EHRM, 10-04-2012, nr. 46699/06, nr. 46099/06

The applicants, Mr Marcus Ellis, Mr Rodrigo Simms and Mr Nathan Antonio Martin, are British nationals who were born in 1980, 1984 and 1978 respectively. Mr Ellis and Mr Martin are currently detained at HM Prison Whitemoor, March, and Mr Simms is currently detained at HM Prison Full Sutton, York. Mr Ellis and Mr Simms were represented before the Court by McGrath & Co., a firm of solicitors based in Birmingham, and Mr Martin was represented by Jonas Roy Bloom, a firm of solicitors also based in Birmingham.

The applicants complained under Article 6 §§ 1 and 3 (d) of the Convention that the decision to grant Mark Brown anonymity and the admission of his oral evidence at trial violated their right to a fair trial, including their right to have examined a witness against them.

Article 6 §§ 1 and 3 (d) read as follows:

As the Court has consistently underlined, the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair (see, among other authorities, Van Mechelen and Others v. the Netherlands, 23 April 1997, § 50, Reports of Judgments and Decisions 1997-III; Gäfgen v. Germany [GC], no. 22978/05, § 162, ECHR 2010; and Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118, 15 December 2011).

The Grand Chamber has recently examined the requirements of Article 6 § 3 (d) in the context of absent witnesses in the case of Al-Khawaja and Tahery, cited above. It reiterated that the guarantees in paragraph 3 (d) are specific aspects of the right to a fair hearing set forth Article 6 § 1 which have to be taken into account in the assessment of the overall fairness of proceedings. In making this assessment, the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and, where necessary, to the rights of witnesses (at § 118 of its judgment. See also Doorson v. the Netherlands, 26 March 1996, § 70, Reports 1996-II).

As to the content of Article 6 § 3 (d), the Grand Chamber explained that it enshrines the principle that, before an accused can be convicted, all evidence against him must normally be produced in his presence at a public hearing with a view to adversarial argument. Exceptions to this principle are possible but must not infringe the rights of the defence, which, as a rule, require that the accused should be given an adequate and proper opportunity to challenge and question a witness against him, either when that witness makes his statement or at a later stage of proceedings (see Al-Khawaja and Tahery, cited above, § 118. See also Van Mechelen and Others, cited above, § 51).

In the context of absent witnesses, the Grand Chamber set out two considerations in determining whether the admission of statements was compatible with the right to a fair trial. First, it had to be established that there was a good reason for the non-attendance of the witness. Second, even where there was a good reason, where a conviction was based solely or to a decisive extent on statements made by a person whom the accused had had no opportunity to examine, the rights of the defence might be restricted to an extent incompatible with the guarantees of Article 6. Accordingly, when the evidence of an absent witness was the sole or decisive basis for a conviction, sufficient counterbalancing factors were required, including the existence of strong procedural safeguards, which permitted a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, §§ 119 and 147).

As the Grand Chamber indicated in Al-Khawaja and Tahery, the problems posed by absent witnesses, at issue in that case, and anonymous witnesses, as in the present case, were not different in principle. The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. That principle requires not merely that a defendant should know the identity of his accusers so that he is in a position to challenge their probity and credibility but that he should be able to test the truthfulness and reliability of their evidence, by having them orally examined in his presence (at § 127 of the judgment). However, the precise limitations on the defence's ability to challenge a witness in proceedings differ in the two cases. Thus absent witnesses present the particular problem that their accounts cannot be subjected to searching examination by defence counsel. However, their identities are known to the defence, which is therefore able to identify or investigate any motives they may have for lying. Anonymous witnesses, on the other hand, are confronted in person by defence counsel, who is able to press them, at times vigorously, on any inconsistencies in their account. The judge, the jury and counsel are able to observe the witnesses' demeanour under questioning and, by doing so, to form a view as to their truthfulness and reliability. In the case of a fully anonymous witness, where no details whatsoever are known as to the witness' identity or background, the defence faces the difficulty of being unable to put to the witness, and ultimately to the jury, any reasons which the witness may have for lying. However, in practice, some disclosure takes place which provides material for cross-examination. The extent of the disclosure has an impact on the extent of the handicap under which the defence is labouring.

It is unsurprising, given the underlying concern in both types of cases identified in Al-Khawaja and Tahery, that the Court has consistently taken a similar approach in the context of anonymous witnesses to that which it has followed in cases involving absent witnesses. Thus it has insisted upon good reasons for granting anonymity (see Doorson, cited above, § 71; and Van Mechelen and Others, cited above, § 61) and has made reference to the general need for counterbalancing factors (see Doorson, cited above, § 72; and Van Mechelen and Others, cited above, § 54) and to the ‘sole and decisive’ test (see Doorson, cited above, § 76; and Van Mechelen and Others, cited above, § 55). As to how the sole and decisive test should be applied to the oral evidence of anonymous witnesses, the Court considers that the guidance given by the Grand Chamber in Al-Khawaja and Tahery is equally applicable here (see generally §§ 130–147 of the Court's judgment).

Accordingly, in assessing the fairness of a trial involving anonymous witnesses called to give oral evidence before the court, this Court must examine, first, whether there are good reasons to keep secret the identity of the witness. In practice, in cases involving anonymous witnesses, the reason for seeking anonymity is likely to be fear of retribution, which the Court accepted as a good reason in the context of Al-Khawaja and Tahery. However, a subjective fear is not sufficient, and appropriate inquiries must be conducted by the trial court to determine whether there are objective grounds for the fear in question (see § 124 of the Court's judgment).

Second, the Court must consider whether the evidence of the anonymous witness was the sole or decisive basis of the conviction. As to the meaning of ‘sole’ and ‘decisive’ in the context, the Court refers to its analysis in Al-Khawaja and Tahery, cited above, § 131. Thus the word ‘sole’ means the only evidence against an accused and the word ‘decisive’ should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. In this regard, the stronger any corroborative evidence, the less likely that the evidence of the anonymous witness will be treated as decisive. As the Court noted in Al-Khawaja and Tahery, an appellate court in the United Kingdom is well placed to consider whether untested evidence could be considered to be the sole or decisive evidence against the defendant and whether the proceedings as a whole were fair (see § 135 of the judgment).

Third, where a conviction is based solely or decisively on the evidence of anonymous witnesses, the Court must subject the proceedings to the most searching scrutiny. It must be satisfied that there are sufficient counterbalancing factors, including the existence of strong procedural safeguards, to permit a fair and proper assessment of the reliability of that evidence to take place (see Al-Khawaja and Tahery, cited above, § 147).

The Court will therefore examine whether there were good reasons to permit Mark Brown to give evidence anonymously; whether his evidence was the sole or decisive basis for each applicant's conviction; and whether there were sufficient counterbalancing factors including strong procedural safeguards to ensure that the trial as a whole was fair within the meaning of Article 6 §§ 1 and 3 (d).

As to the reasons for admitting the anonymous evidence, the Court observes at the outset that the prosecution of the applicants was pursued against the backdrop of ongoing, gang-related violence and revenge killings (see paragraphs 3–5 above). Those who participate in such violence often rely on the fact that witnesses will be reluctant to testify against them for fear of the repercussions for their own safety and that of their families, and the silence of witnesses allows the perpetrators to act with impunity. The interest of the public and the victims in ensuring that such crime is prosecuted is beyond doubt. So too are the interests of those witnesses courageous enough to testify to be protected. Allowing witnesses to give evidence anonymously is an important tool in enabling prosecutions to be brought in respect of gang-related murders. The Court further observes that it was accepted in the proceedings before the trial judge that Mark Brown, like the other anonymous witnesses, feared retribution both personally and for his family if his identity were made known (see paragraphs 22 and 29 above). The Court sees no reason to find otherwise. It accordingly concludes that there were good reasons to permit Mark Brown to give evidence anonymously in the present case.

Turning to examine whether the evidence of Mark Brown was the sole or decisive evidence against the applicants, the Court observes that the prosecution did not seek to rely exclusively on his evidence in order to persuade the jury of the guilt of any of the applicants (see paragraphs 17–20, 44 and 46 above). Indeed, they argued that it would be possible for the jury to convict all three applicants without placing any reliance on Mark Brown's evidence, although this was strongly contested by the defence (see paragraph 50 above). They referred to call pattern evidence and cell site evidence to support their case against the applicants, as well as evidence relating to the purchase of the red Mondeo to support the case against Mr Ellis and Mr Martin and evidence of firearms residue in respect of Mr Ellis. In his ruling on the submission that there was no case to answer, the trial judge clearly considered that the evidence of Mark Brown was not the ‘sole’ evidence in the case (see paragraph 45 above). The Court of Appeal subsequently noted that the mobile phone evidence provided a ‘formidable’ case against the applicants (see paragraph 56 above). The Court is accordingly satisfied that the evidence of Mark Brown was not the sole evidence. However, on the question of the decisive nature of the evidence, the Court observes that the trial judge considered that he could not exclude the possibility that Mark Brown's evidence was decisive (see paragraph 45 above). The Court therefore accepts, like the trial judge, that there is a possibility that his evidence may have been decisive in respect of some at least of the applicants.

It is accordingly necessary to examine whether there were adequate counterbalancing factors in the case to permit a fair and proper assessment of the reliability of Mark Brown's evidence. In this respect, the Court observes, first, that the judge, the jury and the solicitors and counsel for prosecution and defence could all see and hear Mark Brown give evidence in court (see paragraph 41 above). They were therefore able to observe his demeanour in order to make their own assessment of the veracity of the account being given by him.

Second, the trial judge handed down no less than three rulings on the question of Mark Brown's anonymity and the admission of his evidence (see paragraphs 22–36 and 39 above), one of which was the subject of an interlocutory appeal in the Court of Appeal (see paragraph 37 above). In the context of his rulings, the judge considered carefully the support for Mark Brown's evidence, the extent of the disclosure in the case and the need to protect the applicants' right to a fair trial. Although there were attacks on Mark Brown's credibility, the judge was satisfied that there was some support for his evidence, and in this regard the decision to allow Mark Brown's evidence can be contrasted with the trial judge's refusal to permit anonymous evidence from the witness Jones, whose credibility he considered to be so damaged that despite the opportunity afforded for cross-examination by the disclosure made in his case, it would not be safe to permit him to give evidence anonymously (see paragraph 30 above). As the judge consistently explained, he kept his anonymity ruling under review (see paragraph 32 above), which was demonstrated by the fact that he revisited it twice upon the invitation of the defence.

Third, the judge was clearly alive to the need to approach the anonymous evidence with caution. He explained in his ruling in respect of the submission that there was no case to answer that unless the jury concluded that there was independent evidence supporting the evidence of Mark Brown and implicating a particular defendant, no case could be left to the jury in respect of that defendant (see paragraph 45 above). He emphasised that the independent evidence would need to be cogent, and was of the view that there was cogent evidence in the cases of the three applicants (see paragraph 46 above). The strict application of this test by the trial judge led to his directing the jury to acquit B., in respect of whom he considered that such independent evidence did not exist (see paragraph 47 above). The power of the judge to direct an acquittal at this stage was in itself an important safeguard (see, mutatis mutandis, Al-Kawaja and Tahery, cited above, § 149 in fine).

Fourth, careful directions were given to the jury as to how they ought to approach the evidence of Mark Brown. Prior to his taking the witness stand, the jury were advised that the fact that he was giving evidence anonymously had a significant impact on the defence and restricted the conduct of their cases. The jury were expressly reminded that because the defence did not know who he was, they were unable to put to him any general matters going to credibility, and in particular possible personal motives he might have for implicating them in the events. In short, they were told that the limitations on the defence were considerable and that they should take this into account in assessing the evidence (see paragraph 40 above). At the conclusion of the evidence, before the jury retired, the trial judge further directed the jury in the context of his comprehensive summing up. He warned them about the dangers inherent in identification evidence and highlighted in particular the weak aspects of the identification evidence given by Mark Brown (see paragraph 48 above). He emphasised that before they could rely on anything Mark Brown said, they had to be satisfied that he was a credible witness; if they were not sure of that, the judge told them that they had to ignore his evidence (see paragraph 49 above). He directed them to consider the extent to which there was other evidence of the applicants' participation in the joint enterprise, aside from what Mark Brown said, and told them clearly and in terms that if they were not sure whether there was such other evidence, they had to acquit. Even if they were satisfied that there was independent evidence implicating a particular defendant, if they considered that they could not rely on Mark Brown at all then, the judge told them, they could decide guilt or innocence solely on the basis of the other evidence in the case. He used the example of B.'s acquittal to illustrate the dangers of Mark Brown's evidence (see paragraphs 50–51 above).

Fifth, there was a significant amount of disclosure in the present case which provided extensive material for cross-examination. By the time of the judge's first ruling on anonymity, Mark Brown's gang background and his motive for lying were clear (see paragraphs 9–11 above). He had expressly admitted that he held a grudge against some of the defendants in the case. In concluding that Mark Brown could give evidence anonymously, the judge referred to the ‘extensive disclosure’ in the case, which he considered permitted ‘very extensive and detailed’ cross-examination. Subsequent disclosures highlighted inconsistencies in the previous comments made by Mark Brown (see paragraph 38 above). In revisiting his decision to permit anonymity, the judge again considered the extent of cross-examination which would be possible, noting that the defence could mount a ‘formidable attack’ on Mark Brown's credibility (see paragraph 39 above).

Finally, there is clear evidence in the present case that the defence were able to challenge effectively the reliability of the evidence given by Mark Brown. The disclosed material was used by the defence to undermine the version of events given by Mark Brown and to present a case to the jury that he was lying for personal reasons. The trial judge noted in his ruling on the submission that there was no case to answer that the substantial disclosure had formed the basis of a sustained and effective cross-examination, following which Mark Brown's credibility had been severely dented. The judge also commented that Mark Brown had told many lies, which were subsequently set out in a document provided to the jury (see paragraph 44 above). The Court of Appeal referred to the full disclosure in the case and the extensive cross-examination, concluding that Mark Brown's credibility was ‘severely damaged’ (see paragraph 59 above).

The Court is accordingly satisfied, in the light of the trial judge's impeccable approach to the question of anonymity, the admission of evidence and the direction of the jury, as well as the extensive disclosure which had occurred in the case which permitted extensive and effective cross-examination of Mark Brown, that the jury were able to conduct a fair and proper assessment of the reliability of Mark Brown's evidence in the applicants' trial.

Having regard to the way in which evidence was taken in the proceedings as a whole, the Court concludes that there were sufficient counterbalancing factors to ensure that the rights of the defence were not restricted to an extent incompatible with the guarantees of Article 6 §§ 1 and 3 (d) of the Convention. Consequently, there is no appearance of a violation of these provisions of the Convention and the applications must accordingly be dismissed as manifestly ill-founded and therefore inadmissible under Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Decides to join the applications;

Declares the applications inadmissible.

Lawrence Early

Registrar

Lech Garlicki

President