Strasbourg again favouring safety of conviction over cross-examination of witnesses?
30 September 2016
Simon Price v. the United Kingdom, Application no. 15602/07, 15 September 2016 – read judgment.
In a unanimous decision, the European Court of Human Rights has held that the proceedings that lead to the conviction of an individual for drug trafficking charges were entirely compliant with Article 6, ECHR. Despite the inability to cross-examine a key prosecution witness, the Court considered that in light of the existence of supporting incriminating evidence (amongst other factors) the proceedings as a whole were fair.
by Fraser Simpson
In June 2004 a ship, entering the port of Rotterdam, was searched by customs officials and found to contain a quantity of cocaine worth £35 million. The applicant, Simon Price, was arrested after he made enquiries into the container shortly after. He was subsequently charged with an offence under s.20, Misuse of Drugs Act 1971, and with the attempted importation of drugs from Guyana to the United Kingdom via the Netherlands and Belgium.
Security Measures (para. 9)
The applicant’s trial took place between May and July 2005. In a previous, unrelated set of criminal proceedings the applicant had been involved in “jury fixing”. As a result, the prosecution applied for a number of security measures, including the erection of protective screens to shield the jury and applicant from the public gallery. The defence initially opposed such measures due to the potential “sinister feel” that would be created. However, the defence agreed that if the entirety of the public gallery was covered, as opposed to part of it, then they would accept the measures. Accordingly, the trial judge made the order requested by the prosecution. Following the instillation of the screens, the defence tried to withdraw their agreement and, instead, suggested that the proceedings should be heard in camera. The trial judge refused such a request as the screens, in his opinion, would not impinge upon the fairness of the proceedings in any way.
The Trial (paras. 12-40)
The primary issue at the trial was whether the applicant had intended to import the drugs to the UK. The key prosecution witness, a customs broker for the shipping agents (VO), that supported the theory that the final destination of the shipment was the UK provided a number of witness statements to officials. However, he refused to attend the applicant’s trial and give live evidence. Despite attempts to persuade VO to attend the trial, and the offer to provide evidence via live video link, he continued to refuse. As a result, pursuant to s.116, Criminal Justice Act 2003, VO’s statements were instead read to the jury.
At the trial, further evidence was provided by a UK customs officer (BT). During this evidence he referenced a conversation between VO and a woman from the importing company that the applicant had managed. VO had referenced this same conversation during his statements, but could not name the individual he had spoken to. However, BT referenced the woman by name during his evidence. The applicant claimed that BT could have only obtained this information if the telephone call had been intercepted by authorities. Prior to the start of the trial, a discussion took place between the parties and the trial judge as to the allegedly intercepted call. The prosecution neither confirmed nor denied that an interception had taken place. However, they did admit that they had reconsidered their duty of disclosure, and that there was nothing further to add. The trial judge therefore refrained from making a ruling on the issue.
During the summing-up to the jury, the trial judge addressed both the existence of the security measures and the hearsay evidence of VO. He highlighted that the security measures should not be seen as “any reflection whatsoever on the defendant” and that “they are entirely irrelevant to the issues as to whether he is ‘guilty’ or ‘not guilty’”. Additionally, the evidence of VO suffered from inherent difficulties due to the inability for the defence to cross-examine. The trial judge instructed the jury to only take into account VO’s evidence if the jury felt it was reliable.
Following deliberations, which were punctuated by repeated warnings by the trial judge regarding VO’s evidence, the jury unanimously convicted the applicant on 13 July 2005.
Appeal (paras. 41-51)
The applicant’s appeal to the Court of Appeal in relation to the potential use of evidence obtained by way of undisclosed interception, the absence of VO at the trial, and the impact of the security measures on the fairness of the proceedings was rejected on 20 February 2007.
Mr Price subsequently applied to the European Court of Human Rights (“the Court”). He argued that the domestic proceedings had, on similar grounds to those raised in front of the Court of Appeal, failed to comply with the Right to a Fair Trial contained within Article 6.
The Strasbourg Court
- Security Measures (paras. 77-94)
The Government submitted that such measures were implemented for an important purpose – to “protect the independence, impartiality and safety of the jury”. The measures taken were the minimum necessary and the trial judge had specifically considered that such measures would have no impact on the fairness of the proceedings. Finally, the trial judge had specifically highlighted that the security measures had no bearing on the issue of the applicant’s guilt.
The applicant, in contrast, believed that the cumulative effect of all the security measures impacted upon the fairness of the proceedings. If security measures had been considered necessary, the applicant submitted that less restrictive measures were available.
The Court, previously, has held that the physical attributes of a courtroom, or their layout, can impact upon both the fairness of the proceedings and the presumption of innocence under Article 6(2). The use of security measures can, in certain circumstances, result in proceedings falling short of the requirements of Article 6. However, it is necessary to consider the nature, extent, method of application and the underlying justifications for the particular measures.
In the circumstances of the present case, the Court held that the security measures were compatible with Article 6. The reasons that the trial judge relied upon for adopting measures were sufficient. The domestic authorities also carefully considered the impact that such measures could have on the fairness of the proceedings. The Court agreed with both the trial judge and the Court of Appeal that the security measures alone could not threaten the fairness of the proceedings. Finally, the trial judge had been careful to ensure that the measures did not prejudice the applicant in the eyes of the jury. As a result, the applicant’s complaints regarding the security measures were rejected as “manifestly ill-founded” under Article 35(3)(a).
- Duty of Disclosure (95-105)
Mr Price also complained that authorities must have intercepted the call between the woman from the company and VO and the failure to disclose this caused him significant prejudice. The applicant contended that the phone call would have contained evidence that may have been relevant to his defence and, therefore, should have been disclosed.
The Government argued that such a complaint was manifestly ill-founded due to Article 6 not laying down rules on the admissibility of evidence. There was a general need to disclose evidence that would assist the accused, but this could be departed from if necessary to uphold a public interest concern (such as the need to keep investigative techniques secret). Even if such a duty did exist, the fact that an interception had taken place was “pure speculation”.
A number of rights fall under the umbrella of Article 6 despite the fact that they are not expressly referred to. The need for adversariality and respect for the equality of arms are two of these implied rights. The equality of arms includes the right for both parties to “have knowledge of and comment on the observations filed” by the other party. In practice, this requires the prosecution to disclose all evidence, whether for or against the accused. However, as argued by the Government, such a right is not absolute.
In Jasper v. the United Kingdom [GC], Application no. 27052/95, 16 February 2000, the Grand Chamber considered the withholding of telephone intercept evidence from the defence without such evidence being placed before a trial judge. The Grand Chamber found no violation of Article 6. First, at the time of the trial, it had not been established that any such intercepted evidence existed. Secondly, the proceedings had respected the equality of arms as both the prosecution and defence had been unable to refer to such evidence. The Court in the present case could find no reason to distinguish Mr Price’s trial from Jasper. Accordingly, the complaint regarding the failure to disclose intercept evidence was manifestly ill-founded and rejected by the Court.
- Admission of hearsay evidence (107-133)
The only complaint of the applicant to pass the initial admissibility hurdle was the submission that the inability for the applicant to cross-examine VO at the trial violated the right to cross-examine witnesses under Article 6(3)(d).
The Court’s case law, following a number of Grand Chamber judgments, is relatively well established. When considering the admission of evidence from absent witnesses, the Court purports to apply a three-step process in assessing whether Article 6 has been complied with:
Were there good reasons for the witnesses absence from the trial
Was the absent witness’ evidence “sole or decisive”?
Did sufficient counterbalancing factors exist?
Good reasons? (paras. 117-121)
Previously, the lack of good reasons for a witness’ absence could automatically result in a violation of Article 6 (for example (Gabrielyan v. Armenia, Application no. 8088/05, 10 April 2012 and Lučić v. Croatia, Application no. 5699/11, 27 February 2014). However, the Grand Chamber in Schatschaschwili v. Germany [GC], no. 9154/10, 15 December 2015, made it clear that the lack of good reasons could not be conclusive as to the unfairness of the proceedings. If no such good reasons existed, then this would merely be a factor to weigh in the balance when assessing the overall fairness of the proceedings.
In the present case, the absence of the witness was due to his refusal to attend the trial. The Court therefore considered whether “all reasonable efforts” had been made to secure the attendance of VO. The prosecuting authorities had repeatedly written to VO, as had the defence, however he still refused to attend. The Court highlighted the potential for a request to be made to foreign judicial authorities to compel a witness to give evidence under the European Convention on Mutual Assistance in Criminal Matters. However, the applicant had not raised such potential actions. Due to the lack of detailed submissions on the relevance of the European Convention, the Court refused to reach a final decision as to whether “all reasonable efforts” had been made.
Sole or decisive? (paras. 122-127)
The Court highlighted the wealth of other evidence that supported a conviction besides the statements of VO. The evidence of the absent witness was therefore not “sole or decisive” in securing the conviction. Despite this conclusion, following the Grand Chamber’s decision in Schatschaschwili, there is still a need to consider whether sufficient factors to counterbalance any handicaps that the defence may have been subjected to by VO’s non-attendance.
Counterbalancing factors (paras. 128-131)
The extent of counterbalancing factors necessary to uphold the fairness of proceedings depends upon the importance of the absent witness evidence. In light of the existence of other substantial evidence…incriminating the applicant”, the Court concluded that the statutory scheme for assessing whether absent witness evidence should be admitted (s.116, Criminal Justice Act 2003) and the summing-up of the trial judge were sufficient counterbalancing factors.
Accordingly, the Court found that the admission of such statements did not violate Article 6(1) in conjunction with Article 6(3)(d).
Previously I made comments on a similar decision earlier this year in Seton v. the United Kingdom, Application no. 55287/10, 31 March 2016 (see previous UKHRB coverage here) highlighting the dilution of the right contained within Article 6(3)(d). Instead of upholding the right to cross-examine witnesses, the Court’s current approach places an undue weight upon the existence of supporting incriminating evidence.
The impact of the emphasis placed on sufficient supporting evidence is again seen in this judgment. Fundamentally, it appears that the Court’s three-step test from Al-Khawaja and Tahery v. the United Kingdom [GC], Application nos. 26766/05 and 22228/06, 15 December 2011 has almost morphed into a single step test – was there other supporting evidence securing the conviction other than the evidence of the absent witness? The previous first step regarding the existence of good reasons for non-attendance is no longer decisive. Secondly, in assessing whether the evidence in questions was “sole or decisive”, the existence of other incriminating evidence clearly influences the Court’s conclusion. Finally, the Court drastically lowers the threshold for the sufficiency of counterbalancing factors in the event that the absent witness evidence is less important (which, again, is heavily influenced by the existence of additional incriminating evidence!).
It appears that the stronger the case against the applicant, the less likely it is that the right under Article 6(3)(d) will need to be respected.