Anonymous Witnesses and the Right to a Fair Trial

R v Davis [2008] UKHL 36 (18 June 2008) In this case, the House of Lords held that the use of anonymous witnesses prevented the accused from adequately examining his accusers, and thereby denied him a fair trial in accordance with both the common law and art 6(3)(d) of the European Convention on Human Rights.  Further, the House of Lords held that a conviction should not be based solely, nor to a decisive extent, upon the evidence of anonymous witnesses.

Facts

The appellant, Iain Davis, appealed against the dismissal of an appeal by the Court of Appeal Criminal Division.  Mr Davis was convicted by the Central Criminal Court before a jury for the murder of two men on 1 January 2002.

At trial, the prosecution relied upon the evidence of three witnesses whose testimony was found to be essential to securing the conviction.  However, those witnesses claimed to be in fear of their lives if the applicant learned that they had testified against him.  To ensure the witnesses’ safety and to induce them to give evidence, the trial judge ruled that their evidence was to be given under the protection of special measures.  For example, the addresses and personal details of the witnesses were withheld from the appellant and his legal advisers, the witnesses’ voices were mechanically distorted so that the appellant could not recognise them (though the judge and jury could hear the true voices), and counsel for the appellant was prevented from asking the witnesses any question that might enable them to be identified.

Consequently, the witnesses remained anonymous to the appellant.  This was significant because the Court acknowledged that without the evidence of the anonymous witnesses, the appellant could not have been convicted.

The appellant challenged the conviction, relying on the combination of restrictive procedures and their effect on the fairness of the trial that was conducted.  In particular, the appellant argued that the use of the procedures violated his right to a fair trial under common law and art 6(3)(d) of the Convention.

Decision

In five separate yet concurring judgments, the House of Lords held that the ability of the appellant’s counsel to cross-examine the witnesses on points essential to the defence had been severely compromised by the special procedures, and as such the trial was unlawful and unfair.

The House acknowledged 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 or her accusers.  It was accepted that although the court has an inherent jurisdiction to control its own proceedings, there is a ‘strong imperative in favour of open justice’.  The Lords indicated that, contrary to the position argued by the prosecution, there is no authority for the court to ‘make far-reaching inroad[s] into the common law rights of a defendant’.  Lord Rodger noted that it is for the government and Parliament to address the issue of the intimidation of witnesses, and that even then the use of restrictive procedures (such as those in this case) should be secondary to directly addressing witness intimidation.

Lord Mance noted that the appellant’s trial failed to meet the standard required by art 6 of the European Convention for a fair and public hearing, particularly the requirement of art 6(3)(d) for the accused ‘to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him’.  This is not to say, however, that the Convention forbids the anonymity of witnesses; it ‘does not set its face absolutely against the admission of anonymous evidence in all circumstances’.  Lord Mance suggested that the position under the Convention is broader than at common law, and that the admissibility of evidence is a matter primarily for regulation by national law.  Whether proceedings are conducted fairly, however, should be the focus of the European Court of Human Rights’ inquiry.

Lord Carswell agreed that the anonymity of the witnesses made the trial unfair for the accused, but stated that it is possible, in principle, to allow departure from the basic rule of open justice in a clear case of necessity.  According to Lord Carswell, necessity would be established if the witnesses’ reluctance to give evidence was genuine and warranted anonymity, or if it was established that the defendant himself had created the fear felt by the witnesses. This necessity would need to be weighed against the relative importance of the testimony.  If the witnesses gave the sole or decisive evidence against the defendant, anonymity would most likely make the trial unfair. This position was not accepted by the rest of the House, and the issue was not capable of being addressed on such a ‘flexible basis’.

Relevance for the Victorian Charter

The issue of anonymous witnesses giving evidence during trials has been addressed in Victoria.  In the case of Jarvie v Magistrates Court of Victoria [1995] 1 VR 84, Brooking, Southwell and Teague JJ of the Supreme Court of Victoria found that witnesses may, in certain situations, give evidence anonymously.  The Court ruled that the need for a fair trial is the overriding consideration, and means that the identity of a witness should never be withheld from a defendant when disclosure might be of substantial assistance to the defendant.  This does not mean that witnesses may never give evidence anonymously.  In the case of Pong Su (Ruling No 20), Re; R v Ta Song [2005] VSC 67, Kellam J allowed the evidence of two anonymous witnesses despite acknowledging his own personal reservations.  However Pong Su can be contrasted to R v Davis, as the examination of the witnesses’ identity was not relevant to the defence.

R v Davis highlights the limits that may be placed on the right to a fair trial, and the ability of the accused to examine witnesses testifying against them.  This may have repercussions for the interpretation of the Victorian Charter, especially in relation to:

• s 24(1), which provides that ‘[a] person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing’; and
• s 25(2)(g), which outlines that a person charged with a criminal offence is entitled, without discrimination, ‘to examine, or have examined, witnesses against him or her, unless otherwise provided for by law’.

These provisions are significantly similar to art 6 of the European Convention.  In R v Davis, Lord Mance noted the European Court of Human Rights’ view that the use of anonymous evidence ‘is not under all circumstances incompatible with the Convention’.  It is not clear, however, whether a more restrictive position will be adopted in relation to the Victorian Charter.

The European Convention was drafted in the knowledge that not all of the domestic laws of member states prohibit anonymous evidence, which may explain the European Court’s broader approach.  Given the weight of common law decisions in favour of the interpretation adopted by the House of Lords, the interpretation of ss 24 and 25 of the Charter will likely follow R v Davis. Therefore, while it may be impossible for a court to ignore competing considerations regarding a witness’ security, where anonymous evidence is the decisive basis for a conviction it appears that the defence would be unfairly hampered and the trial would be ruled unfair.

The decision is available at http://www.bailii.org/uk/cases/UKHL/2008/36.html. 

William Watson and Rebecca Pereira, Human Rights Law Group, Mallesons Stephen Jaques