by Lee FIRKINS
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 4 October 2011 as Chamber composed of:
Lech Garlicki, President,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 12 June 2009,
Having deliberated, decides as follows:
1. The applicant, Mr Lee Raymond Michael Firkins, is a British national who was born in 1974 and currently detained at HMP Whitemoor. He was represented before the Court by Ms J Hickman, a lawyer practising in London with Hickman and Rose Solicitors, assisted by Mr J. Wood QC and Mr J. Lyons, counsel.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On the evening of 5 November 2003 Mr and Mrs Fisher were shot and killed with shotguns in the course of a robbery at their house near Wadebridge, Cornwall. Forensic evidence of footwear patterns, and the fact that two windows had been smashed on different sides of the house, suggested at least two robbers. The evidence also suggested that they had been killed after 19.00. The house was adjacent to a petrol station which the couple had run.
4. That evening the applicant and his brother, Robert, had visited relatives in Foxhole and St Dennis, Cornwall, twelve miles south of the murder scene. On their own admission, they had carried out a series of crimes in the south-west of England shortly following the murder. This included the armed robbery of a petrol station which lay between St Dennis and the Fishers’ garage, which the applicant admitted to having committed. A shotgun had been fired in the course of that robbery. The brothers also admitted to robbing a B & Q store in the area. There were also three incidents of serious assaults by the brothers, during the last of which a shotgun had also been produced. After the Fishers’ murder, two shotguns were found where the brothers had buried them on a beach. Both admitted possession of them, though no specific connection with the murders was established.
5. The brothers were charged with the Fishers’ murder. Their defence was they had travelled together to visit their relatives, had tried to obtain cannabis via one relative, and had then gone to a public house while the relative sought unsuccessfully to obtain the cannabis. They had not been anywhere near the Fishers’ home or garage. However, evidence was called by the prosecution as to the use of a mobile telephone which the brothers had been carrying that evening. From records of which telephone masts had serviced the mobile telephone that evening, the prosecution sought to determine when telephone calls had been made and from where. The evidence showed that the telephone had been used up to 18.50 that evening and was then silent until 20.46 when a three minute call was received from Robert’s girlfriend. The prosecution submitted that the telephone mast evidence, particularly that relating to the 20.46 call, was consistent with it being received in a car moving away from the murder scene and that it was impossible for it to have been received at the public house, as the brothers maintained. Moreover, the evidence of the girlfriend at trial was that Robert had been in a tearful and emotional state during the call, though he denied this.
6. In addition to this evidence, and the telephone evidence above, the prosecution relied on what it considered to be the improbability of the brothers’ account of travelling so far as they did to buy a few pounds’ worth of cannabis. It also relied on the fact that the brothers claimed to have left the public house without finding out if their relative had successfully obtained the cannabis. The prosecution further relied on the evidence of two other witnesses who had heard conversations between the brothers: one testified that Robert had said to Lee “what are we going to do about this Wadebridge thing?”; the other testified that Robert had spoken about Wadebridge. Finally, the prosecution were allowed to rely on the other robberies and one of the assaults which the applicant and his brother had committed as evidence of their propensity to commit robbery and to use sudden and exceptional violence.
7. At trial, against Robert only, the prosecution led additional evidence from three prisoners who alleged that, while in prison on remand before the trial, Robert had either admitted or had made incriminating remarks regarding the shootings. The most significant of the three witnesses was a police informant, Z, who testified that Robert had admitted the shootings. The second of the three witnesses testified inter alia that Robert had returned to his cell, after being interviewed by the police, worried about the telephone evidence. The third testified that he had overhead Robert tell someone that Lee was going to take the blame for the shootings and that he, Robert, had done them.
8. At the close of the defence case, the prosecution conceded that the evidence which had been led against the applicant was insufficient to permit a jury to return a guilty verdict against him. However, it maintained that a guilty verdict could be returned by way of the Hayter approach (see relevant domestic law and practice below). This would allow the jury to consider first the case against Robert (including the additional evidence against him which had been given by the three prisoners) and then, if they found Robert guilty, to apply that conclusion in determining whether the applicant was also guilty. The jury were accordingly directed by the trial judge as follows:
“... you must consider the case against each defendant separately. The evidence against each defendant is different, and therefore your verdicts need not be the same. It is a matter for you how you set about your task and in which order you consider the cases against the defendants, but I suggest that you approach your deliberations first by considering the case against and for Robert Firkins. Much of the evidence in the case has relevance both to Robert Firkins and to Lee Firkins, but the evidence of [the three witnesses] about the confessions, or incriminating remarks, that Robert Firkins allegedly made is evidence only in the case against Robert Firkins, and is not evidence in the separate case against Lee Firkins. The reason is simply that an admission of guilt by one defendant, even if it includes an assertion of the guilt of another defendant, cannot be evidence against that other defendant. It would make no difference whether the alleged admission was to a fellow prisoner or to the police in interview; it is only evidence against the defendant who says it, and not against the other defendant who is not present when it is said.
So here, if you find that Robert Firkins made all, or any, of the alleged confessions or incriminating remarks, Lee Firkins was not present, had no chance to hear and dispute the truth of the admissions, and such admissions and assertions are not evidence against him. Thus, in the case of Robert Firkins there is additional evidence, should you accept it, of [the three prison witnesses] which is not evidence against Lee Firkins. That is why, as I have already said, the evidence against each defendant is different, and therefore your verdicts need not be the same.
However, there is a further and crucial consideration which is relevant when you go on to consider the case against and for Lee Firkins, and it is this. If, as a result of considering the evidence of [the three witnesses], together with the other evidence in the case against Robert Firkins, you are sure that Robert Firkins was guilty of the murders of Carol and Graham Fisher, you could properly use that finding of guilt in your consideration of the case against Lee Firkins. You would not then be treating the evidence of [the three prison witnesses] as evidence against Lee Firkins; what you would be doing - and it is a matter for you whether, and to what extent, you do - what you would be doing would be using the fact that you had found Robert Firkins guilty as a fact in the case against Lee Firkins.
If you think about it, that is perfectly logical. While certain evidence – [the three witnesses] – cannot be evidence against Lee Firkins for the reasons that I have explained, it would be odd, would it not, if, having considered all the evidence against Robert Firkins and found him guilty, the fact of his guilt could not be taken into account, together with all the evidence, as a fact in the case against Lee Firkins.
But you could only take it into account in the case of Lee Firkins if you were sure of the following matters - (1) as I have said, that Robert Firkins is guilty; (2) that the two defendants were together at all material times on the night of 5th November, and therefore they were together at the murder scene. There is of course no dispute that they were together at all material times. (3) that the murders involved two people acting together in what the law calls a joint enterprise, of which more in a moment; and (4) that the deaths of Mr. and Mrs. Fisher resulted from the carrying into effect of that joint enterprise.”
9. Having directed the jury on the applicable law of joint enterprise, the trial judge continued:
“Should you choose to adopt my suggestion first to consider the case against Robert Firkins, then your approach should be as follows. If you have found Robert Firkins guilty, then, when looking at the case of Lee Firkins, if you are sure that, with the intention to commit the offences of murder, he took some part in committing them with Robert Firkins, then, he, Lee Firkins, is also guilty. As I have said, if you found Robert Firkins guilty you could use the fact of his guilt in your consideration of Lee Firkin’s case.
However, I emphasise you must not take into account in the case against Lee Firkins any of the evidence of [the three prison witnesses] as to what Robert Firkins may have said to them, or have been overhead to say, either about his own involvement or his brother’s involvement. That evidence remains inadmissible in the case against Lee Firkins.
It is for these reasons that I strongly advise you, as a matter of logic and good sense, to consider first the case of Robert Firkins. If you find him guilty, you may use the fact of his guilt in the way I have just described, together with all the other evidence, both against and for Lee Firkins, in your consideration of the case of Lee Firkins.
If, in following that advice, you found Robert Firkins not guilty, you would be compelled to find Lee Firkins not guilty, because the evidence against Lee Firkins, without using the conviction of Robert Firkins as evidence against him, is, I direct you, insufficient to find Lee Firkins guilty.”
11. On 26 January 2006, the applicant and his brother were convicted of both counts of murder by the jury. They appealed against their convictions to the Court of Appeal. The appeals were dismissed on 17 December 2008. In respect of the applicant’s contention that the Hayter approach had been unfairly applied in his case, the Court of Appeal observed:
“The Crown had made it clear before the trial began that it would contend that the Hayter approach was likely to apply in this case, so that if on the evidence admissible against him Robert were to be convicted, and the jury was sure that he was with Lee at all material times that evening, Lee’s conviction could properly follow. The Judge was invited to refuse to leave the case to the jury on that basis; it was submitted that Hayter should be confined to the case where the conviction of A is a legal pre-condition to the possible conviction of B, and that the effect of leaving the Hayter approach to the jury would be to make the confession of Robert in effect admissible against Lee although in law it was not. The first argument is not pursued here: Hayter was not so limited. The second is also not pursued and is precisely the submission which was rejected by the Lordships in Hayter.
Mr Wood [counsel for the applicant]’s argument here is that the Judge should have refused to leave the Hayter approach to the jury because it put the conduct of Lee’s defence in an impossible position. He had, he suggests, no locus standi to challenge the evidence of ‘Z’ and others and could not for example apply under s 100 Criminal Justice Act 2003 to put in bad character material against them. We are very doubtful about that. If, via Hayter, there was evidence which was potentially damaging to Lee, it seems to us that Lee must be able to challenge it. The wording of s 100 does not seem to us to shut him out from contending that there is a matter of substantial importance in issue in the proceedings. But this question of law does not arise, and we have not heard full argument about it. That is because Mr Wood conceded with proper frankness that for tactical reasons (doubtless sound) Lee had decided not to challenge the evidence of ‘Z’ but to rely on the challenge mounted by Robert. Thus the Judge was never called upon to rule what steps Lee could or could not take.
We agree that there is a judgment to be made by the Judge in any case in which the Hayter line of approach is advanced, and that if the reasoning from the conviction of A to the conviction of B would be unsafe, he should not leave it to the jury. But in the present case it was not unsafe. If Robert had committed this offence, and Lee and Robert were, as they both insisted and the other evidence strongly suggested, together throughout the evening, then so had Lee. The Judge set out with absolute precision the conditions under which this line of reasoning could be applied. ....Like other aspects of his direction, this had been submitted in draft to counsel for their consideration.
Mr Wood submitted that the Judge should have warned the jury of the possibility that Robert and Lee might be lying about being together, perhaps because Lee was sheltering Robert. No one suggested that when the directions were under consideration, and we are unable in any event to see why the Judge should have been under any such duty when not one of the three parties in the trial had ever suggested any such thing to the jury.”
B. Relevant domestic law and practice
12. Defendants who are charged with joint offences are normally tried jointly, unless, in the interests of justice, an order is made for them to be tried separately.
13. Where defendants are tried separately, section 74(1) of the Police and Criminal Evidence Act 1984 allows the prosecution to adduce the fact that a person other than the accused has been convicted of an offence, for the purpose of proving that that person committed the offence.
14. Under section 76 of the same Act, a confession made by an accused person may be given in evidence against him. At common law, such a confession is not normally admissible against any other person implicated in it.
15. In R v. Hayter  1 WLR 605, the defendant Hayter stood trial for murder with two co-accused, Bristow and Ryan. The deceased was Bristow’s husband. The prosecution’s case was that Bristow had arranged a contract killing of her husband: Ryan was the man who actually shot and killed the deceased and Hayter was the middleman between Bristow and Ryan. The evidence against Ryan was a confession he had made to his girlfriend. The trial judge directed the jury that, if they were satisfied that Bristow and Ryan were guilty of murder, it would be open to them to take account of those findings of guilt in deciding whether to convict Hayter. All three defendants were convicted. In Hayter’s appeal against conviction, a majority of the House of Lords (Lord Bingham, Lord Steyn and Lord Brown) found that the trial judge had directed the jury not to take into account Ryan’s confession in the case against Hayter. Thus, there was no infringement of the common law rule prohibiting the admissibility of one accused’s conviction against another accused. There was no good reason why Ryan’s guilt could not be used by the jury as a fact against Hayter. It was of no significance that Ryan’s guilt had been established by his own out of court confession.
16. Lord Rodger and Lord Carswell dissented. Lord Rodger observed that the effect of this approach was to give the jury the power to turn inadmissible evidence into admissible evidence. Lord Carswell observed that the majority’s conclusion impermissibly breached the principle that, in determining whether there was a case to answer against each defendant, the trial judge had to consider the evidence against each defendant as it then stood. In doing so, only the evidence admissible against each defendant could be taken into account. At that stage, the only evidence admissible against Hayter was insufficient to prove his guilt.
17. The applicant complained under Article 6 §§ 1 and 3 (a) and (b) of the Convention that his trial was unfair. His submissions were as follows.
18. The evidence of the three prison witnesses as to what Robert Firkins had said was decisive of the only live issue in the trial, namely whether the brothers were involved in the two murders. Without that evidence it was clearly understood by those involved in the case that there was insufficient evidence to convict either the applicant or Robert Firkins - see the final paragraph in the second excerpt from the trial judge’s direction to the jury, set out above. Thus, the Hayter approach prevented him from having a fair trial for three reasons.
19. First, his brother Robert’s guilt only became evidence against him once the jury had retired (and found Robert guilty). The applicant was thus unable properly to conduct his defence because he did not know the case against him.
the jury consisted of non-lawyers, who would be unable to distinguish
between, on the one hand, the rule that confessions by one
co-defendant are not admissible against the other defendant and, on the other, the Hayter approach. He relied in particular on the observation of Lord Rodger that the Hayter approach was meaningless because, in effect, it gave the jury the power to turn inadmissible evidence into admissible evidence.
22. Articles 6 §§ 1 and 3 of the Convention, where relevant, provides as follows:
“1. In the determination 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...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence...”
23. The Court considers this complaint to be manifestly ill-founded for the following reasons.
24. Despite the applicant’s submissions, which seek to present the Hayter rule as an Article 6 issue, the application is essentially about the admissibility of evidence, which is a matter for regulation by national law and the national courts (see Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010 ..... ). In particular, the Court observes that there is no rule in Article 6 that the self-incriminating statements of a co-accused can only be admissible as evidence against that person, and not against any other person implicated in it; this is, instead, a common law rule of evidence. Consequently, the ruling of the House of Lords in Hayter created an exception to a common law rule of evidence, not an exception to any rule set out in Article 6.
25. The Court further observes that the House of Lords ruling was a narrow decision, being given by a majority of three to two. However, the effect of the ruling was clear and the applicant, whatever his views as to the correctness of the ruling, would have known throughout his trial that it was capable of being applied in his case. The applicant was well aware from the start of the trial that the prosecution’s case was one of joint enterprise between the two brothers and that the prosecution intended to rely on the Hayter approach to secure the applicant’s conviction. Consequently, the Court is unable to accept that the applicant was unable properly to conduct his defence because he did not know the case against him.
Court is similarly unable to accept the applicant’s second
submission that the Hayter approach wrongly prevented the
trial judge from directing his acquittal at a time when there was
insufficient evidence against him. Article 6 does not contain any
requirement as to the standard of proof which should apply in
criminal proceedings or, as a general rule, the kind of evidence
which may be relied on to prove guilt. Moreover, as the Court has
consistently emphasised, the assessment of evidence is a matter for
the jurisdiction of the domestic courts (García Ruiz v.
Spain [GC], no. 30544/96, § 28, ECHR 1999 I) and cannot
be examined by the Court unless there is reason to believe that the
domestic courts drew arbitrary or grossly unfair conclusions from the
facts submitted to them (see Mariniello v. Italy (dec.), no.
36012/97, 28 September 1999; Waldberg v. Turkey, no. 22909/93,
Commission decision of 6 September 1995, Decisions and Reports (DR)
82-B, p. 25)
27. The Court considers that, a fortiori, it is not its task to lay down rules as to the circumstances in which a trial judge should uphold a submission that there is no case to answer and direct a defendant’s acquittal. Consequently, it is not for the Court to determine whether the trial judge in the applicant’s case was wrong in leaving it to the jury, applying the Hayter approach, to decide on the applicant’s guilt or innocence. The Court would also observe that Article 6 cannot be interpreted as prohibiting a jury from using its conclusion as to the guilt or innocence of one co-accused when deciding upon the guilt or innocence of other co-accused, provided they are properly directed by the trial judge (see M.H. v. the United Kingdom, no. 28572/95, Commission decision of 17 January 1997, unreported). This is particularly so in the applicant’s case where the jury received the clearest possible direction from the trial judge that they could only take this approach if they were sure: (i) that Robert Firkins was guilty; (ii) the brothers were together at all material times on the evening of the murder (a matter which was not in dispute); (iii) the murders were a joint enterprise involving two people; and (iv) the deaths of Mr and Mrs Fisher resulted from that joint enterprise. Having been so directed, the Court finds nothing arbitrary or grossly unfair in the jury’s conclusion that, if they were sure of these four matters, then the applicant was guilty of murder.
28. In respect of the applicant’s third submission, the Court finds that the jury were fully and clearly directed by the trial judge as to how they should apply the Hayter approach to the case before them. It was also made clear to them that, if they found Robert Firkins not guilty, they would be compelled to find the applicant not guilty too. There is no evidence that, as non-lawyers, they were unable to follow and apply such clear directions from the trial judge.
29. Finally, the jury were also properly directed as to the caution they should exercise in evaluating the evidence of the three prison witnesses, particularly ‘Z’ (see, mutatis mutandis, X. v. the United Kingdom, no. 7306/75, Commission decision of 6 October 1976, Decisions and Reports (DR) 7, p. 115 and A v. the Federal Republic of Germany, no. 12127/86, 15 October 1987). The applicant had every opportunity to cross-examine those witnesses: no unfairness could be said to arise when, as the Court of Appeal observed, his decision not to do so was a tactical one and was doubtlessly sound.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech