R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division)), (2008)
HOUSE OF LORDS
 UKHL 36
on appeal from:  EWCA Crim 1155
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division))
Lord Bingham of Cornhill
Lord Rodger of Earlsferry
Lord Brown of Eaton-under-Heywood
Malcolm Swift QC
David Perry QC
(Instructed by Crown Prosecution Service)
7 AND 8 APRIL 2008
WEDNESDAY 18 JUNE 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
R v Davies (Appellant) (On appeal from the Court of Appeal (Criminal Division))
 UKHL 36
LORD BINGHAM OF CORNHILL
At about 9.30 am on New Years Day 2002, towards the end of an all-night New Years Eve party held in a flat in Hackney, a shot was fired which killed two men. The appellant Iain Davis was in due course extradited from the United States, indicted on two counts of murder, tried at the Central Criminal Court before His Honour Judge Paget QC and a jury and, on 25 May 2004, convicted on both counts. He appeals to the House against the dismissal of his appeal against conviction by the Court of Appeal Criminal Division on 19 May 2006:  EWCA Crim 1155,  1 WLR 3130.
At trial the appellant admitted that he had been at the party but claimed that he had left before the shooting and denied having been the gunman. Appearances were against him. He had gone to the United States on a false passport shortly after the murders. When questioned by the police after his return to this country he had declined to give any answers. In evidence he had for the first time given details of an alibi, which he had called no further evidence to substantiate. But there was one unusual feature of the trial, which gives rise to the issue in this appeal.
Seven witnesses claimed to be in fear for their lives if it became known that they had given evidence against the appellant. Among them were three witnesses, the only witnesses in the case who identified the appellant as the gunman. These claims were investigated and accepted as genuine by the trial judge and the Court of Appeal, and have not been the subject of argument in the House. To ensure the safety of these three witnesses, and induce them to give evidence, the trial judge made an order to the following effect:
(1) The witnesses were each to give evidence under a pseudonym.
(2) The addresses and personal details, and any particulars which might identify the witnesses, were to be withheld from the appellant and his legal advisers.
(3) The appellants counsel was permitted to ask the witnesses no question which might enable any of them to be identified.
(4) The witnesses were to give evidence behind screens so that they could be seen by the judge and the jury but not by the appellant.
(5) The witnesses natural voices were to be heard by the judge and the jury but were to be heard by the appellant and his counsel subject to mechanical distortion so as to prevent recognition by the appellant.
The judges order did not deny the appellants counsel, then as now Mr Malcolm Swift QC, the opportunity to see the witnesses as they gave evidence, but Mr Swift regarded it as incompatible with the relationship between counsel and client to receive information which he could not communicate to the appellant in order to obtain instructions, and he accordingly submitted to the restriction imposed on the appellant. It has not been suggested that he should have acted otherwise. Without the evidence of the three witnesses the appellant could not have been convicted.
Mr Swift objected to these restrictions at trial, and argued on appeal that they were contrary to the common law of England, inconsistent with article 6(3)(d) of the European Convention on Human Rights and rendered the appellants trial unfair. For reasons given by the President of the Queens Bench Division, the Court of Appeal (Sir Igor Judge P, Mitting and Fulford JJ) rejected these submissions. The court certified the following point of law of general public importance as involved in its decision:
Is it permissible for a defendant to be convicted where a conviction is based solely or to a decisive extent upon the testimony of one or more anonymous witnesses?
The appellants challenge does not, however, rest on the anonymity of the witnesses alone but on the combination of restrictions listed in para 3 above, to which I shall in this opinion, to avoid repetition, refer as protective measures". It is the lawfulness of the protective measures, and their effect (if any) on the fairness of the appellants trial, which must be considered in this appeal.
The common law principle
It is a long-established principle of the 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. This principle originated in ancient Rome: see generally Coy v Iowa 487 US 1012, 1015 (1988); Crawford v Washington 124 S Ct 1354, 1359 (2004); David Lusty, Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials", 24 Sydney Law Rev (2002) 361, 363-364. But in continental Europe the principle was greatly attenuated in early mediaeval times and the procedure of the Inquisition, directed to the extirpation of heresy and the preservation of society, depended heavily on evidence given secretly by anonymous witnesses whom the suspect was denied the opportunity to confront. In England, where proof of crime depended on calling live evidence before a jury to convince it of a defendants guilt, there was no room for such procedures. But concern as to national security and intimidation of witnesses did lead to reliance on secret, anonymous evidence and evidence not adduced in court, and thus to departures from the rule of confrontation, notably in the Court of Star Chamber and in common law trials for treason, as notoriously at the trial of Sir Walter Raleigh. The Court of Star Chamber, popular at first, came over time to attract the same popular loathing as the Inquisition, its procedures regarded as foreign, cruel, oppressive and unfair. It was promptly abolished by the Long Parliament in 1641, and steps were taken (as, for example, by the statute 13 Car.2 c.1) to bring the procedure of treason trials into line with that required at common law. Thus, in 1720, in a civil case, the court declared in Duke of Dorset v Girdler (1720) Prec. Ch. 531-532, 24 ER 238, that
the other side ought not to be deprived of the opportunity of confronting the witnesses, and examining them publicly, which has always been found the most effectual method of discovering of the truth.
The practice of confronting defendants with their accusers so that the latter may be cross-examined and the truth established was recognised by such authorities as Sir Matthew Hale (The History of the Common Law of England (6th ed, 1820, pp 345-346), Blackstone (Commentaries on the Law of England (12th ed, 1794, Bk III, p 373) and Bentham (Rationale of Judicial Evidence (1827), Vol II, Bk III, pp 404, 408, 423). The latter regarded the cross-examination of adverse witnesses as the indefeasible right of each party, in all sorts of causes and criticised inquisitorial procedures practised on the continent of Europe, where evidence was received under a veil of secrecy and the door was left wide open to mendacity, falsehood, and partiality. The common law right to be confronted by ones accusers was included within the colonial constitutions of several North American colonies (among them Massachusetts, New Hampshire, North Carolina, Maryland and Virginia: see Alvarado v Superior Court of Los Angeles County 23 Cal 4th 1121, 1137-1140 (2000)) and other states adopted similar declarations at the time of independence. By the sixth amendment to the United States constitution adopted in 1791 it was provided that In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him ". The rule has been strictly applied: in Alford v United States 282 US 687 (1931) a conviction was quashed where a government witness had been excused from answering a question about where he lived.
There have been long-recognised exceptions to the right of confrontation in this country (dying declarations and statements part of the res gestae are examples), and further exceptions have been enacted by statute, to which reference will be made below. But there has until recently been no precedent for protective measures of the kind now under consideration, even when the problem of witness intimidation has been extreme. Such was the case in Northern Ireland in 1972 when a commission chaired by Lord Diplock reported on Legal Procedures to Deal with Terrorist Activities there. The commission concluded (Chapter 2, para 7(b)) that the problem of witness intimidation could not be overcome by any changes in the conduct of the trial, the rules of evidence or the onus of proof which it would regard as appropriate to trial by judicial process in a court of law. It considered (chapter 4, para 20) that the minimum requirements for criminal trial by a court of law called for the accused to be informed in detail of the nature of the accusation against him and to examine or have examined witnesses against him. The commission could see no way (ibid) of keeping the identity of witnesses secret without gravely handicapping the defence or exposing counsel to a conflict between his duty to his client and a duty to the state inconsistent with the role of the defendants lawyer in a judicial process. A committee under the chairmanship of Lord Gardinerto consider, in the context of civil...
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