Magazine article The Spectator

The Law Lords Are Right to Resist the Government

Magazine article The Spectator

The Law Lords Are Right to Resist the Government

Article excerpt

On 18 June 2008 the Law Lords gave judgment in the case of R. v. Davis. The defendant was charged with murder. The prosecution case was that he had shot and killed two men after an all-night party. There were three witnesses -- and three only -- who identified the defendant as the gunman. All three gave their evidence behind screens under pseudonyms. Their voices were artificially distorted so that they could not be recognised by the defendant.

The defendant's counsel was not allowed to ask any question in cross-examination which might enable them to be identified The Law Lords held unanimously that Davis had not had a fair trial. Since he did not know who his accusers were, his counsel could not mount an effective cross-examination. The Law Lords reaffirmed the longestablished principle of the common law that in a criminal trial the defendant should be confronted by his accusers. Any conviction which depended wholly, or to a decisive extent, on the evidence of anonymous witnesses could not be safe. Accordingly they quashed the conviction.

The reaction of the police was predictable. John Yates, assistant commissioner of the Met, described the decision as a cause for grave concern. Bob Quick, the head of counter-terrorism, said that the implications were catastrophic: 'There is too much principle in the criminal justice system, and not enough pragmatism.' They called for urgent 'corrective' legislation.

The government has, equally predictably, acceded to that request. So Parliament is being asked to pass emergency legislation before the recess on 22 July. This is not the best way to legislate, as we have learnt from much recent experience.

In his statement on 26 June the Lord Chancellor said that legislation was necessary to cure what he called 'a technical defect in the law which has been until now unidentified and unsuspected'. This is a travesty of what the Law Lords decided. He further argued that 'in recent years witness intimidation has become all too common'. Can he have forgotten the 30 years of terrorism in Northern Ireland where witness intimidation was always a very real problem? It was suggested from time to time during those years that witnesses might give evidence from behind a screen. This was the 'pragmatic' solution to the problem. But it was always rejected as being inconsistent with a fundamental principle of the common law.

It is said that there is now great urgency because of cases currently before the courts, or in the pipeline. As for cases before the courts they cannot in any event be saved by retrospective legislation. This does not mean that 'murderers will walk free'. No doubt trial judges will in every case order a retrial in the light of whatever legislation may be passed.

The same applies to cases in the pipeline.

There will be some delay in bringing these cases to trial. But any such delay is a small price to pay for getting the legislation right.

In the course of his speech in R. v. Davis Lord Bingham said, 'By a series of small steps, largely unobjectionable on their own facts, the courts have arrived at a position which is irreconcilable with long-standing principle.' He quoted the remark of another great judge who said that there is 'no greater danger of usurpation than that which proceeds little by little'. One can see exactly the same dangerous process at work in the CounterTerrorism Bill which comes before the House of Lords next week. …

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