LAWLESS v. THE UNITED KINGDOM

FOURTH SECTION

DECISION

Application no. 44324/11
Andrew Michael LAWLESS
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 16 October 2012 as a Chamber composed of:

Lech Garlicki, President,
David Thór Björgvinsson,
Nicolas Bratza,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent A. De Gaetano, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 19 July 2011,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Andrew Michael Lawless, is a British national, who was born in 1967. He is detained at HMP Gartree. He was represented before the Court by Mr A. Gilles, a lawyer practising in Torquay with Almy & Thomas Solicitors, assisted by Mr O. Willmott, counsel.

A. The circumstances of the case

2. Between 25 January and 25 February 2010 the applicant was tried before a judge and jury at the Crown Court at Exeter for the murder of Mr Stephen Price. It was the prosecution’s case that the applicant had stabbed Mr Price to death following an argument, had wrapped Mr Price’s body in a plastic garden swing seat cover, had put it in his van and had disposed of it. The body was never found. On 25 February 2010 the applicant was unanimously convicted by the jury and sentenced to life imprisonment with a direction that he should serve no fewer than eighteen years in prison. The applicant maintains that his trial was unfair, principally because one prosecution witness, Mr Jasper Widdicombe, fell sick during cross-examination and was unable to continue giving evidence.

1. The case against the applicant

3. On the evening of 2 May 2008 Mr Price disappeared. At the time he was living with a Ms Jane Grant in Great Western Close, Paignton. That afternoon, Mr Price had returned home and had complained that someone had parked their van outside the house. It was not in dispute that the van belonged to the applicant. The same evening two police officers attended the street where Mr Price lived on unrelated business. While they were there, Mr Price complained about the presence of the van. The officers spoke to the applicant who told them that he was visiting a friend. The officers told Mr Price that the applicant was entitled to park where he had and left. Ms Grant and her son later saw Mr Price throw a golf ball at the applicant’s van, causing the applicant to telephone the police to complain and to give the police a description which matched that of Mr Price. The police were unable to attend the scene. Later that evening, Mr Price again left his home and has not been seen since.

4. There were two issues at trial: whether Mr Price was dead and whether the applicant had killed him.

5. In seeking to prove the former, the prosecution relied on the following evidence:

- that none of Mr Price’s friends or family had seen him since 2 May 2008;

- that he left without taking any belongings (or his dog, to which he was devoted) with him;

- that he had never lived, and rarely travelled, outside Devon;

- that he was a recovering heroin addict who required a regular methadone prescription;

- that he was of limited financial means;

-that he had recently regained contact with his daughter whom he had not seen since birth;

- that “proof of life” enquiries by the police (which involved contacting all public authorities and agencies with which Mr Price might have had contact) yielded nothing.

6. To support their case that the applicant had killed Mr Price the prosecution led the following evidence.

Jane Grant gave evidence that, after his earlier argument with the applicant, Mr Price had asked for change to make a telephone call and had left their flat with his dog. The dog returned to the flat of its own accord, still wearing his lead, later that evening, but Mr Price had been missing ever since. Ms Grant’s son – who was also at the flat that evening – gave similar evidence.

Louise Merrifield, a resident of Great Western Close, gave evidence that, from her flat, she had heard Mr Price’s dog barking and then two male voices shouting. There was then a fight and she heard someone say “Oh God, get it off” and “What are you doing? What are you doing?” Everything went quiet. Then, she heard a rustling noise, which she associated with the plastic garden seat cover that went missing that night being dragged across the ground. After the rustling, there was a circle of light at the back of the van, which left shortly afterwards. She noted the registration plate, which matched that of the applicant’s van, save for one letter. Once the applicant had left, she saw Mr Widdicombe outside, where the van had been, with a torch. The following morning she noticed that the plastic cover for the garden seat was missing.

Sarah Griffin, another resident, gave evidence that the applicant returned to Great Western Close in the early hours of 3 May 2008. The prosecution suggested that this was to clear up the blood that Mr Widdicombe said he saw. (The defence argued that it was improbable that, if the applicant had killed Mr Price, he would return to the scene of the crime so soon.)

The jury also heard from the owner of the swing seat and her brother‑in‑law, both of whom gave evidence that, on 3 May, they saw the plastic cover was missing and that the ties holding it in place had been cut.

The prosecution also adduced a transcript of the applicant’s telephone conversations with the police, complaining about someone throwing golf balls at his van. They also adduced evidence that, on 10 June 2010, a police officer contacted the applicant to discuss the complaint he had made earlier on the evening of 2 May. In the course of that conversation, the applicant appeared to deny that a man of Mr Price’s description had been responsible for throwing the golf balls at the van or that there had been any altercation.

There was also evidence of witnesses who, after 2 May, had seen the applicant refitting the flooring in his van. (The prosecution invited the jury to infer that he had done so to remove traces of the body, although no probative forensic evidence was recovered from the van). There was also evidence that the applicant had bought cleaning materials for the van and had cleaned the inside of it after 2 May. (The defence argued that there was also evidence that the applicant was a perfectionist and that he had also done work to the van and cleaned it before that date.)

The prosecution also adduced evidence of the applicant’s two previous convictions for unlawful wounding in circumstances where, the prosecution said, the violence had been a wholly disproportionate response to minor provocation. They also adduced a questionnaire the applicant had completed in 2004 in which he had written that he had had arguments and fights with people in the street, where he admitted that he was capable of extreme violence and had stated that he was afraid that one day he might get into very serious trouble.

The prosecution also adduced the applicant’s police interviews, where he had denied meeting Mr Price on the evening of 2 May and had answered “no comment” to all subsequent questions put to him.

2. Mr Widdicombe’s evidence and the application to discharge the jury

7. Mr Widdicombe suffered from depression and was interviewed by the police as a vulnerable adult witness. His interviews were video-recorded and played to the jury at trial. In those interviews he gave evidence that the applicant, his friend, had visited him on the evening of 2 May 2008. Within five minutes of the applicant leaving Mr Widdicombe’s flat, Mr Widdicombe heard him talking outside. He heard someone groaning, as if in pain. The applicant telephoned him later that evening and asked him to go outside and clear up some blood, which he refused to do. (It was admitted that the applicant had telephoned Mr Widdicombe, and that he had done so while on the move, but denied that he had asked Mr Widdicombe to clean up the blood). After the telephone call, Mr Widdicombe went outside and saw three pools of blood. About a week later, the applicant visited him and told him that he had had a fight with someone who had thrown golf balls at his van. The applicant said the man had produced a knife, they had had an altercation, and the applicant had “cut” the man.

8. After the jury had watched the video interviews, the defence’s cross‑examination of Mr Widdicombe began via video link to another room at the Crown Court building. In the course of two hours of questioning Mr Widdicombe sought breaks on three occasions and, on the last occasion, suffered a panic attack and had to be treated by paramedics. He was then examined by his general practitioner and by a consultant psychiatrist. They concluded that he was unfit to continue as a witness and there was no sensible prospect of his being able to feature as a witness in any subsequent trial. The defence then applied for the jury to be discharged, submitting that, in the absence of the opportunity to continue cross-examination, the applicant was so severely prejudiced that a fair trial was not possible.

9. In refusing that application the trial judge found:

“It is clear from the authorities that the trial judge has a discretion to allow the trial to continue, notwithstanding that an important witness to the alleged offence has become ill, and is unable to continue as a witness for that reason. The fundamental question which arises in these circumstances is whether, notwithstanding the inability of the defence to cross-examine, it is fair to allow the trial to proceed, or whether the jury should be discharged and a retrial ordered. The fundamental question is whether I am satisfied that a fair trial is possible.

It is accepted that Jasper Widdicombe is an important witness to the events which give rise to the offence alleged. As was the case with the other witness [Louise Merrifield], he was not able to see what occurred because the events were taking place in darkness and at a distance from his vantage point. He is one of two witnesses who describe in the main what they were able to hear.

He goes further in two respects. Firstly, he told the police that the defendant had subsequently told him that he got into an altercation with someone and had cut him with a knife; secondly, he told the police that on the night in question the defendant had telephoned him and asked him to go out and mop up blood. During the limited cross-examination that counsel was able to conduct Jasper Widdicombe defiantly repeated and affirmed this latter piece of evidence. Counsel, for his own reasons, said he would return to that topic. It seems to me, and it seemed to me at the time, that it was highly unlikely that Jasper Widdicombe would have resiled from that piece of evidence. It is therefore the case that Jasper Widdicombe, in two respects, gives evidence of something that is not corroborated by any other witness.

...

Without doubt it is important evidence that Jasper Widdicombe gives and, if accepted, would be tantamount to an admission by the defendant that he had killed Stephen Price. However, if the evidence of Jasper Widdicombe as to those two matters is put on one side the prosecution are left with a formidable collection of circumstantial evidence comprising events both before and after the evening of 2nd May. I agree that it is a body of evidence quite sufficient for the prosecution properly to ask the jury to convict of murder; it would not be right to approach this case on the basis that the evidence of Jasper Widdicombe on those two particular issues is crucial to the outcome.

...

As to the first of those pieces of evidence, I note that there is clear and uncontradicted evidence to the effect that the defendant did telephone Jasper Widdicombe that night; he phoned him at 10.35 p.m. after the events described both by Jasper Widdicombe and Louise Merrifield. It is not disputed that the defendant was, at the time of that telephone call, on the move. The question why the defendant telephoned Jasper Widdicombe at that time, having only left his company a short time before has, at this stage of the trial, no answer apart from the one given by Jasper Widdicombe, which was that the defendant telephoned him to ask him to go out and mop up the blood. On the second occasion when the defendant visited Jasper Widdicombe about a week later he says the defendant told him that on 2nd May he had had an altercation with Stephen Price and had cut him with a knife. The fact of that visit, though of course not what was spoken about, is corroborated by other evidence.

All the remaining evidence adduced by the prosecution was capable of being challenged in the normal way.”

10. Having also considered the Supreme Court’s ruling in R. v. Horncastle and others [2009] UKSC 14 (see Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 57-62, ECHR 2011), the trial judge found that the evidence of Mr Widdicombe was by no means the sole or decisive evidence in the case. He also found that, in the light of that ruling, the key question was one of reliability. He continued:

“Undoubtedly there are indications in [Mr Widdicombe’s] manner and presentation that are associated with his fragile mental health. However, it was not my impression that there was any indication that he was an unreliable witness. The jury have also had a significant opportunity to form an impression of him, both while watching his video interviews and during cross-examination, curtailed though it might have been. In addition, in the light of the incontrovertible evidence, both of a phone call on the night in question and a visit to Mr Widdicombe by the defendant a week later, the jury would not have to wrestle with an assertion that such an event never occurred at all.”

The trial judge concluded that the evidence was reliable, that admitting it would not have an adverse effect upon the proceedings and that, subject to giving the jury appropriate warnings and directions, the trial could proceed.

3. The applicant’s defence

11. The defence case was the prosecution had not proved either that Mr Price was dead or that the applicant had killed him. He did not dispute that, on the evening of Mr Price’s disappearance, he and Mr Price had a disagreement, but denied murder. No evidence was called by the defence and the applicant did not give evidence.

4. The summing up and verdict

12. The trial judge’s summing up to the jury contained the following direction in respect of Mr Widdicombe’s evidence:

“By reason of the circumstances that arose in relation to him, although you have heard and seen his lengthy video interviews you have only heard and seen him deal with part of the cross-examination.

Important consequences flow from that. You must be very aware of that when considering the weight that you should attach to his evidence, and you must examine his evidence with particular care, bearing in mind the limitations which I must draw to you attention. You have had only a partial opportunity of seeing and hearing him, and of assessing him as a witness. You did not have the opportunity of seeing and hearing how he would have dealt with the challenges to his evidence that might have been mounted. When a jury has that opportunity it may provide valuable insight into the question whether the witness is an honest and accurate witness. The jury is able, under normal circumstances, to see how the evidence survives or does not survive the challenges to it.

In relation to this, it is a consequence of the decision taken by the defendant not to give evidence in this trial, or to give any account to the police, that you do not know in what respects he might have challenged the evidence of Jasper Widdicombe. I have already warned you against speculation and guesswork, and it applies with equal force here. You cannot speculate as to the challenges that might have been mounted to the evidence of Jasper Widdicombe, or how those challenges might have been met. Jasper’s evidence is only part of the evidence in this case, and it must be considered by you in the light of all the other evidence in the case, and you must reach your verdict having considered all the evidence.

You should consider whether there are any discrepancies between what he said and the other evidence that you have heard, and whether there have been alterations in his own account. You will recall, for example, that in the incompleted statement made to the two police officers when he was first seen he had said that after the defendant left his flat that defendant had driven off straightaway. In his video interviews he said at first that he had not gone out with a torch, and then later said that he had. The defence remind you that Jasper Widdicombe’s account of ‘pools of blood’ is not supported by any other evidence that you have heard.

I also direct you that it is important that you should consider whether Jasper Widdicombe is a reliable witness. Initially he was visited by two police officers who began to take a statement from him; they did not complete that statement. He then went to the police station where he was interviewed by a police officer ... the decision to conduct the video-recorded interview [at the police station] was taken on the basis that this would be the best method of obtaining his evidence.

At the end of that interview the police officer indicated that he thought that Jasper Widdicombe knew more than he had been saying about what had happened. A decision was then taken to treat him as a vulnerable adult witness, and therefore a further interview took place at his mother’s home and in the presence of an appropriate adult ... It is for you to assess him as a witness, and in carrying out that assessment you must bear in mind everything which you know about Jasper Widdicombe and the warnings I have given you.”

13. On 25 February 2010 the jury unanimously convicted the applicant of murder. As is the normal practice in criminal trials in England and Wales, the jury did not give reasons for their verdict.

5. The applicant’s appeal against conviction

14. The applicant applied for leave to appeal against his conviction to the Court of Appeal. He argued that his trial had been unfair inter alia because: (i) the trial judge had erred in refusing to discharge the jury after Mr Widdicombe had been unable to continue giving evidence; and (ii) relying on Taxquet v. Belgium [GC], no. 926/05, ECHR 2010, the jury had not given reasons for its verdict.

15. Leave to appeal was initially refused by a single judge of the court who found that, in respect of the first ground, the trial judge was justified in assessing the prosecution as formidable, quite apart from Mr Widdicombe’s evidence. If, prior to the trial, Mr Widdicombe had been unfit to give evidence, the video recorded evidence would have been admitted as evidence. No additional overwhelming disadvantage had occurred to the applicant; if anything, there had been the advantage that at least some, as opposed to no, cross-examination had occurred. The single judge also found that, in contrast to the Belgian system found to be deficient in Taxquet, the jury system in England and Wales complied with the requirements of Article 6.

16. The applicant renewed his application for leave to appeal before the full court, which dismissed the appeal on 20 January 2011. In respect of the inability to continue cross-examining Mr Widdicombe the court found:

“In such circumstances the overriding question for the judge is always whether it is still possible nevertheless for the accused to have a fair trial. A major consideration seems to us, as it seemed to the judge, to be whether Mr Widdicombe’s evidence (perhaps to an extent edited for the purpose) would have been available to the jury if his indisposition had happened before instead of during the trial and/or whether it would have been available before a jury on a retrial. It would, as the single judge observed, have been almost inevitable and in accordance with section 116 of the Criminal Justice Act 2003. In those circumstances it might be thought to be, if anything, somewhat to the applicant’s advantage that his counsel had had at least the opportunity to put some questions in cross-examination which lasted around two hours. Certainly he was in no worse a position, in our judgment. The judge was fully entitled to conclude that the mishap would be corrected or sufficiently mitigated by a strong judicial direction. At pages 12–15 of the summing-up this was done in terms that have not been the subject of criticism. We agree with the single judge’s observations in refusing leave.”

17. In respect of the ground based on Taxquet, cited above, the court found:

“As always when addressing a Strasbourg decision, close attention must be paid to the facts of the particular case before determining how relevant it is to the instant circumstances. In the Liège Assize Court the jury had to answer 32 questions, of which four only related to Mr Taxquet. There were two as to the charge of murder and two relating to the other charge of attempted murder. They were asked in each instance whether the charge was proved and if it was premeditated. The facts were complicated and in the circumstances the Grand Chamber ultimately concluded that the safeguards were insufficient, although the Court’s reasons are not perhaps as fully explained as they might be. In particular with a jury trial, since there are unlikely to be any reasons, it is necessary to ensure that this disadvantage is offset by a clear framework of questions and directions so that the outcome can be understood by the accused and by interested onlookers. It was held that neither the indictment nor the jury questions contained sufficient information in that case as to the applicant’s involvement in the crimes of which he was accused.

Here the circumstances are very straightforward. The case does not have the kind of complexity found in Taxquet. In particular there was no scope for confusion with other co-defendants. There were none.

Here there was the Widdicombe evidence, some of which was corroborated by Miss Merrifield, and the circumstantial evidence, as explained to the jury in the summing-up. There was no lack of clarity about the nature of the case against the applicant, or the jury’s conclusion in the light of that evidence. They are not required to set out their reasons, or what each juror thought of each piece of evidence. That is not the law in England and there is no reason to suppose that it is likely to change in the immediate future because of Taxquet. A point made by the Court in Strasbourg in Taxquet was that he could only appeal on a point of law. That is not the position in this jurisdiction.”

B. Relevant domestic law and practice

18. In the following cases the Court of Appeal has considered the safety of convictions where a witness has given evidence for the prosecution, but it has not been possible for that witness fully to be cross-examined by the defence.

In R v Lawless and Basford [1994] 98 Cr.App.R. 342 a co-accused pleaded guilty and gave evidence, as an accomplice, against two co‑defendants. Before any cross-examination on behalf of either, the accomplice suffered a heart attack and was unable to complete his evidence or to be cross-examined. The appeals against conviction were allowed on the basis that it was doubtful whether any direction, however strongly expressed, could have overcome the only damning evidence, untested by cross-examination, of the accomplice.

In R v Stretton and McCallion [1988] 86 Cr.App.R. 7, concerning charges of attempted rape and indecent assault, the victim, an epileptic and mentally handicapped woman had been unable to continue with her evidence after a substantial period of cross-examination as to the essential issue of consent. The trial judge had allowed the trial to continue but invited the jury to acquit if they were not sure that the cross-examination had sufficiently probed and tested the complainant so as to enable the jury to judge fairly her credibility. The Court of Appeal dismissed the appeal finding that the trial judge had clearly instructed the jury and there was no likelihood that the complainant resiling from her evidence that she had not consented.

R v. PM [2008] EWCA 2787 concerned an appeal against conviction for a series of sexual offences, where, at trial, one of the complainants, L, had collapsed during cross-examination and had been unable to continue giving evidence. The trial judge had refused to discharge the jury and, in the course of his ruling to that effect, had remarked that the complainant’s statement could have been read to the jury under the Criminal Justice Act 2003.

The Court of Appeal first found that the power to permit a statement to be read under the 2003 Act was not a relevant factor in deciding whether to discharge a jury after a prosecution witness was unable to continue to give live evidence. The court observed (at paragraph 17 of its judgment) that such circumstances were wholly distinct from the read evidence of an unseen witness, the impact of which was bound to be diminished by the mere fact of the jury hearing the evidence read. The trial judge had therefore been incorrect to draw an analogy between these situations. Although expressing reservations as to the limited nature of the trial judge’s direction to the jury (and approving again the terms of the direction given in Stretton and McCallion), the court nonetheless dismissed the appeal, finding that there was evidence in the case which the defence could have used to attempted to undermine or contradict the evidence of the complainant in question. The court observed:

“33. We take the view that whilst a defendant is generally entitled to cross-examine one who gives live evidence, accusing him of an offence, the inability to do so is not automatically and always fatal to the fairness of the trial. Where the grounds for challenging the evidence of a complainant and undermining that evidence derive from a distinct source all that has been lost is the opportunity for the jury to weigh the reaction of the witness once those factors have been put. Had she been able to continue, she would either have admitted that her evidence was false, an unlikely reaction, or sought to explain it away. In her absence, the prosecution could only seek to avoid the impact of the other evidence, it could not rely on that witness to deny it. Thus the disadvantage which a defendant suffers from not being able to cross-examine as to those points is not substantial. Indeed, it may even be an advantage since the complaining witness has lost the opportunity which she would otherwise have of explaining why, for example, she demonstrated affection or, for example, had not made an earlier complaint. The obligation of the defence to put those points to the witness is, after all, not only to contradict them but also, if she cannot, to avoid their suggested impact on the credibility of her own evidence. Once the witness herself was deprived of the opportunity to explain them, the defendant has an unrestricted opportunity to rely upon those factors as tending to a conclusion that the complainant’s evidence was false.

34.We wish to make it clear that we are not seeking to minimise the importance of cross-examination as a legitimate tool for assisting a defendant. But, as any defence advocate will know, cross-examination, particularly of an obdurate and distressed witness, may be a forensic weapon of limited use. We take the view that in the particular circumstances of this case, and bearing in mind the nature of the factors on which the defence sought to undermine L’s evidence, the inability of defence counsel to do more than start her cross-examination did not lead to unfairness in the trial.”

The court concluded that the defendant had a fair and proper opportunity to challenge what L had said and the jury’s verdicts were not unsafe.

COMPLAINTS

19. The applicant made two complaints.

20. First, he complained that the decision of the trial judge to allow the trial to continue, even though the defence could not complete its cross‑examination of Mr Widdicombe, meant that he was denied the opportunity to examine or have examined witnesses against him, in violation of his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention.

He submitted that Mr Widdicombe gave two critical pieces of evidence: that the applicant had told him that he had “cut” someone with a knife and that the applicant had asked him to mop up blood. Although the latter had been mentioned briefly in cross-examination, counsel had indicated that he would return to the issue later. In the event, the cross-examination never reached the part where these allegations were to be traversed. The applicant accepted Mr Widdicombe’s evidence was not the sole evidence against him; however, contrary to the ruling of the trial judge, it may well have been the decisive evidence against the applicant. Neither of the two critical pieces of evidence was corroborated by other evidence in the case. It was possible that the jury was left unpersuaded by the circumstantial evidence against the applicant, but accepted the evidence of Mr Widdicombe and convicted on the basis of it.

21. Second, he complained that the absence of reasons by the jury for their verdict meant there were insufficient safeguards at trial to avoid any risk of arbitrariness or to enable to the applicant to understand the reasons for his conviction.

THE LAW

22. Article 6 §§ 1 and 3 (d) of the Convention, where relevant, provides as follows:

Article 6

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

...

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

...

(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”

A. The inability of the defence to complete its cross-examination of Mr Widdicombe

23. In assessing this complaint, the Court begins by noting the different views expressed by the Court of Appeal in the applicant’s case and those expressed in R v. PM. In PM, the Court of Appeal found that a case in which a witness gave some live evidence but cross-examination was cut short was “wholly distinct” from the case where an absent witness’ evidence was read to the jury, in that the impact of the latter was bound to be diminished by the mere fact of the jury hearing the evidence read. In the present case, the Court of Appeal found that, had Mr Widdicombe become indisposed before trial, his evidence would have been made unavailable to the jury and that it was “somewhat to the applicant’s advantage that his counsel had had at least the opportunity to put some questions in cross‑examination” (see paragraph 16 above).

24. The Court considers that it not possible to decide in abstracto whether there is a greater disadvantage to a defendant if the witness does not give live evidence at all or if a witness gives some evidence but is not fully cross-examined. This is because, in the latter case, the extent of the disadvantage will depend on how much of the cross-examination took place before the witness became indisposed. In any event, the Court does not consider it necessary to rule on this question since, in both scenarios, the complaint is that the accused has not had an adequate and proper opportunity to challenge and question a witness against him. Consequently, the approach set out in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 must apply.

25. Thus, in the present case, it is necessary to consider whether there was a good reason for the curtailment of the defence’s cross-examination of Mr Widdicombe; whether his evidence was the sole or decisive basis for the applicant’s conviction; and whether there were sufficient counterbalancing factors including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place.

26. For the first, at trial, and again before this Court, the defence appeared to accept that Mr Widdicombe’s medical condition made it impossible for cross-examination of him to continue. Moreover, the medical evidence was that there was no sensible prospect of Mr Widdicombe being able to appear as a witness in any subsequent trial. For this reason, the Court accepts that there was a good reason for the curtailment for the cross‑examination of Mr Widdicombe.

27. For the second, the Court is unpersuaded by the applicant’s submission that Mr Widdicombe’s evidence could have been decisive. As the Grand Chamber stated at paragraph 131 of Al-Khawaja and Tahery “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 corroborative evidence, the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence, the less likely that the evidence of the absent witness will be treated as decisive.

28. To prove their case against the applicant, the prosecution had to prove that Mr Price was dead and that the applicant had killed him. This was not a case where precise time and circumstances of the missing person’s disappearance were unclear; all the evidence pointed to the conclusion that Mr Price was dead and that he had died on the evening of 2 May 2008 after leaving his home to argue with the applicant. The evidence that Mr Price then met his death at the hands of the applicant, although circumstantial, was overwhelming.

29. There was the evidence of Louise Merrifield, which came close to eyewitness evidence of the stabbing. The evidence of Jane Grant and her son was also relevant, not just to the improbability of Mr Price suddenly disappearing of his own volition, but to the fact that he had disappeared because he had left his home to argue with the applicant and had been killed when that argument turned violent. There was the evidence of Sarah Griffin that the applicant had returned to Great Western Close in the early hours of 3 May. There was the evidence from the owners of the plastic swing cover that it had gone missing. There was the applicant’s denial of the contents of his complaint to the police concerning golf balls being thrown at his van and his attempts after 2 May to clean the inside of the van. There were his previous convictions for unlawful wounding in circumstances similar to his argument with Mr Price. There were his police interviews where he declined to answer any questions about the case. Finally, there was the fact that the defence accepted Mr Widdicombe’s evidence that there had been a telephone call between the applicant and Mr Widdicombe, which took place soon after the applicant had left Mr Widdicombe’s company and while the applicant was on the move. That unchallenged evidence was consistent with the prosecution’s case that the applicant had left Great Western Close to dispose of Mr Price’s body and, while doing so, had telephoned Mr Widdicombe to ask for his assistance in cleaning up the murder scene.

30. In the Court’s view, the strength of this corroborative evidence makes it improbable that the jury would have been left unpersuaded by it and would have instead relied on Mr Widdicombe’s evidence to convict the applicant. Consequently, the Court finds no basis to disagree with the trial judge’s findings that, while Mr Widdicombe’s evidence was important, without it there was a formidable collection of circumstantial evidence; that this evidence was quite sufficient for the prosecution properly to ask the jury to convict of murder; and that Mr Widdicombe’s evidence was by no means the decisive evidence in the case.

31. Third, there were also sufficient counterbalancing factors to compensate for the difficulties caused to the defence by the curtailment of its cross-examination of Mr Widdcombe.

32. First, this is not a case where no cross-examination took place at all. Cross-examination of Mr Widdicombe took place for two hours before he became unable to continue, during which time he was cross-examined on (and, in the words of the trial judge, “defiantly repeated and affirmed”) his evidence that the applicant had telephoned him to ask him to mop up the blood at Great Western Close.

33. Second, it would have been open to the trial judge, if he deemed it appropriate, to grant the defence’s application for the jury to be discharged once it became apparent that Mr Widdicombe could no longer give evidence. This was, in itself, an important procedural safeguard.

34. Third, in refusing that application, the trial judge was correct to identify the key question as one of reliability. In the Court’s view, the judge was entitled to form the view that there was no indication that Mr Widdicombe was an unreliable witness and that, had cross-examination continued, it was highly unlikely he would have resiled from this evidence concering the applicant’s request to mop up the blood. The trial judge was also entitled to find that the jury had been given a significant opportunity to form an impression of Mr Widdicombe, both while watching his video interviews and during cross-examination.

35. Fourth, the trial judge recognised that, for the trial to proceed fairly, the jury had to be given an appropriate direction as to how to approach Mr Widdicombe’s evidence In the Court’s view, there is some force in the view that a jury must be directed that, if they consider that they cannot conduct a fair and proper assessment of the reliability of a witness’ evidence, they should disregard that evidence (see, for instance, the direction to the jury in R v. Stretton and McCallion, which was approved by the Court of Appeal in R v. PM, cited at paragraph 18 above). At the very least, they must be warned as to the inherent limitations in evidence which has not been subjected to full cross-examination and as to the dangers in accepting that evidence.

36. That is precisely what the trial judge at the applicant’s trial did. The applicant has not criticised the terms of the summing up either before the Court of Appeal or this Court and there are no grounds for doing so. The trial judge’s direction regarding Mr Widdicombe’s evidence was carefully and fully expressed. He devoted a considerable portion of his summing up to instructing the jury as to the inherent limitations in Mr Widdicombe’s evidence and to warning them as to the dangers of relying on evidence which had not been subjected to full cross-examination. He also took care to identify for the jury those parts of Mr Widdicombe’s evidence which were not supported by any of the other evidence they had heard, and to underline for them the inconsistencies between Mr Widdicombe’s two interviews. The direction would therefore have provided considerable assistance to the jury in how they should assess Mr Widdicombe’s evidence.

37. In summary, the Court considers that these four factors, when taken with the strength of the other prosecution evidence in the case, meant that the jury were able to conduct a fair and proper assessment of the reliability of Mr Widdicombe’s evidence. Against this background, the Court considers that, notwithstanding the difficulty caused to the applicant by his inability to complete his cross-examination of Mr Widdicombe, his trial did not breach the fairness requirement of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

38. For these reasons, the Court considers this complaint must be rejected as manifestly ill founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention.

B. The absence of reasons in the jury’s verdict

39. The Court notes that it has already considered and rejected a similar complaint in Judge v. the United Kingdom (dec.), no. 35863/10, 8 February 2011, where it found that, although the Scottish jury which convicted the applicant did not give reasons for their verdict, the procedural and substantive safeguards contained in Scots law were sufficient for the applicant to understand why he had been found guilty. That ruling was followed in the later Scottish case of Paterson v. the United Kingdom (dec.), no. 19923/10, 22 May 2012. The Court finds that the same reasoning must apply to the procedural and substantives safeguards contained in the criminal law of England and Wales, which were similarly sufficient for the present applicant to understand why he was found guilty. The Court therefore considers that this part of the application must also be rejected as manifestly ill founded, pursuant to Article 35 §§ 3(a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş AracıLech Garlicki
Deputy RegistrarPresident

Full & Egal Universal Law Academy