R v Mayers (Jordan) and Others
| Jurisdiction | England & Wales |
| Judgment Date | 12 December 2008 |
| Neutral Citation | [2008] EWCA Crim 2989 |
| Docket Number | Case No: 2007/04536/C4 (1) 2008/04667/B1(3) 2008/04154/B1(4) 2008/01405/B5 (5) 2008/00959/B5 (6) 2008/5134/B5 (7) |
| Court | Court of Appeal (Criminal Division) |
| Date | 12 December 2008 |
[2008] EWCA Crim 2989
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON
MR JUSTICE GROSS (1)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE ROOK QC (2)
ON APPEAL FROM THE CROWN COURT AT PLYMOUTH
HIS HONOUR JUDGE GILBERT QC (3)(4)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
Lord Justice Leveson
Mr Justice Forbes
Mr Justice Openshaw and
Mr Justice Burnett
Case No: 2007/04536/C4 (1)
2008/03091/D4 (2)
2008/04667/B1(3)
2008/04154/B1(4)
2008/01405/B5 (5)
2008/00959/B5 (6)
2008/5134/B5 (7)
Miss K Hollis QC and Mr T Smith for Mayers (1)
Mr D. Howker QC and Mr J Traversi for Glasgow (2)
Mr A Newman QC for Costelloe (3)
Mr A Donne QC and Mr A Rafati for Bahmanzadeh (4)
Mr E. Brown QC and Miss S Whitehouse for the Prosecution
Interlocutory application under section 35 (1) of the Criminal Procedure and
Investigations Act 1996
Mr A Langdon QC and Mr C Quinlan for the Crown Prosecution Service
Mr M Fitton QC and Mr T Rose for P (5)
Mr I Peart QC and Mr R. Wilson for V (6)
Mr D. Hughes for R (7)
Hearing date: 29th October 2008
Lord Chief Justice of England and Wales:
This is the judgment of the court, to which each member has contributed.
The Criminal Evidence (Witness Anonymity) Act 2008 (the Act) represents Parliament's response to the decision of the House of Lords dated 18 June 2008 in R v Davis [2008] 3WLR 125. The Act received Royal Assent and came into force on 21 July 2008. The common law rules relating to the anonymity of witnesses were abolished. Witness anonymity orders continue to be permissible, provided they are made in accordance with the provisions of the statute.
These four otherwise unconnected cases require discussion and analysis of a number of different features of the legislation, a process more usefully addressed in a variety of different factual circumstances than in a single case. The first three cases will be treated as appeals. Two, Mayers and Glasgow, followed convictions after witness anonymity orders were made in July 2007 and May 2008 respectively, reflecting the principles as understood from the decision of the Court of Appeal in R v Davis [2006] 1WLR 3130, before its reversal by the House of Lords. Both these appeals involve anonymous eye witness evidence in murder cases, Mayers following the public stabbing and Glasgow the public shooting of the deceased. In the third appeal, Bahmanzadeh and Costelloe were convicted on 2 July 2008 of less serious offences in connection with the use of premises for the supply of class A drugs, after anonymity orders were made before the decision of the House of Lords in Davis, and reconsidered before the end of the trial in the light of that decision. The evidence of numerous undercover police officers was anonymised, and raised an altogether different problem to that raised in Mayers and Glasgow. The fourth case V, P, and R involves a murder in which the victim was shot in full view of a number of witnesses present at a club. This is not an appeal against conviction, but an interlocutory appeal by the prosecution against a decision on 19 September 2008 that the Act did not permit a witness anonymity order to be made unless it was proposed that the witness or witnesses would be called to give evidence.
As this narrative shows, the first three appeals involve convictions returned before the Act came into force. Nevertheless they are to be examined as if it was already in force when the trials took place. Express provision is made for appeals against conviction returned before the Act came into force to be examined on the basis of the Act rather than the common law as declared by the House of Lords in R v Davis. Section 11 provides:
“(1) This section applies where
(a) an appeal court is considering an appeal against a conviction in criminal proceedings in a case where the trial ended before commencement,
(b) the court from which the appeal lies (“the trial court”) made a pre-commencement anonymity order in relation to a witness at the trial.
(2) The appeal court –
(a) may not treat the conviction as unsafe solely on the ground that the trial had no power at common law to make the order mentioned in sub-section (1)(b), but
(b)must treat the conviction as unsafe if it considers
(i) that the order was not one that the trial judge could have made if this Act had been in force at the material time; and
(ii) that, as a result of the order, the defendant did not receive a fair trial.”
This statutory structure directs the approach of the court to the question whether pre-commencement convictions in which the evidence of anonymous witnesses was deployed are “unsafe” for the purposes of section 2 of the Criminal Appeal Act 1995. In effect the Act governs the issue of witness anonymity whenever it arises for decision.
The Legislative Structure
Discussion
The Act must be construed and considered as a whole. However for present purposes it is convenient to begin by considering some of its specific provisions in the light of the various submissions addressed to us in one or other of the four individual cases.
Section 1 creates the new rules which apply to witness anonymity in criminal proceedings. The section continues:
“….(2) The common law rules relating to the power of a court to make an order for securing that the identity of a witness in criminal proceedings is withheld from the defendant (or, on a defence application, from other defendants) are abolished.
(3) Nothing in this Act affects the common law rules as to the withholding of information on the grounds of public interest immunity.”
Notwithstanding the abolition of the common law rules, it is abundantly clear from the provisions of the Act as a whole that, save in the exceptional circumstances permitted by the Act, the ancient principle that the defendant is entitled to know the identity of witnesses who incriminate him is maintained.
The Act simultaneously seeks to address the provisions of the European Convention of Human Rights and the relevant jurisprudence of the European Court, by seeking to preserve the delicate balance between the rights of the defendant, including his entitlement to a fair trial and public hearing, and to examine or have the witnesses who inculpate him properly examined, (Article 6) and the witness's right to life (Article 2) and physical security (Article 3) and indeed the right to respect for his or her private life (Article 8). The need for this balance has been addressed in a number of decisions of the European Court, including Kostovski v Netherlands 12 EHRR 434, Doerson v Netherlands 22 EHRR 330 and Van Mechelen v Netherlands 25 EHRR 647.
In his commentary on R v Davis in the House of Lords at [2008] Crim LR 917 Professor Andrew Ashworth highlighted a point of contrast between the approach of the House of Lords in Davis, which focused significantly on the protection of the interests of defendants and G [2008] 1 WLR 1379, which appears to have concentrated more closely on the rights of witnesses. The Act must be taken to reflect Parliament's view of how best to address the countervailing interests which arise in every criminal trial, those of the defendant, the witnesses and victims, as well as the public interest in a fair trial process which protects the interests of both, and so far as possible, secures the conviction of those who are guilty and the acquittal of those who are not. It provides a comprehensive statutory structure to deal with the many potentially conflicting problems to which witness anonymity may give rise. It does so in the context of numerous other provisions which address the fairness of the trial process as well as the protection of witnesses and the preservation of their rights, whether they are to be found in statute, the common law or in the jurisprudence of the European Court.
Procedural Issues
The Act creates what may fairly be regarded as a new statutory special measure. None of the existing provisions, such as, for example, special measures under the Youth Justice and Criminal Evidence Act 1999, the arrangements relating to the admissibility of evidence in accordance with section 116 of the Criminal Justice Act 2003 where a witness is unavailable and indeed, the requirements relating to the contents of the defence statement, governed by section 6A of the Criminal Procedure and Investigations Act 1996, as inserted by section 33(2) of the Criminal Justice Act 2003, as amended by section 60 of the Criminal Justice and Immigration Act 2008, are abrogated by the abolition of the common law rules relating to witness anonymity. It is however clear that an anonymity order should be regarded as the special measure of last practicable resort.
There was a degree of unreality about the submission that witness relocation should normally provide a practicable alternative to an anonymity order. We shall assume for present purposes that all the necessary funding would be available to relocate every anonymous witness, and provide the witnesses and their families with a new identity and employment. By definition, however, the witnesses would be cut off from all their roots, and have to start completely new lives: so would their spouses or partners and their children. The interference with the life of any such witness would be tumultuous, and would effectively penalise him for doing his duty as a citizen. Witness relocation can only be a practicable alternative in the rarest of circumstances, and certainly if...
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