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FOURTH
SECTION
CASE OF
EBANKS v. THE UNITED KINGDOM
(Application
no. 36822/06)
JUDGMENT
STRASBOURG
26 January 2010
This judgment will become
final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Ebanks v. the
United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Giovanni Bonello,
President,
Nicolas Bratza,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Ledi Bianku,
Nebojša
Vučinić, judges,
and Fatoş Aracı,
Deputy Section Registrar,
Having
deliberated in private on 5 January 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 36822/06, ) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a
Caymanian national, Mr Kurt Ebanks (“the applicant”), on
23 August 2006.
- The
applicant was represented by Mr R. McMillan, a lawyer practising in
Grand Cayman. The United Kingdom Government (“the Government”)
were represented by their Agent, Ms H. Upton, Foreign and
Commonwealth Office.
- On
22 January 2009, BAILII: [2009] ECHR 183 the Vice President of the Fourth Section decided to
communicate the application to the
Government. It was also decided to examine the merits of the
application at the same time as its admissibility (Article 29 §
3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The background facts
- On
the morning of 18 January 2000, the body of Curtis Seymour,
a taxi driver, was found in a refuse disposal area in Grand
Cayman. He had been stabbed to death. His van, which he used as a
taxi, was found nearby with blood on the interior upholstery. An
examination of the van revealed a palm print on the passenger door
frame which matched that of Mr Brian Powell, who at that
time was living with the applicant. Mr Powell's fingerprint was
also found at the gate of the refuse disposal area together with
another set of blood-stained fingerprints.
- On
5 February 2000, Mr Powell was arrested. When interviewed, he denied
any personal knowledge of the murder. On 9 February 2000, he made a
statement under caution. He claimed that the applicant had developed
a plan to rob a taxi driver and that Mr Powell had accompanied him
for this purpose. They had travelled in a taxi driven by Mr Seymour.
When the taxi stopped, the applicant had held Mr Seymour from behind
and demanded money. Mr Powell had searched for money and the
applicant had produced a knife from his back pocket and stabbed Mr
Seymour in the chest. The applicant had then dragged the body to the
refuse disposal area and Mr Powell had opened the gate. Having moved
the body, the applicant threw the knife into some bushes before
driving the taxi to a swamp area where he tried to dispose of the
vehicle. The taxi became bogged down. Mr Powell and the
applicant subsequently removed their blood-stained clothing and hid
it in some bushes.
- In
the meantime, on 4 February 2000, the applicant was arrested in
respect of an unrelated offence of theft. It subsequently became
apparent that the applicant was involved in a number of other
offences against property and offences of dishonesty. He was held
without charge for the purposes of investigation between 4 and 7
February 2000. He was subsequently held in custody without charge
between 7 and 17 February 2000 for investigation for
murder.
- On
9 February 2000, the applicant was first questioned under caution
after being shown a copy of Mr Powell's statement. The applicant
denied Mr Powell's version of events and made no further comments to
subsequent questions put to him.
- On
11 February 2000, Mr Powell took the police to the area where he
claimed the knife and blood-stained clothes had been hidden. During
the search, the police recovered a knife and several items of
blood-stained clothing. Mr Seymour's DNA was subsequently found
on an item of clothing belonging to Mr Powell.
- On
16 February 2000, Mr Powell was again questioned under caution. He
confirmed the accuracy of his statement of 9 February 2000 and added
that the applicant had used his right hand to stab Mr Seymour and
that he, Mr Powell, had touched the deceased while searching for
money. He identified the knife recovered by the police as the
murder weapon.
- On
17 February 2000, Police Constable Angela Campbell and Detective
Constable Wayne Powell (“the police officers”)
interviewed the applicant a second time. He was asked whether he
would answer questions, to which he replied that he would not. At
that stage, Detective Powell reminded the applicant that he did not
need to say anything. The applicant was given no formal caution. The
police officers later testified that the applicant then asked them
whether he was being recorded, to which they replied in the negative.
They also testified that the applicant asked Police Constable
Campbell to open her jacket in order to demonstrate that she was not
carrying a recording device, which she did.
- The
police officers alleged that the applicant then began to speak about
God and about having had a difficult past. Police Constable Campbell
told him that God could help him have a better life. At that point,
the applicant allegedly sighed and hung his head. He then said that
Mr Powell's statement was three-quarters lies and proceeded to
give his own version of events. He said that if he spoke the truth he
would go to jail, but he wanted to leave a free man as he did not
kill Mr Seymour. He said that the “mental Lahee patient”
(a reference to Mr Powell) had killed Mr Seymour. He claimed
that on the night in question, he had been looking for women but that
Mr Powell had dragged him away with him. They were picked up by Mr
Seymour, whom Mr Powell instructed to drive to an address which
caused the applicant surprise. When the taxi stopped, Mr Powell
grabbed Mr Seymour from behind and demanded money. The applicant
found 200 dollars in the ashtray. The applicant was armed with a
knife and Mr Powell asked for the knife because Mr Seymour had
seen their faces. The applicant gave Mr Powell the knife and Mr
Powell stabbed Mr Seymour, using both hands. Mr Powell then
tried to pull the deceased out of the van but was unable to do so. He
told the applicant to get rid of the knife by throwing it in the
bushes. The applicant then undid Mr Seymour's seatbelt and Mr Powell
pulled the deceased from the van and, after searching the body,
dragged it to the dumpster. The applicant described how he had driven
the van to the swamp area and tried to dispose of the vehicle by
putting a rock on the accelerator, but this was unsuccessful. He
threw the car keys into the bushes because he thought his
fingerprints would be on them. As the applicant and Mr Powell left
the scene, the applicant saw that Mr Powell had Mr Seymour's mobile
telephone. Mr Powell wanted to use the phone to ask someone to come
and collect them, but the applicant told Mr Powell that he was crazy
as the police would be able to trace the call. Mr Powell threw
the mobile telephone away. The applicant removed his shirt and jacket
and gave them to Mr Powell, who threw them away. They were
subsequently met by a friend of Mr Powell, who gave the latter a
shirt which he in turn gave to the applicant.
- The
police officers alleged that the conversation with the applicant
lasted about one hour. No notes were made during the course of the
interview and the applicant asked that what he had said should not be
put into writing as he wanted some time to think about it. He wanted
to tell the truth but did not want to go to prison for something he
did not do. The police officers testified that, immediately
afterwards, they made witness statements as to their recollections of
the conversation with the applicant. The two statements were almost
identical. They were never shown to the applicant. The applicant
denies having made any statement to the police officers.
- On
19 January 2000, a post-mortem examination revealed that Mr Seymour
had suffered four stab wounds: two in the neck area and two on the
front of the chest. It was suggested that the nature of the injuries
and the lack of defence wounds on the arms or hands of the deceased
indicated stabbing from behind.
- On
21 February 2000, Mr Powell made another statement in which he
described the events surrounding the murder in some detail.
B. The domestic proceedings
1. The proceedings before the Grand Court
- The applicant and his co-accused, Mr Powell, were
tried for murder before the Grand Court sitting – at the
defendants' request – without a jury. The applicant was
represented by two counsel. Leading counsel was an experienced
criminal practitioner who had travelled from London to the Cayman
Islands for the applicant's trial.
- At
trial, Mr Powell amended his version of events. He admitted that he
had stabbed Mr Seymour but claimed that it was in self-defence and
that he had been alone in the taxi with Mr Seymour at the time. He
alleged that his original statement implicating the applicant in the
murder had been invented out of revenge following a misunderstanding
regarding the theft of drugs which had been in Mr Powell's
possession. The only evidence against the applicant was therefore the
alleged statement to the police officers.
- At
a first voir dire on 15 and 16 January 2001, the applicant
challenged the admissibility of the evidence of the police officers
as to his alleged statement. The challenge was made on the grounds
that (i) no formal caution had been given and (ii) the manner in
which the statement was taken was unfair. The police officers gave
evidence and were cross-examined. The defence called no
evidence.
- A
second voir dire was subsequently held on the admissibility of
the alleged statement to the police officers. The judge noted that
such a course of action was unusual but acceded to the request for a
further voir dire in light of the seriousness of the charge.
At the hearing, the applicant's lawyers alleged that the statement
had been obtained through oppression. Again, the applicant did not
testify.
- The record of the voir
dire hearings showed that the trial judge had positively
encouraged the applicant to give evidence, but he did not do so.
At no stage in either voir
dire did the applicant's lawyers put
to the police officers the fact that the applicant denied having made
the statement.
- In
his ruling on the admissibility of the alleged statement, the judge
found that, while it would have been appropriate for a further
caution to have been given on 17 February, it was not a requirement.
He emphasised that at the start of the conversation the officers did
not have enough evidence to charge the applicant with murder. He
further concluded that there was nothing to suggest that the manner
in which the statement was taken was unfair and that there was no
evidence that any inducement had been offered to the applicant to
encourage him to make the alleged statement. He said:
“14. There is no direct evidence here of why Mr
Ebanks spoke to the officers. I infer that he believed that what he
said could not be used as evidence if it was not recorded or written
down as he spoke. I also infer, as I have indicated, that he believed
that it would be easier to deny it later if no record was made of it.
I infer that he spoke partly because of the need to unburden himself,
due to remorse and his religious beliefs.”
- As
regards the allegations of oppression, the judge found that even
assuming, without finding, that the detention without charge was
unlawful, that in itself was insufficient to indicate that the
applicant had made his statement as a result of oppression. He noted
that:
“32. ... [The applicant] showed considerable
presence of mind on February 17th. For example, he
insisted that the conversation not be tape-recorded. He asked Det.
Const. Campbell to open her jacket for the purpose of proving to him
that she had no concealed tape recorder on her person. Many of his
answers show a considerable mental acuity, which is the opposite of
the state we associate with oppressive conduct.”
- The judge observed, in the course of submissions, that
he had heard nothing to indicate that the applicant's detention had
had any adverse affect on him. He indicated that he would normally
expect to see evidence of a psychiatrist or psychologist as to the
effect of oppressive conduct and quite likely evidence from the
accused himself. Shortly after this observation, counsel for the
applicant sought a short break in order to allow him to seek
instructions from the applicant. When proceedings resumed, counsel
continued his argument, in the course of which he agreed that “there
is no positive evidence by the defence as to the effect of the
oppression”. Accordingly, the judge found the statement to be
admissible as evidence in the main trial, concluding that no
oppression had been demonstrated.
- Following the ruling in the voir dire, the
examination in chief and cross-examination of the police officers
were adopted for the purposes of the main trial proceedings. At that
time, Counsel for the applicant said:
“My Lord, may I just take a moment? ... My Lord, I
just want to make sure my client understands that we were adopting
cross-examination from earlier ... My Lord, in light of that, I have
no further questions.”
- The applicant did not give evidence at his trial. His
allegation that he did not make the disputed confession was not put
before the court. The transcript of the trial shows that on
several occasions, his lawyer took time to ensure that the applicant
understood and agreed to various steps being taken on his behalf.
- The
prosecution case included evidence that the deceased had been carried
from the vehicle to the location where his body was found by two
people, and dragged for some distance. It also included a statement
from the applicant's former girlfriend to the effect that in January
2000 the applicant had said that he knew about a murder and a
statement dated 8 March 2000 from the applicant's cousin to the
effect that the applicant had made incriminating statements and that,
following the murder, the applicant and Mr Powell had planned to
leave Grand Cayman and go to Honduras. At trial, the applicant's
cousin claimed that his statement was untrue and had been made under
the influence of alcohol and cocaine.
- Both
defendants were convicted by the judge of murder on 26 January
2001 and sentenced to life imprisonment. The judge, in a fully
reasoned judgment, found that Mr Powell had administered the knife
wounds; that his evidence that the applicant was not present was
untrue; and that the applicant's confession was true.
2. The proceedings before the Cayman Islands Court of Appeal
- On
9 February 2001, the lawyers who had conducted the trial on behalf of
the applicant gave notice of an application for leave to appeal
against the conviction on the grounds that it was unsafe and
unsatisfactory. They indicated that full written grounds would
follow.
- At some later date, the applicant appointed a new
lawyer and, on 22 October 2001, he swore an affidavit
regarding the conduct of Mr St John Stevens and Mr McGrath,
his lawyers at trial. In his affidavit, he argued that:
“11. When the voir dire started concerning my
statement, I was expecting Mr St John Stevens to charge
right at the two police officers who were lying and try to discredit
them. But he didn't and he kept telling me, 'This way is better. They
gave you a truncated form of your rights.' He also kept saying to me,
'You've told me that you did not make the statement, but I'm going to
attack it this way. They kept you in custody too long without
charging you. I'll get the statement thrown out because of oppressive
conduct.' Never once did he put to the officers the fact that I
didn't make the statement at all. I sat in the court and listened to
the two officers' lies and kept thinking that I would have my chance
to talk later. At all times I wanted to testify and tell the judge
under oath what I have stated in this affidavit. Then the time came
and I was talked out of it by the two lawyers. They made me think
that they knew best and so I put all my trust in them.
12. During the testimony of Angela Campbell, when I
heard her lying about a number of things, I got upset and I raised my
hand and said, 'I want to testify. I want to tell my side of the
story.' Mr Stevens jumped up and rushed back to me and said, 'Be
careful what you're doing, Kurt. They haven't proven anything against
you. They're not hurting you, they're not hurting you, so relax and
behave and keep quiet. And don't put yourself in the stand and give
them a chance to cross-examine you.' I told him, 'I don't have
any problem going on the stand. I'm not guilty of anything. I don't
have anything to hide.' He told me that if I took the stand and
rebutted whatever the officers were saying the judge would more than
likely believe them over me and in doing so my ground of appeal
'would be thrown out the window'. If I didn't testify, they
would have a chance for an argument on the appeal. Mr Stevens
said that was the best way to approach the case.
13. At lunch time on that day, Mr McGrath came to see me
about taking the stand. Mr McGrath did not actually take much part in
my trial. He was not in court every day and it was Mr St John Stevens
who conducted my defence. On this day, Mr McGrath gave me the
impression that Mr Stevens had sent him to talk to me. He said, 'This
is the turning point in your case. We have to make a tactical
decision. I know you were adamant from day one that you gave no
statement to the police officers.' I said, 'Yes, sir.' Then he said,
'It will be better to approach the case this way since nothing is
damaging you.' He just talked and talked and I got confused and
thought, 'Well, he's the lawyer', and he talked me out of testifying.
Because of that, the judge never got to hear what was the most
important thing and that was that those two police officers
fabricated a statement that I never made to them. Because of that
statement, I have been convicted of a murder I did not commit and had
nothing to do with.”
- On
24 October 2001 the applicant's lawyer gave notice that the applicant
was applying to the Court of Appeal to have the affidavit received in
evidence.
- The
applicant issued a release of privilege, thereby releasing his trial
lawyers from the lawyer/client privilege in relation to their
communications in respect of the trial proceedings. His trial lawyers
subsequently also swore affidavits.
- Mr McGrath filed his affidavit on 15 November 2001,
replying that:
“4. From a very early stage the appellant's
instructions were firm and unequivocal in a number of regards:
(i) He would contest the allegation;
(ii) He would elect trial by judge alone;
(iii) He disputed the making of the alleged confession;
(iv)
At no stage in the proceedings would he give evidence.
5. The appellant alleges that his case was presented in
defiance of his instructions. This is untrue. The conduct of the case
at trial was entirely consistent with the appellant's particular
instructions. Whilst it is correct to say that no positive case was
ever put in relation to 4(iii) above this was upon the appellant's
instructions.
6. The appellant's instructions that he would not give
evidence in the proceedings remained a central tenet of his position
throughout.
7. The consequences of his not giving evidence were
discussed in great detail with the appellant, both prior to the
arrival of leading counsel and in the presence of leading counsel.
The decision not to give evidence in the trial created tactical
considerations and decisions for the appellant.
8. I explained to the appellant and advised him how this
decision might affect his trial. I was present when leading counsel
advised the appellant how this might affect his trial. I am satisfied
that the appellant understood the advice and that he understood the
implications of his decision not to give evidence.
9. The appellant chose to challenge the alleged
confession on the basis of its admissibility. Upon instructions it
was argued on the voir dire that the Crown could not satisfy the
tribunal to the requisite criminal standard that what the police
officers alleged had been said had been said voluntarily. I am
satisfied that the appellant understood the advice offered and the
instructions he was providing in relation to the conduct of the voir
dire.
10. On the voir dire the learned trial judge ruled
against the appellant and in favour of the Crown in relation to the
submission that the alleged confession should be excluded. The
potential consequences of such ruling had been discussed and were
discussed with the appellant before and during the trial. Because he
would not give evidence the appellant chose not to put his case about
not making the confession to the police officers in the course of the
trial proper. This was a topic which was discussed with him in some
detail. I am satisfied that the appellant was aware that, having
provided such instructions, the only triable issue for him would be
the admissibility of the alleged confession.
...
13. Paragraph 11 of the affidavit is not true. Mr St
John Stevens was instructed to challenge the admissibility of the
alleged admission on the voir dire. At no stage did the appellant
indicate to me any desire to testify in the proceedings. I did not
'talk him out of it.' I explained to the appellant on many occasions
that the decision whether to give evidence or not was his and his
alone. I explained that he could not be compelled to give evidence,
neither could anyone stop him from giving evidence.
Mr St John Stevens did not, as far as I am able to
say, put any undue influence or pressure upon the appellant not to
give evidence.
...
15. I did have many conversations with the appellant in
the cells during the course of his trial. Mr St John Stevens did
communicate to me that the appellant had become upset in the dock
during the proceedings and there had been a short adjournment.
The words which the appellant attributes to me in paragraph 13
of his affidavit are inaccurate in detail and in substance. At no
stage did I say or would I say 'We have a tactical decision to make.'
I made it clear at all stages that the decision about testifying, as
well as other substantial decisions were matters for the appellant
and not matters for me or for leading counsel. I did not talk the
appellant out of testifying. There was never any change of
instructions in relation to the appellant's decision not to give
evidence, nor in relation to the way he wished his case to be
conducted.”
- Mr St John Stevens filed his affidavit on 21 November
2001. In it, he said:
“2.1 The appellant's case was presented in
accordance with and upon clear and unequivocal instructions.
2.2 I am satisfied that at each material stage both
before and during the trial the appellant's instructions that he
would not himself give evidence was unequivocal.
2.3 I am satisfied that those instructions were given
and confirmed after the ramifications of not giving evidence, whether
it be during the voir dire or the trial, had been explained in detail
by myself and David McGrath both together and independently, and that
the appellant fully understood that advice.
2.4 The ramifications of not giving evidence was
discussed and advice given in the context of the voir dire, the trial
and potential grounds of appeal.
The appellant's instructions were that the Crown should
be put to proof as to establishing that the confession in issue was
made voluntarily and that no positive case would be put over and
above this issue.
...
These 'bedrock' instructions did not change. Up to the
time of verdict, the learned judge 'retired' for three days to
consider his judgment, the appellant was quite satisfied with the
conduct of his defence and understood the avenue of appeal. I am
satisfied that the appellant's case was presented in accordance with
and upon clear and unequivocal instructions. I am satisfied that the
instructions were given upon careful consideration both before and
during the trial and that advice was fully understood. I am satisfied
from all I have seen, heard and read that the appellant's instructing
attorney acted at all times with and upon proper instructions.”
- The
applicant argued before the Court of Appeal that: (i) the sole
evidence against him was the alleged statement of 17 February 2000;
(ii) the alleged statement was not reduced to writing and signed by
him; and (iii) he had continually and consistently instructed each of
his defending counsel that he had not made the alleged statement and
that it was a fabrication by the police officers. Accordingly, he
argued, the failure of his trial lawyers properly to put his case to
the court had denied him a fair trial.
- On 12 April 2002, the court dismissed the appeal. It
refused permission for viva voce evidence to be heard from the
applicant to supplement his affidavit, noting that:
“57. ...He had filed no affidavit in response to
those from his former attorneys, although there was an opportunity
for him to do so had he so wished.”
- As to the applicant's decision not to give oral
evidence at trial, the court considered that as a matter of best
practice, lawyers should
record in writing their clients' wish not to testify in the
proceedings. However, where no record was available, the court could
nonetheless come to a decision as to whether the defendant in
question was given advice from counsel and whether, after such
advice, he had decided of his own free will not to testify.
In the applicant's case, the court noted that:
“62. Ebanks was being represented by experienced
attorneys. Mr McGrath has sworn that Ebanks gave clear instructions
from the inception of the case that he would not give evidence at any
stage of the proceedings, and that he conveyed those instructions to
Mr Stevens. Both Mr McGrath and Mr Stevens have sworn that they over
and over again gave detailed advice to Ebanks as to the ramifications
of his decision not to give evidence and of the possible consequences
and that Ebanks understood those instructions. Mr McGrath said that
he met with Ebanks several times in his cell and Mr Stevens said that
his first conference with Ebanks was a week before the trial
commenced. This was not a case in which the defendant did not have
access to his counsel and only saw them briefly before his trial. On
the affidavits before us, we are completely satisfied that Ebanks
took a deliberate, constant and continuous decision not to give
evidence and instructed his counsel accordingly.”
- As to the failure of the applicant's lawyers to put
forward a positive defence to the effect that the applicant disputed
making the alleged confession, it held that:
“63. It would have been most improper for defence
counsel to have suggested to [the police officers] that they were
lying and had fabricated the account that they were giving unless
defence counsel were prepared to call Ebanks as a witness. This much
would have been clear to Ebanks and that is why his defence was
conducted in a way that no positive case was put forward on his
behalf.”
3. The proceedings before the Privy Council
- The
applicant subsequently appealed to the Privy Council.
On 27 March 2006, BAILII: [2006] UKPC 16, the Board dismissed the appeal by a
majority of three judges to two. Delivering the leading judgment for
the majority, Lord Rodger of Earlsferry concluded that:
“15. ... while Mr McGrath specifically
acknowledges that from the outset the appellant's position was that
he disputed making the statement to the police officers, Mr St John
Stevens does not address that issue. To that extent there could be
said to be a difference between the two principal affidavits for the
trial lawyers. The significance of that difference is less than
might at first sight be thought, however, since, according to Mr
McGrath, even though that was the appellant's position, he was
equally adamant from the outset that at no stage in the proceedings
would he give evidence. In that situation, according to Mr McGrath,
while it is correct to say that no positive case was ever put in
relation to the allegation that he had not made the statement, this
was upon the appellant's instructions. This is consistent with Mr St
John Stevens' position that the appellant's instructions were that no
positive case would be put over and above the issue of the
voluntariness of the confession.”
- Lord Rodger emphasised that a decision by an accused
not to give evidence at his trial was “of such potential
importance” that it should be recorded in writing. However,
Lord Rodger declined to find that the failure of the applicant's
solicitors to produce a written record of the applicant's decision
meant that the court should give the applicant the benefit of the
doubt and accept his version of events. He considered that in some
cases, the appeal court may wish to hear evidence from the parties
but that there may be cases where the court felt able to resolve the
dispute without hearing evidence.
- In the present case, he concluded that:
“20. So far as the matter of Mr Ebanks not giving
evidence is concerned, the only question is whether counsel in effect
forced him, against his will, not to go into the witness box. Their
Lordships notice that there is nothing to suggest that Mr Ebanks made
any protest about this during the trial. Nor is there anything to
suggest that, even shortly after the trial, he complained to any
fellow prisoner, or court official or prison officer. The first time
that such a complaint emerges is some nine months later in his
amended grounds of appeal dated 24 October 2001 and in his affidavit
dated two days earlier. Of course, the delay in making the complaint
does not show that it is unsound, but it is a factor to be taken into
account. An appeal court must always bear in mind the distinct
possibility that such a complaint may be fabricated – indeed
that is precisely why there should be a contemporaneous written
record of the decision that the defendant is not to give evidence.
- Referring to the record of the trial proceedings, he
highlighted the care taken by Mr St John Stevens throughout the trial
to ensure that the applicant understood the proceedings, noting the
following:
“21. More importantly, however, the appellant's
allegation is really that, on this critical matter, as well as on the
matter of cross-examining the police witnesses, counsel overrode his
instructions. But that allegation is wholly inconsistent with the
picture which emerges from the record of the trial itself where on
several occasions Mr St John Stevens took time to ensure that the
appellant understood and agreed to the step which was being taken on
his behalf. . In para 6 of this judgment their Lordships have already
drawn attention to one such occasion when, at the conclusion of the
second voir dire, Mr St John Stevens took time to explain to Mr
Ebanks that the cross-examination in the voir dire would, in effect,
be held repeated in the main trial. Earlier, during the evidence of
Julie Harris, Mr St John Stevens had asked for a break of five
minutes to seek clarification of a point – although this is not
said explicitly, it appears likely that the clarification was to come
from his client.
...
23. On another occasion, when
prosecuting counsel announced that his next witness was going to be
Colin Pryce, Mr St John Stevens asked whether he might just take
instructions from his client – and was allowed to do so. Later
on, after the appellant's brother, Dwene Ebanks, had given his
evidence in chief and had apparently dealt with certain matters which
had not been mentioned in his statement, counsel for Powell asked for
a moment to consult his client and Mr St John Stevens asked if he
could take instructions at the same time.
24. It is also noticeable that when the judge reserved
his judgment and proposed to give it at a time after Mr St John
Stevens was due to fly back to the United Kingdom, Mr St John Stevens
none the less recognised that he should be present. And, in the
event, he was indeed present at the short hearing even though, of
course, there was little which he could say on behalf of Mr Ebanks
when he was convicted of murder.
- He concluded:
25. These passages in the record suggest that, so far
from being uncaring or cavalier about Mr Ebanks' views, instructions
and interests, Mr St John Stevens was careful to consult his client
whenever appropriate. It would make absolutely no sense to suppose
that when he had taken care in these relatively minor matters, he had
simultaneously been riding roughshod over Mr Ebanks' views as to
whether he should give evidence. Moreover, it is extremely difficult
to see why counsel would have deliberately flouted a desire on Mr
Ebanks' part to give evidence when the lack of any evidence from him
was likely to cause potential difficulties, especially in the voir
dires. In these circumstances, their Lordships are satisfied that,
although counsel culpably failed to have the matter recorded at the
time, they can accept the evidence of Mr McGrath and Mr St John
Stevens that they were following Mr Ebanks' instructions in not
calling him to give evidence.”
- As to the second complaint regarding the failure of
the applicant's lawyers to put his denial that he made the statement
to the police officers, the Board disagreed with the Court of Appeal
and the trial court and found that it was counsel's duty to put the
defendant's case, even where he did not intend to call evidence to
support it. Lord Rodger noted that:
“29. ... If ... the police officers have indeed
been lying, there can be no proper objection to cross-examination
which successfully exposes those lies, even if the defendant does not
subsequently go into the witness box to give positive evidence about
those lies. On the other hand, the reality is that, if the police
officers robustly reject the imputations against them, such
allegations will usually carry little weight with the jury unless the
defendant backs them up by giving evidence. And, as Waller LJ
pointed out, if the defendant fails to do so, the judge will be fully
entitled to make a strong comment on that failure.
30. ... Even if Mr Ebanks had all along said that he
would not give evidence, that would not, of itself, have been a
reason why counsel could not have cross-examined the police officers
to the effect that he had not made the statement, if Mr Ebanks'
instructions were that counsel should do so. Indeed, as a matter of
proper professional practice, he would still have been bound to do
so.”
- However, he concluded that:
“31. The point does not actually arise in this
case, however, since there is nothing in the affidavits of counsel to
suggest that Mr St John Stevens proceeded as he did because he
thought that it would have been professionally improper to suggest to
the police witnesses that Mr Ebanks had not made the statement when
Mr Ebanks was not going to give evidence to back it up. So the Court
of Appeal really proceeded on a basis for which there is no
foundation in the attorneys' affidavits. In fact, the position taken
by Mr McGrath and Mr St John Stevens in their affidavits is simply
that the allegation was not advanced because Mr Ebanks instructed
that it should not be.”
- Considering the applicant's allegation that counsel
had defied his instructions in not challenging the evidence of the
police officers, Lord Rodger preferred the evidence of the trial
lawyers:
“32. Again, their Lordships note that this
allegation did not surface until some eight months after the trial.
And, again, the Board notes that the allegation is hard to square
with the obvious care taken by Mr St John Stevens to obtain his
client's instructions at various points throughout the trial.
Moreover, Mr Ebanks advances no reason why counsel should have chosen
to flout his instructions on this matter, which by no means
simplified the presentation of the defence case, especially in the
voire dires. On the other hand, the line which counsel adopted in the
voir dires was consistent with the instructions which they say that
he had given them: standing those instructions, the only thing that
they could try to do was to have the statement excluded on the
grounds which Mr St John Stevens advanced and argued with great care,
as is obvious from the transcript of the submissions made to the
judge.”
- Lord Rodger concluded:
“33. It is not possible to say why Mr Ebanks
decided not to give evidence and to limit the scope of counsel's
attack on the police evidence. It may be that he was not confident of
withstanding cross-examination by prosecuting counsel. It may be that
he thought it better tactically not to challenge the evidence of the
police officers head-on. It may be, as Mr Perry suggested, that his
overall strategy was to keep as low a profile as possible and to rely
on Powell's evidence that Ebanks was not present when he killed
Curtis Seymour. This would be consistent with the way in which
counsel for Powell went first in cross-examination, even though Mr
Ebanks was named first on the indictment. Whatever the reasons may
be, their Lordships are satisfied that Mr St John Stevens
acted in accordance with his client's instructions at the time.
Having been convicted, Mr Ebanks may now have come to believe that
his instructions were different. But there is no adequate basis for
holding that counsel acted improperly. On the contrary, the record
suggests that, as the judge considered, like the other counsel Mr St
John Stevens had paid diligent attention to the preparation of the
case.”
- In his dissenting judgment, Lord Steyn considered the
Court of Appeal's decision to refuse viva voce evidence on the
ground that the applicant had not lodged a response to the affidavits
of his former solicitors to be “astonishing”. He noted
that Mr McGrath's affidavit was served eight days before the appeal
hearing, and Mr St John Stevens' only two days before the appeal
hearing. He found that:
“38. ... In any event, at the very least on the
affidavit evidence there was a clear dispute of fact. So far as there
was ambiguity it was due to the fact that Mr St John Stevens
(unlike Mr McGrath) did not directly address the core point in the
Appellant's affidavit i.e. that he told the attorneys that he never
made any confession.
39. In these circumstances the Court of Appeal erred in
refusing to hear viva voce evidence, and the decision of the
Court of Appeal should be quashed for failure to accord the Appellant
due process.”
- As
to the question whether the Court of Appeal could have declined to
hear oral evidence on the ground that it would make no difference,
Lord Steyn said:
“40. ... To have decided the case on such a basis
would have been unfair and contrary to due process. After all, it is
entirely possible (and even likely) that Mr St John Stevens
would have made the same core concession that Mr McGrath made, viz
that the Appellant insisted that he made no confession to the police.
41. It is necessary to consider the consequence of the
hypothesis that the Appellant's core allegation in his affidavit, viz
that he told counsel that he did not make the confession, is or may
be correct. On this basis, trial counsel should have cross examined
the police to this effect despite the fact that it had been decided
not to call the Appellant to give evidence. Again, Mr McGrath's
evidence supports this critical point.”
- Lord Steyn concluded that:
“42 ... Legal principle dictates that counsel's
duty is to put the defendant's case, whether or not he intends to
call evidence to support. The misunderstanding by the Court of Appeal
may well have been widespread in Caribbean countries. That this
'would have been clear to Ebanks', as the Court of Appeal observed,
is absurd. But the Court of Appeal clearly thought that counsel did
not put it to the police that they fabricated their version because
he considered that it would have been improper to do so. Indeed that
is what Rowe JA said. The Court of Appeal would have been in a
position to have a local view of counsel's perceptions of an
advocate's duty (mistaken as it was) in the given situation. In any
event this explains why counsel did not cross examine the police
appropriately. The failure to do so (when it was required) amounts in
the circumstances to a material irregularity. It potentially
prejudiced the Appellant's defence. And it is impossible to say that,
absent the irregularity, the jury would inevitably have convicted.”
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Cayman Islands
- The
Cayman Islands is a British Overseas Territory. The United Kingdom is
responsible for its international relations. Under Article 56 of the
Convention, the United Kingdom has made a declaration extending the
application of the Convention to the Cayman Islands.
- The
Cayman Islands has its own government, with the power to make its own
laws, and its own justiciary under its Constitution, established by
the Cayman Islands (Constitution) Order 1972. Its legal system is
based on English common law and the Judicial Committee of the Privy
Council is the court of final appeal under the Cayman Islands
(Appeals to Privy Council) Order 1984.
B. Recording of defendant's wish not to testify
- In
R v. Bevan (1993) 98 Cr App R 354, Watkins LJ considered the
position as regards the decision of a defendant not to testify. He
noted that:
“One criticism has, however, to be levelled at
learned counsel. It is to be hoped that all counsel will heed what we
now say. When the decision is taken by a defendant not to go into the
witness-box, it should be the invariable practice of counsel to have
that decision recorded and to cause the defendant to sign the record,
giving a clear indication that (1) he has by his own will decided not
to give evidence and (2) that he has so decided bearing in mind the
advice, if any, given to him by his counsel. That certainly was the
practice in the days when the members of this Court were practising
at the Bar. It should never have been departed from. It is our firm
view that if the practice has fallen by the wayside, it should be
restored to its former prominence and become invariable once again.”
- Subsequently,
in R v. Chatroodi [2001] EWCA Crim 585, Pitchford J
reiterated the importance of ensuring a written record of the
defendant's decision:
“39. As long ago as 1993 Watkins LJ, giving the
judgment of this Court in R v Bevan 98 Cr App R 354,
said that it should be the invariable practice of counsel to record
any decision of a defendant not to give evidence, signed by the
defendant himself, indicating, clearly, that the decision has been
made of his own free will, and that in reaching that decision he has
borne in mind advice tendered by counsel. We are bound to express
some dismay at the knowledge that comparatively senior counsel,
advising a client not to give evidence ... was unaware of this
obligation.
40. While we would not expect counsel to record every
detail of every conference between himself and his client, we would
expect some written record of a conversation relevant to the
important question whether it was in the defendant's interests to
give evidence at his trial. This court suffers the disadvantage, in
the absence of such a record, of being required to evaluate the
recollections of counsel, on the one hand, and the appellant on the
other.”
- The
Privy Council ruled that the practice of recording a defendant's
decision not to testify was also desirable in the Caribbean
jurisdictions in Bethel v. The State (1998) 55 WIR 394, [1998] UKPC 51 There,
the appellant had alleged that his counsel had acted improperly in
several respects, including in not permitting him to give evidence.
Lord Hoffmann recorded that their Lordships felt bound to say that:
“they are surprised that in a capital case no
witness statement was taken from the petitioner or other memorandum
made of his instructions. In view of the prevalence of allegations
such as those now made, they think that defending counsel should as a
matter of course make and preserve a written record of the
instructions he receives. If this appeal serves no other
purpose, it should remind counsel of the absolute necessity of
protecting themselves from such allegations in the future.”
C. Counsel's duty to put defendant's case
- It
was previously thought to be improper to make a charge against a
witness at trial which was not supported by testimony from the
defendant. In R v. O'Neill (1950) 34 Cr App R 109, having
referred to the defence allegation that the alleged statement had
been beaten out of the defendant, Lord Goddard LCJ said:
“However, what the Court desires to call attention
to is this: having suggested this in cross-examination to the
police, and having repeated the suggestion before the jury, counsel
did not call his client to support what he had been instructed to
say, and the Court has no hesitation in saying that that is not the
proper practice ... It is quite wrong and improper conduct on the
part of counsel to make a charge against the police or against any
other witness by way of defence – because, of course, it would
have been a defence if the statements which were the principal
evidence against the applicants had been extracted from them by
improper means – if he does not intend to call his client to
give evidence to support the charge.
.... It is ... entirely wrong to make
such suggestions as were made in this case, namely that the police
beat the prisoners until they made confessions, and then, when there
is the chance for the prisoners to substantiate what has been said by
going into the box, for counsel not to call them. The Court hopes
that notice will be taken of this, and that counsel will refrain, if
they do not intend to call their clients, from making charges which,
if true, form a defence but which, if there is nothing to support
them, ought not to be pursued.” (emphasis added)
- In
R v. Callaghan (1979) 69 Cr App R 88 Waller LJ in the Court of
Appeal endorsed the passage from O'Neill and added:
“This Court entirely agrees with those
observations. It does not seem to us there has been any change in
circumstances since that decision was made which would justify some
different ruling being made.”
- However,
Waller LJ subsequently made a statement relating to his judgment in
Callaghan (The Times, 20 February 1980). According to the
report:
“His Lordship said that it appeared that there was
an aspect of the problem which did not then occur to him. That had
been brought to his attention by the professional conduct committee
of the Bar. From time to time there might be a case where a client
required a challenge to be made to a police officer but at the same
time refused to go into the witness box to support that challenge
because of his very bad record. Such a case should be wholly
exceptional.
In such circumstances counsel had a difficult decision.
He must warn his client that the judge would probably make a very
strong comment on his client's failure to support the suggestions on
oath in the witness box. If nevertheless the client, having been
warned, insisted, then counsel must carry out his instructions even
though he was aware that his client would not support his
cross-examination. His client could not complain if a strong comment
was made from the Bench.
His Lordship was making a statement now, but at some
future time, when a suitable case occurred, it would be possible to
modify the dictum which he made in R v Callaghan.”
- Referring
to this statement, the current (sixteenth) edition of Phipson on
Evidence (2005), para 12-30 at page 330 comments:
“It is submitted that now, as then, counsel's duty
is to put the defendant's case, whether or not he intends to call
evidence to support it.”
- As
outlined above, the view of Waller LJ in his statement of
February 1980 was endorsed by the Privy Council in the
applicant's case.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 IN CONJUNCTION
WITH ARTICLE 6 § 3 (c) OF THE CONVENTION
- The
applicant complained that the failure of his original lawyers to
ensure that his case was put before the court in the trial
proceedings and to act in accordance with his instructions, and the
subsequent failure of the Court of Appeal and the Privy Council to
remedy that failure, breached his rights under Article 6 § 1
taken together with Article 6 § 3 (c) of the Convention, which
read as follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing ... by
[a] ... tribunal ...
...
3. Everyone charged with a criminal offence has the
following minimum rights:
...
(c) to defend himself in person or through
legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the
interests of justice so require; ...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that the application is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
Merits
1. The parties' submissions
a. The applicant
- The applicant disputed that the evidence of the
lawyers in their affidavits was “clear and unequivocal”
such that viva voce evidence was not required. He pointed to
Lord Steyn's observation that Mr St John Stevens did not directly
address the applicant's allegation that he told his lawyers that he
had not made the alleged confession. He also disputed that his
lawyers had at all times acted in accordance with his instructions,
alleging that they had failed to put forward his defence at trial. He
claimed that although he wanted to expose the fabrication of the
police officers' account, he was “discouraged and talked out
of” doing so by his counsel.
- The
applicant further submitted that the lack of a written record of his
decision not to give evidence was a serious impropriety which
prevented him from having a fair trial.
- The
refusal to hear viva voce evidence had a significant
detrimental effect on the determination not only of whether the
applicant had made the alleged confession but also of whether he had
genuinely decided of his own free will not to give evidence.
b. The Government
- The
Government emphasised that the applicant was represented by
experienced leading counsel, junior counsel and two attorneys. During
the course of the trial, leading counsel made every effort to comply
with the applicant's instructions and to defend him in the most
appropriate and effective manner. The Government relied on the record
of the proceedings which showed that counsel sought regularly to
obtain the applicant's instructions on matters concerning the conduct
of the trial. Further, the clear and unequivocal evidence given in
the applicant's lawyers' affidavits was that the trial was conducted
in accordance with the applicant's express instructions. The
Government concluded that the applicant's instructions to his lawyers
that they were not to suggest that the police officers had fabricated
his statement were for tactical reasons: a challenge to the police
officers' integrity would have allowed the prosecution to adduce
evidence of the applicant's previous bad character. Moreover, the
applicant sought to rely on Mr Powell's evidence that he, Mr Powell,
had killed the victim acting alone, even though this account of
events was inconsistent with the other evidence in the case.
- The
Government considered that the determination of the criminal charge
against the applicant was in all respects fair and in accordance with
the requirements of Article 6. They relied on the fact that the
domestic courts had found that the applicant instructed his counsel
to challenge the admissibility of the evidence given by the police
officers on grounds of unfairness, oppression and omission to
administer a full caution and that the applicant's counsel had made
every effort to comply with the applicant's instructions and conduct
his defence in an appropriate and effective manner. They emphasised
that the trial judge had conducted the trial in a careful manner
giving well-reasoned and entirely persuasive rulings as to the
admissibility of the evidence; that the trial judge had made clear
before giving his rulings and in the presence of the applicant
himself that the defence case was weak in the absence of evidence
from the applicant; that at no stage did the applicant voice any
complaint about the conduct of proceedings and the record of
proceedings demonstrates the care of his lawyers in advancing an
effective and appropriate defence; that the first time the applicant
asserted that his counsel had acted in defiance of his instructions
was nine months after the conclusion of his trial; that the clear and
unequivocal evidence given in the applicant's lawyers' affidavits was
that the trial was conducted in accordance with the applicant's
express instructions; that there were sound tactical reasons for the
applicant to instruct his lawyers not to deny that he had made the
statement; and that the Privy Council considered the applicant's
complaint in detail and reached the same conclusion as the Court of
Appeal. It was significant to note that the Privy Council had the
benefit of a full transcript of the trial proceedings.
- As
to the alleged failure of the applicant's lawyers to put his denial
that he had ever made the alleged statement before the court, the
Government pointed to Mr St John Stevens' affidavit in which he
stated that the applicant's instructions were that he would not give
evidence and that the prosecution should be required to prove that
the confession statement was made voluntarily. That these were the
applicant's instructions was supported by the evidence of Mr McGrath.
Evidence of other lawyers involved in the case did not contradict
this position. Both the Court of Appeal and the Privy Council found
that the applicant's lawyers had complied with his instructions. In
doing so, the courts had examined the credibility of the applicant's
allegation carefully and had rejected it in a highly persuasive
manner. Relying on Klaas v. Germany, 22 September 1993, BAILII: [1993] ECHR 45, §
29-31, Series A no. 269; and Edwards v. the United Kingdom,
16 December 1992, BAILII: [1992] ECHR 77, § 34, Series A no. 247 B, the
Government contended that there was no basis for the Court to proceed
to make a new assessment of the facts as found by the domestic courts
as their conclusions were neither arbitrary nor unfair. The
Government therefore invited the Court to accept the findings of fact
made by the domestic courts.
- The
Government disputed the suggestion that defence counsel at trial had
proceeded on the basis that it would have been improper to have
suggested that the police officers were lying unless the applicant
was prepared to give evidence to that effect. They argued that there
was no evidence to suggest this and that the point did not arise
directly for consideration in the appeal to the Privy Council.
- As
to the failure of the applicant's counsel to record in writing the
applicant's decision not to give evidence, the Government highlighted
that the Court of Appeal had considered the matter with some care and
took note of the experience of the applicant's counsel, the sworn
evidence of the lawyers involved and the fact that they had made
sufficient efforts to meet with the applicant regularly. Although the
failure to record the applicant's decision in writing did not accord
with best practice, this shortcoming could be remedied by a factual
determination of the question whether the applicant wished to remain
silent. In this regard, it was significant that at no stage during
the trial had the applicant indicated that he wished to give
evidence. There was nothing in the record of proceedings to support
his allegation. On the contrary, the record of the voir dire
hearings showed that the trial judge had positively encouraged
the applicant to give evidence. After taking instructions, counsel
for the applicant had informed the court that no evidence would be
called. Accordingly, on the factual question, the domestic courts
found that the applicant's account was not credible. The Government
argued that it was not the role of the Court to act as a fourth
instance tribunal. The failure to keep a written record did not of
itself render the trial unfair.
- Regarding
the refusal of the Court of Appeal to hear viva voce evidence,
the Government contended that the Court of Appeal was satisfied that
it could reach a decision on the basis of the available evidence.
Moreover, the position was considered afresh in the Privy Council,
where it was reiterated by Lord Rodger that a court may feel able to
resolve such a dispute without hearing evidence. The Government
insisted that this must be the correct approach as an appeal court
could not be required invariably to hear evidence where a factual
dispute arose between the parties. Furthermore, rules on
admissibility of evidence were primarily a matter for regulation
under national law (referring to Schenk v. Switzerland,
12 July 1988, BAILII: [1988] ECHR 17, Series A no. 140).
2. The Court's assessment
- The
applicant alleged that he did not have a fair trial and complained of
a violation of Article 6 §§ 1 and 3 (c). The Court first
notes that the guarantees in paragraph 3 of Article 6 are
specific aspects of the right to a fair trial in criminal proceedings
as set forth in paragraph 1 of the same Article. Accordingly, the
applicant's complaint will be examined under these provisions taken
together (see, among other authorities, Benham v. the United
Kingdom, 10 June 1996, § 52, Reports of Judgments and
Decisions 1996 III; and Kulikowski v. Poland, no.
18353/03, BAILII: [2009] ECHR 779, § 55, 19 May 2009).
- The
Court observes that the responsibility of the Contracting Parties is
incurred by the actions of their organs. A lawyer, even if officially
appointed, cannot be considered to be an organ of the State. Given
the independence of the legal profession from the State, the conduct
of the case is essentially a matter between the defendant and his or
her counsel, whether counsel be appointed under a legal aid
scheme or be privately financed, and, as such, cannot, other than in
special circumstances, incur the State's liability under the
Convention (see Artico v. Italy, 13 May 1980, BAILII: [1980] ECHR 4, § 36,
Series A no. 37; Daud v. Portugal, 21 April 1998, BAILII: [1998] ECHR 27, § 38,
Reports of Judgments and Decisions 1998 II; Tuziński
v. Poland (dec), no. 40140/98, 30 March 1999; Rutkowski
v. Poland (dec.), no. 45995/99, ECHR 2000-XI; and
Cuscani v. the United Kingdom, no. 32771/96, § 39,
24 September 2002).
- Nevertheless,
assigning counsel to represent a party to the proceedings does not in
itself ensure the effectiveness of the assistance (see Imbrioscia
v. Switzerland, 24 November 1993, § 38, Series A no. 275).
There may be occasions when the State should act and not remain
passive when problems of legal representation are brought to the
attention of the competent authorities. It will depend on the
circumstances of the case whether, taking the proceedings as a whole,
the legal representation may be regarded as practical and effective
(see, mutatis mutandis, Artico, cited above, § 33;
Goddi v. Italy, 9 April 1984, BAILII: [1984] ECHR 4, § 27, Series A no. 76;
Rutkowski, cited above; Staroszczyk v. Poland,
no. 59519/00, BAILII: [2007] ECHR 222, §§ 121-122; and Siałkowska v.
Poland, no. 8932/05, §§ 99-100, 22 March 2007).
- In
considering whether the trial proceedings were fair within the
meaning of Article 6, the Court must consider the proceedings as a
whole including the decision of the appellate courts. Moreover it is
not for the Court to substitute its own assessment of the facts for
that of the domestic court (see, inter alia, Klass v.
Germany, cited above, § 29). As a general rule, it is for
the national courts to assess the evidence before them as well as the
relevance of the evidence which defendants seek to adduce and the
Court will only interfere where the assessment of the evidence or
establishment of the facts by the domestic courts can be impeached on
the ground that they were manifestly unreasonable or in any other way
arbitrary (I.J.L. and Others v. the United Kingdom, nos.
29522/95, 30056/96 and 30574/96, BAILII: [2001] ECHR 545, § 99, ECHR 2000 IX).
Similarly, the decision as to whether in a particular case it is
appropriate to call witnesses to testify is one for the domestic
courts (see Vidal v. Belgium, 22 April 1992, BAILII: [1992] ECHR 47, § 33, Series
A no. 235 B). The Court's task is to ascertain whether the
proceedings in their entirety, including the way in which evidence
was heard, were fair (see Edwards, cited above §
34).
- The
Court observes that the applicant's allegations of unfairness in
respect of the first instance trial proceedings centred on two
factual disputes, the first concerning his decision not to give
evidence at trial; and the second regarding his instructions to his
lawyers at trial as to whether to put before the court his denial
that he made a statement to the police. The applicant complained
that, in reaching its decision on these matters, the Court of Appeal
ought to have heard viva voce evidence.
- As
its starting point, the Court agrees with the Government that an
appeal court cannot be required invariably to hear oral evidence
where a factual dispute arises on appeal. To impose such a duty on
appellate courts would excessively curtail their discretion to deal
with the cases before them in an appropriate and proportionate
manner. Where a factual dispute arises, the court is entitled to
consider whether it is able to resolve the dispute on the basis of
any affidavits and other material placed before it or whether
fairness requires that oral evidence be heard. In deciding upon the
correct course of action in a given case, the court is entitled to
have regard to the strength of the evidence contained in the written
materials as well as to the potential clarifications which oral
evidence would bring as regards the factual dispute in question.
However, where the written material before the appeal court is
ambiguous or unclear in respect of details relevant to the ground of
appeal raised, fairness may require the appeal court to hear oral
evidence in order to seek to clarify the positions of the parties.
- As
regards the applicant's complaint that he was prevented from giving
oral evidence at trial, the Court emphasises at the outset that it is
clearly unfortunate that the applicant's desire not to give evidence
was not recorded in writing. However, in the absence of such a
record, the question whether the applicant chose to remain silent of
his own free will was a question of fact to be resolved on the basis
of the evidence available. In the present case, the Court notes that
the Court of Appeal had the benefit of affidavits from the applicant
and his trial counsel. The clear picture which emerged from the
affidavits of counsel was a denial of the allegation contained in the
applicant's affidavit that he had failed to understand the
implications of not giving evidence. The Court of Appeal also
considered it significant that the applicant's counsel were
experienced lawyers and had met with him regularly before the trial
to discuss his case (see paragraph 35 above). Further, the Court
observes that Lord Rodger, on behalf of the majority in the Privy
Council, examined the applicant's complaint afresh. With the benefit
of a full transcript of the trial proceedings, he noted that the
applicant had not raised this complaint at any time during trial and
that it was first made some nine months after the conclusion of the
trial (see paragraph 39 above). He further emphasised that the record
of the trial showed the time and care taken by Mr St John Stevens to
ensure that the applicant understood the proceedings and agreed to
the steps taken on his behalf, citing specific examples (see
paragraph 40 above). Finally, he pointed out that, given the
difficulties that the applicant's refusal to give evidence was likely
to create for counsel's presentation of his defence, it was hard to
see why counsel would have “deliberately flouted” the
applicant's wish to give evidence (see paragraph 41 above).
- The
Court agrees with the findings of the domestic courts that, on the
question of the failure of the applicant to give oral evidence at
trial, the contents of the affidavits were clear. In these
circumstances, fairness did not require the hearing of viva voce
evidence on this issue. As to the conclusions of the domestic
courts, the Court considers that it was not unreasonable for the
Court of Appeal and the Privy Council to conclude, on the basis of
the affidavit evidence and the verbatim record of the trial as well
as the general context of the applicant's case, that counsel had
acted in accordance with the applicant's instructions and that the
applicant had genuinely decided of his own free will not to give
evidence in his defence. There are therefore no grounds for the Court
to interfere with the domestic court's assessment of the facts on
this matter.
- As
regards the failure of counsel to challenge the police officers'
evidence that the applicant had made a statement, the Court notes
that the Court of Appeal dismissed the applicant's appeal on the
mistaken understanding that it would only be possible to challenge
such evidence where the applicant gave oral evidence in support of
that challenge. The court having found that the applicant's decision
not to give evidence was freely made, it necessarily followed that he
could not claim any unfairness from the failure of his counsel to
present a positive case (see paragraph 36 above). The Court considers
that if the applicant's counsel wrongly advised him that, in light of
his decision not to give evidence, they were unable to dispute the
making of the statement, then this error was so fundamental that it
deprived the applicant of a fair trial. However, the question arises
whether, in the present case, any such mistaken advice was given to
the applicant by counsel.
- The
Court's starting point is the opinion of Lord Rodger in the Privy
Council, in which he found that the Court of Appeal was wrong to
conclude that a positive challenge to the making of the statement
could not be made in the absence of oral evidence from the applicant
and emphasised that it was the duty of counsel to present the defence
case, even where the defendant refused to give evidence (see
paragraph 42 above). However, Lord Rodger concluded that the point
did not arise on the facts of the applicant's case as the Court of
Appeal had proceeded on a basis for which there was no foundation in
the lawyers' affidavits (see paragraph 43 above). Like Lord Rodger,
the Court considers that there was nothing in the affidavit evidence
to suggest that Mr St John Stevens had proceeded as he did because he
thought it would be professionally improper to put to the police
officers that the applicant had not made the statement when he was
not going to give evidence in support of the submission (see
paragraphs 28 and 31 to 32). The Court of Appeal did not find that
counsel had advised the applicant thus (see paragraph 36 above).
Further, the applicant himself did not allege, either in his
affidavit or in his written submissions to this Court, that he had
been advised that it was improper for counsel to challenge the
statement in light of his refusal to give evidence. Instead, he
claimed that he was “discouraged and talked out of”
challenging the credibility of the officers (see paragraph 62 above).
In the circumstances, the Court considers that it was not
unreasonable for the Privy Council to conclude that the Court of
Appeal's conclusion on this issue was irrelevant to the disposal of
the case and to proceed to deal with the applicant's complaint based
on the written material before it.
- In
dismissing the ground of appeal, Lord Rodger referred again to the
delay in making the complaint and to the obvious care taken by Mr St
John Stevens to obtain the applicant's instructions during trial. He
pointed out that the decision not to challenge the credibility of the
police officers “by no means simplified the presentation of the
defence case”, particularly in the voir dires (see paragraph 44
above). He also highlighted that there may have been tactical reasons
for the decisions made by the applicant in the presentation of his
defence (see paragraph 45 above).
- The
Court recognises that in the context of any criminal proceedings,
decisions must be made as to how best to present an accused's defence
at trial. In many cases several options will be available and it is
the responsibility of the accused to select, with the advice of
counsel, the defence which he wishes to put before the court. Any
defendant subsequently convicted will naturally feel aggrieved if he
had an alternative defence which was not, in the event, pursued. He
may convince himself, often unrealistically, that the alternative
defence would have been successful where the actual defence run was
not. However, it is not in the interests of justice to allow a
defendant to seek to advance such alternative defence after his
conviction unless there are special circumstances which give rise to
a real concern that the legal representation at trial was defective
in a fundamental respect.
- In
the present case, the Court notes that the allegations as to
counsel's failure to comply with the applicant's instructions were
first made some nine months after the conclusion of the trial and
not, as might reasonably be expected, immediately or at least very
shortly after. The Court further notes that the verbatim transcript
of the trial, which was available to the Privy Council in its
consideration of the case, provides strong evidence of the
attentiveness of counsel to the wishes and instructions of the
applicant. Both Mr McGrath and Mr St John Stevens were clear in their
affidavits as to the content of the applicant's instructions and the
fact that they had acted in accordance with those instructions
(see paragraphs 31 to 32 above). In the circumstances, the Court
does not consider the conclusions of the Privy Council to be
manifestly unreasonable or arbitrary.
- As
to whether the domestic courts ought to have heard viva voce
evidence, the Court acknowledges that the statement of Mr St John
Stevens did not address directly the question whether the applicant
had consistently denied making the alleged confession. However, the
relevant question for the applicant's appeal was not whether he
denied making the confession but whether he instructed his solicitors
to present a positive case to that effect at trial. As noted above,
the lawyers' affidavits were clear on this point. Mr McGrath
noted that, “Whilst it is correct to say that no positive case
was ever put in relation to [the applicant's denial that he made a
statement] this was upon the appellant's instructions ... Because he
would not give evidence the appellant chose not to put his case about
not making the confession to the police officers in the course of the
trial proper” (see paragraph 31 above). Mr St John Stevens
said, “The appellant's instructions were that the Crown should
be put to proof as to establishing that the confession in issue was
made voluntarily and that no positive case would be put over and
above this issue ... I am satisfied that the appellant's case was
presented in accordance with and upon clear and unequivocal
instructions” (see paragraph 32 above). The position of counsel
was, in this respect, unambiguous and there was therefore no
requirement for the court to hear viva voce evidence on the
matter.
- There
has accordingly been no violation of Article 6 § 1 in
conjunction with Article 6 § 3 (c) of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application admissible;
- Holds that there has been no violation of
Article 6 § 1 of the Convention in conjunction with Article 6 §
3 (c).
Done in English, and notified in writing on 26 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Giovanni Bonello
Deputy
Registrar President
