FIRST CHAMBER
AS TO THE ADMISSIBILITY OF
Application No. 20657/92
by A.M.
against the United Kingdom
The European Commission of Human Rights sitting in private on
2 December 1992, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
E. BUSUTTIL
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
Mr. M. de SALVIA, Secretary to the First Chamber a.i.
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 30 November 1990
by A.M. against the United Kingdom and registered on 21 September 1992
under file No. 20657/92;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Irish citizen born in 1958. He is
represented before the Commission by Messrs. Oliver J. Kelly & Co.,
solicitors, of Belfast.
The facts of the case, as submitted by the applicant's
representatives and apparent from the documentation submitted, may be
summarised as follows.
On 1 June 1989 the applicant was convicted, with another man, of
the murder of two British soldiers in Belfast on 19 March 1988.
The trial was unusual in that, because the events arose from the
highly publicised funeral of a taxi driver, himself killed at the
funeral of persons who had been killed by British security forces in
Gibraltar, television cameras and an army helicopter had filmed the
events leading to the death of the two soldiers. The judgment of the
trial judge deals largely with the question of identification by police
officers of the applicant and his co-defendant from the various filmed
versions of the events. In the course of the trial the prosecution
applied for a direction that professional cameramen, journalists and
photographers employed by television companies and newspapers who had
taken films and photographs of the incidents should not be identified
in court, and, in particular, that when they gave evidence their faces
should not be seen by the accused or by the public or the press, but
only by the court and by the counsel and solicitors appearing on behalf
of the prosecution and the defence. The judge's reasons for acceding
to the application are as follows.
"Crown Counsel made the application on the ground that the
direction was necessary in the interests of the due
administration of justice because the witnesses from the media
who would be called by the Crown were concerned for their safety
if they were identified and Crown Counsel made the further point
that this is the first in a series of trials in which the Crown
would propose to call witnesses form the media who were present
on the Andersonstown Road on 19 March 1988.
Counsel for both accused did not object to the identities of the
witnesses being withheld from the press and the public and to
their faces being concealed from the press and the public,
provided that the accused could see them. The reasons why
counsel for the accused submitted that the accused should be able
to see the face of a witness and that that witness should be able
to see the faces of the accused was because of the possibility
that one of the accused, on seeing the witness, might realise
that the witness if asked by defence counsel, could say that he
(the witness) has seen that accused at a place in the general
area of the Andersonstown Road which was different from the place
where the Crown alleged he was at a particular time ...
I consider that those who take films and photographs for
television and the press at events in Northern Ireland, such as
[the present events] ... and who are called by the Crown to give
evidence at a criminal trial of the taking of those films and
photographs, would feel concerned for their safety if their
identities became known to certain sections of the public, and
that knowledge that they would be identified in the witness box
would operate to deter them from giving their evidence frankly
and fully in the present trial and in subsequent trials...
The effect of my direction is not to exclude the public and the
press from the court. The public will still hear the evidence
of the witnesses and the press will hear it and report it, but
what the press will be unable to do is to report the identity of
the witness. It is appropriate to refer to the judgment of Lord
Widgery C.J. in R. v. Socialist Worker Ex p. A-G at 651H:-
'The great virtue of having the public in our courts
is that discipline which the presence of the public
imposes upon the court itself. When the court is full
of interested members of the public, as indeed one can
say it is today, it is bound to have the effect that
everybody is more careful about what they do, everyone
tries just that little bit harder and there is a
disciplinary effect on the court which would be
totally lacking if there were no critical members of
the public or press present.
When one has an order for trial in camera, all the
public and all the press are evicted at one fell swoop
and the entire supervision by the public is gone.
Where one has a hearing which is open, where the names
of the witnesses are withheld, virtually all the
desirable features of having the public present are to
be seen. The only thing which is kept from their
knowledge is the name of the witness.'
I make it clear that my direction, of course, contains no
reflection whatever upon, and no implication whatever
against, the accused. The direction relates solely to the
concerns of the witnesses and the effect on them if they
knew that their identities would be revealed to the public"
In his original grounds of appeal to the Court of Appeal in
Northern Ireland, the applicant did not refer to the screening of
witnesses. The matter was, however, raised at the Court of Appeal as
the following ground:
"8. That the appellant was denied a fair trial by reason
of the learned trial judge's ruling that the identity of
certain witnesses be not disclosed to the appellant or
defence counsel and that the appellant should not be
allowed to see those witnesses."
In his judgment of 1 June 1990 Lord Justice Kelly found, in
connection with this ground of appeal, as follows:
"It was made plain that none of these witnesses would give
evidence that implicated or disadvantaged either of the
appellants. Their evidence would be confined to stating
that they had taken the films and photographs, although
some of them would also be asked to describe events they
had witnessed on the Andersonstown Road at the time.
At the trial defence counsel raised no objection to the
identities of the witnesses being withheld. They did
however object to the witnesses' faces being screened from
the view of the appellants...
Before considering the submissions of Miss McDermott
certain facts must be stated because they are important to
the application of these principles. The statement that
the witnesses feared for their safety if their identities
were revealed was not challenged by the defence in cross-
examination or at any time. That it was in the interests
of the administration of justice that their evidence should
be received was not challenged either. When called to give
evidence they proved that they had taken the video films
and the photographs showing the appellants at the funeral
before the events which gave rise to the charges against
them. Their evidence did not implicate either appellant
...
It seems to us that the concealment of a witness' face from
the accused is prima facie contrary to "general aspect of
open justice in the courtroom" (Lord Diplock in [Attorney-
General v. Leveller Magazine [1979] AC 440] at p. 452a).
But as Viscount Haldane pointed out, particular
circumstances may justify and require some appropriate
departure from the general rule...
...it is the experience of trial judges in terrorist trials
in this jurisdiction that even prosecution witnesses whose
evidence is merely formal, unchallenged by the defence, but
a necessary link in the narrative of the prosecution case,
suffer considerable anxiety for their safety as a result.
Although their evidence in no way implicates an accused,
their anxiety is raised because of their association with
the prosecution case.
Mr. Finegan made the additional point that the trial judge
should have been given the names and addresses of those
media witnesses and this would have served as some
restraint on their evidence. This was not raised at the
trial and we do not know whether the trial judge was
offered names and addresses and, if so, whether he refused
to receive them. In any event, if he was not given their
names and addresses or if he refused to receive them and if
this did constitute an irregularity, we cannot see that it
was material or that any injustice was suffered having
regard to the non-implicatory nature of their evidence.
Generally we think it is good practice for a trial judge to
note the names and addresses of witnesses whose identity
has been withheld."
The appeal was dismissed.
On 14 November 1990 the Court of Appeal, by consent, refused the
application for leave to appeal to the House of Lords against the
judgment of 1 June 1990.
COMPLAINTS
The applicant alleges a violation of Article 6 para. 1 of the
Convention by virtue of the fact that the identity of witnesses was
disclosed only to the Crown, and witnesses were screened from the
accused and the public.
THE LAW
1. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)
of the Convention. That provision provides, insofar as relevant, as
follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ...
Judgment shall be pronounced publicly but the press and public
may be excluded from all or part of the trial in the interest of
morals, public order or national security in a democratic
society, ... or to the extent strictly necessary in the opinion
of the court in special circumstances where publicity would
prejudice the interests of justice."
The Commission notes that the applicant did not object to the
screening of the witnesses from the public, but only to the fact that
he was unable to see the witnesses in question. A question may thus
arise as to whether the applicant has exhausted domestic remedies in
this respect. However, the Court of Appeal considered the question of
the screening of the witnesses generally, and the Commission finds it
not necessary in the present case to consider the question of
exhaustion of domestic remedies as the application is in any event
inadmissible for the following reasons.
The Commission recalls the case-law of the European Court of
Human Rights that, in principle, all evidence must be adduced in the
presence of the accused at a public hearing with a view to adversarial
argument, but this does not mean that a statement from a witness must
always be made in court and in public if it is to be admitted in
evidence (Eur. Court H.R., Asch judgment of 26 April 1991, Series A no.
203, p. 10, para. 27). The defendant must be given an adequate and
proper opportunity to challenge and question the witnesses against him
(ibid.). In the present case, the witnesses whose identity was not
disclosed to the public or the accused, were present in court and could
be seen by the judge and by the representatives of both prosecution and
defence. The evidence itself concerned not the question of
identification of the applicant (which evidence was given by police
officers whose identity was not withheld), but merely the making of
certain filmed and photographic evidence. It was accepted by the
defence that the evidence did not implicate the applicant.
Accordingly, given that the applicant was able, through his
representatives who could see the witnesses, to put all questions he
wished to the witnesses in question, and that, far from being the only
item of evidence on which the trial court based its decision to
convict, the evidence in question did not implicate the applicant at
all, the Commission finds no indication that the decision to screen
witnesses from the applicant interfered with his rights under either
Article 6 para. 1 (Art. 6-1) or Article 6 para. 3(d) (Art. 6-3-d) of
the Convention.
Moreover, to the extent that the public were not able to see the
screened witnesses, the Commission notes that the interference with the
right to publicity was kept to a minimum by the fact that the public
were not excluded from the proceedings, but could hear all questions
put to and answers given by those witnesses. The Commission finds that
screening was "in the interest of ... public order or national
security" and "to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the
interests of justice".
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant also alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention in that the identity of the anonymous
witnesses was disclosed only to the Crown, and not to the trial judge.
The Commission notes that it is clear from the judgment of the
Court of Appeal that this point was not made at the trial, and the
Court of Appeal was not aware whether the trial judge had been offered
names and addresses, and if so, whether he refused to receive them.
The Commission agrees with the Court of Appeal that a trial judge
should be aware of the names and addresses of witnesses whose identity
has been withheld, but also finds, given its findings above, that even
if the judge was not aware of the names and addresses of the witnesses
at issue, this did not amount to a violation of Article 6 para. 1
(Art. 6-1) of the Convention as the evidence in any event was neutral
as to guilt.
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission by a majority
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber a.i. President of the First Chamber
(M. de SALVIA) (J.A. FROWEIN)
Full & Egal Universal Law Academy