Clive Errol FACEY v the United Kingdom - 25083/09 [2011] ECHR 826 (10 May 2011)

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The European Court of Human Rights (Fourth Section), sitting on 10 May 2011 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
Sverre Erik Jebens,
Päivi Hirvelä,
Ledi Bianku,
Vincent A. De Gaetano, judges,
and Lawrence Early, Section Registrar,

The applicant, Mr Clive Errol Facey, is a Jamaican national who was born in 1973 and lives in Spanish Town, Jamaica. He was represented before the Court by Mr R Posner, a lawyer practising in Nottingham with Bhatia Best Solicitors.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 13 June 2003, the applicant and another man, B, were stopped and arrested in a car that the applicant was driving. B was sitting in the front passenger seat when the car was stopped. The car was searched and, under the front passenger seat, under a flap in the carpet, a package containing heroin was discovered. The men were taken by police van to a police station and charged. The following day, a metal smoking pipe was found by a police officer, Special Constable M, in the police van, in the cubicle where B had been sitting. She also stated that she had heard a metal “clang” in the van when the men were being taken to the police station. The pipe was found to contain traces of cocaine.

Each man blamed the other for placing the package in the car and denied all knowledge of it. At trial, a police officer, Police Constable W, gave evidence that, on the basis of a test he had conducted, it would have been impossible for someone sitting in the front passenger seat to place the package where it had been discovered. He had also tried the seat in different positions. On this basis, B was acquitted by the judge. The jury was discharged and a re-trial ordered in respect of the applicant.

At the applicant’s re-trial, PC W gave evidence and Special Constable M’s statement as to the pipe was read to the jury. The applicant was convicted but, on appeal, his conviction was quashed on the basis of fresh expert evidence, which showed it would have been possible for a man of B’s build, sitting in the passenger seat, to place the package. The Court of Appeal, in quashing the conviction, ordered a second re-trial.

At the second re-trial, PC W appeared to give different evidence to the effect that he did not move the seat to different positions. He was not cross-examined by the applicant on this inconsistency with his previous testimony because, for tactical reasons, the defence did not wish the jury to know about the previous trials. Special Constable M’s statement was not read at this trial. The applicant did not give evidence in his own defence. In his summing up, the trial judge erroneously directed the jury that the pipe had been found in the car and contained traces of heroin, not cocaine. He nonetheless observed: “you [the jury] may think that really nothing turns on the pipe in this case. It does not add or subtract to the case one way or another”.

The applicant was convicted and appealed. On appeal, he argued that: (i) had the trial judge been aware of Special Constable M’s statement he would have directed the jury differently and the applicant would have been able to argue more strongly that B was a drug user, and was thus more likely to have placed the package; (ii) PC W’s change in evidence was highly material but, because of a tactical decision not to refer to the previous trials, he had been deprived of the ability to cross-examine him. The applicant also submitted that, since PC W’s evidence had led to the discharge of B, it also deprived the applicant of the opportunity to cross-examine B. This deprived the applicant of the opportunity to put to B the allegation that the heroin belonged to him and that the applicant knew nothing about it.

The Court of Appeal dismissed the appeal on 24 February 2009 ([2009] EWCA Crim 622). It gave the following reasons for its decision (at paragraphs 34–40 of the judgment:

“...The question is whether the conviction of the applicant at the third trial is unsafe. Is it unsafe by reason of any material irregularity in the procedure or by any misdirection of law by the judge? The answer to each must be no.

35. We deal first with the fact that the evidence of [Special Constable M] was not adduced at the third trial. It is clear that this evidence had been adduced at the previous trial. It must have been clear to the applicant that it existed. We think that those who were advising the applicant must have realised of its existence. It is referred to, after all, at the front of the transcript of the summing up of the judge in the second trial. We find it difficult (if not impossible) to conclude that its existence was not known to the applicant and the defence team at the time of the third trial.

36. But, in any event, the evidence about the noise in the police van and finding the pipe in Mr [B’s] cubicle in the van adds either nothing or very little to the case. The pipe was, as the judge said, of no consequence. It contained traces of cocaine, not heroin. The judge was mistaken when he referred to heroin in his summing up. The pipe is an irrelevance. It does not follow, in our view, that because Mr [B] dropped the pipe in the van, therefore he and he alone was concerned with the Class A drugs that were found in the car. We do not accept that [Special Constable M’s] evidence would or might have materially affected the minds of the jury as concerns the guilt of the applicant.

37. Secondly, the error of the judge, if such it were, that the pipe had been found in the Rover car, is also an irrelevance. The pipe had nothing to do with the case against the applicant, as the judge made clear in his summing up. If anything, the remark of the judge about the pipe was helpful to the applicant’s case on the third trial.

38. Thirdly, the fact that PC [W] had changed his evidence from that given at the first two trials and that he now agreed with the experts was, on the face of it, highly favourable to the applicant. The effect was that the two experts and PC [W] all agreed that it was possible for the heroin to be placed under the carpet under the front passenger seat by a person of Mr [B’s] height and build. It was easier when the seat was in the rear position, but could even have been done with the seat in a more forward position. That evidence all assisted the applicant’s case that it was Mr [B] who had the heroin and it was he who hid it under the carpet when the police arrived.

39. We are unable to see how it could have helped to cross examine PC [W] on his previous evidence when the evidence that he gave at the third trial was so much more favourable to the applicant’s case. We do not accept the argument that if the Court of Appeal Criminal Division [which heard the first appeal against conviction and ordered the second re-trial] had thought that the evidence of PC [W] was incorrect, then there would have been no re trial. The fact is that on the appeal the Court of Appeal knew that there was a possibility of discrepancy with his earlier evidence because they had received, and regarded as entirely credible, the evidence of the experts about how it was possible to get underneath the seat in whichever position it might be. Despite this potential discrepancy, and therefore the challenge effectively to PC [W’s] version of the facts, the Court of Appeal was still prepared to order a second re trial.

40. Accordingly, we have concluded that none of the points raised are capable of demonstrating even an arguable case that this conviction was unsafe. ”

In England and Wales a witness is competent if he may lawfully give evidence and compellable if he may lawfully be required to give evidence. Competent witnesses are usually but not necessarily compellable ([2011] Archbold’s Criminal Pleading, Evidence and Practice at 8-52).

The test for competence is set out in section 53 of the Youth Justice and Criminal Evidence Act 1999, which, where relevant, provides:

“(1) At every stage in criminal proceedings all persons are (whatever their age) competent to give evidence.

(3) A person is not competent to give evidence in criminal proceedings if it appears to the court that he is not a person who is able to—

(4) A person charged in criminal proceedings is not competent to give evidence in the proceedings for the prosecution (whether he is the only person, or is one of two or more persons, charged in the proceedings).

(5) In subsection (4) the reference to a person charged in criminal proceedings does not include a person who is not, or is no longer, liable to be convicted of any offence in the proceedings (whether as a result of pleading guilty or for any other reason).”

The effect of subsections (4) and (5) is that a co-accused may only give evidence for the prosecution if he ceases to be a co-accused, for example when he has been acquitted.

In addition, under section 1(1) of the Criminal Evidence Act 1898, a person charged in criminal proceedings shall not be called as a witness “except upon his own application”. Therefore, a co-accused can only become a competent and compellable witness for any other co-accused once he or she ceases to be a person charged, for example because he or she pleads guilty or is acquitted.

The applicant complained that his conviction after the second re-trial was in violation of Article 6. First, he submitted that the conviction was unfair by virtue of the trial judge’s reference to the pipe being found in the car and containing traces of heroin. Second, PC W’s false evidence in the first and second trials adversely affected the fairness of the third trial, particularly when it meant the applicant could not cross-examine B.

Article 6 §§ 1 and 3 (d) of the Convention, where relevant, provide as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him”

The Court notes that the applicant does not appear to have relied expressly on Article 6 before the domestic courts. In any event, it considers that the applicant’s complaints are manifestly ill-founded for the following reasons.

In respect of the first ground advanced by the applicant, the Court notes the finding of the Court of Appeal that it was impossible that the defence at the second retrial did not know of Special Constable M’s statement, which had been read at the second trial and referred to at the front of the transcript of the summing-up of the judge in that trial. The Court considers that the fault must lie with the defence in not seeking to have the statement read at the second retrial, if it was considered to support the applicant’s case that B was a Class A drug user and therefore more likely to have been connected with the heroin.

As to the complaint that the fairness of the trial was prejudiced by the trial judge’s erroneous statement to the jury that the pipe had been found in the car and that it contained traces of heroin, the Court considers that any unfairness which might arguably have arisen from those references was clearly corrected by the trial judge’s additional remark that nothing turned on the pipe and that it did not add to or subtract from the case. That conclusion was approved by the Court of Appeal and the Court finds no grounds for challenging the domestic courts’ assessment of the relevance and significance of the pipe.

As to the second ground advanced by the applicant, the Court notes the finding of the Court of Appeal that the fact that PC W had changed his evidence from that given at the first two trials was highly favourable to the applicant, since its effect was that the two experts and PC W all agreed that it was possible for the heroin to have been placed under the front passenger seat by a person of B’s height and build, thus assisting the applicant’s case that it was B who had the heroin and hid it under the carpet under the seat.

As to the applicant’s argument that, as a result of the false evidence of PC W at the first trial and consequent acquittal of B, he had been deprived of the opportunity of cross-examining B at the second retrial, the Court observes that the applicant does not complain that he was unable to call B as a witness for the defence at either the first or second retrials. For example, it is not suggested that, if called as a witness for the defence, B would have given evidence accepting that he, and not the applicant, was responsible for the heroin package. Instead, the applicant’s complaint is that B should have been called as a witness, either in his own defence at the initial trial or, after his acquittal, for the prosecution at the first and second re-trials. This complaint is based on the assumption that, if called as a witness, B would have blamed the applicant for having put the heroin package in the car. This would have allowed the applicant to cross-examine him and, in doing so, to put the allegation that it was B, and not the applicant, who was responsible for the heroin.

However, in the Court’s view, Article 6 §§ 1 read in conjunction with Article 6 § 3(d) of the Convention does not require that the prosecution call a witness simply so that the witness can give evidence damaging to the accused and thus be cross-examined by the accused. Nor does it require a co-accused, whose evidence does not form any basis for the case against the accused and is not before the jury, to be compelled to give evidence merely to enable cross-examination to take place.

Moreover, in the present case, the Court is unable to discern any prejudice to the applicant’s defence which resulted from the inability to cross-examine B. The jury had before it the evidence of PC W, which was more favourable to the applicant than at the earlier trials. It would have been clear to the jury that the applicant’s defence was that B had placed the drugs. The testimony of B denying that it had been him would have made little difference to the conduct of the applicant’s defence. Therefore, even accepting that the applicant’s inability to cross-examine B was a restriction on the rights of the defence, the Court is satisfied this was not such as to render the applicant’s trial unfair.

The Court therefore considers that the application must be rejected as manifestly ill founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Clive Errol FACEY v the United Kingdom - 25083/09 [2011] ECHR 826 (10 May 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/826.html Cite as: [2011] ECHR 826