Publication Date01 July 2006
Date01 July 2006
Absent witness as circumstantial evidence—United Kingdom
Those interested in Baigent & Leigh vRandom House [2006] EWHC 719 (Ch) may have
noticed that the judgment contained an evidence point. The case was brought by
Baigent and Leigh, co-authors with Henry Lincoln of The Holy Blood and the Holy Grail
(1982) (HBHG), against Random House, the publishers of The Da Vinci Code (DVC)
by Dan Brown. The claimants accused Brown of plagiarising their book. Brown
admitted in evidence that he and his wife, Blyth, had read HBHG while
researching DVC but said that he had not used the book when he wrote the DVC
Synopsis. The trial judge found that there were serious issues over the use of HBHG
which only Blyth could explain, but she was not a defence witness. Dan Brown had
set out reasons for her absence in a witness statement, namely that he could
answer questions regarding her assistance and his wife’s dislike of publicity. The
judge found these reasons unconvincing: the Browns had as much at stake as the
defendant, Random House, and how DVC was researched and created was vital to
the trial issues. The judge pointed out that in Lennox Lewis vEliades [2005] EWCA Civ
1627, the Court of Appeal had upheld his decision to draw adverse inferences from
the unexplained absence of witnesses who were apparently available when their
evidence was crucial to the case. In the DVC case, Blyth’s absence was ‘explicable
only on the basis that she would not support Mr Brown’s assertion as to the use
made of HBHG and when that use occurred’([2006] EWHC 719 (Ch) at [215]). The
judge did not refer to Wisniewski vCentral Manchester Health Authority [1998] Lloyd’s
Rep Med 223 in which Brooke LJ set out principles for drawing inferences from the
absence of a witness. The judge’s treatment of Blyth’s absence does not wholly
conform to those principles.
Witness anonymity—United Kingdom
In RvDavis [2006] EWCA Crim 1155 defendants in two unconnected trials
complained of the use of voice modulation, screening and other protective
measures to conceal from them the identity of witnesses. After a review of
Strasbourg case law, the Court of Appeal held that trial judges may allow a witness

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