The right to confront witnesses: Meanings, myths and human rights

Criminal Law Review

Volumn , Issue 4, 2010, Pages 255-274

  Dennis, Ian ^a  

^a UNIVERSITY COLLEGE LONDON   (United Kingdom)

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EID: 77950450892     PISSN: 0011135X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (161)

1. Davis (Iain) [2008] UKHL 36;
2. -[2008] 3 All E.R. 461 at [5].
3. For example, Saidi v France (1994) 17 E.H.R.R. 251 ECtHR at [44].
4. Richard D. Friedman, "Confrontation: the Search for Basic Principles" (1988) 86 Georgetown L.J. 1011, 1028.
5. Hughes [1986] 2 N.Z.L.R. 129 at 148.
6. D. Lusty, "Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials" (2002) 24 Sydney 361.
7. See also R. Costigan and P. Thomas, "Anonymous Witnesses" (2000) 51 Northern Ireland Legal Quarterly 326, 328 (a right of "prime importance").
8. Lord Bingham conceived of confrontation as embracing meanings (i), (iii) and (iv) below: see Davis [2008] UKHL 36;
9. -[2008] 3 All E.R. 461 at [5]. In contrast Lords Carswell and Manee appear to have regarded meaning (i) as a separate principle: Davis [2008] UKHL 36;
10. -[2008] 3 All E.R. 461 at [49] and [71] respectively. A further contrast with both these views is the statement of the Court of Appeal in Horncastle (Michael Christopher) [2009] EWCA Crim 964;
11. -[2009] 4 All E.R. 183 at [33], where Thomas L.J. referred to the, "ordinary rule. . .that witnesses are examined in court - often described as the right of confrontation", seemingly combining elements (i) and (iii).
12. See below in relation to "face to face" confrontation.
13. Compare R.D. Friedman, '"Face to Face': Rediscovering the right to confront prosecution witnesses" (2004) 8E & P1, fn.14 (meanings (ii) and (iii) below),
14. with J. Jaconelli, Open Justice (Oxford: OUP, 2002), p.4
15. (meanings (ii) and (iv)), and J.R. Spencer, Hearsay Evidence in Criminal Proceedings (Oxford: Hart Publishing, 2008), paras. 1.28-1.30, 2.1-2.6 (discussing meanings (i), (ii) and (iii)).
16. See, for England, the Criminal Justice Act 2003 Pt 11 Ch. 2, and for Australia, the uniform evidence legislation adopted for the Commonwealth and in New South Wales, Tasmania and Victoria, e.g. the Evidence Act 1995 (NSW) Pt 3.2.
17. Coroners and Justice Act 2009 Pt 3 Ch.2, replacing the virtually identical provisions of the Criminal Evidence (Witness Anonymity) Act 2008.
18. Criminal Justice and Licensing (Scotland) Bill 2009 cl.66.
19. See, e.g. Paul Roberts, "Taking the Burden of Proof Seriously" [1995] Crim. L.R. 783;
20. Roberts and Zuckerman, Criminal Evidence (Oxford: OUP, 2004), p.344 ff.
21. Antony Duff, Answering for Crime (Oxford: Hart Publishing, 2007).
22. A clear example is a prosecution witness's previous convictions. The defendant's right to a fair trial will normally require these to be disclosed to the defence since they may be material to the witness's credibility and reliability. But, as the Privy Council recognised in HM Advocate v Murtagh [2009] UKPC 36;
23. -2009 S.L.T. 1060; [2009] H.R.L.R. 33, their disclosure engages the witness's right to privacy under art.8 of the ECHR, and may engage the rights under arts 2 and 3 if disclosure of certain convictions might lead to attacks on or harassment of the witness.
24. The "overriding objective" in the Criminal Procedure Rules 2005 would be a possible starting-point for an "official" formulation, but would need a good deal of explanation and development.
25. Contrast for example, the accounts presented by Ian Dennis, The Law of Evidence, 3rd edn (London: Sweet & Maxwell, 2007),
26. Ch.2, with Hock Lai Ho, A Philosophy of Evidence Law (Oxford: OUP, 2008)
27. and Alex Stein, Foundations of Evidence Law (Oxford: OUP, 2005).
28. Horncastle (Michael Christopher) [2009] UKSC 14; [2010] 2 W.L.R. 47.
29. For a fuller account see Dennis, The Law of Evidence, 2007, Ch.2.
30. See H. Hart and J. McNaughton, "Evidence and Inference in the Law" in D. Lerner (ed.), Evidence and Inference (1958), p.52.
31. See Horncastle [2009] UKSC 14;
32. -[2010] 2 W.L.R. 47 at [18].
33. R.M. Dworkin, "Principle, Policy, Procedure" in C.F.H. Tapper (ed.), Crime Proof and Punishment (London: Butterworths, 1981), p.193;
34. D.J. Galligan, "More Scepticism About Scepticism" (1988) 8 O.J.L.S. 249.
35. Bunning v Cross (1978) 141 C.L.R. 54;
36. Ridgeway v R. (1995) 184 C.L.R. 19, especially at 38 ("Ordinarily . . . any unfairness to the particular accused will be of no more than peripheral importance");
37. Evidence Act 1995 (NSW and Cth) s.138.
38. It is notable that the exclusionary rule developed by the Supreme Court of the US for breaches of a defendant's constitutional right against unlawful search and seizure is founded on rationales of deterrence of police impropriety and the maintenance of judicial integrity: Mapp v Ohio (1961) 367 U.S. 643;
39. Herring v United States (2009) 129 S. Ct. 695.
40. See A. Ashworth and M. Redmayne, The Criminal Process, 3rd edn (Oxford: OUP, 2005), Ch.2, identifying this principle as supporting defendants' rights in criminal process.
41. See, e.g. L. Ellison, The Adversarial Process and the Vulnerable Witness (Oxford: OUP, 2001), p.65 ff;
42. J. McEwan, "Ritual, Fairness and Truth: The Adversarial and Inquisitorial Models of Criminal Trial" in A. Duff et al., The Trial on Trial (Oxford: Hart Publishing, 2004), Vol.1, pp.51, 60.
43. In a different context the European Court of Human Rights remarked in Pretty v United Kingdom (2002) 35 E.H.R.R. 1 at [65]: "The very essence of the Convention is respect for human dignity and human freedom."
44. Doorson v Netherlands (1996) 22 E.H.R.R. 330 ECtHR.
45. As recently demonstrated in HM Advocate v Murtagh [2009] UKPC 36;
46. -2009 S.L.T. 1060;
47. -[2009] H.R.L.R. 33, m. 14 above.
48. HM Advocate v Murtagh [2009] UKPC 36;
49. -2009 S.L.T. 1060;
50. -[2009] H.R.L.R. 33.
51. per Steyn L.J. in Brown (Winston) [1994] 1 W.L.R. 1599 at 1606;
52. -[1995] 1 Cr. App. R. 191 CA (Crim Div).
53. Davis [2008] UKHL 36;
54. -[2008] 3 All E.R. 461 at [5].
55. -(1603) 2 St. Tr. 1, and see the discussion by J.F. Stephen, History of the Criminal Law of England (1883), Vol.1, pp. 333-336.
56. W. Blackstone, Commentaries on the Laws of England, edited by J. Chitty (1826), Vol.III, p.373.
57. J. Bentham, Rationale of Judicial Evidence (1827), Vol.2, Book III, pp.404, 408.
58. ECHR art.6(l);
59. International Covenant on Civil and Political Rights (ICCPR) art.14.
60. For a full discussion see Jaconelli, Open Justice, 2002, Ch.2.
61. At fn.33 above, p.423.
62. Friedman, '"Face to Face': Rediscovering the right to confront prosecution witnesses" (2004) 8 E. & P. 1, 15.
63. This assumes, of course, that the defendant has a right to be present at his trial; see fn.49 below.
64. "The Principle of Open Justice: A Comparative Perspective", a paper delivered by the Hon J.J. Spigelman, Chief Justice of New South Wales, at the Media Law Resource Centre Conference (London, 2005), at http://www.lawlink. nsw.gov.au/lawlink/Supreme-Court/ll-sc.nsf/ pages/SCO-spigelman [Accessed January 22, 2010].
65. Sussex Justices, Exp. McCarthy [1924] 1 K.B. 256 at 259.
66. For a full discussion see A. Duff et al., The Trial on Trial (Oxford: Hart Publishing, 2007), Vol.3, especially Ch.4.
67. -5 (A Child) (Identification: Restrictions on Publication), Re [2004] UKHL 47;
68. -[2004] 4 All E.R. 683 at 696.
69. For a summary of the changes effected for England by the Criminal Justice Act 2003 see Dennis, The Law of Evidence, 2007, Chs 16 and 17,
70. and for further discussion Spencer, Hearsay Evidence in Criminal Proceedings, 2008.
71. In this way the use of hearsay statements by identified witnesses gives rise to an issue of compatibility with the right of examination of witnesses under art.6(3)(d) of the ECHR; see the final section of this article.
72. Dennis, The Law of Evidence, 2007, Ch. 15, pp.625 ff.
73. J.R. Spencer and R. Flin, The Evidence of Children: the Law and Psychology, 2nd edn (Oxford: Blackstone Press, 1993), p.79.
74. De Republica Anglorum (1583, written about 1565).
75. See further J. Langbein, The Origins of Adversary Criminal Trial (Oxford: OUP, 2003), pp.13 ff.
76. Coy v Iowa (1988) 487 U.S. 1012 at 1016.
77. Lee Kun [1916] 1 K.B. 337;
78. Jones (Anthony William) [2002] UKHL 5;
79. -[2003] 1 A.C. 1;
80. B. Emmerson, A. Ashworth and A. Macdonald, Human Rights and Criminal Justice, 2nd edn (London: Sweet & Maxwell, 2007), paras 14-181 et seq.
81. A. (on the application of D) v Camberwell Green Youth Court [2005] UKHL 4;
82. -[2005] 1 All E.R. 999 at [14] (Lord Rodger, citing Smellie (1919) 14 Cr. App. R. 128).
83. Camberwell Green Youth Court [2005] UKHL 4 at [15] (Lord Rodger), [49] (Baroness Hale).
84. Friedman, "Face to face: Rediscovering the right to confront prosecution witnesses" (2004) 8 E. & P. 1, 14-20 identifies several purposes served by confrontation, but his account includes values promoted by cross-examination, which I deal with separately.
85. Coy v Iowa (1988) 487 U.S. 1012 at 1019.
86. Maryland v Craig (1990) 497 U.S. 836 at 844, 846.
87. T. Massaro, "The Dignity Value of Face-to-Face Confrontations" (1988) 40 Florida L.R. 863;
88. E. Scallen, "Constitutional Dimensions of Hearsay Reform: Toward a Three Dimensional Confrontation Clause" (1992) 76 Minn. L.R. 623.
89. S. Clark, '"Who do you Think you Are?' The Criminal Trial and Community Character" in A Duff et al. (eds), The Trial on Trial, (Oxford: Hart Pubhshing, 2006), Vol.2, pp.83, 93.
90. Smellie (1919) 14 Cr. App. R. 128.
91. Crawford v Washington (2004) 124 S. Ct. 1354.
92. H.L. Ho, "Confrontation and hearsay: a critique of Crawford" (2004) 8 E. & P. 147.
93. For example, the restriction of the Confrontation Clause to testimonial statements is premised on an argument that the only proper way for the state to deploy "accusing" witnesses against the defendant is via oral testimony and confrontation. But from the defendant's standpoint it is not clear why the nature of the hearsay statement should be critical (i.e. whether it is "testimonial" or not).
94. The effect of a hearsay statement in terms of incriminating the defendant would seem to be more important in considering the value of confrontation and cross-examination, even in non-instrumental terms. This point is strengthened by the subsequent majority decision of the Supreme Court in Melendez-Diaz v Massachusetts (2009, No.07-591) that a laboratory analyst's report prepared for the purposes of the proceedings was "testimonial". A business record not so prepared would not be testimonial and would not come within the scope of the Sixth Amendment, yet might be equally or more incriminating.
95. In Grant v R. [2006] UKPC 2;
96. -[2007] 1 A.C. 1 the Privy Council summarily dismissed an argument for the adoption of the American view of confrontation in the interpretation of the Jamaican constitutional right to examine witnesses.
97. In Klink v Regional Court Magistrate 1996 (3) B.C.L.R. 402 it was held by a South African court that the constitutional right to public trial did not guarantee the right of the accused and the witness to be physically present in the same room.
98. Levogiannis [1993] 67 O.A.C. 321 at [30], citing Accused (T4/88) [1989] 1 N.Z.L.R. 660 at 672.
99. Levogiannis [1993] 67 O.A.C. 321 at [32].
100. Clark, "Who do you Think you Are?", above at fn.56, p.86.
101. See also his earlier article, "An Accuser-Obligation Approach to the Confrontation Clause" (2003) 81 Nebraska Law Review 1258, especially at p. 1263.
102. Friedman claims that a confrontation right signifies an "absolute right" of crossexamination: see "Discussion: Confrontation and the utility of rules" in (1995) 16 Mississippi College L.R. 87, 88.
103. See Camberwell Green Youth Court [2005] UKHL 4;
104. -[2005] 1 All E.R. 999, and Emmerson, Ashworth and Macdonald, Human Rights and Criminal Justice, 2007, fn.49, paras 14-161et seq.
105. J.H. Wigmore, Evidence in Trials at Common Law (JH Chadbourn rev.) (Boston: Little, Brown, 1974), Vol.5, para. 1367.
106. See fn.55 above, and also R.D. Friedman, "Confrontation Rights of Criminal Defendants" in J.F. Nijboer and J.M. Reijntjes (eds), Proceedings of the First World Conference on New Trends in Criminal Investigation and Evidence (1997), p.533.
107. Youth Justice and Criminal Evidence Act 1999 ss.34 (adult complainants), 35 (child witnesses).
108. Youth Justice and Criminal Evidence Act 1999 s.36.
109. S. Summers, Fair Trials (Oxford: Hart Publlshing, 2007), Ch.3.
110. This distinction is found also in art.6(3)(d) of the ECHR which refers to the right of a person charged with a criminal offence, "to examine or have examined witnesses against him". A right expressed in these terms can be exercised by counsel on behalf of the defendant or even by the court itself;
111. see Spencer, Hearsay Evidence in Criminal Proceedings, 2008, paras 2.19-2.22.
112. See, respectively, Youth Justice and Criminal Evidence Act 1999 ss.41-43 (evidence of the sexual history of complainants);
113. Criminal Justice Act 2003 s.100 (evidence of the bad character of non-defendants).
114. A judge has power to restrain such questioning (D. Ormerod and Hooper L.J. (eds) Blackstones Criminal Practice (2009), para.F7.8).
115. The Royal Commission on Criminal Justice, Report (HMSO, 1993), para. 182 recommended that trial judges should use it more readily to protect witnesses from bullying and intimidatory tactics by counsel.
116. Ellison, The Adversarial Process and the Vulnerable Witness, 2001, Ch. V, argues that there are systemic constraints on a judge's ability to exercise the power.
117. Van Mechelen v Netherlands (1998) 25 E.H.R.R. 647 ECtHR.
118. See Al-Khawaja v United Kingdom (2009) 49 E.H.R.R. 1 ECtHR, discussing Luca v Italy (2003) 36 E.H.R.R. 46 ECtHR and a line of cases going back to Kostovski v Netherlands (1989) 12 E.H.R.R. 434 ECtHR.
119. Horncastle [2009] UKSC 14;
120. -[2010] 2 W.L.R. 47.
121. I. Dennis, "Witness Anonymity in the Criminal Process", to be published in 2010 by Edinburgh University Press in a forthcoming volume of essays in honour of Professor Gerald Gordon Q.C.
122. Alford v United States (1931) 282 U.S. 687;
123. Lord Diplock, Report of the Commission to Consider Legal Procedures to deal with Terrorist Activities in Northern Ireland (Diplock Report) (HMSO, 1972), Cmnd.5185, para.20.
124. In Smith v Illinois (1967) 390 U.S. 129 at 131 the Supreme Court declared: "The witness's name and address open countless avenues of incourt examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself."
125. Davis [2008] UKHL 36;
126. -[2008] 3 All E.R. 461.
127. In Lee v Illinois (1985) 476 U.S. 530 at 540 Brennan J. commented, "the Constitution provides certain safeguards to promote to the greatest possible degree society's interest in having the accused and accuser engage in an open and even contest in a public trial. The Confrontation Clause advances these goals by ensuring that convictions will not be based on the charges of unseen and unknown-and hence unchallengeable-witnesses."
128. Lusty, "Anonymous Accusers" (2002) 24 Sydney L.R. 361, fn.5 above, pp.377-378.
129. Knauff v Shaughnessy (1950) 338 U.S. 537 at 551.
130. See also W.E. O'Brian, "The right of confrontation: US and European perspectives" (2005) 121 L.Q.R. 481 for a forceful restatement of the dangers in such cases of state manipulation of evidence in the process of case construction.
131. With an exception for marginal cases such as Murphy [1990] N.I. 306, where the evidence is essentially formal, does not itself implicate the defendant, and the credibllity of the witness is not in issue.
132. Diplock Report (HMSO, 1972), Cmnd.5185, fn.81 above.
133. Report of a committee to consider, in the context of civil liberties and human rights, measures to deal with terrorism in Northern Ireland (Gardiner Report) (HMSO, 1975), Cmnd.5847, Ch.2, para.55.
134. See fn. 10 above.
135. See generally A. Choo, Hearsay and Confrontation in Criminal Trials (Oxford: OUP, 1996);
136. Spencer, Hearsay Evidence in Criminal Proceedings, 2008.
137. 9l Al-Khawaja (Imad) [2005] EWCA Crim 2697;
138. -[2006] 1 All E.R. 543.
139. Youth Justice and Criminal Evidence Act 1999 s.19;
140. Speaking Up For Justice, Report of the Interdepartmental Working Group on the Treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (1998);
141. Ellison, The Adversarial Process and the Vulnerable Witness, 2001.
142. As Lord Judge C.J. noted in Mayers (Jordan) [2008] EWCA Crim 2989;
143. -[2009] 2 All E.R. 145 at [8].
144. See, for example, the remarks of Lord Steyn in A (Complainant's Sexual History) [2001] UKHL 25;
145. -[2001] 3 All E.R. 1 at [27] on the "twin myths" concerning complainants of rape, adopting the words of McLachlin J. in the Supreme Court of Canada in Seaboyer (1991) 83 D.L.R. (4th) 193 at 258, 278.
146. As the Court of Appeal emphasised in Homcasue [2009] EWCA Crim 964;
147. -[2009] 4 All E.R. 183. The Supreme Court expressly commended the Court of Appeal's judgment in this case: [2009] UKSC 14;
148. -[2010] 2 W.L.R. 47 at [13].
149. Al-Khawaja (2009) 49 E.H.R.R. 1 ECtHR.
150. Homcastle [2009] UKSC 14;
151. -[2010] 2 W.L.R. 47.
152. See also [92], where Lord Phillips reiterates the point: "As I have suggested earlier, the justification for the sole or decisive test would appear to be that the risk of an unsafe conviction based solely or decisively on anonymous or hearsay evidence is so great that such a conviction can never be permitted."
153. Al-Khawaja (2009) 49 E.H.R.R. 1 ECtHR at [37] ff.
154. See Luca v Italy (2003) 36 E.H.R.R. 46 ECtHR, where the court stated, "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 . . . the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6".
155. As clearly demonstrated by the Court of Appeal in Horncastle [2009] EWCA Crim 964;
156. -[2009] 4 All E.R. 183 at [60]-[64].
157. See, for example, Schenk v Switzerland (1991) 13 E.H.R.R. 242 ECtHR at [46].
158. Ashingdane v United Kingdom (1985) 7 E.H.R.R. 528 (access to court);
159. Janosevic v Sweden (2004) 38 E.H.R.R. 22 (reverse onuses and the presumption of innocence);
160. O'Halloran v United Kingdom (2008) 46 E.H.R.R. 21 (privilege against self-incrimination, but see, dubitante, the Commentary by Professor Ashworth in [2007] Crim. L.R. 898-900).
161. Of course D1 might ask for an order for separate trials, but this is discretionary, and might well be resisted if the case is one of alleged joint enterprise.