European Court of Human Rights

 

 

 

FOURTH SECTION

Application no. 15602/07
Simon PRICE
against the United Kingdom
lodged on 18 March 2007

STATEMENT OF FACTS

 

The applicant, Mr Simon Price, is a British national, who was born in 1945 and is currently detained at HMP Long Lartin.

A.  The circumstances of the case

1.  Introduction

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

The prosecution’s case was that the cocaine had been smuggled from Guyana in a shipment of molasses abroad the merchant vessel “The Lee Frances”. The applicant’s defence was that, while he admitted that he had been involved in an attempt to export cannabis from Guyana, he had not known that shipment in question concerned cocaine and, in any event, there had been no attempt to import it to the United Kingdom from the Netherlands and Belgium.

On the basis of this defence, he pleaded guilty to the first count on the indictment, assisting in the commission outside the United Kingdom of an offence punishable under the law of Guyana (the export of drugs from that country), contrary to section 20 of the Misuse of Drugs Act 1971.

On the same basis, he denied the main count on the indictment, the attempted importation of cocaine to the United Kingdom. On 13 July 2005, he was convicted by the jury of this count.

The circumstances of the trial which give rise to his present application to this Court may be summarised as follows.

2.  The importation

On the 21 June 2004, the Lee Frances entered the port of Rotterdam. Part of the cargo was a single container which contained palletised drums of molasses from Georgetown, Guyana. The following day, the container was searched by customs officials and certain drums - purportedly containing molasses - were found to in fact contain 700 kg of high purity cocaine worth GBP 35 million. The officials refilled the drums with dummy contents and the ship continued to Antwerp where the container was offloaded. The applicant was arrested and interviewed on 29 June 2004, shortly after contacting HM Revenue and Customs to make enquiries about the container. He was charged as above.

3.  The security measures taken at trial

Before the case went to trial, the prosecution decided that, since allegations of jury fixing had been made in respect of the applicant at a previous, unrelated trial, they would apply for the following security measures:

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

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

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

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

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

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

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

The defence initially opposed the application for protective screens on the basis that when, taken with the other security measures, they gave a sinister feel to proceedings, which was likely to prejudice the applicant in the eyes of the jury. The defence also suggested that the prejudice of these measures was so great that the whole trial ought to be held in camera. However, at the conclusion of argument, the defence were prepared to withdraw its objections provided that the whole of the public gallery was covered rather than just part of it, as had been originally suggested. A later attempt to withdraw that concession on the basis that the physical appearance of the screens was more imposing than had been anticipated was rejected by the trial judge.

4.  The trial

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

It was the prosecution’s case that the applicant had intended to import the cocaine into the United Kingdom and that he had done so by purchasing the cocaine in Guyana under the assumed name of “David Keen”, the manager of a purchasing of a company called Premier Molasses which was based in the United Kingdom. The prosecution further alleged that, although there was a direct route from Guyana to the United Kingdom, this had not been chosen because it was thought that the customs regime in mainland Europe was less efficient than in the United Kingdom and therefore the indirect route via Rotterdam and Antwerp had been chosen. It was also alleged that the shipment containing the cocaine had been the last of four shipments procured by Premier Molasses from Guyana. The previous three shipments had been delivered to various locations in the United Kingdom, including to an address belonging to a friend of the applicant. It was suggested that these had been practice runs for the fourth shipment. There was also evidence of ‘phone calls between the applicant and his friend, which coincided with the deliveries, as well payments by the friend to a bank and then a transfer to the applicant’s account in Guyana. Finally, any beliefs held by various shipping agents that the containers were not to be imported to the United Kingdom but to the Netherlands were the result of an attempt by the applicant to set up a defence should he ever be caught.

(a)  Mr Van Olmen’s refusal to attend the trial

Upon arrival in Antwerp the fourth shipment had been supervised by a Mr John Van Olmen, who was the customs broker for Premier Molasses’ shipping agents.

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

His evidence was provided in three separate statements he gave to investigators between 30 June 2004 and 20 January 2005. Having given these statements, Mr Van Olmen then refused to have anything more to do with the proceedings and, in particular, to give live evidence at the applicant’s trial. Mr Olmen’s explanation for refusing to attend court was recounted in the evidence of Mr David Hill, a United Kingdom customs official who had been present at Mr Van Olmen’s interview in Belgium. According to Mr Hill (who gave evidence at trial), Mr Van Olmen believed that, in accordance with Belgian practice, having spoken to investigators on three separate occasions, he had done enough.

The prosecution acknowledged the importance of Mr Van Olmen’s evidence and made several attempts to convince him to appear as a witness in correspondence with him both before and during the trial. They also tried to reach him through his employer but were told that he was on leave and could not be contacted.

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

It appears that leave was then given for Mr Van Olmen’s statements to be read to the jury.

(b)  His evidence

In the applicant’s submission, Mr Van Olmen’s statements were the only direct evidence contradicting the applicant’s defence that there had been no intention to import the cocaine to the United Kingdom. When interviewed, Mr Van Olmen had been asked whether the records he had kept of the fourth shipment showed that it was destined for the United Kingdom. He had replied:

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

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

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

A telephone conversation between Mr Van Olmen and a lady was adverted to in evidence by a United Kingdom customs officer, Mr Bernard Thurbron. Mr Thurbron was asked the name of the caller and stated that he had been told by a colleague that someone called Nicola had telephoned the Belgian shipping agents. This was said by the defence to contradict an assertion made by Mr Van Olmen in one of his statements to the effect that he did not know anyone called Nicola in this case.

There was, however, no further exploration of this point as the prosecution indicated that there was a danger that the prohibition on the disclosure of intercept evidence (including telephone intercept evidence) might be compromised (see sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 in “relevant domestic law and practice” below).

At this point, a hearing took place in the absence of the jury in which the defence raised concerns as to the possibility that exculpatory evidence relating to the telephone call was in the possession of the prosecution. After hearing submissions, the trial judge declined to make any ruling on the matter but nonetheless reminded the prosecution of their continuing duty to review the issue of disclosure.

(c)  The other prosecution evidence

The prosecution also led evidence that “David Keen” was a false identity assumed by the applicant in the context of business carried out on behalf of Premier Molasses. There was also a concession by the defence that the applicant had deliberately falsified certain documents in order to legitimise the appearance of his activities and to fabricate evidence in support of his defence.

The prosecution also relied on various pieces of logistical evidence that supported their contention that, as with the previous three shipments, the true destination of the fourth shipment was the United Kingdom. This included details of bank transactions, the issuing of shipping licences and other similar communications between Premier Molasses and Mr Van Olmen, that the applicant had been in Belgium shortly before his arrest and that he had pushed for early delivery of the shipment. The paperwork relating to the fourth shipment was consistent with that relating to the previous three shipments.

Finally, the prosecution invited the jury to draw adverse inferences as to the applicant’s guilt based on a failure to disclose facts material to his defence during his interview. This included the allegation that Mr Van Olmen was a party to the conspiracy and that the applicant believed he was importing cannabis into the Netherlands.

(d)  The defence case

The applicant admitted that he had been involved in a drug smuggling operation (and had visited Guyana for that reason) and that he had facilitated the three earlier shipments of molasses. However, his defence was that he had been led to believe first, that he was exporting cannabis and not cocaine from Guyana and second, that the fourth shipment was bound for the Netherlands, not the United Kingdom. He stated that, when he discovered that the shipment contained cocaine, he realised that he had been duped. He relied heavily on the evidence of one of the shipping agents in Guyana, Mr Ahmed Amzah, who recalled a conversation with the applicant in which the applicant told him that the pallets which were later found to contain drugs were to be unloaded at Antwerp. The applicant further asserted that one of those responsible for misleading him was Mr Van Olmen.

The applicant maintained that Mr Van Olmen was not an innocent customs broker, but had in fact played a central role in the conspiracy. He relied on the fact that it had been Mr Van Olmen’s company which had moved the containers of the fourth shipment from the quayside at Antwerp to a nearby warehouse. The applicant alleged that this was because Mr Van Olmen was supposed to remove the cocaine from the shipment away from prying eyes, before returning the remainder of the cargo back to the quayside for dispatch to the United Kingdom. The applicant further relied on the fact that, in his statements, Mr Van Olmen had accepted that he had moved the container but had claimed that he did this to avoid the guarding costs of leaving the container at the quayside. The applicant relied on the fact that, in the course of the trial, it had transpired that moving the container was actually more expensive.

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

(e)  The trial judge’s summing up and the verdict

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

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

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

In relation to the reading of Mr Van Olmen’s statements, the trial judge directed the jury:

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

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

He then considered the practical difficulties that arose in relation to Mr Van Olmen’s evidence:

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

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

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

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

After this, and having reviewed the efforts made to get Mr Van Olmen to attend court, the trial judge stated:

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

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

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

5.  The appeal

The application for leave to appeal was initially considered and rejected by a single judge of the Court of Appeal on [to follow]

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

(a)  The grounds for appeal

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

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

Second, the prosecution had failed to comply with their duty of disclosure under the Regulation of Investigatory Powers Act 2000 in respect of the telephone conversation involving Mr Van Olmen and “Nicola” since this was important exculpatory evidence.

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

Fourth, again relying on Article 6 of the Convention, the applicant argued that the effect of the security measures was to violate his right to a fair trial. In support of this fourth ground, the applicant relied on a witness statement prepared by a journalist who had tried to cover the trial. In the statement the journalist stated that, when she tried to enter the courtroom she was told by a court official that the trial had finished. After remonstrating with the official she was allowed to enter. She also stated that, because of the screens sealing the public gallery, the proceedings were inaudible. When she asked if anyone else had complained about the arrangements, she was told that she was the first person to try to attend the trial. She was also told that she could not report anything because there were reporting restrictions in place. She stated that, although she had attended major criminal trials throughout the United Kingdom, she had never encountered the measures that were in place and that it was to all intents and purposes a secret trial.

(b)  The Court of Appeal’s judgment

In respect of Mr Van Olmen’s non-attendance at trial, the Court of Appeal acknowledged that the prosecution’s failure to mention this fact until late in the proceedings was a cause for concern. However, the court went on to observe that after Mr Thurbron had given evidence, it was open to the defence to submit that there was cause for concern as to Mr Van Olmen’s reliability. It concluded that the dispute over whether Mr Van Olmen knew “Nicola” was a “very slender foundation indeed” for any suggestion that there was an arguable case of unreliability about Mr Van Olmen’s evidence such as to lead to the conclusion that that his evidence ought not to have been allowed to be read. It could be seen from Mr Thurbron’s evidence that he was simply relying on what he had been told by another customs officer as to who it was that H.M. Revenue and Customs believed had made the call. The court also noted the advantages that the applicant had obtained by Mr Van Olmen’s absence:

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

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

The court then turned to the ground of appeal concerning the telephone conversation and the prosecution’s duty of disclosure. It did not consider that the facts underlying the dispute over whether or not “Nicola” had been named in the course of the telephone conversation were such as to afford any basis for suggesting that the prosecution had failed either to comply with their duty of disclosure or to follow the Attorney-General’s guidelines on the matter (see relevant domestic law and practice below).

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

B.  Relevant domestic law and practice

1.  Security measures in jury trials

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

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

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

According to information provided to the applicant’s solicitors by the South Eastern Circuit (the circuit in which the trial took place), modern court buildings which expect to try cases of sensitivity have a least one court where the jury box is screened from the public by the layout of the courtroom. In court two at the Central Criminal Court the public gallery was above the jury box and had been used extensively in terrorist trials for this reason. There had been another trial at the Central Criminal Court where a witness had refused to give evidence unless the public gallery was cleared. In that case, the press had still been allowed access.

2.  Intercept evidence

Section 17 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) covers the admissibility of evidence relating to or obtained from an interception warrant.

Section 17(1) provides:

“Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)-

(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or

(b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.”

Section 17(2) refers to:

“(a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the Interception of Communications Act 1985;

(b) a breach by the Secretary of State of his duty under section 1(4) of this Act;

(c) the issue of an interception warrant ...;

(d) the making of an application by any person for an interception warrant ...;

(e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

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

...

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

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

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

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

3.  Hearsay evidence

The relevant domestic law on the admission of witness statements from absent witnesses was set out in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, §§ 40-62, ECHR 2011.

COMPLAINT

The applicant complains under Article 6 of the Convention that his trial was unfair. He advances three grounds in support of this complaint.

First, he alleges that judge erred in granting the application for security measures. In this respect, he submits that the effect of the security measures was to prejudice him in the eyes of the jury by creating an atmosphere that suggested that they had something to fear from him and that he was more likely to be guilty than any other defendant. He also complains that the doors to the court room were locked when the jury’s verdict was returned.

Second, the prosecution failed to comply with their continuing duty of disclosure. In this respect, he submits that either the trial judge should have been allowed to decide how the intercept evidence should have been handled or the trial should have been stopped.

Third, the judge erred in allowing the statements of Mr Van Olmen to be read to the jury. He complains that there was no rigorous examination by the trial judge of the reasons for Mr Van Olmen’s refusal to testify. The steps taken to encourage him to attend were inadequate. The applicant further relies on the fact that Mr Van Olmen’s evidence had been characterised as “extremely important” by the prosecution who had been at pains to stress to him that without his evidence it would be much more difficult to secure a conviction. He submits that it was of paramount importance that, if the prosecution sought to rely on Mr Van Olmen’s evidence, he should have been brought to court and made available for cross-examination by the applicant. Doing so would have allowed the defence to cross-examine Mr Van Olmen as to his credibility. Finally, the other counter-balancing factors in place were inadequate to remedy the unfairness caused by the admission of the statements.

 

QUESTIONS TO THE PARTIES

Was the applicant’s trial taken as a whole fair within the meaning of Article 6?

 

In answering this question, the parties are requested to address the following matters:

 




  As regards the security measures taken at trial:

 

(a)   What were the reasons given by the prosecution for applying for the security measures and what, if any, evidence was adduced in support for that application?

 

(b)   Was any consideration given to holding the trial in courtroom where the jury box was already shielded from the public gallery (see the information provided by the South Eastern Circuit, summarised in the relevant domestic law and practice)?

 

(c)   Did the manner in which the measures were implemented mean that the measures went beyond the extent necessary to protect the jury? The Government are requested to comment on the allegations made by the journalist who attended the trial in her witness statement.

 




  As regards the alleged interception of the telephone call to Mr Van Olmen, what was the effect on the fairness of the trial, if any, of:

 

(a)    the ban on admissibility of intercept evidence contained in section 17 of the Regulation of Investigatory Powers Act 2000;

 

(b)   the fact that, notwithstanding the provisions of section 18 of the Regulation of Investigatory Powers Act 2000, the decision on whether to disclose the intercepted communication (if any) remained in the hands of the prosecution and not the trial judge; and

 

(c)    the trial judge’s decision to not give a ruling on disclosure after the curtailment of the defence’s cross-examination of Mr Thurbron.

 




  As regards the non-attendance of Mr Van Olmen:

 

(a)   Under which statutory provision was leave given for his statements to be read? The Government are requested to provide a transcript of any ruling made by the trial judge to this effect.

 

(b)   Was there a good reason for Mr Van Olmen’s non-attendance as a witness? If not, was there, by that fact, a violation of Article 6 §§ 1 and 3(d) (Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 120, ECHR 2011, and references therein)?

 

(c)   If there was a good reason for Mr Van Olmen’s non-attendance, was his evidence sole or decisive? If not, the Government are requested to outline what other evidence was led by the prosecution to prove that the applicant intended to import the shipment of cocaine to the United Kingdom.

 

(d)   Were there sufficient counterbalancing factors including strong procedural safeguards to ensure that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3(d) (Al-Khawaja and Tahery, cited above, §§, 147 and 152)?