About a week ago or so I put up a post on anonymity. That post set out to do two things. First, to draw a parallel between the ongoing super-injunction debate and the granting of witness anonymity orders in criminal trials. Secondly, to point out the remarkable disparity of coverage given to both issues. The media (print and online) cannot get enough of super-injunctions (for obvious reasons). However, the question of whether a person’s guilty or lack thereof can be established via the deployment of anonymous (and, often unchallengeable) evidence past most of us by.
It’s safe to say that I have a bee in my bonnet about anonymity. As someone committed to the practising advocacy, I’m fascinated by the way trials work (particularly, the English notion of a trial). To cut a long story short, I see the use of secret witnesses as a step too far. So, in this little series of posts I’m going to set out my reasons for denouncing the use of anonymous witnesses as intrinsically (and extrinsically) unfair and I’ll also advance my own humble theory of the right anonymity orders bite into – the much misunderstood Right to Confrontation. Here goes…
CONCEPTUALISING THE RIGHT TO CONFRONTATION
In his commentary on the recently enacted hearsay provisions contained in the Criminal Justice Act 2003, Professor John Spencer stated:
It is generally accepted that an essential requirement for a fair trial is an opportunity for the defendant to challenge his accusers. This is often called the ‘right to confrontation’. (J. Spencer, Hearsay Evidence in Criminal Proceedings (Oxford, 2008), p. 3)
The assertion that the defendant’s right to confront his accusers is an essential requirement for a fair trial draws considerable support from a wide range of sources. In 1720, for instance, the Court of Chancery held in Duke of Dorset v Girdler (1720) Prec Ch 532 that ‘the [defendant] ought not to be deprived of confronting the witnesses [against him]’. More recently, in Pointer v Texas (1965) 380 US 400, 404 the US Supreme Court described the right to confrontation as ‘a fundamental right essential to a fair trial.’ The right to confrontation has also be codified, albeit in varying nomenclature in, inter alia, the Sixth Amendment to the US Constitution, the European Convention on Human Rights (article 6(3)(d)), the International Covenant on Civil and Political Rights (article 14(3)(e)), the Statutes of the International Criminal Tribunals for the Former Yugoslavia (article 21(4)(e)) and Rwanda (article 20(4)(e)) and the Statute for the International Criminal Court (article 67(1)). However, in spite of the abundance of rhetoric supporting the notion that the right to confrontation is a special right of prominent standing, there is, as Professor Ian Dennis notes in an excellent paper on the subject, “a lack of agreement about what ‘confrontation’ actually means.” (I. Dennis, ‘The right to confront witnesses: meanings, myths and human rights’,  Crim LR 255, 256) All of this raises three very important questions. First, what are the contents of the right to confrontation? Second, do the contents of the right combine to form a single unitary conception of confrontation, or do they exist as linked but distinct interests? Finally, whether or not the contents of the right to confrontation form a unitary right or a collection of separate interests, can the contents of the right be arranged into a hierarchy of importance?
Professor Dennis reasons that the ambiguity surrounding the meaning of the right is attributable, at least in part, to the fact that ‘judges and commentators understand different things by the term confrontation.’ The British case of R v
Murphy (unreported, Crown Court of Northern Ireland, 12 April 1989), which is the first reported decision in the UK in which full anonymity was granted to prosecution witnesses in a criminal trial, is illustrative of the sort of confusion Dennis seems to be referring to. In Murphy the defendants were charged with the murders of two British soldiers at a paramilitary funeral. The defendants’ alleged participation in the offences had been captured on film by journalists who had been in attendance at the funeral. At trial the prosecution called 27 journalist witnesses in order that they could authenticate their video footage. The interesting aspect of the trial for our purposes is that the prosecution submitted that the journalist witnesses were in fear for their safety and the judge, acceding to a request for protective measures, ordered that the witnesses were to give their evidence from behind screens and that their real identities were not to be disclosed to the defence. The testimony of the media witnesses in Murphy was, to all intents and purposes, not disputed by the defence – their only purpose was to formally verify the provenance of the video material. However, the reasoning employed in extending them full anonymity was flawed because the court conflated two kindred but conceptually distinct issues: “authorities for withholding the identities of witnesses and parties from the press and public…were cited as direct support for the much broader principle that such information could also be withheld from the defence” (see, D. Lusty, ‘Anonymous Accusers: An Historical & Comparative Analysis of Secret Witnesses in Criminal Trials’, (2002) Sydney Law Review 361, 391). In his survey of anonymous witness evidence, Lusty suggested that ‘the whole issue of witness anonymity was treated as a relatively minor departure from the principle of open justice, rather than a major departure from the right of confrontation.’ Whilst I generally agree with the general force behind Lusty’s critique, he appears to have treated the principle of open justice as being divorced from the broader construct of the right to confrontation. I’d argue that in this respect Lusty’s conception of the right to confrontation is incorrect.
The better view is that the right to confrontation is a ‘cocktail’ of a number of rights and interests, of which the principle to open justice is but one. The job is to indentify what other ingredients are to be included in this confrontational model. It is here that the recent writings of Professor Dennis and Stefano Maffei (see, S. Maffei, The European Right to Confrontation in Criminal Proceedings (Groningen, 2006)) help in clearing the conceptually murky waters of the right to confrontation.
Professor Dennis argues that the right to confrontation is composed of at least four rights: the right to a public trial; the right to face-to-face confrontation; the right to cross-examination; and the right to know the identity of the accuser. A similar analysis is offered by Maffei’s ‘confrontational paradigm’. According to Maffei, witness testimony is received in accordance with the confrontational paradigm when: the declarant [witness], whose identity is known to the defence, gives evidence in open court, facing the accused and the trier of fact, under the obligation of telling the truth, and the defence has a chance to challenge the statements through contemporaneous adverse-questioning.
Maffei’s analysis is broader than Dennis’ and consists of six components: publicity; the presence of the accused; the presence of the fact-finder; an obligation on the witness to be sincere; disclosure of the witness’s real identity; and the opportunity for cross-examination. From the point of view of ascertaining the ingredients of the confrontational model, Maffei’s confrontational paradigm does not substantially differ from Dennis’, save in two respects. First, Maffei distinguishes between the reception of testimony in the presence of the accused and the reception of testimony in the presence of the trier of fact. Second, Maffei’s model requires that the witness be placed under a special duty to tell the truth whereas Dennis, by omission, appears not to view the swearing of an oath to be an essential requirement for the right to confrontation.
The next step is to look at the individual components of the confrontational model identified by Dennis and Maffei in closer detail, to which I’ll turn in a post next week…