England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM The Crown Court at Birmingham
Mr Justice Butterfield
T20028502

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th March 2005

Lord Justice Waller :

Introduction

1. On the 16^th December 2002 in the Crown Court in Birmingham before Butterfield J and the jury, after a sixteen-day trial the appellants were convicted of murder and sentenced to life imprisonment. A co-accused, Marandola, was acquitted. On a second indictment, including counts alleging the intimidation of witnesses by the appellants, the counts were ordered to lie on the file on the usual terms. The appellants appealed by leave of the full court (Potter LJ, Gibbs J and Sir Michael Wright). In the judgment of the full court, given by Potter LJ, permission was granted on the basis that the appeal raised, in a more acute form than in R v M (KJ) [2003] EWCA Crim 357, issues as to the proper construction of s.23 and s.26 of the Criminal Justice Act 1988, in the light of the jurisprudence of the European Court of Human Rights.
2. Butterfield J exercising his discretion under ss.23 and 26 of the 1988 Act gave leave for four statements to be read. In relation to two of the statements he gave leave on the basis that he was sure the witnesses had been kept away through fear. In relation to two of the witnesses he gave leave on the basis that reasonable steps had been made to trace the witnesses. The submission on behalf of the appellants is that, by admitting the statements of these witnesses their rights to a fair trial under Article 6 of the European Convention on Human Rights (the ECHR) has been infringed. In particular the submission is that the "minimum rights" provided for by Article 6(3)(d) "to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;" have been infringed.
3. Reliance is placed on a paragraph in Luca v Italy [(2003) 36 EHRR 46] at paragraph 40, where the court stated as follows:-

"As the court has stated on a number of occasions . . . it may prove necessary in certain circumstances to refer to depositions made during the investigative stage (in particular where the witness refuses to repeat his deposition in public owing to fears for his safety, a not infrequent occurrence in trials concerning Mafia-type organisations). If the defendant has been given an adequate and proper opportunity to challenge the depositions, either when made or at a later stage, their admission in evidence will not in itself contravene Article 6.1 and 3(d). The corollary of that, however, is that where the conviction is both solely or to a decisive degree based on depositions that had been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by Article 6."

4. The submission is that the appellants in this case were given no adequate or proper opportunity to challenge the statements which were admitted in evidence at any stage of the proceedings. It is submitted that for that reason alone this is a case where the judge should not have allowed the statements to be read. In the alternative it is submitted that the statements were the decisive or sole evidence against the appellants and even if otherwise permission might have been given to read the statements, then in those circumstances permission should not have been granted.
5. The prosecution do not accept that the evidence was the sole or decisive evidence, but in any event submit that in particular where a witness is being kept away by fear by persons acting on behalf of a defendant, those are the very circumstances with which, even if the evidence is decisive, it should be admitted pursuant to sections 23 and 26, and that the Strasbourg jurisprudence does not preclude the English Court taking that view.

The Facts

6. At about 7 pm on the 3^rd December 2001 the deceased, Paul Chambers (Moonie), was shot dead in the rear car park of the Talisman public house in Wolverhampton. The fatal wound passed through his shoulder-blade and torso and ruptured his descending aorta. He sustained one bullet wound to his hand. Two bullets were recovered: they were probably fired from the same weapon and bore marks which suggested that it was an old Webley revolver. The murder weapon was never found.
7. The prosecution alleged that the second appellant (Santino) was the gunman. They asserted that he shot the deceased because Moonie represented competition in drug dealing and because a few hours earlier he, Santino, had learned that Moonie had slept with his girlfriend, Tammy Pardoe (Tammy). It was further alleged that the first appellant (Carlo) was Santino's partner in drug dealing. It was asserted that Carlo drove Santino to the scene and provided the weapon, knowing what Santino intended to do. It was alleged that the co-accused, Marandola, was present and both knew and assisted with what was going to happen.
8. The defence denied involvement in the murder at all. It was claimed that Santino was ill in bed at the time of the murder. Carlo asserted that he was not present and had no knowledge that it would take place. Marandola's case was that he was present at the shooting but had been unaware that it was to take place and he was not party to it.

Who's Who?

9. Carlo and Santino are brothers. Their half brother is Lee Sellick (Lee), who is a friend of Moonie. Lee had resumed a relationship with Carla Wedge (Carla); Tammy was a girlfriend of Santino and she was the niece of Carla and lived at her address. Carina Jackson (Carina) was Tammy's friend, and through her met both Carlo and Santino, and she began a sexual relationship with Carlo. Prior to the commencement of the trial on 27^th November 2002 the judge gave the prosecution permission to read, as part of the evidence, the statements of Lee and Carla. The trial commenced and he gave leave to read the statements of Carina and another witness, Donna Mills, on the 2^nd December 2002. Tammy gave evidence on the 4^th December 2002 behind a screen, and the judge gave the Crown leave to treat her as hostile.

The Evidence Itself

10. No witness actually saw the shooting. Madeline Bannister gave evidence. She was walking with a friend in the vicinity when she heard two gunshots, then after a gap another two. She could see two or three people standing around at the Talisman. Then she saw three people running from the Talisman to a car and driving away. Peter Thomas, her friend, also gave evidence orally. He heard a loud bang. He saw two people in the Talisman car park. He continued walking, then heard two bangs followed by three people running away to a car which was driven away at high speed. One of them wore a light coloured sports jacket. It was then that he noticed a body.
11. Stephen Perry and John Huntbatch also gave evidence. They served coffee from a van. Perry's evidence was that he was not paying much attention but noticed Moonie exit the pub with a group of others, who left in a Citroen. Moonie was then on his own. Then he heard a raised voice and looked up to see Moonie. Then he heard a bang and shortly after he saw Moonie fall over. The Citroen and occupants returned and one of them tried to resuscitate Moonie. Huntbatch said he had seen two men joined by a third, and from inside the van he heard some discussion which could have been about drug dealing. One had a Timberland jacket. They walked away from the car park and moments later he heard two loud bangs.
12. David Allen gave evidence. He went to Lee Sellick's flat, when paramedics arrived because he knew the person who had been with Moonie in the pub earlier had gone there with Lee about half an hour before. Lee, Carla and another woman returned to the car park with him.
13. In the period after the shooting there was mobile telephone traffic between Lee and Carlo. Later, after death had been certified, someone used a payphone at the hospital and attempted to call each of the mobile phones belonging to Carlo, Santino and Marandola, but no connection was made. Cell site analysis indicated that the phone attributable to Carlo was in use in the area of the Talisman prior to the shooting and moved south and towards Porlock on the North Somerset coast after the shooting.
14. On 4^th December the phones of Carlo and Marandola were used in the Porlock area and appeared to migrate back towards Wolverhampton.

The Witnesses who were read

15. Carina stated that she had travelled in a red Golf with Santino and following phone calls they went to various locations where Santino sold crack and brown in £20 wraps. The three Sellick brothers and another man named Dickens used Carla's bedroom to cut and weigh drugs. It was her understanding that Carlo and Santino obtained their supplies from Moonie. Her relationship with Carlo ended before Moonie was killed. Some days after Moonie was killed she saw Tammy with a black eye. She also referred to an occasion in November 2001 when Carlo asked her to look after a balaclava and gun: she took the items from him and stored them overnight in a wardrobe. The gun was like a cowboy gun, silver barrel and cream handle. She gave the gun back to Carlo the next morning.
16. Lee stated that he had met Moonie when they were in prison. He said they were best mates and like brothers. Lee had an extensive criminal record, of which the jury were made aware. He was arrested for conspiracy to murder Moonie and at the conclusion of interview had made his witness statement. He stated that Carlo bought drugs from Moonie. The day after Moonie supplied one ounce of crack to Santino for Carlo he agreed to collect another ounce of crack from Moonie for Carlo. Lee stated he told Carlo that Moonie wanted paying the £2000 due the following day. That night Tammy and Santino had a row. He went to intervene and Santino said Tammy had just told him that she had slept with Moonie. On the 3^rd December he made phone calls to Carlo urging him to pay his debt. He spoke to Moonie about the money and learned he would be at the Talisman that evening. Lee said he told Carlo where to find Moonie that night. He phoned Carlo from the pub to say Moonie was there and waiting for his money. He confirmed he wore a beige Timberland jacket that evening. He stated that in the phone calls after the shooting he asked Carlo what was going on. Carlo told him to make sure no-one saw anything. When Lee asked how he could do that, Carlo told Lee to sort himself out or he would get the same. He would be next. Lee passed the phone to Michael Whitehouse and when he took the phone back Carlo asked him if Moonie was dead or alive.
17. Lee stated that on the evening of the 4^th December he received a call from Santino via his father's mobile telling him to organise booking them into an hotel. He described how Carlo, Santino and Marandola arrived in the early hours. They all assembled in a bedroom. Santino said "It was not supposed to happen like that". Carlo also said of Marandola "How do you think he feels? He only came along for the ride".
18. Carla stated that before the shooting incident there had been a blazing row at her flat, during the course of which Tammy admitted sleeping with Moonie. Santino used considerable violence on Tammy. Her account of events at the hotel was on the same lines as Lee. She had agreed that if asked by police she would limit her account to events in the car park after finding Moonie collapsed. She stated she was scared, not just for herself but for Lee and for Tammy and for her children. She could not do anything else but agree.
19. Donna Mills stated that she was the former girlfriend of Santino. She simply dealt with the types of car that Santino drove.

The Evidence of Tammy

20. After a sequence of questions and answers, which did not accord with the contents of her statement, the Crown applied for and were given leave to treat her as a hostile witness. She had said she could not remember what she saw at Carlo's flat. Then she said Lee brought cocaine to the flat. Then she agreed that in her statement to the police she had stated that Carlo and Santino brought drugs to the flat and she had taken bags to cars and collected money on three occasions. In evidence she said it was part-true, part-lie. She only took a bag to someone once and learned about the drugs from something said by Carla and not as a result of something she saw herself. She met Moonie in about October. She slept with him once after a night out pubbing. Santino learned about it when they had a row on the 2^nd December and he hit her.
21. The following night at the Talisman Santino was angry. He said she should not have slept with Moonie and he would kill him. She regarded that as the sort of thing people say when angry, without meaning it. She agreed that she had told the police he said it was her fault and Moonie was going to get done and that was the truth.
22. Initially she denied there was any conversation about the shooting at the hotel on the 4^th December, but then said the content of her statement was the truth. Santino had told her no-one would know who pulled the trigger except him and Carlo. She told him it was him or Carlo. He said if anyone told they would get done. If she told she would have to get the same. If she cried for Moonie, the dirty rapist, she would be joining him. Next she spoke to Carlo and he told her to keep her mouth shut. She did sleep with Santino that night. She was frightened by what had been said to her. Carla and Lee told her what to say if she was questioned.
23. On New Year's Eve she asked Santino to tell her what had happened on the 3^rd December. Santino explained the way the conversation went, that he got the gun and how Moonie said if he was going to use the gun to use it. He fired off two shots which missed and shot again, which he thought hit Moonie in the leg. She thought he said that the last thing Moonie said was "you have got me in the back you bastard".
24. That night there was a fight in which Carlo was injured and bled. She visited Santino who was in prison for other reasons and he told her the police had "nothing on us". The only thing they could trace was a phone call. He told her to stick to the same story if the police questioned her. Tammy maintained that these accounts given to police after she was arrested for conspiracy were the truth. She had been frightened after arrest. The police told her she could go to jail for ten years. She disagreed with the assertion that Santino never said any of these things to her, which suggested he was involved in the killing of Moonie. She had loved him but disliked Carlo.

Other Evidence for the Prosecution

25. Whilst detained in their cells Santino and Carlo had certain conversations which were recorded covertly. They spoke in code – a form of back-slang. The conversations, so the Crown alleged, showed plotting and planning to subvert evidence against them. The defence admitted the conversations and what was said but asserted it was done to wind the police up. In particular, the reference to disposing of a jacket was in relation to the event on New Year's Eve.
26. Both Santino and Carlo made no comment to questions put to them by the police in their interviews on the advice of their solicitors.

Defence Evidence

27. Santino and Carlo gave evidence but their co-accused, Marandola, did not. Santino denied killing Moonie. He said it was Lee who was dealing with crack and heroin. He said he was unaware that Tammy had been unfaithful to him with the victim and he had not assaulted her in the hours before the shooting. They had rowed but that was because it was he who had slept with Carina. It was nothing to do with Moonie. Tammy invented their conversation in the pub the night after. He went with the others to the hotel for the night because there was cannabis in the car to be dropped off for Lee. He understood Carla and Tammy had gone there because of the police activity outside their flats, and it was a chance to meet up with Tammy. She said she could not believe he slept with Carina and he told her to get over it. She said she would get back at him one day. The only reference to Moonie was in the context of having heard about it on the news. Tammy sent him affectionate letters and a birthday card in prison.
28. Carlo said he did not obtain drugs from or supply drugs to Moonie. He said he had no involvement in and was not present at Moonie's death. He used cannabis and ecstasy and began to use crack following the death of his father. He was a heavy user and all the crack found when his home was searched was for his personal use. He denied that the money found was the proceeds of dealing. He denied ever having had a gun and said Carina was malicious and tried to cause him trouble after their relationship ended. It was Lee who bought drugs from Moonie. He maintained that when Lee phoned him up on 3^rd December Lee was trying to borrow money. Carlo had planned to go to Porlock to take some cannabis to his uncle. He had seen Marandola and invited him along. He had not seen Santino all day. At some point on the journey he spoke to Santino, who was ill in bed. He did phone Lee, who sounded drugged or drunk, and he said that Moonie was dead. There was to-ing and fro-ing in the Taunton area because they got lost. It was not a case of looking around for somewhere to dispose of the gun. Lee called to request cannabis and said he was staying at the hotel. They collected Santino on the way back and there was no conversation or suggestion that Carlo was responsible for Moonie's death. He agreed he had written to Marandola and accepted he was afraid he would falsely implicate Carlo in the murder.
29. Marandola did not give evidence, but in his police interview he had stated that he was shocked as said he was at his girlfriend's at the time of the murder. But in a subsequent interview he said the appellants had picked him up in a red car and said they were going to meet someone. He had been told to stay in the car but he did not remain in the car, but could see the other two and a third man approach from the pub. He heard two shots and then the appellants returned to the car and they left. He did not see any gun.

The Judge's Rulings on Permission to Read Certain Statements

30. The prosecution, prior to the commencement of the trial, submitted that it was their belief that attempts were being made to subvert the trial. Their initial application was for leave to read the statements of Lee and Carla on alternative grounds, either that they could not be found and all reasonable steps had been taken to find them, or that there was plain evidence their absence was through fear. The judge heard evidence in chambers from Mrs Fox, who was the mother of Carla, and from certain police officers. There is no challenge to his findings of fact and it is thus unnecessary to go through the details of their evidence. The judge directed himself by reference to sections 23 and 26 of the 1988 Act, and it is important to have the provisions of those sections in mind. section 23 provides:-

"23.(1) Subject –

(a) to subsection (4) below:

(b) to paragraph 1A of Schedule 2 to the 1968 c.19 Criminal Appeal Act 1968 (evidence given orally at original trial to be given orally at retrial): and

(c) to section 69 of the 1984 c.60.Police and Criminal Evidence Act 1984 (evidence from computer records).

a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if –

(i) the requirements of one of the paragraphs of subsection (2) below are satisfied; or

(ii) the requirements of subsection (3) below are satisfied.

(2) The requirements mentioned in subsection (1)(i) above are –

(a) that the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;

(b) that -

(i) the person who made the statement is outside the United Kingdom; and

(ii) it is not reasonably practicable to secure his attendance; or

(c) that all reasonable steps have been taken to find the person who made the statement, but that he cannot be found.

(3) The requirement mentioned in subsection (1)(ii) above are -

(a) that the statement was made to a police office or some other person charged with the duty of investigating offences or charging offenders; and

(b) that the person who made it does not give oral evidence through fear or because he is kept out of the way.

(4) Subsection (1) above does not render admissible a confession made by an accused person that would not be admissible under section 76 of the 1984 c.60. Police and Criminal Evidence Act 1984."

Section 26 provides:-

"26. Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared, otherwise than in accordance with section 29 below or an order under paragraph 6 of Schedule 13 to this Act or under section 30 or 31 below, for the purposes –

(a) of pending or contemplated criminal proceedings; or

(b) of a criminal investigation

the statement shall not be given in evidence in any criminal proceedings without the leave of the court, and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice, it shall be the duty of the court to have regard –

(i) to the contents of the statement;

(ii) to any risk, having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings, that its admission or exclusion will result in unfairness to the accused or, if there is more than one, to any of them; and

(iii) to any other circumstances that appear to the court to be relevant.

31. It is also important to have in mind, as the judge did, section 28 and Schedule 2. Schedule 2(1) provides as follows:-

"1. Where a statement is admitted as evidence in criminal proceedings by virtue of Part II of this Act-

(a) any evidence which, if the person making the statement had been called as a witness, would have been admissible as relevant to his credibility as a witness shall be admissible for that purpose in those proceedings;

(b) evidence may, with the leave of the court, be given of any matter which, if that person had been called as a witness, could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that that person, whether before or after making the statement, made (whether orally or not) some other statement which is inconsistent with it shall be admissible for the purpose of showing that he has contradicted himself."

32. The essence of the judge's ruling was contained in the following passages of his ruling:-

"They were each arrested on suspicion that they were involved in the murder. Each was interviewed. Records of those interviews have been disclosed to the defence. Each made statements concerning the circumstances of and surrounding the murder. Those statements implicate to a greater or lesser extent the defendants Santino Sellick and Carlo Sellick.

In the course of his statement, Lee Sellick said this:

"Since the shooting there has not been a day when Carla, my partner, and myself have not spoken about it. It has caused a lot of stress. I still feel scared, not only for me by my family and my girlfriend."

Later in that same statement, he said:

"I am frightened for my safety and any revenge they may take against me but I am willing to go to court."

Carla Wedge, in the course of her statement made on 23^rd February, said this:

"What I said in my first statement is true but there is more to tell. I have not told you up to now because I am very frightened and I have my children to think about."

Having heard and seen the witnesses called in this application, I am satisfied so that I am sure of the following facts:-

(1) Following the arrest of the defendants in February 2002, both Carla Wedge and Lee Sellick were made subjects of a witness protection scheme;

(2) Both Carla Wedge and Lee Sellick voluntarily withdrew from that scheme in about April 2002 and returned to the Wolverhampton area where the murder had been committed. They were living together and continued to live together until November of this year;

(3) Carla Wedge and Lee Sellick were informed in writing of the date of this trial in August 2002 and September 2002 and were notified on those occasions that they were required to attend as witnesses;

(4) On 18^th September 2002, Carla Wedge attended Billeston Street Police Station where she spoke to DC Hutton. In that conversation, she described an incident which had taken place outside her son's school when members of the Gamboni family, associates of the defendants, told her she should not be a grass;

(5) Carla Wedge told DC Hutton on 18^th September that she felt intimidated by the approach made to her by the Gamboni family and that she anticipated that that intimidation would become more intensive as the trial date approached. DC Hutton believed, from what Carla said to him and her general demeanour, that the Gamboni connection was capable of intimidating her and that she was fearful for her own safety and that of her family;

(6) In November 2002, Carla Wedge and Lee Sellick both knew of the trial date, the place of trial and that they were required to attend to give evidence at trial;

(7) From 18^th November 2002 onwards, police officers have made repeated attempts to find Carla Wedge and Lee Sellick. Police officers have visited all addresses in any way associated with either witness and have pursued all available avenues of enquiry. Despite all those efforts, neither witness has been found;

(8) The mother of Carla Wedge, Mrs Fox, has not seen her daughter for the past two weeks. Carla Wedge has left her home and her children, two boys aged nine and 15 months, and effectively disappeared. The children are being cared for by Mrs Fox. Mrs Fox has no knowledge of her daughter's whereabouts and does not know how to get in touch with her. Since Carla Wedge left, her younger child was admitted to hospital but even that event, of which Carla learned through telephone contact with her grandmother, did not prompt her to reappear;

(9) Mrs Fox told WDC Pearson that Carla was staying away from her children for two weeks until the trial was over to avoid getting killed and putting her children in danger;

(10) Mrs Fox told WDC Pearson that Lee Sellick was frightened and thought he would be killed whether he gave evidence or not. He had tried to commit suicide;

(11) Mrs Fox herself is a very frightened woman. She refused to make a written statement about the events surrounding the disappearance of her daughter. Her attendance at court had to be secured by a witness summons and a threat of arrest. The public gallery had to be cleared before she was prepared to give evidence.

Against those findings of fact, I turn to consider the application made by the Crown. In doing so, I take into account all the decisions of the Court of Appeal, Criminal Division, and the House of Lords, to which I have been referred, and all the submissions made on behalf of the crown and the defendants.

I am satisfied so that I am sure that all reasonable steps have been taken by the police to find both Carla Wedge and Lee Sellick but neither witness can be found. I reject the suggestion that the police should have done more to keep in contact with the witnesses in the months leading up to the trial. I am satisfied that the steps taken by the police were appropriate and reasonable in the light of the information available to them.

The Crown further submit that I should be satisfied that the witnesses are not prepared to give oral evidence through fear. On that issue, I remind myself that the evidence of fear must not be second-hand, as it would be from Mrs Fox. I accordingly ignore her evidence on that topic completely. Whether the witnesses' direct assertion of feeling fearful is hearsay or not is not the crucial issue. If it is not hearsay, it is admissible as original evidence and if it is hearsay, it is admissible by way of exception to the rule. See Neil and North Antrim Magistrates Court. There is, in my judgment, clear admissible evidence that both witnesses were in fear at the time they made their witness statements to the police. There is further admissible evidence that Carla Wedge was fearful about giving evidence in September 2002. There is, however, no admissible evidence that Lee Sellick was in fear of giving oral evidence and whilst it would be possible for me to infer from all these circumstances that he was, I am not able, in his case, to exclude the reasonable possibility that other factors may have influenced his disappearance. It is highly probable that fear of the consequences of giving evidence against the defendants and that alone has prompted him to disappear but I cannot be sure of that conclusion. However, in the case of Carla Wedge, I am entirely satisfied that fear for her own safety and fear for the lives of her children have driven her to behave as she has, abandoning her own children even when one of them was admitted to hospital. I am further satisfied, in the case of both witnesses, that no adjournment will secure their attendance.

Thus the provisions of Section 23 of the 1988 Act are satisfied in respect of both witnesses. The statements which the Crown wish to adduce were prepared for the purpose of criminal proceedings. The provisions of Section 26, accordingly, apply. The court must not give leave unless it is of the opinion that the statements or either of them ought to be admitted in the interests of justice having regard to the particular matters identified in the section and to all the circumstances of the case. I have carefully considered the contents of the statements. Each of them contains a wealth of detail which is compelling and, in my judgment, wholly credible. The defendants are all in a position to controvert the contents of the statements if they dispute them. I accept, however, that there is a disadvantage to the defence if the statements are read and if the yare admitted, the jury must receive clear directions emphasizing that disadvantage. Further, so far as Lee Sellick is concerned, the defence point to a number of features which they submit undermine his credibility. However, Section 28 of schedule two of the 1988 Act provides a wholly sufficient remedy for that concern.

Having taken into consideration all the submissions made and given full weight to the provisions of Section 26, I am of the clear view that the statements made by Lee Sellick and Carla Wedge ought to be admitted in the interests of justice. I so rule"

33. After the trial commenced on the 2^nd December 2002, the Crown also applied for leave to read the statements of Carina and Donna Mills. We have got a transcript of the judge's ruling in their regard. He ruled that he was sure Carina was being kept away by fear, relying on section 23(3). So far as Donna Mills was concerned he ruled that reasonable steps had been taken to find her, and applied section 23(2)(c). In both instances he also applied section 26, holding that it was in the interests of justice to allow the statements to be read. He also bore in mind section 28 and Schedule 2.

Strasbourg Jurisprudence

34. It appears that the judge was not referred to any of the Strasbourg jurisprudence on Article 6. That may be because in the Court of Appeal R v Gokal [1997] 2 CR APP R some general observations were made by Lord Justice Ward, who gave the judgment of the court at a time prior to the coming into force of the Human Rights Act, that would indicate that there was no reason to think that Article 6 rights would be infringed if sections 23 and 26 were utilised by courts. In that case, it should be said, the main attack being made by the appellant was to the effect that he would only be able to controvert the written statements if he gave evidence, and it was submitted that that would infringe his right to silence. That involved an attack on previous decisions of the English Court of Appeal in, for example, R v Cole (1990) 90 Cr.App.R.478. There was cited to Ward LJ certain of the Strasbourg authorities to which we will refer hereafter, and it was in that context that he said:-

". . . there is nothing there to concern us and we remain confident that the conduct of the application before Buxton J and the procedures by which he would conduct the trial accord fully with our treaty obligations."

35. Mr Raggatt QC before us submitted that the only real question was whether the provisions of sections 23 and 26 had been complied with and that little assistance could be gained from the Strasbourg authorities. We cannot accept that submission. By Section 6 of the Human Rights Act 1998 it is unlawful for a public authority (including a court) to act in a way, which is incompatible with a Convention right. Obviously, when a court is exercising its discretion under s.26, it is doing so by reference to "the interests of justice" and it would hopefully be unlikely that in so doing it would be infringing a defendant's Convention right. But there is a wide spectrum of circumstances to which sections 23 and 26 must be applied, and indeed a wide spectrum of circumstances to which section 23(3) (oral evidence not given through fear) may apply, which will become wider still under the Criminal Justice Act 2003, where under new provisions the court is enjoined to give a wide definition to fear (see section 116(3)). It is clearly of relevance to obtain guidance from the Strasbourg authorities as to the situations in which a defendant's Article 6 rights might have been infringed when considering how to exercise the discretion under these sections.
36. In approaching the Strasbourg jurisprudence, however, it must be borne in mind that it began its development by reference to cases which were being or had been tried under the inquisitorial processes common in many European countries and without regard to such safeguards as have been built into the English process. During the trial process of many countries there may be more than one moment in time when a witness may have been able to be questioned by or on behalf of the defendant. Under the common law process, the only moment for examination of a witness is at the trial itself. That has the consequence that there is just that one moment when, if the witness can be kept away by fear a defendant may be able to escape conviction because the evidence is simply unavailable. Being aware of the difficulties for a defendant controverting evidence which may be read, under the 1998 Act the English court has the power provided by section 28 and Schedule 2 to allow in evidence not normally admissible. That counterbalance is important in considering whether a defendant's rights have been infringed under Article 6.
37. Furthermore, the fact that there is only one moment in time when the defendant may have an opportunity to cross-examine a witness gives rise to a point which so far as we can see has not received any attention in the Strasbourg authorities. If a defendant, through fear, keeps a witness away from an English trial, then it is, as it would seem to us, the defendant who is depriving himself or herself of the right and the only right that the defendant has to examine that witness. How, we ask rhetorically, can it be said to be an infringement of the defendant's Article 6 rights for him to deprive himself of that opportunity?
38. It is necessary to review certain of the Strasbourg authorities but it must be borne in mind that, as we see it, the question whether Article 6 has been infringed is very fact sensitive. Despite that fact-sensitivity, certain general principles have been stated from time to time. Care must however be taken not to construe such general principles as words of a statute, particularly having regard to the fact they are stated in cases where the facts are very distant from those in the present case. It is clear that the Strasbourg court is fully aware of the problem of intimidation of witnesses but has a reluctance to give way to expediency. There is, however, no case as far as we know where the Strasbourg court has actually had to deal with a key witness being kept away by fear by a defendant from a trial in the English jurisdiction.
39. We can take the authorities to which we were referred in chronological sequence. First there is Unterpertinger v Austria (1996) 13 EHHR 175. In that case a man was tried for violence against his wife and stepdaughter, but in the context of serious disputes as to whether had attacked them or they had attacked him. The wife and stepdaughter refused to give evidence, and the Court of Appeal refused to allow in evidence going to the credibility of the wife and stepdaughter. The court held that paragraph (3)(d) of Article 6 was an aspect of the general concept of a fair trial and that thus the court should view the matter from the angle of paragraph (1) of Article 6 taken together with the principles inherent in paragraph (3)(d). It further held that the reading out of statements, as occurred in that case, could not be regarded as inconsistent with Article 6 (1) and (3)(d), but it held "the use made of them as evidence must nevertheless comply with the rights of the defence". It found that there had been an infringement of Article 6 on the basis that the Court of Appeal founded its judgments "mainly" on the statements and on the basis "that the defendant was convicted on the basis of "testimony" in respect of which his defence rights were appreciably restricted."
40. There are then cases dealing with witnesses whose identity was not revealed to the defence. Kostovski v Netherlands (1990) 12 EHRR 343. K was convicted of armed robbery on the basis of statements of anonymous witnesses. He was unable to question those witnesses at any stage. Being unaware of the identity of the witnesses deprived K of the very particulars which would have enabled him to demonstrate the witnesses unreliability. The court again stated that the reading out of the statements would not necessarily be inconsistent with Article 6. But it held that, since the government accepted that the convictions were based to "a decisive extent" on the anonymous evidence, there had been a breach of Article 6. It was in that case where the court stated:-

"The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency. The Convention does not preclude reliance at the investigation stage of criminal proceedings on sources such anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction as in the present case is a different matter. It involved limitations on the right of the defence which were irreconcilable with the guarantees contained in Article 6."

41. Windisch v Austria (1990) 13 EHRR 281. W was convicted on the evidence of a mother and daughter, who gave statements on the basis that their identity would not be revealed. The police gave evidence of the statements made by the mother and daughter and the identities of the mother and daughter were not revealed. In its judgment the court recited various principles in the following terms:-

"26. All the evidence must in principle be produced in the presence of the accused at a public hearing with a view to adversarial argument. However, the use as evidence of statements obtained at the pre-trial stage is not always inconsistent with paragraph (3)(d)(i) of Article 6, provided the right to the defence had been respected. As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making a statement or at a later stage of the proceedings."

The court held, however, in this case that:-

"Being unaware of their identity, the defence was confronted with an almost insurmountable handicap: it was deprived of the necessary information permitting it to test the witnesses' reliability or cast doubt on their credibility."

42. The court recognised the interests of the two women and the interests and importance of the collaboration of the public in the police's struggle against crime, but again referred to the right to the fair administration of justice holding "so prominent a place in a democratic society that it cannot be sacrificed."

The court stressed that the identification made by the two anonymous witnesses was "the only evidence indicating the applicant's presence on the scene of the crime." In the result the court held that the trial court relied "to a large extent" on this evidence. It held there had been a breach of Article 6.

43. Ludi v Switzerland (1992) 15 EHRR 173. The conviction in that case was based on the evidence of an undercover agent not called at the trial. It was held that the witness could have been called in a way which could have preserved that witnesses' anonymity, and thus there had been a violation.
44. In Saidi v France (1993) 17 EHRR 251, S was convicted on the basis of the evidence of drug addicts and in the situation where there was no opportunity to confront the witness. In the judgment paragraph 43 that court stated:-

"The court reiterates that the taking of evidence is governed primarily by the rules of domestic law, and that it is in principle for the national courts to assess the evidence before them. The court's task under the Convention is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair. All the evidence must normally be produced in the presence of the accused at a public hearing, with a view to adversarial argument. However, the use as evidence of statements obtained at the stage of the police enquiry and judicial investigation is not in itself inconsistent with Article 6(3)(d) and (1) provided that the right to the defence had been respected. As a rule these rights require that the defendant be given an adequate and proper opportunity to challenge and question the witness against him either when he was making a statement or at a later stage of the proceedings."

The court however held that there had been a breach of Article 6 since the testimony constituted "the sole basis" for the applicant's conviction, and the lack of any confrontation had deprived the defendant in certain respects of "a fair trial". The court recognised the difficulties of the fight against drug trafficking, but "such considerations cannot justify restricting to this extent the rights of the defence of everyone charged with a criminal offence."

45. In 1996 we detect a slight shift in the attitude of the court in Doorson v Netherlands (1996) 22 EHRR 330. That case was concerned with evidence being given by anonymous witnesses and also with evidence being read as a result of a witness having appeared at the trial but then absconding. The case was concerned with a conviction for drug trafficking. As regards the anonymous witnesses, they were ultimately questioned at an appeal stage, in the presence of counsel, but not the defendant, and without the identity of the witnesses being revealed to counsel. The court stated:-

"While it would clearly have been preferable for the applicant to attend the questioning of the witnesses, the court considers on balance that the Amsterdam Court of Appeal was entitled to consider that the interests of the applicant were in this respect outweighed by the need to ensure the safety of the witnesses."

46. The court in Doorson seems to us to bring higher up in the scales than heretofore the interests of victims and witnesses. It stated, for example in paragraph 70:-

"It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake as may interest coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other substantive provisions of the Convention, which imply the contracting state should organise their criminal proceedings in such a way that those interests are not unjustifiably in peril. Against this background principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify.

71. As the Amsterdam Court of Appeal made clear, its decision not to disclose the identity of Y15 and Y16 to the defence was inspired by the need, as assessed by it, to obtain evidence from them while at the same time protecting them against the possibility of reprisals by the applicant. This is certainly a relevant reason to allow them anonymity. It remains to be seen whether it was sufficient.

Although, as the applicant has stated, there has been no suggestion that Y15 and Y16 were ever threatened by the applicant himself, the decision to maintain their anonymity cannot be regarded as unreasonable per se. Regard must be had to the fact, as established by the domestic courts and not contested by the applicant, that drug dealers frequently resorted to threats or actual violence against persons who gave evidence against them. Furthermore, the statements made by the witnesses concerned to the investigating judge show that one of them apparently on a previous occasion suffered violence at the hands of a drug dealer against whom he had testified while the other had been threatened.

In sum there was sufficient reason for maintaining the anonymity of Y15 and Y16.

72. The maintenance of the anonymity of the witnesses Y15 and Y16 presented the defence with difficulties, which criminal proceedings should not normally involve. Nevertheless no violation of Article (6)(1) taken together with (6)(3)(d) of the Convention can be found if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities.

73. In the instant case the anonymous witnesses were questioned at the appeal stage in the presence of counsel by an investigating judge who was aware of their identity, even if the defence was not. She noted in the official record of her findings dated 19^th November 1990 circumstances, on the basis of which the Court of Appeal was able to draw conclusions as the reliability of their evidence. In this respect the present case is to be distinguished from that of Kostovski. Counsel was not only present, but he was put in a position to ask the witnesses whatever questions he considered to be in the interest of the defence, except in so far as they might lead to the disclosure of their identity, and these questions were all answered. In this respect also the present case differs from that of Kostovski.

74. While it would clearly have been preferable for the applicant to have attended the questioning of the witnesses, the court considers on balance that the Amsterdam Court of Appeal was entitled to consider that the interests of the applicant were, in this respect, outweighed by the need to ensure the safety of the witnesses. More generally the Convention does not preclude identification – for the purpose of Article (3)(d) – of an accused.

75. In addition, although it is normally desirable that witnesses should identify a person suspected of serious crimes in person if there is any doubt about his identity, it should be noted in the present case that Y15 and Y16 identified the applicant from a photograph, which he himself acknowledged to be of himself, moreover both gave descriptions of his appearance and dress.

It follows from the above considerations that in the circumstances of the counterbalancing procedure followed by the judicial authorities in obtaining the evidence of witnesses Y15 and Y16 must be considered sufficient, to have enabled the defence to challenge the evidence of the anonymous witnesses and attempt to cast doubt on the reliability of their statements, which it did in open court by amongst other things drawing attention to the fact that both were drug addicts.

76. Finally it should be recalled that even when counterbalancing procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements. That however is not the case here: it is sufficiently clear that the national court did not base its finding of guilt solely or to a decisive extent on the evidence of Y15 and Y16.

Furthermore, evidence obtained from witnesses under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care. The court is satisfied that this was done in the criminal proceedings leading the applicant's conviction, as is reflected in the express declaration by the Court of Appeal that it had treated the statements of Y15 and Y16 'with the necessary caution and circumspection.' "

47. It is also of some interest that the court dealt with another witness, R,

"79. Repeated but unsuccessful attempts were made to bring the main witness, R, before the regional court, following which the applicant withdrew his request to have him heard. In the appeal proceedings R was brought before the court by force, but absconded before he could be questioned. A subsequent attempt to have him brought before the Court of Appeal was likewise unsuccessful, after which no further attempt was made.

80. Despite the Court of Appeal's efforts it was impossible to secure R's attendance at the hearing. In the circumstances it was open to the Court of Appeal to have regard to the statement obtained by the police, especially since it could consider that statement to be corroborated by other evidence before it. Accordingly no unfairness can be found in this respect either."

48. Van Mechelen v Netherlands (1997) 25 EHRR. In this case the defendants were convicted of attempted manslaughter and robbery. The evidence identifying the defendant constituted statements made before their trial by anonymous police officers, none of whom gave evidence before either the regional court or the investigating judge. The Court of Appeal had referred the case back to the investigating judge. The investigating judge had arranged hearings in which he and the registrar and the anonymous witnesses were in one room and the applicants and their lawyers and the advocate general were in another. The two rooms were connected by a sound link. The court in this instance held that the balancing of interests of the defence in favour of maintaining the anonymity of witnesses raised special problems where the witnesses in question were members of the police force of the state. Although their interests and the interests of their families deserved protection under the Convention their position was different from that of disinterested witnesses or victims. For these reasons alone, their use as anonymous witnesses should only be resorted to in exceptional circumstances. The court held that it had not been adequately explained to the court why it was necessary to resort to the extreme limitations on the rights of the accused or why less far-reaching measures were not considered. The case was distinguished from Doorson.
49. Finally we refer again to Luca v Italy (supra). The case was not concerned with a witness being kept away by fear. The defendant had been arrested for possession of cocaine. N was questioned originally as a witness but then later as an accused, but separate proceedings were brought against N for possession. In the case against Luca, N was called as a witness but he chose to remain silent as he was entitled to do and by Article 5(1)(3) of the Code of Criminal Procedure, N's statement could be read. It was in that context that the general statement made in paragraph 40, which we have already quoted at the outset, was made. The court held that the domestic courts convicted the defendant solely on the basis of statements made by N before the trial, and that thus there had been an infringement of Article 6.
50. What appears from the above authorities are 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.

51. 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.
52. 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). We for our part see no difficulty in such a clear case.
53. More difficulty arises in cases where it is not quite so clear cut, but the court believes, to a high degree of probability, that identified witnesses are being intimidated for and on behalf of the defence, and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield J's state of mind on Lee in the instant case). In our view, having regard to the rights of victims, their families, the safety of the public in general, it still cannot be right for there to be some absolute rule that, where compelling evidence is the sole or decisive evidence, an admission in evidence of a statement must then automatically lead to a defendant's Article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses, the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be "got at" the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European Court in Strasbourg.
54. As Potter LJ said in R v M (supra) referring to paragraph 40 in Luca:-

"The judge rejected the submission of the defence that the last sentence of that paragraph could admit a no-exception. Certainly, if it did, then sections 23 and 26 of the 1988 Act could never apply in a case such as the present, where the essential or only witness is kept away by fear. That would seem to us an intolerable result as a general proposition and could only lead to an encouragement of criminals to indulge in the very kind of intimidation which the sections are designed to defeat. Certainly, decisions of the court before the passage of the Human Rights Act 1998, as well as common sense, suggest that no invariable rule to that effect should be either propounded or followed, where a witness gives evidence on a voire dire that he is unwilling to give evidence as a result of a threat which has been made to him, and the judge draws that the inference that the threat was made, if not at the instigation of the defendant, at least with his approval. This should normally be conclusive as to how the discretion under s.26 should be exercised: see R v Harvey [1998] 10 Archbold News 2CA. So too, as made clear in a case concerning a witness too ill to attend, who gave clear identification evidence in his witness statement, this court observed:

"The fact that there is no ability to cross-examine, that the witness who is absent is the only evidence against the accused, and that his evidence is identification evidence, is not sufficient to render the admission of written evidence from that witness, contrary to the interests of justice or unfair to the defendant per se. What matters in our judgment, is the content of the statement and the circumstances of the particular case bearing in mind the considerations which section 26 require the judge to have in mind: per Lord Taylor CJ in R v Dragic [1996] 2 Crim App R 232 at 237." "

55. The above dictum was cited again in R v Arnold [2004] EWCA (Crim) 1293. In that case, however, the court held that they were prepared to assume that the witness had not been kept away by fear, but ruled that the statement was admissible. The court, however, issued a note of warning in the following terms:-

"30. We cannot leave this case without sound a word of caution. The reference in Luca to the not infrequent occurrence of the phenomenon of frightened witnesses being unwilling to give evidence in trials concerning Mafia-type organisations is echoed across a wider range of serious crime in this country. Counsel both confirmed that this problem was becoming commonplace and the experience of the members of this Court concerned with the conduct of criminal trials is likewise. Inevitably, applications under section 23 will follow but this judgment should not be read as a licence for prosecutors. Very great care must be taken in each and every case to ensure that attention is paid to the letter and spirit of the Convention and judges should not easily be persuaded that it is in the interests of justice to permit evidence to be read. Where that witness provides the sole or determinative evidence against the accused, permitting it to be read may well, depending on the circumstances, jeopardise infringing the defendant's Article 6(3)(d) rights; even it is not the only evidence, care must be taken to ensure that the ultimate aim of each and every trial, namely, a fair hearing, is achieved."

56. We endorse entirely the view that attention must be paid to the letter and spirit of the Convention and the need for caution. We do, however, register one point. It seems to us that paragraph 30 does not take full account of the case in which the defendant is shown to have kept a witness away by fear, in which, as we have suggested, there should in reality be no question of his Article 6(3)(d) rights having been infringed, since he is the author of his inability to examine the witness.
57. Our view is that certainly care must be taken to see that sections 23 and 26, and indeed the new provisions in the Criminal Justice Act 2003, are not abused. Where intimidation of witnesses is alleged the court must examine with care the circumstances. Are the witnesses truly being kept away by fear? Has that fear been generated by the defendant, or by persons acting with the defendant's authority? Have reasonable steps been taken to trace the witnesses and bring them into court? Can anything be done to enable the witnesses to be brought to court to give evidence and be there protected? It is obvious that the more "decisive" the evidence in the statements, the greater the care will be needed to be sure why it is that a witness cannot come and give evidence. The court should be astute to examine the quality and reliability of the evidence in the statement and astute and sure that the defendant has every opportunity to apply the provisions of Schedule 2. It will, as section 26 states, be looking at the interests of justice, which includes justice to the defendant and justice to the victims. The judge will give warnings to the jury stressing the disadvantage that the defendant is in, not being able to examine a witness.
58. The direction given to the jury we accept is a delicate one. In the defendant's own interests he or she will not wish stress to be placed on the fact that the reason why a witness has not come to give evidence orally is because a judge has formed the view that the witness has been kept away by fear. Mr Solley QC suggested that there was a difficulty in the summing up in this case by virtue of the fact that, when directing the jury quite properly, the interview of the co-accused was not evidence against the appellants, the judge gave as the reason because the appellants were not present when that interview was given. Yet, submitted Mr Solley, the jury were not given an explanation as to why statements were read and were evidence against the appellants, albeit the appellants were not present when those statements were taken. But he submitted it would have been wrong to tell the jury of the true reason.
59. That criticism seems to us to be misplaced. If Mr Solley were correct about it there would be no circumstances in which a statement could be read without giving a direction as to the finding of the judge that the witness had been kept away by fear. That is not a direction that the appellants would have welcomed, indeed, if he had so directed the jury it would have formed a ground of appeal.
60. There is in fact no illogicality in not admitting the statement of a co-accused as evidence, but admitting the evidence of a statement of a witness kept away by fear. The fact that one gives an explanation for the non-admission, which assists the appellant and gives no explanation where it does not, cannot form a legitimate basis for complaint.

Discussion and Conclusion in relation to the facts in this case

61. This was a case in which the judge was sure that Carla was being kept away through fear by virtue of the conduct of the appellants or those acting on their behalf. So far as Lee was concerned, his view was that it was "highly probable" but he could not exclude the reasonable possibility that other factors may have influenced his disappearance. What he was sure of was that Lee could not reasonably be found, and it was legitimate to make part of his reasoning the high probability.
62. The judge was further sure that Carina had been kept away through fear. He was simply sure so far as Donna Mills was concerned that she could not reasonably be found. So far a Donna Mills is concerned, her evidence was not of any great importance. Furthermore, so far as Carina was concerned, she supported the fact that the appellants were involved in drug dealing and she provided some evidence that Carlo had had in his possession at one time a gun which was broadly similar to that which expert evidence had been indicated for the killing. But in relation to that evidence the judge gave a clear warning to the jury about the limitations of that evidence over and above reminding the jury to bear in mind the criticisms made of Carina and her evidence (see page 35 (c) to (e) of the summing up). Thus the evidence of Carina could certainly not be described as decisive.
63. Lee and Carla certainly did give important evidence. It was however certainly not the sole evidence. Lee, for example, gave evidence of a conversation with Carlo immediately after the shooting in which Carlo told him "to sort himself out, get control or he'd get the same", which the judge described as "very important evidence in the case of Carlo". (see page 30-31 of the summing up). Both Lee and Carla provided descriptions of the return of Santino, Carlo and Marandola to the Fox Hotel.
64. However, there was a great deal of circumstantial evidence, including the tracking of the mobile phones of the appellants and Marandola. But, in particular, there was the oral evidence of Tammy. True, Tammy was treated as a hostile witness. True, also, that Tammy's evidence was strongest against Santino, but it was powerful against Carlo too.
65. We have no doubt that the judge properly exercised his discretion in this case. So far as Carla and Carina are concerned, they were witnesses kept away by fear, a fear for which the appellants were responsible. It should not be forgotten that part of the evidence against the appellants related to covert telephone calls in which they were seeking to subvert the trial. The statements originally taken from Lee and Carla contained statements to the effect that they were fearful of what might happen to them. Mrs Fox, who gave evidence in chambers, was clearly a frightened woman. Tammy was clearly a frightened witness. This was a trial in which fear was being generated by the appellants or those acting for them in order to prevent evidence being given against them. Where the judge was sure of that it seems to us that the appellants cannot complain that their Article 6 rights were being infringed simply by references to those witnesses not being at the trial.
66. So far as Lee is concerned, the circumstances in which he could not reasonably be found included all the above circumstances and the high degree of probability as to his fear. In his case it cannot be said that the defendants lose their right to complain of an infringement under Article 6, but even in his case, where the evidence was "important" as against Carlo, even if that meant "decisive", our view is that provided counter-balancing procedures were properly in place the judge was entitled to admit his statement.
67. Counter-balancing procedures clearly were in place in that the judge took account of section 28 and Schedule 2. Lee was an identified witness and it was open to the appellants to attack the credibility of Lee; indeed they did so, suggesting that he was in fact himself responsible for the murder, that being the reason why he made the statement that he did. Furthermore, the judge warned the jury in relation to all the statements that were read in clear and unequivocal terms. He gave them a strong direction at the time the statements were read. And then he said this, in his summing up at page 11:-

"You will, I am sure, recall that I told you when the first of those statements was read how you should approach their evidence, but it is important that I remind you again of what I told you. Their statements are emphatically not agreed. The defendants would have wished that all of them should be called to give evidence before you. However, there are circumstances where I, as the judge, may permit the prosecution to read the statements of a witness even when the defence wish those witnesses to be called. That is a matter for my decision and you are not, please, to speculate on why I have reached that decision. You will of course immediately appreciate that the defence are disadvantaged by the course I have permitted to take place. You cannot see the demeanour and appearance of the witness when assessing the extent, if at all you are able to rely on the content of the statement. The defence cannot cross-examine, cannot test the accuracy and honesty of the evidence, cannot suggest to the witness a different account or explore with the witness other matters to which the witness does not speak in his or her statement. Thus, when you consider this evidence, bear those observations clearly in mind and give the disadvantage arising from the procedure the weight you think right in determining whether you can rely in any way on the witness statements read to you and if so to what extent. In this connection, bear in mind submissions of the defence on the accuracy and reliability of the statements of those witnesses. It is suggested that each of them may have a sinister motive for not wanting to give evidence and their protestations of fear in their statements are, submit the defence, (my words not theirs) simple weasel words designed to protect themselves, not from any of the defendants but from the consequences of their own involvement on what occurred on the night of the 3^rd December. You heard their submissions, you give them the weight you think right."

68. If we had formed the view that there was a breach of Article 6, that would have rendered the trial unfair and we could not have, in those circumstances, upheld the conviction as safe and a retrial would have had to have been ordered. We are quite clear that the appellants' rights under Article 6 were in no way infringed in this case. We are equally clear that the convictions of these appellants are safe and this appeal must be dismissed.

Mr Justice Owen: I agree

Mr Justice Fulford: I also agree