European Court of Human Rights

09 June 2008

FOURTH SECTION

Application no. 30356/06
by Paul ROBINSON
against the United Kingdom
lodged on 27 July 2006

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Paul Anthony Robinson, is a British national who was born in 1966 and lives in Birmingham. He is represented before the Court by Mr M. Naser, a lawyer practising in Birmingham with M & N Solicitors.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was charged with assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The complainant, S.M., was the ex-girlfriend of the applicant. She alleged that in their relationship there had been a history of verbal and physical abuse and alcohol abuse by the applicant. The offence in question was alleged to have taken place in the early hours of 23 October 2004 when S.M. claimed the applicant was drunk and, during an ensuing argument, allegedly assaulted her. He then fell asleep. She left at 4 p.m. the following day when the applicant was asleep and she further stated that her injuries were photographed by a friend three days later on 26 October 2004. She did not report the matter to the police until 19 November 2004. The applicant was arrested and interviewed on 10 December 2004. He said in interview that he had no recollection of the incident, nor could he recall seeing any injury on the S.M.'s face. He is also reported as saying that he could not say anything bad about her and that S.M. did not tell lies.

The applicant was charged on 21 March 2005 and bailed to appear before the Sutton Coldfield Magistrates' Court. The first court hearing was on 23 March 2005 when he entered a plea of not guilty. On 14 April 2005, there was a pre-trial review hearing in the course of which the parties were asked, inter alia, whether either party would seek to introduce hearsay or bad character evidence. The prosecution answered that question in the affirmative. The trial date was then fixed for 16 June 2005.

By notices dated 13 June 2005, the prosecution applied first to adduce evidence of the applicant's bad character, and secondly gave notice of intention to adduce the statement of S.M. in evidence. In support of the second, the prosecution supplied a statement made by S.M. on 6 June 2005 in which she said:

“I do not wish to come to court to provide that evidence [the evidence contained in her original statement] personally though, through fear of Paul [the applicant] locating me by my appearance at court. Since the assault, I have taken great steps to establish a new life and to make a break from Paul. This has involved me going into a woman's refuge and moving more than once in an attempt to become untraceable to Paul. I have attempted to break off all ties with the friends that I had, that were friends common to both Paul and myself, unless they were friends I could trust, to my knowledge this has been successful. I have gone to the lengths of not providing the Police with a contact address, I only contact them by phone just in case my location becomes known through their paperwork. I know that the courts and the police would do all they could to help and protect me, but Paul and his friends will be at court and once I leave the court there is no one that can stop them following me and finding my location. I am still fearful of Paul and as a single person have both myself and my son to think about.”

The notices were received by the Magistrates' Court on 14 June 2005 and by the applicant's solicitors on 15 June, the eve of the trial.

At the hearing on 16 June 2005 both prosecution applications were opposed but both were allowed by the Magistrates' Court.

In proceedings before the High Court (see below), in respect of the decision to allow S.M.'s statement, the Magistrates' Court stated:

“The application was made under S116(2)(e) CJA 2003 [the Criminal Justice Act 2003 – see relevant domestic law below]

Considering the above information we are satisfied that the complainant is in fear of the offender and for that reason she has decided not to attend court to give evidence.

We have considered S116(4) [of the same Act – see also below]: Special measures are not appropriate in this case in view of the fears of the complainant [S. M.]. We are of the opinion that it is in the interests of justice for the statement to be admitted in evidence in view of the serious nature of the offence, the photographic evidence, evidence of a recent complaint, and the interview of the offender, which is not disputed.”

The prosecution therefore read the witness statement made by S.M. and adduced evidence of two previous convictions of the applicant. Having found that on the evidence there were no disputed facts, the Magistrates' Court found the applicant guilty. He was committed to the Birmingham Crown Court for sentence. The proceedings before the Crown Court were stayed pending the determination of the applicant's application to the High Court for judicial review of the decisions made by the Magistrates' Court in the course of the trial. In that application he relied, inter alia, on Article 6 §§ 1 and 3 (d) of the Convention and this Court's judgment in Lucà v. Italy, no. 33354/96, § 40, ECHR 2001 II.

The application was refused by the High Court on 2 February 2006. The court found there was evidence before the Magistrates' Court that S.M. was in fear of the applicant. The Magistrates were also entitled to consider the serious nature of the case. There was photographic evidence, the admissibility of which was not challenged, that showed that S.M. had injuries to the face and neck that were consistent with the assault described in her statement. It supported her account of how her injuries were sustained. When interviewed under caution the applicant had admitted that he was at his flat with the complainant at the time that S.M. alleged that the assault took place, and that he was drunk. He was the only other person present, and accordingly if S.M. sustained injuries on that occasion, then he was the only person who could have inflicted them. Finally, in interview he admitted that S.M. was someone who did not lie, and who would not have made a statement alleging that he had assaulted her if he had not done so. He had conceded that he could not say whether he had or had not committed the offence. He had accepted that S.M. had left on the afternoon of the following day and had never seen him since. The High Court found that these were all matters that were expressly taken into account by the Magistrates' Court in its decision to admit S.M.'s statement. Additionally, and consistent with their obligation to do so, the Magistrates' Court had considered what, if any, special measures could be put into place to assuage S.M.'s fears.

It also found that whilst in retrospect it might have been sensible to have made enquiries as to what, if any, other arrangements could have been made to convey S.M. both to and from court so as to insure her against the risk of the applicant tracing her, in the High Court's view, the Magistrates' Court could not be criticised for failing to embark upon such an investigation when that question was not raised before them.

There was no procedural unfairness to the applicant in the admission of bad character evidence or the late prosecution applications for admissibility of this evidence and S.M.'s statement.

On 15 May 2006, the applicant was sentenced to two years' imprisonment.

B.  Relevant domestic law

The following legislative provisions of the Criminal Justice Act 2003 were drafted as a means to tackle crime by providing special measures to protect witnesses who have a genuine fear of intimidation and repercussions. The Act entered into force in April 2005. Section 116(1) provides as follows:

“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.”

The relevant condition of subsection (2) of section 116 is as follows:

“(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence."

Subsections (3) and (4), further provide:

“(3) For the purposes of subsection (2)(e) 'fear' is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard-

(a) to the statement's contents,

(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),

(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and.

(d) to any other relevant circumstances.”

Lucà v. Italy, cited above, was considered by the Court of Appeal in R. v. Sellick and Sellick [2005] 2 Cr App R 15, which concerned two defendants who were alleged to have intimidated witnesses. Leave was given by the trial judge to have the witnesses' statements read to the jury. The defendants appealed on the grounds that the admission of the statements breached Article 6 § 1 read with 3 (d) of the Convention. The Court of Appeal dismissed the appeal. In considering the relevant case law of this Court, at paragraph 50 of its judgment it stated that what appeared from that case-law were the following propositions:

“i) The admissibility of evidence is primarily for the national law;

ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;

iii) It is not necessarily incompatible with Article 6(1) and (3)(d) for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair.

iv) The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair.”

The Court of Appeal then stated:

“The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant. Certainly at first sight paragraph 40 of Luca seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6, if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Luca nor any of the other authorities were concerned with a case where a witness, whose identity was well-known to a defendant, was being kept away by fear, although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind.

The question we have posed to ourselves is as follows. If the European court were faced with the case of an identified witness, well-known to a defendant, who was the sole witness of a murder, where the national court could be sure that that witness had been kept away by the defendant, or by persons acting for him, is it conceivable that it would hold that there were no “counterbalancing” measures the court could take which would allow that statement to be read. If care had been taken to see that the quality of the evidence was compelling, if firm steps were taken to draw the jury's attention to aspects of that witnesses' credibility and if a clear direction was given to the jury to exercise caution, we cannot think that the European Court would nevertheless hold that a defendant's Article 6 rights had been infringed. In such a case, as it seems to us, it is the defendant who has denied himself the opportunity of examining the witnesses, so that he could not complain of an infringement of Article 6(3)(d), and the precautions would ensure compliance and fairness in compliance with Article 6(1).”

COMPLAINTS

The applicant first complains under Article 6 §§ 1 and 3 (d) of the Convention that he was denied the opportunity to examine the sole witness against him. Second, he complains that the decision to excuse S.M.'s from giving evidence was based on her fear as a consequence of his behaviour towards her and thus a presumption of his guilt in violation of Article 6 § 2.

QUESTION TO THE PARTIES

Was there a breach of the right to a fair trial provided by Article 6 § 1 read with 3 (d) of the Convention when the statement of an essential witness was read to the jury when the witness was too fearful to attend the trial?  In particular, did section 116 of the Criminal Justice Act 2003 provide sufficient procedural safeguards to prevent a violation of Article 6 § 1 read with 3 (d)?