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

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60.  This set of propositions omits one factor which may in some cases be of considerable significance. If it is established that the defendant himself has created the fear felt by the witness and made him or her afraid to give evidence, can he be heard to complain of unfairness if the court allows the evidence to be given anonymously? This issue was discussed by the Court of Appeal in R v Sellick, supra which concerned the reading of the statements of four witnesses. At paras 52-3 Waller LJ, giving the judgment of the court, posed the question in clear terms:

“52. If the European court were faced with the case of an identified witness, well known to a defendant, who was the sole witness of a murder, where the national court could be sure that that witness had been kept away by the defendant, or by persons acting for him, is it conceivable that it would hold that there were no ‘counterbalancing’ measures the court could take which would allow that statement to be read. If care had been taken to see that the quality of the evidence was compelling, if firm steps were taken to draw the jury’s attention to aspects of that witness’s credibility and if a clear direction was given to the jury to exercise caution, we cannot think that the European court would nevertheless hold that a defendant’s article 6 rights had been infringed. In such a case, as it seems to us, it is the defendant who has denied himself the opportunity of examining the witnesses, so that he could not complain of an infringement of article 6(3)(d), and the precautions would ensure compliance and fairness in compliance with article 6(1). We for our part see no difficulty in such a clear case.

53. More difficulty arises in cases where it is not quite so clear cut, but the court believes, to a high degree of probability, that identified witnesses are being intimidated for and on behalf of the defence, and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield J’s state of mind on Lee in the instant case). In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant’s article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be ‘got at’ the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been- intended by the European court in Strasbourg.”

The issue does not arise directly in the present case, for there is no finding that the fear of the witnesses was deliberately instilled by intimidation on the part of the defendant or any person acting on his behalf. Where such intimidation can be clearly laid to the door of a defendant or those acting for him (and I apprehend that it would have to be established beyond reasonable doubt : cf R v Acton Justices, Ex p McMullen (1990) 92 Cr App R 98, 104, per Watkins LJ) then it seems to me that such a defendant would be faced with considerable difficulty in advancing the proposition that the trial has been made unfair if the witness’s testimony is anonymised and he is preventing from pursuing an attack upon his or her credit. I do not wish to express a final opinion on the point, however, which may require further argument on some future occasion.

61.  The trial judge went to a good deal of trouble to mitigate as far as he could the adverse effects of anonymising the witnesses and prosecuting counsel conscientiously produced all available material about those witnesses, in an effort to ensure that the defence was informed of everything that might be relevant. The court felt able, after examining the issues and the authorities, to conclude that the anonymity did not prevent proper investigation of the witnesses and effective cross-examination, so that the trial remained fair and the conviction was safe. I feel impelled to the view, not without some hesitation, that I am unable to agree with the conclusion of the Court of Appeal. The testimony of the witnesses concerned was central to the prosecution case. The defence was an attack upon their probity and credibility, yet the defendants and their advisers did not have their names and were unable to see their faces or hear their natural voices. The effect, as intended, was to make it impossible to identify them, which may have been necessary if their testimony was to be obtained, but was a significant potential detriment to the conduct of the defence. The anonymising measures went beyond any which have been adopted in the reported cases. Where such thoroughgoing measures are to be taken, the court should be very sure that the hampering effect will not make the trial unfair. I do not think that one could be sufficiently sure of that in the present case.

62.  It follows that I would hold, in agreement with your Lordships, that the conviction was unsafe and concur with the order proposed.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

63.  When originally I was party to the grant of leave to appeal in this case I was not, I confess, expecting the appeal to succeed. Clearly, however, it raised an issue of high principle and deserved to be heard. Now having heard the argument and had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Mance, I entertain no doubt whatever that the appeal must indeed be allowed. I find my Lords’ logic utterly compelling.

64.  Particular respect though I acknowledge must be accorded to whatever views are expressed by my noble and learned friend Lord Carswell in this area of the law, given his own vast experience of the problems posed by the intimidation of witnesses, I find myself in the end unable to accept that the problem can be dealt with on so flexible a basis as he proposes—see, for example, the final sentence of para 59 of my Lord’s opinion.

65.  I have no difficulty whatever with the decision of the Northern Ireland Court of Appeal in R v Murphy [1990] NI 306—discussed by Lord Bingham at paras 10-12 and by Lord Carswell at para 53—and nor, it is to be noted, did the European Commission of Human Rights which found Murphy’s application under article 6 of the Convention to be manifestly ill-founded: X v United Kingdom (1992) 15 EHRR CD 113. But that case seems to me to come close to the limits to which the courts should go in permitting any invasion of the core common law principle that the accused has a fundamental right to know the identity of his accusers. By ‘accusers’ I mean in this context those giving the sole or decisive evidence pointing to the accused’s guilt, as the three identifying witnesses in the present case.

66.  I find Lord Mance’s analysis of the Strasbourg jurisprudence entirely convincing. If, consistently with it, the government now think it right to legislate in this field, so be it. Meantime, however, the creeping emasculation of the common law principle must be not only halted but reversed. It is the integrity of the judicial process that is at stake here. This must be safeguarded and vindicated whatever the cost.

LORD MANCE

My Lords,

67.  I have had the benefit of reading in draft the judgments of my noble and learned friends, Lord Bingham of Cornhill, Lord Rodger of Earlsferry and Lord Carswell. I gratefully adopt the account of the factual background and issues set out by Lord Bingham in his paras 1 to 4.

A right to confrontation?

68.  Lord Bingham in para 5 et seq discusses the long-established principle of English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence. Common law exceptions to this principle include the rules permitting proof of dying declarations in cases of homicide and of statements made by witnesses as part of the res gestae. Another common law exception is the rule, recognised by the Judges in Lord Morley’s case (1666) 6 St Trials 770, para 5 and permitting the reading at trial of a statement by a witness who had been deposed before a coroner but who was absent at trial because detained by the means or procurement of the defendant incriminated by the statement. Subsequent authorities were considered and this exception again accepted in R v Scaife (1851) 17 QB 238, where Hunter arguendo (at p 241) referred to the maxim that justice “will not permit a party to take advantage of his own wrong” and also noted (p 240) that the coroner’s deposition in Lord Morley’s case had probably been taken in the absence of the defendant. The exception was endorsed by the United States Supreme Court (though wrongly attributed to the House itself) in Reynolds v United States 98 U.S. 145 (1878), 158-9, as an “outgrowth” of the same maxim which “if properly administered, can harm no one". It was recently referred to by the Supreme Court in Crawford v Washington 124 S Ct 1354 (2004), 1370 as a “rule of forfeiture by wrongdoing (which we accept), [which] extinguishes confrontation claims on essentially equitable grounds; it does not purport to be an alternative means of determining reliability".

69.  In R (D) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393, para. 14, my noble and learned friend Lord Rodger said of the right of confrontation enshrined in the Constitution of the United States by the Sixth Amendment that:

“It is for the people of the United States, and not for your Lordships, to debate the virtues of the Sixth Amendment in today’s world. It overlaps, to some extent, with article 6(3)(d) of the Convention as interpreted by the European court. But, as interpreted by the Supreme Court, the Sixth Amendment appears to go much further towards requiring, as a check on accuracy, that a witness must give his evidence under the very gaze of the accused. For my part, I would certainly not disparage the thinking behind that requirement. But, whatever its merits, this line of thought never gave rise to a corresponding requirement in English law. That is amply demonstrated by the very brevity of the decision of the Court of Criminal Appeal in R v Smellie (1919) 14 Cr App R 128, holding that a judge could remove the accused from the sight of a witness whom his presence might intimidate.”

In the same vein, my noble and learned friend, Lord Bingham, giving the advice of the Board in Grant v The Queen [2006] UKPC 2, [2007] 1 AC 1 observed, at para 20, that

“the right to confrontation expressed in the sixth amendment to the US Constitution, for all its interest to legal antiquarians, is not matched by any corresponding requirement in English law: R (D) v Camberwell Green Youth Court …. para 14".

In R v Smellie a defendant accused of mistreating his eleven year old daughter was ordered to sit upon the stairs leading to the dock, out of her sight, in order to avoid her being intimidated. The Court of Criminal Appeal rejected in the shortest of judgments (p 130) an objection rested on, inter alia, a proposition that “a prisoner is entitled at common law to be within sight and hearing of all the witnesses throughout his trial” (p 128).

70.  There have also been some statutory provisions authorising special measures under certain conditions (see Youth Justice and Criminal Evidence Act 1999, sections 16-36, permitting screening (though not from the judge and any jury, legal representatives or any interpreter) and evidence by video link or recording, as well as sections 23-28 of the Criminal Justice Act 1988 or now sections 114-126 of the Criminal Justice Act 2003 discussed by Lord Bingham in para 20. As Lord Bingham notes, the latter provisions allow the admission in evidence in certain situations of statements not made in oral evidence, but they involve disclosure of the witness’s identity and permit a defendant to respond by giving evidence of any prior inconsistent statement by the witness and, exceptionally, of any material which, had the witness been called, could have been put to him or her in cross-examination.

Anonymous witnesses?

71.  The right to confrontation recognised in the United States has, therefore, no exact counterpart in English common law. But the question remains whether there are circumstances under English common law in which evidence may be given anonymously. This is not the same question as whether evidence should be given in public. Both in Scott v Scott [1913] AC 417 and in article 6 of the European Convention on Human Rights, it is recognised that there can be special circumstances in which courts may in the interests of justice sit in private, in particular where the administration of justice would otherwise be rendered impracticable or prejudiced. But recognition of a limited exception of that nature does not touch the question whether there are circumstances in which a judge may allow a witness to remain anonymous in relation to a defendant. The recent authorities indicate various possible degrees to which this may occur. At one end of the spectrum, the witness is known by sight (though not true name) and is present and visible at the trial but referred to under a pseudonym. At the other, the witness not only has his or her identity concealed, but is, as here, concealed from sight and has his or her voice distorted in relation to all but the judge, jury and counsel (though here counsel for the appellant declined to be put in a position different from that of his client). In all such cases any cross-examination likely to elicit identity will have to be excluded, if the anonymity granted is to be maintained. The prosecution can take steps to provide relevant background details, such as any prior criminal record, but they will have to avoid giving any information which could lead to identification. And in all such cases the problem exists that the concealment of identity means that the defendant cannot himself check, investigate or (save by guesswork) give directly any relevant information about the character, motives or reliability of the witness. The defence is to that extent potentially hampered both in cross-examination and in relation to any positive case and evidence which it can adduce.

72.  In many cases, particularly cases where credibility is in issue, identification will be essential to effective cross-examination. In both Smith v Illinois 390 US 129 (1968) and State v Leepile and Others (5) 1986 (4) SA 187 the credibility of the witness was central to the case against the defendant, and it was said in the former case (at p 132) that ignorance of the witness’s identity was “effectively to emasculate the right of cross-examination". In R v Hughes [1986] 2 NZLR 129, 149, Richardson J was referring to the potential significance of credibility when he said that “I cannot presently perceive any circumstances at common law under which a witness whose credibility may be in issue depending on the results of inquiries should be allowed to hide his real name and in the result foreclose any inquiries of that kind".

73.  In R v Murphy and Anor [1990] NI 306, the situation was quite different, and the cases of Smith v Illinois and State v Leepile (5) were distinguished accordingly. The photographers’ evidence was relied on to do no more than prove the video film and photographs that they had taken of the funeral, from which police officers identified the defendants. The photographers’ evidence “did not implicate either appellant” (per Kelly LJ, p 334), except in the sense that they produced objectively unchallengeable material from which others were able to do so. In the later Northern Irish case of Doherty v Minister of Defence (5 February 1991), Sir Brian Hutton LCJ highlighted this distinction. Lord Bingham observes that, if Murphy was a departure from established principle, it was a small one (para 12). Courts have an inherent power to control their own proceedings, and I consider that R v Murphy involves a limited qualification on the right to know the identity of prosecution witnesses which represents no threat to the fairness of the trial and which the common law can and should accommodate.

74.  The question is whether the common law should go further. There are powerful statements, particularly in the New Zealand cases of R v Hughes (above) and R v Hines [1997] 3 NZLR 529, cautioning against the risks “if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial” (per Richardson J in Hughes at p 148), and saying that any change in the law was a matter for the New Zealand Parliament (which did in fact respond by legislation after each of these decisions).

The Strasbourg case-law

75.  The use of anonymous evidence at the trial stage has been the subject of a series of cases decided by the European Court of Human Rights in the context of the Convention on Human Rights. The following points arise. First, the Court’s starting point is that

“the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair.”

See Doorson v The Netherlands (Application No 20524/92) (1996) 22 EHRR 330, para 67, Van Mechelen v The Netherlands (Application Nos 21363/93, 21364/93, 21427/93 and 22056/93) (1997) 25 EHRR 647, para 50 and PS v Germany (Application No 33900/96) (2001) 36 EHRR 1139, para 19.

76.   Secondly, the Court has repeatedly stated that the use of anonymous evidence “is not under all circumstances incompatible with the Convention": see Doorson, para 69, Van Mechelen, para 52 and Visser v The Netherlands (Application No 26668/95) (unreported) 14 February 2002, para 43. In para 70 in Doorson (much quoted in subsequent cases: see eg PS v Germany, para 22, Van Mechelen, paras 53-54 and Visser v The Netherlands, para 43) the Court explained the rationale:

“70. It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally

within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.”

77.  In Doorson the charge was of drug trafficking and two witnesses were at the appeal stage examined anonymously before an investigating judge in the presence of the defendant’s lawyer who was able to cross-examine, though not to ask questions which would reveal identity. The investigating judge knew the identity of the witnesses, and made a full report of their evidence, including circumstances from which the Court of Appeal was able to make an assessment of their credibility. Anonymity had been granted because the witnesses feared reprisals from the defendant. The Strasbourg Court said in para 71 that “This is certainly a relevant reason to allow them anonymity", and concluded on the facts that the court had adopted a sufficient counter-balancing procedure to enable the defence to challenge the anonymous witnesses at the later appeal hearing, by inter alia drawing attention to the fact that both were drug addicts. The Strasbourg Court went on to say that it was sufficiently clear that the Amsterdam Court did not base its finding of guilt solely or to a decisive extent on the evidence of the anonymous witnesses (a conclusion difficult to follow on the facts, bearing in mind the non-appearance or failure to come up to proof of the only other two named witnesses against the defendant, N and R: see paras 10 and 18).

78.  After citing with approval para 70 of the Court’s judgment in Doorson the Court in PS v Germany (Application No 33900/96) (2001) 36 EHRR 1139 went on:

“In appropriate cases, principles of fair trial require that the interests of the defence are balanced against those of witnesses or victims called upon to testify, in particular where life, liberty or security of person are at stake, or interests coming generally within the ambit of Art. 8 of the Convention.”

However (contrary to the Court of Appeal’s apparent treatment of the case in para 48 of its present judgment) PS Germany was not a case on anonymity. It was a case of a conviction for sexual abuse of an eight-year-old child based to a decisive extent on out of court statements by the child whom the defendant had not had the opportunity of questioning or observing give her evidence.

79.  Thirdly, the phrasing by the Court of the last two sentences of para 70 in Doorson and its use of the word “require” in para 22 in PS v Germany could be read as suggesting that Member States might, in some circumstances and on a balancing of interests, be required to permit witness anonymity. But it seems to me unlikely that the Court intended to go so far. It is of some interest to consider Recommendation No R(97) 13 of the Committee of Ministers of the Council of Europe. The recitals note “the increasing risk that witnesses will be subjected to intimidation” and consider that “it is unacceptable that the criminal justice system might fail to bring defendants to trial and obtain a judgment because witnesses are effectively discouraged from testifying freely and truthfully” and that there should be “greater recognition given to their [witnesses’] rights and needs, including the right not to be subject to any interference or be placed at personal risk". They further note the provisions of and case-law on the Convention on Human Rights “which recognise the rights of the defence to examine the witness and to challenge his/her testimony but do not provide for a face to face confrontation between the witness and the alleged offender". The text of the Recommendation includes not merely provisions to enable a witness to give evidence in a separate room or by pre-trial examination, but also provisions regarding anonymity:

“10. Where available and in accordance with domestic law, anonymity of persons who might give evidence should be an exceptional measure. Where the guarantee of anonymity has been requested by such persons and/or temporarily granted by the competent authorities, criminal procedural law should provide for a verification procedure to maintain a fair balance between the needs of criminal proceedings and the rights of the defence. The defence should, through this procedure, have the opportunity to challenge the alleged need for anonymity of the witness, his/her credibility and the origin of his/her knowledge.

11. Anonymity should only be granted when the competent judicial authority, after hearing the parties, finds that:

- the life or freedom of the person involved is seriously threatened or, in the case of an undercover agent, his/her potential to work in the future is seriously threatened; and

- the evidence is likely to be significant and the person appears to be credible.

12. Where appropriate, further measures should be available to protect witnesses giving evidence, including preventing identification of the witness by the defence, for example by using screens, disguising the face or distorting the voice.

13. When anonymity has been granted, the conviction shall not be based solely or to a decisive extent on the evidence of such persons.”

Recommendation No R(97) 13 is no more than that - a recommendation. The opening words of its para 10 (“Where available and in accordance with domestic law ….”) show awareness that not all the domestic laws of member states may provide for anonymous evidence, while para 13 accepts that there may be circumstances where, in the words of the recital, “the criminal justice system might fail to bring defendants to trial and obtain a judgment” because this would only be possible if a central witness could be given anonymity. It was not suggested in argument before the House that the Strasbourg Court would go further than the Recommendation in these respects and the matter is on its face one for national procedural law. I proceed therefore on the basis that there is no requirement on national legal systems under the Convention to provide for anonymous witnesses in any circumstances.

 
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