Government should avoid knee-jerk witness legislation

The government should beware of imposing improperly thought through legislation in the wake of the House of Lords ruling on the use of evidence from anonymous witnesses, say experts.

In R v Davis the law lords found that by using anonymous witnesses in a murder trial, the defendant was denied the opportunity to properly advance his defence, rendering his trial unfair. The defendant was convicted of the 2004 murder of two men outside a party on New Year’s Eve on the evidence of two witnesses from behind a screen.

After the ruling, Justice Minister Jack Straw said that he was looking at introducing legislation urgently to put the use of anonymous witnesses on a statutory footing. Straw said, “It’s absolutely fundamental that defendants should be able literally to see and hear the evidence before them, but you then have to balance that with what actually happens in real life these days”. Mr Straw pledged to introduce legislation by the end of 2008.

Malcolm Swift QC says that although Davis is likely to the first of many cases to go to appeal, the Government should consider legislation carefully. “It is important is that the Government does not indulge in knee-jerk legislation egged on by those disappointed by the decision in Davis and keeps in mind that witness intimidation and retaliation are, contrary to the propaganda, extremely rare,” he says.

Swift says that the government could look abroad or to the international courts for guidance on legislating for anonymous witnesses but should do so with caution.

“The Government may seek to improve, extend and place on a statutory footing the existing ad hoc witness protection/relocation system or may legislate to regulate witness anonymity in the trial process—a course incompatible with Art 6, unless it preserves the defendant’s confrontation rights particularly his right to effective cross-examination,“ he says.

He adds that the model adopted by the International Criminal Tribunals and the International Criminal Court may be appropriate.