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Cite as: [2003] ECHR 710
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FOURTH SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no.
14399/02
by Rupert MASSEY
against the
United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 8 April 2003 as a Chamber composed of
Mr M.
Pellonpää,
President,
Sir Nicolas Bratza,
Mrs E.
Palm,
Mr M.
Fischbach,
Mr J.
Casadevall,
Mr S.
Pavlovschi,
Mr J.
Borrego
Borrego, judges,
and Mr M. O’Boyle,
Section Registrar,
Having regard to the above application lodged on 25 March 2002,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Rupert Massey, is a United Kingdom national, who was born in November 1945 and is currently detained in HMP Acklington in Northumberland.
A. The circumstances of the case
On 21 August 1995, the police received a telephone call from GL alleging that the applicant had sexually abused him from December 1981 until December 1983. On 18 September 1995, GL informed the police that he had decided not to make a statement of complaint but on 29 January 1996, stated that he now wished to pursue the matter. On 2 February 1996, the police told GL that there would be a long delay in taking his statement due to other more pressing commitments. On 26 September 1996, the police started to take GL’s statement, a process which continued in other meetings on 18 and 19 December 1996 and several dates at the beginning of January 1997.
On 22 April 1996, DM telephoned the police and stated that he too had been sexually abused by the applicant from April 1973 until April 1978. DM informed the police that GL had contacted him and asked if he knew anyone else who had been sexually abused by the applicant and DM had answered that he had been. The police told DM that there would be a long delay before his statement could be taken. The police contacted DM again on 25 January 1997. His statement was taken over several days and completed on 4 February 1997. At a police interview on 25 January 1997, DM stated that he believed that the applicant had abused four other people including his brother, AM.
After the initial allegations were made, the police advised both GL and DM not to speak to any other witnesses. However, in September 1996, GL contacted DM and they met and discussed the allegations against the applicant. At trial, GL stated that they had met three or four times while DM stated that they had only met once. DM also stated that he had only listened to GL’s account of his own allegations and had not told GL his account.
On 20 March 1997, the applicant was arrested on suspicion of indecent assaults on GL and DM. He was interviewed by the police on 21 March 1997 and was subsequently released on police bail.
As a result of the statement of DM on 25 January 1997, the police approached AM and on 4 June 1997, he made a statement asserting that he had been abused by the applicant from November 1971 until November 1972.
On 2 July 1997, the police interviewed the applicant regarding the allegations made by AM and in October 1997, the police fingerprinted and took DNA swabs from the applicant. On 5 December 1997, the applicant was interviewed with respect to allegations of indecent assault made by a fourth person, MC, and was then charged with a number of counts of indecent assault. On 7 January 1998, MC withdrew his complaint.
From January to March 1998, the applicant made three remand appearances at the Magistrates’ Court. On 18 and 19 May 1998, at the planned committal hearing, the Magistrates’ Court refused the applicant’s applications to discontinue the proceedings on the grounds of delay and adjourned the committal until 4 September 1998 to allow AM, who was working abroad, to return and give evidence.
On 4 September 1998, the applicant was committed for trial and on 18 December 1998, the trial was fixed for 14 April 1999. However, on 30 March 1999, the trial was delayed because the applicant was suffering from depression and memory loss. In June 1999, the Crown Court refused the applicant’s applications to stay the proceedings as an abuse of process or to sever the proceedings so that the applicant would be tried separately in respect of each complainant.
At the beginning of the trial, on 22 November 1999, the trial judge refused another application by the applicant for the proceedings to be stayed as an abuse of process. The applicant had argued that the trial judge should grant a stay on the grounds that the delay in the complainants coming forward prejudiced his defence since it was not possible to investigate the allegations or approach now deceased witnesses, and that the delay in the conduct of the police investigation allowed the contamination of evidence by contact between GL and DM. The judge considered that the delay in the complainants coming forward did not justify a stay of proceeding. He further deemed that, although the police delay in taking statements was “quite inadequate”, the applicant had not shown that any improper or negligent act or omission of the police had permitted contact GL and DM or that anything had occurred which contaminated their evidence. The judge considered that the prosecution had discharged any onus upon them to establish that a fair trial was possible.
Each of the three complainants gave evidence that they had met the applicant on the same beach in Bournemouth, that the applicant became close friends with them and their parents and that the abuse took place at the applicant’s flat in Bournemouth during overnight visits. The statements by each complainant were factually similar involving allegations of the same, particular sexual acts. Two of the complainants also stated that the abuse often took place by the light of a candle.
At the end of the prosecution case, the applicant made another application for the proceedings to be stayed as an abuse of process, on the grounds that the evidence of GL and DM had been contaminated. He relied, inter alia, upon the evidence adduced of meetings between GL and DM and on differences between GL’s initial account on 8 September 1995 and his statement given one year later. The trial judge refused this application, maintaining similar conclusions to those in his decision of 22 November 1999.
In his summing up, the trial judge directed the jury that they could treat the evidence of each complainant as admissible in the cases relating to each of the other complainants (a “similar fact evidence” direction). His direction included the following guidance:
“... members of the jury, ask yourselves a number of questions. First of all ask yourselves: ‘Are we sure that the three, or any two of them, did not put their heads together to make false accusations against the defendant?’. I do stress that word “false” in that context. If you are not sure of that, then the evidence of the others is of no value as support in any one of the complaints and you must ignore it. If you are sure that there was no collaboration so as to make false accusations, you are entitled to consider the evidence of each in deciding whether the others were speaking the truth.
You must then ask yourselves this question, members of the jury: ‘Is it reasonably possible that the three persons independently making similar accusations, those that you have heard, could all be either lying or mistaken?’. If you think that incredible, then you may well be satisfied, considering each, that he was speaking the truth.
But in answering that question you should consider two important aspects of the evidence. First of all, the degree of similarity between the accusations. The greater the degree of similarity the more likely it is that independent witnesses are speaking the truth ...
And secondly, consider whether any of them may have been consciously or unconsciously influenced in their evidence through hearing, directly or indirectly, of complaints made by others, for example, GL and DM who had meetings ...”
The trial judge went on to summarise the defence argument that the evidence of GL and DM had been contaminated by their contact with each other and the discussions they had regarding the allegations against the applicant. He concluded by saying that the question of whether any contact between GL and DM affected the reliability or truth of their evidence was for the members of the jury to decide.
On 7 December 1999, the applicant was convicted of 16 counts of indecent assault and acquitted of four counts of buggery. He was sentenced to a total of six years’ imprisonment and was made subject to the registration requirements of the Sex Offenders Act 1997 for an indefinite period.
The applicant sought leave to appeal against conviction and sentence on various grounds including that the trial judge should have stayed the proceedings as an abuse of process and that the judge wrongly directed the jury on the question of similar fact evidence. On 3 April 2000, a single judge of the Court of Appeal refused to grant leave to appeal against conviction on the grounds that the trial judge was entitled to conclude that the proceedings did not constitute an abuse of process and that the judge was entitled to direct the jury as he did since it was for the jury to decide what weight they should give to the similar fact evidence. The single judge also refused leave to appeal against sentence.
The full Court of Appeal subsequently granted leave to appeal against conviction on two grounds, namely, that the trial judge should have granted the applications to stay the proceedings as an abuse of process and that the judge was wrong to give a similar fact evidence direction, which, in any event, was inadequate.
On 20 December 2001, the Court of Appeal refused a renewed application for leave to appeal against sentence and dismissed the applicant’s appeal against conviction.
With respect to the argument on abuse of process, the applicant complained of the delay in the police investigation and submitted that this delay had allowed the contamination of the evidence of GL and DM and created the risk of collusion between all three complainants. After a review of domestic case-law, the Court of Appeal concluded that a stay of proceedings on the grounds of delay could only be granted in exceptional circumstances and only if the defendant showed that a fair trial was impossible. The court considered that Article 6 of the Convention was inapplicable because the applicant had been convicted before the Human Rights Act 1998 came into force but added that, even if Article 6 applied, it would not affect their assessment on the facts.
With respect to the trial judge’s decision of 22 November 1999, the court considered that on the limited documentary material before him, the judge could not have come to any other conclusion than that a fair trial was possible. The court further deemed that there was no basis to conclude that the judge was wrong to refuse the application for a stay made at the end of the prosecution case:
“Unsatisfactory though the police delay was, the police had, on GL’s own evidence, advised him not to talk to others involved. He deliberately ignored this warning, including during the period when he was preparing his statement. It was not the police delay, but GL’s ignoring of the police warning that led to discussion between potential witnesses. Even if the two witnesses’ statements had been taken over the same period, such ignoring of police advice could not be prevented. DM was also advised not to talk to others. Even assuming that the police failed to give appropriate or sufficient warnings, it was not shown that the evidence given by Crown witnesses was thereby contaminated, in the sense of being affected or changed, whether deliberately or inadvertently, by the contacts which took place between GL and DM.”
The court also judged that there was no evidence of contamination of AM’s statement by discussion with DM, since AM stated that he had only learned in the last few months that the applicant had also sexually abused DM and both brothers stated that they had not discussed the allegations. The conclusion of the Court of Appeal was that:
“...even if otherwise relevant criticisms may be levelled at the police, whether for delay or otherwise, there is no basis for concluding that the appellant suffered in his defence any prejudice let alone the serious prejudice that would be necessary to justify any stay ... Whether there had been any and what prejudice in the form of contamination of evidence was in the circumstances for the jury to determine. The judge was right to order the trial to continue.”
With respect to the direction on similar fact evidence, the applicant submitted that such a direction should not have been given since the required similarity between the evidence of each complainant was not present and because the evidence had been contaminated. Further, the applicant submitted that the direction should have been differently worded to give the jury guidance on how they should decide whether there had been collusion between the complainants. The Court of Appeal considered that:
“...we have no doubt that the necessary communality and relationship [between the allegations of the complainants] was present ... In our view ... this was a case where, on the facts, the judge was entitled and right to direct the jury that they could, if they thought it otherwise appropriate, treat the evidence of each complainant as admissible in the case of each other complainant.”
The court further stated that the trial judge was correct to leave the issue of contamination of evidence to the jury since it was not the case that no reasonable jury could accept the evidence of three complainants as being free from contamination. As to the adequacy of the direction given, the court considered that the trial judge had closely followed the Judicial Studies Board specimen direction and concluded that:
“... Having identified the issue regarding contamination, the summing up went on to remind the jury appropriately of the general nature of the factual contacts [between the complainants] which had been established by the evidence and of the defence submissions that the evidence given may have been affected by such contacts. These had been fully canvassed in evidence, and in counsels’ final speeches, and the judge was under no obligation to say more.”
The court refused to certify that a point of law of general public importance was involved in the decision for the purposes of an appeal to the House of Lords. The applicant did not petition the House of Lords for leave to appeal after receiving legal advice that the application had no real prospect of success.
B. Relevant domestic law and practice
1. Stay of proceedings as an abuse of process
It is possible to stay criminal proceedings on the grounds of abuse of process. In R v. Horseferry Road Magistrates’ Court ex parte Bennett [1994] 98 Cr.App.R. 114, the Court of Appeal stated that it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process, which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed.
In AG’s Reference (No. 1 of 1990) ((1992) 1 QB 630), the Court of Appeal stated that “[a]s it is not possible to anticipate in advance all the infinitely variable circumstances which may arise in the future”, it agreed to a limited extent with a concession by the Crown that proceedings might be stayed on grounds of delay even if not occasioned by any fault of the prosecution. The court went on to state that:
“... Stays imposed on the grounds of delay or for any other reason should only be employed in exceptional circumstances. If they were to become a matter of routine, it would be only a short time before the public, understandably, viewed the process with suspicion and mistrust ... In principle, therefore, even where the delay can be said to be unjustifiable, the imposition of a permanent stay should be the exception rather than the rule. Still more rare should be cases where a stay can properly be imposed in the absence of any fault on the part of the complainant or prosecution ...
... no stay should be imposed unless the defendant shows on the balance of probabilities that owing to the delay he will suffer serious prejudice to the extent that no fair trial can be held: in other words, that the continuance of the prosecution amounts to a misuse of the process of the court. In assessing whether there is likely to be prejudice and if so whether it can properly be described as serious, the following matters should be borne in mind ... the trial process itself, which should ensure that all relevant factual issues arising from delay will be placed before the jury as part of the evidence for their consideration, together with the powers of the judge to give appropriate directions to the jury before they consider their verdict.”
In A-G’s Reference (No. 2 of 2001) ((2001) 1 WLR 1869), the Court of Appeal considered the effect of the incorporation of the Convention on the principles governing stay on the grounds of abuse of process. The court rejected the argument that if courts should stay proceedings if the Article 6 requirement of a trial within a reasonable time had been breached:
“If a person complains of a contravention of the reasonable time requirement in Article 6, and if the court comes to the conclusion that there has been a contravention, then at the request of the complainant the court is required to provide the appropriate remedy ... the court is not compelled to take the course of staying the proceedings ... the remedy of staying the proceedings should be confined ... to situations which in general terms can be described as amounting to an abuse of the process of the courts ... the court can mark the fact that the way the prosecution has been conducted does contravene the reasonable time requirement in Article 6(1) and acknowledge the rights of the defendant by doing so ... it can, for example, take account of the failure to proceed with the case with due expedition in the sentence which the court imposes ... it is now in appropriate circumstances open to the courts to make awards for compensation ...”
2. Directions on similar fact evidence
The conditions for the admission of similar fact evidence were established in DPP v. P ((1991) 2 AC 47) Lord Mackay stated that:
“... the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that the accused person has committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.”
With respect to the relationship between the different sets of facts required for a similar fact evidence direction, Lord Mackay considered that:
“... [t]his relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.”
Lord Mackay stated that it was not necessary to find:
“... some feature of similarity beyond what has been described as the paederast’s or the incestuous father’s stock in trade before one victim’s evidence can be properly admitted upon the trial of another ... In so far as [previous decisions] required, as an essential feature, a similarity beyond the stock in trade, I consider that they fall to be overruled.”
The approach in DPP v. P was confirmed by the House of Lords in the case of R v. Christou ((1997) AC 117).
In R v. Mosquera ((1998) Court of Appeal, judgment of 15 December 1998, unreported), the Court of Appeal overturned the appellant’s conviction in a case where a similar fact evidence direction had been inappropriately given, providing that:
“... While the decision in DPP v. P has eliminated the necessity to identify a “striking” similarity, it is still necessary to invoke some identifiable common feature or features constituting a significant connection and going beyond mere propensity or coincidence.”
However, the court did not rule out any similar fact direction at all on the facts of the case before it but stated that in doubtful cases, the trial judge must be “particularly careful to identify the similarity or other relationship relied upon by the prosecution, giving some guidance in respect of it in light of the defence advanced, coupled with the warning ... against relying upon mere propensity itself”. As the court considered that the case before it was a “doubtful case”, it concluded that applying these principles, the summing up given by the trial judge was materially deficient.
3. Registration requirements under the Sex Offenders Act 1997
According to its preamble, the Sex Offenders Act 1997 (“the Act”) is “an Act to require the notification of information to the police by persons who have committed sexual offences ...”. The registration requirements apply to persons convicted of certain offences after the commencement of the Act and also, by virtue of Section 1 (3), to those who at the date of commencement are “...serving a sentence of imprisonment ... in respect of a sexual offence to which this Part applies...”.
A person required to register must inform the police of his name, any other names he uses, his date of birth and his home address, and must inform the police of any change of name or home address within 14 days of any change. He must also tell the police his name and address on the date he was convicted of the offence at issue, and must tell the police of any address where he lives or stays for 14 days or longer.
For a person who has been sentenced to a term of imprisonment of 30 months or more, the registration requirements are indefinite.
Failure to comply with the registration requirements, or to give the police false information, is a criminal offence punishable with up to 6 months’ imprisonment or a fine.
COMPLAINTS
The applicant complains under Article 6 of the Convention that the proceedings against him were not concluded within a reasonable time. He further submits that the delay in the police investigation allowed the contamination of the evidence of the complainants and created the risk of collusion between them. The applicant states that the trial judge did not properly direct the jury on the question of similar fact evidence and that there were inaccuracies in the Court of Appeal judgment.
The applicant invokes Articles 6 and 8 in complaining that there is no limitation period on the bringing of criminal proceedings. The applicant further makes a number of submissions under Article 8 of the Convention. He complains that the State could later decide to bring proceedings on the basis of complaints not proceeded with at the first trial. The applicant claims that the proceedings against him and the sentence of six years’ imprisonment constitute an unwarranted interference with his family life and his children’s right to a father. He also complains that he is subject to the registration requirements under the Sex Offenders Act 1997 and that there is no assessment or review of the necessity of registration in his particular case. Finally, the applicant complains under Articles 8 and 14 that other sex offenders convicted of more recent offences than him were not required to register under the Sex Offenders Act 1997 because they had already completed their sentences before the legislation came into force.
THE LAW
1. The applicant complains that he did not receive a fair trial, in violation of Article 6 of the Convention. Article 6, as relevant, provides that:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...”
(i) The applicant complains that the delay in the police investigation allowed the applicants to meet and, thereby, contaminate their evidence or collude with each other. The Court recalls that it has no jurisdiction under Article 6 to substitute its own findings of fact or law for those of domestic courts, which are in the best position to assess the evidence before them and apply the relevant domestic law. The Court notes that in the present case the Court of Appeal carefully scrutinised the applicant’s submissions that the police delay had led to contamination of the evidence. The Court of Appeal considered that although the delay in the investigation was unsatisfactory, the police had warned the complainants not to talk to others involved and that, therefore, it was the ignoring of police advice and not the delay which had led to the discussions between the complainants. The Court of Appeal further noted that, even assuming that the police had failed to give appropriate or sufficient warnings, it had not been shown that the evidence given by the prosecution witnesses had been thereby contaminated. There was, in the view of the Court of Appeal, no basis for concluding that the trial judge was wrong in allowing the trial to continue and in leaving it to the jury to decide what if any prejudice the applicant had suffered in the form of contamination of evidence. The Court finds, in these circumstances, no appearance of unfairness and no ground for questioning the assessment or decisions of the domestic courts.
(ii) The applicant further complains that the trial judge wrongly directed the jury on the issue of similar fact evidence, namely, whether the jury could take into account the evidence of each complainant in reaching a verdict on the counts relating to each of the other complainants. The Court notes that the admissibility of evidence in a particular case is primarily a matter for regulation by national law and for the domestic courts (Windisch v. Austria, judgment of 9 June 1998, Series A no. 186, § 25, and Texeira de Castro v. Portugal, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 34). The question for the Court is whether the proceedings as a whole, including the way in which the evidence was obtained and used, were fair. The Court notes that the Court of Appeal scrupulously considered whether, in the circumstances, a similar fact evidence direction should have been given and whether the direction itself was adequate. The Court of Appeal had “no doubt” that it was appropriate to give a similar fact evidence direction in this case and concluded that the summing up did contain all the guidance necessary to enable the jury to reach its verdict. The Court does not consider that there are any features of this decision which would lead it to doubt the assessment of the domestic court.
(iii) The applicant complains that there is no limitation period on the bringing of criminal proceedings and that in his case, the prosecution was brought 14 years after the last offence allegedly occurred and 26 years after the first offence allegedly occurred. The Court notes that a delay in the bringing of a prosecution must have an effect on the availability of evidence and that the lapse of time could have affected the memories of the complainants and witnesses. However, the Convention does not impose any time-limit for prosecutions to be brought and the Court in Sawoniuk v. the United Kingdom ((dec.), no. 63716/00, ECHR 2001-VI) was not persuaded that any general requirement of fairness necessitated that a time-limit should be implied into Article 6. In the present case, the Court is satisfied that the burden of proof lay on the prosecution to establish beyond reasonable doubt that the applicant had committed the offences charged and that the applicant was afforded a fair and effective opportunity to put forward those matters in his favour, including arguments relative to the reliability of the evidence of the complainants. The Court considers that no issue can arise under Article 6 insofar as the jury was left to decide for itself whether the evidence regarding the alleged offences was credible and reliable.
(iv) Consequently, the Court finds that these complaints under Article 6 are manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
2. The applicant also complains that the proceedings against him interfered with his right to respect for private and family life in violation of Article 8 of the Convention. Article 8 provides that:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
(i) The applicant complains that there is no limitation period on the bringing of criminal proceedings and that in his case, the proceedings were brought a long time after the alleged offences occurred. He further complains that the criminal proceedings against him and the sentence of six years’ imprisonment imposed constitute interference with his family life and with his children’s right to a father. The Court recalls that Article 8 § 2 permits interference with an individual’s right to respect for his private and family life in certain circumstances. The Court considers that the bringing of criminal proceedings and the imposition of a punishment following conviction fall within these exceptions since they are in accordance with the law and pursue a legitimate aims, namely, public safety, the prevention of disorder and crime and protection of the rights and freedoms of others. The Court therefore concludes that the prosecution and imprisonment of the applicant does not raise any issues under Article 8 of the Convention.
(ii) The applicant complains that the State could later bring new criminal proceedings on the basis of other complaints which were not proceeded with at the first trial. The Court observes that the State has not, to date, brought new criminal proceedings against the applicant on the grounds of complaints which were not dealt with in the first trial. The Court notes that the complaint is therefore hypothetical and the applicant cannot claim to be a victim in this regard.
(iii) The applicant complains that the registration requirements, to which he is subject according to the Sex Offenders Act 1997, interfere with his right to respect for private and family life. In Adamson v. the United Kingdom ((dec.), no. 42293/98, unreported), the Court considered that the requirement to provide information to the police under the Sex Offenders Act 1997 did constitute an interference with the applicant’s private life but that they were “in accordance with the law” and pursued legitimate aims, namely, the prevention of crime and the protection of the rights and freedoms of others. The Court found that the requirements placed upon the applicant were proportionate to the aims pursued by the legislation in view of the gravity of harm which may be caused to victims of sexual offences and the earlier statement of the Court that States have a duty under the Convention to take certain measures to protect individuals from such grave forms of interference (Stubbings and Others v. United Kingdom, judgment of 22 October 1996, Reports 1996-IV, p. 1505, §§ 62 and 64). The Court concludes that the same assessment applies on the facts of the present case.
(iv) Finally, the applicant invokes Article 14 in conjunction with Article 8 in complaining that sex offenders convicted of more recent offences than his are not subject to the requirements of the Sex Offenders Act 1997 because they had completed their sentences on the commencement date of the legislation. The Court considers that no discrimination is disclosed by legislative measures being prospective only or by a particular date being chosen for the commencement of a new legislative regime.
(v) Consequently, the Court finds that the complaints under Article 8 are manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to adjourn the examination of the applicant’s complaint concerning the delay in concluding the criminal proceedings against him;
Declares the remainder of the application inadmissible.
Michael
O’Boyle Matti
Pellonpää
Registrar President