Judgments - R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division))

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14.  R v Taylor and Crabb (unreported, 22 July 1994, Court of Appeal Criminal Division) was an appeal by Taylor and a renewed application for leave by Crabb. The case arose out of a murder trial at the Central Criminal Court before His Honour Judge Denison QC and a jury. At the trial a witness anonymised as Miss A was allowed to give evidence anonymously, without revealing her address, behind a screen so arranged that she, the judge, jury and counsel could see each other directly but she and the defendants could not, although there was a video camera which enabled the defendants to see her by that means while she was giving evidence. This, as Evans LJ, giving the Court of Appeal judgment, pointed out (at p 19 of the transcript of the judgment) enabled the defendants to be sure that Miss A was no one whom they recognised or who, so far as they were aware, had any motive for giving evidence against them. The court thus considered that any theoretical possibility of prejudice had been eliminated. As Hughes J observed in R v Bola (unreported, 18 June 2003), Miss A was no more than a potentially corroborative witness, and it was the accuracy, not the honesty, of her evidence which was in issue. But the Court of Appeal acknowledged (p 10), as the trial judge had done (p 11), that Miss A was an important witness.

15.  It was submitted to the Court of Appeal (p 12) that a defendant had a fundamental right to know the identity, in particular the name and address, of a witness called against him, and that any exception to this fundamental right must be very limited indeed save in a case touching on national security. Smith v Illinois, above, and S v Leepile, above, and R v Murphy, above, were cited. The court did not regard these authorities as directly in point, but relied heavily on the Divisional Court decision in the Watford case, above, referring also to R v X, Y and Z, above. The court accepted (p 17) that the defendant had a fundamental right to see and know the identity of his accusers, in the sense that the right should only be denied in rare and exceptional circumstances, but regarded it as a discretionary decision for the trial judge whether an exception should be made in any given case. The court then laid down guidelines on the exercise of this discretion. The first was that there must be real grounds for being fearful of the consequences if the evidence was given and the identity revealed (even if the concern was expressed by someone other than the witness, as by Miss A’s mother in that case). The court continued:

“Secondly, the evidence must be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it. But the greater its importance, the greater the potential unfairness to the defendant in allowing the witness to remain anonymous. In this context, it seems to us, that a distinction can properly be drawn, as the learned judge drew it here, between cases where the creditworthiness of the witness is or is likely to be in issue and others where the issue for the jury is the reliability and accuracy of the witness rather than credit.

       Thirdly, the prosecution must satisfy the court that the creditworthiness of the witness has been fully investigated and the results of that enquiry disclosed to the defence so far as is consistent with the anonymity sought.

       Fourthly, the court must be satisfied that no undue prejudice is caused to the defendant. ‘Undue’ is a necessary qualification because some prejudice is inevitable if the order in question is made, even if that prejudice is only the qualification placed on the right to confront the witness as one of the defendant’s accusers ...

       Finally, the court can balance the need for protection, including the extent of any necessary protection, against the unfairness or appearance of unfairness in the particular case. By referring to the extent of protection, we have in mind other courses which can be taken short of allowing anonymity to the witness. These include, for example, screening, a voice camera, a hearing in camera or whatever it may be.”

16.  Three comments may be made on this judgment. First, its support in authority is, on analysis, very slight. Secondly, the court gave no reason for disregarding the judgments in Smith v Illinois and S v Leepile which, to the extent that they reflected the common law, were relevant authorities. Thirdly, as Lord Hutton later pointed out in R (Al-Fawwaz) v Governor of Brixton Prison [2001] UKHL 69, [2002] 1 AC 556, para 86, there is a degree of inconsistency between the statement that the accused has a fundamental right to see and know the identity of his accusers save in rare and exceptional circumstances and the court’s statement of the factors which the judge should balance in the exercise of his discretion.

17.  The next relevant decision, in R v Liverpool Magistrates’ Court, Ex p Director of Public Prosecutions (1996) 161 JP 43, arose from an order made by a stipendiary magistrate hearing committal proceedings in a drugs case. By his order he had ruled that under-cover officers, although permitted to give evidence shielding their faces from the public in court, should not be permitted to withhold their true names and identity. The Director’s application for judicial review of this ruling came before a Queen’s Bench Divisional Court (Beldam LJ and Smith J), who granted it. In his leading judgment, Beldam LJ relied on his earlier decision in the Watford case, R v X, Y and Z and R v Taylor and Crabb above. Again, in R v Jack (unreported, 7 April 1998) the Court of Appeal followed its own decision in R v Taylor and Crabb.

18.  The decision of the House in R(Al-Fawwaz) v Governor of Brixton Prison [2001] UKHL 69, [2002] 1 AC 556 was given on an application for habeas corpus arising from an application to extradite the applicants to the United States. At the extradition hearing the magistrate had relied on anonymous affidavit evidence, and the reception of this evidence was a subject of complaint. The House rejected this complaint and in doing so largely endorsed the reasoning in R v Taylor and Crabb above: see paras 44, 81-88, 114, 164-165. This plainly assists the Crown in this appeal. But in my opinion the assistance is small: the applicants did not challenge the correctness of R v Taylor and Crabb, on which indeed they founded their argument; there was accordingly no consideration of fundamental principle, and little of authority; extradition proceedings are not a criminal trial and cannot culminate in a conviction; there is in any event no right of cross-examination where duly authenticated evidence is presented in extradition proceedings; and the United States Government had indicated that the anonymity of the anonymous deponent would be disclosed in the United States.

19.  Little assistance is gained from the decision of the House in R(D) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393. That case concerned special measures, sanctioned by the Youth and Criminal Evidence Act 1999 for the protection of child witnesses, which were upheld by the House. The measures in question permitted the evidence of the victim and another child to be given by a video recorded interview and a live television link. All the evidence was, however, produced in the presence of the defendants, who could see and hear it and had every opportunity to challenge it. The case was, as Baroness Hale of Richmond observed at para 49, “completely different from the case of anonymous witnesses".

20.  Reference was made in argument to a number of cases in which appellate courts had upheld the reading of statements made by witnesses who were kept away from the court by fear (eg. R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257), or death (eg. R v Al-Khawaja [2005] EWCA Crim 2697, [2006] 1 WLR 1078) or because they could not be found (eg. Grant v The Queen [2006] UKPC 2, [2007] 1 AC 1). Such cases, it was rightly said, showed that there could be departures from the principle that a defendant is entitled to be confronted in court by his accusers. These departures have, however, been the subject of express statutory authorisation, in sections 23-28 of the Criminal Justice Act 1988 and sections 114-126 of the Criminal Justice Act 2003 and, for instance, sections 31A to L of the Jamaican Evidence Act 1843, as amended (considered in Grant v The Queen). None of these statutory provisions permits the adducing of a statement by any witness whose name and identity are not disclosed to the defendant and his advisers. In each instance the court has a discretion to rule that the statement should not be admitted if its admission will result in unfairness to the accused (section 25(1) and (2)(d) of the 1988 Act, section 114(1) and (2)(i) and 126 of the 2003 Act, section 31L of the Jamaican Act). In section 124(2) of the 2003 Act and section 31J(1)(b) of the Jamaican Act provision is made for the calling of evidence pertaining to the credibility of a witness which could have been put to him in cross-examination had the witness given evidence in person, and by sections 119(2) and 124(2)(c) of the 2003 Act and section 31J(1)(c) of the Jamaican Act any previous inconsistent statement of a witness may be introduced. These protections are denied to a defendant who does not know who a witness is, save to the extent of any disclosure made by the prosecutor.

21.  The House has approved the admission of anonymous written statements by a coroner conducting an inquest: see R v HM Attorney-General for Northern Ireland, Ex p Devine [1992] 1 WLR 262. But, as Lord Lane CJ pointed out in the transcript of his judgment of the court in R v South London Coroner, Ex p Thompson, reported in part at (1982) 126 SJ 625, an inquest is an inquisitorial process of investigation, quite unlike a criminal trial; there is no indictment, no prosecution, no defence, no trial; the procedures and rules of evidence suitable for a trial are unsuitable for an inquest: see R v HM Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1, 17. Above all, there is no accused liable to be convicted and punished in that proceeding.

22.  Julie Doherty (suing as personal representative of Daniel Doherty deceased) v Ministry of Defence (Court of Appeal in Northern Ireland, 5 February 1991, unreported) was a civil action in which the defendant ministry applied that military witnesses should be screened while giving evidence so as to protect their identities. They were also to be identified by letters, not names, but the claimant raised no objection to that. Giving judgment, Sir Brian Hutton CJ distinguished his earlier judgment in R v Murphy on the ground that the evidence given by the media witnesses in that case had been of “a very limited nature” whereas the evidence to be given by these military witnesses would be “directly detrimental to the plaintiff’s case". He said:

“I think it appropriate to observe that, in my opinion, counsel for the Ministry in his submissions accorded insufficient recognition to the importance of counsel being able to cross-examine, face to face, an important witness giving evidence on a vital issue in dispute between the parties. Where issues are in dispute between the parties unimpeded cross-examination plays a vital part in the trial and gives vital assistance to the due administration of justice. I consider that counsel would be impeded in the cross-examination of a witness, whose evidence he wished to challenge, if he could not see his face fully, and I find it difficult to envisage circumstances in which the interests of justice would require that the face of a vital witness giving evidence on an important matter in dispute should be screened from counsel cross-examining him.”

Higgins J, concurring, said:

“Mr Kerr in his submission on behalf of the Ministry of Defence questioned the importance of a lawyer appearing in a trial being able to see the witnesses for the opposing side give evidence, even when their evidence is crucial and disputed. I think that in a contested case it is essential that the lawyer for one party should be able to see the demeanour of each witness, called by the other side to give evidence of any importance; to prevent him from viewing such a witness would be a hindrance to his cross-examination.

       The exposure of witnesses, even when giving uncontroversial evidence, to the view of the lawyers in the case has been the invariable practice in the common law system of administering justice. It has been one of the features which has contributed to the maintenance of public confidence in the administration of justice. To depart from it in any circumstance, unless there has been consent, would, I consider, diminish public confidence.

       The Ministry is seeking to have four witnesses at the trial of this case screened from the sight of all but the trial judge. Those witnesses would be giving evidence in support of the defence of reasonable force, which is likely to be challenged strongly. It is my opinion that to permit, for no matter how compelling a reason, any of those witnesses to be cut off, while in the witness-box, from the view of the plaintiff’s lawyers, would be an unacceptable departure from the fundamental principles which govern the conduct of trials throughout the United Kingdom.”

23.  The House was referred to no case in which protective measures, as defined in para 4 above, have been employed in Scotland.

The European Convention

24.  As shown above, the right of a criminal defendant to be confronted by named and identified accusers was well-recognised and established in England for some centuries before adoption of the European Convention. As my noble and learned friend Lord Rodger of Earlsferry suggested in the Camberwell Green case, above, para 10, “the introduction of article 6(3)(d) will not have added anything of significance to any requirements of English law for witnesses to give their evidence in the presence of the accused". It may well be (this was not explored in argument) that the inclusion of article 6(3)(d), guaranteeing to the defendant a right to examine or have examined witnesses against him, reflected the influence of British negotiators. It is in any event clear, as my noble and learned friend observed in the same case, para 11, that “An examination of the case law of the European Court of Human Rights tends to confirm that much of the impact of article 6(3)(d) has been on the procedures of continental systems which previously allowed an accused person to be convicted on the basis of evidence from witnesses whom he had not had an opportunity to challenge".

25.  I have had the opportunity to read in draft the analysis made by my noble and learned friend Lord Mance of the Strasbourg case law on this subject. I agree with that analysis and gratefully adopt it. It may be, as Mr David Perry QC for the Crown submitted, that a rule originally laid down by the Strasbourg court with reference to the reading of statements has been transposed or extended so as to apply to the giving of evidence by unidentified witnesses. But the rule itself as it now stands is vouched by a series of authorities (Kostovski v Netherlands (1989) 12 EHRR 434, para 44; Doorson v Netherlands (1996) 22 EHRR 330, para 76; Van Mechelen v Netherlands (1997) 25 EHRR 647, paras 55, 63; PS v Germany (2001) 36 EHRR 1139, para 24; Krasniki v Czech Republic (Appn 51277/99, 28 February 2006, unreported), paras 76, 79, 84). It is that no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses. The reason is that such a conviction results from a trial which cannot be regarded as fair. This is the view traditionally taken by the common law of England.

The argument for the Crown

26.  The argument for the Crown, presented persuasively as always by Mr Perry, rested on five main propositions:

(1)  The problem of witness intimidation is real and prevalent. In this case, as in many others, witnesses will not give evidence unless their identity is withheld from the defence. If they will not give evidence, dangerous criminals will walk free and both society and the administration of justice will suffer.

(2)  As Lord Haldane LC stated in Scott v Scott [1913] AC 417, 437, “the paramount object must always be to do justice". That is the purpose which courts of justice exist to serve. If, in order to do justice, some adaptation of ordinary procedure is called for, it should be made, so long as the overall fairness of the trial is not compromised.

(3)  The recent case law, particularly R v Taylor and Crabb, above, supports the adoption of protective measures.

(4)  The Strasbourg jurisprudence, properly understood, does not condemn the use of protective measures.

(5)  The defendant is protected from the risk of unfairness by the prosecutor’s duty of disclosure, in particular of material known to the prosecutor as damaging to an unidentified witness, or of a previous inconsistent statement made by such a witness. In this case, it was pointed out, the Crown had duly delivered a disclosure package to the defence, giving details of witnesses’ records and previous convictions.

27.  I do not for my part doubt the reality of the problem referred to in proposition (1), vividly described by the Court of Appeal in paras 8-12 of its judgment. This is not a new problem (it inspired the procedures of the Inquisition and the Court of Star Chamber), but it is a serious one. It may very well call for urgent attention by Parliament.

28.  Scott v Scott was addressing a very important principle, that justice should be administered in public, and recognised that there may in some circumstances be a departure from that rule. The rights of a litigating party are, however, the same whether a trial is conducted in camera or in open court, and whether or not the course of proceedings may be reported in the media. Nothing in that case is 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. It is however pertinent to recall the observations of Lord Shaw of Dunfermline in that case. At pp 477-478 he said:

“There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure and at the instance of judges themselves.”

At p 485 he added:

“The policy of widening the area of secrecy is always a serious one; but this is for Parliament, and those to whom the subject has been consigned by Parliament, to consider.”

29.  Some of the recent case law, in particular R v Taylor and Crabbe, above, was binding on the Court of Appeal. But the reasons given to support those decisions were not, as I have suggested in paras 10 to 23, sound. By a series of small steps, largely unobjectionable on their own facts, the courts have arrived at a position which is irreconcilable with long-standing principle.

30.  For the reasons given by Lord Mance, I cannot accept that the use of protective measures is compatible with the jurisprudence of the Strasbourg court.

31.  I do not doubt that the prosecutor in this case performed his duty of disclosure diligently and conscientiously. But the fairness of a trial should not largely depend on the diligent performance of their duties by the prosecuting authorities. All are familiar with notorious cases in which wrongful convictions have resulted from police malpractice, rare though such misconduct is. In this case the disclosure made to the defence, consistently with the protective measures obtaining, contained nothing which would enable the appellant to identify the witnesses giving evidence against him.

32.  To decide whether the protective measures operated unfairly in this case it is necessary to consider their impact on the conduct of the defence. For that purpose it cannot be assumed at the outset that the defendant is guilty and all that he says false. The appellant denied that he was the gunman. Why, then, did witnesses say that he was? His answer, on which his instructions to counsel were based, was that he believed the false evidence to have been procured by a former girlfriend with whom he had fallen out. Mr Swift duly sought to pursue this suggestion in cross-examination of the unidentified witnesses, but was gravely impeded in doing so by ignorance of and inability to explore who the witnesses were, where they lived and the nature of their contact with the appellant. When, eventually, subject to the protective measures, a female witness was called whom the appellant believed to be the girlfriend it was at least doubtful whether she was or not, but this was a question that could not be fully explored. If the jury concluded that she was probably not the former girlfriend, they would also conclude that the defence had been based on a false premise. But this was an unavoidable risk if the defence were obliged, in the words of Lord Hewart CJ in a very different context (Coles v Odhams Press Ltd [1936] 1 KB 416), to take blind shots at a hidden target. A trial so conducted cannot be regarded as meeting ordinary standards of fairness.

The Court of Appeal judgment

33.  The President gave a long and careful judgment covering the appellant’s appeal and also another appeal heard at the same time. Having described the problem of intimidation the President said (para 13):

“The Court undoubtedly possesses an inherent jurisdiction at common law to control its own proceedings, if necessary by adapting and developing its existing processes, as Lord Morris explained in Connelly v DPP [1964] AC 1254 at 1301 ‘to defeat any attempted thwarting of its process’ ...”

He reviewed the authorities on the reading of statements by absent witnesses (paras 16-24) and considered (paras 25-61) the English and Strasbourg authorities on anonymous unidentified witnesses, concluding that evidence by such witnesses was permissible. He summarised the essential facts and conclusion in the appellant’s case (paras 74-101), observing (para 81) of the female witness already mentioned:

“... The individual said to be responsible for the plot to convict the appellant gave no incriminating evidence against him, while the individuals who did incriminate him were very good friends of the deceased, who were undoubtedly present at the scene, and who, with the possible exception of Heath [one of the identifying witnesses], had no reasons of their own to protect the man actually responsible for his death by implicating a man who was not.”

The court described the process of disclosure, including the role of a special advocate appointed by the Attorney General at the invitation of the court, with the encouragement of both parties, to assist on issues of public interest immunity. The court expressed its final conclusion in para 101:

“Without for one moment suggesting that counsel was not faced with unwanted difficulties, and accepting that there were one or two matters which might have been investigated more closely, our conclusion is that the anonymity ruling did not prevent proper investigation with the witnesses, and before the jury, of the essential elements of the defence case. There was significant independent evidence supportive of the evidence of the anonymous witnesses, and the jury chose to accept their evidence after cross-examination, and to reject that of the defendant. There was ample evidence to sustain the conviction. We can discern nothing in the trial process overall to lead us to the conclusion that this trial may properly be stigmatised as an unfair trial, or that the convictions were unsafe. Subject to any fresh evidence, the appeal will be dismissed.”

The court heard fresh evidence called by the appellant, subject to protective measures, but found it uncreditworthy and dismissed the appeal.

34.  The issue in Connelly v Director of Public Prosecutions [1964] AC 1254 was whether the Crown could properly prosecute a count of robbery following the appellant’s acquittal of murder, whether the appellant could rely on a plea of autrefois acquit and whether prosecution of the robbery count could be characterised as an abuse of the process of the court. Lord Morris’ general observations must be understood in that context. For reasons already given (para 20 above) the domestic law on the reading of statements by identified witnesses, being governed by statute, has little bearing on the present problem. For reasons also given above (paras 10 to 25) I cannot agree with the court’s analysis of the domestic and Strasbourg authorities, although I accept that some of the former were binding upon it. In the English cases stress is consistently laid on the need to ensure that the procedure does not unfairly prejudice the defendant, and the ruling of Hughes J in R v Bola, above, is a model of fairness. But there are great dangers in this approach. Thus in para 81 of its judgment, quoted above, the Court of Appeal felt able to find that the individuals who did incriminate the appellant were “very good friends of the deceased” and “had no reason of their own to protect the man actually responsible” for the murders when the appellant had been denied the opportunity fully to investigate whether these facts were true or not. I cannot conclude that this problem was adequately addressed by the Court of Appeal in para 101 of its judgment, in part quoted above. At no point in its judgment does the Court of Appeal acknowledge that the right to be confronted by one’s accusers is a right recognised by the common law for centuries, and it is not enough if counsel sees the accusers if they are unknown to and unseen by the defendant.

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