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Conceptualising Confrontation | Part 7 | Concluding Notes

This is the final part of a series of blog posts I’ve been putting out, under the rubric of ‘Conceptualising Confrontation’, since the spring of 2011. To read the other parts in the series, go to the Criminal Law page on this blog.

The sole and decisive rule can be defended. Its central premise is that convictions based on untested evidence are unfair, no matter how reliable the judge deems it to be. Far from being a concept alien to the adversarial common law trial, it is merely an expression of the right of confrontation crafted in English common law over the last three centuries. As Sedley LJ put it in Secretary of State for the Home Department v AF [2008] EWCA Crim 1148; [2010] 2 AC 269:

…it is in my respectful view seductively easy to conclude that there can be no answer to a case of which you have only heard one side. There can be few practising lawyers who have not had the experience of resuming their seat in a state of hubristic satisfaction, having called a respectable witness to give apparently cast-iron evidence, only to see it reduced to wreckage by ten minutes of well-informed cross-examination or convincingly explained away by the other side’s testimony. [see para 113]

This series of posts on confrontation has sought to develop a model of confrontation based on the complex and sensitive relationship between four core components. The right to confrontation is not inflexible – it is elastic enough to withstand a number of incursions, including restrictions on the accused’s ability to view the witness and on the form and content of cross-examination. However, I argued that the tensile strength of the right yields when the accused’s right to know the identity of his accusers is refused.

In Part 3 of this series especially, I sought to argue that the disclosure of identity of component is essential to the functioning of the right to confrontation as a whole. In this sense, this component may be described as the ‘keystone’ of the confrontational model.

Witness anonymity orders, by their very nature, reduce this keystone component to the point of non-existence. When this happens, by virtue of the component’s fundamental nature within the structure of confrontation, the other three components disappear. The accused’s only means of challenging the evidence against her, the right of confrontation, is stripped away.

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