Should a conviction be based solely upon the statements of anonymous witnesses?

In R v Davis (Iain) (CLW/08/24/3) the House of Lords made the controversial ruling that no conviction should be based solely or to a decisive extent upon the statements or testimony of anonymous witnesses.

Their Lordships said that such a conviction results from a trial which cannot be regarded as fair. This was consistent with the common law and the jurisprudence of the European Court of Human Rights.   Whilst it was considered that the problem of witness intimidation was real and prevalent and may well call for the attention of Parliament, there was no authority for the power of a court to abrogate a long-standing common law right directly bearing on the ability of a criminal defendant to defend himself.

Their Lordships said that the right to be confronted by one’s accusers is a right that has been recognised by the common law for centuries, and it is not enough that counsel sees the accusers if they are unknown to and unseen by the defendant.

CLW Comment

One of their Lordships, whilst agreeing in the result, was prepared to admit of some flexibility, saying no more than that as “a general rule it is unlikely that the trial will be fair if a very substantial degree of anonymising of evidence is permitted where the testimony of the witnesses concerned constitutes the sole or decisive evidence implicating the defendant” and others of their Lordships did not rule out the use of anonymous witnesses where their evidence was non-controversial, but otherwise this case is something of a landmark decision in its robust rejection of the practice of chipping away at fundamental common law principles.