Lord Lloyd of Berwick says that the government’s emergency legislation to overturn their lordships’ ruling on witness anonymity is part of a ‘gradual usurpation’ of our liberties

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 long-established 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.

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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 Counter-Terrorism Bill which comes before the House of Lords next week.

I leave on one side the obvious example of ‘gradual usurpation’, namely, the step by step increase from seven days detention without charge which Parliament enacted after very careful consideration as recently as 2000 to the 42 days now proposed. I leave that proposal on one side since it has already received so much attention in the House of Commons and the media. I hope it will be defeated in the House of Lords.

Instead I refer to other proposals in the Bill which have been largely overshadowed, and in particular the proposal to allow post-charge questioning by the police. The bill as originally published did not say for how long the defendant might be questioned after being charged, nor when if ever the questioning must cease. Nor did it say whether the constable asking the questions would need the authority of a senior police officer. No doubt the government thought that the proposal would be non-controversial. The gaps could be filled in later. Post-charge questioning would reduce the need for even longer detention without charge. It was thus a simple and ‘pragmatic’ solution to the problem.

Happily there is an alternative route proposed in the Bill. It would provide for post-charge questioning to take place at a preparatory hearing before a judge in the Crown Court. I say at once that I have no difficulty with this alternative proposal. Indeed I would welcome it.

But I have very great difficulty in allowing the police to continue their questioning after charge, even if authorised by a superintendent, as is now proposed. It is inconsistent with the elaborate charging regime established as recently as 2003 whereby it is the police who collect the evidence by questioning the defendant or otherwise, the custody officer who decides whether there is enough evidence to convict the defendant, but the independent Crown Prosecution Service who then make the decision whether to charge or not. Once the defendant has been charged the police can of course continue their investigation. But they cannot continue to question the defendant. For if the defendant could be questioned after charge, there would be no point in having a rule that he must be charged (or released) as soon as there is enough evidence to convict him. That is the law as it now stands.

What is the reason for this rule? In the first place there is the obvious danger that the questioning will become oppressive. This is something against which judges have always guarded. But there is a more important reason. Once the case has been handed over to the Crown Prosecution Service, and the defendant has been charged, the battle lines are drawn. The trial process has begun. How then could it be right for the police to interrogate the defendant after he has been charged, and for the questioning to continue up to the very door of the court, unless the defendant is given the same right to interrogate the witnesses for the prosecution? Post-charge questioning is in my view inconsistent with the defendant’s basic right to ‘equality of arms’ and a fair trial. It is therefore wrong in principle. Yes, let us have post-charge questioning if it takes place at a preparatory hearing in the Crown Court. But not otherwise.

Lord Lloyd of Berwick is a retired law lord and former chairman of the Security Commission.

This article first appeared in the print edition of The Spectator magazine, dated