R v Davis
Encyclopedia
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.
, East London, on the morning of January 1, 2002.
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
Davis' counsel
, Malcolm Swift QC
, objected to these restrictions but was overruled by the trial judge.
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: 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:
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:
described the decision as a cause for grave concern and said
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, and on 4 July 2008, the Criminal Evidence (Witness Anonymity) Bill
was introduced in the House of Commons. The bill became law on 21 July 2008, 33 days after the Lords' ruling.
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
House of Lords
Judicial functions of the House of Lords
The House of Lords, in addition to having a legislative function, historically also had a judicial function. It functioned as a court of first instance for the trials of peers, for impeachment cases, and as a court of last resort within the United Kingdom. In the latter case the House's...
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
Extradition
Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Between nation states, extradition is regulated by treaties...
from the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
and tried at the Central Criminal Court
Old Bailey
The Central Criminal Court in England and Wales, commonly known as the Old Bailey from the street in which it stands, is a court building in central London, one of a number of buildings housing the Crown 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
Criminal Evidence (Witness Anonymity) Act 2008
The Criminal Evidence Act 2008 was an Act of the Parliament of the United Kingdom. It was a piece of emergency legislation and was introduced by the Secretary of State for Justice, Jack Straw, in order to overturn the judgement of the House of Lords in R v Davis and permit the use of anonymous...
a month later.
Trial
Davis was charged with the murders of Ashley Kenton and Wayne Mowatt who had been present at a party in HackneyLondon Borough of Hackney
The London Borough of Hackney is a London borough of North/North East London, and forms part of inner London. The local authority is Hackney London Borough Council....
, East London, on the morning of January 1, 2002.
Davis, although admitting being present at the party, claimed to have left before the shooting, and relied on an alibi
Alibi
Alibi is a 1929 American crime film directed by Roland West. The screenplay was written by West and C. Gardner Sullivan, who adapted the 1927 Broadway stage play, Nightstick, written by Elaine Sterne Carrington, J.C...
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 pseudonymPseudonymA pseudonym is a name that a person assumes for a particular purpose and that differs from his or her original orthonym...
s - 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
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
, Malcolm Swift QC
Queen's Counsel
Queen's Counsel , known as King's Counsel during the reign of a male sovereign, are lawyers appointed by letters patent to be one of Her [or His] Majesty's Counsel learned in the law...
, 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 lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
and Article 6(3)(d) of the European Convention on Human Rights
European Convention on Human Rights
The Convention for the Protection of Human Rights and Fundamental Freedoms is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953...
, 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: 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:
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:
Reaction
The reaction of the police to the decision was negative; John Yates, Assistant Commissioner of the Metropolitan PoliceMetropolitan police
Metropolitan Police is a generic title for the municipal police force for a major metropolitan area, and it may be part of the official title of the force...
described the decision as a cause for grave concern and said
The Justice Secretary, Jack Straw
Jack Straw
Jack Straw , British politician.Jack Straw may also refer to:* Jack Straw , English* "Jack Straw" , 1971 song by the Grateful Dead* Jack Straw by W...
, announced that there would be an immediate review of the law, with the possibility of legislation to reverse the principle established by the decision, and on 4 July 2008, the Criminal Evidence (Witness Anonymity) Bill
Criminal Evidence (Witness Anonymity) Act 2008
The Criminal Evidence Act 2008 was an Act of the Parliament of the United Kingdom. It was a piece of emergency legislation and was introduced by the Secretary of State for Justice, Jack Straw, in order to overturn the judgement of the House of Lords in R v Davis and permit the use of anonymous...
was introduced in the House of Commons. The bill became law on 21 July 2008, 33 days after the Lords' ruling.
United States
- Kirby v. United States 174 US 47, 55 (1899)
- Alford v. United States 282 US 687 (1931)
- Pointer v. Texas 380 US 400, 405 (1965)
- Smith v. Illinois 390 US 129, 131 (1968)
- Coy v. Iowa 487 US 1012, 1015 (1988)
- Alvarado v. Superior Court of Los Angeles County 23 Cal 4th 1121, 1137-1140 (2000)
- Crawford v. Washington 124 S Ct 1354, 1359 (2004)
South Africa
- S v Leepile (1-3) 1986 (2) SA 333; (4) 1986 (3) SA 661; (5) 1986 (4) SA 187
- S v Pastoors 1986 (4) SA 222
United Kingdom
- Lord Morley's case (1666) 6 St Trials 770
- Duke of Dorset v Girdler (1720) Prec. Ch. 531-532, 24 ER 238
- R v Scaife (1851) 17 QB 238
- Scott v Scott [1913] AC 417
- Coles v Odhams Press Ltd [1936] 1 KB 416
- Attorney General v Butterworth [1963] 1 QB 696
- Connelly v DPP [1964] AC 1254
- R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney-General [1975] QB 637
- Attorney-General v Leveller Magazine Ltd [1979] AC 440
- R v South London Coroner, Ex p Thompson (reported in part at (1982) 126 SJ 625)
- R v DJX, SCY and GCZ (1989) 91 Cr App R 36
- R v Murphy and Another [1990] NI 306
- R v Acton Justices, Ex p McMullen (1990) 92 Cr App R 98, 104
- Julie Doherty (suing as personal representative of Daniel Doherty deceased) v Ministry of Defence (Court of Appeal in Northern Ireland, 5 February 1991, unreported
- Doherty v Minister of Defence (5 February 1991)
- R v Brindle and Brindle (31 March 1992, unreported
- R v HM Attorney-General for Northern Ireland, Ex p Devine [1992] 1 WLR 262
- R v Watford Magistrates' Court, Ex p Lenman [1993] Crim LR 388
- R v Taylor and Crabb (unreported, 22 July 1994, Court of Appeal Criminal Division
- R v HM Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1, 17
- R v Liverpool Magistrates' Court, Ex p Director of Public Prosecutions (1996) 161 JP 43
- R v Jack (unreported, 7 April 1998, BAILII: [1998] EWCA Crim 1206
- R (Al-Fawwaz) v Governor of Brixton Prison [2001] UKHL 69, [2002] 1 AC 556
- R v Singleton [2003] NICA 29, [2004] NI 71
- R v Arnold [2004] EWCA Crim 1293, para 30
- R(D) v Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 WLR 393
- R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257
- R v Al-Khawaja [2005] EWCA Crim 2697, [2006] 1 WLR 1078
- Grant v The Queen [2006] UKPC 2, [2007] 1 AC 1
Europe
- Kostovski v Netherlands (1989) 12 EHRR 434
- Windisch v Austria (Application No 12489/86) (1990) 13 EHRR 281
- Lüdi v Switzerland (Application No 12433/86) (1992) 15 EHRR 173
- X v United Kingdom (1992) 15 EHRR CD 113
- Prosecutor v Tadic (10 August 1995)
- Prosecutor v Blaskic [1996] IT-95-14 (5 November 1996)
- Doorson v Netherlands (1996) 22 EHRR 330
- Van Mechelen v Netherlands (1997) 25 EHRR 647
- Kok v The Netherlands (Application No 43149/98) Reports of Judgments and Decisions 2000-VI, p 597
- PS v Germany (2001) 36 EHRR 1139
- Lucà v Italy (2001) 36 EHRR 807
- Birutis v. Lithuania (Applications Nos 47698/99 and 48115/99) (unreported) 28 March 2002
- Krasniki v Czech Republic (Application No 51277/99) (unreported) 28 February 2006