In Conceptualising Confrontation | Part 2 | The Contents of the Right I suggested that the Confrontational Model (or, the right of confrontation) consists of the four following ingredients:
(i) Publicity and transparency in the entire adjudicative process;
(ii) The accused must have the opportunity to subject witnesses to visual and auditory observation at a time contemporaneous with the reception of that witness’s evidence;
(iii) The witness must be subjected to adverse-question by or on behalf of the accused; and
(iv) The real legal identity of the witness must be disclosed to the accused prior to the reception of the witness’s evidence and the accused be permitted to identify the witness visually and auditorily.
Occam’s razor has been taken to the two additional components posited by Maffei (see Part 2 for more on Maffei’s model). A requirement that the witness be observed by the trier of fact was rejected on the basis that this requirement will be satisfied as a result of the satisfaction of component (ii) above. Maffie’s confrontational paradigm also required that the witness be placed under an obligation of sincerity. This requirement has been excluded by the model advanced here for want of a discernible instrumental benefit that such a requirement would furnish to the accused. In the round therefore, my model of confrontation broadly accords with that advanced by Professor Dennis. Where I part with Dennis is in relation to the relationship between the four components of the model. Dennis states that we should understand confrontation as a ‘bundle’ of the four components listed above. The suggestion here appears to be that the four components share a symbiotic but nevertheless separate relationship. If one takes this analysis further, one could suggest that there is in fact no such right as ‘confrontation’, but rather a series of distinct rights bearing ‘confrontational’ qualities. I suggest that such an analysis is flawed because it fails to take account of the effect the removal of one of the four components has on the other three. The alternative view I seek to develop is that the four components are better viewed as essential organs within a single, unitary structure. In other words, the four components so identified combine and interlock to form the right of confrontation. This view draws support from the fact that there is an observable mutual dependency between the four components. By way of example, consider where a witness is to give evidence screened from the accused and the public. In this situation, the purpose of the screen is to interfere with component (ii) (face-to-face confrontation) but it will also encroach upon component (i) (publicity) since screening the witness literally diminishes the transparency of the proceedings. When the four components of confrontation are viewed in this way, it becomes possible to place them into an internal hierarchy. Such an order can be observed by considering the extent to which each of the components are dependent on the satisfaction the other three. The more components required to be satisfied for a single component to exist, the lower placed that component is in terms of importance. The fewer components required to be satisfied, the higher ranked the component in question.
(i) Publicity – Firstly, disclosure of identity is necessary. Any measure taken to withhold the identity of witness from the accused must necessarily result in the witness’s identity being unavailable to the public to the same extent. Secondly, given that publicity requires transparency over the entire adjudicative process, cross-examination is required since this is a crucial stage in the reception of evidence. Finally, the face-to-face confrontation component requires that the accused be permitted to visually and auditorily observe the witness at a time contemporaneous to the reception of their evidence by the court. This component must therefore coincide with that of cross-examination. Note that none of the other components is dependent on publicity, placing this component at the bottom of the hierarchy.
(ii) Face-to-face confrontation – Disclosure of identity is once again required, since this requirement embraces the notion that the accused be permitted to visually identify the witness. Save in cases where the accused is expressly prohibited from personally cross-examining the witness, cross- examination is also required in recognition of the accused’s right to appear unrepresented.
(iii) Cross-examination – In many cases, the accused will seek, during cross- examination, to undermine the testimony of the witness by impeaching the witness’s credibility. Such a line of questioning will only be possible where the accused has been able to conduct an investigation into the witness’s background. This in turn will require the identity of the witness to be disclosed to the defence. Therefore, the disclosure component is required.
(iv) Disclosure of identity – This component is entirely free-standing. It cannot be satisfied by the existence of any one of the other three components. Crucially, the other three components are dependent on the existence of disclosure of identity, placing this component at the top of the hierarchy.
My analysis of the four components ranks disclosure of identity highest in terms of importance and I suggest that the disclosure requirement represents the ‘keystone’ building block of the right of confrontation. Where this component is left unsatisfied, the operation of the other three is severely emasculated. It is against this conceptual model that the use of witness anonymity orders falls to be considered in a post to follow in the next few days.