R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division))

Subject to established exceptions and statutory qualifications, a defendant must be able to identify, investigate and effectively cross-examine prosecution witnesses whose credibility is material. The courts cannot use their inherent procedural jurisdiction to create a far-reaching system of witness anonymity; such reform requires legislation.

A criminal trial is unfair where the prosecution depends solely or decisively on anonymous witnesses while measures concealing their identities, appearances and natural voices prevent effective investigation of their motives and credibility. Anonymous evidence is not invariably incompatible with article 6, but any resulting handicap must be sufficiently counterbalanced. Limited anonymity may be permissible where the witness does not implicate the defendant and credibility is not in issue.

R v Davis concerned two murder convictions arising from a shooting at a party. Three prosecution witnesses provided the only evidence identifying the appellant as the gunman. Because they feared reprisals, they testified under pseudonyms, behind screens and with their voices distorted. Their identities and identifying details were withheld, and the defence could not ask questions capable of revealing them.

The Central Criminal Court convicted the appellant. The Court of Appeal dismissed his appeal in [2006] EWCA Crim 1155, holding that the anonymity arrangements had not made the trial unfair and that the convictions were safe.

The appeal to the House asked whether the protective measures were lawful at common law and compatible with article 6(3)(d) of the European Convention on Human Rights, particularly where anonymous testimony was the sole or decisive evidence against the defendant.

1. Disposition. The House unanimously allowed the appeal. The case was remitted to the Court of Appeal with an invitation to quash the convictions and, if the prosecution applied, determine whether to order a retrial.

2. Common-law right. Lord Bingham delivered the leading speech. Subject to established exceptions and statutory qualifications, an accused must be confronted by identifiable accusers so that their evidence, credibility and possible motives can be investigated and challenged. The protective measures prevented the appellant from knowing who the decisive witnesses were and gravely impeded the defence allegation that their evidence had been falsely procured. Lord Rodger, Lord Brown and Lord Mance agreed that this was an impermissible inroad into a fundamental common-law protection.

3. Judicial power and legislative responsibility. The court's inherent jurisdiction to control its proceedings did not authorise it to abrogate that protection. Lord Bingham considered that the recent anonymity cases had proceeded by small steps to a position irreconcilable with established principle. Lord Rodger and Lord Mance held that any further relaxation permitting decisive witnesses to conceal their identities must be created and delimited by Parliament. The limited procedure in R v Murphy [1990] NI 306, where the witnesses did not implicate the defendants and credibility was not in issue, did not justify the measures used here.

4. Convention fairness. Lord Mance analysed the Strasbourg authorities. Anonymous testimony is not incompatible with article 6 in every circumstance, but the defence's handicaps must be sufficiently counterbalanced. The sole or decisive importance of the testimony is a particularly weighty consideration. Here the anonymous evidence was indispensable, credibility was central, and the concealment of identity, appearance and natural voice frustrated effective investigation and cross-examination. There were no adequate counterbalancing safeguards. Lord Bingham applied the Strasbourg rule against conviction based solely or decisively on anonymous evidence; the other Law Lords agreed that this trial fell below article 6 standards.

5. Lord Carswell. Lord Carswell concurred in the result. He proposed a more flexible balancing framework based on necessity, genuine fear, the extent of anonymity, the importance of the evidence and overall fairness. He nevertheless concluded that the exceptional combination of measures and the decisive role of the witnesses made the convictions unsafe. Lord Brown expressly declined to accept that the problem could be resolved on so flexible a basis.

1. House of Lords: In R v Davis [2008] UKHL 36, the House unanimously allowed the appeal and remitted the case to the Court of Appeal, inviting it to quash the convictions and decide any application for a retrial.

2. Court of Appeal (Criminal Division): In [2006] EWCA Crim 1155, [2006] 1 WLR 3130, the court dismissed the appeal. It held that the anonymity arrangements had not prevented proper investigation of the defence and that the convictions were safe.

3. Central Criminal Court: On 25 May 2004, the appellant was convicted by a jury of two counts of murder after a trial in which the three identifying witnesses gave evidence subject to protective measures.