Mr Justice Munby :
- The two questions in this case are whether the Parole Board has power to exclude a prisoner from part of a hearing whilst evidence is being taken and, if it does, whether that power was lawfully exercised in the particular circumstances of the present case.
- In my judgment the Board has that power and it was lawfully exercised in the present case.
- The events leading up to the hearing before the Board, which took place on 14 October 2004, can be sketched in comparatively briefly. On 16 October 1980 the claimant was convicted of a murder committed on the night of 31 December 1979/1 January 1980. He was sentenced to life imprisonment. The tariff sentence was fixed at nine years. On 14 April 1989 the claimant was released on life licence. On 27 April 1989 he committed an assault in a public house for which he was sentenced on 19 March 1990 to 12 months imprisonment. On 20 March 1990 he was recalled to prison under the terms of the licence. On 14 December 1990 he escaped from prison, being recaptured on 31 January 1991. In 1992 he married. On 12 August 1993 he absconded whilst on an escorted home visit, being recaptured on 24 December 1993. In September 1997 the claimant was transferred to an open prison. On 22 April 2000 he was transferred to a closed prison but returned to open conditions on 21 November 2000. During 2000 he was divorced, though he and his wife (as I shall refer to her for convenience though without, I hope, causing any offence) were later reconciled. On 23 July 2002, by which time she was again estranged from the claimant, his wife made allegations concerning telephone calls he was making to her and about threats he was alleged to have made to her and her son during periods of resettlement leave. These allegations were never substantiated, but on 29 July 2002 the claimant was removed from open conditions and returned to a closed prison. On 29 September 2003 the claimant was again released on life licence subject to a number of conditions, those conditions being varied on 5 January 2004. On 28 March 2004 the police were called to the wife's flat following a report of the claimant causing a disturbance. On 5 April 2004 police again visited the wife's flat and were shown bruises which she said had been caused by the claimant. On 7 April 2004 the claimant's probation officer recommended urgent revocation of his licence, expressing the view that the claimant presented "an escalating risk of harm" to his wife. On 8 April 2004 the licence was revoked by the Secretary of State and the claimant was recalled to prison. He was arrested on 26 April 2004 and returned to prison. On 7 October 2004 the Secretary of State made written submissions to the Board supporting the claimant's recall to prison.
- A panel of the Board, chaired by His Honour Judge Nicholas Coleman, conducted a hearing on 14 October 2004. The claimant was represented by counsel (there was no solicitor). That counsel, I should make clear, was not the counsel who appeared on his behalf before me. Having heard evidence from the claimant's wife, from DC Hopkins, a police officer from the Domestic Violence Unit who had been involved in the original investigation into the wife's allegations, from Mr Kelly, the claimant's probation officer, and from the claimant himself, the panel, in a written decision dated 20 October 2004, expressed itself (paragraph 27) as
"satisfied on all the evidence that your recall was justified. The Panel was also satisfied that on all the available evidence there was a substantial risk of serious violence to [your wife] and those associated with her. Moreover there was clear evidence that the life licence conditions had been ignored and deliberately broken by you."
- The dispute before me arises out of the fact that the panel required the claimant to leave the room in which the hearing was taking place whilst his wife gave her evidence. The claimant's counsel was permitted to remain, was present throughout, and was able to cross-examine the wife, following a brief adjournment, after she had finished her evidence in chief, during which he was able to obtain further instructions from the claimant.
- The present proceedings were commenced on 13 January 2005. The relief sought is a quashing order quashing the decision to exclude the claimant from part of the hearing. Permission was granted by Hughes J on 16 March 2005. The parties sensibly agreed that the hearing should be deferred until the House of Lords had given judgment – which it did on 7 July 2005 – in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738.
- To understand events at the hearing before the panel it will be convenient to interpose at this point in the narrative references to the relevant statutory provisions.
- It is common ground that the claimant's case came before the panel pursuant to section 32(4)(b) of the Crime (Sentences) Act 1997, which is included in Chapter II of Part II of that Act. Section 32 of the Criminal Justice Act 1991, which was the relevant provision in force at the time of the hearing, provides so far as material as follows:
"(1) The Parole Board shall be, by that name, a body corporate and as such shall –
(a) be constituted in accordance with this Part; and
(b) have the functions conferred ... by Chapter II of Part II of the Crime (Sentences) Act 1997 ('Chapter II') in respect of life prisoners within the meaning of that Chapter ...
(4) The board shall deal with cases as respects which it gives directions under ... Chapter II on consideration of all such evidence as may be adduced before it.
(5) Without prejudice to [subsection] ... (4) above, the Secretary of State may make rules with respect to the proceedings of the board, including provision authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.
(6) The Secretary of State may also give to the board directions as to the matters to be taken into account by it in discharging any functions under ... Chapter II; and in giving any such directions the Secretary of State shall in particular have regard to –
(a) the need to protect the public from serious harm from offenders; and
(b) the desirability of preventing the commission by them of further offences and of securing their rehabilitation.
(7) Schedule 5 to this Act shall have effect with respect to the board."
- Paragraph 1(2)(b) of Schedule 5 to the Criminal Justice Act 1991 provides, so far as material for present purposes, that:
"It shall be within the capacity of the board as a statutory corporation to do such things and enter into such transactions as are incidental to or conducive to the discharge of ... its functions under Chapter II of Part II of the Crime (Sentences) Act 1997 in respect of life prisoners within the meaning of that Chapter."
- The Parole Board Rules 2004 were made by the Secretary of State in exercise of the powers conferred on him by section 32(5) of the 1991 Act. Rule 5(1) provides that, subject to exceptions none of which is material for present purposes, at the hearing before the panel a prisoner "may be represented by any person who he has authorised for that purpose." Rule 19, so far as material for present purposes, provides as follows:
"(2) The panel shall avoid formality in the proceedings and so far as possible shall make its own enquiries in order to satisfy itself of the level of risk of the prisoner; it shall conduct the hearing in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings.
(3) The parties shall be entitled to appear and be heard at the hearing and take such part in the proceedings as the panel thinks fit; and the parties may hear each other's evidence, put questions to each other, call any witnesses who the Board has authorised to give evidence in accordance with rule 15, and put questions to any witness or other person appearing before the panel.
(4) The chair of the panel may require any person present at the hearing who is, in his opinion, behaving in a disruptive manner to leave and may permit him to return, if at all, only on such conditions as the chair may specify.
(5) The panel may adduce or receive in evidence any document or information notwithstanding that such document or information would be inadmissible in a court of law, but no person shall be compelled to give any evidence or produce any document which he could not be compelled to give or produce on the trial of an action.
(6) The chair of the panel may require the prisoner, any witness appearing for the prisoner, or any other person present, to leave the hearing where evidence is being examined which the chair of the panel, in accordance with rule 8(2)(d) (subject to any successful appeal under rule 8(2)), previously directed should be withheld from the prisoner as adversely affecting national security, the prevention of disorder or crime or the health or welfare of the prisoner or others."
Rule 2(2) defines "the parties" as meaning the prisoner and the Secretary of State.
- Rule 8(2)(d) provides that the directions which the chair of the panel may give may in particular relate to:
"as regards any documents which have been received by the Board but which have been withheld from the prisoner in accordance with rule 6(2), whether withholding such documents is a necessary and proportionate measure in all the circumstances of the case".
Rule 6(2) provides, by way of exception to the general principle in rule 6(1) that information and reports to be used at the hearing are to be served by the Secretary of State on both the Board and the prisoner or his representative, that:
"Any part of the information or reports referred to in paragraph (1) which, in the opinion of the Secretary of State, should be withheld from the prisoner on the grounds that its disclosure would adversely affect national security, the prevention of disorder or crime or the health or welfare of the prisoner or others (such withholding being a necessary and proportionate measure in all the circumstances of the case), shall be recorded in a separate document and served only on the Board together with the reasons for believing that its disclosure would have that effect."
- The events at and immediately before the hearing on 14 October 2004 can be reconstructed in some detail from three documents: the typed transcription of the notes taken during the relevant part of the hearing; the formal decision of the panel dated 20 October 2004; and the witness statement of Judge Coleman prepared for the present proceedings and dated 19 April 2005. They can be summarised as follows.
- Prior to the hearing the claimant's solicitor had requested that an order be made for the attendance of the wife. Having read the dossier concerning the applicant it was Judge Coleman's view, in the light of the lengthy representations made by the claimant's solicitor, that the wife's evidence was disputed and that it was moreover, as Judge Coleman put it, "central to the recommendations the Panel would be making." It was also apparent to him that the wife had declined on previous occasions to give evidence against the claimant. In these circumstances Judge Coleman did two things. On 10 October 2004 he made a direction for the attendance of the wife. He also directed that the officer in charge of the original police investigation attend and secure the wife's attendance. Having been informed that the wife would not attend if she had to give evidence in the presence of the claimant, Judge Coleman directed the officer to inform her that she would not have to give evidence in the presence of the claimant. At that stage, as the Judge explains, he reasonably believed that if the wife were brought to the prison she would in fact give evidence in the presence of the claimant.
- When she arrived at the prison it was apparent from discussions held with her by the secretariat that the wife was still too frightened to give evidence in the presence of the claimant. Judge Coleman discussed this with the other members of the panel. The room in which the hearing was to be held had screens which could have shielded the wife from the claimant. This seemed to the panel to be a special measure which would be a satisfactory compromise to the problem it faced. However, when this method of giving evidence was offered to the wife, she remained unwilling to be in the same room as the claimant. It was reported to the panel that she had been guaranteed that the claimant would not be in the room when she was giving evidence. The panel, as Judge Coleman recalls, was hesitant about receiving the evidence in the way he had previously directed, but agreed to hear submissions from counsel.
- There is no verbatim record of the hearing but the transcribed notes record Judge Coleman as saying that the panel would first hear from DC Hopkins: "We can use screens but she would feel she has been brought here on pretext should we hear from Mr Hopkins first." The officer was then asked by Judge Coleman to explain the state of play. The notes record the officer as saying,
"She doesn't wish to see Mr G. She is depressed. The assurance that was given to her is that she won't be in the same room with Mr G and that was the reason she decided to attend."
The claimant's counsel then submitted that his client was entitled to face his accuser: "It goes to credibility and counter issues. Mr G needs to hear what ex-wife saying in order to give me instructions." Counsel submitted that "Nothing in PB rules to allow these procedures to take place." Having referred to rules 6(2) and 8(2)(d) Counsel then turned to rule 19. Judge Coleman said: "It says the party may call evidence etc we are not depriving you of that. It is within our discretion to hear evidence." Counsel's riposte, having referred to rules 19(6) and 19(3), was to the effect that the claimant should be present whilst the wife was giving evidence. Having read out rule 19(6) Judge Coleman said "That is clearly [the wife]. It may affect her welfare." The remainder of this part of the notes reads as follows:
"[Csl] [The wife] has made a serious allegation of assault. In respect of rule 19(6) is predicated on rule 6 + 8. It is not the case where documents can be withheld. Rule 19(6) is explicit about in exceptional circumstances where the prisoner can be asked to leave.
Judge: Mr Watson what are your views on this?
SoS rep: We have a duty to protect the witness ie [the wife]. All the evidence are all in the dossier.
Judge: We wish to hear from [the wife] and the only way we can do that is in the absence of Mr G."
- Accordingly, having heard these submissions, the panel directed that the claimant be removed from the room while the wife was giving evidence. Whilst the claimant was not in the room, his counsel was able to observe the wife and put the claimant's case. Counsel appeared to have detailed instructions from the claimant and challenged the wife on material issues.
- The panel's formal ruling is set out as follows in paragraphs 20-21 of its formal decision dated 20 October 2004:
"[The wife] gave evidence in your absence although your Counsel was present, asked questions and was able to challenge her assertions on your behalf. The panel decided on the information presented to it that she was unwilling to confront you. Moreover she would not give evidence from behind a screen. In this regard, having listened with care to the representations from your counsel the panel decided that Rule 19(3) of the Parole Board Rules 2004 entitled the Panel to hear evidence in such a way as "the Panel thinks fit". It decided that there was no alternative but to rule as it did if it were satisfactorily to resolve the issues of fact between you and your former wife. In this regard the panel reminded itself that there was a history of "unsubstantiated allegations" and that your former wife once more was said to be fabricating allegations against you.
Your representatives submitted a lengthy document which challenged the assertions made by your former wife and her son. Your evidence was, as the panel has already noted, very different to your former wife. There clearly are a number of conflicting issues of fact. The panel had no need to resolve all of them and had no doubt that not everything which [the wife] has said to the panel is correct, but the panel is quite satisfied, on the information provided by her account and all the other evidence before it, including Mr Hopkins, the police investigation file and the trenchant comments of Mr Kelly, that the conclusions of the panel are fully justified."
- So much for the facts.
- It is, as I have said, common ground that the claimant's case came before the panel pursuant to section 32(4)(b) of the Crime (Sentences) Act 1997. It is also common ground that, consistently with the requirements of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, as explained by the Strasbourg court in Stafford v United Kingdom (2002) 35 EHRR 32 at paras [80]-[81], the issue before the panel was whether the continuing detention of the claimant, a prisoner sentenced to life imprisonment whose tariff had expired, was justified on the basis of risk and dangerousness – that is, dangerousness to the public from the risk of further violence. It can therefore be seen that the allegations of assault made by the claimant's wife were, as Mr Southey submitted to me on his behalf, highly relevant to whether his recall to prison was justified. The panel, of course, recognised this for, as we have seen, Judge Coleman treated her evidence as being "central" to the matters in issue.
- It is common ground that Article 5(4) of the Convention entitled the claimant to a hearing before an independent body, that is, before the panel: Stafford v United Kingdom (2002) 35 EHRR 32 at para [87]. It is also common ground that, although Article 6 does not apply to proceedings before the Board, Article 5(4), which does, imposes procedural requirements: see generally R (West) v Parole Board [2005] UKHL 1, [2005] 1 WLR 350, and R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738. Where, as here, detention may be for long periods, the procedural guarantees should not be "markedly inferior" to those that apply in criminal proceedings: De Wilde, Ooms and Versyp v Belgium (No 1) (1971) 1 EHRR 373 at para [79]. I need not go further into his aspect of the matter, for although Mr Kovats on behalf of the Board rightly declined to accept that all the requirements of Article 6(1) are to be read into Article 5(4), Mr Southey very properly conceded that a procedure which satisfies the more stringent requirements of Article 6(1) will accordingly pass muster under Article 5(4).
- There are, as it seems to me, three questions that I have to decide:
i) Did the panel, as a matter of domestic law, have the power to proceed as it did?
ii) If so, is domestic law compatible with the Convention?
iii) If so, did the panel act lawfully and in a manner compliant with the Convention?
In my judgment each of these questions requires to be answered in the affirmative. It follows, as I have already said, that the Board's powers were lawfully exercised in the present case, with the consequence that this application for judicial review fails and must be dismissed.
- I shall consider each of these three questions in turn.
- The first question, as I have said, is whether, as a matter of domestic law, the panel had power to proceed as it did. Mr Kovats submits that it did, primarily under rules 19(2) and 19(3) and in any event under paragraph 1(2)(b) of Schedule 5 to the 1991 Act. Mr Southey disagrees. He submits that the only powers of exclusion are those conferred by rule 19(4) in the case of a prisoner who is being "disruptive", which it is not suggested was the case here, and by rule 19(6) in a case where evidence is being considered under rule 8(2), which again is not the case here. Furthermore, he submits, the effect of the inclusion in the 2004 Rules of the express powers contained in rules 19(4) and 19(6) is inconsistent with the availability of any power of exclusion under rules 19(2) and 19(3) or under paragraph 1(2)(b), whatever the meaning and effect of those provisions might otherwise have been.
- In my judgment Mr Kovats is right, and essentially for the reasons he gave.
- Rule 19(2) requires the panel to conduct the proceedings – "it shall conduct the hearing" – "in such manner as it considers most suitable to the clarification of the issues before it and generally to the just handling of the proceedings". In order to meet the first part of this requirement, it is important, as Lord Woolf CJ put it in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738, at para [38], that:
"The board should be in a position to know all the relevant information about the progress that the prisoner has made during his sentence … both from the point of view of the prisoner and from that of the public, whom the board is intended to protect, it is critical that the board, whenever possible, is aware of any relevant information before it reaches its decision to release a prisoner on licence."
Moreover, and in order to meet the second and more general part of the requirement, the Board must at all times have in mind its responsibility to reconcile so far as it can, what in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738, Lord Woolf CJ (at para [48]) and Lord Carswell (at para [128]) described as "a triangulation of interests": the Board's obligations to the prisoner, its obligation to protect society and, as part of the latter obligation, its obligation to protect third parties (witnesses for example) so far as it is practical to do so having regard to the Board's other responsibilities. And as Lord Woolf CJ went on to observe:
"Procedural rules cannot be devised that anticipate all the situations that can arise where a tribunal has to exercise its discretion to determine its own procedure in order to reconcile conflicting interests of [this] nature."
- Rule 19(2) is expressed in wide terms and has to be construed purposively to meet the needs identified by Lord Woolf CJ. It is, in my judgment, expressed in terms amply sufficient to confer on the panel the power which was here exercised.
- There is nothing in rule 19(3) to cut down this reading of rule 19(2). The claimant was allowed to appear, throughout the whole of the proceedings by counsel and for most of the proceedings also in person; he was heard, both by counsel and in person; his counsel heard the whole of the wife's evidence; and he was allowed, through counsel, to put questions to his wife. In my judgment the requirements of rule 19(3) are met if each of the component entitlements referred to in rule 19(3) is afforded, as here, either to the prisoner and/or to his representative.
- In any event, rule 19(3) is subject to the overriding provision, consistent with rule 19(2), that what the prisoner is entitled to is to "take such part in the proceedings as the panel thinks fit." Those words have to be read generally and are not to be construed narrowly, as Mr Southey would have it. In particular they are not to be read as merely limiting the role that a party may take while present. As Mr Kovats correctly put it, the words necessarily contemplate that the panel may in a particular case decide that a party will not be able to take part, or a full part, in at least part of the proceedings. As he also submitted, the panel's decision in the present case falls within the ordinary reading of the words.
- Nor are the general words of rule 19(3) to be cut back, by implication, because of the specific powers conferred by rules 19(4) and 19(6). It may be, as Mr Southey submits, that rules 19(4) and 19(6) are strictly speaking unnecessary on this reading of rule 19(3), but this is not enough, in my judgment, to require rule 19(3) to be given a meaning which it would not otherwise have. It is therefore beside the point that the panel could not have excluded the claimant under either rule 19(4) or rule 19(6). That is not what the panel purported to do. It purported to exercise its powers under rule 19(3) to hear the evidence in such way as it thought fit.
- Rule 19 gave the panel power to proceed as it did.
- There is in any event, as it seems to me, another and wider ground upon which the panel could have proceeded.
- At this point it is convenient to return to R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738. In that case (see at para [34]) the question was whether the Board, within the powers granted by the 1991 Act and compatibly with Article 5, could withhold evidence not merely from the prisoner but also from his legal representatives, instead disclosing it to a specially appointed advocate ("SAA") who would represent the prisoner in his absence at a closed hearing before the Board. By a bare majority (Lord Woolf CJ, Lord Roger of Earlsferry and Lord Carswell, Lord Bingham of Cornhill and Lord Steyn dissenting) the House of Lords held that the Board did have that power. Lord Rodger of Earlsferry (at para [107]) and Lord Carswell (at para [131]) explicitly found the power in paragraph 1(2)(b) of Schedule 5 to the 1991 Act. As Lord Carswell put it:
"The functions of the board are to assess whether it is safe to release offenders or whether they would constitute a danger to the public if set free from prison. In order to discharge these functions it is essential that it has before it all material information necessary for determination of that issue of public safety. If the only effective way to get that information from reluctant informants is to use the SAA procedure, then I consider that the use of that procedure incidental to or conducive to the discharge of its functions."
- Both Lord Woolf CJ (at paras [56], [65]) and Lord Carswell (at para [132]) were content to put the point on an even wider ground. As Lord Woolf CJ put it at para [65]:
"the authorisation [scil, to withhold evidence from the prisoner] is to be implied from the duty of the board to conduct hearings which will enable it to reconcile the triangulation of interests to which I have referred."
He returned to the same point at para [83]:
"The board has ample express and implied powers to enable the board in the great majority of situations to give such directions as are needed to ensure that the proceedings before it are conducted fairly and justly having regard to the interests of the prisoner, the public and those who provide it with information to enable it to perform its role."
- If the Board has power to exclude both the prisoner and his representatives, and that is what the House decided in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738, then by parity of reasoning it must have power to take the less drastic step to which the panel had recourse in the present case.
- Mr Southey sought to escape from this reading of rules 19(2) and 19(3) and paragraph 1(2)(b) by submitting, in reliance upon what Lord Steyn and Lord Hoffmann said in R v Secretary of State for the Home Department ex p Simms [2000] 2 AC 115 at pp 130, 131, that the principle of legality means, as Lord Hoffmann put it, that "fundamental rights cannot be overridden by general or ambiguous words". The short answer to this, in my judgment, is that this is the very approach, adopted by the dissenting minority in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738 (see Lord Bingham of Cornhill at paras [25]-[26] and Lord Steyn at para [93]), which was rejected by the majority.
- For these reasons I answer the first question in the affirmative. As a matter of domestic law the panel had the power to proceed as it did.
- I turn, therefore, to the second question: Is domestic law compatible with the Convention?
- On this part of his case Mr Southey started with R v Taylor (Gary) (1994) Times Law Reports 17 August where the Court of Appeal (Criminal Division) held that a defendant in a criminal trial has a fundamental right to see and to know the identity of his accusers, including witnesses for the prosecution and that this right should only be denied in rare and exceptional circumstances (emphasis added).
- Giving the judgment of the court Evans LJ said that whether such circumstances existed was pre-eminently a matter for the exercise of the trial judge's discretion and identified the following amongst the factors that were relevant to the exercise of that discretion:
"4 The court must be satisfied that there would be no undue prejudice to the accused, although some prejudice was inevitable, even if it was only the qualification placed on the right to confront a witness as accuser. There might also be factors pointing the other way, for example as in the present case where the defendants could see the witness on a video screen.
5 The court could balance the need for protection of the witness, including the extent of that protection, against unfairness or the appearance of unfairness."
In that case, where the evidence against the defendant came from accomplices, the only relevant corroborative evidence was that of a witness who was permitted by the judge to give evidence behind a screen where counsel and the jury could see her but the defendant could not, although he could see her on a video monitor. The judge also directed that her name and address should not be revealed. The defendant's appeal against conviction was dismissed, Evans LJ observing that:
"The judge's ruling in the present case was detailed and referred to the factors listed above. The law gave the trial judge the power to make an order that a witness remain anonymous in the exercise of his discretion, and the present case was not one where there were any grounds for supposing that the witness was not impartial or had an axe to grind. In their Lordships' view the judge was entitled to conclude that the witness be allowed to give her evidence anonymously."
- However, as Mr Southey correctly submitted, the right to be present during criminal proceedings is protected not merely by the common law but also by Article 6 of the Convention. In Ekbatani v Sweden (1988) 13 EHRR 504 at para [25] the Strasbourg court said that:
"it flows from the notion of a fair trial that a person charged with a criminal offence should, as a general principle, be entitled to be present at the trial hearing."
- And in Kostovski v Netherlands (1989) 12 EHRR 434 at para [41] the court said that:
"In principle, all the evidence must be produced in the presence of the accused at a public hearing with a view to adversarial argument … As a rule … an accused should be given an adequate and proper opportunity to challenge and question a witness against him, either at the time the witness was making his statement or at some later stage of the proceedings."
- Explaining why in that case there had been a breach of Article 6 the court added at para [44]:
"The right to a fair administration of justice holds so prominent a place in a democratic society that it cannot be sacrificed to expediency. The Convention does not preclude reliance, at the investigation stage of criminal proceedings, on sources such as anonymous informants. However, the subsequent use of anonymous statements as sufficient evidence to found a conviction, as in the present case, is a different matter. It involved limitations on the rights of the defence which were irreconcilable with the guarantees contained in Article 6. In fact, the Government accepted that the applicant's conviction was based "to a decisive extent" on the anonymous statements."
- The critical authority for present purposes is the decision of the Strasbourg court in Doorson v Netherlands (1996) 22 EHRR 330 where the applicant had been convicted of drug trafficking on the evidence of witnesses (Y15 and Y16) who had not been heard in his presence and whom he had not had an opportunity to question. His complaint that the taking of, hearing of and reliance on that evidence violated Article 6 was rejected.
- Referring to its earlier decision in Kostovski v Netherlands (1989) 12 EHRR 434, the court said at para [69]:
"As the Court has held on previous occasions, the Convention does not preclude reliance, at the investigation stage, on sources such as anonymous informants. The subsequent use of their statements by the trial court to found a conviction is however capable of raising issues under the Convention. As was already implicit in paragraphs 42 and 43 of the above-mentioned Kostovski judgment, such use is not under all circumstances incompatible with the Convention."
The court then formulated this important statement of principle at para [70]:
"It is true that Article 6 does not explicitly require the interests of witnesses in general, and those of victims called upon to testify in particular, to be taken into consideration. However, their life, liberty or security of person may be at stake, as may interests coming generally within the ambit of Article 8 of the Convention. Such interests of witnesses and victims are in principle protected by other, substantive provisions of the Convention, which imply that Contracting States should organise their criminal proceedings in such a way that those interests are not unjustifiably imperilled. Against this background, principles of fair trial also require that in appropriate cases the interests of the defence are balanced against those of witnesses or victims called upon to testify."
- Having concluded that there was sufficient reason in the particular circumstances of the case for maintaining the anonymity of Y15 and Y16 the court continued at para [72]:
"The maintenance of the anonymity of the witnesses Y15 and Y16 presented the defence with difficulties which criminal proceedings should not normally involve. Nevertheless, no violation of Article 6(1) taken together with Article 6(3)(d) of the Convention can be found if it is established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities."
- The court then turned in para [73] to consider what had actually happened:
"In the instant case the anonymous witnesses were questioned at the appeals stage in the presence of Counsel by an investigating judge who was aware of their identity, even if the defence was not. She noted, in the official record of her findings dated 19 November 1990, circumstances on the basis of which the Court of Appeal was able to draw conclusions as to the reliability of their evidence. In this respect the present case is to be distinguished from that of Kostovski. Counsel was not only present, but he was put in a position to ask the witnesses whatever questions he considered to be in the interests of the defence except in so far as they might lead to the disclosure of their identity, and these questions were all answered. In this respect also the present case differs from that of Kostovski."
- The court's appraisal of this process appears in paras [74]-[75]:
"[74] While it would clearly have been preferable for the applicant to have attended the questioning of the witnesses, the Court considers, on balance, that the Amsterdam Court of Appeal was entitled to consider that the interests of the applicant were in this respect outweighed by the need to ensure the safety of the witnesses. More generally, the Convention does not preclude identification – for the purposes of Article 6(3)(d) – of an accused with his Counsel.
[75] … in the circumstances the "counterbalancing" procedure followed by the judicial authorities in obtaining the evidence of witnesses Y15 and Y16 must be considered sufficient to have enabled the defence to challenge the evidence of the anonymous witnesses and attempt to cast doubt on the reliability of their statements, which it did in open court by, amongst other things, drawing attention to the fact that both were drug addicts."
- The court added this warning at para [76]:
"Finally, it should be recalled that, even when "counterbalancing" procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements. That, however, is not the case here: it is sufficiently clear that the national court did not base its finding of guilt solely or to a decisive extent on the evidence of Y15 and Y16.
Furthermore, evidence obtained from witnesses under conditions in which the rights of the defence cannot be secured to the extent normally required by the Convention should be treated with extreme care. The Court is satisfied that this was done in the criminal proceedings leading to the applicant's conviction, as is reflected in the express declaration by the Court of Appeal that it had treated the statements of Y15 and Y16 "with the necessary caution and circumspection"."
- To similar effect is the later decision of the court in SN v Sweden (2002) 39 EHRR 13 to which Mr Kovats directed my attention.
- Doorson v Netherlands (1996) 22 EHRR 330 was referred to without any sign of disapproval or challenge – indeed, quite the reverse – both in Brown v Stott [2003] 1 AC 681 and in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738. It is plainly an integral and important part of the Strasbourg jurisprudence described by Lord Bingham of Cornhill in a well-known passage in Brown v Stott [2003] 1 AC 681 at p 704:
"The jurisprudence of the European court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for … The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention."
- Mr Southey did not seek to suggest the contrary. Lord Hope of Craighead expressed the same fundamental point at p 719:
"the court has consistently recognised that, while the right to a fair trial is absolute in its terms and the public interest can never be invoked to deny that right to anybody under any circumstances, the rights which it has read into article 6 are neither absolute nor inflexible."
- Faced with Doorson v Netherlands (1996) 22 EHRR 330, Mr Southey was constrained to accept that neither Article 6 nor Article 5(4) necessarily requires the defendant (or, here, the prisoner) to be present. He submitted, however, and I agree, that any decision to prevent a person being present must be justified and proportionate.
- In my judgment, there is nothing in the Convention to invalidate the domestic law. My reading of rules 19(2) and 19(3) and of paragraph 1(2)(b) is, in my judgment, entirely compatible with the Convention. It is, in my judgment, impossible to argue the contrary in the light of Doorson v Netherlands (1996) 22 EHRR 330. If in that case the challenge failed under Article 6, the same must go for any challenge based on Article 5(4).
- I should add that my reading of Doorson v Netherlands (1996) 22 EHRR 330 is confirmed by two decisions of the Court of Appeal, Criminal Division, which have come to my attention since the hearing: R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257, and R v Al-Khawaja [2005] EWCA Crim 2697, [2005] All ER (D) 41 November. Since they merely reinforce and confirm the decision to which I had in any event come there is no need for me to hear argument on them.
- In R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257, the Court of Appeal (Criminal Division) had to consider whether the use in a murder trial of statements made by witnesses who refused to give oral evidence through fear, and therefore could not be cross-examined, infringed Article 6. Having considered Doorson v Netherlands (1996) 22 EHRR 330, a number of earlier decisions of the Strasbourg court and its later decisions in Van Mechelen v Netherlands (1997) 25 EHRR 647 and Lucà v Italy (2001) 36 EHRR 807, the Court of Appeal concluded at para [50]:
"Evidence must normally be produced at a public hearing and as a general rule article 6(1) and (3)(d) of the Convention require a defendant to be given a proper and adequate opportunity to challenge and question witnesses … It is not necessarily incompatible with article 6(1) and (3)(d) of the Convention for depositions to be read and that can be so even if there has been no opportunity to question the witness at any stage of the proceedings. Article 6(3)(d) is simply an illustration of matters to be taken into account in considering whether a fair trial has been held. The reasons for the court holding it necessary that statements should be read and the procedures to counterbalance any handicap to the defence will all be relevant to the issue, whether, where statements have been read, the trial was fair … The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair."
The Court of Appeal went on to consider, and rejected, the proposition that where the circumstances would otherwise justify the reading of a statement where the defendant has had no opportunity to question the witness at any stage of the trial process, the statement must not be allowed to be read if it is the sole or decisive evidence against the defendant.
- In R v Al-Khawaja [2005] EWCA Crim 2697, [2005] All ER (D) 41 November, the court adopted the same approach. Following Doorson v Netherlands (1996) 22 EHRR 330 and R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257, it held that there was no breach of Article 6(3)(d) in reading the statement of someone who had died and therefore could not be cross-examined.
- I conclude, therefore, that domestic law is compatible with the Convention. The remaining question, therefore, given that the panel had power to do what it did, is whether in the circumstances it acted lawfully and in a manner compliant with the Convention.
- It is well established that whether there is a breach of Article 6 in any particular case is to be assessed looking at the trial "as a whole": see Brown v Stott [2003] 1 AC 681 per Lord Bingham of Cornhill at p 693. The Strasbourg court has consistently held that the central question is "whether the proceedings as a whole were fair": see, for example, Schenk v Switzerland (1988) 13 EHRR 242 at para [46] and Khan v United Kingdom (2000) 31 EHRR 1016 at para [38], to refer only to decisions which were cited in Brown v Stott [2003] 1 AC 681. There are many others. Thus in Mantovanelli v France (1997) 24 EHRR 370, recently applied by the Court of Appeal in Re V (A Child) [2004] EWCA Civ 1575, [2005] UKHRR 144, the court, referring to its previous decision in Schenk v Switzerland (1988) 13 EHRR 242, said at para [34]:
"The Court has … to ascertain whether the proceedings considered as a whole, including the way in which the evidence was taken, were fair as required by Article 6."
- Exactly the same principle applies to the procedural safeguards imposed in a case such as this by Article 5(4) (and, for that matter, to the procedural safeguards imposed by Article 8 in cases to which that Article applies): see R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738, at paras [19], [77], [83] and [112]. One has to look at the proceedings considered as a whole.
- There is a further point. Not merely must the court assess the proceedings "as a whole". This assessment requires what Lord Bingham of Cornhill referred to in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738, at para [19], as "acute sensitivity … to the facts of [the] given case"; what Waller LJ had in mind in R v Sellick [2005] EWCA Crim 651, [2005] 1 WLR 3257, at para [38], when he described the question whether Article 6 has been infringed as being "very fact sensitive". As Lord Woolf CJ said in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738, at para [77]:
"[where] the border which is the parameter between what is acceptable and what is not acceptable … is situated is fact-specific, depending on the all circumstances that have to be balanced."
- In this balancing exercise one has to have regard not merely to the interests of the prisoner but also to the public interest and the interests of those who give evidence. Lord Woolf CJ put the point very clearly in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738, at paras [80]-[81]:
"[80] The members of the public who could be affected by a decision of the board have human rights as well as the appellant. If the board releases a prisoner when it is unsafe to do so, the public's individual rights can be grievously affected. In addition in a situation where the board has to consider whether to withhold evidence from a prisoner, for example to protect an individual whose life could be threatened if his identity were revealed, the board is under a duty to protect this individual's interests. Not to do so could involve the breach of article 2 or 3 of the European Convention. The board can refuse to pay any attention to the information that the individual could provide. This would mean, however, that the board could be in breach of its express statutory duty. So it is my view that the information should only be disregarded if there is no other way in which the prisoner's fundamental right to be treated fairly can be protected.
[81] A situation in which the board is faced with this dilemma requires most anxious consideration. The board in my opinion must be able to reconcile the interests involved wherever this is possible. I cannot conceive that when Parliament entrusted the protection of the public to the board, Parliament could have had any other intention. It was an essential part of the board's role."
As Doorson v Netherlands (1996) 22 EHRR 330 shows, the same approach arises in principle where an informant's or witness's rights under Article 8 are engaged. As Mr Southey himself had to accept, Doorson v Netherlands (1996) 22 EHRR 330 recognises the obligation on the tribunal to protect vulnerable witnesses.
- In the present case it is said that the wife's interests under Article 8 were engaged, not just the claimant's interests under Article 5(4). Mr Southey disputed this assertion, relying for this purpose upon the observations of the Strasbourg court in Costello-Roberts v United Kingdom (1993) 19 EHRR 112 at para [36] that:
"not every act or measure which may be said to affect adversely the physical or moral integrity of a person necessarily gives rise to … an interference [with Article 8] … the treatment complained of by the applicant did not entail adverse effects for his physical or moral integrity sufficient to bring it within the scope of the prohibition contained in Article 8."
- I cannot agree with Mr Southey. The wife's interests under Article 8 were, in my judgment, engaged on each of two quite separate and distinct grounds. First, the matters on which she was called to give evidence, relating to her treatment at the hands of her (former) husband, were of themselves matters falling within the ambit of Article 8, as matters relating to both her "private" and her "family" life. Secondly, and in any event, the possible effect on her of having to give evidence in circumstances where she was, as we have seen, too frightened to give evidence in the claimant's presence, was in my judgment sufficiently serious as to engage Article 8.
- Mr Southey says that there was here a breach of Article 5(4) because the panel:
i) failed to balance the interests of the claimant against those of the wife; and
ii) failed adequately to consider where there was sufficient justification for the wife's unwillingness to give evidence in the claimant's presence.
I do not accept either of those complaints. In my judgment the panel was entitled to decide as it did, and for the reasons it gave. In doing so it was not acting in breach of Article 5(4).
- Mr Southey says that the panel's approach was flawed because, as he puts it, the panel essentially accepted conditions imposed by the wife without considering whether those conditions were justified. In particular, he says, the promise given to the wife cannot amount to adequate justification, for that would permit the police (or other State authorities) to undermine the fairness of proceedings by making a similar promise. He complains that the panel failed to investigate the wife's position with the wife herself, confining itself to what it was told by the secretariat and by DC Hopkins. If the panel had itself questioned the wife as to the basis of her objections it would have been in a better position, he says, to form a view as to whether she was inflexible or whether some alternative and less drastic solution might have been acceptable. The panel, he says, failed to consider whether the Article 8 threshold was crossed and, he complains, gave no consideration to the prejudice the claimant might suffer. Furthermore, he says, the panel did not explore the possibility of a video link. Nor did it make any arrangements for an audio recording or transcript of the wife's evidence. As Mr Southey points out, there may be occasions when the lay client, who after all knows more about his own case than even the most carefully briefed and conscientiously prepared advocate, will spot a point while a witness is giving evidence in chief, or indeed in cross-examination, the possible significance of which may have passed his advocate by. So the absence of any recording or transcript is potentially significant. Finally, he says, the panel could have compelled the wife's attendance at the hearing, irrespective of her wishes. That may be so, but it does not really go to the problem with which the panel was faced: a witness who was present but refusing to give evidence unless the prisoner was removed. Moreover, this is not something that was suggested by the claimant's representatives either before or on 14 October 2004.
- In my judgment the panel was entitled to take into account the fact that the wife had been given a promise. It was entitled to take the view that her interests had to be taken into account and balanced against the claimant's. In deciding to take the course it did, the panel, as its formal decision shows, took into account not merely the interests of the wife but also the claimant's interests and, importantly, the public interest. It decided, and in my judgment was entitled to decide, as it was put in paragraph 20 of its formal ruling, that "there was no alternative but to rule as it did if it were satisfactorily to resolve the issues of fact between you and your former wife." In proceeding in that way the panel faithfully applied the principles as they were subsequently laid down by Lord Woolf CJ in R (Roberts) v Parole Board and another [2005] UKHL 45, [2005] 2 AC 738. The panel was entitled to conclude that the wife was vulnerable to a face-to-face confrontation, and that her ability to give evidence which was of obvious importance, and which the panel justifiably felt it had to hear, might otherwise have been seriously impaired, if indeed she would have been prepared to give evidence at all.
- Quite apart from all that, I am quite unable to see any respect in which, at the end of the day, the claimant can say he suffered any prejudice as a result of what was done. The fact is that the evidence the wife was to give was already available to the claimant and his advisers before the hearing. And the fact that in the event he and they were able to take advantage of this is shown, as Mr Kovats pointed out, by the lengthy and detailed representations his solicitor had made in a letter dated 27 August 2004 (referred to by the panel in paragraph 21 of its formal decision). The fact is that the claimant was represented by counsel throughout, who was able to watch and hear the wife's evidence-in-chief and was then able to cross-examine her. Moreover, as I have mentioned, his counsel was able to take further instructions from the claimant after the wife had given her evidence-in-chief and before she was cross-examined, the panel very properly adjourning for that purpose. Furthermore, the panel having ruled as it did, the claimant's counsel made no application, for example, an application for further time before starting his cross-examination, or an application for another break to take instructions before concluding his cross-examination. Nor was any application made for a video link or for an audio recording or transcript of the wife's evidence.
- And it is a striking fact that, although a year had passed since the panel gave its decision, a year in which it might be thought that the claimant and those who represented him before the panel would have had more than ample time to consider whether he had suffered any prejudice as a result of the panel's ruling, Mr Southey was quite unable to point to any prejudice the claimant had suffered. Mr Southey was quite unable to point to anything in the wife's evidence on which she was not cross-examined but might have been if only the claimant had been there. He was not able to suggest any way in which matters might possibly have turned out differently if the claimant had not been excluded.
- It is also worthy of note, as paragraph 21 of its formal decision shows, that the panel was far from uncritical in its appraisal of the wife's evidence and that her evidence was far from being the only evidence it relied upon in coming to its conclusion. It is clear, for example, that Mr Kelly's views were given considerable weight.
- With the benefit of hindsight it is possible to question the wisdom of giving the wife the promise beforehand. And it might have been better if the panel had itself heard from the wife, rather than assessing matters on the basis of what it was told by the secretariat and DC Hopkins. The panel might perhaps have explored the possibility of a video link: it may be that the wife would have had no objection to this. And in future, if such a situation re-occurs, the Board may think it appropriate to ensure that the evidence of any witness taken in the prisoner's absence is audio-recorded so that a transcript can be prepared if needed. But this is not the point. The question is not whether the panel adopted the ideal or even the best solution. The question is whether, at the end of the day, the proceedings considered as a whole, including the way in which the wife's evidence was taken, were fair. If they were, then there will have been no breach of Article 5(4).
- I do not intend to lay down any general principles governing how in future a panel should act in circumstances such as arose in this case. The question at the end of the day is whether, in all the circumstances of this case, this claimant had the fair hearing guaranteed to him by Article 5(4). In my judgment he did. I agree with Mr Kovats that the panel's decision was in accordance with the law, it was fair at common law and it complied with the panel's obligations under the Convention.
- For all these reasons this application for judicial review fails and must be dismissed.
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MR JUSTICE MUNBY: The two questions in this case are whether the Parole Board has power to exclude a prisoner from part of a hearing whilst evidence is being taken and, if the court does have the power, whether that power was lawfully exercised in the particular circumstance of the present case.
For reasons set out in a written judgment which has already been sent to the parties in draft and which I am going to hand down formally in a moment or two, the board has that power and it was lawfully exercised in the present case. In those circumstances, this application for judicial review fails and is dismissed.
I think there is no dispute, subject to one matter, as to the form of the order --
MR KOVATS: That is correct.
MR JUSTICE MUNBY: -- which is that the application is dismissed with no orders to costs save detailed assessment. I understand Mr Armstrong has an application for permission to appeal.
MR ARMSTRONG: There is, and I am simply going to adopt the written note that I think you have from Mr Southey.
MR JUSTICE MUNBY: Yes.
MR ARMSTRONG: I think your Lordship has seen that --
MR JUSTICE MUNBY: I have seen that note, yes. Mr Southey makes it clear that the appeal is sought to be brought on a single point, and that is the article 8 point.
MR ARMSTRONG: My Lord, that is right.
MR JUSTICE MUNBY: So that in terms of the judgment, the single asserted ground of appeal is that I was in error in relation to paragraph 63.
MR ARMSTRONG: My Lord, yes -- it perhaps starts at paragraph 62 onwards.
MR JUSTICE MUNBY: But the actual finding was in paragraphs 62 and 63.
MR ARMSTRONG: That is right.
MR JUSTICE MUNBY: There is nothing you want to add on that, is there?
MR ARMSTRONG: There is not, my Lord.
MR JUSTICE MUNBY: Then, quite apart from that, you say there is compelling reason why the appeal should in any event in respect of merits be heard. Mr Southey has identified two points there.
MR ARMSTRONG: That is right.
MR JUSTICE MUNBY: Thank you very much. Mr Kovats, I think I have a brief note indicating that the application is opposed.
MR KOVATS: That is correct.
MR JUSTICE MUNBY: On the ground there is no real prospect of success and no other compelling reason.
MR KOVATS: Yes.
MR JUSTICE MUNBY: As I understand it, there is no appeal against as it were the front bench issue in the case; namely, the meaning of the rules and whether the rules gave power.
MR KOVATS: That is correct.
MR JUSTICE MUNBY: Very well. There is nothing you want to add, is there?
MR ARMSTRONG: No, my Lord.
MR JUSTICE MUNBY: I now have to consider an application for permission to appeal. That application is founded on two grounds. The first is that in relation to one -- but I emphasise only one -- specific point it is said that an appeal would have a real prospect of success. That single point, it may be noted, was not in fact the major point which was argued before me as to the meaning of the rules. It is the point on which my ruling is to be found set out in paragraph 63; namely, my ruling that the interests of the wife were sufficiently seriously involved as to engage the protection of Article 8.
In relation to that part of the application, the question is whether I consider that an appeal would have a real prospect of success. I am not persuaded that it would have a real prospect of success. On that ground, on that single matter, I refuse the application put on that basis.
It is also said, quite apart from that, there are compelling reasons why this matter is one that should be heard by the Court of Appeal. Those being essentially that the proper ambit of Rule 19 of the Parole Board rules is potentially said to have great significance to other prisoners, and that my conclusion that it is for the claimant to establish prejudice is potentially again of general significance.
It is to be noted that in relation to neither of those two matters is it asserted that there is any real prospect of an appeal succeeding. It is simply submitted, as I understand it, that there is a compelling reason why the Court of Appeal should consider those two matters.
I do not myself agree that there is any compelling reason why those two matters should be considered by the Court of Appeal. But in any event it seems to me as a general principle, and certainly of this particular case, that if it is to be said that a matter ought to be considered by the Court of Appeal not because it is said there is a real prospect of success but simply on the basis it is said there is some compelling reason why the Court of Appeal, notwithstanding the absence of real prospects of success, should consider the matter, that is vehemently a decision to be taken by the Court of Appeal and not by the judge at first instance.
But I make clear that I am in any event unpersuaded that there is any compelling reason why this matter should be heard by the Court of Appeal. Accordingly, for those reasons, I refuse the application for permission.
Are there any other matters?
MR ARMSTRONG: No.
MR KOVATS: No.
MR JUSTICE MUNBY: Very well, I will make an order dismissing the application for judicial review, dismissing the claimant's application for permission to appeal and making no orders for costs, save a detailed assessment of the claimant's publicly funded costs. Mr Kovats, I think you have copies of the final version of the judgment?
MR KOVATS: Thank you, yes.
MR JUSTICE MUNBY: I think there are copies available for anybody else who needs them. Thank you very much.
