Davis, R v

A criminal court may permit a witness to give evidence anonymously under its inherent jurisdiction. It must establish a genuine and justified need for anonymity, preserve effective cross-examination and disclosure safeguards, and be satisfied that the trial as a whole will be fair.

Anonymous evidence does not make a conviction unsafe merely because it is decisive. The court must balance the defendant’s fair-trial rights against justified protection for witnesses and their families. On appeal, the court reviews both the original ruling and whether its actual operation produced an unfair trial.

The judgment determined two unconnected appeals against convictions for murder and attempted murder. In the Davis appeal, the appellant was convicted at the Central Criminal Court of two murders arising from a shooting at a New Year party. In the Ellis appeal, the appellants were convicted at Birmingham Crown Court after a retaliatory gang shooting caused two deaths and injuries.

Both trials involved orders allowing witnesses to give evidence anonymously, supported by measures including screening and voice modulation. The appellants challenged the jurisdiction to make those orders, their compatibility with a fair trial, disclosure arrangements, and the safety of the resulting convictions. Davis also sought to adduce fresh evidence.

1. Both the Davis appeal and the Ellis appeals were dismissed. The court held that the common law gives a criminal court jurisdiction to permit anonymous testimony. That jurisdiction was consistent with the principles in Al Fawwaz v Governor of Brixton Prison (2002) AC 556 and R (D) v Camberwell Green Court (2005) 1 WLR 393.

2. An anonymity order requires scrupulous examination. The need for it must be clearly established by genuine and justified fear of serious consequences if identity is disclosed. The defence must ordinarily retain effective cross-examination, supported by proper prosecution disclosure, and the judge must be satisfied that the trial overall will be fair. Article 6 of the European Convention of Human Rights does not make a conviction automatically unsafe merely because anonymous evidence is decisive where the witness can be tested in the adversarial process.

3. The trial judge’s initial decision is fact-specific and will usually be disturbed only if plainly wrong when made. Following conviction, however, the appellate court must independently assess whether the anonymity order in fact resulted in an unfair trial and an unsafe conviction. If it did, the conviction must be quashed.

4. In Davis, disclosure had at times been piecemeal and some errors were unfortunate. By the time each anonymous witness gave evidence, however, the judge had the material needed to review anonymity. The defence was able to investigate and cross-examine the central allegation of fabrication. Independent evidence also supported the witnesses. The process was fair and the convictions were safe.

5. In Ellis, extensive cross-examination severely damaged the only anonymous witness who purported materially to incriminate the appellants. The judge withdrew the case against a co-accused where that evidence stood alone. The remaining convictions were supported by substantial independent evidence and the trial process remained fair.

6. The fresh evidence from “Tony Pink” was admitted under section 23 of the Criminal Appeal Act 1968, but was rejected as uncreditworthy after contrary evidence from an independent witness. It did not affect the safety of Davis’s convictions.

• Court of Appeal (Criminal Division): the appeals against conviction were dismissed in [2006] EWCA Crim 1155.
• Central Criminal Court: Davis was convicted on 25 May 2004 of two counts of murder before Judge Paget QC and a jury.
• Birmingham Crown Court: Ellis, Gregory, Simms and Martin were convicted on 18 March 2005 before Goldring J and a jury of murder and attempted murder offences.