FOURTH SECTION

DECISION

Application no . 18743/06 Santino SELLICK and Carlo SELLICK against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 16 October 2012 as a Chamber composed of:

Lech Garlicki , President, David Thór Björgvinsson , Nicolas Bratza , Päivi Hirvelä , George Nicolaou , Nebojša Vučinić , Vincent A. D e Gaetano , judges, and Fatos Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 2 May 2006 ,

Having deliberated , decides as follows:

THE FACTS

1. The applicants , Mr Santino Sellick and Mr Carlo Sellick , are brothers who were born in 1981 and 1982 respectively. They are British nationals and they are currently detained at HMP Whitemoor . They were represented before the Court by Mr Paul Martin , a lawyer practising in Romford with Paul Martin & Co Solicitors , assisted by Mr S. Solley QC and Mr A. Dos Santos , counsel.

A. The circumstances of the case

2. At about 7 p.m. on 3 December 2001 Mr Paul Chambers was shot and killed in the car park of the Talisman public house in Wolverhampton .

3. The present application concerns the applicants ’ conviction for the murder of Mr Chambers. They were tried together with a third man , Dominic Marandola , who was acquitted by the jury. Their main ground of complaint to this Court is that , at the men ’ s trial , the trial judge (Butterfield J) allowed the statements of four people to be read to the jury because he was satisfied either that they had been kept away through fear or that they could not be found and reasonable steps had been taken to trace them.

4. The circumstances of Mr Chambers ’ murder , the trial and the applicants ’ subsequent , unsuccessful appeal to the Court of Appeal may be summarised as follows.

1. The persons involved

5. As stated above , Carlo and Santino Sellick are brothers. The ir half ‑ brother, Lee Sellick , was a friend of Mr Chambers. Lee Sellick ’ s girlfriend was Ms Carla Wedge. Santino Sellick ’ s girlfriend , Ms Tammy Pardoe , was Ms Wedge ’ s niece. Ms Carina Jackson , a friend of Tammy Pardoe , had been in a relationship with Carlo Sellick , which ended before the shooting. It was the statements of Lee Sellick , Carla Wedge and Carina Jackson (together with that of a fourth person , Ms Donna Mills) which came to be read at trial in the circumstances described in paragraphs 13–15 below. Tammy Pardoe gave live evidence , but as a hostile witness for the prosecution: see paragraph 16 below.

2. The murder

6. It was the prosecution ’ s case that Santino was the gunman. His motive for shooting Mr Chambers was that the deceased was a rival drug dealer and , just before the shooting , Santino had found out that Mr Chambers had slept with Tammy Pardoe . The prosecution also alleged that Carlo was Santino ’ s partner in drug dealing , that he drove Santino to the murder scene and that he provided the murder weapon. Mr Marandola was alleged to have been present at the scene as part of the joint enterprise of murder. It was also the prosecution ’ s case that , after the shooting , the three men had met Lee Sellick , Tammy Pardoe and Carla Wedge at a hotel where they discussed the shooting and how to ensure no one talked about it.

7. Santino ’ s defence was that he had been ill in bed at the time of the shooting. Carlo ’ s defence was that he was not present at the shooting and had no knowledge that it would take place. Mr Marandola ’ s case was that he was present at the scene of the shooting but did not know it would take place and was not a party to it.

3 . The statements of the four witnesses

8. In the course of the investigations , the police obtained the following witness statements.

9. Lee Sellick ’ s statements were made to the police after he had been arrested for conspiracy to murder Mr Chambers. He stated that he had been involved , with Carlo and Santino , in buying crack cocaine from Mr Chambers. In the days before the shooting , the brothers had owed GBP 2,000 to Mr Chambers , which Mr Chambers wanted paying. He also stated that , the day before the shooting , Tammy Pardoe and Santino had rowed because Ms Pardoe had told San tino that she had slept with Mr Chambers. On the day of the shooting he , Lee , had spoken to Mr Chambers about the money owed and learned that he would be at the Talisman that evening. He had told Carlo this and later telephoned Carlo from the pub to say that Mr Chambers was there. He had then left the pub for Carla Wedge ’ s flat. He returned to the pub with Ms Wedge when told about the shooting.

In the telephone calls after the shooting he had asked Carlo what was going on; Carlo had told him to make sure no one saw anything. When Lee asked how he could do that , Carlo told him to sort himself out or he would get the same. Carlo had also asked him whether Mr Chambers was dead or alive. The following day , Santino called him to tell him to book them into a hotel. When Carlo , Santino and Mr Marandola arrived there , Santino said “it was not supposed to happen like that”. Carlo said (referring to Mr Marandola ) “How do you think he feels? He only came along for the ride”.

In the course of his statements Lee Sellick also told the police that he was scared , not only for himself , bu t for his family and for Carla. Later he also said that he was frightened for his safety and for any revenge Carlo and Santino might take against him , but he was willing to go to court.

10. Carla Wedge in her statements also said that , before the shooting there had been a row at her flat between Santino and Tammy Pardoe in which Santino had used considerable violence on Ms Pardoe . Her account of events at the hotel was similar to Lee Sellick ’ s account. She agreed that , if asked by the police , she would limit her account to events in the car park after finding Mr Chambers collapsed. She did so out of fear for herself , Lee Sellick , Ms Pardoe and her children. Ms Wedge also stated that she too was scared and that she “had her children to think about”.

11. In her statement Carina Jackson stated that the three brothers had dealt in drugs and that she understood that Carlo and Santino obtained their supplies from Mr Chambers. Her relationship with Carlo ended before the shooting. After it she had seen Tammy Pardoe with a black eye. There had been an occasion in November 2001 when Carlo had asked her to hide a balaclava and gun for him.

12. Donna Mills , an ex-girlfriend of Santino , provided a statement as to the types of car that he drove.

4. The prosecution ’ s application to have the statements read to the jury and the trial judge ’ s rulings

13 . After making their statements , Lee Sellick and Carla Wedge were admitted to the witness protection scheme. On an unspecified date they left the scheme and returned to Wolverhampton , only to then disappear. When the matter came to trial at Birmingham Crown Court , neither Lee Sellick nor Carla Wedge could be found , despite witness summonses being issued for their attendance. The prosecution took the view that there had been a concerted attempt to subvert the trial and that this had been done on behalf of the defendants by members of their extended family. Accordingly , it applied for the statements of Lee Sellick and Carla Wedge to be read to the jury pursuant to section 23 of the Criminal Justice Act 1988 (see paragraph 33 below). Before determining that application , the trial judge heard evidence in chambers from Ms Wedge ’ s mother , Mrs Fox , and from two police officers who had attempted to trace Mr Sellick and Ms Wedge. One of the police officers gave evidence as to a conversation with Ms Wedge in which she recounted an incident where family members of the applicants approached her outside her son ’ s school and told her that “she should not be a grass”.

14. Having heard that evidence , the trial judge allowed the statements to be read. He ruled:

“Having heard and seen the witnesses called in this application , I am satisfied so that I am sure of the following facts:-

(1) Following the arrest of the defendants in February 2002 , both Carla Wedge and Lee Sellick were made subjects of a witness protection scheme;

(2) Both Carla Wedge and Lee Sellick voluntarily withdrew from that scheme in about April 2002 and returned to the Wolverhampton area where the murder had been committed. They were then living together and continued to live together until November of this year;

(3) Carla Wedge and Lee Sellick were informed in writing of the date of this trial in August 2002 and September 2002 and were notified on those occasions that they were required to attend as witnesses;

(4) On 18th September 2002 , Carla Wedge attended Billeston Street Police Station where she spoke to DC Hutton. In that conversation , she described an incident which had taken place outside her son ’ s school when members of the Gamboni family , associates of the defendants , told her she should not be a grass;

(5) Carla Wedge told DC Hutton on 18th September that she felt intimidated by the approach made to her by the Gamboni family and that she anticipated that that intimidation would become more intensive as the trial date approached. DC Hutton believed , from what Carla said to him and her general demeanour , that the Gamboni connection was capable of intimidating her and that she was fearful for her own safety and that of her family;

(6) In November 2002 , Carla Wedge and Lee Sellick both knew of the trial date , the place of trial and that they were required to attend to give evidence at trial;

(7) From 18th November 2002 onwards , police officers have made repeated attempts to find Carla Wedge and Lee Sellick. Police officers have visited all addresses in any way associated with either witness and have pursued all available avenues of enquiry. Despite all those efforts , neither witness has been found;

(8) The mother of Carla Wedge , Mrs Fox , has not seen her daughter for the past two weeks. Carla Wedge has left her home and her children , two boys aged nine and 15 months, and effectively disappeared. The children are being cared for by Mrs Fox. Mrs Fox has no knowledge of her daughter ’ s whereabouts and does not know how to get in touch with her. Since Carla Wedge left , her younger child was admitted to hospital but even that event , of which Carla learned through telephone contact with her grandmother , did not prompt her to reappear;

(9) Mrs Fox told WDC Pearson that Carla was staying away from her children for two weeks until the trial was over to avoid getting killed and putting her children in danger;

(10) Mrs Fox told WDC Pearson that Lee Sellick was frightened and thought he would be killed whether he gave evidence or not. He had tried to commit suicide;

(11) Mrs Fox herself is a very frightened woman. She refused to make a written statement about the events surrounding the disappearance of her daughter. Her attendance at court had to be secured by a witness summons and a threat of arrest. The public gallery had to be cleared before she was prepared to give evidence.

...

I am satisfied so that I am sure that all reasonable steps have been taken by the police to find both Carla Wedge and Lee Sellick but neither witness can be found. I reject the suggestion that the police should have done more to keep in contact with the witnesses in the months leading up to the trial. I am satisfied that the steps taken by the police were appropriate and reasonable in the light of the information available to them.

...

There is , in my judgment , clear admissible evidence that both witnesses were in fear at the time they made their witness statements to the police. There is further admissible evidence that Carla Wedge was fearful about giving evidence in September 2002. There is , however , no admissible evidence that Lee Sellick was in fear of giving oral evidence and whilst it would be possible for me to infer from all these circumstances that he was , I am not able , in his case , to exclude the reasonable possibility that other factors may have influenced his disappearance. It is highly probable that fear of the consequences of giving evidence against the defendants and that alone has prompted him to disappear but I cannot be sure of that conclusion. However , in the case of Carla Wedge , I am entirely satisfied that fear for her own safety and fear for the lives of her children have driven her to behave as she has , abandoning her own children even when one of them was admitted to hospital. I am further satisfied , in the case of both witnesses , that no adjournment will secure their attendance.

...

The court must not give leave unless it is of the opinion that the statements or either of them ought to be admitted in the interests of justice having regard to the particular matters identified in the section and to all the circumstances of the case. I have carefully considered the contents of the statements. Each of them contains a wealth of detail which is compelling and , in my judgment , wholly credible. The defendants are all in a position to controvert the contents of the statements if they dispute them. I accept , however , that there is a disadvantage to the defence if the statements are read and if they are admitted , the jury must receive clear directions emphasizing that disadvantage. Further , so far as Lee Sellick is concerned , the defence point to a number of features which they submit undermine his credibility. However , Section 28 of schedule two of the 1988 Act [see relevant domestic law and practice at paragraph 34 below] provides a wholly sufficient remedy for that concern.

Having taken into consideration all the submissions made and given full weight to the provisions of Section 26 , I am of the clear view that the statements made by Lee Sellick and Carla Wedge ought to be admitted in the interests of justice. I so rule.”

15 . After the trial had started , the prosecution applied for leave to have the statements of Carina Jackson and Donna Mills read. They again relied on statements of police officers who had sought to trace the women. The trial judge allowed each woman ’ s statement to be read. In the case of Ms Jackson he found the evidence was “quite overwhelming” that she had been intimidated and that it was not possible to secure her attendance by any reasonable means. For Ms Mills , he was not satisfied that she was in fear , but was satisfied that all reasonable steps had been taken to find her. The statements were cogent , innately credible and , in each case , controvertible by evidence from the defendants and , indeed , by other possible means. It was in the interests of justice that the statements be admitted.

5 . The other prosecution evidence

16 . Tammy Pardoe gave evidence as to the three brothers ’ drug dealing. She confirmed that she had slept with Mr Chambers. Santino had found out in the course of a row they had on 2 December and he had hit her. The following night , they met in the Talisman. Santino was angry and threatened to kill Mr Chambers , and had said that this would be Ms Pardoe ’ s fault. She left the pub and had been in Carla Wedge ’ s flat at the time of the shooting. At the hotel , Santino said that no one would know who pulled the trigger except him and Carlo. If she told anyone she would get the same. Carlo also told her to keep her mouth shut. She had another conversation with Santino on 30 December in which he admitted to being the gunman. There had been a further conversation , when Santino was in prison for other reasons , in which he said to her that the police had nothing on them. In cross ‑ examination she accepted that her testimony was based on the account she had given to the police after she had been arrested for conspiracy to murder , but maintained that it was the truth.

17. Two witnesses gave evidence that they had seen a group of men in the car park , had heard shots and had then seen three people running to a car and driving away. A third witness testified that he had seen the deceased , heard a raised voice and then a bang , and that the deceased had then fallen over. A fourth witness testified that he had seen two men joined by a third and had heard some discussion which could have been about drug dealing. Moments later he heard two loud bangs.

18. The jury also heard evidence from a Mr Allen , who testified that he had gone to Lee Sellick ’ s flat after the shooting because he knew the person who had been with the deceased at the pub had gone to the flat with Lee Sellick about half an hour before. Lee Sellick , Carla Wedge and another woman returned to the car park with him.

19. Evidence of mobile telephone traffic was also led by the prosecution , which showed that there had been calls between Lee and Carlo Sellick after the shooting , that someone used a payphone at the hospital to call Carlo , Santino and Mr Marandola , and that Carlo ’ s telephone had been in use near the Talisman prior to the shooting.

20. For each brother , the prosecution relied on the fact that they had , on the advice of their solicitors , made no reply to any of the questions put to them during his police interview. For Santino , the prosecution also relied on the fact that , even by June 2002 , Santino had stated that he was still unable to recall where he had been at the time of the shooting and that it was only by October that year that he had been able to say that he was in bed sick on the evening in question. For Carlo , the prosecution submitted that it was implausible for him subsequently to explain that his silence in interview was because he had been unable to recall driving to Porlock that day , not least because , on Carlo ’ s own evidence , Lee Sellick had phoned him that evening to tell him about Mr Chambers ’ death.

21. Finally , the prosecution relied on covert recordings of conversations between the brothers while in their cells at the police station , which , the prosecution alleged , showed that they were plotting to subvert the evidence against them. The defence admitted the conversations but said that they were to wind the police up.

6 . The defence evidence

22. Santino gave evidence in which he denied killing Mr Chambers . He was not at the Talisman on the evening of the shooting; he had been in bed sick , where he had found out about the shooting from the television news. His memory had been jogged by being shown his mobile phone records for the day of the shooting.

He said it was Lee who had b een dealing in drugs. He was unaware that Tammy Pardoe had been unfaithful to him and had not assaulted her before the shooting. They had only rowed because he had slept with Carina Jackson. He denied the conversation with Tammy Pardoe in the pub after the shooting and had only gone to the hotel to drop off cannabis for Lee. At the hotel he had rowed again with Ms Pardoe over Carina Jackson and she had told him she would get him back. The only discussion of Mr Chambers had been over hearing about the shooting on the news.

23. In his evidence Carlo denied buying or selling drugs to or from Mr Chambers, but had been a heavy drug user himself. He too maintained that it was Lee who had been dealing with Mr Chambers and that , prior to the shooting , he had spoken to Lee because Lee was trying to borrow money. The evening of the shooting he and Mr Marandola had been driving to Porlock in Somerset to take cannabis to his uncle. When Lee summoned them to the hotel , they had collected Santino on the way back from Somerset . There was no conversation or suggestion that Carlo had been responsible for Mr Chambers ’ death.

24. Mr Marandola did not give evidence , although his police interviews were introduced. When first interviewed he said that he was at his girlfriend ’ s at the time of the shooting but, in a subsequent interview, he said Carlo and Santino had picked him up in a car and said they were going to meet someone. They told him to stay in the car. He did not and saw the brothers and a third man approach from the pub. He heard two shots and then the brothers returned to the car , and the three of them drove off.

7 . The trial judge ’ s summing up and the jury ’ s verdict

25 . The trial judge ’ s summing up contained the following direction on the witness statements which had been read:

“You will , I am sure , recall that I told you when the first of those statements was read how you should approach their evidence but it is important that I remind you again of what I told you. Their statements are emphatically not agreed. The defendants would have wished that all of them should be called to give evidence before you. However , there are circumstances where I , as the judge , may permit the prosecution to read the statements of a witness even where the defence wish those witnesses to be called. That is a matter for my decision and you are not , please , to speculate on why I have reached that decision.

You will , of course , immediately appreciate that the defence are disadvantaged by the course I have permitted to take place. You cannot see the demeanour and appearance of the witness when assessing the extent , if at all , you are able to rely on the content of the statements. The defence cannot cross-examine , cannot test the accuracy and honesty of the evidence , cannot suggest to the witness a different account or explore with the witness other matters to which the witness does not speak in his or her statement.

Thus , when you consider this evidence , bear those observations clearly in mind and give the disadvantage arising from the procedure the weight you think right in determining whether you can rely in any way on the witness statements read to you and , if so , to what extent.

In this connection bear in mind the submissions of the defence on the accuracy and reliability of the statements of those witnesses. It is suggested that each of them may have a sinister motive for not wanting to give evidence and their protestations of fear in their statement are , submit the defence (my word not theirs) simply weasel words designed to protect themselves , not from any of the defendants , but from the consequences of their own involvement in what occurred on the night of 3 rd December. You heard their submissions , you give them the weight you think right.”

26. The trial judge also explained to the jury that Lee Sellick ’ s statement had been given at the end of his interviews while he was under arrest for conspiracy to murder and that he had a substantial criminal record , including convictions for robbery. The trial judge instructed the jury that they could have regard to this background in assessing whether they could rely on his statements. When summarising Carina Jackson ’ s evidence in respect of the gun Carlo had given her to look after , the trial judge also commented that , if the jury chose to accept that evidence , it went no further than showing that , four weeks before the shooting , Carlo was in possession of a weapon of a broadly similar type as that used to shoot the deceased. The trial judge then asked the jury to bear in mind the criticisms that had been made of Carina Jackson and her evidence by the defence.

27. Further directions were given in the usual terms as to the adverse inferences which could be drawn from Carlo and Santino ’ s silence during their police interviews and that Dominic Marandola ’ s interviews were evidence only against him and not his co-accused.

28. On 16 December 2002 the jury unanimously convicted Carlo and Santino and acquitted Mr Marandola . The brothers appealed against their conviction.

8 . The Court of Appeal ’ s judgment

29. The appeal was dismissed on 14 March 2005. In considering the relevant case-law of this Court , at paragraph 50 of its judgment , the Court of Appeal stated that what appeared from that case-law were the following propositions:

“ i ) The admissibility of evidence is primarily for the national law;

ii) Evidence must normally be produced at a public hearing and as a general rule Article 6(1) and (3)(d) require a defendant to be given a proper and adequate opportunity to challenge and question witnesses;

iii) It is not necessarily incompatible with Article 6(1) and (3)(d) 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.

iv) 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 then stated:

“The question is whether there is a fifth proposition to the effect that where the circumstances justify the reading of the 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. Certainly at first sight paragraph 40 of Luca seems to suggest that in whatever circumstances and whatever counterbalancing factors are present if statements are read then there will be a breach of Article 6 , if the statements are the sole or decisive evidence. Furthermore there is some support for that position in the previous authorities. But neither Luca nor any of the other authorities were concerned with a case where a witness , whose identity was well-known to a defendant , was being kept away by fear , although we must accept that the reference to Mafia-type organisations and the trials thereof in paragraph 40 shows that the court had extreme circumstances in mind.

The question we have posed to ourselves is as follows. If the European Court were faced with the case of an identified witness , well-known to a defendant , who was the sole witness of a murder , where the national court could be sure that that witness had been kept away by the defendant , or by persons acting for him , is it conceivable that it would hold that there were no ‘ counterbalancing ’ measures the court could take which would allow that statement to be read. If care had been taken to see that the quality of the evidence was compelling , if firm steps were taken to draw the jury ’ s attention to aspects of that witnesses ’ credibility and if a clear direction was given to the jury to exercise caution , we cannot think that the European Court would nevertheless hold that a defendant ’ s Article 6 rights had been infringed. In such a case , as it seems to us , it is the defendant who has denied himself the opportunity of examining the witnesses , so that he could not complain of an infringement of Article 6(3)(d) , and the precautions would ensure compliance and fairness in compliance with Article 6(1). We for our part see no difficulty in such a clear case.

More difficulty arises in cases where it is not quite so clear cut , but the court believes , to a high degree of probability , that identified witnesses are being intimidated for and on behalf of the defence , and where the court is sure to the criminal standard of proof that witnesses cannot be traced and brought before the court (Butterfield J ’ s state of mind on Lee in the instant case). In our view , having regard to the rights of victims , their families , the safety of the public in general , it still cannot be right for there to be some absolute rule that , where compelling evidence is the sole or decisive evidence , an admission in evidence of a statement must then automatically lead to a defendant ’ s Article 6 rights being infringed. That would lead to a situation in which the more successful the intimidation of the witnesses , the stronger the argument becomes that the statements cannot be read. If the decisive witnesses can be ‘ got at ’ the case must collapse. The more subtle and less easily established intimidation provides defendants with the opportunity of excluding the most material evidence against them. Such an absolute rule cannot have been intended by the European Court in Strasbourg .”

30. The Court of Appeal then gave the following guidance when dealing with applications for statements to be read under sections 23 and 26 of the Criminal Justice Act 1988:

“Our view is that certainly care must be taken to see that sections 23 and 26 , and indeed the new provisions in the Criminal Justice Act 2003 , are not abused. Where intimidation of witnesses is alleged the court must examine with care the circumstances. Are the witnesses truly being kept away by fear? Has that fear been generated by the defendant , or by persons acting with the defendant ’ s authority? Have reasonable steps been taken to trace the witnesses and bring them into court? Can anything be done to enable the witnesses to be brought to court to give evidence and be there protected? It is obvious that the more ‘ decisive ’ the evidence in the statements , the greater the care will be needed to be sure why it is that a witness cannot come and give evidence. The court should be astute to examine the quality and reliability of the evidence in the statement and astute and sure that the defendant has every opportunity to apply the provisions of Schedule 2. It will , as section 26 states , be looking at the interests of justice , which includes justice to the defendant and justice to the victims. The judge will give warnings to the jury stressing the disadvantage that the defendant is in , not being able to examine a witness.”

31. Finally , on the facts of the applicants ’ case , the Court of Appeal concluded:

“This was a case in which the judge was sure that Carla was being kept away through fear by virtue of the conduct of the appellants or those acting on their behalf. So far as Lee was concerned , his view was that it was ‘ highly probable ’ but he could not exclude the reasonable possibility that other factors may have influenced his disappearance. What he was sure of was that Lee could not reasonably be found , and it was legitimate to make part of his reasoning the high probability.

The judge was further sure that Carina had been kept away through fear. He was simply sure so far as Donna Mills was concerned that she could not reasonably be found. So far as Donna Mills is concerned , her evidence was not of any great importance. Furthermore , so far as Carina was concerned , she supported the fact that the appellants were involved in drug dealing and she provided some evidence that Carlo had had in his possession at one time a gun which was broadly similar to that which expert evidence had been indicated for the killing. But in relation to that evidence the judge gave a clear warning to the jury about the limitations of that evidence over and above reminding the jury to bear in mind the criticisms made of Carina and her evidence (see page 35 (c) to (e) of the summing up). Thus the evidence of Carina could certainly not be described as decisive.

Lee and Carla certainly did give important evidence. It was however certainly not the sole evidence. Lee , for example , gave evidence of a conversation with Carlo immediately after the shooting in which Carlo told him ‘ to sort himself out , get control or he ’ d get the same ’ , which the judge described as ‘ very important evidence in the case of Carlo ’ . (see page 30-31 of the summing up). Both Lee and Carla provided descriptions of the return of Santino , Carlo and Marandola to the Fox Hotel.

However , there was a great deal of circumstantial evidence , including the tracking of the mobile phones of the appellants and Marandola . But , in particular , there was the oral evidence of Tammy. True , Tammy was treated as a hostile witness. True , also , that Tammy ’ s evidence was strongest against Santino , but it was powerful against Carlo too.

We have no doubt that the judge properly exercised his discretion in this case. So far as Carla and Carina are concerned , they were witnesses kept away by fear , a fear for which the appellants were responsible. It should not be forgotten that part of the evidence against the appellants related to covert telephone calls in which they were seeking to subvert the trial. The statements originally taken from Lee and Carla contained statements to the effect that they were fearful of what might happen to them. Mrs Fox , who gave evidence in chambers , was clearly a frightened woman. Tammy was clearly a frightened witness. This was a trial in which fear was being generated by the appellants or those acting for them in order to prevent evidence being given against them. Where the judge was sure of that it seems to us that the appellants cannot complain that their Article 6 rights were being infringed simply by references to those witnesses not being at the trial.

So far as Lee is concerned , the circumstances in which he could not reasonably be found included all the above circumstances and the high degree of probability as to his fear. In his case it cannot be said that the defendants lose their right to complain of an infringement under Article 6 , but even in his case , where the evidence was ‘ important ’ as against Carlo , even if that meant ‘ decisive ’ , our view is that provided counter-balancing procedures were properly in place the judge was entitled to admit his statement.

Counter-balancing procedures clearly were in place in that the judge took account of section 28 and Schedule 2 [of the Criminal Justice Act 1988]. Lee was an identified witness and it was open to the appellants to attack the credibility of Lee; indeed they did so , suggesting that he was in fact himself responsible for the murder , that being the reason why he made the statement that he did. Furthermore , the judge warned the jury in relation to all the statements that were read in clear and unequivocal terms. He gave them a strong direction at the time the statements were read.

...

If we had formed the view that there was a breach of Article 6 , that would have rendered the trial unfair and we could not have , in those circumstances , upheld the conviction as safe and a retrial would have had to have been ordered. We are quite clear that the appellants ’ rights under Article 6 were in no way infringed in this case. We are equally clear that the convictions of these appellants are safe and this appeal must be dismissed.”

32. The applicants applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 3 November 2005.

B. Relevant domestic law and practice

33 . At the time of the applicants ’ trial , the relevant statutory provisions were to be found in sections 23 to 28 of the Criminal Justice Act 1988. Section 23 of the 1988 Act provided for the admission of first hand documentary hearsay in a criminal trial:

“ 23. — ... a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible if—

(2) ....

(a) ... the person who made the statement is dead or by reason of his bodily or mental condition unfit to attend as a witness;

[or]

(c) ... all reasonable steps have been taken to find the person who made the statement , but that he cannot be found..

25. —(1) If , having regard to all the circumstances—

(a) the Crown Court—

( i ) on a trial on indictment;

(ii) on an appeal from a magistrates ’ court; or

(iii) on the hearing of an application under section 6 of the [1987 c. 38.] Criminal Justice Act 1987 (applications for dismissal of charges of fraud transferred from magistrates ’ court to Crown Court); or

(b) the criminal division of the Court of Appeal; or

(c) a magistrates ’ court on a trial of an information ,

is of the opinion that in the interests of justice a statement which is admissible by virtue of section 23 or 24 above nevertheless ought not to be admitted , it may direct that the statement shall not be admitted.

(2) Without prejudice to the generality of subsection (1) above , it shall be the duty of the court to have regard—

(a) to the nature and source of the document containing the statement and to whether or not , having regard to its nature and source and to any other circumstances that appear to the court to be relevant , it is likely that the document is authentic;

(b) to the extent to which the statement appears to supply evidence which would otherwise not be readily available;

(c) to the relevance of the evidence that it appears to supply to any issue which is likely to have to be determined in the proceedings; and

(d) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness to the accused or , if there is more than one , to any of them.

26. — Where a statement which is admissible in criminal proceedings by virtue of section 23 or 24 above appears to the court to have been prepared , ... , for the purposes-

(a) of pending or contemplated criminal proceedings; or

(b) of a criminal investigation ,

the statement shall not be given in evidence in any criminal proceedings without the leave of the court , and the court shall not give leave unless it is of the opinion that the statement ought to be admitted in the interests of justice; and in considering whether its admission would be in the interests of justice , it shall be the duty of the court to have regard-

( i ) to the contents of the statement;

(ii) to any risk , having regard in particular to whether it is likely to be possible to controvert the statement if the person making it does not attend to give oral evidence in the proceedings , that its admission or exclusion will result in unfairness in the accused or , if there is more that one , to any of them; and

(iii) to any other circumstances that appear to the court to be relevant...”

34 . Schedule 2 to the Act allowed for the admission of evidence relating to the credibility and consistency of the maker of the statement , where such evidence would have been admissible had he or she given evidence in person , or where the matter could have been put to him in cross-examination. The Schedule also provided that , in estimating the weight , if any , to be attached to such a statement regard had to be had to all the circumstances from which any inference could reasonably be drawn as to its accuracy or otherwise.

COMPLAINT

35. The applicants complained that the decision of the trial judge to allow the statements of Lee Sellick , Carla Wedge , Carina Jackson and Donna Mills to be read at trial meant that they were denied the opportunity to examine or have examined witnesses against them, in violation of their right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention. They made broadly three submissions.

36. First, they submitted that the Court of Appeal erred in its interpretation of the relevant case-law of this Court. The Court of Appeal had found that , where a defendant had himself caused the absence of a witness , he could not complain of a violation of Article 6 § 3(d). However , a waiver of a Convention right had to be established in an unequivocal manner ( Bocos-Cuesta v. the Netherlands , no. 54789/00 , § 65 , 10 November 2005; Colozza v. Italy , 12 February 1985 , § 26 , Series A no. 89).

I n their case no evidence other than the original witness statements had been produced to show that the applicants had themselves caused the witnesses ’ fear. Their covertly recorded cell conversations had not related to the witnesses. There had been no suggestion of any direct contact with the witnesses after they had given their statements. Lee Sellick and Carla Wedge had voluntarily withdrawn from the witness protection programme. The only incident of alleged intimidation had been family members of the applicants approaching Carla Wedge outside her son ’ s school and saying that “she should not be a grass”. There was no evidence that this was done either at the direction of the applicants or with their express knowledge. In the applicants ’ submission , the courts should be slow to impute any direction or involvement by the applicants where there is any suggestion of a waiver of Convention rights. Furthermore , no weight had been given to Lee Sellick and Carla Wedge ’ s voluntary withdrawal from the witness protection scheme and no consideration of what special measures could have been put in place to allow them to testify.

37 . Second , the counterbalancing measures in place were not sufficient to guarantee a fair trial. Without a proper opportunity to cross-examine the witnesses , the applicants were at a distinct disadvantage. In this respect it was significant that the case against each applicant was circumstantial: no witness saw the shooting and no weapon had ever been found. The absent witnesses ’ evidence had been characterised by the Court of Appeal as important evidence. In fact, that evidence went to the heart of the case: the statements of Lee Sellick and Carla Wedge included confession evidence and the only evidence of direct knowledge of guilt. The statements were pivotal evidence. The witness statements Lee Sellick, Carla Wedge and Carina Jackson also revealed motive , possession of drugs and possession of a firearm. Thus , even if each piece of evidence was not decisive , this was their cumulative effect.

38. Third , the safeguards available in their case were further diminished by the fact that Dominic Marandola ’ s police statements were read to the jury. Although the jury had been directed that this was not evidence against the applicants , these statements had contained inculpatory evidence against them. The law of England and Wales contemplated that a jury would accept a judicial direction not to use interview evidence of one defendant in considering the case against a second co-defendant because there is a clear and understandable rationale for the rule (that the second co-defendant was not present when the statement was made and therefore could not confirm or deny it at the time). However , to direct the jury to take into account the statements of other witness without a clear and understanding rationale was an impossible exercise for the jury. The fact that the trial judge was obliged to give contradictory directions in respect of the different statements (that is , to consider the statements of the four absent witnesses , but to disregard the statements of Mr Marandola ) affected the sufficiency of the safeguards in place.

THE LAW

39. Article 6 §§ 1 and 3 (d) of the Convention , where relevant, reads 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...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(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.”

40. The Grand Chamber recently exami ned the requirements of Article 6 § 3 (d) in the context of absent witnesses in the case of Al- Khawaja and Tahery v. the United Kingdom [GC] , nos. 26766/05 and 22228/06 , ECHR 2011 . It reiterated that the guarantees in paragraph 3 (d) are specific aspects of the right to a fair hearing set forth in Article 6 § 1 which must be taken into account in any assessment of the fairness of proceedings. In making this assessment , the Court will look at the proceedings as a whole having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted and , where necessary , to the rights of witnesses (at § 118 of its judgment).

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

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

43. In respect of the first consideration – whether there was a good reason for the non-attendance of the witness – the Grand Chamber also considered the case where a witness is absent owing to fear. It found that a distinction had to be drawn between two types of fear: fear which was attributable to threats or other actions of the defendant or those acting on his or her behalf and fear which was attributable to a more general fear of what would happen if the witness gave evidence at trial. (ibid. § 122). The Grand Chamber went on to observe:

“ 123. When a witness ’ s fear is attributable to the defendant or those acting on his behalf , it is appropriate to allow the evidence of that witness to be introduced at trial without the need for the witness to give live evidence or be examined by the defendant or his representatives – even if such evidence was the sole or decisive evidence against the defendant. To allow the defendant to benefit from the fear he has engendered in witnesses would be incompatible with the rights of victims and witnesses. No court could be expected to allow the integrity of its proceedings to be subverted in this way. Consequently , a defendant who has acted in this manner must be taken to have waived his rights to question such witnesses under Article 6 § 3(d) . The same conclusion must apply when the threats or actions which lead to the witness being afraid to testify come from those who act on behalf of the defendant or with his knowledge and approval.

...

1 24. The Court ’ s own case-law shows that it is more common for witnesses to have a general fear of testifying without that fear being directly attributable to threats made by the defendant or his agents. For instance , in many cases , the fear has been attributable to the notoriety of a defendant or his associates (see , for example , Dzelili v. Germany ( dec .) , no. 15065/05 , 29 September 2009). There is , therefore , no requirement that a witness ’ s fear be attributable directly to threats made by the defendant in order for that witness to be excused from giving evidence at trial. Moreover , fear of death or injury of another person or of financial loss are all relevant considerations in determining whether a witness should not be required to give oral evidence. This does not mean , however , that any subjective fear of the witness will suffice. The trial court must conduct appropriate enquiries to determine first , whether or not there are objective grounds for that fear , and , second , whether those objective grounds are supported by evidence (see , for example , Krasniki v. the Czech Republic , no. 51277/99, §§ 80–83 , 28 February 2006 , where the Court was not satisfied that the domestic courts had carried out an examination of the reasons for the witnesses ’ fear before granting them anonymity) .

125. Finally , given the extent to which the absence of a witness adversely affects the rights of the defence , the Court would emphasise that , when a witness has not been examined at any prior stage of the proceedings , allowing the admission of a witness statement in lieu of live evidence at trial must be a measure of last resort. Before a witness can be excused from testifying on grounds of fear , the trial court must be satisfied that all available alternatives , such as witness anonymity and other special measures , would be inappropriate or impracticable.”

44. In the present cases, the applicants submit that there was no evidence that they had caused the witnesses against them to be in fear. There was, for instance, no evidence that the alleged intimidation of Carla Wedge outside her son ’ s school had been done at the direction of the applicants or with their express knowledge. There is, they submit, no basis for the Court to find that they had waived their Article 6 rights.

45. The Court notes that, the trial judge , before giving his ruling admitting the statements of Lee Sellick and Carla Wedge , heard evidence from Ms Wedge ’ s mother that her daughter was in fear. He also heard evidence from a police officer that members of the Gamboni family had told Ms Wedge “not to be a grass”. He also had before him the statements of Mr Sellick and Ms Wedge where they spoke of their fear of the defendants. His ruling admitting the statements was very full and states clearly his findings of fact. However , there is nothing in his reasons to suggest that he was satisfied so that he was sure that the fear was directly attributable to the applicants or that the Gamboni family , when they had threatened Ms Wedge, had done so with the applicants ’ knowledge or approval. Similarly , in respect of Carina Jackson ’ s statement , although he stated that the evidence of her fear was overwhelming , no findings were made as to the precise source of that fear.

46. By contrast, the Court of Appeal clearly considered that, at least as far as Carla Wedge and Carina Jackson were concerned, the applicants were responsible for their fear (see the fifth paragraph of the Court of Appeal ’ s judgment which is quoted at paragraph 31 above).

47. The Court considers that it is unnecessary to determine this factual question, or to determine whether there has been a waiver of the applicants ’ rights, since, in any event, it considers the complaint to be manifestly ill ‑ founded for the following reasons.

48. First, the Court is satisfied that there were good reasons for the non ‑ attendance of Ms Wedge and Ms Jackson. Appropriate enquires were made as to whether there were objective grounds for their fear and whether those objective grounds were supported by evidence. The trial judge also satisfied himself that all available alternatives to reading the statements would have been inappropriate or impracticable (see paragraphs 124 and 125 of Al ‑ Khawaja and Tahery , quoted above). For Lee Sellick and Donna Mills , the trial judge was satisfied that they could not be found and all reasonable steps had been taken by the police to find them. In light of those findings , the Court considers that there wer e also good reasons for the non ‑ attendance of Mr Sellick and Ms Mills.

49. Second, it is not suggested by the applicants that the evidence of these four witnesses was the sole evidence against them; instead , it is alleged that, at the very least, the evidence of the four witnesses was decisive in its cumulative effect (see the applicants ’ submissions at paragraph 37 above). The Court cannot , however , accept either of these submissions.

50. As the Grand Chamber stated at paragraph 131 of Al- Khawaja and Tahery “decisive” should be narrowly understood as indicating evidence of such significance or importance as is likely to be determinative of the outcome of the case. Where the untested evidence of a witness is supported by other corroborative evidence , the assessment of whether it is decisive will depend on the strength of the supportive evidence; the stronger the corroborative evidence , the less likely that the evidence of the absent witness will be treated as decisive.

51. The prosecution ’ s case against each brother was a circumstantial one: none of the absent witnesses – or indeed any of the prosecution witnesses – actually saw the shooting (compare , for instance , the eyewitness evidence of the absent witness , T. , in Al- Khawaja and Tahery , which , for that reason , was found to be decisive in that case: paragraph 160 of the judgment).

52. Instead , the prosecution ’ s case against the brothers had four limbs: evidence which showed that they had the means , motive and opportunity to carry out the shooting; their confessions at the hotel , and Santino ’ s subsequent confessions to Tammy Pardoe ; evidence of their behaviour after the shooting , which did not have any innocent explanation (or at least none that would have stood up to scrutiny); and the evidence of their failure promptly to explain where they had been on the night of the shooting.

53. It is true that , with the exception of Ms Mills ’ evidence (which was found by the Court of Appeal to be not of any great importance) , the evidence of the absent witnesses was significant in assisting the prosecution in making their case against the applicants. However , that evidence was supported by other corroborative evidence which was led by the prosecution. There was the evidence of the four witnesses who had heard shots in the car park: one of them saw three men running from the scene; another gave evidence that the shots had been preceded by a conversation which could have been about drug dealing. There was the evidence of Mr Allen that Lee Sellick had been at the Talisman with the deceased prior to the shooting (which indirectly corroborated Lee Sellick ’ s evidence of having telephoned Carlo from the pub). There were the telephone records showing Lee and Carlo ’ s calls after the shooting and further calls to the three defendants from the hospital. There was the applicant ’ s silence in their police interviews and their implausible explanations as to where they had been on the evening of the shooting , as well as the covert recordings of their conversations at the police station.

In the Court ’ s view , the strength of this corroborative evidence means that , even taken cumulatively , the evidence of the absent witnesses , while important , could not be regarded as decisive in securing the applicants ’ convictions.

In the Court ’ s view , these factors , when taken with the strength of the other prosecution evidence in the case , meant that the jury were able to conduct a fair and proper assessment of the reliability of the absent witnesses.

56. Finally, contrary to the applicants ’ submissions , there is no reason to believe that these safeguards were diminished by the fact that the police statements of Dominic Marandola were read to the jury. There is nothing to suggest that the jury were incapable of understanding the trial judge ’ s direction to them that his statements were not evidence against Carlo and Santino or that , in their deliberations , they failed to follow that direction. There was also no inherent contradiction between allowing the jury to consider the statements of absent witnesses and forbidding them from considering Mr Marandola ’ s statement.

57. Against this background , the Court considers that , notwithstanding the difficulties caused to the applicants by admitting the four witnesses ’ statements and the dangers of doing so , admission of those statements did not result in a breach of Article 6 § 1 read in conjunction with Article 6 § 3 (d) of the Convention.

58. For these reasons , the Court considers the application must be rejected as manifestly ill founded , pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons , the Court unanimously

Declares the application inadmissible.

Fatos Aracı Lech Garlicki Deputy Registrar President