Anonymous witnesses? 71. The right to confrontation recognised in the United States has, therefore, no exact counterpart in English common law. But the question remains whether there are circumstances under English common law in which evidence may be given anonymously. This is not the same question as whether evidence should be given in public. Both in Scott v Scott [1913] AC 417 and in article 6 of the European Convention on Human Rights, it is recognised that there can be special circumstances in which courts may in the interests of justice sit in private, in particular where the administration of justice would otherwise be rendered impracticable or prejudiced. But recognition of a limited exception of that nature does not touch the question whether there are circumstances in which a judge may allow a witness to remain anonymous in relation to a defendant. The recent authorities indicate various possible degrees to which this may occur. At one end of the spectrum, the witness is known by sight (though not true name) and is present and visible at the trial but referred to under a pseudonym. At the other, the witness not only has his or her identity concealed, but is, as here, concealed from sight and has his or her voice distorted in relation to all but the judge, jury and counsel (though here counsel for the appellant declined to be put in a position different from that of his client). In all such cases any cross-examination likely to elicit identity will have to be excluded, if the anonymity granted is to be maintained. The prosecution can take steps to provide relevant background details, such as any prior criminal record, but they will have to avoid giving any information which could lead to identification. And in all such cases the problem exists that the concealment of identity means that the defendant cannot himself check, investigate or (save by guesswork) give directly any relevant information about the character, motives or reliability of the witness. The defence is to that extent potentially hampered both in cross-examination and in relation to any positive case and evidence which it can adduce. 72. In many cases, particularly cases where credibility is in issue, identification will be essential to effective cross-examination. In both Smith v Illinois 390 US 129 (1968) and State v Leepile and Others (5) 1986 (4) SA 187 the credibility of the witness was central to the case against the defendant, and it was said in the former case (at p 132) that ignorance of the witness’s identity was “effectively to emasculate the right of cross-examination. In R v Hughes [1986] 2 NZLR 129, 149, Richardson J was referring to the potential significance of credibility when he said that “I cannot presently perceive any circumstances at common law under which a witness whose credibility may be in issue depending on the results of inquiries should be allowed to hide his real name and in the result foreclose any inquiries of that kind. 73. In R v Murphy and Anor [1990] NI 306, the situation was quite different, and the cases of Smith v Illinois and State v Leepile (5) were distinguished accordingly. The photographers’ evidence was relied on to do no more than prove the video film and photographs that they had taken of the funeral, from which police officers identified the defendants. The photographers’ evidence “did not implicate either appellant” (per Kelly LJ, p 334), except in the sense that they produced objectively unchallengeable material from which others were able to do so. In the later Northern Irish case of Doherty v Minister of Defence (5 February 1991), Sir Brian Hutton LCJ highlighted this distinction. Lord Bingham observes that, if Murphy was a departure from established principle, it was a small one (para 12). Courts have an inherent power to control their own proceedings, and I consider that R v Murphy involves a limited qualification on the right to know the identity of prosecution witnesses which represents no threat to the fairness of the trial and which the common law can and should accommodate. 74. The question is whether the common law should go further. There are powerful statements, particularly in the New Zealand cases of R v Hughes (above) and R v Hines [1997] 3 NZLR 529, cautioning against the risks “if on a supposed balancing of the interests of the State against those of the individual accused the Courts were by judicial rule to allow limitations on the defence in raising matters properly relevant to an issue in the trial” (per Richardson J in Hughes at p 148), and saying that any change in the law was a matter for the New Zealand Parliament (which did in fact respond by legislation after each of these decisions). R v Davis (Appellant) (On appeal from the Court of Appeal (Criminal Division)) 2008 UKHL 36
Posted on: Sat, 09 Nov 2013 04:40:10 +0000
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