Přehled
Rozhodnutí
THIRD SECTION
FINAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 57836/00
by Spencer James MELLORS
against the United Kingdom
The European Court of Human Rights (Third Section), sitting on 30 January 2003 as a Chamber composed of
Mr G. Ress, President,
Mr I. Cabral Barreto,
Sir Nicolas Bratza,
Mr L. Caflisch,
Mr B. Zupančič,
Mrs H.S. Greve,
Mr K. Traja, judges,
and Mr V. Berger, Section Registrar,
Having regard to the partial decision of 19 June 2001,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Spencer James Mellors, is a United Kingdom national, born in 1964 and serving a prison sentence in HM Prison Craiginches, Aberdeen. He is represented before the Court by Mr J. Carroll, a lawyer practising in Glasgow.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and trial
The applicant was arrested on a charge of attempted murder arising out of a high speed car chase which occurred in the early hours of 29 October 1995. On 30 October 1995, he was arrested again, interviewed and cautioned in respect of a separate incident of rape and assault which also occurred during the early morning of 29 October 1995. In this incident, a prostitute M. had been taken to the house occupied by the applicant – there she had inter alia been assaulted, a cord tied round her neck, repeatedly raped and she had been bitten on the hand and face.
On 31 October 1995, the applicant appeared in court in respect of the various road traffic offences and the attempted murder of a police officer.
On 7 November 1995, he was fully committed and remanded in custody on those charges (of which he was later acquitted). Meanwhile on 3 November 1995, the rape charge was reported to the Procurator Fiscal. A warrant was sought by the Procurator Fiscal for the arrest of the applicant.
On 30 November 1995, the applicant appeared before the Sheriff and was committed in respect of the rape charge for further examination in custody.
When the applicant refused to co-operate in providing samples for DNA analysis and teeth impressions, the Procurator Fiscal obtained warrants from the Sheriff on 30 November 1995. Though the applicant was taken to a police station for the warrants to be executed, the medical practitioners refused to take the samples. The applicant denied that he resisted in any way. On 23 February 1996, he was charged with attempting to defeat the ends of justice on the ground that he had repeatedly resisted, obstructed, hindered and frustrated the execution of the warrants by the doctors. He was also charged with obstructing two police officers in the execution of their duty at that time, inter alia, by struggling, attempting to bite and spitting.
In preparing for the trial on the charges of rape and assault, the applicant’s legal representatives had identified a witness W. who gave a statement to them with a description of M.’s assailant which did not match the applicant. M. herself in a statement given before the trial had given a description of the attacker which did not match the applicant. In an identification parade, M. picked out a ‘stand in’, not the applicant.
When the indictment was served, W.’s name appeared on the list of witnesses for the prosecution. He was designated as “care of the police”, which indicated that any contact with him had to be made through the police.
On 24 June 1996, before the trial began in the High Court, there was a meeting between the Advocate Depute (the prosecutor) and defence counsel. The Advocate Depute told the defence that the witness W. was not in the building. There was a discussion as to whether he was required to attend as a witness. The defence informed the Advocate Depute that W. was considered an essential witness for the defence. The Advocate Depute undertook to have W. available as a witness when the defence required to call him. He did not mention that W. had not in fact been cited as a witness by the prosecution (i.e. a summons to appear had not been served on him, in the absence of which a warrant could not be issued to require his presence at the trial).
When M. appeared to give evidence, she carried out a “dock identification” of the applicant, namely, she pointed to the applicant in the court room as her assailant.
When the defence called for W. to appear as a witness, the court usher reported that W. was not present. At the close of the defence evidence, the Advocate Depute informed the court that the police had been trying to find W. for several days but had been unsuccessful. In fact, junior counsel for the Advocate Depute who was present in the court room knew that this was not correct. She had been called to the telephone by the police who had located W. They informed her that W. refused to come to the trial. She advised the police that they should let W. go. She had written a note of this information which she later claimed to have passed to the Advocate Depute. He later denied that he had been given or made aware of this information. In the light of what was said in court, defence counsel ended his case and the trial ended shortly afterwards.
On 2 July 1996, the applicant was convicted, by a majority verdict, of all charges and sentenced to 9 years 9 months’ imprisonment.
2. The appeal proceedings
On 8 July 1996, the applicant lodged an intention to appeal with the High Court sitting as an appeal court. On 20 August 1996, a Note of Appeal was lodged.
On 26 September 1996, a single judge refused the appeal. The applicant appealed.
On 31 October 1996, the Note of Appeal was allowed by three judges (the Lord Justice General, Lords Cullen and Prosser) in restricted terms relating to the direction given by the trial judge on the special defence of alibi.
On 20 December 1996, the appeal was set down to be heard. According to the Government, it did not take place as the applicant refused to leave prison. The applicant states that contrary to statutory authority the prison governor refused to allow him to leave the prison wearing civilian clothes instead of a prison uniform for the hearing. A further hearing was fixed for 22 May 1997. On that date, the Crown requested, and obtained, an adjournment as the Advocate Depute was engaged abroad.
On 19 November 1997, the appeal was set down to be heard (Lord Justice General, Lady Cosgrove and Lord Wylie). It was discontinued due to lack of court time and pressure of other business. It was noted that the appeal was complex and would last half a day.
On 13 and 14 January 1998, there was another appeal hearing before the Lord Justice General, Lord Caplan and Lord Philip (“the first appeal court”). As the applicant’s solicitor had become aware that the prosecution had never cited W. as a witness, which was confirmed by the Procurator Fiscal, he had lodged and argued an additional ground of appeal on this point. Following argument, he sought to lodge further additional grounds of appeal. The appeal was continued to 13 February 1998 to enable him to do so.
The Home Advocate Depute had taken over the case as the original trial Advocate Depute had become a judge. He explained to the appeal court that some confusion had arisen over the witness W. The trial Advocate Depute had stated that the defence had been informed from the beginning that W. had not been cited while his junior recalled that the defence had been told that W. had not been present but, since the defence required him, the police would have him made available. The Home Advocate Depute stated that junior counsel’s recollection was likely to be more accurate. Evidence was also before the court that the police had been looking for W. for some days before the defence called him and that they had found him. Junior counsel had remained silent when the Advocate Depute erroneously told the court that they could not find him, in deference to his position.
The first appeal court held that the failure to hear the evidence of W. resulted in unfairness and that further evidence should be heard. The interlocutor dated 13 February 1998 did not name the witnesses to be cited. The applicant’s solicitor sent a witness list to the Crown which included inter alia the trial Advocate Depute and junior counsel with a view to questioning them about what they did and said about the issues at the trial. The applicant considered that the trial Advocate Depute had lied, that junior counsel’s silence could be equated to lying by omission and that the trial Advocate Depute had perverted the course of justice. The Crown advised the applicant’s solicitor that if he insisted on citing witnesses other than W. and the two police officers who had located him during the trial, the matter would be referred to the court for resolution. The applicant’s solicitor lodged a list of 14 witnesses with the Justiciary Office. On 6 March 1998, the Crown Office wrote to the Clerk of Justiciary expressing his understanding that the purpose of requesting additional evidence was to hear the substantive evidence of W. and witnesses relevant to his substantive evidence and that other witnesses were irrelevant. Crown counsel requested that this letter, which included all the correspondence from the applicant’s solicitor, be brought to the attention of the Lord Justice General for his directions. On 24 March 1998, the Clerk of the Justiciary wrote to the Crown Office indicating that the Lord Justice General had considered the matter and that the witnesses should be W. and any other having a bearing on the credibility and reliability of W. with regard to the subject matter of the charge against the applicant. This letter was sent to the applicant’s solicitor on 27 March 1998. The Crown produced its own list with W. and police officers who had taken a statement from him.
The applicant states that he no longer wished to have W. called as a witness after the background to his non-appearance at trial became known and as the passage of time raised a legitimate fear that the witness would no longer be able to recall the events due to long term drug abuse.
By interlocutor of 13 February 1998, Lord Philip had been designated as the judge to hear the evidence. On 28 May 1998, he fixed a date to take the evidence of W. On 20 August 1998, the hearing was adjourned as the applicant’s counsel withdrew from acting on his behalf.
On 16 October 1998, W. was late to court as the police had to take him for a methadone prescription on the way. In his evidence, W.’s recollections of his movements over the relevant time period were inconsistent and vague. He appeared to claim that he had last seen M. before midnight getting into a silver car, contradicting earlier accounts where he had stated that he had seen her going towards a taxi rank with a man who did not look like the applicant and at a later time closer to the time of the assault.
In his note of 20 November 1998, Lord Philip gave his view of the credibility and reliability of W.:
“When giving his evidence [W.] appeared to be affected by a drug or drugs. He gave evidence slowly, deliberately and sometime inaudibly. His speech was sometimes slurred. His demeanour is best described by the colloquial expression ‘spaced out’. He said that he had formerly been a regular and heavy drug user and that as a result his memory was in general affected. He asserted that he no longer took drugs, but this was at odds with the impression created by his demeanour. He said that at the time of the events about which he was asked he was under the influence of drugs and his memory was unclear on a number of things.
Against this background I find myself unable to categorize [W.] as a credible or reliable witness. While he claimed that in general terms his memory of the time of the crime was very poor, he was firm in some parts of his evidence (for example at page 32 C) and vague and evasive at others. My impression was that he had made up his mind in advance what his evidence was to be on a limited number of points and was not prepared to be drawn on others. I could not be satisfied that his evidence was truthful.”
On 24 June 1999, the appeal was heard before the Lord Justice General, Lord Hamilton and Lord MacFadyen. The High Court heard submissions from the Home Advocate Depute and the applicant’s counsel on the original ground of appeal relating to alibi and the grounds of appeal relating to the additional evidence of W. and the Crown’s failure to inform the defence that they had found him.
On 22 July 1999, the judgment of the court was given by the Lord Justice General, Lord Rodger. It dismissed the applicant’s appeal.
In his judgment, Lord Rodger noted that the applicant’s defence had accepted that M. had been taken to his house where she had been assaulted and raped but that he had claimed that it was not him. He had been elsewhere and relied on alibi evidence that he had been involved in a high speed car chase with the police at the time. He alleged that it must have been a cousin of his who had been involved in the attack on M. M. however had identified the applicant at the trial and said that he had a scar, which was not contested. Though she had not picked out the applicant in the identification parade and had given a description that did not match the applicant in some respects, there was powerful support for her identification in the forensic evidence – the semen samples taken by swab and from the bed were 37,900 times more likely to be the applicant than an unrelated person and 7,400 times more likely to be him than any cousin. A piece of paper was found in the applicant’s house with M.’s name and address on it. M.’s evidence had been that she had met her assailant at about 4.00 a.m. roughly – she did not know exactly – and that she had seen the time 4.45 a.m. on a clock in the bedroom of the house where she had been taken. She had no real recollection of the time when she left the house, though stated that it was about 2.30 to 3.00 p.m. The taxi records showed that she was in fact picked up at about 1.36 p.m. Lord Rodger commented that given her ordeal it was not surprising that her evidence about timing was not accurate.
Lord Rodger recalled that the defence position was that the applicant had returned to the house after the car chase but had left again by 5.33 a.m. when a taxi was recorded as calling at the house. He had then stayed at a friend’s house until he went to a public house at about 11.50 a.m. Two witnesses had given evidence in support of this alibi at the public house. The prosecution had accepted that at some point between 4.00 and 5.00 a.m. the applicant had been in his car being chased by the police, that he had gone home and remained there until he left by taxi at 5.33 a.m. The prosecution had invited the jury to find however that the incident with M. had begun after this time and that he had brought M. back to his house then.
Lord Rodger observed that it was important for the jury to consider the matter of timing and in particular whether they accepted that M. must have been wrong when she said that the applicant had approached her at about 4 a.m. He reviewed the judge’s direction on the alibi point and found that the judge had sufficiently drawn to the jury’s attention the evidence supporting the applicant’s evidence that he was in the public house before the taxi came to pick up M. and the discrepancies in M.’s evidence on timing, properly leaving it to the jury to decide how these mattered in the overall context of the evidence. The ground of appeal relating to this aspect was therefore rejected.
As regards W.’s evidence, Lord Rodger noted that the Advocate Depute had been aware on the first morning of the trial that the police had been unable to find and cite W. though instructed by the Crown to do so. Information was passed to the defence about this, though recollections of what was said varied – in particular whether the defence had been informed that W. had not been cited at all. It was agreed however that the police would continue to make efforts to find him and make him available, and that the trial should nonetheless continue. At the moment when the defence sought to call W. at trial, Ms D., the junior counsel for the Advocate Depute, had been informed by the police that W. had been found. As he had not been cited, there was no warrant for his attendance and he could not be forced to come to court. Ms D. told the police to ask him to attend court voluntarily and, when he declined, he was allowed by the police to go on his way. Ms D. said that she passed a note with this information to the Advocate Depute. The latter however had said that he had no recollection of receiving the note. The defence were therefore not informed that W. had been found and closed the case without his evidence having been heard:
“It is important to note that, although the account of the circumstances relating to [W.] proceeds largely on the narrative given to this court by the Advocate Depute [not the trial advocate] and on the supporting police documents, Mr Burns on behalf of the [applicant] did not challenge that account in any of its essentials. In particular he did not challenge the Advocate Depute’s conclusion that what happened at the trial happened because of a failure of communication between the Crown junior and the trial Advocate Depute about [W.] having been contacted on the morning of 1 July. It is accordingly on the narrative which we have outlined that we must consider the remaining grounds of appeal; ...”
He concluded:
“... first, that the defence agreed to proceed with the trial knowing that [W.] was not present to be called as a witness and might not be present before the end of the trial; secondly, the defence did so only on the basis of an undertaking by the Crown that efforts would continue to be made to try to locate [W.] and to make him available; thirdly, on 1 July the police found [W.] and informed the Crown; fourthly, due to a breakdown in communication within the Crown team the Crown failed to inform the defence that he had been located; fifthly, the defence were thereby denied the opportunity, in these new circumstances, of asking for an adjournment of the trial with a view to having [W.] cited and brought to give evidence. We are satisfied that the failure by the Crown to inform the defence that [W.] had been located amounted to a serious flaw in the conduct of the case... The effect of that flaw in the proceedings on the substance of the case can only be judged, however, by ascertaining the nature and extent of any evidence which [W.] might have given, if called as a witness, and which might therefore have been available to the jury, along with all the other evidence in the case. It was for this reason that the court ordered his evidence to be heard by Lord Philip...
The [applicant’s] agents attached ...two precognitions of [W.], one of which was taken before the trial. On the basis of that precognition, the original argument on behalf of the [applicant] was, that if called as a witness, [W.] would have said that some time during the night he saw [M.] going away with a man ...[W.] is recorded as saying that:
‘I’m convinced they’ve got the wrong guy for this. I know [the applicant]. I saw him at court one of the times when I was there. He’s got a very distinctive appearance... He’s nothing like the man that went away with [M.] that night. [M.] gave a description to me of the man having black hair that was going grey and with a wee scar just along the cheek bone. [The applicant] has got a great big scar going right down and then another one going right across. [The applicant] is also very heavily built and very broad and the guy I saw was much more thinly built.’
Had that been the substance of [W.]’s evidence then, leaving aside any question of credibility or reliability, it would have been material and relevant to the issues before the jury since [M.’s] evidence to the jury was that the man who approached her and with whom she got into the taxi was the man who raped her and [W.] would have been saying that the man in question was not [the applicant].
At the hearing however, [W.]’s position was completely different. The substance can be summarised this way. At the relevant time, he was ‘high on drugs, really bad’. When he last saw [M.] she was getting into an ordinary car, not a taxi. He was positive that it was not a taxi... She had approached the car and the front seat passenger’s window had been opened. The person in the car had spoken through the window. [W.] had not seen [M.] speaking to a man when walking down the street. After going away in the car, [M.] had not returned until the following day. When she had been away for some time, [W.] walked about the area looking for her. This would have been between midnight and one o’clock in the morning. It followed that he had last seen [M.], getting into the car, before midnight. He was positive that it had not been at about four o’clock since the police did not allow prostitutes to work beyond four o’clock and the complainer would have stopped working before that time. She might work up until two or half past two, but never as far on as four o’clock. ...
Mr Burns submitted that the court should bear in mind that [W.]’s evidence had been taken on 16 October 1998, three years after the events, whereas if cited, he would have given evidence at the trial at the beginning of July 1996, less than nine months after the incident. He was a drug abuser and this clearly affected his recollection, but it might well be that his recollection would have been better in July 1996 than in October 1998. The court should not therefore assume that his evidence at trial would have been the same as that taken before Lord Philip. Furthermore, ...[W.]’s evidence was actually material since it cast further doubt on the Crown position that the incident began when the [applicant] called a taxi at 5.33 a.m. and went to the Anderston area and approached [M.]. According to [W.], [M.] would not have been working at that time and in any event he had last seen her going away in a car before midnight.”
Lord Rodger went on to recall the impression made on Lord Philip by W. in giving his evidence, in particular his opinion that he was not a credible or reliable witness. He was not persuaded that he would have been a credible or reliable witness if he had given evidence before a jury, and the idea that he would have given evidence along the lines of his earlier statements was based on nothing but speculation. Applying the test as to whether W.’s evidence before Lord Philip would have led a reasonable jury to a different verdict, he concluded that it would not. At most it would have added another strand of evidence concerning the timing when [M.] went away with her assailant. The strength of the Crown case however had always lain on the evidence that M. had identified the applicant in court, that he had a scar as described, that the forensic evidence showed that she had been at his house, that there was a piece of paper with her name on it in his house and the DNA evidence pointed overwhelmingly to the applicant as the person who had intercourse with M. Whatever might be the exact time at which the incident started, that was a body of evidence which pointed clearly to the applicant.
“In response to that powerful case based to a large extent on scientific evidence, the [applicant] could do no more than advance the line that the attack must have been carried out by a male relation who was supposedly living in the house at the same time but whose precise identity he was unable to give and who, of course, was not called as a witness. Given that the majority of the jury accepted the powerful case for the Crown, notwithstanding the obvious confusion of [M.] as to the precise time when the incident began, we see no reason to suppose that the introduction of [W.]’s evidence on timing would have been of significance...
... For all these reasons we have reached the conclusion that, notwithstanding the irregularity which occurred in the proceedings, there was no miscarriage of justice. ... The appeal as a whole must therefore be refused.”
3. Subsequent procedures
The applicant applied to the Scottish Criminal Cases Review Commission (SCCRC), alleging miscarriage of justice in respect of his conviction and complaining inter alia of flawed appeal proceedings and delay. In its decision of May 2002, the SCCRC reviewed the case and the applicant’s complaints, finding inter alia that it was not germane to the issues before the High Court on appeal to hear witness evidence as to why the witness W. was not present during the trial and that there was no evidence that there was any hearing concerning the choice of witnesses at which the applicant was not represented. It noted that the applicant had not specified any prejudice arising from delay and that he had never taken a plea of oppression in the case. No miscarriage of justice had been identified as occurring from delay.
The applicant also applied to the nobile officium of the High Court of Justiciary, raising his allegations that the court which heard his appeal was not impartial. He pointed out that while he was under arrest on other charges he was interrogated by police in connection with the alleged rape and that the rape was reported to the Procurator Fiscal on 3 November 1995. On 7 November he was remanded in prison on the attempted murder charges. Lord Rodger, the presiding judge on his appeal, occupied the post of Lord Advocate until 7 November 1995. He further alleged that the appeal court’s judgment contained errors of facts relevant to the failure to call W. as a witness of trial. Lord Rodger, as previous Lord Advocate, had links with the trial Advocate Depute whose conduct was being impugned. The same trial Advocate Depute was however appointed to the post of sheriff during the appeal. He alleged that the composition of the appeal court was changed, without reason, after his solicitor made submissions to the court highly critical of the Advocate Depute and at the same time Lord Rodger’s direction at the later hearing that the applicant’s counsel should not address the court on matters already dealt with by the solicitor was highly detrimental as could be seen from the misstatements in the appeal court’s judgment. He submitted that these matters led him to have legitimate grounds for fearing Lord Rodger might have been influenced by his former involvement as Lord Advocate and his professional links with the former Home Advocate Depute.
In its judgment of 18 October 2002, the High Court rejected the applicant’s petition. It noted the applicant’s concern that before Lord Rodgers ceased on 7 November 1995 to be Lord Advocate the report of the rape case might have reached the Crown Office and that the Crown Office might have taken the view that the rape and the murder were linked in their decision to oppose bail. It stated however:
“In our opinion Lord Rodger’s participation in the appeal did not invalidate the decision of the court. [The applicant] did not allege that Lord Rodger was biased against [him]; or that he was involved in any decision relating to the prosecution of the [applicant] on the attempted murder and other charges or in the decision to oppose bail; or that he was aware of the report of the alleged rape submitted by the police to the Procurator Fiscal. The submission came to be that there was an appearance of bias arising from the mere fact of his having been a law officer at the relevant dates. ...
As a matter of constitutional principle, the Lord Advocate bears responsibility for actions taken and decisions made in his name, whether by advocates depute or by procurators fiscal But the question raised by this submission cannot be decided on the basis that the Lord Advocate has constructive knowledge of all information held, and all decisions taken by, his subordinates. If that were to be the approach, there would be no content in the principle that a real possibility of bias can be held to exist only where there is some objective justification for it.
In the day-to-day working of our system of criminal prosecution, the early stages of a case are, for the most part, in the hands of the local Procurator Fiscal. His involvement begins, in the normal case, with the making to him of a report by the police. It is only in exceptional cases that the Procurator Fiscal becomes involved at any earlier stage, for example in decisions whether or not to arrest and charge a suspect, to hold an identification parade, to apply for certain warrants and so on. When a report is made to him, the Procurator Fiscal decides to place an accused person on petition, the petition runs in his name and not that of the Lord Advocate. In the normal case, the Crown Office becomes involved only at the stage when, after, making his own enquiries, the Procurator Fiscal reports a case to it and requests further instructions. In such a case, the decision is normally made by Crown counsel and the instructions to the Procurator Fiscal run in Crown counsel’s name. It is exceptional for Crown counsel to be involved at any earlier stage. It is even more exceptional for the Lord Advocate to be involved in, or informed of, any of these preliminary stages in a prosecution, or to have access to the contents of a police report.
In our opinion, there can be no objective justification for any suspicion of bias on the part of Lord Rodger. The fair-minded and informed observer when considering the possibility that Lord Rodger could have been involved in or known of the reports made or decisions taken in either of the cases against the [applicant], would have concluded that the possibility was so remote that it could be disregarded. When Lord Rodger demitted office on 7 November 1995 the criminal proceedings on which the [applicant] was convicted had not even begun. In our opinion, it would be fanciful to imagine that Lord Rodger could have been involved in the decision to oppose bail. The [applicant’s] criminal record was of such length and quality that no competent Procurator Fiscal could have made any other decision.”
As regarded the applicant’s allegations of objective bias arising from Lord Rodger’s professional links with the Advocate Depute at his trial, the court stated:
“... in our view there is nothing in this point. The fact that [Mr. D.], like many other members of the Bar, had held commissions as an ad hoc advocate depute could not, in our view, have raised any reasonable suspicion in the mind of a fair-minded and informed observer that Lord Rodger would be unable to adjudicate impartially on the allegations levelled against [Mr D.], particularly since they related to a prosecution that [Mr D.] conducted after Lord Rodger had ceased to be Lord Advocate.”
The court continued to examine the alleged defects in the conduct of the appeal and the appeal court’s judgment and found no merit in them. In particular it noted that the applicant’s representative’s assertion that the appeal court had restricted argument at the third hearing was not supported by the wording of the court’s judgment and there was no other evidence to contradict the court on the point. It noted that the applicant’s representative had not pursued various other assertions made as regarded Lord Rodger and the appeal court and that there was no evidence, inter alia, to support the suggestion that the composition of the appeal court had been changed because two of the judges had been critical of the trial Advocate Depute. It observed in that regard that the composition of an appeal court could seldom be finalised until a few days before a hearing as judges had other commitments that often over-run.
“A judge who took part in any earlier stage of an appeal may be unable to take part in a later stage, perhaps because he is scheduled to sit in the Outer House or is on circuit. There was no need for the third hearing in this case to be held before the same bench so long as counsel for the appellant had the opportunity to argue the grounds of appeal in full, as we hold that he did.”
COMPLAINTS
1. The applicant complains under Article 6 § 1 of the Convention that he was denied the right to call and examine witnesses on the same terms and conditions as the prosecutor. The prosecutor had control of the witnesses and his actions prevented the applicant leading the important evidence of W. This evidence was of relevance to the issues and could have swayed the verdict, as shown by the fact there was majority decision by the jury. By the time W. did give evidence years later, his evidence was degraded by the effects of drug abuse and assessed long after the events by judges who had no direct experience of the witness or of the events of the trial.
2. The applicant complains of the involvement of Lord Rodger as the judge chairing the appeal court. He had been the Lord Advocate, covering the time of the applicant’s arrest and first appearance in court. The proceedings would have been reported to the Crown Office for Crown counsel’s opinion. Lord Rodger as Lord Advocate would have worked closely with the Home Advocate Depute who was the trial Depute and whose actions concerning the witness W. were under critical examination in the appeal. Lord Rodger also would have been influential in the appointment of the trial depute as a judge while the appeal was pending. The other two judges were also replaced during the appeal and the two later judges who joined Lord Rodger in his decision had not heard or made comment on the earlier submissions and disclosures concerning the role of the trial depute at trial. Lord Rodger’s judgment erred in his descriptions concerning the reasons for W.’s non-appearance and in stating that the defence had accepted the Crown’s version of what had occurred during the trial concerning W. The applicant was therefore deprived of a trial before an impartial tribunal contrary to Article 6 § 1 of the Convention.
3. The applicant finally complains that his trial was not determined within a reasonable time as required by Article 6 § 1 of the Convention.
THE LAW
The applicant complains under Article 6 § 1 of the Convention about his trial and conviction and appeal proceedings for rape and assault on a prostitute M., in particular alleging a failure by the prosecution to make available a defence witness (the “boyfriend” of the prostitute), a lack of impartiality of the presiding appeal court judge and the delay in the proceedings.
Article 6 § 1 provides as relevant:
“In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
A. Concerning the availability of witness W.
1. The parties’ submissions
The Government submitted that the right to subject a witness to cross-examination did not require that this took place at the trial itself, as long as the accused was given at some stage an adequate and proper opportunity to challenge and question a witness. In the present case, the appeal court heard the witness W. and carried out an assessment of his evidence. Any unfairness at the original trial was remedied by this examination and therefore the applicant was not denied a fair hearing or trial.
The applicant alleged that he did not have a fair trial as the witness W. was not heard during his trial at the proper time in the context of all other evidence by the jury. He pointed out that the jury had not voted unanimously for his guilt showing that the Crown case was not wholly accepted. The restricted nature of the appeal process did not cure this defect, in particular since W.’s evidence was taken 27 months after the trial, he was spaced out on methadone during the hearing before Lord Philip and in any event the appeal court itself did not hear his evidence and had been unable to assess his demeanour, reliability and credibility or the impact which it might have had upon a jury.
2. The Court’s assessment
In determining issues of fairness of proceedings for the purposes of Article 6 of the Convention, the Court must consider the proceedings as a whole, including the decision of the appellate court (Edwards v. the United Kingdom, judgment of 16 December 1992, Series A no. 247-B, § 34). It is not its function to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which the evidence was taken, were fair (see Doorson v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 470, § 67; Van Mechelen and Others v. the Netherlands, judgment of 23 April 1997, Reports 1997-III, p. 711, § 50; and more recently, S.N. v. Sweden, no. 34209/96, judgment of 2 July 2002, ECHR 2002-..., § 42).
The Court observes that all the evidence in a criminal trial must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence. As a general rule, the accused must be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage (see Van Mechelen and Others, judgment cited above, p. 711, § 51; and Lüdi v. Switzerland, judgment of 15 June 1992, Series A no. 238, p. 21, § 49). The Court further draws attention to the fact that Article 6 does not grant the accused an unlimited right to secure the appearance of witnesses in court. It is normally for the national courts to decide whether it is necessary or advisable to hear a witness (see, among other authorities, Bricmont v. Belgium, judgment of 7 July 1989, Series A no. 158, p. 31, § 89).
In the present case, the appeal court acknowledged that there had been a serious defect in the applicant’s trial. The witness W., who had evidence of relevance to the applicant’s defence (namely, that he was not the man seen taking the rape victim away in a car), was not heard at his trial. Though the applicant considers that there was serious misconduct, if not deliberate malice on the part of the trial Advocate Depute (prosecuting counsel), it is uncontested that, firstly, the witness was not cited to appear even though the defence had expressed a wish for him to be heard and, secondly, that the police had found W. during the trial and this fact was not brought to the attention of the defence so that they could ask for an adjournment to have him cited and brought to court at that stage. This deprived the defence of the opportunity to have relevant evidence put before the jury.
The key issue is whether the procedure adopted before the appeal court remedied this defect. The appeal court granted leave to appeal and instructed that W. should be heard as a witness, appointing Lord Philip to hear him. He made a report to the appeal court which however concluded that W. was not a credible and reliable witness and pointing out that W.’s account had changed since his statement made before the trial. The appeal court was not persuaded that W. would have been a credible or reliable witness if he had given evidence before a jury and did not consider that his latest version of events would have led a jury to reach a different verdict. At most, in their view, it added another strand of evidence concerning the time when M. was taken away by her assailant and whatever the timing there was a significant body of evidence pointing to the applicant as that person. It therefore found that the irregularity had not led to a miscarriage of justice.
The applicant has argued that it was too late to hear the evidence of W. in October 1998, some 27 months after his trial, when his recollection was likely to have deteriorated substantially due to his drugs addiction. Also, he pointed out that the appeal court did not hear W.’s evidence for itself.
The Court notes however that the appeal court considered the applicant’s arguments about the effect of the lapse of time on W.’s evidence and discounted it as speculative to assume that W. would have maintained his earlier account at the trial. The weight and relevance of W.’s evidence was, in the Court’s view, a matter for the appeal court to determine in light of all the circumstances. As in the Edwards case (cited above, §§ 37-39), it considers that the rights of the defence were effectively secured by the proceedings on appeal, where the applicant’s counsel had every opportunity to seek to persuade the court that the conviction should not stand in light of the new material, and that the appeal court was able to assess for itself the value of the new evidence and to determine whether the availability of the information at trial would have disturbed the jury’s verdict. While it is true that the three judges who issued the judgment rejecting the appeal did not see W., the Court sees no reason in this case why it was not consonant with the requirements of Article 6 § 1 of the Convention for them to rely on the transcript of the hearing before Lord Philip and on Lord Philip’s assessment of credibility and reliability. The applicant does not suggest that any other view of W.’s reliability was in fact possible.
The Court concludes that taken as a whole the applicant’s trial and appeal complied with Article 6 § 1 of the Convention. His complaints are manifestly ill-founded and must be rejected pursuant to Article 34 §§ 3 and 4 of the Convention.
B. Concerning the alleged lack of impartiality of the presiding appeal court judge
1. The parties’ submissions
The Government argued that the fact that Lord Rodger, presiding judge in the applicant’s appeal, was Lord Advocate at the time that he was arrested and charged did not cast doubt on the impartiality of the appeal court. He was Lord Advocate for nine days prior to his resignation during which the applicant was subject to a criminal charge. However, as head of the criminal prosecution system in Scotland, he had no direct contact with the applicant’s case. The applicant was not committed for the rape offence until 30 November 1995, after Lord Rodger’s resignation as Lord Advocate. The papers were not sent to the Crown Officer for instructions until January-February 1996 and prior to that date the matter had been investigated and dealt with at a local level by the Procurator Fiscal. There was no legitimate doubt arising from Lord Rodger’s later role in the appeal.
The Government submitted also that there was no connection between Lord Rodger and the trial Advocate Depute. They further argued that the alleged errors concerning the circumstances at the trial in the appeal court’s judgment are irrelevant. The appeal court found that the original trial was unfair due to the non-appearance of W. and having reached that decision it was irrelevant who had said what about that fact at the time. The important fact was that the unfairness was identified and remedied by the appeal court. As regarded the change in composition of the appeal court, the second appeal court heard the appeal anew and no rights of the applicant were thereby breached.
The applicant submitted that he had a legitimate fear of subjective, as well as objective, bias on the part of Lord Rodger. He referred to the disclosure of serious misconduct by the trial Advocate Depute, the shortening by Lord Rodger of the list of witnesses that, if heard, could have demonstrated malice by the Depute and the contents of the appeal court’s judgment which he alleged misrepresented the Depute’s role in the affair. He pointed out that the Depute was promoted to judge after his trial, giving an appearance of approval rather than disapproval of his conduct and asserted that as the Depute and Lord Rodger worked together as Crown Counsel and Lord Advocate for at least three years between 1992 and 1995 they would have had a close and trusting working relationship. As regarded Lord Rodger’s position as Lord Advocate, the applicant stated that it was inconceivable that the local Procurator Fiscal would not have reported to the Crown Office the fact that the applicant arrested on attempted murder was not also subject to a charge of rape. This would have been relevant to the Crown’s position on bail. Lastly, the applicant considered the change of the appeal court composition after two judges had been critical of the trial Depute was unprecedented. He also denied that the second appeal court properly heard the case anew, Lord Rodger informing counsel that he should only address matters previously not dealt with by the applicant’s solicitor advocate and interrupting counsel to inform him that they had a note of matters addressed on the earlier occasion.
2. The Court’s assessment
As to the question of ‘impartiality’, there are two aspects to this requirement. First, the tribunal must be subjectively free of personal prejudice or bias. Secondly, it must also be impartial from an objective viewpoint, that is, it must offer sufficient guarantees to exclude any legitimate doubt in this respect (see, amongst many authorities, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 281, § 73). As regards the first head, the Court recalls that the personal impartiality of a judge must be presumed until there is proof to the contrary (see Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30).
Turning first to the applicant’s allegation of subjective bias, the Court does not consider that the circumstances referred to by the applicant are probative of lack of personal impartiality by Lord Rodger. As the Government have pointed out, as Lord Advocate, Lord Rodger would have been in contact with numerous counsel acting for the Crown. Nor does the Court find anything sinister or abusive disclosed by the appointment as sheriff of the trial Advocate Depute, the limitation of the witnesses to be heard by the appeal court or in the substance of the appeal court judgment. The defect at trial identified by the appeal court was the failure to hear the evidence of witness W. and the background to that failure was not relevant to an assessment of the relevance of that evidence to the applicant’s conviction. As regards the applicant’s allegations that the appeal court judgment misrepresented the facts concerning the role of the trial Advocate Depute in the failure to call the witness W. at trial, the Court would note that the appeal court had varying versions of events to weigh against each other (the varying recollections of the trial Advocate Depute and his junior and the defence lawyer). It does not find that the appeal court’s attempted reconciliation of these conflicting statements discloses any lack of impartiality. A serious flaw at trial was identified by the appeal court and whether it resulted from deliberate malice as alleged, without substantiation, by the applicant or lack of communication, was not relevant to the principal consideration before the appeal court as to how to remedy that defect on appeal. The Court does not find therefore that the allegation of actual bias has been made out.
The Court must also examine, secondly, whether the appeal court was impartial from an objective point of view, that is, whether in the circumstances there were sufficient guarantees to exclude any objectively justified or legitimate doubts as to the impartiality of the court. Although the standpoint of the accused is important in this connection, it cannot be decisive (see Gregory v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 309, § 45; also, more recently, Sander v. the United Kingdom, no. 34129/96, ECHR 2000-V, § 27).
As with the allegations raised above in the context of actual bias, the Court does not find that these matters raise any problems under the perspective of objective bias. The applicant has however also pointed to the fact that Lord Rodger was Lord Advocate, and therefore head of the prosecution system, at the time when he was under arrest on other charges and coming under investigation as a suspect on the rape charge. The Court observes that Lord Rodger resigned as Lord Advocate on 7 November 1995, before the applicant was either charged, remanded or indicted on the rape offence, in other words before any formal prosecution or judicial procedure had commenced. The most that can be said on the applicant’s side is that there was a possibility that the Procurator Fiscal informed the Crown Office, or Crown Counsel dealing with the attempted murder charge, that the applicant was now also suspected by the police of involvement in rape. The applicant has alleged that this would have been relevant to the imminent procedure to determine whether he would have been remanded in custody on the attempted murder charge or released. The Court recalls that this matter was recently examined by the High Court in a petition to the nobile officium. It rejected the idea that this would have involved any information being conveyed to the Lord Advocate and considered that the Procurator Fiscal would not have been in any need of instructions concerning the appropriateness of opposing bail in the applicant’s case.
In any event, even assuming information that the applicant was suspected by the police of rape had been conveyed to the Crown Office or even counsel dealing with the bail on the attempted murder charge, this does not disclose any appearance of involvement by Lord Rodger in the criminal prosecution concerning the rape. The mere fact that he was head of the prosecution service while the applicant was being questioned by the police about the rape is not capable, in the Court’s view, of causing the applicant or any objective observer legitimate doubts as to the impartiality of the appeal court which later considered his appeal against conviction for that offence.
Finally, as regards the applicant’s allegations concerning the change in composition of the appeal court, the Court finds that he has not substantiated that there was any improper motivation behind this occurrence. It would note that one of the judges from the first appeal court who did not sit at the later hearing was designated to hear the evidence of W. – a step which is not consistent with a purported attempt to remove him from the case due to his critical attitude to the prosecution.
Nonetheless, the Court has had regard to the principle of immediacy, namely, that the decision taken in a criminal case should be reached by judges who have been present during the proceedings and taking of evidence. This cannot be considered as always prohibiting a change in composition of a court during the course of a case (see P.K. v. Finland, no. 30519/96, decision on admissibility of 9 July 2002). Obvious administrative or procedural factors may arise rendering a judge’s continued participation in a case impossible. Measures can be taken to ensure that the judges who continue to hear the case have the appropriate understanding of the evidence and arguments, for example, by making transcripts available where the credibility of the witness concerned is not in issue or, as the Government have submitted in this case, providing for a rehearing of the relevant arguments before the newly composed court.
The Court recalls that in this case the appeal court which heard argument as to the grounds of appeal on 13 and 14 January and 13 February 1998 had changed two of its three members when it re-convened to hear the case on 22 June 1999. The second appeal court in its judgment stated that since the composition had changed it “in effect reheard the appeal on the alibi ground, the fresh evidence ground and the ground based on the failure of the Crown to inform the defence about W.”. The applicant has disputed that this was in fact the case, stating that Lord Rodger told his counsel not to repeat what had already been said at the previous hearings and thus prevented counsel re-arguing certain points before the new judges. The High Court in the recent nobile officium petition rejected this same argument, noting that there was nothing else to support this serious allegation beyond the applicant solicitor’s “say-so” and that the opinion of the appeal court stated that the applicant’s counsel had not at the latest hearing challenged the account given by the Crown of what happened at the trial, implying that counsel had been given the opportunity to do so if he wished.
The Court notes that the applicant’s solicitor’s recollection of the events at the last appeal hearing is in direct conflict with the terms of the judgment. In the absence of any other support, it might be regarded that the latter, a judgment of three senior judges, might be expected to prevail. However, the Court recalls that on the applicant’s own account Lord Rodger told counsel that the judges had the transcript of the previous proceedings before them. Thus the judges did have access to the previous arguments made on behalf of the applicant. Furthermore, since the appeal court had already found that the failure to hear W. at trial required steps to be taken, the Court would consider that it was permissible for the appeal court, in the normal exercise of its discretion to govern its proceedings, to indicate to counsel that it was not necessary to address issues which it considered had become irrelevant or had already been accepted. The Court is therefore not persuaded in the circumstances of the case that the change in composition of the appeal court operated to deprive the applicant of a fair hearing before an impartial tribunal.
The Court concludes that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 34 §§ 3 and 4 of the Convention.
C. Concerning the length of proceedings
1. The parties’ submissions
The Government submitted that the period taken from 30 October 1995 to 22 July 1999 was reasonable in all the circumstances. The trial proceedings were complex and there were difficulties in obtaining samples from the applicant for forensic analysis. The appeal proceedings were also complex. Additional grounds of appeal were lodged and as a result the appeal court required to hear evidence, which required to be transcribed and reported upon. The appeal then had to be heard afresh on its merits. The applicant’s conduct had contributed to the time taken, namely his refusal to come to court on 20 December 1996 and the withdrawal of his counsel at the hearing set for 20 August 1998. Any instances of delay by the authorities were minimal and were for justifiable reasons.
The applicant submitted that the case was not particularly complex and that he did not delay forensic analysis as he had offered samples of hair, which were refused by the Crown. After conviction, his lawyers were not informed of the failure to cite the witness W. for some considerable time and any delay or complication arising from that derived from the trial Advocate Depute’s improper conduct in the first place. Thereafter, there was delay due to lack of availability of the Advocate Depute and the lack of time allocated in the appeal court. He did not refuse to go to the first listed appeal hearing, the prison unjustifiably preventing him from attending in civilian clothing. He claimed that there was no explanation for the delay of eight and a half months between the taking of W.’s evidence and the appeal hearing.
2. The Court’s assessment
The Court recalls that the criminal proceedings lasted three years eight months and 22 days, namely from the questioning of the applicant as suspect in the rape case on 30 October 1995 to the final decision on appeal on 22 July 1999. It considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaint concerning the length of proceedings;
Declares the remainder of the application inadmissible.
Vincent Berger Georg Ress
Registrar President