Iain Davis was convicted of double murder based solely on testimony from three anonymous witnesses whose identities, faces, and voices were concealed from the defendant and his counsel. The House of Lords held this violated the long-established common law right of confrontation and rendered the trial unfair, quashing the conviction.
Background
On New Year’s Day 2002, two men were shot dead at a party in Hackney. The appellant, Iain Davis, was extradited from the United States, tried at the Central Criminal Court, and convicted of both murders on 25 May 2004. He admitted being at the party but denied being the gunman, claiming he had left before the shooting. His credibility was weakened by his flight to the United States on a false passport and his refusal to answer police questions.
The critical feature of the trial was that three witnesses — the only witnesses identifying Davis as the gunman — gave evidence subject to extensive protective measures. Seven witnesses claimed to fear for their lives if identified. The trial judge, having investigated and accepted those fears as genuine, ordered the following measures:
- Each witness gave evidence under a pseudonym;
- Addresses, personal details, and identifying particulars were withheld from the defendant and his legal advisers;
- Defence counsel was prohibited from asking questions that might identify the witnesses;
- Witnesses gave evidence behind screens, visible only to the judge and jury;
- Witnesses’ voices were mechanically distorted so the defendant could not recognise them, though the judge and jury heard the natural voices.
Defence counsel, Mr Malcolm Swift QC, declined to receive information he could not share with his client, thereby voluntarily submitting to the same restrictions imposed on the defendant. Without the three anonymous witnesses’ evidence, the prosecution case could not have succeeded.
The Issue(s)
The certified question of law was:
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?
More broadly, the appeal raised whether the combination of protective measures — anonymity, screening, voice distortion, and restrictions on cross-examination — was lawful under English common law and compatible with Article 6(3)(d) of the European Convention on Human Rights, and whether the measures rendered the trial unfair.
The Court’s Reasoning
The Common Law Principle of Confrontation
Lord Bingham traced the long-established common law principle that a criminal defendant should be confronted by his accusers in order to cross-examine them. This principle originated in ancient Rome and was firmly embedded in English law, with departures associated with the Inquisition and the Court of Star Chamber being regarded as oppressive and ultimately abolished. Lord Bingham cited authorities including Hale, Blackstone, and Bentham, the latter having described cross-examination as:
the indefeasible right of each party, in all sorts of causes
The US Supreme Court decision in Smith v Illinois 390 US 129 (1968) was quoted extensively for its practical articulation of the importance of knowing a witness’s identity:
when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.
Lord Bingham also drew upon the powerful statements of Richardson J in R v Hughes [1986] 2 NZLR 129 and Ackermann J in S v Leepile (5) 1986 (4) SA 187, both of whom had warned against judicial erosion of the right of confrontation. Ackermann J had identified the practical consequences of anonymity: inability to investigate the witness’s background for untruthfulness, inability to check alibis, and the heightened temptation for witnesses to falsify or exaggerate evidence given their sense of impregnability.
Critically, Lord Bingham noted that the Diplock Commission (1972) and the Gardiner Committee (1975), both confronting extreme witness intimidation in Northern Ireland, had rejected anonymous witness procedures as incompatible with fair trial principles. Lord Rodger observed:
Lord Diplock saw the common law principle as so fundamental that he felt unable even to recommend that legislation should be passed to interfere with it.
Analysis of Domestic Authorities
Lord Bingham systematically analysed the recent domestic authorities that had permitted degrees of witness anonymity — R v Murphy [1990] NI 306, the Watford Magistrates’ Court case, R v Taylor and Crabb, and others — demonstrating that each involved far less extensive measures than the present case and that the authorities cited in support of those decisions (such as R v X, Y and Z, Scott v Scott, and Attorney General v Leveller Magazine Ltd) did not in fact support the propositions for which they were invoked. Lord Bingham concluded:
By a series of small steps, largely unobjectionable on their own facts, the courts have arrived at a position which is irreconcilable with long-standing principle.
Lord Mance accepted that R v Murphy represented a limited and justifiable qualification, where the photographers’ evidence did not implicate the defendants and credibility was not in issue, but held that the common law could not accommodate the far more radical measures in the present case.
Strasbourg Jurisprudence
Lord Mance undertook a detailed analysis of the European Court of Human Rights case law, including Kostovski v Netherlands, Doorson v Netherlands, Van Mechelen v Netherlands, PS v Germany, Krasniki v Czech Republic, and others. The consistent principle was that no conviction should be based solely or to a decisive extent on anonymous testimony. In Doorson, the Court stated:
even when ‘counterbalancing’ procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements.
Lord Mance concluded that whether or not the ‘sole or decisive’ rule was absolute or merely a very important factor, the combination of circumstances in the present case could not satisfy Article 6 requirements: the evidence was the sole or decisive basis for conviction, cross-examination was severely hampered, and there were no counterbalancing factors.
Impact on the Defence
The defence case was that Davis had been falsely accused, allegedly at the instigation of a former girlfriend. The protective measures gravely impeded counsel’s ability to investigate who the witnesses were, where they lived, and the nature of their contact with the appellant. Lord Bingham noted that when a female witness was eventually called whom the appellant believed to be the former girlfriend, it remained doubtful whether she was or not — a question that could not be fully explored. Lord Bingham stated:
A trial so conducted cannot be regarded as meeting ordinary standards of fairness.
He further observed that the Court of Appeal had felt able to find that the identifying witnesses were ‘very good friends of the deceased’ with no reason to falsely incriminate the appellant, when the appellant had been denied the opportunity to investigate whether those facts were true.
The Role of Parliament
All five Law Lords emphasised that any modification to the fundamental common law rule was a matter for Parliament, not the courts. Lord Rodger stated:
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.
Lord Brown added:
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.
Practical Significance
This decision is of major constitutional and procedural importance. It unanimously reaffirmed the fundamental common law right of a criminal defendant to know the identity of, and be confronted by, the witnesses against him. The House held that the courts had no inherent power to permit the degree of anonymity adopted in this case and that such a far-reaching modification of established principle required parliamentary intervention.
The decision directly prompted the government to introduce emergency legislation — the Criminal Evidence (Witness Anonymity) Act 2008 — which was passed within weeks of the judgment to provide a statutory framework for anonymous witness orders, subject to specific safeguards and judicial scrutiny. This was subsequently replaced by the more permanent provisions of the Coroners and Justice Act 2009.
The case also underscored the limits of judicial development of the common law in the criminal sphere, particularly where fundamental rights of defendants are at stake. It drew a clear line between measures that protect witnesses from the public (permissible at common law) and measures that conceal witnesses from the defendant (requiring legislative authority). The analysis of Strasbourg jurisprudence confirmed that conviction based solely or to a decisive extent on anonymous testimony is incompatible with Article 6 of the ECHR.
Verdict: The appeal was unanimously allowed. The House of Lords held that the protective measures imposed at trial — anonymity, screening, voice distortion, and restrictions on cross-examination of the three identifying witnesses — were unlawful at common law and incompatible with Article 6 of the ECHR, rendering the trial unfair. The case was remitted to the Court of Appeal with an invitation to quash the conviction and decide, if application were made, whether to order a retrial.
Source: R v Davis [2008] UKHL 36
