B e f o r e :
THE PRESIDENT OF THE QUEENS BENCH DIVISION
MR JUSTICE
MITTING
and
MR JUSTICE
FULFORD
____________________
Between:
|
R
|
Appellant
|
|
-v-
|
|
|
Davis
|
Respondent
|
|
|
|
|
and
|
|
|
|
|
|
R
|
Appellant
|
|
- v -
|
|
|
Ellis Gregory
SimmsMartin
|
Respondent
|
____________________
Mr Malcolm Swift QC and Miss Susan Rodham for Davis
Mr Michael
Worsley QC and Mr M.J. Gadsden for the Crown
Mr Nigel Rumfitt QC and Miss
Halliday-Davis for Ellis
Mr T. Maloney for Gregory
Mr Anthony Barker QC
and Mr G. Henson for Simms
Mr J.M. Burbidge for Martin
Mr Timothy Raggatt
QC, Mr M. Duck and Mr J. Butterfield for the Crown
Hearing dates :
20th-24th March 2006
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©
President of the Queen's Bench Division:
- On 25th May 2004, at the Central Criminal
Court, before His Honour Judge Paget QC and a jury, Iain Davis was convicted
of two counts of murder. He appeals against conviction with the leave of a
single judge. This is the Davis appeal.
- On 18 March 2005, at Birmingham Crown Court, before
Goldring J and a jury, Marcus Ellis, Michael Gregory and Nathan Martin were
convicted of two counts of murder and three counts of attempt murder, and
Rodrigo Simms was convicted of the same counts of murder, and two of the three
counts of attempt murder. They appeal against conviction, with the leave of
the court. This will be described as the Ellis appeal.
- There is no connection between the two cases. Leave
was given in the Ellis appeal because it appeared that an important point
about the anonymity of witnesses was a common and significant feature of both
cases. The appeals were heard consecutively, and after hearing argument in
both cases, we decided, with the agreement of all counsel, to address the
issues in a single judgment.
The Davis Appeal
- On 1 January 2002, towards the end of a New Year's
Eve party in the presence of witnesses, two men, Ashley Kenton and Wayne
Mowatt were shot dead. Their deaths resulted from a surge of violence by an
individual who discharged a loaded gun to assassinate Kenton, against whom he
entertained an apparently short-lived grudge. The second death was
"accidental", in the sense that the victim, Mowatt, happened to be in just the
wrong place at the wrong time when the bullet fired from the assassin's gun
went through the Kenton's neck, and by way of a flimsy internal partition,
entered the neck of and fatally injured Mowatt. A single bullet killed both
men.
The Ellis Appeal
- On 8 December 2002, Nathan Martin's brother Yohanne,
was shot dead. Those responsible were believed to be members of a gang in
Birmingham known as the Johnson Crew. The appellants, together with a
co-accused Tafarwa Beckford, who was acquitted by direction of the judge, were
members of the Burger Bar Crew. Both gangs were capable of extreme violence.
The Johnson Crew and the Burger Bar Crew were, literally, deadly rivals.
- Shortly after 4am on 2nd January 2003, a
party was taking place at the Uniseven Hair Salon in Aston, Birmingham. The
guests included members of the Johnson Crew. A number of those attending the
party happened to be standing in an alleyway at the rear of the premises. They
included Charlene Ellis, Letisha Shakespeare, Sophie Ellis and Cheryl Shaw. A
convoy of vehicles, which included a red Mondeo and a silver Vauxhall, drove
to the scene. Shots were fired into the crowd. Sharleen Ellis and Latisha
Shakespeare received fatal gunshot wounds. Sophie Ellis and Cheryl Shaw were
badly injured. A man called Leon Harris, who was sitting in a car further down
the alleyway, was shot at close range by a gunman who had alighted from one of
the convoy of vehicles.
- These shootings, and the consequent deaths and
injury, were perpetrated by members of the Burger Bar Crew in revenge for the
death of Yohanne Martin. The female victims were not the intended targets of
the attack. Unhappily they just happened to be in the wrong place at the wrong
time, victims of gang warfare on the streets of Birmingham.
General background – Gun Crime
- These cases are not untypical. There is compelling
evidence of an alarming increase in gun-related crime (see Crime in England
and Wales 2003/2004: Supplementary Volume 1; Homicide and gun crime, published
in January 2005). In an earlier case which we were asked to consider in
argument, R v Bola, unreported, 18 June 2003, Hughes J summarised the evidence
then before him in a case where a woman was summarily executed in a drug
related feud.
"Since April 2002 there have been no less than thirty seven
people injured on the streets of Nottingham in shooting incidents. Not
domestic incidents, on the streets. Three of them have been fatalities…..
The fear of gun crime has an adverse effect on the public who live in the
areas of Nottingham where such things occur and particularly has had a
considerable impact on the ability of the police to investigate crime. He
says, and I have absolutely no reason to doubt, indeed I am confident that
he is right that the experience of the police is that after an incident of
this kind witnesses are frequently content to come confidentially to the
investigators to tell them what they know, what they saw, to give them leads
and help about what the background may be and sometimes to name names, but
that such witnesses are to a very large extent frightened to be identified
as co-operating with the police and unwell, as a result, to give evidence.
They fear similar incidents, and they fear retribution, either from those
whom they accuse, or, more generally, from those who take the stance at
co-operation with the authorities is anathema…the evidence…is entirely
consonant with the experience of anybody who has practiced in the criminal
courts in the last few years. It describes a situation which all of us know
obtains not even or mainly in Nottingham but in several major cities in
England….. "
These observations are entirely consistent with the judicial experience of
each member of the court.
- In the Davis appeal there is undisputed evidence
from a detective officer who has specialised in murder investigations for the
last seven years, and in particular, gun related violence. He said:
"Most people opt not to co-operate and do not get involved.
Doors are not opened, arranged meetings result in a witness not turning up,
telephone messages go unanswered and messages left at home addresses/work,
although discrete are ignored. This is not a problem that exists on an
occasional basis…..it is a problem that exists in practically every
investigation in one way or another. Such problems exist on a daily basis. I
have spoken to witnesses about a reluctance to give evidence. The common
factor between all of them is fear.
They are in fear of their lives and that of their families and
friends. There is a very real danger to such persons of death or serious
injury, either to prevent them from giving evidence, or to punish them for
giving evidence and to send a warning to those who may be thinking of
assisting the police. This risk I know and the witnesses know, is not
necessarily at the hands of the defendants themselves, but at the hands of
the associates of the defendant. If the defendant is in custody, it is often
the associates who are the physical threat.
In many but not all cases, the witness knows of the defendant
and their associates. They know they have easy access to firearms and the
"ease" with which they are prepared to use them."
- In summary, quite apart from the ghastly
callousness involved in the use of firearms to kill, and the devastation
suffered by the families of the deceased, it is not an exaggeration to point
out that, whether they are aware of it or not, these gun carrying criminals
are challenging the rule of law itself. One common feature of both these
cases, and many others like them, is the absence of any or any significant
attempt at concealment. People are gunned down in busy crowded areas. Although
the offences are witnessed, those who use their guns expect to escape justice.
They anticipate that the guns which have been used to kill will also serve to
silence, blind and deafen witnesses. Without witnesses, justices cannot be
done.
- Dealing with it generally, there are in principle,
two ways to address these problems. The first is a witness protection
programme. However in reality, and certainly for the individual of good
character, with established roots, this kind of programme is unacceptable. It
requires a complete change of identity, and home, and work, not only for the
witness himself or herself, but for his family, and a likely permanent
separation between them, and other members of their extended family, and a
subsequent life which is dominated by the need for continued security, and
constant supervision of that security by police officers. This process is
grossly invasive of the right of the witness and his family to private and
family life. It is likely to be appropriate when the identity of the witness
is already known to the defendant, and may be suitable for the professional
criminal who has decided, for reasons of his own, to give evidence against his
former colleagues and who is treated as a "supergrass". The alternative to the
witness protection programme is for appropriate steps to protect and reassure
the witness about the process leading to and the giving of evidence. This
includes voice modulation, and screening, and other special measures, and
witness anonymity. It is this last feature of possible steps to protect
witnesses, and their lives and the lives of their families, that is engaged in
these appeals.
- The administration of protective arrangements of
this kind is not unduly problematic in itself. The difficulty arises from the
potential conflict between them and the over-arching principle of the common
law, once memorably described by Lord Bingham of Cornhill CJ as the
"birthright" of every British citizen, the right to a fair trial. The
difficulties are at their most acute in cases like Davis, when there would be
no point in a trial, just because without the evidence of anonymous witnesses
there would be insufficient evidence on which to found a safe conviction.
Inherent jurisdiction
- The Court undoubtedly possesses an inherent
jurisdiction at common law to control its own proceedings, if necessary by
adapting and developing its existing processes, as Lord Morris explained in
Connelly v DPP [1064] 2 AC 1254 at 1301 "to defeat any attempted
thwarting of its process ". (see also Taylor v Attorney General [1975]
2 NILR 675, R v Murphy [1990] NILR 306 and R v Accused [1992] 1
NILR 257).
- The principle provided the basis for some earlier
changes in the criminal process which have become familiar, but which were
once regarded as unusual. Nowadays, for example, it is commonly ordered that
the identity of informants should not be disclosed to the defendant, lest
"sources of information would dry up" D v NSPCC [1978] AC 171 at 218.
Again, the practice of screening vulnerable witnesses from the defendant
developed during the 1980s. Thus in R v X, Y and Z (1990) 91 CAR 36
this court upheld the decision of the Common Sergeant, sitting at the Central
Criminal Court, that screens should be erected to enable children who had been
treated indecently to give evidence screened from the defendant. The judge was
required to see that
" the system operates fairly; fairly not only to the defendant,
but also to the prosecution and also to the witnesses. Sometimes he has to
make decisions as to where the balance of fairness lies…. We do not need
authority to confirm us in the view that what the judge did here in his
discretion was a perfectly proper, and indeed a laudable attempt to see that
this was a fair trial to all, the defendants, the Crown, and indeed the
witnesses….."
- Some, but not all of the steps identified by
developing common law principles, have now found their way into statute. Thus,
the Youth Justice and Criminal Evidence Act 1999 (ss 16-33) makes provision
for a series of special measures. These include screening the witness from the
accused, witnesses giving evidence by live link, the provision of aids to
communication for an incapacitated witness, and a greater degree of "privacy"
in what remains a public hearing, to be applied in sexual cases, or where
there is a fear that the witness may be intimidated. These provisions, which
nevertheless permit cross-examination of the witness, add to, without
detracting from common law principles.
Statements read as evidence
- Ss 23 – 26 of the Criminal Justice Act 1988
created new exceptions to the hearsay rule. By Section 23 (1) a statement by a
person in a document became admissible as evidence of any fact of which direct
oral evidence by him would be admissible, provided the maker of the statement
is unable to attend court, because among other reasons, he is dead or unfit to
attend, or because, having made a statement, he is unable to give evidence
through fear. Where such evidence is admitted, of course, there is no scope
for cross-examination. That said, however, safeguards for the defendant are
provided in schedule 2 of the Act, which it is unnecessary to detail, but
which must be considered in the context of the disclosure obligations on the
prosecution. The present purposes we need not address the subsequent statutory
provisions, or the replacement of the provisions of sections 23-26 of the 1988
Act by sections 116 and 117 of the Criminal Justice Act 2003.
- In Scott and anor v R: Barnes and others v
R (1989) 89 CAR 153 the Privy Council was faced with decisions of the
Court of Appeal of Jamaica, dismissing appeals against convictions for capital
murder. In Scott, a special constable was shot with his own revolver in a bar,
and subsequently died of his wounds. The only evidence identifying Scott and
his co-accused, Walters, was contained in the deposition of a witness who had
died before trial. In Barnes and others the deceased was shot after stopping
his van and his money was stolen. Three defendants were charged with his
murder. The only evidence identifying them was given by a witness, who gave
evidence at the preliminary inquiry, but who was murdered before the trial. In
each case, the evidence of the missing witness was read as his evidence. In
the Privy Council, Lord Griffiths giving the judgment of the Board in effect
summarised the common law. He underlined the discretion of the judge to
exclude such evidence. However he pointed out:
" If the courts are too ready to exclude the deposition of a
deceased witness it may well place the lives of witnesses at risk
particularly in a case where only one witness has been courageous enough to
give evidence against the accused or only one witness has had the
opportunity to identify the accused".
- Lord Griffiths continued by indicating a number of
precautions which could be taken, adding:
"no rules can usefully be laid down to control the detail to
which a judge should descend in the individual case…. This much however
can be said that neither the inability to cross examine, nor the fact that
the deposition contains the only evidence against the accused, nor the
fact that identification evidence will of itself be sufficient to justify
the exercise of the discretion."
At common law this approach is unremarkable. In R v Dragic (1996) 2
CAR 232 Lord Taylor CJ, dealing with a case in which a witness was too ill to
give oral evidence, observed:
"The fact that there is no ability to cross-examine, that the
witness who is absent is the only evidence against the accused and that his
evidence is identification evidence is not sufficient to render the
admission of written evidence from that witness contrary to the interests of
justice or unfair to the defendant per se. What matters in our judgment, is
the content of the statement and the circumstances of the particular
case…."
So Scott, and Dragic provide examples of cases where
notwithstanding the clear disadvantages faced by the defendant, evidence of
critical prosecution witnesses was adduced in statement form.
- The deployment of such evidence without the
opportunity of cross-examination has recently been addressed in the context of
the jurisprudence of the European Court of Human Rights in R v Sellick
[2005] 1 WLR 327 and R v Al Khawaja [2006] 1 WLR 1078.
- The express language of article 6 (3)(d) of the
Convention provides that:
"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…. "
Nevertheless in Sellick, exercising his powers under sections 23 and
26 of the Criminal Justice Act 1988, and subject to section 28 and schedule 2,
the judge gave leave for the written statements of four witnesses for the
prosecution to be read to the jury as their evidence. The conviction was
challenged on the basis that the order deprived the defendants of an adequate
opportunity to challenge their evidence. As the judgment recalls, reliance was
placed on a decision of the European Court in Luca v Italy (2001) 36 EHRR 807 where the court observed:
" ….it may prove necessary in certain circumstances to refer to
depositions made during the investigative stage….if the defendant has been
given an adequate and proper opportunity to challenge the depositions,
either when made or at a later stage, their admission in evidence will not
in itself contravene article 6(1) and (3)(d). The corollary of that,
however, is that where a conviction is based solely or to a decisive degree
based on deposition that had been made by a person whom the accused had had
no opportunity to examine or have examined, whether during the investigation
or at the trial, the rights of the defence are restricted to an extent that
is incompatible with the guarantees provided by article 6."
One of the main submissions in Sellick was that the statements were indeed
the decisive or sole evidence against the appellants. Accordingly, permission
to read the statements should not have been given. Save that it arises in the
context of anonymous witnesses rather than the reading of a witness statement,
this is the essential argument for the present appellants.
- In the course of a detailed analysis of eight
decisions of the European Court, Waller LJ commented,
"If a defendant, through fear, keeps a witness away from an
English trial, then it is, as it would seem to us, the defendant who is
depriving himself or herself of the right and the only right that the
defendant has to examine that witness. How, we ask rhetorically, can it be
said to be an infringement of the defendant's article 6 rights for him to
deprive himself of that opportunity?...the question whether article 6 has
been infringed is very fact sensitive. Despite that fact – sensitivity,
certain general principles have been stated from time to time…there is,
however, no case as far we know where the Strasbourg court has actually had
to deal with a key witness being kept away by fear by a defendant from a
trial in the English jurisdiction. "
- After examining the authorities, Waller LJ
suggested, at paragraph 50, that four propositions could be discerned. After
summarising them, he turned to the question whether there was a fifth
proposition "to the effect that where the circumstances would otherwise
justify the reading of the statement where the defendant has had no
opportunity to question the witness at any stage of the trial process, the
statement must not be allowed to be read if it is the sole or decisive
evidence against the defendant". He reminded himself of the passage in Luca
v Italy, and other authorities in the European Court, which lent support
to the proposition that if witness statements were read, then if they were the
sole or decisive evidence, a breach of article 6 of the Convention would be
established. However, he concluded on examination that although the Court
undoubtedly had "extreme circumstances in mind", neither in Luca v
Italy, nor any of the other authorities, was the European Court directly
engaged with a case where the witness "whose identity was well known to the
defendant was being kept away by fear".
- The court posed itself this question:
"If the European court were faced with the case of an identified
witness, well known to a defendant, who was the sole witness of a murder,
where the national court could be sure that that witness had been kept away
by the defendant, or by persons acting for him, is it conceivable that it
would hold that there were no "counter-balancing" measure the court could
take which allow that statement to be read?"
Waller LJ addressed the problem, first, on the basis that the Court was
sure that the defendant "denied himself the opportunity of examining the
witnesses." If so, he could not complain of an infringement of article 6(3)(d)
provided precautions were taken to ensure the fairness of the trial process.
Even if the situation were not quite as clearly established to the court's
satisfaction, he suggested,
"In our view, having regard to the rights of victims, their
families, and the safety of the public in general, it still cannot be right
for there to be some absolute rule that, where compelling evidence is the
sole or decisive evidence, an admission in evidence of a statement must then
automatically lead to a defendant's article 6 rights being infringed. That
would lead to a situation in which the more successful the intimidation of
the witnesses, the stronger the argument becomes that the statements cannot
be read. If the decisive witnesses can be "got at" the case must collapse.
The more subtle and less easily established intimidation provides defendants
with the opportunity of excluding the most material evidence against them.
Such an absolute rule cannot have been intended by the European court in
Strasbourg. "
- In R v Al Khawaja, the sole witness to an
indecent assault died, after she had made a statement for use by the
prosecution. Without her statement, the prosecution would have been obliged to
abandon the allegation of indecent assault on her. The statement was admitted
in evidence and the appellant was convicted. The argument in the appeal relied
strongly on Luca v Italy. The appeal was dismissed. After examining the
decision in Sellick, the court concluded that there was a strong public
interest in the admission of the statement made by the witness prior to her
death. Although the public interest could not be "allowed to over-ride the
requirement that the defendant should have a fair trial", the court did not
consider that the decisions of the European Court required the inevitable
conclusion that in the circumstances which obtained in Al Khawaja, the
trial was unfair.
"The provision in article 6(3)(d) that a person charged shall be
able to have the witness against him examined is one specific aspect of a
fair trial: but if the opportunity is not provided, the question is "whether
the proceedings as a whole, including the way in which the evidence was
taken, were fair: see Doorson v The Netherlands…. "
Anonymity of witnesses
- We can now come to the specific problem which
arises in the present appeals, non-disclosure of the true identity of
witnesses, together with voice modulation and screens, usually summarised as
witness anonymity. The disadvantages for the defendant are not identical to
the disadvantages created when cross-examination is not available. We
gratefully adopt as illustrative of common law principle, as well as
Strasbourg jurisprudence, the analysis in Kostovski v Netherlands
(1989) 12 EHRR 434:
"If the defence is unaware of the identity of the person it
seeks to question, it may be deprived of the very particulars enabling it to
demonstrate that he or she is prejudiced, hostile or unreliable. A testimony
or other dec1aration inculpating an accused may well be designedly
untruthful or simply erroneous and the defence will scarcely be able to
bring this to light if it lacks the information permitting it to test the
author's reliability or cast doubt on his credibility. The dangers inherent
in such a situation are obvious".
- These disadvantages are immediately ameliorated
provided the defendant retains, as he normally does, the ability of his
counsel to pursue a substantial degree of cross-examination of the witnesses
before the jury. This familiar safeguard, directly reflected in article
6(3)(d) of the Convention, is reinforced by another with which we are equally
familiar in this jurisdiction, but which perhaps needs emphasis, the proper
discharge of the prosecution's obligations in relation to disclosure of
material which may assist the defence or damage the prosecution case, and in
particular which may serve to undermine the creditworthiness of the anonymous
witness. We simply add, for completeness, that in broad terms the same
considerations would apply to witnesses called by or on behalf of the
defendant. In the Davis appeal, we heard evidence from an anonymous witness,
described as "Tony Pink", not his real name, called on behalf of the
appellant, not the Crown. As we shall describe, there were a number of
profoundly unsatisfactory aspects of his evidence, but the basis on which he
asked to be allowed to give his evidence anonymously was his own genuine fear
of the consequences if his identity became known.
- There is clear jurisdiction at common law to admit
incriminating evidence given against the defendant by anonymous witnesses.
(see R v Watford Magistrates Court ex parte Lenman [1993] CLR 388, R
v Taylor and Crabb, unreported, 22nd July 1994, and R v
Jack, 7th April 1998, unreported). In Al Fawwaz v Governor
of Brixton Prison [2002] 1 AC 556,
in extradition proceedings, the decision of the examining magistrate to
receive evidence of two anonymous witnesses in support of the allegation of
terrorism was upheld in the House of Lords. In R (D) v Camberwell
Green Court [2005] 1 WLR 393,
in the context of section 21 of the Youth Justice and Criminal Evidence Act
1991, the principle was again affirmed in the House of Lords. It may therefore
be wondered why we should examine the jurisprudence of the European Court of
Human Rights, on which so much of the argument on behalf of the appellants
depended. The point, simply expressed, is that to a significant extent in the
Davis appeal, but not on close analysis to any extent at all in the Ellis
appeal, the conviction was based on evidence given by anonymous witnesses.
The jurisprudence of the European Court of
Justice
- We begin by noting the argument for Al
Fawwaz, presented by Mr Edward Fitzgerald QC. Basing himself on article 6
of the European Convention of Human Rights, he contended that it was
"fundamentally unfair" for the evidence of an anonymous witness to be
accepted. He pointed out that the subject of an extradition request "is
entitled to challenge the credibility of a prosecution witness before the
magistrate", adding, that in the United States of America, his anonymity would
not be preserved at trial. We understand this to follow from the Sixth
Amendment to the United States Constitution which, in 1791, provided the
defendant in a criminal trial with the right "to be confronted with the
witnesses against him." Mr Fitzgerald also argued that reliance on "anonymous
statements as sufficient evidence to found a conviction" violated article 6
(3)(d) of the European Convention. He drew attention to and relied on
Kostovski v The Netherlands. He also submitted that there was a breach
of the principle of fairness which applied by virtue of article 5(4) of the
Convention. In further argument the attention of the House of Lords was also
directed to Doorson v The Netherlands (1996) 22 EHRR 330 and
Fitt v United Kingdom (2000) 30 EHRR 480.
- In the context of witness anonymity three rights
protected by the Convention are engaged. Article 2 and article 8 are closely
related to the rights, among others, of witnesses, and article 6 is
specifically concerned with the protection of the defendant's right to a fair
trial. Article 2 provides that the right to life "shall be protected by law",
and article 8 requires respect to be paid to the private and family life of
every individual.
- The starting point is article 2 which imposes a
positive obligation on the state to take appropriate steps to safeguard the
lives of those within its jurisdiction. In Osman v United Kingdom
[1999] 1 FLR 3, the court suggested that the authorities should "do all that
could reasonably be expected of them to avoid a real and immediate risk to
life of which they have or ought to have knowledge. This is a question which
can only be answered in the light of all the circumstances of any particular
case". When a witness's fear for his own life or for that of a member of his
family is justified, the state's obligation to take positive steps to
safeguard them is engaged. Indeed, the proper administration of justice
requires that witnesses should not be exposed to danger or retribution for
coming forward, in accordance with their duties as citizens, to offer and give
evidence. When they do, the right to respect for private and family life under
article 8 is also engaged. One available protective measure is witness
anonymity, supported by voice modulation and screens, which, provided the
witness can be examined by or on behalf of the defendant, is not prohibited by
any express words in article 6.
- As far as we can discover, the only case which has
reached the Commission from the United Kingdom, on what we can fairly describe
as the anonymity issue (X v UK 15 EHRR CD 113) was dismissed as
manifestly ill founded and is of no assistance. In the remaining "anonymity"
cases, arising from proceedings in civil law jurisdictions as far as we can
discern, statements were obtained from anonymous witnesses who were not
examined by or on behalf of the person charged at the hearing at which guilt
or innocence was determined; and sometimes, indeed, at none of the stages in
the proceedings. In Kostovski v Netherlands the applicant was
convicted of armed robbery after a trial before the District Court on the
basis of the evidence of two anonymous witnesses who provided statements to
the police which incriminated him. One confirmed the truth of his statement
before an examining magistrate. Under Dutch law, only that statement was
evidence in the case. Neither the applicant nor his legal advisors was present
when the statements were made. Neither witness was called at the trial.
Evidence was given by the examining magistrates, and one of the police
officers who had interviewed the witnesses, to the effect that they had
created a favourable impression upon them. Dutch procedure did not permit the
defence to ask them questions designed to test the credibility of the
anonymous witnesses. It was conceded that the applicant's conviction was based
"to a decisive extent" on the anonymous statements (para 44).
- The Court observed that "as a rule these rights
(i.e. the rights under article 6) require that an accused should be given an
adequate and proper opportunity to challenge and question a witness against
him, either at the time the witness was making his statement or at some later
stage of the proceedings". The observation plainly admits of exceptions to the
express rights provided in article 6, but as the witnesses could not at any
stage be directly questioned by the applicant or on his behalf, their
anonymity "compounded the difficulties facing the applicant". In the
circumstances, the Court concluded that the applicant had not received a fair
trial.
- In Windisch v Austria (1990) 13 EHRR 281,
the applicant was convicted of burglary and sentenced to 3 years imprisonment
by the Innsbruck Regional Court. The evidence against him consisted largely of
two statements made by anonymous witnesses to the police. The Court heard
evidence from the police officers, but not from the witnesses. Despite
repeated requests, neither the applicant nor his advocate was allowed an
opportunity to examine them (para 27). The Court held that the applicant had
not received a fair trial.
- Ludi v Switzerland (1993) 15 EHRR 173, was
very similar. The applicant was convicted of a drug trafficking offence and
sentenced to 3 years imprisonment by the Laufen District Court. The evidence
against him consisted mainly of a report by an anonymous undercover agent and
transcripts of telephone intercepts of calls between the agent and the
applicant. Neither the applicant nor his advocates were given the opportunity
directly to question the agent. They wished to demonstrate the extent to which
the applicant had been induced or entrapped to commit the offence. The Court
held that the rights of the defence were restricted to such an extent that the
applicant did not have a fair trial. Significantly, it observed at para 49,
"Yet it would have been possible to do this in a way which took
into account the legitimate interest of the police authorities in a drug
trafficking case in preserving the anonymity of their agent (our
emphasis), so that they could protect him and also make use of him again in
the future".
In short, in each of these three decision, the trial was unfair, not
because important witnesses gave evidence anonymously, but because in addition
to giving their evidence anonymously, the entitlement to cross-examine was
denied. Of itself, it was not suggested that the preservation of witness
anonymity made the trial unfair.
- In Doorson v Netherlands (1996) 22 EHRR 330, the need to take into account the right to life of the witness under
article 2 and to family and private life under article 8, when assessing the
fairness of a trial under article 6 was expressly taken into account. In
complex proceedings before the Amsterdam Regional and Appellate Courts, the
applicant was convicted of drug trafficking and sentenced to 15 months
imprisonment, and his appeal against conviction was rejected. His conviction
was based in significant part upon the statements of two anonymous witnesses,
who were questioned by the investigating judge, in the absence of the
applicant's advocate. They were not available to be questioned at the trial.
They were questioned by the applicant's advocate at the appeal hearing, which
rectified the lack of opportunity to question them earlier. The Court
observed:
"It is true that article 6 does not explicitly require the
interests of witnesses in general, and those of victims called upon to
testify in particular, to be taken into consideration. However, their life,
liberty or security of person may be at stake, as may interests coming
generally within the ambit of Article 8 of the Convention. Such interests of
witnesses and victims are in principle protected by other, substantive
provisions of the Convention, which imply that contracting States should
organise their criminal proceedings in such a way that those interests are
not unjustifiably imperilled. Against this background, principles of fair
trial also require that in appropriate cases the interests of the defence
are balanced against those of witnesses or victims called upon to testify".
(para 70)
- The Court approved as "a relevant reason to allow
them anonymity" the need to obtain evidence from them, while at the same time
protecting them against the possibility of reprisals. Although there was no
evidence that the applicant himself had threatened the witnesses, the Court
stated that "regard must be had to the fact, as established by the domestic
courts and not contested by the applicant, that drug dealers frequently
resorted to threats or actual violence against persons who gave evidence
against them". The Court added:
"The maintenance of the anonymity of the witnesses Y15 and Y16
presented the defence with difficulties which criminal proceedings should
not normally involve. Never the less, no violation of article 6 (1) taken
together with article 6 (3)(d) of the Convention can be found if it is
established that the handicaps under which the defence laboured were
sufficiently counter balanced by the procedures followed by the judicial
authorities". (para 72)
The Court decided that the questioning of the anonymous witnesses at the
appeal stage by counsel was a sufficient "counter balancing" procedure.
- Mr Malcolm Swift QC, counsel for Davis, and Mr
Nigel Rumfitt QC, on behalf of Ellis, underlined the passage at para 76,
echoing Luca v Italy that,
"Finally, it should be recalled that, even when "counter
balancing" procedures are found to compensate sufficiently the handicaps
under which the defence labours, a conviction should not be based either
solely or to a decisive extent on anonymous statements".
- In this part of the judgment, the language used by
the Court (at least in its English version) is ambiguous: "Anonymous
statements" may mean statements made otherwise than in evidence at trial; or
it may extend to anonymous evidence given at trial. The fact that the Court
contemplated the preservation of anonymity in Ludi v Switzerland
suggests that the latter was not mind. We shall return to this point shortly.
For the moment, we record that the essential question for the court was
whether the proceedings were unfair. Notwithstanding the significance to the
conviction of the evidence of the two anonymous witnesses, in Doorson
the conclusion was that they were not.
- In Van Mechelen v Netherlands (1997) 25 EHRR 647 the applicants were convicted of attempted manslaughter and robbery
and sentenced to 10 years imprisonment by the s-Hertogenbosch Regional Court.
The only evidence positively identifying the applicants as perpetrators of the
crime was provided by statements of anonymous police officers, who were never
questioned by or on behalf of the applicants before their conviction. On
appeal the Court ordered that an opportunity should be given for the
applicant's lawyers to question the police officers under the supervision of
an investigating judge. The investigating Judge, the witness and a registrar
were present in one room, the defendants, their lawyers and the Advocate
General in another. The two were connected by a voice-only link. Questions
were asked and answered through this link. The defence were unaware of the
identity of the police witnesses, and were unable directly to test their
reliability.
- The Court observed that "the balancing of the
interests of the defence against arguments in favour of maintaining the
anonymity of witnesses raises special problems if the witnesses in question
are members of the police force of the State". It noted that their interests,
and those of their families, deserved protection under the Convention, adding
that "it must be recognised that their position is to some extent different
from that of a disinterested witness or a victim", because they owe a general
duty of obedience to the State's executive authorities and have links with the
prosecution and can expect that their duties will involve giving evidence in
open court. That said, the court acknowledged that, provided the rights of the
defence were respected, preservation of the anonymity of an undercover agent
may be necessary for his own and his family's protection, and so as not to
impair his usefulness for future operations. "Any measures restricting the
rights of the defence should be strictly necessary. If a less restrictive
measure can suffice then that measure should be applied". The Court stated:
"It has not been explained to the Court's satisfaction why it
was necessary to resort to such extreme limitations on the right of the
accused to have the evidence against them given in their presence, or why
less far reaching measures were not considered". (para 60)
The measures identified by the court included disguise and the prevention
of eye contact, both of which would have improved the prospect of successful
concealment of the identity of the witnesses.
- The Court was unpersuaded that sufficient effort
had been made to assess the threat of reprisals against the police officers or
their families. In those circumstances, the Court held that the right to a
fair trial under article 6 had been infringed. The court also "recalled"……
"that a conviction should not be based either solely or to a decisive extent
on anonymous statements", commenting, in a passage, understandably relied on
here by the appellants,
"Moreover, the only evidence relied on by the Court of Appeal
which provided positive identification of the applicants as the perpetrators
of the crimes were the statements of the anonymous police officers. That
being so the conviction of the applicants was based "to a decisive extent"
on these anonymous statements". (para 63)
Again, in the English text, the reference to "statements" is ambiguous. In
the French text, it is not. In first sentence, the word used is "déclarations"
In the second sentence, it is "dépositions". Taken together with the
suggestion that the protective measures went much further than necessary and
that steps could have been taken to conceal the identities of the witnesses,
it appears that the objectionable feature of the proceedings was not anonymity
as such, but reliance on inadequately tested depositions.
- In Visser v Netherlands 1 4/2/O2 the
applicant was convicted, in April 1991, on appeal, of a kidnapping committed
in 1988 (having been acquitted at the Utrecht Regional Court in June 1989).
The foundation of his conviction was an identification made to police officers
by an anonymous witness, one of a number of people who had made enquiries
about the whereabouts of the victim before the kidnapping. At that stage the
witness had not been examined before the court. On further appeal to the
Supreme Court, that Court directed that the witness be heard by an
investigating judge. That was done in September 1993. The witness reaffirmed
his wish to remain anonymous. The judge and the witness were in one room.
Counsel for the applicant was permitted to submit questions, from another
room, in writing to him, and to submit further questions when the witness's
statement had been made. At no stage did he have the opportunity to question
him directly or to observe his demeanour. In reliance on this evidence, the
Court of Appeal convicted him afresh.
- In 2002 the European Court held that the
applicant's article 6 rights had been infringed. It reminded itself of "its
rulings in a series of cases concerning reliance on witness testimony which
was not adduced before the Trial Court, that article 6(3)(d) only required the
possibility to cross examine such witnesses in situations where this testimony
played a main or decisive role in securing the conviction". The reason for
holding that the applicant's rights were violated was that the investigating
judge had not assessed the reasonableness of the witness's fear in 1988 or in
1993. No adverse finding based on the applicant's claim that his conviction
was based to a decisive extent on "the anonymous testimony" was made.
- We note Birutis v Lithuania 28 June 2002,
when the Court dealt with a now familiar problem: the conviction of an
applicant on the basis of anonymous statements which were not tested by
examination at trial. Although the Court criticised the means adopted by the
authorities "in handling the anonymous evidence", the decision provides no
assistance in determining the circumstances in which the evidence of an
anonymous witness, given in person at trial, may be relied on.
- In PS v Germany 36EHRR 61 the applicant was
convicted of sexual abuse of a child. The evidence against him consisted of a
statement made by the child's mother about what her daughter had told her, and
evidence by a police officer who had questioned the daughter shortly after the
offence. The daughter was not available to be questioned by the Court or on
behalf of the defendant. On appeal, the Regional Court ordered a psychological
assessment of the daughter's credibility. The expert reported that her
statements were credible. Her parents refused to bring her to the Appeal Court
for questioning. The appeal was dismissed.
- The European Court noted that these procedures
could not "be considered as having enabled the defence to challenge the
evidence of (the daughter), reported in Court by third persons, one of them a
close relative" and accordingly held that there had been a violation of
article 6.
- The Court said, at paragraphs 21-24,
"All the evidence must normally be produced at a public hearing,
in the presence of the accused, with a view to adversarial argument. There
are exceptions to this principle, but they must not infringe the rights of
the defence. As a general rule, the accused must be given an adequate and
proper opportunity to challenge and question a witness against him, either
when he makes his statement or at a later stage".
In passing, we observe that this was a plain acknowledgement of permissible
exceptions to the entitlements under article 6 (3)(d), and that the absence of
an opportunity to cross-examine an incriminating witness would not, of itself,
constitute an unfair trial. The court continued,
"In appropriate cases, principles of fair trial require that the
interests of the defence are balanced against those of witnesses or victims
called upon to testify, in particular where life, liberty or security of a
person are at stake, or interests coming generally within the ambit of
article 8 of the Convention. However only such measures restricting the
rights of the defence which are strictly necessary are permissible under
article 6. Moreover in order to ensure that the accused receives a fair
trial, any difficulties caused to the defence by a limitation on its rights
must be sufficiently counter balanced by the procedures followed by the
judicial authorities.
Where a conviction is based solely or to a decisive degree on
depositions that have been made by a person whom the accused has had no
opportunity to examine or have examined, whether during the investigation or
at the trial, the rights of the defence are restricted to an extent that is
incompatible with the guarantees provided by article 6".
- The last paragraph appears to clarify the
ambiguity inherent in the use of the phrase "anonymous statements" in some of
the earlier decisions. The specific concern was the absence of a proper
opportunity for the defence to examine, or have examined, the witness who made
an incriminating, and effectively decisive, deposition, rather than the fact
that the witness giving evidence critical to the conviction remained
anonymous.
- The Court used less restrictive language in its
most recent reported (but not as yet final) decision, Krasniki v Czech
Republic 28 February 2006. The applicant was convicted of retail drug
trafficking on the evidence of two anonymous witnesses, "Jan" and "Jana". Both
were questioned during pre-trial investigations by the police and a defence
lawyer. At the trial before the District Court in Teplice, "Jan" was
questioned by the presiding judge, outside the court room and out of sight of
the applicant and his counsel. They were only able to put questions through
the presiding judge. "Jana" could not be found and her statement was read. The
applicant was convicted. His conviction was based solely on the evidence of
the anonymous witnesses. The Court reminded itself of its case law (Doorson
and Van Mechelen). It could not determine from the case file how the
investigating officer or the trial judge assessed the reasonableness of the
personal fear of the witnesses vis a vis the applicant and that, in effect,
meant that the protective measures were not apparently justified. The
conviction was based solely or to a decisive extent on the "anonymous
testimonies", but as we have seen, without direct cross-examination on the
defendant's behalf of one crucial witness, and no cross-examination at all of
the second crucial witness.
- This unavoidably lengthy review of the decided
cases underlines the need to identify precisely the "evidence" under
consideration by the European Court when the issue of anonymous witnesses was
being addressed. The "evidence" may be "depositions", a seemingly clear
reference to out of court statements, "statements" and "declarations", words
which are potentially ambiguous, and "testimonies", apt to describe evidence
actually given at a trial. It is also noteworthy however, that whenever the
issues of witness anonymity arise, the European Court refers back to its two
seminal decisions, Doorson and Van Mechelen. Later cases
appear to be no more than an application of established principles.
- The Court accepted that the Convention rights of
witnesses, included, where necessary, the preservation of their anonymity, and
in our judgment decided that the concealment of the identity of witnesses is
not inconsistent with the right to a fair trial, provided, first, the need for
anonymity is clearly established, second, that cross-examination of the
witness by an advocate for the defendant is permitted, and finally, the
ultimate test, that the trial should be fair. In agreement with the decision
in R v Sellick, but applying it to the problem of anonymous witnesses
in justifiable and genuine fear, whose testimony can be tested in the
adversarial process, we do not accept that the jurisprudence of the Court
leads to the conclusion that the trial will inevitably be considered unfair,
and the conviction unsafe, simply because the evidence of the anonymous
witnesses may be decisive to the outcome. R v Sellick addressed the
problem raised by the deprivation of an express right provided by article 6.
That does not apply in the context of anonymous witnesses whose evidence may
be tested by examination at trial. It may be, but we need not decide, more
troublesome to permit a conviction to depend to a decisive extent on evidence
admitted in direct contradiction of what would otherwise be an express
Convention entitlement than it would if the admission of the evidence did not
contravene any such right, but in the final analysis, any discussion about
that distinction may be less important than a close examination whether the
trial overall was a fair one. That, as all the jurisprudence demonstrates, is
the absolute fundamental (Doorson v Netherlands), and the question
whether, looked at overall the trial is unfair is, as the detailed factual
judgments from the Court show, fact specific.
England and Wales
- We can now return to the decision of the House of
Lords in Al Fawwaz which, as we remind ourselves, had the advantage of
argument in which attention was drawn to the decision of the European Court in
Kostovski, and Doorson.
- Lord Slynn of Hanley observed that
" It is obvious that at trial …. The court should be cautious
about admitting anonymous statements or affidavits. But that there is
jurisdiction to admit them is clear. On the basis of what was said in R v
Taylor (Gary) The Times 17 August 1994, and by the European Court of Human
Rights in Doorson v The Netherlands (1996) 22 EHRR 330, both for the
purposes of the Convention and the purposes of considering whether the legal
proceedings have been fairly conducted at common law, there may have to be a
balance of the interests of the defence and of the protection of witnesses.
It seems to me that the magistrates and the Divisional Court considered this
matter carefully and were satisfied that the protection of the witness….
made it necessary in all the circumstances to preserve his anonymity and
that the interests of society in prosecuting required that the evidence be
taken into account…."
- Lord Hutton examined the judgment of this court in
R v Taylor (Gary), and considered R v X and ex p Lenman.
He suggested that there was a degree of inconsistency between the analysis of
principle in R v Taylor (Gary) and the judgments in R v X
and ex p Lenman, pointing out that notwithstanding the importance to
the process of the accused knowing the identity of his accuser, there were
cases in which the balance of fairness might come down in favour of the
prosecution "notwithstanding that the circumstances could not be described as
rare and exceptional".
- Lord Rodger of Earlsferry directly addressed the
observations of the European Court in Doorson, and concluded that the
use of the evidence of anonymous witnesses was not, under the jurisprudence of
the European Court itself, invariably to be treated as incompatible with
Convention rights. He also drew attention to Fitt v United Kingdom
(2000) 30 EHRR 480, where it was pointed out that :
" In any criminal proceedings there may be competing interests,
such as national security or the need to protect witnesses at risk of
reprisals or keep secret police methods of investigation of crime, which
must be weighed against the rights of the accused (see, for example, the
Doorson v The Netherlands….) In some cases it may be necessary to withhold
certain evidence from the defence so as to preserve the fundamental rights
of another individual or to safeguard an important public interest. However
only such measures restricting the rights of the defence which are strictly
necessary are permissible under Article 6(1) (see Mechelen v The
Netherlands…). Moreover in order to ensure that the accused receives a fair
trial, any difficulties caused to the defence by a limitation on its rights
must be sufficiently counter-balanced by the procedures followed by the
judicial authorities."
- When the House of Lords returned to the issue of
witness anonymity in R(D) v Camberwell Youth Court, in the context of
the statutory provisions which enable child witnesses to give evidence by
video recorded interview and live television link, attention was drawn to
decision of the European Court in Kostovsi, Doorson, van
Mechelen and Visser. After reviewing these and other
authorities, Lord Rodger explained that the distinction in the popular mind
between the British and Continental systems of criminal justice was
sufficiently accurate "to make one anticipate that the introduction of article
6(3) (d) will not have added anything of significance to any requirements of
English law for witnesses to give their evidence in the presence of the
accused. An examination of the case law of the European Court tends to confirm
that much of the impact of article 6(3) (d) has been on the procedures of
Continental systems which previously allowed an accused person to be convicted
on the basis of evidence from witnesses who he had not had an opportunity to
challenge". Thereafter, after considering the process by which the defendant
could challenge and question witnesses giving incriminating evidence against
him, Lord Rodger suggested that the overall impact of the decisions of the
European Court was
"that the defence should have an adequate and proper opportunity
to challenge and question a witness on his statement at some stage. The
requirements of the Convention are satisfied even if that opportunity is
afforded before trial".
Reflecting on the impact of the Sixth Amendment of the Constitution of the
United States, he observed,
"Whatever its merits, this line of thought never gave rise to a
corresponding requirement in English law….. nor has Article 6(3) (d) of the
Convention been interpreting as guaranteeing the accused a right to be in
the same room as the witness giving evidence. What matters, as Kostovski v
The Netherlands shows, is that the defence should have a proper opportunity
to challenge and question the witnesses against the accused…. these
requirements can be satisfied even where, for good reason, the accused is
not physically present at the questioning".
- Baroness Hale underlined that a face to face
confrontation between the defendant and the witnesses against him was not
obligatory, and in the context of anonymous witnesses, she added,
"Even then the Strasbourg Court has accepted that exceptions may
be made, provided that sufficient steps are taken to counter-balance the
handicaps under which the defence laboured and the conviction is not based
solely or decisively on anonymous statements"
In context, this observation appears to reflect the concerns expressed by
the European Court about the dangers of over-reliance on statements by
anonymous witnesses, where the defendant, or his advocate, has no opportunity
for cross examination.
- Thus the House of Lords has now twice addressed
the issue of anonymous witnesses in the light of the decisions of the European
Court. In our view it would be quite unrealistic to consider that the
observations of the House of Lords in Al Fawwaz, arising in the context
of extradition proceedings, and Camberwell Green, in which the use of
"special measures" introduced by statute was under consideration, should, for
the purpose of considering witness anonymity problems arising in the Crown
Court when the statutory "special measures" provisions do not apply, be
treated as obiter dicta.
- The principle of judicial precedence requires us
to apply the reasoning of the House of Lords. (Kay & Others v Lambeth
London Borough Council: Leeds City Council v Price ...2006) 2WLR 570. In
any event, we can detect no conflict between the decisions of the European
Court and the observations of the House of Lords on the issue of witness
anonymity. In our judgment the discretion to permit evidence to be given by
witnesses whose identity may not be known to the defendant is now beyond
question. The potential disadvantages to the defendant require the court to
examine the application for witness anonymity with scrupulous care, to ensure
that it is necessary and that the witness is indeed in genuine and justified
fear of serious consequences if his true identity became known to the
defendant or the defendant's associates. It is in any event elementary that
the court should be alert to potential or actual disadvantages faced by the
defendant in consequence of any anonymity ruling, and ensure that necessary
and appropriate precautions are taken to ensure that the trial itself will be
fair. Provided that appropriate safeguards are applied, and the judge is
satisfied that a fair trial can take place, it may proceed. If not, he should
not permit anonymity. If he does so, and there is a conviction, it is not to
be regarded as unsafe simply because the evidence of anonymous witnesses may
have been decisive.
- Among the safeguards, first, is the decision of
the trial judge whether to exercise his discretion to allow some or all the
witnesses against to the defendant to give their evidence anonymously. If the
only evidence against the defendant consists of wholly unsupported anonymous
witnesses, whose evidence is demonstrably suspect, the judge may decide, as
Hughes J did in R v Bola, that the Crown should not adduce it. Again,
if the decisive evidence comes from an unidentified witness who cannot be
cross-examined (for example, anonymous witnesses whose evidence was admitted
in documentary form only, and who will not be called to give oral testimony),
the judge may decide that the evidence should not be admitted. As we
emphasise, these are issues for judicial decision in case specific situations,
after allowing for the disclosure process, any PII decisions, and the ability
to cross-examine together with the deployment of material helpful to the
defendant in the course of cross-examination, or even when cross-examination
may not be possible. For example, the judge may be satisfied that a wholly
independent, understandably terrified witness, a stranger to the defendant,
and with no possible motive to implicate him, may have made a note of a
crucial car number plate at the scene of the crime, If satisfied that this
witness is indeed independent, but unfit to give live evidence, the judge may
admit his or her evidence, anonymously, and in statement form.
- At the end of the prosecution case, the judge may
decide that it would be unsafe for the evidence of the anonymous witnesses to
be considered further by the jury, or indeed, that the case as a whole should
be withdrawn from their consideration. We are not seeking to formulate a
scheme, merely to identify appropriate safeguards currently in place to ensure
the fairness of the trial. Thereafter, if the case is fit to go to the jury,
when the evidence is concluded, and to enable the jury properly to approach
its task, the judge must give appropriate directions in his summing up,
sufficient to identify the particular disadvantages under which the defence
may have been labouring. (for examples of what may or may not be appropriate,
see R v Sellick and R v Al-Khawaja, referring to R v
McCoy). The judge would probably suggest that the jury should consider
whether there is any independent, supporting evidence, tending to confirm the
credibility of the anonymous witnesses, and the incriminating evidence they
have given. We are not reinstating outdated principles relating to
corroboration, nor implying that such independent evidence is a pre-requisite
to conviction. We are simply reflecting the obvious consideration that
independent evidence consistent with the defendant's guilt would be likely to
increase confidence in the truthfulness and accuracy of incriminating
anonymous witnesses. We should perhaps finally underline that these appeals
themselves demonstrate the effectiveness of the safeguards. As we shall see,
in the context of the Davis appeal, the defendant in a linked trial, Harvey,
was acquitted by the jury after anonymous witnesses gave evidence
incriminating him, and in the Ellis appeal, the cross-examination of the
anonymous witnesses wholly undermined their evidence.
- The role of the Court of Appeal, Criminal
Division
The decision whether to allow witnesses to give evidence anonymously is
made by the trial judge. When coming to his decision, he will usually be
acting in anticipation of the evidence as a whole, and certainly in advance of
the evidence of the proposed anonymous witness. As we have explained, it is
clear that the trial judge is vested with what is described as discretion to
make the order. In truth, he is making a judgment whether, in all the
circumstances of the specific case, some of which will already have been
identified, and some of which have to be anticipated, that the trial process,
viewed as a whole would be fair, and fair to what Lord Steyn described in
Attorney General's Reference (No3 of 1999) [2001] 2 AC 91 at 118 as the
"triangulation of interests……the position of the accused, the victim and his
or her family, and the public". In short, a case specific decision is
required.
- In this constitution we have recently addressed
the principles relating to the exercise of the trial judge's discretion under
section 78 of the Police and Criminal Evidence Act 1984. For reasons connected
with an on-going trial, publication of that judgment as a whole has been
postponed until the conclusion of the trial itself. However, on the basis of
the elementary principle at common law summarised in the "birthright" of the
defendant to a fair trial, and repeated in Article 6 of the European
Convention, we observed
"Trial judges should not admit evidence if notwithstanding the
robust safeguards provided by the trial process itself, the effect of doing
so would produce a trial which could properly be stigmatised at its end as
an unfair trial. If this court were satisfied that the admission of the
evidence would or did produce an unfair trial, the decision to admit it
would not be upheld"
- In short, adapting those observations to the
issues in the present appeals, the first question is whether the court should
interfere with the judgment of the trial judge to allow for witness anonymity.
In most cases, as that involves a balance to be drawn between conflicting
factors in a fact specific situation this court will not interfere with the
judge's decision unless, at the time when he made it, it was plainly wrong.
However, once leave to appeal is given, it may not be sufficient for the court
to dispose of the appeal on the basis that there are no grounds to justify
interfering with a decision made by the judge at the time when he made it.
After conviction, on appeal, this court may conclude that the order for
witness anonymity had the effect of producing what in all the circumstances
was an unfair trial. If so, even if the original decision of the trial judge
would not be open to criticism, the conviction would be unsafe, and it would
be quashed. To highlight this point, we note that the decision of Goldring J
in the Ellis trial to permit witness anonymity was itself the subject of an
unsuccessful appeal. In a constitution presided over by Rose LJ, the Vice
President, this court upheld his decision. We are bound by the decision, and
should not and cannot interfere with the exercise of Goldring J's discretion.
Leave to appeal having been given after conviction, a careful investigation of
the fairness of the trial and the safety of the convictions in the Ellis
appeal is required. That is what has taken place.
- Counsel for the Defendant
These appeals also raised a distinct problem for trial counsel, and the
discharge of their duties to the court and their concurrent duties to their
clients. Quite apart from the assistance of counsel in both appeals, the
General Council of the Bar provided written submissions on the subject for
which we were grateful.
- Having made orders for anonymity, the trial judges
in both cases were content for counsel to be able to see the witness giving
evidence, and to observe their demeanour whilst doing so. However, like
everyone else in court, counsel were bound by the trial judge's anonymity
ruling, and indeed would be in contempt of court if they disobeyed it.
Plainly, if the anonymity of the witness were ordered, it would be wholly
inappropriate for counsel to provide his client with a physical description of
the witness. The effect of doing so would be to dilute, if not altogether
extinguish the effect of the order.
- So far, so obvious. The potential conflict arises
from the delicate nature of the relationship between counsel and their
clients. Again the principles are well understood. Thus in R v Davis,
Johnson and Rowe [1993] 1 WLR 613 in the context of the disclosure of
information imparted to defence counsel in the course of an ex parte
application, Lord Taylor of Gosforth CJ concluded that counsel could not be
required to give an undertaking that he would not reveal to his client or
solicitors any information coming into his possession in the course of the ex
parte hearing.
"It would wholly undermine counsel's relationship with his
client if he were privy to issues in court but could reveal neither
discussion nor even the issues to his client… whatever happens in court with
defending counsel present would, in our view, have to be disclosable to his
clients".
(See also R v Preston [1994] 2 AC 130, and R v Botmeh [2002] 1 WLR 531 )
- In R v H and others [2004] 2 AC 134,
Lord Bingham of Cornhill underlined the critical importance of the nature of
the relationship between client and lawyer, and the need for "the quality of
confidence" between them. This feature was recently emphasised in R v G and
anor [2004] 1 WLR 2932, where Rose LJ identified the inevitable damage to
the relationship between the lawyer "in the know" and the client because
"….in addition to preventing frankness and fettering the free
flow of information between lawyer and client, the order would be likely to
nurture in the client a belief that his lawyers are putting other interests
…above his own; and the client's perception of the relationship is a matter
of importance…. "
- This analysis highlights the critical question,
how to deal with the potential conflict of duty for counsel bound by order of
the court to preserve witness anonymity, and the fulfilment of a proper
relationship between him and his client, the defendant.
- We cannot provide an answer to every possible
combination of circumstances which may arise. Our pragmatic solution to the
problems which arise after an order for anonymity is that counsel should
identify the issues for his client, and explain the alternatives. The choice
is stark, and should be made by the client, on advice. Counsel should inform
him that if he, counsel, were able to observe the witness he may be better
able to cross-examine him. That is a potential advantage which he would be
well able to explain to his client. However, he would also have to explain the
pre-condition to such cross-examination, that he could not flout or ignore the
order of the court, and could not, at any stage of the trial or afterwards,
provide his client with any description of the witness. That, in effect, was
what happened in the Ellis trial.
- The alternative is that the defendant may
nevertheless instruct his counsel that he should not see the witness if the
opportunity to do so is subject to the prohibition on disclosure of his
identity, or discussion of his physical description, or, as happened in Davis,
the defendant instructs counsel that he should inform him of the appearance of
the witness. Alternatively, counsel may believe that the professional
relationship with his client would be damaged if he were unable to communicate
information which his client wanted from him. In situations like these, the
court will order that the anonymous witnesses must be screened from counsel.
In this event, again as happened here, counsel for the Crown should be in the
same position as counsel for the defendant.
- Mr Swift invited us to consider an extreme case,
or perhaps more accurately, an example of an extreme case, where counsel for
the defendant received express instructions from his client, with a
description given by the client of the witness believed by the client to be
the prosecution witness against him. Counsel, observing the witness for
himself, might very quickly establish from the descriptions, and comparing it
with the actual appearance of the witness, that the defendant's belief was
completely wrong. What asked Mr Swift rhetorically, should counsel do then?
The short answer is that we should expect counsel to ask the court to adjourn
into chambers for the problem to be discussed with the judge, and, after
hearing both sides, for the judge to give the appropriate ruling. We cannot
legislate in advance for all the possible case specific problems which may
arise.
- We should perhaps add two important footnotes.
First, whether or not counsel decides to observe the witness personally, at
the trial each member of the jury, as well as the judge, remains able to see
and observe the witness for himself. They are also able to hear the
unmodulated voices of the witnesses, even if they are mechanically disguised
for the defendant and public, as well as counsel. Second, if for reasons
similar to those referred to in paragraph 71 the decision is made that counsel
shall not observe the witness, the defendant cannot subsequently make a
complaint to this court based on his, or his counsel's rejection of the
opportunity to do so. The alternatives are clear, and the defendant has to
accept the consequences of his decision, or as in the Davis case, the
instructions he has given to counsel.
The Appeal of Davis – the essential facts and conclusion
- At the start of the New Year celebrations which
culminated in the deaths of Kenton and Mowatt there was no trouble at a well
organised party. At its height some 60 or so people attended. They included
the appellant, who was present at the party for a substantial time throughout
the evening and indeed even on his own eventual case at trial, until
8.00-8.30am. Kenton was the disc jockey responsible for the music, and the
guests included some of his close friends. Towards morning a little ill temper
became apparent and some of the visitors left. At about 8.00am the organisers
decided to bring the party to an end, and the disc jockey was instructed to
stop the music, which he did.
- The killings occurred at about 9.20am. The bullet
which killed both men was a 7.62mm Tokarev copper jacketed lead bullet, and
the firing marks indicated that it was most likely to have been fired from a
Tokarev self-loading pistol. The gun was fired at a close range to Kenton's
neck. The bullet was recovered from Mowat's body. Neither the cartridge case
nor the gun was ever recovered.
- Obvious confusion was caused by the fact that one
shot had caused two deaths. One anonymous witness, a close friend of Kenton,
gave evidence about the incident without incriminating the appellant. It
gives, and other witnesses gave, alarming evidence about the ease with which
the gun came to be used. Towards the end of the party, while a group of
friends, including Kenton were leaving, a man blocked the doorway, saying
something to the effect that nobody was going anywhere. Something of a verbal
skirmish developed, and Kenton put down the box containing his musical
equipment, and asked what was wrong. The man grabbed Kenton round the collar
and Kenton grabbed him back. The man tried to throw a punch which missed;
Kenton punched him back and struck him, causing the man's head to hit the door
of the next flat. This flew open. The man stumbled back. He emerged from the
doorway, and stepped forward two paces and fired a shot. The witness did not
see how he had come into possession of the gun, but he had reached behind him,
and afterwards went straight downstairs. The witness did not see the gun
itself, only the flash of the shot. He had not seen the gun before.
- The evidence of three of Kenton's friends
identified the appellant as the individual who fired the gun. A number of
other anonymous witnesses gave evidence which added little, if anything, to
the case against him. There was some confusion about the identity of the man
who supplied Davis with the gun, and at a later trial, the man alleged by the
Crown to have done so, Martin Harvey, was acquitted. It is perhaps worthy of
notice that this acquittal followed a trial in which, like the trial with
which we are concerned, significant evidence for the prosecution against
Martin was given by anonymous witnesses. Of itself this perhaps underlines
that the fairness of the trial process, and the ability of the jury to subject
anonymous evidence to careful thought and judgment is not destroyed by an
order that significant evidence against the defendant may be given by
anonymous witnesses.
- We need not narrate all the evidence given by the
anonymous witnesses. Three of them, known as Richard Heath, Steven Bennett and
Cecil Blackburn, gave direct evidence that they actually saw the appellant
shoot Kenton. Of the remaining anonymous witnesses one, Susan Jones, was not
initially called by the Crown. Huge pressure was exercised by the defence to
have her called and much complaint directed at the initial failure or
inability of the Crown to do so. Indeed it was argued that the trial could not
properly continue if she was not called, and that the jury should be
discharged and a retrial ordered. The other anonymous witnesses added nothing
of significance to the outcome of the trial.
- This forensic position was based on an essential
feature of the defence case. In essence it was contended that the appellant
was the victim of a corrupt plot to implicate him in these killings when he
was, and was known by those who implicated him, to be an innocent man. This
plot was said to be organised by a woman called Anthea Smith, a former
girlfriend, who was seeking revenge for the break-up of the relationship. In
earlier incidents she had thrown a bottle at the applicant's then new
girlfriend and sprayed CS gas into his car. In 2001 he had had a one night
stand with her, at a time when she had become involved with Richard Heath, and
this lead Heath to send a man named Delroy round to his partner's address to
threaten him with a gun.
- At the time when it was thought that the witness
Susan Jones could not be found, the woman allegedly responsible for the plot
was positively identified to the jury as Anthea Smith. However when Susan
Jones was eventually called, she declined to answer questions which might
revel her identity, although the defence maintained, and the jury was asked to
consider his case as if she was the witness with a personal grudge against the
appellant, an allegation which Susan Jones strongly denied. In the result,
notwithstanding the allegation against her, this witness did not give any
incriminating evidence against the appellant.
- Susan Jones said that she was present at the
premises when she heard the gun shot, but she did not see who was responsible
for it. That left, if the defence case was correct, a bizarre situation. The
individual said to be responsible for the plot to convict the appellant gave
no incriminating evidence against him, while the individuals who did
incriminate him were very good friends of the deceased, who were undoubtedly
present at the scene, and who, with the possible exception of Heath, had no
reasons of their own to protect the man actually responsible for his death by
implicating a man who was not.
- Heath attended the party with his girlfriend,
Susan Jones. He denied any personal grievance against the appellant, or, if
the man Delroy had ever threatened the appellant, that he was responsible. He
denied that he had been told what to say by Susan Jones or that she had
arranged for him to be a witness. He also denied that Jones had visited him
when he was serving a sentence of imprisonment abroad. Complaint was made
about the fact that although the defence was given information about the
circumstances of this particular conviction, it was not aware that the crime
had been committed abroad, and that the subsequent sentence was served there.
In the context which we are considering, the complaint is trivial.
- Steven Bennett was asked if he knew Anthea Smith,
and said that he was not sure. He did have a friend named Anthea, but did not
know if she was at the party. He did not say anything about the appellant
being a boyfriend of Anthea. He denied that he was trying to help the family
of his friend, Mowatt, identify someone who they, Mowatt's family, believed
was responsible. The defence case was that this witness's true name was Hughie
Duffers. If he was, the defence sought to make something of the fact that
either Heath, or Bennett, or both, were giving untruthful evidence about an
incident in which the death of a drug dealer identified as "Blue", who was
shot in 1997 in a drug-related incident, and a link between Anthea and that
man. Again, in the overall context of the evidence, this point does not bear
the weight suggested by Mr Swift.
- We must now turn to further significant features
of the evidence, beginning with the appellant's departure from this country
shortly after the killing, to Jamaica, and then onwards on to the United
States of America, using a false passport in the name of Baldock, stolen in
January 2002, and showing a picture of him wearing a beard. In due course he
was extradited from the United States. Before his extradition he explained
that the reason he had fled England was that he was in fear of his neighbours.
On his return, when interviewed, he made no comment. We shall shortly return
to the defendant's evidence at trial about the reasons for his departure.
- In due course the defence case statement was
served. It is an important document, highly material to the decision which the
trial judge had to make when considering the possible anonymity of the Crown's
witnesses. The relevant part reads that the defendant "was present during the
party at Flat 19, Shore Road, however he at no stage had a gun and was not
responsible for the shooting. He believes that the witnesses who purport to
identify him are not only wrong but are likely to have a motive to implicate
him. The defendant will provide details in the skeleton argument (due 7/4/04)
as to the anonymity of the witnesses". The statement is silent on the critical
issue of alibi which, again, emerged in the appellant's evidence at trial.
Equally surprisingly, it was not until after the trial began that the details
of the alleged improper motivation were seriously ventilated. There was no
such suggestion in the course of the appellant's interview with the police
(where he confined himself to "no comment") nor in his defence case statement,
nor indeed in the defence skeleton argument on the anonymity issue. On the
first day of the trial the Crown revealed the difficulties it was having in
producing Susan Jones at court. It was only then that her apparent centrality
to the defence case, and her alleged motive for orchestrating a conspiracy to
pervert the course of justice against him emerged.
- We were expressly told by counsel for the Crown
that the prosecution were not, and are not, in possession of any information
which suggests that the family of either deceased were seeking to
"orchestrate" witnesses in the sense of persuading them to come to court to
give false evidence. We were also told that the police investigation team have
never been, and at the start of the appeal were not in possession of any
information which suggested that any prosecution witness ever had a motive
falsely to implicate either Davis, or indeed Harvey, in the murder. All the
relevant information available to the police, save that relating to the
identity of the witnesses, on any links between them, was disclosed to the
defence. Finally, it is convenient to record here that in answer to Mr Swift's
request for information, we were told that neither before nor during the trial
were material rewards sought by the anonymous witnesses, nor offered to any of
them by anyone connected to the prosecution.
- Before trial the defence were provided with what
are described as "disclosure packages" in relation to each anonymous witness
which contained details of all their previous convictions, as well as any
links the police were able to discover between each of them and any other
prosecution witness, as revealed by a trawl through the HOLMES computer
system. In reality there was vast disclosure of relevant material including,
for example, a list of all the party goers who were known to the police, the
previous convictions of each prosecution witness, and the identity of all the
information available to the police of each and every individual said to be
"implicated" in this shooting. One was the appellant, and the other Harvey,
later, as we have seen, acquitted. It is however fair to record that some of
the material relevant to anonymity was put before the judge (and the defence)
in a somewhat piecemeal way, and Mr Swift suggested that, given the importance
to the disclosure process in every trial, but with particular emphasis where
an order for witness anonymity was made, this fact, of itself, undermined the
safety of the conviction.
- When in due course the defendant gave evidence he
denied responsibility for the shooting. He said that he had left the party at
about 8.00-8.30am, after saying goodbye to a girl called Cyrona. None of that,
and indeed nothing in the defence case statement directly suggested that he
was absent from the premises at the time of the shooting. The reason he fled
to the United States was quite unconnected with this killing. He was avoiding
outstanding proceedings against him for assault, for which he believed a
prison sentence would be imposed. These accounts, not previously suggested,
were of course was left to the jury to evaluate. It was equally open to the
jury reject them on the basis that they were virtually newly minted to bolster
an untrue defence.
- We must now embark on a more detailed analysis of
the disclosure process criticised by Mr Swift. With the encouragement of both
sides, we invited the Attorney General to appoint a Special Advocate to assist
us with the issue of disclosure in the context of public interest immunity
matters raised with Judge Paget in the absence of the defence and which, in
the assessment of the Special Advocate, may give rise to arguable grounds of
appeal. The appellant submitted that the appointment of such an advocate was a
particularly important step, since special counsel did not play any part in
the public interest immunity ("PII") issues during the trial. In the event, Mr
Penny was instructed for this purpose, and we are grateful to him for his
industry and assistance.
- Mr Penny was provided with a considerable body of
documentation (some 21 volumes of documents), that included:
a) The unedited "disclosure packages" relating to each of the
anonymous witnesses that were available to the trial judge (as well as the
edited version provided to the appellant);
b) The Grounds and Advice on appeal, the appellant's skeleton
argument, the schedule annexed thereto along with a chronology;
c) The transcripts before this court in the 'Harvey' trial (viz.
the summing up and the evidence of Peter Brown and Tony Pink);
d) The summing up in the present case;
e) The transcripts of the arguments on disclosure and the Pii
transcripts in the court below, before both Judge Roberts (on 16 April 2004)
and Judge Paget thereafter;
f) The various requests made for disclosure, along with the
written submissions in this regard advanced at the Central Criminal Court,
together with the various responses to those requests and submissions in
reply by the prosecution.
g) A document drafted by each of the parties specifically to
assist Mr Penny: for the appellant "Submissions to Special Counsel on behalf
of the Appellant" dated 3 February 2006 and for the prosecution "Note for
the assistance of the Court and Special Counsel" dated 15 March
2006.
- The appellant also submitted we should give
careful attention to whether any matters have arisen since the trial which
affect the validity of Judge Paget's anonymity ruling, and generally we were
asked to scrutinise whether the judge was provided with all of the
documentation necessary for that purpose.
- Special counsel, in addition to considering the
documentation set out above, was asked to focus on particular issues which
were helpfully set out by Mr Swift. In order to demonstrate the care with
which this disclosure process has been reviewed in the course of this appeal
by special counsel, and, with his assistance, the court, it is instructive to
set out in full the detailed issues Mr Swift particularly identified in his
document of 3 February 2006:
Matters which the Appellant specifically wishes Special
Counsel to address
Most of the arguments and issues are set out in detail in the
documents produced on behalf of the Appellant and therefore will not be
repeated here. There are some matters which have arisen post trial which we
request are dealt with in addition to the issues raised in
writing.
1. Any matters arising since the hearing of the trial as
detailed in paragraph 3 of the Appellant's Skeleton
Argument.
2. In view of the evident in the 'Harvey' trial to the effect
that 'Peter BROWN' knew or may have known Harvey (contrary to what he said
in the Davis case), any information establishing that he may have known
Davis or Harvey.
3. Any information that the police had and/or should have
investigated and/or should have disclosed at or before the trial of Davis,
concerning:
(a) knowledge on the part of the anonymous witnesses of the
fatal shooting of Delroy Barnes in February 2002 which may have been
targeted at Marcus Johnson (Chaos);
(b) The contents of D142 (prepared by DS Groves) (this
concerned the suggestion that Marcus Johnson had passed the
gun);
(c) Gary Mowatt's arrest in March 2002 for possession of a
loaded firearm near an address linked to
Harvey;
(d) Requests by the families of the deceased to see the
videos of the flat where the murders took
place;
(e) Contact between the anonymous witnesses after the
murders;
(f) Links between the anonymous
witnesses;
(g) Family or other relationships between the families of
the deceased and the anonymous witnesses (it was suggested at the Harvey
trial that Cecil Blackburne was in fact a step-brother of the deceased
Wayne Mowatt – Summing up Vol D Page
15/16);
(h) HEATH dealing drugs or being present in Flat 18 at the
time of the shooting;
(i) Tony PINK ("G") having any relevant evidence to
give.
4. Any information subsequent to the trial of Davis which the
police have acquired and/or should have investigated and/or disclosed
concerning:
(a) the threats to Harvey's solicitors by a 'Tony
Shockness';
(b) whether Peter BROWN was a member of the Shockness
family;
(c) any matters set out in paragraph 3 above (requiring
action post trial).
5. In light of the suggestions at the 'Harvey' trial that some
of the anonymous witnesses knew each other, any information to this
effect. It can no longer be conceded that the witnesses in paragraph 3 of
the advice on appeal can be treated in the 'pure eye witness'
category
6. Any evidence that supports the account given by the Defence
witness Tony PINK in the 'Harvey' trial to the effect that 'HEATH' is a
man called 'Crusoe' who was in fact dealing drugs from next door flat 18
at the time he was said to be a witness to the shooting and as such
undermining his credibility and honesty.
7. Any information supporting defence assertions as to the
identification of the pseudonym witnesses that should have been notified
to the trial judge and could have been disclosed in any form to the
defence. Any information that would suggest that any of the pseudonym
witnesses have given false evidence in reply to identity are contained
within the papers but include:
Bennett – Hughie Duffas
Jones – Anthea Smith
Blackburn – Patrick Booth
Heath – Crusoe
Brown – Shockness
Any information that could or does undermine the answers
given by the witnesses in cross-examination, see in particular the
transcript of part of the cross-examination of 'Heath' at Vol
XII
8. Bearing in mind that in both trials the suggestion was that
the witnesses were being orchestrated by the Mowatt and Kenton families,
any information that supports these suggestions.
9. Details of the enquiries (and adequacy of them) made by the
prosecution into the motives and credibility of the anonymous witnesses,
in particular in light of the ruling on the 16th April 2004 by
His Honour Judge Roberts. Any intelligence including CHIS and source
material from persons with knowledge of the witnesses. We need to know
whether the prosecution have made all diligent, proper and full enquiries
about the prosecution witnesses, in particular those who may have had a
motive existing but unknown to the defence.
10. Any matters that ought to have been but were not brought
to the attention of the trial judge. Any other information which should
have been disclosed to the trial judge on the topics upon which the trial
judge said he was in ignorance – (see transcript XII p. 10E which suggests
the learned Judge was not aware that 'HEATH' had served a sentence of
imprisonment abroad and/or had been deported back to the UK; matters
raised in the argument in Vol XIII; matters raised at XIV p.4A where the
learned judge indicates "It may sound astonishing to you if I say that I
am not actually in a position to say whether what he (HEATH) said is the
truth or not".
11. Details of any awards to the witnesses for the giving of
evidence in financial or other terms.
12. The timing and adequacy of
disclosure.
- The list of issues set out above was of
considerable help to Mr Penny and the court in determining whether there were
material flaws in the disclosure process resulting in prejudice to the
appellant.
- Mr Swift submitted that as the PII argument
developed in the court below, it became clear that the judge had not
necessarily seen everything (either at all or until after he delivered some or
all of his rulings on anonymity) that in the appellant's submission he should,
including:
a) the unedited versions of some or all of the witness
statements of the proposed anonymous witness;
b) the unedited version of the previous convictions of some of
the proposed anonymous witnesses (e.g. the judge did not see Bennett's
convictions until after the PII hearing on 27th April 2004, and
he was initially unaware that Mr Swift cross-examined Heath on a false basis
about the place where he served a sentence of imprisonment following one of
his earlier conviction).
c) the photographs – insofar as they existed – of some or all
the proposed anonymous witnesses (in this regard we are reminded that given
some of the witnesses were of bad character, in the sense that they had
criminal convictions, photographs would ordinarily have been
available);
d) the relevant criminal intelligence files (and including
"street talk", information from informants and straightforward
rumours);
e) the relationships that existed between some of the
witnesses.
- Particularly bearing in mind that the judge
apparently was without some or all of this material, it was submitted by the
appellant the judge should not have embarked on this exercise of ruling on the
anonymity issues at the time when he did, and that having been selected to
preside over this trial at a relatively late stage, he should have taken
further steps to ensure that he was fully conversant with all of the
potentially relevant material before he made any decisions on this important
issue. As an ingredient of that submission, Mr Swift argued that the judge
should have been equipped with more comprehensive information to ensure he was
able to determine whether the defence "guesses" as to the real identity of the
anonymous witnesses were correct.
- Given those concerns, Mr Penny reviewed all of the
material that was before the judge, both before and after anonymity was
granted. Whilst it would be inappropriate, for self-evident reasons, to set
out the submissions made to us by Mr Penny, it is clear that although the
judge did not have, for instance, the complete lists of convictions of the
relevant witnesses when he gave his ruling, by the time the prosecution called
each of them (when, we observe, the judge was well-placed to review his
decision as regards the proposed anonymity) he had been provided with all the
relevant criminal antecedents. Moreover, save for Susan Jones, the appellant's
lawyers had been furnished with the lists of convictions when this issue was
originally considered: her criminal record was disclosed when, in
circumstances already outlined, she was called to give evidence on 18 May. As
regards the other specific points, including the editing of some of the
witness statements and the suggested lack of research into criminal
intelligence, following the thorough review conducted by Mr Penny, nothing has
been revealed to cause us concern. Whilst the judge only knew the true
identity of two of the anonymous witnesses, he was provided with all the
information relevant for the purposes of making his decision. Moreover, in our
judgment, given the fear expressed by the witnesses and unsurprisingly
accepted by the judge, whether or not the defence accurately guessed their
identity was essentially irrelevant to his final decision. Additionally, in
the course of the trial the judge was fully informed of the editing of the
witness statements. We have reviewed this material too, and, given the judge's
decision on anonymity, the editing was appropriate.
- It is also clear that the prosecution and the
judge were responsive to the changing nature of the case. By way of example,
when Mr Swift (during the submissions in the court below on this issue)
revealed for the first time the alleged significance and role of Susan Jones –
that she was attempting (so it was said) amongst other things, to procure
false testimony – disclosure was reviewed so as to ensure that this additional
dimension to the case was taken into account.
- We accept that some material relevant to anonymity
was disclosed in a piecemeal way. Therefore, having reviewed the relevant
documentation, with Mr Penny's assistance, we have carefully revisited each of
the judge's decisions. We have also borne in mind Mr Swift's submission that
he was, on occasion, "wrong-footed" because, statements were edited without
this fact being revealed until late on (for example, the statement of
Bennett), the relevant information was provided at essentially the last moment
(for example, the convictions of Susan Jones) and material was supplied to the
defence, which resulted – at least on one occasion – in cross examination
proceeding on a false basis (for example the circumstances of one of Heath's
previous convictions). Such occurrences are unfortunate and should not happen.
- The appellant is entitled to a fair trial, and
simultaneously, the arrangements for the trial must give appropriate effect to
the fears expressed by the witnesses (which the judge unsurprisingly accepted
as genuine) about the dangers if their true identities were revealed. There is
sometimes a tension between these competing considerations which is unlikely
to lead to an entirely wrinkle free process. As we have commented elsewhere, a
further complication was that key aspects of the defence case, that the
defendant was not present at the premises at the moment of the shooting, and
that Susan Jones was manipulating witnesses to give false evidence, were only
revealed at the last moment. However, by the time each anonymous witness was
called the judge was fully aware of each of the factors that properly had a
bearing on his decision as to the concealment of identity and that in the
result the judge's (ultimate) decision as regards each of them was reached by
him on the basis of a full understanding of all of the relevant facts. As the
judge made abundantly clear, this was not a once-and-for-all decision on
anonymity, but one which he kept under review throughout – indeed as he said
on 27 April 2004:
"I am in no doubt that I need to keep my decision under review
and that I must be alive to the fact that different considerations may apply
to different witnesses, so that I have to look not at the nine (witnesses)
as one unit but at each of the nine individually."
- In the end what matters is not whether there was
an entirely wrinkle free process, but whether the trial was fair. We are
confident that no error occurred during the PII proceedings which caused any
significant disadvantage to the conduct of the appellant's defence. In
particular the problems which have been identified did not have and would not
have had any impact on the assessment by the jury of the credibility, or
otherwise, of the anonymous witnesses and ultimately, the verdict. Accordingly
none of the complaints identified in argument put the fairness of the process
or the safety of the conviction in doubt.
- Having examined all this material in detail,
notwithstanding that Mr Swift was able to point out that the anonymity order
had created specific disadvantages for the defence, our conclusion is that the
decision to order anonymity was amply justified. We have examined the safety
of the convictions in the light of the main defence, the alleged spiteful
motivation of Jones, and the rather more nebulous suggestion that witnesses
may have been anxious to support the Mowatt family's belief that the appellant
was indeed responsible for Mowatt's death, in order to see whether the
anonymity ruling precluded proper cross-examination of the anonymous
witnesses. Without for one moment suggesting that counsel was not faced with
unwanted difficulties, and accepting that there were one or two matters which
might have been investigated more closely, our conclusion is that the
anonymity ruling did not prevent proper investigation with the witnesses, and
before the jury, of the essential elements of the defence case. . There was
significant independent evidence supportive of the evidence of the anonymous
witnesses, and the jury chose to accept their evidence after
cross-examination, and to reject that of the defendant. There was ample
evidence to sustain the conviction. We can discern nothing in the trial
process overall to lead us to the conclusion that this trial may properly be
stigmatised as an unfair trial, or that the convictions were unsafe. Subject
to any fresh evidence, the appeal will be dismissed.
Fresh evidence
- In support of a discrete ground of appeal Mr
Swift applied to call Tony Pink, who was, he suggested a witness to certain
important events at about the time of the fatal shooting. Mr Swift argued that
his evidence importantly undermines that given at the appellant's trial by
Richard Heath (whom the appellant suggests was also known as "Crusoe"), in
that if Crusoe and Heath are one and the same person, then Tony Pink
contradicts Heath's account that he saw the appellant fire the fatal shot.
- Pink was called by the defence during the trial
of Martin Harvey on Friday 15 July 2005. "Tony Pink" is not his real name, and
although the prosecution have been aware of his true identity since before his
evidence last year, he has been allowed to use this pseudonym throughout these
criminal proceedings in order to preserve his anonymity from the public as
well as from the appellant. Mr Swift submitted the appellant only came to know
of the availability of Pink as a witness after he was called during the Harvey
trial. In those circumstances, Mr Worsley did not oppose the application to
call Pink: the provisions of s. 23 Criminal Appeal Act 1968 (relating to fresh
evidence) were satisfied and, accordingly, we granted permission for Pink to
give evidence. Additionally we agreed to arrangements (a screen and voice
modulation equipment) to ensure only the members of the court could see the
witness and hear his true voice.
- Pink made three written statements, dated
respectively 6 June 2005, 6 July 2005 and 20 March 2006 which were produced
and considered during the evidence before us. He refused to give a statement
to the police when asked shortly after the incident.
- In essence his account was that he arrived at
the party with an unnamed friend at some stage after midnight and thereafter
he divided his time between flats 18 and 19. He drank a couple of glasses of
champagne and throughout the entirety of New Year's Eve and the early hours of
the following morning he consumed four or five "joints" of marijuana, half a
tablet of the drug ecstasy and "a few lines" of cocaine. He said these
stimulants made him feel "nice" but they did not affect his ability to recall
events.
- Whilst in flat 18 – the home of two people
called Nilson and Drew – he met "Crusoe", whom he knew from when they were
both serving prison sentences. He said whilst they were together in that flat
he heard the sounds of a fight on the landing outside; the front door to the
flat "caved in"; and he went to see what was happening. He put his head
outside the front door, encouraged those outside to calm down and then
returned to the living room of flat 18. Not long afterwards he heard the shot.
At this time there were 5 or 6 people in flat 18: the witness, Crusoe, two
women and one or both of Nilson and Drew. Having "digested" what had happened,
everyone then went towards the front door (which was closed, although Pink
could not say whether the lock was engaged, on the latch or broken) and he was
met by what he described as pandemonium. One of the victims was lying
immediately outside the door and the other injured man was round the corner in
flat 19. Pink said he then did all he could to "save the life" of the man on
the landing whilst someone else, a nurse (who was a "black fella"), helped the
man lying in flat 19. His evidence was that it took what seemed like an hour
(or more) for the police and the ambulance crew to arrive and apart from
ringing the emergency services, he was otherwise engaged in helping the
injured man on the landing: this was for about ¾ of the time it took for the
emergency services to arrive. The nurse told Pink to hold the man in a
particular position because friends and family were trying to make him sit up
and to hug him, both of which had a suffocating tendency (although at times in
his evidence Pink also said he did not hold the man or he was not doing so
"exactly"). Furthermore, importantly on Pink's account, he said he put his
hand over the area where the man had been shot and from where he was bleeding,
namely the side of his head, or somewhere on his head. He also saw a white man
trying to help but he was not sure what he did or for how long.
- Pink stayed until the police arrived and he then
went to hospital.
- Pink is a man with significant previous criminal
convictions. He agreed that he has given evidence in his own defence on five
or more occasions in the past when he has been on trial, and that each time
the jury has not believed him.
- In rebuttal of this evidence, the prosecution
applied (unopposed by Mr Swift) to call Martin Nilson, one of the men who
lived at number 18 at the time and who gave evidence at both the appellant's
and Harvey's trials. His account was significantly at variance with the
testimony of Pink. He told us that he shared flat 18 with Mark Drew and they
both attended the party; indeed, during the course of the night they invited
some of the partygoers to their flat for drinks. At the time the door burst
open, shortly before the shooting, Mark Drew together with two women (and
possibly Errol, a black man who had "Rasta hair" and/or Dane, a well-built
black man with short hair) were in flat 18. Although someone else might have
been in the bathroom, he had no memory of either a man called Crusoe or a
further person who could have been Pink being present inside number 18 at this
stage.
- Furthermore, he said that as soon as he saw
someone lying in the hallway, he stepped out in order to help and he turned
the injured man (Ashley Kenton) over onto his back. He had served in the
Swedish Marines as a mobile paramedic and, assisted by a "frantic" woman, he
tried to clear Kenton's airways using both a towel and his hands. However, he
did not seem to be alive and he could see what he described as pieces of his
body lying in the doorway. He undertook mouth-to-mouth resuscitation but to no
effect. Thereafter he was asked to assist with the other injured man (Wayne
Mowatt) and he gave those tending him some advice. He then went back to Kenton
(who had remained in his view throughout) and he continued to give him
first-aid. He said that at no stage did another man give any assistance to Mr
Mowatt.
- Nilson made a statement to the police on the
night of these events which was essentially wholly consistent with the
evidence he gave during this appeal. Although he was possibly in error on one
or two matters of detail (such as whether Drew was in the flat when the
shooting occurred), the certain and unanimous view of this court is that his
account was wholly honest as well as being reliable on all important issues.
Apart from the happenchance that he lived next door to the where the party was
taking place, he was uninvolved with the people present that night, save for
Mark Drew; he returned to this country from Sweden, at short notice and at
great personal inconvenience, to provide his account for a third time and
without any apparent advantage to himself; and he gave evidence in a markedly
convincing and compelling manner.
- As a qualified paramedic Nilson was the likely
person to give first-aid to the injured man outside his flat, and on his
account all of what Pink said about how he purportedly tended Ashley Kenton,
doing all he was able to save his life, could not have been true. Moreover,
Pink critically misdescribed the injury over which he said he placed his hand:
Ashley Kenton had been shot in the neck and not in the head, and, moreover, if
Pink had really assisted him in the way he described he could not have failed
to notice he was already apparently dead and that part of his body had been
shot away. Therefore, Pink's description was not only contradicted by Nilson,
but it was wholly at variance with the pathological findings. Although not
determinative, we cannot disregard Pink's previous convictions, as well as the
occasions in the past when he has been disbelieved when he has given evidence
on oath, to reinforce our view that his evidence is not creditworthy. In these
circumstances it has no impact on the safety of these convictions.
- This appeal is accordingly dismissed.
The Ellis Appeal – the essential facts
- Yohanne Martin was a member of the Burger Bar
Crew. He was shot on 8 December 2002, when he was sitting in a hired Mercedes
car which was parked in West Bromwich. Another car drove slowly past and nine
shots were fired into the Mercedes, killing Yohanne Martin. Members of his
gang were convinced that those responsible for his death were members of or
associated with the Johnson Crew.
- The Mercedes had been hired by Yohanne Martin
and his brother, the appellant Martin. They were both linked with linked with
a black Vauxhall Vectra car which Martin was using on 31 December 2002. That
car, containing a driver and a passenger, was driven via the Aston Expressway
and M6 motorway to Roade in Northamptonshire, where a red Mondeo car, with a
high performance engine and factory tinted windows, was purchased. The
purchasers, using a mobile phone identified as 819 telephoned the seller
before their arrival. The purchaser gave a false name and address. The red
Mondeo and the Vectra returned to Birmingham. The factory tinted windows were
given an additional tinting on the Mondeo's arrival in Birmingham by Ramesh
Jhalli, an employee of a firm known as Quicksilver. During this return journey
mobile telephones were used, number 588 and number 619, one from each vehicle.
The Crown's case was that the two telephones were being used by Martin and
Gregory. The evidence associating them with these numbers was clear. Although
Gregory did not give evidence at trial, Martin accepted that he had
participated in the purchase of the Mondeo for a friend.
- On the night of 1/2 January trouble was plainly
brewing. In a nightclub in Solihull what was described as "chat" that is,
public assertion extolling the power and strength of the Johnson crew was
marked. In the result, however, the jury acquitted Jermaine Carty, who was
said to be one of those most implicated in the "chat", of firearms offences
arising from the developing trouble at the nightclub. We need not examine this
evidence further.
- The story of the shooting can be taken from the
accounts of three victims. Sophie Ellis was present at the nightclub. It was
announced that there would be an "after party" at Uniseven. She went there
with others. Inside Uniseven it became very hot. She saw a car drive past
slowly, which she thought was a burgundy coloured car and for a split second
she saw two guns, which looked the same, and were pointed out of the window of
the car. She was shot and fell to the ground.
- Cheryl Shaw spent most of her time at the
Uniseven itself. She went out twice, and on the second occasion she was
standing with others, when she noticed a red Mondeo with a gun pointing
outside the passenger's side window and the person inside wearing a balaclava.
She heard two different kinds of shooting, machine gun fire, and single shots.
- Leon Harris was sitting in a parked Orion car
when he heard shots which sounded like machine gun fire. He then saw a car
driving towards his car. Someone got out of the driver's side of a Vectra and
fired a number of shots at the Orion. The gunman was wearing a black
balaclava, with slits for his eyes and his mouth, together with a hood. Leon
Harris escaped from his car and ran away.
- These were very stark, unembellished
descriptions of the incident. Bullets and cartridge cases were recovered from
the scene of the crime. They were fired from three different weapons, one a
smooth bore sub-machine gun, and the other two pistols. The pattern of
thirteen bullet marks from the machine gun on an adjacent wall, from waist to
head height, suggested that the weapon was deliberately fired in a controlled
manner. There were no signs of return fire. The Orion car driven by Harris had
been struck by six bullets, fired from two different weapons, and it had a
deflated tyre which was consistent with a seventh shot. 23 x 9 MM cartridges
were recovered. They may have been fired from two separate self-loading
weapons. A Llama pistol was recovered in August 2003 from an address in
Ladywood. Some of the shots had been fired from that pistol.
- Timed CCTV recordings from the scene were
subjected to analysis and imagery examination. It was concluded from this
evidence alone, that one of the convoy of vehicles at the scene was highly
likely to be a red Mondeo, and the other was possibly a Vectra. This, of
course, was consistent with eye witness evidence. Flashes of light from the
vehicles were attributable either to the firing of weapons, or the opening of
a car door. (shortly before 2pm on 31 December, the 588 phone called a mobile
number used by Ramesh Jhalli)
- A good deal of material relating to telephone
evidence and telephone cell sites was available. This was important evidence
linking all four appellants. We shall summarise it as briefly as possible.
Phone 819 was said to have been used by someone involved in the purchase of
the Mondeo, and then again by someone in the Mondeo just before and after the
shooting. Indeed there was no dispute that various calls by or to mobile
phones 588,819 and 836 were made throughout the period of the journey by the
black Vectra to Roade, and on the return journey in both the Vectra and the
Mondeo. 819 was active from 30th December 2002 until shortly before
3pm on 2nd January 2003. It called phone 801 and 129. The
subscriber to 809 was Gregory's mother, and 129 was Gregory's sister. 129 was
also called by 836 some twelve times. 588 called the same number about twenty
times, and it was also included in the billing records for the landline of
Martin's girlfriend. Shortly before 2pm of 31 December, the 588 phone called a
mobile number used by Ramesh Jhalli. 819 called 573, Gregory's girlfriend,
four times, and 573 called 819 twice. At about 6.53 on 2nd January,
819 called 573, and 573 called it back at about 1.15 pm. 573 was also stored
in the memory of a phone at 5-18 Ryland Street, the home of the Gregory
family. 819 called each of the brothers of Gregory's girlfriend, his aunt and
his uncle once.
- A taxi firm regularly collected a fare from
Ryland Street, and took the individual to an address where Gregory's
girlfriend lived. There was contact by phone 819 on 31st December.
There was additional evidence linking 819 to Michael Gregory, but the details
need no recitation.
- Martin was arrested on 24th February
2003. The sim card for phone 836 was found loose inside a phone recovered from
a compartment to the right hand side of the steering wheel. Call analysis
related 836 to Martin's home address. It was also linked to him by telephone
calls made to his girlfriend. Ten calls were made from this number to the
landline at Gregory's address. At Martin's address, bearing his fingerprints,
a box for a phone with the number ending 227 was found. The subscriber's name
was Watkinson, which was the name of the business partner of the trader who
sold the Mondeo. On 28th December 836 called 227. Watkinson denied
that 227 was a number associated with him, but conceded that it was possible
that he was the subscriber when the phone was first registered in 1998. In
June 2002, he was still listed as the subscriber. The number stored in the
memory of 227 also linked Martin with 836.
- 588 was active from 30th December to
4th January. In that short period, among other calls, it called 819
on fifty seven occasions. The evidence suggested that both 836 and 588 were
being used together, throughout 2nd January 2003. It was accepted
by Martin that 836 and 588 were indeed his telephones.
- The three best serving signals for Gregory's
address were identified. Between 30th December and 2nd
January 35% of the calls were made to or from 819 were served by those three
cell sites between them, with an indication that the handset was used in the
vicinity of Gregory's address at Ryland Street. Thirty six calls went through
a site which served the address where Martin lived, as well as a second
address in Smethwick, also associated with Martin. Over a period of roughly 24
hours between 31st December and 1st January. The 819
phone made thirty four calls routed through the cell site best serving
Gregory's address, and during a similar period, both the 836 and 588 phones
made or received calls routed through the same sites. The Crown drew attention
to the fact that there was a time when 819 did not call either 836 or 588,
suggesting that the owners of these telephones were or must have been
together.
- From 1.30am on 2nd January inward
calls to 836 were on divert until 10.40 am that day. There was evidence
linking Ellis with the 633 phone number, and Simms with the number 845. At the
material time calls were made on the 633 phone consistent with the use of the
site closest to Uniseven in Churchill Parade. Between 12.54 and 2.55am on
2nd January phone 845 made calls which placed the handset in the
vicinity of Uniseven, consistently using the same cell site. From 3.07am until
about 6.30am on the same date, phone 819 made forty three calls which were
handled by eight different cell sites, which indicated that this phone was on
the move. At about 3.52 819 called 845, using the cell site close to Ellis'
address for fourteen seconds. Simms phone used a cell site which was dominant
for Uniseven, and in a sequence of calls from 819 to 845 (but none the other
way) 819 moved in such a way that by 4.01am it was being served by the same
cell site as Simms phone in the vicinity of Uniseven, indeed there was
positive expert evidence that the calls from Simms number were consistent with
him being inside Uniseven when the calls were made. At 4.09am there was a five
second call to Ellis's phone at 633, which indicated that Simms telephone had
moved into a cell site area to the west of Uniseven.
- After the shootings a number of calls were made
or received by 819 and 633, which were routed via the site which served Ellis'
address. The phone belonging to Simms received a call from 819 at 4.22 and he
then received calls which routed through cell sites, one of which served
Gregory's address. During the period when the red Mondeo was set alight, 819
called 633. The cell site which served the Maryhill area, where this car was
burned, handled a call between the 633 and 819 phones about 45 minutes before
the fire started, and if 633 was indeed at Ellis' home address at the time, it
must, for whatever reason, been incapable of using one of the four other cell
sites which would have given stronger signals. The data available to the
expert was consistent with the 819 phone being in the vicinity of the site of
the burning, and the last call using the corresponding cell site took place at
6.08am. That was inconsistent with 819 being at Gregory's flat. The expert
also accepted that it was not possible to discount the possibility that Ellis
had been using his phone at home (because of the proximity of the cell site).
- This evidence about the use of mobile phones
demonstrably belonging to the four appellants at critical times all through
the night leading up to and after the shooting, taken as a whole, and when
linked with the remaining evidence, provided a formidable case against them.
- On 13 January 2003, the home of Ellis was
searched. In the garden, inside plastic bags, some clothing, including a
hooded top and jeans were found. The top was closely linked by DNA evidence to
Ellis. There was insufficient material on the jeans for them to be directly
associated with any individual.
- The spent ammunition and this clothing were
examined together. The prima residue in the spent ammunition contained lead,
barium and antimony. The hooded top found in Ellis' garden bore two particles
of firearm discharge residue, one from the front and left sleeve containing
primer residue of lead, barium and antimony, with a low level silicone, and
the second, from the right front and sleeve, also containing lead, barium,
antimony, as well as tin with a low level silicone. The leg area of the jeans
yielded one particle of prima residue of lead, barium and antimony with a low
level of silicone. There was a trace of nitro-glycerine from the right of the
hooded top. This evidence did not prove directly that the residues found on
the clothes must have come from the shooting outside Uniseven on
2nd January. It was however consistent with it, and it was, of
course, open to the jury to consider whether any inferences should properly be
drawn from the additional fact that the hooded top and jeans were not found
where they would normally be, in their owner's house rather than the garden.
- After arrest the four appellants were
interviewed. Martin denied any involvement in the offences, and offered an
alibi. He told untruths about his link with the Vectra which had travelled to
Northampton, and the purchase of the red Mondeo. In general terms, Gregory
declined to answer any questions, stating that he did not want to remember
where he had been at the New Year because of the death of his brother. Ellis
denied involvement, and at first exercised his right of silence. When he was
later interviewed, he denied any involvement with the red Mondeo, and at a
subsequent interview, claimed that gunshot residue found on his clothing had
come from fireworks or through other innocent contact. As to the telephone
calls, he claimed that it was impossible for him so long after the events to
recollect any specific details. However he did not believe that his phone had
been in anyone else's possession. In his interviews, Simms effectively made no
comment, but on the last occasion when he was interviewed he denied any
involvement in the shooting or in the obtaining of the red Mondeo. He admitted
that he was present at Uniseven at the material time, along with several
members of his family, who he would not have endangered. He agreed that the
phone 845 was his telephone, and asserted that he had received telephone calls
while at Uniseven from different people asking him about the quality of the
music, but as the music was loud there were several missed calls. In view of
the lapse of time, he could not remember any other details. In due course
alibi notices were served by Martin, Gregory and Ellis.
- Goldring J gave leave for four witnesses to give
their evidence anonymously. As we have already recorded, his decision was
upheld in this court. At that date all the information, with the exception of
one prison file relating to one of the witnesses, Brown was available. By the
time Brown did give evidence, the prison file had been disclosed in full.
Criticisms of the disclosure process were repeatedly and fully argued before
the judge. In our view, they were makeweight, and we note that it is conceded
by one of the appellants, at any rate, that there was a just and appropriate
level of disclosure.
- The judge kept his ruling under constant review.
There were no less than thirty eight PII hearings during the trial itself. On
10th January 2005, he once again closely reviewed his decision. In
the result, of the four witnesses who gave evidence anonymously, only one gave
any evidence which purported to incriminate any appellant. Jarrett described
the scene, without identifying anyone in the Mondeo, or saying anything which
might have led to the identification of anyone in the car. Similarly, with
Beattie, who indeed had to be treated as a hostile witness by the Crown. James
declined to give any evidence along the lines of his witness statements. The
judge observed to the jury, when he came to sum the case up, that his evidence
was worthless, and whatever evidence he did give, the judge decided that it
was inappropriate to remind the jury of it.
- That left Brown who like the other anonymous
witnesses, was seen and observed by counsel, but not the appellants or the
public. Unlike counsel, they heard a modulated voice. He purported to identify
some of those in the red Mondeo, but his evidence was not entirely consistent
on the subject, and in any event, faced the major difficulty, that other
witnesses had suggested identification was not practicable.
- By the time Brown gave evidence, there had been
full disclosure of all the material available to the Crown. He was
cross-examined for five days, by four leading counsel. His credibility was
severely damaged.
- When considering submissions that there was no
case to answer, where there was no other evidence other than that of Brown, as
in the case of Tafarwa Beckford, the judge directed an acquittal. He observed
that it was plain that Brown had lied about many matters, and that his
credibility was severely dented. In particular, the judge was concerned about
Brown's assertion that the faces of the occupants of the Mondeo were visible
because that assertion was contradicted by every other witness to the
shooting, if Brown was indeed in the position that he said he was at the time.
Despite the various complaints carefully marshalled by the different counsel
on behalf of the appellants, the cross-examination of Brown illustrates that
notwithstanding his anonymity, the process could be and indeed was extremely
effective. In fact, Brown gave no evidence implicating Gregory, and so far as
Simms was concerned, his evidence provided no more than a little confirmation
of facts already independently demonstrated.
- Following the judge's ruling, neither Ellis nor
Gregory gave evidence. Gregory called a character witness. Ellis called one
alibi witness. She could not remember whether he had received any phone calls
at all, but she would have remembered if the phone had rung constantly. Martin
gave evidence. He admitted his involvement in the purchase of the Mondeo. He
admitted the correctness of the attribution of telephone numbers to him. He
offered an alibi defence. Simms admitted his presence at Uniseven. He was not
involved in the crime. He remembered receiving the 819 calls. He was sure that
it was a "withheld" number, by a man who refused to give his name, and simply
wanted to know who was at the party. After the shooting, there was another
call, and he was instructed to say nothing about the calls he had received. He
had not mentioned this when interviewed because he was terrified of the man
who had rung him, who was plainly a murderer who knew his address.
- The case was summed up to the jury with
meticulous care. The directions of law were accurate. Appropriate warnings
were given. The evidence was closely analysed. The summing up was
comprehensive, balanced and fair.
- We have reconsidered the safety of these
convictions in the light of events subsequent to the earlier decision of this
court upholding Goldring J's decision on witness anonymity. We cannot detect
any reason for doubting the integrity of the trial process, or the safety of
these convictions. These appeals are dismissed.
