The Law Lords are right to resist the government

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.