Noticeboard
| Date | 01 November 2008 |
| DOI | 10.1350/ijep.2008.12.4.306 |
| Published date | 01 November 2008 |
| Subject Matter | Noticeboard |
NOTICEBOARD
NOTICEBOARD
NOTICEBOARD
Cases and comment
Right of confrontation–United Kingdom
The appellant in RvDavis [2008] UKHL 36 was convicted of a double murder. His
conviction depended on the evidence of three witnesses who identified him at the
trial as the gunman. The judge allowed these witnesses, whom the judge was
satisfied had genuine and reasonable grounds for fearing reprisals if it became
known that they had given evidence against the defendant, to give their evidence
without disclosing their identity. Anonymity was achieved by a number of
protective measures: (i) withholding the names of the witnesses and all personal
identifying details, (ii) prohibiting questions from which the witnesses might be
identified, (iii) screening, and (iv) use of voice distortion equipment. The
defendant claimed to be the victim of a false accusation by a jealous girlfriend but
these measures prevented this defence from being put to the jury.
Lord Bingham said that the right of a defendant to confront his accuser in a
criminal trial was a long-established principle of English common law. Only
recent authority, particularly RvTaylor and Crabb, unreported, 22 July 1994,
supported the adoption of witness anonymity measures. In the 1970s during the
Irish troubles, Lord Diplock and Lord Gardiner had both considered and rejected
witness anonymity. In the United States the right of confrontation is a constitu-
tional right and courts in New Zealand and South Africa have treated the right of
confrontation as an important albeit not a constitutional right. By a series of small
steps, largely unobjectionable on their facts, English courts had reached a position
in RvTaylor and Crabb that was irreconcilable with the common law right of
confrontation.
In Davis the Crown argued that problems of witness intimidation were real and
prevalent, that Scott vScott [1913] AC 417 authorised adaptation of ordinary trial
doi:1350/ijep.2008.12.4.306
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2008) 12 E&P 333–355 333
procedures to enable justice to be done, that the defendant was protected against
unfairness by the prosecutor’s duty to disclose damaging material such as
previous convictions and prior inconsistent statements (edited so as to conceal the
witness’s identity) and that Strasbourg jurisprudence does not condemn the use of
protective measures. Their Lordships did not find these arguments convincing.
Lord Rodger pointed out that ‘intimidation of witnesses is an age-old and
worldwide problem’ (ibid.at [36]). Lord Bingham said that Scott vScott above, which
addressed the principle that justice should be administered in public, was not in
point, that the ‘fairness of a trial should not largely depend on the diligent perfor-
mance of their duties by the prosecuting authorities’ (ibid. at [31]) and that
diligent disclosure had not prevented the protective measures imposed in this
case from hampering the conduct of the defence (ibid. at [35]). Lord Mance, whose
analysis of the jurisprudence of the European Court of Human Rights was adopted
by the other Law Lords, concluded that although the use of protective measures to
ensure witness anonymity is not in all circumstances incompatible with the
Convention, in the present case it had violated Article 6, the fair trial guarantee,
which in Article 6(3)(d) promises minimum rights that include the right ‘to
examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as
witnesses against him’.
Not only was the evidence on any view the sole or decisive basis on
which alone the defendant could have been convicted, but effective
cross-examination in the present case depended upon investigating
the potential motives of the three witnesses giving what the defence
maintained was a lying and presumably conspiratorial account.
Cross-examination was hampered by the witness’ anonymity ...
Assuming that the sole or decisive nature of the evidence is not itself
fatal, it is on any view an important factor which would require to be
very clearly counter-balanced by other factors. Here there are none.
(ibid. at [96]).
Lord Carswell suggested that in a case in which witness intimidation can be traced
to the defendant, the position might be different: ‘it seems to me that such a
defendant would be faced with considerable difficulty in advancing the propo-
sition that the trial had been made unfair if the witness’s testimony is anonymised
and he is prevented from pursuing an attack upon his or her credit’ (ibid. at [60],
see also Lord Mance at [90]).
It is important to appreciate what the House of Lords did not decide in RvDavis. The
decision does not:
334 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
NOTICEBOARD
To continue reading
Request your trial