Protective measures imposed by the trial court hampered the conduct of the defence in a manner and to an extent which was unlawful and rendered the trial unfair said Lord Bingham in R v Davies [2008] UKHL 36 – 18 June 2008.  The House of Lords unanimously invited the Court of Appeal to quash a murder conviction and decide, if application were made, whether to order a retrial.

This ruling led directly to another murder trial (R v Johnson & Austin) being halted at the Old Bailey today.  Judge Paget said the trial had been “derailed” by their Lordships’ decision.  A senior police officer claimed that upwards of 40 other cases may be affected.

Reacting almost immediately, the Justice Secretary, Jack Straw, is reported as saying that there was a real need for some witnesses to have their identities protected and vowed to change the law as quickly as possible to allow the right of anonymity to be restored.

That, of course, begs the question whether English law has ever recognised a right of anonymity and, if so, to what extent.

In Davies the trial judge had ordered a number of protective measures:

(1)   The witnesses were each to give evidence under a pseudonym.

(2)   The addresses and personal details, and any particulars which might identify the witnesses were to be withheld from the appellant and his legal advisers.

(3)   The appellant’s counsel was permitted to ask the witnesses no question which might enable any of them to be identified.

(4)   The witnesses were to give evidence behind screens so that they could be seen by the judge and the jury but not by the appellant.

(5)   The witnesses’ natural voices were to be heard by the judge and the jury but were to be heard by the appellant and his counsel subject to mechanical distortion so as to prevent recognition by the appellant.

Although the defendant’s counsel was not precluded by the protective measures from the opportunity to see the witnesses as they gave evidence, he regarded it as incompatible with the relationship between counsel and client to receive information which he could not communicate to the defendant in order to obtain instructions, and he therefore submitted to the restriction imposed upon the defendant.  It was not suggested before the House of Lords that he should have acted otherwise.

Crucial to the decision in the case is that without the three witnesses whose evidence was subject to the protective measures, the defendant could not have been convicted.

Lord Bingham’s Opinion deals extensively with the English common law that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he may cross-examine them and challenge their evidence.  This common law right to be confronted by one’s accusers was included within the colonial constitutions of several North American colonies and, by the sixth amendment to the United States constitution adopted in 1791 it was provided “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …” That rule had been strictly applied.

There had been long recognised exceptions to the right of confrontation in this country examples of which were dying declarations and statements forming part of the res gestae, and further exceptions had been enacted by statute.  But there had until recently been no precedent for protective measures of the mind under consideration in the instant case even when the problem of witness intimidation had been extreme.  A Commission chaired by Lord Diplock reported in 1972 of the problem of witness intimidation in Northern Ireland but could see no way of keeping the identity of witnesses secret without gravely handicapping the defence or exposing counsel to a conflict between his duty to his client and a duty to the state inconsistent with the role of the defendant’s lawyer in a judicial process.

In other countries such as New Zealand and South Africa the right to confrontation had not achieved constitutional protection but had been treated as an important right.

Lord Carswell added that an important consideration was the relative importance of the witness’s testimony in the prosecution case.  As a general rule it was unlikely that the trial would be fair if a very substantial degree of anonymising of evidence was permitted where testimony of the witnesses concerned constituted the sole or decisive evidence implicating the defendant.

Their Lordships agreed with Lord Mance’s analysis of the jurisprudence of the European Court of Human Rights in the context of the Convention of Human Rights.  That court’s starting point was “the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them.  The Court’s task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which the evidence was taken, were fair.”   The Court had repeatedly stated that the use of anonymous evidence “is not under all circumstances incompatible with the Convention.”  In Doorson it added that principles of fair trial also required that in appropriate cases the interests of the defence were balanced against those of witnesses or victims called upon to testify and that a conviction should not be based either solely or to a decisive extent on anonymous statements.

Their Lordships recognised that it was not for the courts of this country to change the law and it may well be a matter for parliament to consider.  Lord Mance observed that there was in the present Strasbourg jurisprudence nothing that required states in their national law to balance anonymity against defendants’ rights, the primary question being whether English domestic law permitted anonymous evidence in any circumstances.  He felt there was a limited flexibility in exceptional circumstances.

There is little doubt that parliament will be called upon shortly to consider this issue but whatever legislation ensues should not be the subject of a knee-jerk reaction.  As Lord Bingham said in Davies, it cannot be assumed at the outset that the defendant is guilty and all that he says is false.  The common law has evolved over centuries to protect the innocent as well as to convict the guilty.  It may be better for a Royal Commission to be appointed to examine the issues with an instruction to report by an early date.

It was at least surprising that FIFA’s President, Sepp Blatter, should go as far as proposing that football clubs field a minimum of six domestic nationals given the plain European Community rules on free movement of workers.  It was perhaps astonishing that FIFA’s governing body endorsed that proposal.

The basic principle in the European Union is that citizens have the right to work and live in another Member State without being discriminated against on grounds of nationality.   It is enshrined in Article 39 of the EC Treaty and protects the right of a citizen to look for a job in another Member State; the right to work in another Member State;  the right to reside there for that purpose;  the right to remain there;  the right to equal treatment in respect of access to employment, working conditions and all other advantages which could help to facilitate the worker’s integration in the host Member State.

There is clear authority that professional sportsmen are not exempt from the provisions of Community law.  In Bosman the European Court of Justice held that the player had accepted an offer of employment in another Member State and that Article 39 applied.  Professional football was an economic activity to which the Treaty applied.  The transfer fee system between clubs which was aimed at compensating the former club for the training invested in the player who wished to leave, was incompatible with the free movement of workers.  It also held that Article 39 precluded rules which limited the number of professional players from other Member States who could play in football competitions.  The Court also held in Slovak  that a rule which limited the number of professional players who may participate in matches related to working conditions and was also discriminatory.

One may wonder why the FA and UEFA have reportedly backed the FIFA scheme in principle when it would be indefensible if a legal challenge were to be mounted.  Why would anyone wish to be shielded from legitimate competition?  Far from the short term illusory gains which may be envisaged, a fair playing field, as contemplated by European law, will ensure a raising of standards and equality of opportunity between all EU citizens.

The Appellate Committee of the House of Lords has once again sought to clarify the burden of proof in civil proceedings:  In Re B (Children) (Fc) [2008] EWCA Civ 282.  It also decided that if a legal rule required a fact to be proved (”a fact in issue”), a judge … must decide whether or not it happened.  “There is no room for a finding that it might have happened.  The law operates a binary system in which the only values are 0 and 1.  The fact either happened or it did not.  If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.  If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the fact is treated as not having happened.  If he does discharge it, a value of 1 is returned and the fact is treated as having happened.”  (per Lord Hoffmann)  Lady Hale added that if the judiciary in this country regularly found themselves in the state of mind where it could not [applying the appropriate burden and standard of proof] reach a conclusion, our civil and family justice systems would rapidly grind to a halt.  A judge was not permitted to sit on the fence.  He had to find for one side or the other.  Sometimes the burden of proof would come to his rescue:  the party with the burden of showing that something took place would not have satisfied him that it did.  But generally speaking a judge was able to make up his mind where the truth lay without needing to rely upon the burden of proof.

The standard of proof in civil cases, that is to say, the degree of persuasion which the tribunal must feel before it decides that the fact in issue did happen is that the occurrence of the fact in question was more likely than not. 

Some confusion had been caused by dicta which suggested that the standard of proof may vary with the gravity of the misconduct alleged or even the seriousness of the consequences for the person concerned.  Lord Hoffmann thought the time had come, once and for all, to say that there was only one civil standard of proof and that was proof that the fact in issue more probably occurred than not.

On the notion of inherent probabilities which Lord Nicholls had referred to in In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, Lord Hoffmann emphasised that Lord Nicholls was not laying down any rule of law.  The learned Lord had said, “the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability.  Fraud is less likely than negligence.  Deliberate physical injury is usually less likely than accidental physical injury.  A stepfather is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her.  Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.”  There is, however, only one rule of law:  namely, that the occurrence of the fact in issue must be proved to have been more probable than not.  Common sense, not law, requires that in deciding this question regard should be had to whatever extent appropriate, to inherent possibilities.  Therefore, if a child alleged sexual abuse by a parent, it was common sense to start with the assumption that most parents do not abuse their children.  But that assumption may swiftly be dispelled by other compelling evidence of the relationship between parent and child or parent and other children.

Lady Hale drew attention to Lord Lloyd’s opinion in In re H:  “In my view, the standard of proof ought to be the simple balance of probability however serious the allegations involved …”  He did not find it useful to use expressions such as the cogency of the evidence needed to tip the balance because, firstly, they were no more than statements of the obvious and, secondly, there was a danger that repeated use of the words would harden into a formula which, like other formulas (especially those based on metaphor) may lead to misunderstanding.

Lady Hale added that Lord Lloyd’s prediction proved only too corect.  Lord Nicholls’ nuanced explanation left room for the nostrum “the more serious the allegation, the more cogent the evience needed to prove it” to take hold and be repeated time and time again in fact finding hearings …”  It was time for us to loosen its grip and give it its quietus.

The offside law appears to be clear:  A player in is in an offside position if he is nearer to his opponents’ goal line than both the ball and the second last opponent.  A player is not in an offside position if he is in his own half of the field of play; or he is level with the second last opponent;  or he is level with the last two opponents.  The words nearer to his opponents’ goal line mean that any part of his head, body or feet is nearer to his opponents’ goal line than both the ball and the second last opponent.

According to this definition, when Ruud van Nistelrooy opened the scoring against France on Monday night he was clearly, as he appeared to believe himself, offside, because only the goalkeeper stood between him and the goal line when the ball was last played.  So the hundreds of thousands of fans who witnessed the incident at the stadium or on television screens around the world could be forgiven for thinking that the assistant referee had blundered.

Amazingly, therefore, officials have now sprung to the defence of their colleague.  It is said that Christian Panucci, the Italian defender who had seconds earlier stumbled off the pitch after a collision with his goalkeeper and was then lying next to the goal, was keeping van Nistelrooy onside.  David Taylor, the EUEFA General Secretary, is reported to have said, “This defender is still considered part of the game.  If we did not have this interpretation, what could happen is the defending team could step off the pitch to play offside and that is clearly unacceptable.  As a defender, you are in play unless you have permission to be off the field.”

This appears to be a wonderful piece of retroratiocination to justify an appalling error.  FIFA’s rules say “If a defending player steps behind his own goalline in order to place an opponent in an offside position, the referee shall allow play to continue and caution the defender for deliberately leaving the field of play without the referee’s permission when the ball is next out of play.”  That, of course, was not this case.  The player was injured.  He did not “step” off the field of play.  It was not ungentlemanly conduct and he was not awarded a yellow card as a caution.  And by no stretch of the imagination could it be said that van Nistelrooy was not nearer to his opponents’ goal line than his second last opponent.

Laws of society or rules of a game are useless if they are not clearly expressed and uniformly and fairly applied.  This law, far from being clear, was certainly not fairly applied and France have every reason to complain that they were unfairly treated.  The Netherlands went on to win the game handsomely with a fine and entertaining performance, but who knows what would have happened if this decision had been correctly made.