Lexploria

FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 20657/92

by A.M.

against the United Kingdom

The European Commission of Human Rights sitting in private on

2 December 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First Chamber a.i.

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 November 1990

by A.M. against the United Kingdom and registered on 21 September 1992

under file No. 20657/92;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Irish citizen born in 1958. He is

represented before the Commission by Messrs. Oliver J. Kelly & Co.,

solicitors, of Belfast.

The facts of the case, as submitted by the applicant's

representatives and apparent from the documentation submitted, may be

summarised as follows.

On 1 June 1989 the applicant was convicted, with another man, of

the murder of two British soldiers in Belfast on 19 March 1988.

The trial was unusual in that, because the events arose from the

highly publicised funeral of a taxi driver, himself killed at the

funeral of persons who had been killed by British security forces in

Gibraltar, television cameras and an army helicopter had filmed the

events leading to the death of the two soldiers. The judgment of the

trial judge deals largely with the question of identification by police

officers of the applicant and his co-defendant from the various filmed

versions of the events. In the course of the trial the prosecution

applied for a direction that professional cameramen, journalists and

photographers employed by television companies and newspapers who had

taken films and photographs of the incidents should not be identified

in court, and, in particular, that when they gave evidence their faces

should not be seen by the accused or by the public or the press, but

only by the court and by the counsel and solicitors appearing on behalf

of the prosecution and the defence. The judge's reasons for acceding

to the application are as follows.

"Crown Counsel made the application on the ground that the

direction was necessary in the interests of the due

administration of justice because the witnesses from the media

who would be called by the Crown were concerned for their safety

if they were identified and Crown Counsel made the further point

that this is the first in a series of trials in which the Crown

would propose to call witnesses form the media who were present

on the Andersonstown Road on 19 March 1988.

Counsel for both accused did not object to the identities of the

witnesses being withheld from the press and the public and to

their faces being concealed from the press and the public,

provided that the accused could see them. The reasons why

counsel for the accused submitted that the accused should be able

to see the face of a witness and that that witness should be able

to see the faces of the accused was because of the possibility

that one of the accused, on seeing the witness, might realise

that the witness if asked by defence counsel, could say that he

(the witness) has seen that accused at a place in the general

area of the Andersonstown Road which was different from the place

where the Crown alleged he was at a particular time ...

I consider that those who take films and photographs for

television and the press at events in Northern Ireland, such as

[the present events] ... and who are called by the Crown to give

evidence at a criminal trial of the taking of those films and

photographs, would feel concerned for their safety if their

identities became known to certain sections of the public, and

that knowledge that they would be identified in the witness box

would operate to deter them from giving their evidence frankly

and fully in the present trial and in subsequent trials...

The effect of my direction is not to exclude the public and the

press from the court. The public will still hear the evidence

of the witnesses and the press will hear it and report it, but

what the press will be unable to do is to report the identity of

the witness. It is appropriate to refer to the judgment of Lord

Widgery C.J. in R. v. Socialist Worker Ex p. A-G at 651H:-

'The great virtue of having the public in our courts

is that discipline which the presence of the public

imposes upon the court itself. When the court is full

of interested members of the public, as indeed one can

say it is today, it is bound to have the effect that

everybody is more careful about what they do, everyone

tries just that little bit harder and there is a

disciplinary effect on the court which would be

totally lacking if there were no critical members of

the public or press present.

When one has an order for trial in camera, all the

public and all the press are evicted at one fell swoop

and the entire supervision by the public is gone.

Where one has a hearing which is open, where the names

of the witnesses are withheld, virtually all the

desirable features of having the public present are to

be seen. The only thing which is kept from their

knowledge is the name of the witness.'

I make it clear that my direction, of course, contains no

reflection whatever upon, and no implication whatever

against, the accused. The direction relates solely to the

concerns of the witnesses and the effect on them if they

knew that their identities would be revealed to the public"

In his original grounds of appeal to the Court of Appeal in

Northern Ireland, the applicant did not refer to the screening of

witnesses. The matter was, however, raised at the Court of Appeal as

the following ground:

"8. That the appellant was denied a fair trial by reason

of the learned trial judge's ruling that the identity of

certain witnesses be not disclosed to the appellant or

defence counsel and that the appellant should not be

allowed to see those witnesses."

In his judgment of 1 June 1990 Lord Justice Kelly found, in

connection with this ground of appeal, as follows:

"It was made plain that none of these witnesses would give

evidence that implicated or disadvantaged either of the

appellants. Their evidence would be confined to stating

that they had taken the films and photographs, although

some of them would also be asked to describe events they

had witnessed on the Andersonstown Road at the time.

At the trial defence counsel raised no objection to the

identities of the witnesses being withheld. They did

however object to the witnesses' faces being screened from

the view of the appellants...

Before considering the submissions of Miss McDermott

certain facts must be stated because they are important to

the application of these principles. The statement that

the witnesses feared for their safety if their identities

were revealed was not challenged by the defence in cross-

examination or at any time. That it was in the interests

of the administration of justice that their evidence should

be received was not challenged either. When called to give

evidence they proved that they had taken the video films

and the photographs showing the appellants at the funeral

before the events which gave rise to the charges against

them. Their evidence did not implicate either appellant

...

It seems to us that the concealment of a witness' face from

the accused is prima facie contrary to "general aspect of

open justice in the courtroom" (Lord Diplock in [Attorney-

General v. Leveller Magazine [1979] AC 440] at p. 452a).

But as Viscount Haldane pointed out, particular

circumstances may justify and require some appropriate

departure from the general rule...

...it is the experience of trial judges in terrorist trials

in this jurisdiction that even prosecution witnesses whose

evidence is merely formal, unchallenged by the defence, but

a necessary link in the narrative of the prosecution case,

suffer considerable anxiety for their safety as a result.

Although their evidence in no way implicates an accused,

their anxiety is raised because of their association with

the prosecution case.

Mr. Finegan made the additional point that the trial judge

should have been given the names and addresses of those

media witnesses and this would have served as some

restraint on their evidence. This was not raised at the

trial and we do not know whether the trial judge was

offered names and addresses and, if so, whether he refused

to receive them. In any event, if he was not given their

names and addresses or if he refused to receive them and if

this did constitute an irregularity, we cannot see that it

was material or that any injustice was suffered having

regard to the non-implicatory nature of their evidence.

Generally we think it is good practice for a trial judge to

note the names and addresses of witnesses whose identity

has been withheld."

The appeal was dismissed.

On 14 November 1990 the Court of Appeal, by consent, refused the

application for leave to appeal to the House of Lords against the

judgment of 1 June 1990.

COMPLAINTS

The applicant alleges a violation of Article 6 para. 1 of the

Convention by virtue of the fact that the identity of witnesses was

disclosed only to the Crown, and witnesses were screened from the

accused and the public.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)

of the Convention. That provision provides, insofar as relevant, as

follows:

"1. In the determination of ... any criminal charge against

him, everyone is entitled to a fair and public hearing ...

Judgment shall be pronounced publicly but the press and public

may be excluded from all or part of the trial in the interest of

morals, public order or national security in a democratic

society, ... or to the extent strictly necessary in the opinion

of the court in special circumstances where publicity would

prejudice the interests of justice."

The Commission notes that the applicant did not object to the

screening of the witnesses from the public, but only to the fact that

he was unable to see the witnesses in question. A question may thus

arise as to whether the applicant has exhausted domestic remedies in

this respect. However, the Court of Appeal considered the question of

the screening of the witnesses generally, and the Commission finds it

not necessary in the present case to consider the question of

exhaustion of domestic remedies as the application is in any event

inadmissible for the following reasons.

The Commission recalls the case-law of the European Court of

Human Rights that, in principle, all evidence must be adduced in the

presence of the accused at a public hearing with a view to adversarial

argument, but this does not mean that a statement from a witness must

always be made in court and in public if it is to be admitted in

evidence (Eur. Court H.R., Asch judgment of 26 April 1991, Series A no.

203, p. 10, para. 27). The defendant must be given an adequate and

proper opportunity to challenge and question the witnesses against him

(ibid.). In the present case, the witnesses whose identity was not

disclosed to the public or the accused, were present in court and could

be seen by the judge and by the representatives of both prosecution and

defence. The evidence itself concerned not the question of

identification of the applicant (which evidence was given by police

officers whose identity was not withheld), but merely the making of

certain filmed and photographic evidence. It was accepted by the

defence that the evidence did not implicate the applicant.

Accordingly, given that the applicant was able, through his

representatives who could see the witnesses, to put all questions he

wished to the witnesses in question, and that, far from being the only

item of evidence on which the trial court based its decision to

convict, the evidence in question did not implicate the applicant at

all, the Commission finds no indication that the decision to screen

witnesses from the applicant interfered with his rights under either

Article 6 para. 1 (Art. 6-1) or Article 6 para. 3(d) (Art. 6-3-d) of

the Convention.

Moreover, to the extent that the public were not able to see the

screened witnesses, the Commission notes that the interference with the

right to publicity was kept to a minimum by the fact that the public

were not excluded from the proceedings, but could hear all questions

put to and answers given by those witnesses. The Commission finds that

screening was "in the interest of ... public order or national

security" and "to the extent strictly necessary in the opinion of the

court in special circumstances where publicity would prejudice the

interests of justice".

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant also alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention in that the identity of the anonymous

witnesses was disclosed only to the Crown, and not to the trial judge.

The Commission notes that it is clear from the judgment of the

Court of Appeal that this point was not made at the trial, and the

Court of Appeal was not aware whether the trial judge had been offered

names and addresses, and if so, whether he refused to receive them.

The Commission agrees with the Court of Appeal that a trial judge

should be aware of the names and addresses of witnesses whose identity

has been withheld, but also finds, given its findings above, that even

if the judge was not aware of the names and addresses of the witnesses

at issue, this did not amount to a violation of Article 6 para. 1

(Art. 6-1) of the Convention as the evidence in any event was neutral

as to guilt.

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber a.i. President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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A.M. v. THE UNITED KINGDOM

A.M. v. THE UNITED KINGDOM

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