Skepticlawyer

Two things jumped out at me after sitting today’s evidence exam (apart from the fact that the seats in the Examination Schools are bloody uncomfortable). The first was the SCOTUS ruling in Heller, where the Court held 5-4 that owning a gun for self-defence purposes was a Second Amendment right, while the second was the House of Lords ruling in Davis, which held that convictions secured wholly or largely on the basis of evidence from anonymous witnesses contravened Article 6(3) of the European Convention on Human Rights and Fundamental Freedoms.

Article 6(3) protects the ‘right of confrontation’ – that the accused has the right (via his counsel) to put questions to witnesses in cross-examination. It’s a Constitutional right in the US, and was always a vital part of the orality enshrined at common law. In Davis, Lord Mance argues that its insertion in the European Convention was almost certainly thanks to a common lawyer, as civilian law always gave a great deal more scope to anonymous witnesses and informers (with predictable results).

Both decisions have caused something of a contretemps. In the US, it seems that the role of the Second Amendment as a bulwark against state tyranny has gone by the by, as this piece at Reason makes clear. In the UK, by contrast, HM Government is having 14 sets of kittens and promising to abrogate the Lords’ ruling. Both cases came together in one paper on the exam: we were asked to consider why executive (if not judicial) views of the ‘right of confrontation’ seem to be diverging in the two great common law jurisdictions. I got chatting to an American BCLer after the exam, and – apart from doing what law students everywhere do, shooting the shit about all the stuff we’d accidentally left out of our answers – we batted a few of our theories about this topic back and forth. My American colleague – who, incidentally, is a DC native, and it’s DC’s handgun ban that’s just been rolled by the SCOTUS – made a point I found extremely pertinent. He had the balls to put it in his paper, too, which suggests quite a bit of thought has gone into it.

He argued that the reason that ‘the right of confrontation’ in the US hasn’t been weakened to the same degree that it has in the UK isn’t only constitutional. After all, the UK and the US fell out of the same legal tree. He thinks it’s partly because it’s actually harder to intimidate witnesses in the US. And it’s harder to intimidate witnesses in the US because so many Americans own guns, particularly handguns (easy to hide, easy to use etc). He told me that in his all his time in DC, he learned the hard way that it was easier for criminals to intimidate DC witnesses because it was harder for people to defend themselves. When he worked in other US states with more liberal gun laws, witness intimidation ‘was as rare as oysters in Kansas’. He added that he found the English attitude to self-defence ‘extraordinary’, and described the Martin decision as something he considered ‘incomprehensible’ as an American.

Now this guy is an Obama Democrat, not given to wingnut stalking horses, and very thoughtful: ‘I say this with reluctance, because I hate the ‘gun culture’ in the US. But I do wonder if the price we pay for disarming private citizens is laws that allow people to be convicted on evidence from anonymous witnesses. If you can’t protect yourself, it’s much safer to say “I won’t testify. I’m afraid I’ll be next”.’

Davis was borne from the Metropolitan Police’s ‘Operation Trident‘, which – among other things – was designed to curb organised and gun crime in London, especially in the Afro-Caribbean community. Many of its convictions are built around anonymous witnesses. It’s hard not to hear the despair in one senior Met Officer’s observations:

Defendants in criminal trials now have a legal right to know the identity of witnesses testifying against them.

John Yates told the Daily Telegraph convicted criminals could appeal and be freed if witnesses refused to reveal their identities in a retrial.

Ministers said the issue of protecting witness identities would be addressed.

Police in London believe up to 40 criminals could now launch appeals, the Telegraph reports.

Mr Yates, who is assistant commissioner of the Met, made his comments after Iain Davis’ double murder conviction was quashed by the Law Lords.

He said: “A lot of good work being undone, and this will play out so badly in terms of those we are trying to reach out to in communities. It almost feels like we have broken our word.

“To see clearly guilty people walking free is just awful”.

Experienced criminal lawyers have known for a while that the anonymous witnesses problem was sleepwalking the common law over a cliff not of its own making, and it’s now likely that there will be an almighty shit-fight in Strasbourg over this. Jack Straw (as part of his new law) is also promising to limit the right to appeal for already decided cases which – and I can predict this with absolute certainty – will lead to a ‘certificate of incompatibility’ (under section 4 of the Human Rights Act) and appeal to the European Court of Human Rights.

What if my American friend is right?

I think this is something you could analyse statistically, and I think it’s worth doing. Compare jurisdictions with a robust right to self-defence (including both broad legal definitions and significant private gun ownership). Control for handguns and long arms. Control for armed and unarmed police. Control for anything else that emerges as relevant. Test the data to destruction. It would take a while (there’s a Freakonomics-ish law and economics DPhil in there, I reckon), but it’s worth knowing the answer.

(Thanks Ben for letting me blog this – it’s your great idea, my friend; btw the video shows some Oxfordians giving Jack Straw the treatment he so richly deserves).

UPDATE: Interesting chat on this going on over at the ALS.