ONCE again, the government has been thrown into a tizzy. Dozens of criminal prosecutions, many involving suspected terrorists, could be in jeopardy as a result of a ruling by the House of Lords, Britain’s highest court of appeal, deeming it unlawful for prosecutors to rely on anonymous witnesses to secure convictions. On June 26th the government announced emergency legislation in an attempt to rescue trials and block appeals in scores of cases where defendants have already been convicted. It hopes to rush through a bill before Parliament rises on July 22nd.
The law lords’ ruling, on June 18th, has already claimed its first casualty. On June 24th a murder trial at London’s Central Criminal Court, which had cost £6m, was halted after the judge told the jury it had heard evidence from “a number of witnesses that you should not have heard”. Four witnesses, using false names, had given evidence over two months from behind screens in the trial of two men accused of killing another man in East London in 2004.
Contrary to some reports, the law lords did not rule that anonymous witnesses may never be used. In an appeal brought by Iain Davis, jailed four years ago for murdering two men after a New Year’s Eve party, they said the defendant had been denied a fair trial because the identity of three key witnesses, without whose evidence Davis would not have been convicted, remained hidden from the defence. They recommended that the conviction be quashed and a new trial held.
Delivering the ruling, Lord Bingham said that the right of an accused to confront his accusers so as to be able to challenge their evidence was a long-established principle of English common law. America had adopted it as a constitutional right, and other common-law countries too considered it important. The principle was also enshrined in the European Convention on Human Rights; under case law of the European court, no conviction should be based solely, or to a decisive extent, on the testimony of anonymous witnesses.
The law lords accepted that the problem of witness intimidation was real. Witnesses often would not give evidence unless their identity was withheld from the defence, and dangerous criminals might then walk free. This, Lord Bingham conceded, was a serious problem that “might well” call for urgent attention by Parliament. But the paramount object must always be to do justice. In Iain Davis’s case, the anonymity granted to witnesses hampered the conduct of the defence “in a manner and to an extent” that was unlawful and rendered the trial unfair, he said.
Police and prosecutors have increasingly resorted to promises of anonymity in order to persuade frightened witnesses to testify in cases of gangland violence and gun crime. Many fear the ruling could have a catastrophic effect on current and future prosecutions. But the government seems convinced that it can fix the problem and the Conservatives have intimated their willingness to co-operate. It may prove harder to square the new law with the human-rights legislation.