CASE OF SIMON PRICE v. THE UNITED KINGDOM

FIRST SECTION

CASE OF SIMON PRICE v. THE UNITED KINGDOM

(Application no. 15602/07)

JUDGMENT

STRASBOURG

15 September 2016

FINAL

30/01/2017

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Simon Price v. the United Kingdom,

The European Court of Human Rights (First Section), sitting as a Chamber composed of:

Mirjana Lazarova Trajkovska, President,
Kristina Pardalos,
Linos-Alexandre Sicilianos,
Paul Mahoney,
Aleš Pejchal,
Robert Spano,
Armen Harutyunyan, judges,
and Abel Campos, Section Registrar,

Having deliberated in private on 23 August 2016,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 15602/07) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Simon Price (“the applicant”), on 18 March 2007.

2. The applicant was represented by Goldkorns Solicitors, a firm of solicitors practising in Bromley. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office.

3. On 20 June 2013 the application was communicated to the Government.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4. The applicant was born in 1945 and is currently detained in HMP Long Lartin.

A. Introduction

5. Between 16 May and 13 July 2005 the applicant was tried before a judge and jury in the Crown Court at Snaresbrook for various offences relating to an attempt, together with other unknown persons, to import cocaine worth GBP 35 million into the United Kingdom from Guyana via ports in the Netherlands and Belgium.

6. Pursuant to Her Majesty’s Courts and Tribunals Service policy, notes of recordings of trials are destroyed after five years. Although the present application was lodged with the Court in 2007, consideration of the applicant’s complaints was adjourned pending judgment in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011. Consequently, by the date the United Kingdom Government received notice of the application, transcripts of the applicant’s criminal trial had for the most part been destroyed.

7. However, from the information available, the circumstances of the trial which give rise to the present application may be summarised as follows.

B. The importation

8. On the 21 June 2004 a ship called the “Lee Frances” entered the port of Rotterdam. Part of the cargo was a single container which contained palletised drums of molasses from Georgetown, Guyana. The following day the container was searched by customs officials and certain drums – purportedly containing molasses – were found to contain 700 kg of high purity cocaine worth GBP 35 million. The officials refilled the drums with dummy contents and the ship continued to Antwerp where the container was offloaded. The applicant was arrested and interviewed on 29 June 2004, shortly after contacting HM Revenue and Customs to make enquiries about the container. He was charged, inter alia, with assisting in the commission outside the United Kingdom of an offence punishable under the law of Guyana (the export of drugs from that country), contrary to section 20 of the Misuse of Drugs Act 1971, and with the attempted importation of drugs to the United Kingdom.

C. The security measures taken at trial

9. There were allegations that the applicant had been involved in “jury fixing” in a previous, unrelated trial. Therefore, before the trial the prosecution applied to the court for the following security measures:

 the assignment of a security team to chaperone the jury at all times;

 the identification of the jury by number and not by name;

 the verification by police of the identity of anyone wishing to enter the courtroom’s public gallery;

 the search of members of the public entering the building;

 the retention of all visitors’ mobile telephones during the trial;

 the erection of protective screens to shield the jury and the applicant from the public gallery; and

 the covering of the glass panels in the doors to the court room to prevent people seeing into the room.

10. The defence were informed of the application and given the opportunity to oppose it. They initially did so on the basis that the protective screens, taken together with the other security measures, would lend a sinister feel to proceedings which would be likely to prejudice the applicant in the eyes of the jury. However, at the conclusion of argument the defence indicated that they were prepared to withdraw their objections provided that the whole of the public gallery was covered rather than just part of it, as had been originally suggested. The trial judge therefore made the order requested.

11. The defence subsequently attempted to withdraw that concession on the basis that the physical appearance of the screens was more imposing than had been anticipated. They again suggested that the whole trial could be heard in camera but this proposal was rejected by the trial judge, who did not consider that the screens could in any way impinge upon the fairness of the trial.

D. The trial

12. It was accepted by the prosecution and the defence that the main issue in the case was whether or not the applicant had intended to import drugs into the United Kingdom.

1. The prosecution’s case

13. It was the prosecution’s case that the applicant had purchased the cocaine in Guyana under the assumed name of “David Keen”, the manager of a company called Premier Molasses, and that he had intended to import the cocaine into the United Kingdom. The shipment containing the cocaine had been the last of four shipments procured by Premier Molasses from Guyana. The previous three shipments had been delivered via Antwerp to various locations in the United Kingdom, including to an address belonging to an acquaintance of the applicant. There was evidence of telephone calls between the applicant and his acquaintance, which coincided with the deliveries, as well as payments by the acquaintance to the applicant’s account in Guyana. It was suggested by the prosecution that the previous three shipments had been practice runs for the fourth shipment, which contained the cocaine. Although there was one witness in Guyana who stated that the drums containing the cocaine were to be offloaded in Antwerp and transported to the Netherlands (see paragraph 31 below), the prosecution argued that this had been an attempt by the applicant to set up a defence should he be caught.

2. VO’s refusal to attend the trial

14. VO, who was based in Antwerp, was the customs broker for Premier Molasses’ shipping agents.

15. VO was responsible for issuing each shipment with an agricultural import licence to confirm that the shipment complied with European Union quotas. He was also responsible for guaranteeing the payment of duty on each shipment.

16. He made three separate statements between 30 June 2004 and 20 January 2005. He also supplied the prosecuting authorities with the original files relating to all four shipments from Guyana. This included all documents relating to the first three shipments, for which he had arranged carriage to the United Kingdom, and correspondence from David Keen asking him to arrange transport for the fourth shipment to the United Kingdom.

17. Having provided the statements and documentary evidence, VO refused to give live evidence at the applicant’s trial. VO’s explanation for refusing to attend court was recounted in the evidence of DH, a United Kingdom customs official who had been present when VO was interviewed in Belgium. According to DH (who gave evidence at trial), VO believed that, in accordance with Belgian practice, having spoken to investigators on three separate occasions, he had done enough.

18. The prosecution made several attempts to convince VO to appear as a witness before the trial began. In particular, they wrote to him emphasising the importance of his evidence, making it clear that all expenses would be met and inconvenience kept to a minimum, and informing him that if he did not attend his previous assistance might be wasted. They also tried to reach him through his employer but were told that he was on leave and could not be contacted.

19. Despite knowing of VO’s reluctance to attend for several months before the trial, the prosecution opened their case referring to his evidence. Two weeks into the trial, when it became clear that VO would not testify, the trial judge directed the prosecution to contact him again. In a letter to VO, the prosecution offered various options to him, including giving evidence via live video link from his home in Belgium. Meanwhile, the defence also wrote to him seeking clarification on apparent inconsistencies in his account. All of these efforts were ignored.

20. Leave was then given for VO’s statements to be read to the jury pursuant to section 116 of the Criminal Justice Act 2003.

3. VO’s evidence

21. When interviewed, VO provided information about the logistical arrangements for the routing of the fourth shipment to the United Kingdom. He stated that:

“It was clear for [sic] all the files that the destination of the load was England. Premier Molasses had already applied for an import licence for the United Kingdom for the job relating to the container and sent it to us. The transport operation ultimately did not take place because I did not receive an original bill of lading; that meant it was physically impossible for me to take delivery of the container.”

22. He also gave evidence of his previous dealings with “David Keen”. He explained that, whilst they had never met in person, he and Mr Keen had done business in May and October 2003, at the time of the importation of two of the earlier three shipments, both of which had been destined for the United Kingdom.

23. VO’s statements referred to a telephone call he had received from a woman at Premier Molasses, who told him that the contents of the container were not to be imported to the United Kingdom but instead sold to a Dutch company. He had asked her for written instructions and details of the Dutch firm, but none was ever given.

4. The issue over intercept evidence

24. A United Kingdom customs officer, BT, referred in his evidence at trial to a conversation between the Belgian shipping agents and a woman from Premier Molasses who he believed was called “N”. This would appear to be the same telephone call referred to by VO (see paragraph 23 above). However, in one of his statements VO indicated that he did not know of anyone called “N” in connection with the case.

25. The applicant claimed that BT could only have obtained this information by the interception of the telephone call. He further claimed that, as a consequence, the “discrepancy” between the evidence of BT and VO could not be further investigated as the prosecution indicated that there was a danger that the prohibition on the disclosure of intercept evidence (including telephone intercept evidence) might be compromised (see sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) at paragraphs 55-56 below). However, the Government have submitted a transcript of BT’s evidence which demonstrates that the prosecution did not object to any question based on the prohibitions in RIPA.

26. One month prior to BT giving evidence a discussion had taken place between the trial judge and counsel in the absence of the jury. The discussion touched on issues of intercept evidence and on the “N” call. In the course of the discussion, the defence argued that, since they could not seek disclosure of intercept evidence, when any such issue arose the prosecution should be obliged to satisfy themselves that there was nothing in the material to which they had or could have access which would either undermine their case or assist the defence case. The prosecution neither confirmed nor denied that any interception had taken place, or that they had or had not sought any intercept material. However, they confirmed that they had revisited their duty of disclosure and had nothing further to add. The trial judge subsequently declined to make any ruling on the issue.

5. The other prosecution evidence

27. The prosecution led evidence that “David Keen” was a false identity assumed by the applicant in the context of business carried out on behalf of Premier Molasses. In particular, they submitted evidence from the Home Office that there was no record of any person by that name. There were also three witnesses from Guyana who identified the applicant as David Keen and faxes in the name of David Keen sent from the applicant’s address.

28. The prosecution relied on various pieces of logistical evidence which supported their contention that, as with the previous three shipments, the true destination of the fourth shipment was the United Kingdom. This included details of bank transactions, the issuing of shipping licences and other similar communications between Premier Molasses and VO, and the fact that David Keen had pushed for early delivery of the shipment to the United Kingdom. The paperwork relating to the fourth shipment was consistent with that relating to the previous three shipments.

29. Finally, the prosecution invited the jury to draw adverse inferences as to the applicant’s guilt based on his failure to disclose facts material to his defence when first interviewed. These “material facts” included his apparent belief that he was importing cannabis into the Netherlands and his allegation that VO was a party to the conspiracy (see paragraph 30 below).

6. The defence case

30. The applicant’s initial defence was that he believed that he was arranging a shipment of sugar but had been duped by business associates into arranging the importation of drugs. However, during the trial it came to light that he was fabricating evidence to concoct this defence. Consequently, the applicant admitted that this defence was untrue. Thereafter, he advanced a new defence, which was that he had been involved in a conspiracy to traffic cannabis from Guyana to the Netherlands (via Antwerp) and that VO had been party to this conspiracy. He continued to deny the main count on the indictment, which concerned the attempted importation of drugs to the United Kingdom. However, on 23 June 2005 he pleaded guilty to the separate offence under section 20 of the Misuse of Drugs Act 1971 (see paragraph 8 above).

31. The applicant relied heavily on the evidence of one of the shipping agents in Guyana, AA, who recalled a conversation in which the applicant told him that the drums which were later found to contain drugs were to be unloaded at Antwerp.

32. The applicant accepted that import licences for the fourth shipment had been made out for the United Kingdom but claimed that this had been a mistake by customs. Those licences had been returned by Premier Molasses using registered delivery and replaced with the appropriate licences for the Netherlands.

7. The trial judge’s summing-up and the verdict

33. The trial judge’s summing-up contained the following directions to the jury.

34. On the measures taken to ensure the safety of the jury, the trial judge said:

“Let me remind you of what I said at the beginning of the case about the special security measures taken during the trial. These precautions exist to protect both you, you the jury, and the defendant from any outside interference. Perhaps, as I said at an early stage when we started, it may be that I am being overly cautious, but make no mistake about it at all, none of these measures are to be regarded as any reflection whatsoever on the defendant and they are entirely irrelevant to the issue as to whether he is ‘guilty’ or ‘not guilty’ and we all know that something can appear sinister, which on investigation turns out to be completely innocent. We had, perhaps, an example of it during the case, when someone feared that their spouse was being followed, the matter was fully investigated and although rightly reported to me, it was, in fact, completely innocent. It just demonstrates how careful we must be and assumptions can often be wrong.”

35. In relation to the reading of VO’s statements, the trial judge directed the jury:

“[A]s you know the general rule in the courts is that unless evidence is agreed it has to be given orally from the witness box, unless there is an admission, or there is an agreement on both sides.

Well there is no agreement as to the accuracy of what [VO] says. On the contrary, the prosecution have been allowed to adduce the evidence; the defence do not accept a word of it - they say that he is on it and that he has acted in a thoroughly dishonest way.”

36. He then considered the practical difficulties that arose in relation to VO’s evidence:

“[A]s he did not come to court, his evidence does have certain limitations and I want to draw them to your attention.

First of all, when someone’s statement is read out, you do not have the opportunity of seeing him in the witness-box, seeing him in the flesh and sometimes when you do see a witness in the flesh you do get a much clearer idea of whether that evidence is honest and accurate.

Secondly, his evidence has not been tested by the defence under cross-examination and, therefore, you have not had the opportunity of seeing how the evidence survived that form of challenge or test. So you must, therefore, consider the evidence of [VO] in the light of those limitations and you should only act upon it if, having taken those matters into account, you are, nevertheless, sure that it is reliable.”

37. The trial judge gave a similar warning as to the limitations of VO’s evidence in the absence of cross-examination just before he summarised VO’s evidence.

38. After this, and having reviewed the efforts made to oblige VO to attend court, the trial judge stated:

“What I seek to emphasise, in fairness to the defendant is that when you assess the evidence of [VO], you look at all the circumstances, throw it all into the melting pot, all the warnings that I have given you, take it all into account and then decide the weight you can properly attach to it; it is a matter for you.”

39. Whilst they were considering their verdict, the jury asked for – but was refused – copies of the transcripts of VO’s statements. Instead, the trial judge re-read the relevant part of his summing-up summarising those statements. Having done so, he also reminded the jury of the criticism which had been made of the statements by the defence and of his previous warnings to them.

40. The applicant was convicted unanimously by the jury on 13 July 2005. He appealed against his conviction to the Court of Appeal.

E. The appeal

41. The application for leave to appeal was initially considered and rejected by a single judge of the Court of Appeal.

42. The applicant then renewed his application to the full court, which dismissed the appeal on 20 February 2007.

1. The grounds for appeal

43. There were four grounds of appeal before the Court of Appeal which are relevant to the present application.

44. First, it was argued that the admission of VO’s statements had violated Article 6 of the Convention and, in particular, that the trial judge would never have allowed the statements to be read had he been aware that BT’s evidence regarding the “N” telephone call would cast doubt on VO’s reliability.

45. Secondly, the applicant argued that the prosecution had failed to comply with their duty of disclosure under the Regulation of Investigatory Powers Act 2000 in respect of the telephone conversation involving VO and “N”, since this had been important exculpatory evidence.

46. Thirdly, the applicant maintained that either evidence of the interception of the telephone conversation should have been disclosed to the trial judge or the trial should have been abandoned.

47. Fourthly, again relying on Article 6 of the Convention, the applicant argued that the security measures in place to protect the jury had violated his right to a fair trial. In support of this fourth ground, he relied on a witness statement prepared by a journalist who had tried to cover the trial. In the statement the journalist indicated that when she first tried to enter the courtroom, she was told by a court official that the trial had finished. However, after remonstrating with the official she was allowed to enter. Once inside, the proceedings were inaudible on account of the screens sealing the public gallery. When she asked if anyone else had complained about the arrangements, she was told that she was the first person to try to attend the trial. Furthermore, she had been told that she could not report anything because there were reporting restrictions in place. Finally, the journalist stated that although she had attended major criminal trials throughout the United Kingdom, she had never encountered such measures, and she considered that as a result the applicant’s trial was to all intents and purposes a secret trial.

2. The Court of Appeal’s judgment

48. In respect of VO’s non-attendance at trial, the Court of Appeal acknowledged that the prosecution’s failure to mention this fact until late in the proceedings was a cause for concern. However, it considered that the dispute over whether VO knew “N” was a “very slender foundation indeed” for any suggestion that his evidence was so unreliable that it ought not to have been allowed to be read.

49. The court also noted the advantages that the applicant had obtained through VO’s absence:

“It meant that, in so far as he [VO] gave evidence inconsistent with that of the applicant, he was not in court to make that contention good. While the statement by him that the container was intended for the United Kingdom was damaging to the applicant’s case, the applicant had the evidence that was available before the jury to the effect that he had identified particular pallets that were to come out of the container at Antwerp [the evidence of the Guyana shipping agent AA]. It was of assistance to the applicant to have the evidence of [VO] about the instructions that the cargo had been sold to a Dutch company.”

50. The court was therefore not satisfied that there would have been any positive advantage to the defence in calling VO and thus concluded that there was no arguable basis for criticising the admission of his statements.

51. The court then turned to the ground of appeal concerning the prosecution’s duty of disclosure. It did not consider that the facts were such as to afford any basis for suggesting that the prosecution had failed either to comply with their duty of disclosure or to follow the Attorney General’s guidelines on the matter (see paragraph 59 below). In fact, even taking this ground together with the absence of VO, the Court of Appeal declared it impossible to find any arguable basis for believing that the prosecution had not fulfilled its duty to ensure that any questions which arose would be examined properly and in accordance with the relevant duties.

52. Finally, as far as the security measures were concerned, the court began by noting a concession by counsel for the applicant that this ground alone, even if successful, could not compromise the safety of the applicant’s conviction. The court recounted the history of the pre-trial proceedings and noted that the essence of the complaint was largely based on the security screens. The court acknowledged that the security measures clearly caused difficulties but had not been raised by the journalist or anyone else at the time. Ultimately, however, the court concluded that the issue had been dealt with “fully and fairly” by the trial judge.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Security measures in jury trials

53. The general position in respect of public hearings is summarised by the decision of the House of Lords in Scott v. Scott [1913] AC 417 in which their Lordships held that “every Court of justice is open to every subject of the King”.

54. At common law the court has an inherent power to hold hearings in camera where necessary in the interests of justice. The position was clarified by the House of Lords in Attorney-General v. the Leveller Magazine [1979] AC 440, in which their Lordships stated that the general rule of open justice could be departed from

“where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest... [W]here a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes to be necessary in order to serve the ends of justice.”

B. Intercept evidence

55. Section 17 of the Regulation of Investigatory Powers Act 2000 prohibits the use of intercept product as evidence and stipulates that nothing can be adduced in evidence or otherwise disclosed at a trial which would tend to suggest that there had been a warranted interception.

56. Section 18 RIPA sets out exceptions to section 17. The relevant subsections of section 18 provide:

“(7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to—

(a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or

(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone.

(8) A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice.

(9) Subject to subsection (10), where in any criminal proceedings—

(a) a relevant judge does order a disclosure under subsection (7)(b), and

(b) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so,

he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice.

(10) Nothing in any direction under subsection (9) shall authorise or require anything to be done in contravention of section 17(1).”

57. The Interception of Communications Code of Practice, adopted pursuant to section 71 RIPA, provides guidance as to the application of sections 17 and 18 RIPA. At Chapter 7, the Code states:

“7.3 The general rule is that neither the possibility of interception nor intercepted material itself plays any part in legal proceedings. This rule is set out in section 17 of the Act, which excludes evidence, questioning, assertion or disclosure in legal proceedings likely to reveal the existence (or the absence) of a warrant issued under this Act (or the Interception of Communications Act 1985). This rule means that the intercepted material cannot be used either by the prosecution or the defence. This preserves ‘equality of arms’ which is a requirement under Article 6 of the European Convention on Human Rights.”

58. The Code goes on to consider the operation of the exceptions set out in section 18:

“7.4 Section 18 contains a number of tightly-drawn exceptions to this rule. This part of the Code deals only with the exception in subsections (7) to (11).

7.5 Section 18(7)(a) provides that intercepted material obtained by means of a warrant and which continues to be available, may, for a strictly limited purpose, be disclosed to a person conducting a criminal prosecution.

7.6 This may only be done for the purpose of enabling the prosecutor to determine what is required of him by his duty to secure the fairness of the prosecution. The prosecutor may not use intercepted material to which he is given access under section 18(7)(a) to mount a cross-examination, or to do anything other than ensure the fairness of the proceedings.

...

7.9 If intercepted material does continue to be available at the prosecution stage, once this information has come to the attention of the holder of this material, the prosecutor should be informed that a warrant has been issued under section 5 and that material of possible relevance to the case has been intercepted.

...

7.11 Section 18(7)(b) recognises that there may be cases where the prosecutor, having seen intercepted material under subsection (7)(a), will need to consult the trial Judge. Accordingly, it provides for the Judge to be given access to intercepted material, where there are exceptional circumstances making that disclosure essential in the interests of justice.

7.12 This access will be achieved by the prosecutor inviting the judge to make an order for disclosure to him alone, under this subsection. This is an exceptional procedure; normally, the prosecutor’s functions under subsection (7)(a) will not fall to be reviewed by the judge. To comply with section 17(l), any consideration given to, or exercise of, this power must be carried out without notice to the defence. The purpose of this power is to ensure that the trial is conducted fairly.

7.13 The judge may, having considered the intercepted material disclosed to him, direct the prosecution to make an admission of fact. The admission will be abstracted from the interception; but, in accordance with the requirements of section 17(l), it must not reveal the fact of interception. This is likely to be a very unusual step. The Act only allows it where the judge considers it essential in the interests of justice.

7.14 Nothing in these provisions allows intercepted material, or the fact of interception, to be disclosed to the defence.”

59. The Attorney General’s Guidelines for Prosecutors: Section 18 of the Regulation of Investigatory Powers Act 2000 (England and Wales) concerns the approach to be taken by prosecutors in applying section 18 of RIPA in England and Wales. Paragraph 8 provides as follows:

“If the prosecutor considers that he requires the assistance of the trial judge to ensure the fairness of the proceedings, or he is in doubt as to whether the result of taking the steps outlined at para 6 above would ensure fairness, he must apply to see the judge ex parte. Under section 18(8), a judge shall not order a disclosure to him except where he is satisfied that the exceptional circumstances of the case make that disclosure essential in the interests of justice. Before the judge is in a position to order such disclosure the prosecutor will need to impart to the judge such information, but only such information, as is necessary to demonstrate that exceptional circumstances mean that the prosecutor acting alone cannot secure the fairness of the proceedings.”

C. Hearsay evidence

60. At the time of the applicant’s trial, the relevant statutory provisions were to be found in the Criminal Justice Act 2003 and the Police and Criminal Evidence Act 1984.

1. The Criminal Justice Act 2003

61. Part 11, Chapter 2 of the Criminal Justice Act 2003 (“the 2003 Act”) came into force in April 2005. It was intended to reform substantially the law governing the admission of hearsay evidence in criminal proceedings on the basis of a draft bill proposed by the Law Commission.

62. Section 116 allows for the admission of statements of absent witnesses. Section 116, where relevant, provides:

“(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—

(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter;

(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction; and

(c) any of the five conditions mentioned in subsection (2) is satisfied.

(2) The conditions are—

... ... ...

(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;

... ... ...

(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—

(a) by the person in support of whose case it is sought to give the statement in evidence; or

(b) by a person acting on his behalf;

in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).”

63. Section 124 allows the admission of evidence to challenge the credibility of the absent witness, for example through the admission of evidence of his bad character, including previous convictions, a propensity to be untruthful, and so on. It also allows the admission of inconsistent statements that the witness has made. Section 124(2) allows the admission of evidence to challenge the credibility of the absent witness in circumstances where it would not be admissible in respect of a live witness, for example when it relates to a collateral issue in the case.

64. Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe.

65. Section 126 preserves both the common-law discretion and the section 78 discretion of the trial judge to exclude hearsay evidence (see paragraph 66 below). It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”.

2. Police and Criminal Evidence Act 1984

66. Pursuant to section 78 of the 1984 Act

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

III. RELEVANT INTERNATIONAL LAW

67. Mutual assistance in criminal matters is governed, in particular, by the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, supplemented by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000.

68. Pursuant to the 2000 Convention, one Member State may request the judicial authorities of another Member State to summons a witness within its jurisdiction to give evidence by videoconference. The consent of the witness is not required for this purpose.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

69. The applicant alleged a violation of Article 6 of the Convention on the ground that the criminal proceedings were unfair because the additional security measures had prejudiced him in the eyes of the jury and therefore breached the principle of the presumption of innocence and/or his right to a public hearing; because the prosecution had failed to comply with its continuing duty of disclosure and/or because the law governing disclosure in the United Kingdom did not comply with Article 6 of the Convention; and because the trial judge had erred in allowing the statements of VO to be read to the jury.

70. Article 6 of the Convention, as relevant, reads:

“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 ... to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

... ... ...

(b) to have adequate time and facilities for the preparation of his defence;

... ... ...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

... ... ...”

71. The Government contested the applicant’s arguments.

A. Admissibility

1. Non-exhaustion

72. The Government submitted that insofar as the applicant complains that the law governing disclosure in the United Kingdom does not comply with Article 6 of the Convention, he has not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention as this complaint was not raised before the Court of Appeal.

73. The applicant contested that submission, arguing that the issues concerning disclosure had been raised on an “ongoing rolling basis” throughout the trial.

74. Although the applicant did not specifically complain to the Court of Appeal about the regime governing disclosure (see paragraphs 43-47 above), the two complaints concerning disclosure advanced in the present application – that the prosecution failed to comply with its continuing duty of disclosure and that the law governing disclosure in the United Kingdom did not comply with Article 6 of the Convention – are not easily separated.

75. In any event, in light of its findings at paragraphs 104-105 below, the Court does not need to reach any firm conclusion on the point but may leave open the question whether or not the applicant did exhaust domestic remedies.

2. Manifestly ill-founded

76. The Government submitted that the remainder of the applicant’s complaints were manifestly ill-founded.

(a) Security measures

77. The Government submitted that the application for jury protection was made by the prosecution on the basis of evidence that the applicant had tampered with a jury in a previous trial. In making the order, the trial judge had been concerned to protect the independence, impartiality and safety of the jury in two ways: by ensuring that no one was able to convey any message to them when they were in court, and by ensuring that no one was able to identify and approach them when they were not in court. Consequently, the protection of the jury in the courtroom was not the judge’s only consideration; he also had to ensure that they could be chaperoned safely to and from the courtroom.

78. In the Government’s submission, the orders made by the trial judge had been necessary to achieve these ends and had not gone beyond what was necessary to protect the jury and ensure the fairness of the trial. Furthermore, in his summing-up he had given a clear direction to the jury that the security measures had no bearing on the issue of the guilt or innocence of the applicant and reminded the jury members that they must not make any assumptions in this regard.

79. In response to the statement made by the journalist, the Government noted that she had been able to attend the hearing and that, had she experienced any difficulty hearing the proceedings, it would have been open to her to communicate this problem to the judge. However, there was no evidence that she had attempted to do so.

80. Finally, the Government submitted that the applicant had waived his right to a public hearing by requesting that his trial be heard in camera (see paragraph 11 above). In making this request he had not identified any prejudice which would have flowed from the complete exclusion of the press and public from the trial.

81. In light of the above considerations, the Government submitted that the applicant’s complaint concerning the security measures in place at his trial was manifestly ill-founded.

82. The applicant denied any allegation that he had previously tampered with a jury. He further contended that the cumulative effect of the jury protection measures and the screening of the courtroom had been highly prejudicial to the fairness of his trial. In particular, he asserted that during the course of the trial two members of the jury had reported incidents which turned out to be innocuous (the trial judge referred to one incident in his summing-up – see paragraph 34 above), which demonstrated the anxiety and apprehension engendered by the jury-protection measures in place.

83. In addition, the applicant submitted that if security measures had been considered necessary, less prejudicial measures would have been available to the trial judge. For example, he argued that the trial could have been conducted in a courtroom where the jury box was already shielded from the public gallery, thereby dispensing with the need to erect screens.

84. The applicant further pointed to the statement of the journalist who had attended his trial. In her statement she made it clear that she could neither see nor hear the trial. While she might have been the only person who complained about the manner in which the trial was being conducted, this would appear to have been because no one else entered the courtroom during the trial.

85. Furthermore, the applicant did not accept that he had waived his right to a public hearing. He had only proposed an in camera hearing because he considered the jury protection measures in place to be so overwhelmingly prejudicial that it would have been preferable for the public to have been excluded entirely.

86. The Court recalls that the principle of the presumption of innocence is a specific element of the wider concept of a fair trial in criminal proceedings (see Ekbatani v. Sweden, 26 May 1988, § 30, Series A no. 134; and Deweer v. Belgium, 27 February 1980, § 56, Series A no. 35). The principle will be violated if a judicial decision concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved guilty according to law. It suffices, even in the absence of any formal finding, that there is some reasoning suggesting that the court regards the accused as guilty (see Minelli v. Switzerland, 25 March 1983, §§ 27 and 37, Series A no. 62).

87. The Court has recognised that the physical attributes or layout of a courtroom may be capable of affecting the fairness of a criminal trial and, in particular, the presumption of innocence (Stanford v. the United Kingdom, 23 February 1994, §§ 27‑32, Series A no. 282‑A, Insanov v. Azerbaijan, no. 16133/08, §§ 168-170, 14 March 2013, Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, §§ 642-648, 25 July 2013). It is true that in an Armenian case, where a metal cage in the courtroom was a permanent feature used as a dock for all criminal cases before an appeal court, the Court was satisfied that the holding of the applicant in such a cage, although constitutive of degrading treatment within the meaning of Article 3, did not give rise to a violation of Article 6 as it did not place him at a disadvantage vis-à-vis the prosecution or suggest that the appeal court regarded him as guilty (Ashot Harutyunyan v. Armenia, no. 34334/04, 15 June 2010, §§138-139). However, the Court has since taken care to point out that the holding of an accused, who is to be presumed innocent, in a cage or a “cell within the courtroom” may raise issues not only under Article 3 as to degrading treatment but also under Article 6. In order for this to be so, “the applicants must have had objectively justified fears that their exposure in a cage during hearings in their case would convey to their judges, who were to take decisions on the issues concerning their criminal liability and liberty, a negative image of them as being dangerous to the point of requiring such an extreme physical restraint, thus undermining the presumption of innocence” (Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 133, ECHR 2014 (extracts)). In Ramishvili and Kokhreidze v. Georgia, no. 1704/06, 27 January 2009, in the context of Article 5 § 4 of the Convention, the Court considered that the applicants’ confinement inside a barred dock, which looked like a metal cage, and the presence of “special forces” in the courthouse “tainted the presumption of innocence” (see § 132). In that case, the Court noted, at § 129, that “the applicants were placed in a caged dock at the far end of the court room in complete disorder and surrounded by guards”. Furthermore, “[t]hey could hardly communicate with their lawyers, could not properly hear the prosecutor and the judge and could hardly make their submissions audible due to the turmoil in the room”.

88. Consequently, it can be inferred from the Court’s case-law that the implementation of security arrangements at a trial will not in itself render the proceedings unfair, the main decisive factors being the nature, extent, method of application and underlying justification of the particular arrangements made. Even where security measures have been considered necessary for the proper administration of justice because of certain perceived dangers linked to the person or the trial of the accused, it does not follow that the accused’s right to be presumed innocent of the charges against him will thereby be violated.

89. The evidence in the case-file discloses that in the present case the national authorities invoked and relied on good reasons for putting the relevant security measures in place. The prosecution had applied for the measures on the basis of evidence that the applicant, who had a history of serious offending, and who was currently standing trial for an extremely serious offence concerning the importation of cocaine worth GBP 35 million, had attempted to “fix” a jury during a previous trial. The applicant was aware of the application and the evidence upon which it was based and he was able to make his own submissions in response. However, despite some initial objections (and a subsequent change of heart), the defence decided not to oppose the application (see paragraph 10 above).

90. In any case, there is no evidence to suggest that the additional security measures were sufficiently prejudicial to impinge upon the presumption of innocence. The trial judge clearly considered the risk of prejudice to the applicant when the defence applied for the hearing to be held in camera (see paragraph 11 above). Nevertheless, having considered the defence’s submissions, and having seen the appearance of the protective screens first-hand, he concluded that they would not prejudice the fairness of the trial. The applicant appears to have accepted this in his appeal to the Court of Appeal, where it was conceded that the security measures could not, by themselves, compromise the safety of his conviction (see paragraph 52 above).

91. Furthermore, having ordered the security measures, the trial judge took considerable care to ensure that they did not prejudice the applicant in the eyes of the jury. The Court has recognised the important role played by the trial judge’s direction in a trial by jury (see, mutatis mutandis, Dallas v. the United Kingdom, no. 38395/12, § 75, 11 February 2016) and in the present case it is noteworthy that he expressly warned the jury both at the beginning of the trial and in his summing-up that “none of these measures are to be regarded as any reflection whatsoever on the defendant and they are entirely irrelevant to the issue as to whether he is ‘guilty’ or ‘not guilty’” (see paragraph 34 above). Although there was at least one incident in which a jury member reported a safety concern to the trial judge, this cannot, by itself, support the applicant’s claim that the security measures resulted in actual prejudice. Even if the incident could be directly linked to anguish engendered by the security measures, at the very most it suggests that a member of the jury had inferred that the applicant was dangerous. As noted at paragraph 88 above, this cannot be equated with a presumption of guilt in respect of the offences for which he was being tried.

92. The applicant now seeks to argue that there were less intrusive measures available to the judge. In particular, he contends that the trial could have been held in a courtroom where the jury was hidden from the public gallery. However, the Court recognises that, having decided that there was a risk to the jury which required additional security measures to be adopted, the trial judge was not only concerned with the protection of the jury in the courtroom but also outside of it. Consequently, he had to take into account a number of different considerations in deciding how and where the trial should be conducted and it would not be appropriate for this Court, on the selective information before it, to find that the trial should have been held elsewhere.

93. Finally, insofar as the applicant contends that the security measures interfered with his right to a public hearing, the Court finds there to be insufficient evidence to substantiate his claim. This claim is based solely on the statement of one witness who indicated that she had difficulty entering the courtroom (see paragraph 47 above). However, despite any difficulty she might have experienced, she was permitted to enter the courtroom and follow the proceedings. Furthermore, if, as alleged, she was unable to hear what was being said, she could have raised this with the court at any time.

94. Therefore, in light of the foregoing, the Court finds the applicant’s complaint under Article 6 § 1, insofar as it concerns the security measures in place during his trial, to be manifestly ill-founded. It must therefore be rejected pursuant to Article 35 § 3(a) of the Convention.

(b) Duty of disclosure

95. The Government submitted that the applicant’s complaint about the prosecution’s failure to disclose intercept evidence was also manifestly ill‑founded as Article 6 did not lay down rules on the admissibility of evidence. While Article 6 generally required the disclosure of material evidence which would assist the accused, this rule could be subject to restrictions where strictly necessary to safeguard an important public interest, such as the need to keep investigative techniques secret.

96. In any case, the Government submitted that in the present case the suggestion that calls relevant to the applicant’s trial had been intercepted was pure speculation. Moreover, even if there had been an interception, as both the prosecution and defence were prohibited from adducing any evidence which might tend to suggest that the interception had taken place, the principle of equality of arms had been respected.

97. The applicant, on the other hand, argued that there could be no doubt that the telephone call between “N” and VO had been intercepted and the failure to disclose this evidence had caused him significant prejudice. In particular, he argued that, as he was facing trial on a charge of attempting to import drugs into the United Kingdom, evidence of a telephone call made immediately prior to his arrest and arranging for the transportation to the Netherlands of the container in which the drugs were concealed was highly relevant. Consequently, the applicant submitted that the prosecution had acted in breach of the Attorney-General’s Guidelines and, additionally, withheld evidence that was relevant, cogent and probative of his innocence.

98. The applicant further contended that the prejudice he suffered was compounded by the fact that he had been unable to cross-examine VO about the telephone call.

99. It is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and the defence, which means that both the prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party (see, for example, Khodorkovskiy and Lebedev v. Russia, cited above, § 574, and Dowsett v. the United Kingdom, no. 39482/98, § 41, ECHR 2003‑VII). The accused must have the opportunity to organise his defence in an appropriate way and without restriction as to the possibility to put all relevant defence arguments before the trial court and thus to influence the outcome of the proceedings (see, for example, Moiseyev v. Russia, no. 62936/00, § 220, 9 October 2008 and Dolenec v. Croatia, no. 25282/06, § 208, 26 November 2009).

100. In addition, Article 6 § 1 requires that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see (Jasper v. the United Kingdom [GC], no. 27052/95, § 51, 16 February 2000). Nevertheless, the entitlement to disclosure of relevant evidence is not an absolute right (see, for example, Kennedy v. the United Kingdom, no. 26839/05, § 187, 18 May 2010). In any criminal proceedings there may be competing interests, such as national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime, which must be weighed against the rights of the accused. However, only such measures restricting the rights of the defence which are strictly necessary are permissible under Article 6 § 1. Moreover, in order to ensure that the accused receives a fair trial, any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see, for example, Užukauskas v. Lithuania, no. 16965/04, § 46, 6 July 2010).

101. In Jasper, cited above, the applicant had alleged that his trial was unfair because, inter alia, the product of a telephone intercept had been withheld from the defence without being placed before the trial judge. In holding that there had been no violation of Article 6 § 1 of the Convention, the Court found that it had not been established that any such material existed at the time of the trial. Moreover, since both the prosecution and the defence were prohibited from adducing any evidence which might tend to suggest that calls had been intercepted by the State authorities, the principle of equality of arms had been respected. Furthermore, on the facts of that case the Court noted that it would have been open to the applicant himself to testify, or to call evidence from other sources, as to the existence and contents of the telephone call in question.

102. Similarly, in the present case the applicant has not established that the alleged intercept evidence actually existed. Even if it did, it is difficult to point to any actual prejudice he might have suffered on account of its exclusion. The transcript of BT’s evidence (see paragraphs 24-25 above) demonstrates that there was no curtailment of his testimony. The defence had therefore been able to cross-examine him about the telephone call between “N” and the Belgian shipping agents. Furthermore, although the applicant had been unable to cross-examine VO, in the statements admitted in evidence he clearly referred to a telephone call he had received from a woman at Premier Molasses (presumably the aforementioned “N”), who told him that the contents of the container were not to be imported to the United Kingdom but instead sold to a Dutch company (see paragraph 23 above). As VO did not attend the trial, this evidence, which, as the Court of Appeal pointed out (see paragraph 49 above), was of assistance to the applicant, was never subject to cross-examination.

103. Although the relevant domestic law in Jasper was the Interception of Communications Act 1985, under RIPA it remains the case that both the prosecution and the defence are prohibited from adducing any evidence which might tend to suggest that calls had been intercepted by the State authorities. In fact, the only relevant amendment introduced by RIPA was the addition of an extra layer of protection namely, the possibility for the trial judge to review the intercept evidence in exceptional cases (see paragraphs 55-59 above).

104. In light of the foregoing, the Court does not consider that the present case can be distinguished from that of Jasper. It therefore considers that the applicant’s complaint concerning the failure to disclose the intercept evidence is manifestly ill-founded and, as such, must be rejected pursuant to Article 35 § 3(a) of the Convention.

105. The applicant has also complained that the general regime governing disclosure of intercept evidence was not compliant with Article 6 § 1 of the Convention. However, having found that the operation of the disclosure regime did not lead to any breach of Article 6 § 1 on the facts of the present case (see paragraph 104 above), the Court may not go on to review the relevant law and practice in abstracto (see, among other authorities, Roman Zakharov v. Russia [GC], no. 47143/06, § 164, ECHR 2015 and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 101, ECHR 2014). Consequently, this complaint is also to be rejected pursuant to Article 35 § 3(a) of the Convention.

(c) Admission of hearsay evidence

106. The Court is satisfied that this complaint raises sufficiently complex issues of fact and law such as it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

(a) The applicant

107. The applicant submitted that there had been no good reason for VO’s failure to attend court. On the contrary, he had simply been reluctant to attend and this was not a sufficient ground to justify his absence. The applicant refuted any suggestion that the prosecution had made all reasonable efforts to secure VO’s attendance.

108. Furthermore, in light of the fact that the crucial issue at trial was whether or not the shipment of cocaine had been destined for the United Kingdom, the applicant contended that VO’s evidence had been “sole and decisive”. In fact, according to the applicant, the prosecution had accepted that VO’s evidence was important and obtaining a conviction without it would have been difficult.

109. Finally, in respect of the adequacy of the counterbalancing measures, the applicant argued that there had been no enquiry into the reliability of VO’s evidence and, in the circumstances, the judge’s summing-up had been inadequate.

(b) The Government

110. The Government submitted that there had been good reason for the prosecution’s failure to call VO as a witness namely, that he was outside the jurisdiction and, despite making all reasonable efforts, the prosecution had been unable to persuade him to attend court voluntarily. In the circumstances there had been no power to compel his attendance at court.

111. Furthermore, the Government contended that VO’s evidence was neither “sole” nor “decisive” as there was other compelling evidence on the basis of which the jury would have been entitled to conclude that the applicant had intended to import the drugs into the United Kingdom. This evidence included paperwork showing that the final destination of the containers was the United Kingdom, the fact that the three previous consignments had been sent to the United Kingdom, evidence of what the applicant had told other witnesses, evidence of efforts to ensure early delivery to the United Kingdom, and, finally, the fact that the account that the drugs were not destined for the United Kingdom was first advanced part way through the trial, when the applicant’s previous defence had been shown to have been fabricated.

112. Finally, in the Government’s submission, there were sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 of the Convention. These included a careful direction to the jury in summing-up; evidence given before the jury as to the reasons why the witness had not attended court; the opportunity for the applicant to explore, through cross-examination of others, the reasons for the witness’s reluctance; and the availability of documentary evidence which could be challenged. Furthermore, the Government pointed out that pursuant to either section 126 of the 2003 Act or section 78 of the 1984 Act the defence had been entitled to argue that the evidence of the absent witness should not be admitted. The defence had also been entitled to apply under section 125 of the 2003 Act for the judge to halt the trial on the basis that the case against the accused was based wholly or partly on a hearsay statement and the evidence provided by the statement was so unconvincing that, considering the importance to the case against him, his conviction would be unsafe.

2. The Court’s assessment

(a) General Principles

113. The Court reiterates that the guarantees in paragraph 3(d) of Article 6 are specific aspects of the right to a fair hearing set forth in paragraph 1 of that Article which must be taken into account in any assessment of the fairness of proceedings. In addition, the Court’s primary concern under Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings (see Schatschaschwili v. Germany [GC], no. 9154/10, § 101, 15 December 2015 and Taxquet v. Belgium [GC], no. 926/05, § 84, 16 November 2010, with further references therein). In making this assessment the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victim(s) that crime is properly prosecuted (see Schatschaschwili v. Germany, cited above, §101 and Gäfgen v. Germany [GC], no. 22978/05, § 175, ECHR 2010) and, where necessary, to the rights of witnesses (see, amongst many authorities, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, 15 December 2011). It is also notable in this context that the admissibility of evidence is a matter for regulation by national law and the national courts and that the Court’s only concern is to examine whether the proceedings have been conducted fairly (see Gäfgen, cited above, § 162, and the references therein).

114. In Al-Khawaja and Tahery v. the United Kingdom, cited above, §§ 119‑147 the Grand Chamber clarified the principles to be applied when a witness does not attend a public trial. These principles may be summarised as follows:The Court should first examine the preliminary question of whether there was a good reason for admitting the evidence of an absent witness, keeping in mind that witnesses should as a general rule give evidence during the trial and that all reasonable efforts should be made to secure their attendance.Typical reasons for non-attendance are, as in the case of Al‑Khawaja and Tahery (cited above), the death of the witness or the fear of retaliation. There are, however, other legitimate reasons why a witness may not attend trial.When a witness has not been examined at any prior stage of the proceedings, allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort.The admission as evidence of statements of absent witnesses results in a potential disadvantage for the defendant, who, in principle, in a criminal trial should have an effective opportunity to challenge the evidence against him. In particular, he should be able to test the truthfulness and reliability of the evidence given by the witnesses, by having them orally examined in his presence, either at the time the witness was making the statement or at some later stage of the proceedings.According to the “sole or decisive rule”, if the conviction of a defendant is solely or mainly based on evidence provided by witnesses whom the accused is unable to question at any stage of the proceedings, his defence rights are unduly restricted.In this context, the word “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other incriminating evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence: the stronger the other incriminating evidence, the less likely that the evidence of the absent witness will be treated as decisive.However, as Article 6 § 3 of the Convention should be interpreted in the context of an overall examination of the fairness of the proceedings, the sole or decisive rule should not be applied in an inflexible manner.In particular, where a hearsay statement is the sole or decisive evidence against a defendant, its admission as evidence will not automatically result in a breach of Article 6 § 1. At the same time, where a conviction is based solely or decisively on the evidence of absent witnesses, the Court must subject the proceedings to the most searching scrutiny. Because of the dangers of the admission of such evidence, it would constitute a very important factor to balance in the scales and one which would require sufficient counterbalancing factors, including the existence of strong procedural safeguards. The question in each case is whether there are sufficient counterbalancing factors in place, including measures that permit a fair and proper assessment of the reliability of that evidence to take place. This would permit a conviction to be based on such evidence only if it is sufficiently reliable given its importance to the case.

115. Those principles have been further clarified in Schatschaschwili v. Germany, cited above, §§ 111–131, in which the Grand Chamber confirmed that the absence of good reason for the non-attendance of a witness could not, of itself, be conclusive of the lack of fairness of a trial, although it remained a very important factor to be weighed in the balance when assessing the overall fairness, and one which might tip the balance in favour of finding a breach of Article 6 §§ 1 and 3(d). Good reason for the absence of a witness must exist from the trial court’s perspective, that is, the court must have had good factual or legal grounds not to secure the witness’s attendance at the trial. If there was a good reason for the witness’s non-attendance in that sense, it follows that there was a good reason, or justification, for the trial court to admit the untested statements of the absent witness as evidence.

116. Furthermore, given that its concern was to ascertain whether the proceedings as a whole were fair, the Court should not only review the existence of sufficient counterbalancing factors in cases where the evidence of the absent witness was the sole or the decisive basis for the applicant’s conviction, but also in cases where it found it unclear whether the evidence in question was sole or decisive but nevertheless was satisfied that it carried significant weight and its admission might have handicapped the defence. The extent of the counterbalancing factors necessary in order for a trial to be considered fair would depend on the weight of the evidence of the absent witness. The more important that evidence, the more weight the counterbalancing factors would have to carry in order for the proceedings as a whole to be considered fair.

(b) Application of these principles to the present case

(i) Whether there was good reason for the non-attendance of the witness at trial

117. The Court has generally adopted a robust approach in determining whether a domestic court had good factual or legal grounds not to secure the witness’s attendance at trial. For example, it has held that the fact that a witness is absent from the country where the proceedings are conducted is in itself not sufficient to satisfy the requirements of Article 6 § 3 (d), which requires the Contracting States to take positive steps to enable the accused to examine or have examined witnesses against him. Such measures form part of the diligence which the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner (see Gabrielyan v. Armenia, no. 8088/05, § 81, 10 April 2012).

118. The justification relied on in the present case for the non-attendance of VO was his refusal to attend court to give evidence. It is therefore an instance of an available but reluctant witness, rather than a witness who was unable to attend. Consequently, the Court must ask whether “all reasonable efforts”, to use the language of Al-Khawaja and Tahery (see paragraph 114 above), can be said to have been made to secure his attendance.

119. In this regard, the Court notes that the prosecution made several attempts to convince VO to appear as a witness both before and during the trial. In particular, they wrote to him emphasising the importance of his evidence, making it clear that all expenses would be met and inconvenience kept to a minimum, and informing him that if he did not attend his previous assistance might be wasted. They also tried to reach him through his employer but were told that he was on leave and could not be contacted (see paragraph 18 above). Two weeks into the trial, when it became clear that VO would not testify, the trial judge directed the prosecution to contact him again. In a letter to VO, the prosecution offered various options to him, including giving evidence via live video link from his home in Belgium. Meanwhile, the defence also wrote to him seeking clarification on apparent inconsistencies in his account. All of these efforts were ignored (see paragraph 19 above). The Government have asserted that since VO was outside the jurisdiction, he could not be compelled to give evidence. Consequently, no further measures were available to them to secure his attendance.

120. The applicant, for his part, has not pointed to any further measures that the prosecution could have taken to compel VO’s attendance at his trial. However, the Court notes that in certain cases a State may formally request the judicial authorities of another State to compel a witness to give evidence. Pursuant to the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959, supplemented by the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (see paragraphs 67-68 above), in certain cases one Member State may request another to summons a witness to give evidence by video-conference. Moreover, in Schatschaswillli v. Germany (see paragraph 115 above), which also concerned overseas witnesses who were reluctant to attend trial, the German Regional Court had suggested to the competent Latvian judge that the witnesses be compelled to attend the hearing.

121. In the present case the prosecuting authorities undoubtedly made significant efforts to persuade VO to give evidence. However, in the absence of more detailed submissions from the applicant on any additional measures which may have been available to the prosecuting authorities, in particular, by virtue of the European Union’s Convention on Mutual Assistance in Criminal Matters (as referred to in the preceding paragraph), the Court is not in a position to reach any firm conclusion on whether they took “all reasonable measures” to secure VO’s attendance. Nevertheless, even if the facts of the present case are taken as disclosing the absence of a “good reason”, in the Al-Khawaja and Tahery sense, for the non-attendance of VO, that is not the end of the matter. As pointed out in Schatschaswillli v. Germany (see paragraph 115 above), this is a consideration which is not of itself conclusive of the lack of fairness of a criminal trial, although it constitutes a very important factor to be weighed in the overall balance together with the other relevant considerations.

(ii) Whether the evidence of the absent witness was “sole or decisive”

122. Moving on to the second stage of the test in Al-Khawaja and Tahery, for the reasons set out below the Court does not consider that VO’s evidence was “determinative of the outcome of the case”.

123. First of all, the crux of VO’s evidence was that the final destination of the fourth shipment had been the United Kingdom. However, the applicant did not deny this. Rather, it was his contention that the drums containing the drugs were to be removed at Antwerp and transferred to Rotterdam (see paragraph 31 above). The fact that the jury did not accept this defence cannot be attributed to the absence of VO at trial. On the contrary, the Court recalls that there were considerable question marks concerning the applicant’s truthfulness as a witness. In particular, his defence had changed during the trial after he was discovered to have fabricated evidence to concoct his original defence (see paragraph 30 above); and he had failed to disclose facts material to his “second” defence when first interviewed (see paragraph 29 above).

124. In any event, there was considerable logistical and documentary evidence supporting VO’s assertion that the final destination of the fourth shipment had been the United Kingdom. It was not in dispute that the destination of the first three shipments had been the United Kingdom and the prosecution’s case was that the paperwork relating to the fourth shipment was consistent with that relating to the previous three (see paragraph 28 above). This paperwork included details of bank transactions, the issuing of shipping licences, communications between Premier Molasses and VO (including communications between David Keen and VO) arranging for shipment to the United Kingdom, and communications in which David Keen had been pushing for early delivery of the shipment to the United Kingdom.

125. There also existed incriminating evidence that “David Keen” was a false identity assumed by the applicant in the context of business carried out on behalf of Premier Molasses. In particular, the Home Office had confirmed that there was no record of any person by that name; three witnesses from Guyana had identified the applicant as David Keen; and faxes in the name of David Keen had been sent from the applicant’s address (see paragraph 27 above).

126. Finally, the Court cannot ignore the fact that the evidence of VO was, in some respects, favourable to the applicant. In this regard, it notes that in his statements he referred to the telephone call he had received from a woman at Premier Molasses, who told him that the contents of the container were not to be imported to the United Kingdom but instead sold to a Dutch company (see paragraph 23 above). This led the Court of Appeal to conclude that not only had the applicant not been prejudiced by the admission of VO’s statements, but the fact that this aspect of his evidence could not be subject to cross-examination had actually worked to his advantage (see paragraphs 48-50 above).

127. That being said, as was explained in Schatschaswillli v. Germany (paragraph 115 above), there is a need under Article 6 to assess the fairness of the proceedings taken as a whole. Therefore, even though VO’s evidence was not “sole or decisive”, the Court still needs to determine whether there existed sufficient factors counterbalancing any handicaps that the admission of that evidence might have entailed for the defence.

(iii) Whether there were sufficient “counterbalancing factors”

128. The domestic legal framework, in the form of section 116 of the 2003 Act (see paragraph 62 above), lays down detailed conditions under which absent-witness (“hearsay”) evidence may be admitted in criminal proceedings. The 2003 Act further provides an array of procedural safeguards designed to ensure a fair trial and going to matters such as credibility of evidence, stopping the case when the evidence is unconvincing, and the trial court’s general discretion to exclude evidence (sections 124-126 of the 2003 Act – set out at paragraphs 63-65 above).

129. In the present case the statements of VO were admitted pursuant to section 116 of the 2003 Act (see paragraph 20 above). Since, through no fault of the respondent State, no transcripts of that hearing are now available, it cannot be said with certainty that the trial judge addressed all the relevant conditions under that section before deciding to admit the evidence of the absent witness. However, the applicant does not appear to have challenged the admission of VO’s statements at trial, in particular on the basis of section 78 of the 1984 Act (see paragraph 66 above); nor did he argue – on appeal to the Court of Appeal or in his application to this Court – that the requirements of section 116 of the 2003 Act had not been satisfied.

130. Furthermore, in the judge’s summing-up at the end of the trial he expressly cautioned the jury on a number of separate occasions about the limitations of VO’s evidence (see paragraphs 35-38 above). First, he made it clear that the defence did not accept the veracity of VO’s evidence (see paragraph 35 above). Secondly, he warned the jury of the limitations of evidence which was “read out” in court notably, the difficulty of assessing the credibility of a witness they could not see “in the flesh” and the fact that such evidence was untested by cross-examination (see paragraph 36 above). Thirdly, he reiterated this warning when he was summing-up the evidence of VO (see paragraph 37 above). Fourthly, he reviewed the attempts made to bring VO to court and then warned the jury a further time that when assessing the evidence of VO they should look at all the circumstances, remember all the warnings they had been given, and decide the weight that could properly attach to it (see paragraph 38 above). Finally, after refusing the jury’s request for transcripts of VO’s evidence, he re-read the relevant part of his summing-up summarising those statements. Having done so, he also reminded the jury of the criticism which had been made of the statements by the defence and of his previous warnings (see paragraph 39 above).

131. As recalled above (at paragraph 115 above – referring to Schatschaschwili v. Germany), the assessment of “counterbalancing factors” is a relative one: the extent of the counterbalancing factors necessary in order for a trial to be considered fair depends on the importance of the absent-witness evidence. In the instant case it is therefore of relevance also for this branch of the test in Al-Khawaja and Tahery that there was other substantial evidence both supporting VO’s admitted statements and incriminating the applicant (see paragraphs 13, 16, 23, and 27-29 above), so that the importance of these statements is diminished.

(iv) Conclusion

132. Having regard to the existence of that other, substantial, incriminating evidence and of the procedural safeguards capable of counterbalancing VO’s absence at trial, it cannot be said that the criminal proceedings, looked at as a whole, were rendered unfair by the admission in evidence of his statements.

133. Accordingly, the Court is satisfied that the admission in evidence of those statements did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints concerning the admission of hearsay evidence admissible and the remainder of the application inadmissible;

2. Holds that there has been no violation of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

Done in English, and notified in writing on 15 September 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Abel Campos Mirjana Lazarova Trajkovska
RegistrarPresident

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