R v Davis

The House of Lords held that long‑established common law and Convention principles require that a defendant be able to confront identified witnesses against him, subject only to narrow exceptions. Protective measures which withheld the names and identifying details of the three principal identifying witnesses, prevented the defendant and his client from seeing or recognising them, and distorted their voices, went beyond previously recognised limited departures from the confrontation principle and undermined the fairness of the trial. The court treated article 6(3)(d) of the European Convention on Human Rights and the common law right to confront one’s accusers as congruent in requiring that a conviction should not be based solely or to a decisive extent on anonymous testimony.

The appellant was convicted at the Central Criminal Court of two counts of murder on 25 May 2004. On appeal to the Court of Appeal the conviction was upheld ([2006] EWCA Crim 1155). The appellant appealed to the House of Lords contesting the lawfulness and fairness of the protective measures adopted at trial which: (i) permitted key witnesses to give evidence under pseudonyms; (ii) withheld their addresses and any particulars likely to identify them from the defendant and his legal advisers; (iii) restricted defence questioning to avoid identification; (iv) allowed the witnesses to give evidence behind screens so that the judge and jury could see them but the defendant could not; and (v) mechanically distorted the witnesses' voices for the defendant and his counsel.

The issues for the House were whether English common law or article 6 of the Convention permitted such extensive anonymity and whether the combination of those protective measures rendered the appellant's trial unfair. The court examined the history of the confrontation principle, domestic case law (including R v Murphy and R v Taylor and Crabb), statutory schemes for special measures and the Strasbourg jurisprudence (including Kostovski, Doorson and Van Mechelen) which the court summarised as establishing that a conviction should not be based solely or to a decisive extent on anonymous evidence.

The Lords concluded that, on the facts of this case, the protective measures materially impeded effective investigation and cross‑examination of the three identifying witnesses, whose credibility was central to the defence. The measures therefore rendered the trial unfair. The House allowed the appeal and remitted the matter to the Court of Appeal to quash the conviction and to consider whether a retrial should be ordered.

• Nature of claim: Criminal defendant appealed conviction on grounds that anonymity and protective measures made trial unfair and breached article 6(3)(d).
• Issues framed: (i) scope of common law confrontation right; (ii) compatibility of protective measures with article 6; (iii) whether conviction rested solely or to a decisive extent on anonymous evidence; (iv) whether protective measures were adequately counter‑balanced by disclosure and other safeguards.
• Court’s reasoning: The House held that only limited and exceptional departures from the confrontation principle have been recognised; Strasbourg case law requires that convictions not be based solely or to a decisive extent on anonymous evidence and that counter‑balancing measures be effective; on the facts the anonymity measures here were too extensive and prejudicial to the defence.

Appeal allowed. The House concluded that the trial judge's protective measures—pseudonyms, withheld identifying details, restriction of questioning, screening from the defendant and voice distortion—hampered the defence and were unlawful in the circumstances because they rendered the trial unfair; the case was remitted to the Court of Appeal with an invitation to quash the conviction and consider a retrial.

Convicted at the Central Criminal Court (Central Criminal Court, verdicts on 25 May 2004). Appeal against conviction dismissed by the Court of Appeal (Criminal Division) on 19 May 2006: [2006] EWCA Crim 1155. Appeal to the House of Lords allowed: [2008] UKHL 36.