FOURTH SECTION

DECISION

Application no. 40945/09 Hassan TABBAKH against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 21 February 2012 as a Chamber composed of:

Lech Garlicki , President , David Thór Björgvinsson , Nicolas Bratza , Päivi Hirvelä , George Nicolaou , Ledi Bianku , Zdravka Kalaydjieva , judges ,

and Lawrence Early , Section Registrar ,

Having regard to the above application lodged on 21 July 2009 ,

Having deliberated , decides as follows:

THE FACTS

1 . The applicant , Mr Hassan Tabbakh , is a Syrian national who was born in Aleppo , Syria in 1969 and is currently detained in HMP Woodhill , Milton Keynes . His application was lodged on 21 July 2009. He was represented before the Court by Mr H. Miller of Birnberg Peirce Solicitors , a lawyer practising in London .

A. The circumstances of the case

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

3 . After obtaining a degree in physics and mathematics from Aleppo University , Syria , the applicant became a mathematics teacher.

4 . In 1999 the applicant was arrested by Syrian Military Intelligence. He was detained for approximately one month before being released without charge. During this period of detention he alleges that he was tortured. According to the applicant , h e was repeatedly punched in the face and body while bound and blindfolded; he was knocked unconscious; he was attached to a wheel and beaten on his face , hands and feet with an electric cable; he was electrocuted with electrodes attached to his arms and legs; and he was hung from the ceiling and sexually tortured.

5 . In 2000 the applicant fled Syria . In November 2001 he arrived in the United Kingdom and claimed political asylum. It was accepted that he had a well-founded fear of persecution if returned to Syria and in July 2005 he was granted Indefinite Leave to Remain in the United Kingdom as a refugee.

6 . On 18 December 2007 the applicant was arrested at his home. Following a search of the applicant and his home , police officers found a plastic bag containing three plastic bottles , each containing a liquid and a solid mixture , a handwritten document in Arabic with diagrams , two bags of fertilizer pellets , two bags containing small pieces of aluminium foil , an MP3 audio player , a desktop computer and a USB memory stick. An analytical chemist confirmed that the contents of the bottles were flammable. Although incapable of causing an explosion , had the applicant used higher grade ingredients , he might have been able to construct a viable bomb. A translation of the Arabic document appeared to give instructions on the construction of an improvised explosive device. The audio player and computer devices were found to contain some Islamist material of an extremist nature.

7 . The applicant was interviewed at length by police. He denied trying to make a bomb or that he had a terrorist purpose. He claimed that he was trying to make fireworks for the Eid festival at the end of Ramadan and that the Arabic instructions were for a friend who was going to test the fireworks.

8 . Between 17 and 30 July 2008 the applicant stood trial before a judge and jury at Birmingham Crown Court. He was charged with one count of preparing a terrorist act contrary to section 5 of the Terrorism Act 2006. The prosecution case was that the applicant had been trying to make a bomb with the intention of committing an act of terrorism or assisting someone else to do so.

9 . The applicant did not give evidence. He called a number of witnesses , including Dr Dene Robertson , a consultant psychiatrist who specialised in the treatment of torture victims. Dr Robertson concluded that the applicant was suffering from severe post-traumatic stress disorder and moderately severe depression. His symptoms included severe anxiety , loss of energy , loss of self-esteem , loss of appetite , feelings of guilt , recurrent thoughts of death , frequent angry outbursts , paranoia , difficulty concentrating , persistent flashbacks , vivid memories and recurrent nightmares of his torture. Furthermore , Dr Robertson noted that the applicant had been consistently self-harming whilst in custody at Belmarsh and Woodhill prisons and during his trial. He had made significant attempts to cut the arteries in his arms. He also had minor lacerations to his forearms and minor scratching to his throat.

10 . Dr Robertson identified three reasons why he considered that it would be undesirable for the applicant to give evidence. First , he believed it likely that the applicant would become so hyper-aroused when being questioned by someone perceived to be hostile that he would lose self ‑ control. Frequent angry outburst during cross-examination by the prosecution could prejudice the jury against him. Secondly , the stress of giving evidence might lead to an inability to concentrate and remember which would impair his ability to answer questions appropriately. This could have a direct impact on the quality of his evidence. Thirdly , the stress of giving evidence would almost inevitably result in an increased risk of significant self-harm.

11 . Although the applicant had refused to co-operate with Dr Cumming , the consultant psychiatrist instructed by the prosecution , Dr Cumming agreed that the applicant suffered from post-traumatic stress disorder. However , he was unable to form any opinion one way or another about the undesirability of the applicant giving evidence.

12 . Following the close of evidence , the applicant made an application pursuant to sections 35(1)(b) and 35(3) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) that the judge should rule that it was undesirable for the applicant to give evidence due to his medical condition and , consequently , that the judge should not direct the jury that they might draw such adverse inferences as appeared proper from the failure of the applicant to give evidence.

13 . The judge accepted that the applicant suffered from post-traumatic stress disorder , largely as a result of being tortured in Syria , and that he would find it difficult to be questioned by anyone he perceived as hostile. He also accepted that the applicant had been self-harming for some time , and that the stress of giving evidence could well lead to an increased risk of self-harm. Nevertheless he refused the application and held that it was not undesirable for the applicant to give evidence. He did not accept that the applicant ’ s presentational problems would seriously prejudice the jury and he did not consider there to be a significant risk that the applicant would forget the basic chemistry o r physics which the case involved. Moreover , the judge noted that in view of the importance of the applicant ’ s evidence to the case , he could not conclude that his psychiatric problems made it undesirable for him to give evidence , even if it resulted in an increased risk of self-harm.

14 . The judge noted , however , that it was for the jury to reach a decision as to whether they should draw an adverse inference against the applicant or not. In his summing up , he directed the jury as follows:

“The second matter which arises from his silence is that it could count against him. It doesn ’ t have to but it could. This is because you could come to the conclusion that he has not given evidence because he has no answer to the prosecution ’ s case , or at least none that would stand up to being tested by cross-examination.

If you do draw that conclusion against him you must not convict him wholly or mainly on the strength of it. You must look for other evidence of guilt and use his failure to give evidence as some additional support for the prosecution case. It can ’ t stand alone , but it can support something else.

You should only draw this conclusion against him if you think it is a fair and proper conclusion to draw. If it is not a fair and proper conclusion to draw , then you should not hold his silence against him in any way at all. And before drawing that conclusion against him you must also be satisfied about two things. The first is that the prosecution ’ s case is so strong that it clearly calls for an answer from him. The reasoning is that if the prosecution ’ s case is nothing , if you add nothing to it you are still left with nothing , so there has to be a case against him on the prosecution evidence which calls for an answer. The second element is that the only sensible explanation for his silence is that he has no answer to give or at least not one which would stand up to cross-examination.

In this case the defence suggest that there is a different reason why he has not given evidence , namely , that he has a mental condition which would affect him as a witness if he gave evidence in three ways: firstly , that there is a real risk that he would lose his self-control and end up giving a bad impression of himself in the witness box; secondly , that the stress of giving evidence may mean that he can ’ t concentrate on what he ’ s saying , may forget things that he wanted to say. The third element is that the stress of giving evidence would result in an increased risk of him causing harm to himself: self-harming. So there are those three strands to the defence explanation , reason , why he has not gone into the witness box.

I will come back to the detailed evidence about those matters in just a moment or two , but if you accept the defence explanation for his not giving evidence and you think that this amounts to a reason why you should not draw any conclusion against him from his silence then do not do so. Otherwise , subject to what I have said , you are entitled to draw a conclusion against him from his silence if you think it is a fair and proper conclusion to draw.”

15 . The judge then summarised the medical evidence in some detail for the jury. In the transcript of his summing up , this summary exceeded ten pages.

16 . On 30 July 2008 the jury convicted the applicant and the judge sentenced him to seven years ’ imprisonment. The judge reduced his original sentence of eight years to take account of the applicant ’ s serious mental health condition.

17 . On 14 January 2009 the applicant was granted leave to appeal against his conviction. On 3 March 2009 the Court of Appeal dismissed the appeal. The court noted that:

“The test posed by section 35(1)(b) requires to be answered according to the physical or mental condition of the accused. Its terms make that clear. It does not however follow that in answering the very broad question whether it appears to the court to be undesirable for the defendant to give evidence that all the circumstances of the case do not fall to be taken into account. If one contemplates a defendant with a marginal mental health condition creating a marginal risk of modest or temporary distress or regression if he were to give evidence , one can see that if the only issue to which his evidence could go was one of very peripheral significance the judge would be entitled to take that into account in concluding that it was undesirable for him to give evidence.

In the present case reading the judge ’ s ruling as a whole , it is perfectly clear to us that the judge ruled that the risk of self-harm was not such in his judgment to make the giving of evidence undesirable and he went on to add that it did not become undesirable because any evidence that the defendant might give would be of insignificant relevance. That approach was , we are satisfied , one which the judge was quite entitled to take.

We agree with the broad conclusion of Stanley Burnton J (as he then was) in R (on the application of Director of Public Prosecutions) v Kavanagh . The question posed by section 35 is a wide question for the judgment of the judge. It is plainly not sufficient that the defendant suffers from some (his and our emphasis) physical or mental condition; it must be a mental condition which is such to make it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence is insufficient to justify the conclusion that it is undesirable that he should do so. Many , if not most , difficulties that a defendant or for that matter any other witness may have in giving evidence are things which have to be assessed by the judge of the tribunal of fact - in a Crown Court trial by the jury. The purpose of section 35(1)(b) is clearly to enable the judge to remove the possibility of adverse inference from the jury if it is undesirable for the defendant to give evidence. In this case the evidence was by no means all one way , even though the factual background abroad was accepted. The judge had ample material on which to reach the conclusion that he did.

Having reached that conclusion , it remained of course for the jury to decide whether in its judgment it was right to draw any adverse inference against the defendant. No one here can know whether the jury did draw such an inf erence or not. But what is clea r is that the judge left the whole history and all the medical evidence to the jury with punctilious care over ten pages of summing-up , as he did the possible contra-indications for which the Crown had argued. In other words the question was properly left to the jury. There is not and could not be any criticism of the terms of the summing-up. The question which matters in this appeal , as Mr Menon has helpfully put it , depends upon whether the judge ’ s original ruling was flawed. It was not , we are satisfied , and in those circumstances the appeal against conviction must be dismissed.”

18 . The Court of Appeal held that here was no point of law of general public importance to certify. Consequently , the applicant was refused leave to appeal to the House of Lords.

B. Relevant domestic law and practice

19 . Section 35(1) – (3) of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) provides that:

“(1) At the trial of any person . . . for an offence , subsections (2) and (3) below apply unless—

(a) the accused ’ s guilt is not in issue; or

(b) it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence;

but subsection (2) below does not apply if , at the conclusion of the evidence for the prosecution , his legal representative informs the court that the accused will give evidence or , where he is unrepresented , the court ascertains from him that he will give evidence.

(2) Where this subsection applies , the court shall , at the conclusion of the evidence for the prosecution , satisfy itself (in the case of proceedings on indictment , in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can , if he wishes , give evidence and that , if he chooses not to give evidence , or having been sworn , without good cause refuses to answer any question , it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal , without good cause , to answer any question.

(3) Where this subsection applies , the court or jury , in determining whether the accused is guilty of the offence charged , may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal , without good cause , to answer any question.”

20 . In R (Director of Public Prosecutions) v. Kavanagh [2005] EWHC 820 (Admin) the Administrative Court gave guidance as to the test to be applied when considering section 35(1)(b) of the 1994 Act. Stanley Burnton J (as he then was) held that:

“The court before whom a criminal trial takes place undoubtedly has a wide discretion in deciding on the issue to which subsection (1)(b) refers; that is to say , whether the physical or mental condition of the accused makes it undesirable for him to give evidence.

Two things , however , are to be noted. The first is that there must be an evidential basis for any determination by the court that it is undesirable for the defendant to give evidence (see R v Cowan ). A statement or a submission by an advocate does not constitute evidence at all , let alone the kind of evidence on which a court can properly conclude that it is undesirable for a defendant to give evidence.

The second point is that it is not sufficient that the defendant suffers from some physical or mental condition. The mental condition must be such that makes it undesirable for him to give evidence. The fact that he may have some difficulty in giving evidence , for example , is insufficient to justify a conclusion that it is undesirable for the defendant to give evidence. Many , if not most , difficulties that a defendant , or indeed any other witness , may have in giving evidence , are matters to be taken into account by the judge of fact , be it magistrates or a jury , in assessing the reliability of his evidence. It does not justify a comprehensive failure to give evidence. It may go as to the weight of evidence , not as to the decision whether or not it is undesirable for him to give evidence.

Secondly , the court will draw an inference against a defendant in circumstances where , to use the language of the standard direction , (a) the prosecution ’ s case is so strong that it clearly calls for an answer by him , and (b) , that the only sensible explan ation for his silence is that he has no answer or none that would bear examination. ”

COMPLAINTS

21 . The applicant complained under Article 6 of the Convention that the judge ’ s ruling under section 35 of the 1994 Act violated his right to a fair trial. The applicant further complained that the Court of Appeal ’ s judgment was flawed , thus denying him an effective remedy within the meaning of Article 13 of the Convention.

THE LAW

22 . The applicant complained that the judge ’ s decision not to rule that it was undesirable for him to give evidence violated his right to a fair trial under Article 6 of the Convention. Article 6 provides as relevant:

“In the determination of ... any criminal charge against him , everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

23 . The applicant further complained that he was denied an effective remedy within the meaning of Article 13 of the Convention because the Court of Appeal ’ s judgment was flawed. Article 13 provides as follows:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

24 . The Court recalls that in Condron v. the United Kingdom , no. 35718/97 , ECHR 2000 ‑ V , § 56 §§ 56-5) it confirmed in line with its earlier John Murray v. the United Kingdom judgment ( Reports of Judgments and Decisions 1996-I) that the right to silence is not an absolute right. Accordingly , the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused ’ s silence either during police interview or , as in the instant case , during his trial cannot of itself be considered incompatible with the requirements of a fair trial.

25 . The Court further stressed in its Condron judgment that since the right to silence , like the privilege against self-incrimination , lay at the heart of the notion of a fair procedure under Article 6 , particular caution was required before a domestic court could invoke an accused ’ s silence against him. Thus it would be incompatible with the right to silence to base a conviction solely or mainly on the accused ’ s silence or on a refusal to answer questions or to give evidence himself. Nevertheless , it is obvious that the right cannot and should not prevent that the accused ’ s silence , in situations which clearly call for an explanation from him , be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution.

26 . For the Court , whether the drawing of adverse inferences from an accused ’ s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case , having regard to the situations where inferences may be drawn , the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation. Of particular relevance are the terms of the trial judge ’ s direction to the jury on the issue of adverse inferences ( Condron v. the United Kingdom , cited above , § § 56-57; Beckles v. the United Kingdom , no. 44652/98, § 57 , 8 October 2002 ) .

27 . In the present case the Court observes the extremely clear terms in which the trial judge directed the jury. The judge emphasised that the applicant ’ s silence could only count against him if the jury believed that the reason for his silence was that he had no answer to the prosecution ’ s case , and even then he could not be convicted wholly or mainly on the strength of it. The judge further explained in clear terms that the jury could only conclude that the reason for the applicant ’ s silence was that he had no answer to the prosecution ’ s case if they were satisfied first , that the prosecution ’ s case was so strong that it called for an answer , and secondly , that the only sensible explanation for the applicant ’ s silence was that he had no answer to give.

28 . Consequently , unlike the case of Beckles v. the United Kingdom , no. 44652/98, § 62 , 8 October 2002 , the Court considers that the trial judge gave appropriate weight in his direction to the applicant ’ s explanation for his silence. In particular , it notes that the trial judge ’ s direction to the jury contained all matters relevant to the plausibility of the applicant ’ s explanation for not giving evidence and which , as a matter of fairness , were necessary to allow the jury to consider fully whether the reason for his silence was a genuine one , or whether , on the contrary , his silence was in effect consistent only with guilt.

29 . Moreover , the Court recalls that at his trial the applicant had the opportunity to call an expert witness – a consultant psychiatrist specialising in the treatment of torture victims – to give evidence as to the nature of his mental illness and the potential impact it would have were he to give evidence. In addition , in his summing-up the trial judge carefully summarised all of the medical evidence for the jury.

30 . It was thereafter the function of the jury to decide whether or not to draw an adverse inference from the applicant ’ s silence. Section 34 of the 1994 Act specifically entrusted this task to the jury as part of a legislative scheme designed to confine the use which can be made of an accused ’ s silence at his trial. As the jury was properly directed , the Court finds that there is no appearance of a breach of Article 6 § 1 of the Convention.

31 . With regard to the applicant ’ s second complaint , the Court reiterates that the purpose of Article 13 is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief. Such a remedy is only required in respect of grievances which can be regarded as arguable in terms of the Convention (see Halford v. the United Kingdom , 25 June 1997 , § 64 , Reports of Judgments and Decisions 1997 ‑ III ; Camenzind v. Switzerland , 16 December 1997 , § 53 , Reports of Judgments and Decisions 1997 ‑ VIII).

33 . The applicant was entitled to bring , and , indeed , did bring , an appeal against his conviction. The Court considers that the right to bring such an appeal would normally constitute an effective domestic remedy , even if it does not always produce the outcome that the applicant hopes for. The applicant ’ s appeal was dismissed because the Court of Appeal did not consider that the trial judge had erred in law. However , prior to dismissing his appeal the substance of the applicant ’ s complaint was considered in full. Consequently , there is nothing to suggest that in all the circumstances of the present case , an appeal to the Court of Appeal did not afford the applicant an adequate remedy.

For these reasons , the Court unanimously

Declares the application inadmissible.

Lawrence Early Lech Garlicki              Registrar President