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26 June 2008
Issue: 7327 / Categories: Case law , Public , Law digest , Human rights
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CRIMINAL LITIGATION

R v Davis [2008] UKHL 36, [2008] All ER (D) 222 (Jun)

(i) There is a presumption in favour of open justice and confrontation of a defendant by his accuser.
(ii) It is possible in principle to allow departures from the basic rule of open justice, but a clear case of necessity has to be made out.
(iii) The court should be sufficiently satisfied that the witness’s reluctance to give evidence in the ordinary manner is genuine and that the extent of his fear justifies a degree of anonymity.
(iv) Anonymising expedients may include the withholding of the witness’s name and address, screening of the witness from the defendant and the public, screening from the defendant’s legal advisers, disguising of the witness’s voice from the defendant and the public and disguising of the voice from the legal advisers.
(v) The more of these expedients the court might consider adopting, the stronger the case must be for invading the principle of open justice. Determination of the question depends upon balancing to ensure that the trial continues to be fair.
(vi) An important consideration is the relative importance of the witness’s testimony in the prosecution case. If it constitutes the sole or decisive evidence against the defendant, anonymising which prevents or unduly hinders the defendant and his advisers from taking steps to undermine the credit of the witness is most likely to operate unfairly. It is a question of fact in any given case what, if any, measures would be compatible with the fairness of the trial. Courts trying criminal cases should not be over-ready to resort to such measures. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the European Convention on Human Rights (the Convention). As a general rule it is unlikely that the trial will be fair if a very substantial degree of anonymising of evidence is permitted where the testimony of the witnesses concerned constitutes the sole or decisive evidence implicating the defendant (Lord Carswell at 59).

Issue: 7327 / Categories: Case law , Public , Law digest , Human rights
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MOVERS & SHAKERS

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

NLJ Career Profile: John McElroy, London Solicitors Litigation Association

From first-generation student to trailblazing president of the London Solicitors Litigation Association, John McElroy of Fieldfisher reflects on resilience, identity and the power of bringing your whole self to the law

Clarke Willmott—Elaine Field

Clarke Willmott—Elaine Field

Planning and environment team expands with partner hire in Manchester

Birketts—Barbara Hamilton-Bruce

Birketts—Barbara Hamilton-Bruce

Firm appoints chief operating officer to strengthen leadership team

NEWS
A landmark Supreme Court ruling has underscored the sweeping reach of UK sanctions. In NLJ this week, Brónagh Adams and Harriet Campbell of Penningtons Manches Cooper say the regime is a ‘blunt instrument’ requiring only a factual, not causal, link to restricted goods
Fraud claims are surging, with England and Wales increasingly the forum of choice for global disputes. Writing in NLJ this week, Jon Felce of Cooke, Young & Keidan reports claims have risen sharply, with fraud now a major share of litigation and costing billions worldwide
Litigators digesting Mazur are being urged to tighten oversight and compliance. In his latest 'Insider' column for NLJ this week, Professor Dominic Regan of City Law School provides a cut out and keep guide to the ruling’s core test: whether an unauthorised individual is ‘in truth acting on behalf of the authorised individual’
Conflicting county court rulings have left landlords uncertain over whether they can force entry after tenants refuse access. In this week's NLJ, Edward Blakeney and Ashpen Rajah of Falcon Chambers outline a split: some judges permit it under CPR 70.2A, others insist only Parliament can authorise such powers
A wave of scandals has reignited debate over misconduct in public office, criticised as unclear and inconsistently applied. Writing in NLJ this week, Alice Lepeuple of WilmerHale says the offence’s ‘vagueness, overbreadth & inconsistent deployment’ have undermined confidence
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