R v Davis [2008] UKHL 36 is a decision of the United Kingdom House of Lords which considered the permissibility of allowing witnesses to give evidence anonymously. In 2002 two men were shot and killed at a party, allegedly by the defendant, Ian Davis. He was extradited from the United States and tried at the Central Criminal Court for two counts of murder in 2004. He was convicted by the jury and appealed. The decision of the House of Lords in June 2008 led to Parliament passing the Criminal Evidence (Witness Anonymity) Act 2008 a month later. This legislation was later replaced by sections 86 to 97 of the Coroners and Justice Act 2009.^[3]

Trial

Davis was charged with the murders of Ashley Kenton and Wayne Mowatt who had been present at a party in Hackney, East London, on the morning of January 1, 2002.^[4]

Davis, although admitting being present at the party, claimed to have left before the shooting, and relied on an alibi defence. However, three prosecution witnesses identified Davis as the gunman. To protect their identity, the judge ordered that

• they would be allowed to give evidence under pseudonyms
• any details which might identify them were to be withheld from Davis and his legal advisers and they could not be asked any questions which might lead to their identification
• they would be allowed to give evidence from behind screens and their voices disguised electronically.

Davis' counsel, Malcolm Swift QC, objected to these restrictions but was overruled by the trial judge.

Appeals

Davis first appealed to the Court of Appeal on the basis that the judge's orders relating to the anonymity of witnesses were contrary to the common law and Article 6(3)(d) of the European Convention on Human Rights, and therefore Davis could not have received a fair trial. This contention was rejected and Davis' appeal dismissed. However the court did certify a point of law of general public importance:

"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?"

This permitted a further appeal to the House of Lords.

The case was heard by five law lords. On 18 June 2008 they unanimously held that Davis had not had a fair trial, since his counsel had been unable to adequately challenge the prosecution evidence or test the reliability of the anonymous witnesses. Davis's defence had been that his ex-girlfriend had told lies about him to the police, or had persuaded other people to tell such lies on her behalf. Without being allowed to know if the anonymous witnesses knew Davis or his ex-girlfriend, and forbidden to ask any questions that might reveal who they were, defence counsel had been so hindered in his attempts to probe their evidence that Davis had not received a fair trial.

The House reviewed all of the major cases in which anonymous witnesses had been allowed, and concluded that the law had developed incrementally in such a way that while no single step towards trials with anonymous witnesses had been obviously wrong, their cumulative effect had now gone too far. As Lord Brown put it:

"If ... 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."^[1]

However the House did not go so far as to say that anonymous witnesses can never be used in a trial, and listed some examples where they would still be permitted. The effect of the judgement is that witnesses may not give evidence anonymously if to conceal their identity from the defendant and his lawyers would hinder cross-examination or other challenges to their credibility. (Also R v Davis does not affect the rules on concealing the identity of witnesses from the public but not from the defence.) Lord Mance concluded the judgement by saying:

It may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence discussed in this judgment that there is scope within the Human Rights Convention for such modification.

Reaction

The reaction of the police to the decision was negative;^[5] John Yates, Assistant Commissioner of the Metropolitan Police described the decision as a cause for grave concern and said

it would seriously hamper the Met's efforts to stamp out gun crime in the black community.^[6]

The Justice Secretary, Jack Straw, announced that there would be an immediate review of the law, with the possibility of legislation to reverse the principle established by the decision,^[7] and on 4 July 2008, the Criminal Evidence (Witness Anonymity) Bill was introduced in the House of Commons.^[8] The bill became law on 21 July 2008, 33 days after the Lords' ruling.

Cases cited

References