Creeping emasculation

“ … 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 Brown, R v Davis [2008] UKHL 36 (18 June 2008) at para 66.

Here the issue was whether measures taken at trial to ensure the anonymity of witnesses had led to the trial being unfair.

All the Law Lords agreed that this case had resulted in unfairness. The witnesses were allegedly eye witnesses to the shooting of two people who died from the single shot fired by, they said, the accused. Without their testimony there would have been insufficient evidence to convict. Lord Bingham encapsulated the unfairness (para 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 [QC, counsel for the accused, and now appearing for the appellant] 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.”

Although confrontation is not a “right” at common law (Lord Mance, 68), it is a “principle” (Lord Bingham, 5), and in the USA it is a Constitutional right (Sixth Amendment), and it can also be called a “right” in English common law (Lord Bingham calls it this at 6) but with long-recognised exceptions (he mentions dying declarations and res gestae statements). Lord Rodger noted at 40 that the permitting of testimony by anonymous witnesses has only occurred in “remarkably recent” cases. Lord Carswell, who was the only one to find “great difficulty” about the present case (at 47) stated the law in terms that Lord Brown specifically found too flexible (63), particularly disagreeing with Lord Carswell’s proposition “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.”

Lord Bingham disapproved any suggestion that a court could rely on the prosecution acting to ensure fairness to the accused:

“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….”

Reference was made (at 8, 40, 74) to a couple of New Zealand Court of Appeal cases, R v Hughes [1986] 2 NZLR 129, 147, 148-149 per Richardson J, and R v Hines [1997] 3 NZLR 529, which held that the right to confront an adverse witness is basic to any civilised notion of a fair trial, and that must include the right for the defence to ascertain the true identity of an accuser where questions of credibility are in issue. Both these cases were followed by legislation. The current New Zealand provisions are ss 110 – 119 of the Evidence Act 2006.

R v Davis is another assertion of the absolute nature of the accused’s right to a fair trial. This is a right that cannot be balanced against other rights or interests. As Lord Bingham noted at 16, there is a fundamental inconsistency between an absolute right and subjecting it to a balancing exercise. Departures from the right of confrontation are for the legislature to make (20), not for the common law to achieve by a series of small steps that are irreconcilable with long-standing principle (29). Lord Rodger described the legislative task in the following terms:

“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.”

The ultimate issue, one which will set up a conflict between the legislature and the courts, is how courts will react if any such legislation permits trials to be unfair to accused persons. Can courts of “justice” be required to permit unjustly achieved convictions?