|Judgments - R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division))
35. I feel bound to conclude that the protective measures imposed by the court in this case hampered the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair. I would accordingly allow this appeal and remit the case to the Court of Appeal inviting that court to quash the conviction and decide, if application is made, whether to order a retrial.
LORD RODGER OF EARLSFERRY
36. The intimidation of witnesses is an age-old and worldwide problem. When Cicero was intent on prosecuting Verres for his reign of terror in Sicily, highly-placed henchmen of Verres threatened the fearful and oppressed Sicilian witnesses with dire consequences if they gave evidence against him. Two thousand years later, still in Sicily, prosecutions of Mafia bosses have been bedevilled by the prevailing atmosphere of intimidation, with its insidious counterpart, the code of silence, omertà. The same goes for prosecutions of Camorra clan members in Campania and drug traffickers in Colombia. Hollywood has made everyone familiar with the problem of witness intimidation in the United States, whether today or in former times. For many years the wall of silence in Londons East End frustrated attempts to prosecute the Kray Twins, until they were taken into custody in 1968 and people felt able to come forward to give evidence. In 1996 worries about the effects of witness intimidation led Strathclyde Police to introduce a Witness Protection Programme.
37. The House was told nothing about the background to this particular case - only that the shooting took place in a flat in Hackney. The Crown does not allege that the appellant was responsible for threatening the potential witnesses. Nor does the material available to the House identify any specific threats that were made to the witnesses. That is not surprising. Leaving the present case on one side, it is obvious that, if people are frightened to give evidence about some crime which they have witnessed, they will be equally frightened to give evidence about any threats that may have been made to deter them from giving evidence. In any event, where implied threats of violence to, or ostracism of, grasses are part of the culture of a community, these will often be quite sufficient in themselves to deter potential witnesses. The evidence of a detective officer quoted by the Court of Appeal in paragraph 9 of its judgment paints an all too graphic picture.
38. In the present case the judge was satisfied that the witnesses in question had genuine and reasonable grounds for fearing the consequences if their identities were revealed. That assessment is not challenged. So we are not dealing with the comparatively common situation where, for example, potential witnesses, who are reluctant to give evidence against a fellow gang member, try to use supposed threats as an excuse for not going to court. If a witness citation is issued, such people can be brought to court and the sanction of contempt of court is then available to try to ensure that they speak up. The same applies where witnesses are reluctant to get involved, simply because of a generalised feeling that something unpleasant is liable to happen to those who give evidence about a violent incident which they have seen.
39. But these measures do not assist at the earlier stage when police officers are investigating a crime such as the present. In communities where guns or drug-dealing are part of the culture, people will often refuse to tell the police anything, except on the basis that their identities will not be revealed. In due course the Crown Prosecution Service is presented with evidence obtained on that basis. By the time the matter comes on for trial, the court is really faced with a fait accompli.
40. My noble and learned friends, Lord Bingham of Cornhill and Lord Carswell, have surveyed the domestic case law which has been developed in these circumstances. My noble and learned friend, Lord Mance, has done the same for the cases in the European Court of Human Rights. It would serve no useful purpose for me to repeat that exercise. What stands out, however, is that the domestic cases which permit the use of anonymous witnesses are all remarkably recent. By contrast, when contemplating what steps could be taken to confront the extreme problem of witness intimidation in Northern Ireland in 1972, the Commission chaired by Lord Diplock rejected the idea of witnesses giving evidence anonymously as being inconsistent with the very notion of a trial by judicial process in a British court of law. Three years later, for the same reason, Lord Gardiners committee also rejected the idea of using anonymous witnesses. There could be no better illustration of the strength of the common law requirements on the point. If anything more is needed, the judgments of Richardson J in R v Hughes  2 NZLR 129 and of Ackerman J in State v Leepile (5) 1986 (4) 187 contain powerful statements of the established stance of the common law.
41. Your Lordships were not referred to any Scottish authorities on the point. But, as in England, the principle is so deeply embedded that it scarcely needs stating by the Scottish courts and is often best detected by implication from other rules. One basic rule has always been that, when serving an indictment, the Crown must attach a list of the witnesses whom it intends to call, along with their addresses. That rule, which is subject to certain strictly limited exceptions, is currently embodied in sections 66(4) and 67 of the Criminal Procedure (Scotland) Act 1995. The purpose of the rule is to allow the representatives of the accused to take a precognition (statement) from the potential Crown witnesses.
42. At one time, Scots Law recognised a catalogue of more or less exotic grounds on which the competency of a witness could be challenged - for instance, infamy or enmity and partial counsel. See A Alison, Practice of the Criminal Law of Scotland (1833), pp 429-505. Many of the same objections could be raised in England. See, for instance, J Chitty, A Practical Treatise on the Criminal Law (second edition, 1826) vol 1, pp 587-605. In both jurisdictions the availability of such challenges tended to presuppose a system in which the identity of the witnesses for the prosecution was known. In Scotland, Hume warns that any challenges must be taken before the witnesses give their evidence: As the witnesses are successively called into Court to be examined, they are presented to the pannel [ie the accused], and he is desired to say with respect to each, whether he have any objection to him as a witness": D Hume, Commentaries on the Law of Scotland, respecting Crimes (fourth edition, 1844) vol 2, p 376. Hume simply assumes that the accused will be able to see the witnesses and so be in a position to take any objection. Similarly, in both jurisdictions the rules on the evidence of an accomplice, for example, would have been unworkable if the identity of the witness could have been hidden.
43. Given the statutory requirements, it is perhaps not surprising that there is no reported Scottish authority on the use of anonymous witnesses. I understand, however, that in one case, some years ago, steps were taken to prevent the identity of certain prosecution witnesses from being discovered by members of the public. The arrangements were specifically designed to ensure, however, that the accused and their counsel were able to see the witnesses and to hear them giving their evidence in their ordinary voices.
44. My Lords, it is axiomatic that the common law is capable of developing to meet new challenges. But threats of intimidation to witnesses and the challenge which they pose to our system of trial are anything but new. In theory, the common law could have responded to that challenge at any time over the last few hundred years by allowing witnesses to give their evidence under conditions of anonymity. But it never did - even in times, before the creation of organised police forces, when conditions of lawlessness might have been expected to be far worse than today. Moreover, Lord Diplock saw the common law principle as so fundamental that he felt unable even to recommend that legislation should be passed to interfere with it. In these circumstances, while I am very conscious of the problems confronting the authorities which have led them to adopt these measures, in my view it is not open to this House in its judicial capacity to make such a far-reaching inroad into the common law rights of a defendant as would be involved in endorsing the procedure adopted in the present case. In effect, the ability of counsel for the appellant to cross-examine the decisive witnesses against him was gravely compromised. Similarly, for the reasons given by Lord Mance, the appellants trial did not meet the standard required by article 6 of the European Convention. In the circumstances it is unnecessary to decide whether the decision in R v Murphy  NI 306 is consistent with the common law.
45. It is for the Government and Parliament to take notice if there are indeed areas of the country where intimidation of witnesses is rife and to decide what should be done to deal with the conditions which allow it to flourish. Tackling those conditions would be the best way of tackling the problem which lies behind this appeal. Any change in the law on the way that witnesses give their evidence to allow for those conditions would only be second best. But Parliament is the proper body both to decide whether such a change is now required, and, if so, to devise an appropriate system which still ensures a fair trial.
46. Accordingly, for the reasons given by your Lordships, I agree that the appeal should be allowed and that the House should make the order proposed by Lord Bingham.
47. Ensuring fairness is a fundamental obligation of judges presiding in criminal trials, as the means of achieving their ultimate objective of achieving justice, whatever other factors or demands they have to balance. The difficulty of doing so is well exemplified by the present appeal. The trial judge carefully and conscientiously weighed up the competing considerations and took great pains in attempting to achieve a satisfactory method of proceeding. The Court of Appeal gave equally careful thought to the problem and expressed its conclusions in a notably thorough judgment. In spite of this, concerns remain, which have caused your Lordships to take a different view. I confess to having felt great difficulty about the case, but I have eventually come to agree with your Lordships conclusion, for the reasons which I shall set out.
48. My noble and learned friend Lord Bingham of Cornhill has set out the facts and the effect of the judges rulings at the trial and I gratefully adopt his account.
49. It is not in dispute that the court has an inherent jurisdiction at common law to control its own proceedings, if necessary by adapting and developing its existing processes: see the discussion in paras 13 et seq of the judgment of the Court of Appeal. It is also clear, as Lord Bingham has set out, that there is a strong imperative in favour of open justice, described by Earl Loreburn in Scott v Scott  AC 417, 445 as an inveterate rule. Viscount Haldane LC carefully limited the ambit of any exceptions to that rule at pages 437-8:
As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.
To that long-established principle of the common law must be added a cognate one, the right of an accused to confront his accuser. The force of these two principles is such that it requires a clear case of countervailing necessity to allow the admission of any inroad.
50. The extent of the inroad in the present case was substantial. The identity of the witnesses in question was withheld from the defence and the defendants counsel was not permitted to ask questions which might lead to that being disclosed. The witnesses were screened in such a way that although the judge and jury could see them, neither the defendant nor his counsel could, nor could members of the public. Their voices were purposely distorted by the amplifying equipment so that they could not be recognised by the defendant, although again the judge and jury could hear their true voices. Their antecedent histories and records of any convictions were supplied to the defence, but edited so as to conceal their identities.
51. It is indisputable that this would have had a hampering effect on the conduct of the defence, which was that the appellant was falsely accused of the victims murder for oblique reasons of the witnesses. The credibility of the Crown witnesses was squarely in issue, and the handicap which these restrictions imposed upon the defence was accurately described by Fortas J in the US Supreme Court in Smith v Illinois (1967) 390 US 129, 130:
. . . when the credibility of a witness is in issue, the very starting point in exposing falsehood and bringing out the truth through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness name and address opens countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
These were further spelled out by Ackermann J in the South African case of State v Leepile (5) 1986 (4) SA 187, 189:
The consequences to the accused of such a wide direction are, inter alia, the following:
(a) No investigation could be conducted by the accuseds legal representatives into the witness background to ascertain whether he has a general reputation for untruthfulness, whether he has made previous inconsistent statements nor to investigate other matters which might be relevant to his credibility in general.
(b) It would make it more difficult to make enquiries to establish that the witness was not at places on the occasions mentioned by him.
(c) It would further heighten the witness sense of impregnability and increase the temptation to falsify or exaggerate.
52. The prosecution seeks to resort to such expedients to conceal the identities of witnesses because of the fear expressed by them, leading to their unwillingness to testify. Those who have had to deal with prosecuting or presiding in trials in places where intimidation is rife are very well aware of how insidious it can be. Where paramilitary bodies have held sway, it has in the past proved impossible to persuade civilian witnesses to give evidence, even about the most innocuous facts, through well-founded fear that, however thoroughgoing the anonymising process, it would be discovered that they had done so, which would subject them to savage reprisals. Even in less extreme circumstances, it can be a serious problem in some areas, and ruthless intimidation can prove very successful in discouraging the provision of testimony in court. It is said that witness intimidation has become an increasing problem in England and Wales in recent years. Figures published by the Ministry of Justice show that convictions for intimidation doubled in number between 1996 and 2005, which tends to suggest that this may be the case. The House was informed in the course of argument that applications for witness anonymity have become more common and that judges feel under some constraint to accede to them, if prosecutions are not to collapse. The issue for decision is whether the steps taken in the present case deprived the appellant of a fair trial.
53. Lord Bingham has discussed in his opinion a wide range of cases in which the anonymity of witnesses has been concerned, to greater or lesser degree, and so I propose to focus my attention mainly on those few reported cases of criminal trials in which it has been allowed. The first, which has been regarded as the pioneer in the field, is the decision of the Northern Ireland Court of Appeal in R v Murphy  NI 306. In that case no evidence was forthcoming from direct eye-witnesses identifying the perpetrators of the murder and the main source of identification was the heli-tele film, which captured the whole incident continuously on film from an Army helicopter hovering some height above the scene. A secondary source of evidence implicating the defendants was film images taken by press photographers which tended to identify them as having been in the vicinity of the killing at times leading up to its occurrence. The photographers who took these films were called to prove the taking of the pictures, but they were not asked to make any personal identification of either defendant. They were concerned for their safety if their identities became known to the defendants or members of the public. They feared, not without justification, that if they again appeared in the area where the murder had taken place or other disturbed parts of Belfast they might be attacked, when recognised as persons who had given assistance in the trial of the defendants. The trial judge permitted them to be known by letter instead of by name and they were screened from the view of the defendants and the public. They were visible to the judge, who tried the case without a jury, and counsel, who were not asked to give any undertaking. It may be observed that their testimony, though of some importance, was not like direct identifying evidence. Their credibility was not in issue nor was there any necessity to inquire about their background or motives. Counsel had objected to the concealing of the witnesses faces from the defendants. The Court of Appeal approved the judges course of action. It is notable that a different decision was reached in the civil appeal in Northern Ireland of Doherty v Ministry of Defence (1991, unreported). As Lord Bingham has set out in para 22 of his opinion, the court regarded the evidence of the military witnesses as directly detrimental to the plaintiffs case. The Ministrys request was that four serving soldiers should when giving evidence be screened from all but the trial judge and that two former soldiers should be screened from all but the trial judge and the legal representatives of the parties. Hutton LCJ, who had been the trial judge in R v Murphy, distinguished that decision on the facts and the members of the court underlined the importance of counsel cross-examining being able to see the face of the witness.
54. R v X, Y and Z (1989) 91 Cr App R 36 concerned rather different issues. It was known that child victims in such cases are reluctant to give evidence, being unwilling or unable to speak about the facts to be proved. The judge approved the erection of a screen which prevented the children from seeing the defendants or being seen by them. Their identity was well known to the defendants and counsel could see them as they gave evidence. It is clear that the object in this case was, as the Common Serjeant said, to prevent the children from being influenced one way or the other by the defendants in the dock or being intimidated by their surroundings. The Court of Appeal upheld the convictions. It does not seem to me that this decision, which was plainly justifiable in the circumstances, gives much assistance on the present issues.
55. In R v Watford Magistrates Court, Ex p Lenman  Crim LR 388 an order was made in committal proceedings and upheld on appeal which permitted witnesses to be screened from the defendants and their voices to be distorted, though they were visible to the lawyers. As Lord Bingham has pointed out (para 13), the question was left open on appeal whether the witnesses anonymity could be maintained when the case came to trial in the Crown Court.
56. In R v Taylor and Crabb (1994, unreported) the witness in question was a young girl known in the proceedings as Miss A, who gave corroborative evidence tending to identify Taylor as one of the men who carried the body of the murder victim from a public house into a horsebox, the main evidence against him being given by witnesses who could be regarded as accomplices. She was permitted to give evidence under screening arrangements whereby she could be seen by counsel and the jury, but not by the defendants. The latter could nevertheless see her by means of a video camera, so enabling them to ascertain whether they knew or could recognise her. The court held, after balancing the factors which might lead to unfairness against those in favour of allowing this degree of anonymity, that the trial judge had correctly exercised his discretion and dismissed the appeal.
57. Lord Bingham has discussed in para 20 a series of cases in which the courts have upheld the reading of statements made by witnesses who were kept away from the court by fear or for other reasons. I agree with him that there are several points of distinction between these cases and the present appeal. First, the practice is founded upon direct statutory authority. Secondly, the names and addresses of all such witnesses are disclosed to the defendant and his advisers, who are able to adduce material tending to undermine the credit of the maker of the statement. Thirdly, the court has a discretion to rule that the statement should not be admitted if its admission will result in unfairness to the defendant. The Northern Ireland courts have generally declined to allow the admission of such statements where they would form the sole or decisive evidence implicating the defendant: see, eg, R v Singleton  NICA 29,  NI 71.
58. My noble and learned friend Lord Mance has set out the material decisions of the European Court of Human Rights, to which I would refer. The Court of Appeal in the present appeal reviewed the Strasbourg jurisprudence in some detail, but concluded (para 51) that it did not require the exclusion of testimony given anonymously even if it was the sole or decisive evidence implicating the accused. I agree with the view expressed by the Court of Appeal that it is not always easy to discern which type of evidence is concerned in the various decisions of the ECtHR, but I feel less certain that that court would regard it as acceptable to allow a conviction to be based on the testimony of a witness given in the circumstances of the present case, if that were the sole or decisive evidence against the accused. That concept of the sole or decisive evidence has been regularly repeated in the jurisprudence of the Court, going back to Kostovski v The Netherlands (1989) 12 EHRR 434, and progressing through Doorson v The Netherlands (1996) 22 EHRR 330, Van Mechelen v The Netherlands (1997) 25 EHRR 647 and Lucà v Italy (2001) 36 EHRR 807. Although the Court may have used this phrase mainly in the context of evidence of a different kind from the oral testimony given in our courts, I consider that the principle is more universal and that it could and should be applied to the anonymising of evidence in criminal trials in this jurisdiction.
59. It is possible to distil some propositions from this review:
(a) There is a presumption in favour of open justice and confrontation of a defendant by his accuser.
(b) It is possible in principle to allow departures from the basic rule of open justice to some extent, but a clear case of necessity should be made out.
(c) The court should be sufficiently satisfied that the witnesss reluctance to give evidence in the ordinary manner is genuine and that the extent of his or her fear justifies a degree of anonymity.
(d) Anonymising expedients may include the withholding of the witnesss name and address, screening of the witness from the defendant and the public, screening from the defendants legal advisers, disguising of the witnesss voice from the defendant and the public and disguising of the voice from the legal advisers.
(e) The more of these expedients the court might consider adopting, the stronger the case must be for invading the principle of open justice. Determination of the question depends upon balancing to ensure that the trial continues to be fair.
(f) An important consideration is the relative importance of the witnesss testimony in the prosecution case. If it constitutes the sole or decisive evidence against the defendant, anonymising which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly. It is a question of fact in any given case what, if any, measures would be compatible with sufficient fairness of the trial. Courts trying criminal cases should not be over-ready to resort to such measures, and I would commend to them the words of the Court of Appeal (in the context of reading statements) in R v Arnold  EWCA Crim 1293, para 30, cited in R v Sellick  EWCA Crim 651,  1 WLR 3257, 3277, para 55:
30. We cannot leave this case without sounding a word of caution. The reference in Lucà v Italy to the not infrequent occurrence of the phenomenon of frightened witnesses being unwilling to give evidence in trials concerning Mafia-type organisations is echoed across a wider range of serious crime in this country. Counsel both confirmed that this problem was becoming commonplace and the experience of the members of this court concerned with the conduct of criminal trials is likewise. Inevitably, applications under section 23 will follow but this judgment should not be read as a licence for prosecutors. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention and judges should not easily be persuaded that it is in the interests of justice to permit evidence to be read. Where that witness provides the sole or determinative evidence against the accused, permitting it to be read may well, depending on the circumstances, jeopardise infringing the defendants article 6(3)(d) rights; even where it is not the only evidence, care must be taken to ensure that the ultimate aim of each and every trial, namely, a fair hearing, is achieved.
As a general rule it is unlikely that the trial will be fair if a very substantial degree of anonymising of evidence is permitted where the testimony of the witnesses concerned constitutes the sole or decisive evidence implicating the defendant.