The Charter vs anonymity

The other House of Lords judgment I’ve been waiting for, R v Davis [2008] UKHL 36, was a pleasant surprise. Penned by a different set of lords (no Hoffman or Hale), it rejects the use of anonymous witnesses where they are a major part of the prosecution case, at both common law and under the European Convention:

Whatever may be the position in that regard, I do not believe that the Strasbourg Court would accept that the use of anonymous evidence in the present case satisfied the requirements of article 6. Not only was the evidence on any view the sole or decisive basis on which alone the defendant could have been convicted, but effective cross-examination in the present case depended upon investigating the potential motives for the three witnesses giving what the defence maintained was a lying and presumably conspiratorial account. Cross-examination was hampered by the witnesses’ anonymity, by the mechanical distortion of their voices and by their giving evidence from behind screens, so that the appellant (and, since he was not prepared to put himself in a position where he had information that his client did not, his counsel) could not see the witnesses. Assuming that the sole or decisive nature of the evidence is not itself fatal, it is on any view an important factor which would require to be very clearly counter-balanced by other factors. Here there are none. The other factors are here very prejudicial in their impact on effective cross-examination.

The ruling came despite the extremely compelling case for anonymity from the facts. In the case being appealed from, a gunman entered a crowded New Years Eve party and shot a man, apparently due to a grudge. The same bullet also killed a uninvolved person in the next room. In another case decided at the same time by the court below, members of the “Johnson Crew” were attacked in a party at the Uniseven Hair Salon by members of the “Burger Bar Crew” (obviously not a lot of happening venues in Birmingham!) in revenge for a killing of a member of their crew. Five uninvolved people were badly injured. Common to both cases was the problem (also described in Underbelly) of uninvolved living witnesses refusing to testify out of fear for being shot. The Court of Appeal approved a regime where screens and voice modulators were used to shield the identify of the witnesses from the defendant (and, to preserve their relationship, the defendant’s lawyers) but not from the judge or jury. But the House of Lords held that, at least where the anonymous evidence is a major part of the case, such a course prevents the defendants from effectively defending themselves by investigating the bona fides of each witness.

Alas, this powerful judgment may well be of limited importance under the Charter. The most relevant right in the ECHR is this one:

6.3 Everyone charged with a criminal offence has the following minimum rights:… (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.

Alas, here’s how the same right looks in the Charter:

25(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees… (g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law

Oy. So, anonymous witnesses are fine in Victoria, so long as a (reasonably clear ) law provides for their use.

This unfortunate road through Victorians’ confrontation rights was, alas, paved with good intentions by the Charter’s Consultation Committee, as I outlined in an earlier paper:

Of s25(2)(g), the [Consultation] Committee wrote:

The Committee considers that this qualification is necessary to ensure that the special rules in relation to the cross-examination of children or of victims of sexual assault would continue to apply.

This explanation of the limitation on the right to examine witnesses is wrongheaded in many respects:

First, there is no risk that Victoria’s laws on examining rape victims and children won’t ‘continue to apply.’ The Charter doesn’t invalidate any laws…

Second, mere inconsistency with s25(2) or any other right in Part Two isn’t a problem in and of itself, as s7(2) permits lawmakers to pass laws that are reasonable and demonstrably justifiable limits on human rights. Victoria’s special laws on examinations of kids and rape victims are the product of an extensive law reform process that ought to produce precisely the sort of limit that s7(2) allows. Indeed, there are numerous comparative judgments upholding similarly rules like a bar on defendants personally examining rape complainants or the use of CCTV or pre-recorded interviews for child testimony.

Third, if Victoria’s current laws can’t satisfy s7(2) – i.e. they aren’t reasonable or demonstrably justified – then why should they preserved from such remedies as reading down or a declaration of inconsistent interpretation?

Fourth, if it was necessary to protect those laws from such consequences, then parliament could enact an ‘override’ that preserves selected Victorian laws from such consequences, however, unlike the limitation on s25(2)(g), this requires specific parliamentary delibeartion and scrutiny, ‘exceptional’ circumstances and a five-year sunset clause. Moreover, if the Committee’s intention was to prevent Victoria’s rules on examining children and rape victims from being criticised under the Charter, then it won’t succeed; those rules can and will be challenged under the s24(1) right to a decision following a fair hearing.

Worst of all, the Committee’s exception is vastly overbroad. It isn’t limited to protections for rape victims and children, but can cover as many witnesses (and as many aspects of their examination) as Parliament wants. The impact on evidence law’s values is especially painful, because the provision implements a basic right recognised by evidence law: the right to confrontation. That right guarantees that criminal defendants (and their lawyers) can hear what witnesses have to say and can cross-examine them about that. Evidence law’s most famous commitment to this right is the hearsay rule, although there are a number of exceptions to that rule (and, if the uniform evidence legislation was adopted in Victoria, there would be many more.) The effect of the Committee’s tinkering with the ICCPR right is to bar all of evidence law’s exceptions to the hearsay rule (present and future100) from analysis for their consonance with the minimum guarantees for criminal procedure in s25 (and, if that isn’t bad enough, the government’s redraft also removes the ICCPR’s requirement that any exceptions apply equally to prosecution and defence.)

To see just how unfortunate this is, consider David Hicks’s aborted trial at Guantanamo Bay, whose liberal rules of evidence are often cited as a reason why Victorians need a human rights regime. Section 25(2)(g)’s exemption would exclude from protection precisely the procedures in Hicks’s trial that attracted strongest criticism: the prosecution’s right to present evidence that was kept secret from the defendant on national security grounds; and the very broad hearsay rule exceptions. Allowing such procedures a free pass under s25(2)’s guarantees of minimum standards for criminal proceedings is quite a high price to pay just to exempt Victoria’s sensible laws on examining rape victims and children from the unlikely possibility of adverse court decisions under those same provisions. The best that can be said for any of this is that defendants could still challenge all laws limiting their right to examine witnesses under s24(1).

R v Davis adds another example to the costs of the Consultation Committee’s misguided attempt to protect kids and women…

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