignorance of, and inability to explore who the witnesses were, where they lived and the nature of their contact with the defendant.

When a witness, whom the defendant believed to be the girlfriend, was called, it was doubtful whether she was. But that could not be explored. If the jury concluded she was probably not, they would also conclude the defence was based on a false premise. A trial so conducted could not be regarded as meeting the ordinary standards of fairness.

His Lordship could not accept the Court of Appeal’s analysis of the domestic and Strasbourg authorities. In the English cases stress was consistently laid on the need to ensure that the procedure did not unfairly prejudice the defendant. But there were great dangers in that approach.

The Court of Appeal did not adequately address the problem that the defendant was denied the opportunity fully to investigate the truth of the witnesses’ evidence. At no point did the Court of Appeal acknowledge that the right to be confronted by one’s accusers was recognised by the common law for centuries; and it was not enough if counsel saw them if they were unknown to and unseen by the defendant.

The protective measures imposed here hampered the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair.

Lord Rodger, Lord Brown and Lord Mance delivered concurring opinions; Lord Carswell delivered an opinion concurring in the result.

Solicitors: Crown Prosecution Service, Headquarters.

See also:

Law lords reject plans to protect witnesses from gang retaliation“, The Times, June 19, 2008

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