FIRST SECTION

DECISION

Application no. 20391/16 Martin Raymond Jude MURRAY against the United Kingdom

The European Court of Human Rights (First Section), sitting on 12 November 2019 as a Committee composed of:

Aleš Pejchal, President,

Tim Eicke,

Jovan Ilievski, judges , and Renata Degener, Deputy Section Registrar ,

Having regard to the above application lodged on 5 April 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Martin Raymond Jude Murray, is an Irish national who was born in 1987 and is currently detained at HMP Maghaberry. He was represented before the Court by Mr C. Toner of Finucane Toner Ltd, a firm of solicitors practising in Belfast.

2 . The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth Office.

3 . The Government of Ireland did not seek to exercise its right to intervene (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court).

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

5 . The applicant and three other persons were arrested on 13 September 2008 following an altercation in which one man died and two women were seriously injured. The applicant was detained until 16 September 2008 and, after appearing before the Magistrate ’ s Court, was remanded in custody.

6 . Thereafter, he made a number of applications for bail. One of these bail applications was heard by Mr Justice Treacy over two days (14 May 2009 and 25 June 2009) before being refused on 30 June 2009. At the hearing on 14 May 2009 the applicant ’ s criminal record was opened to the judge and the judge commented on the seriousness of it.

7 . On 25 September 2009 the application for bail was renewed before Mr Justice Treacy. In the course of the hearing he described the applicant as “clearly someone with a propensity to violence”. He further noted that he had “an atrocious criminal record”. He concluded that it was “clear from his demeanour on the screen and during the course of his bail application that it would be entirely inappropriate to release the applicant on bail... ”.

8 . Thirteen months later the applicant and three co-defendants were arraigned and pleaded “not guilty”. The trial was fixed for late November.

9 . In early November 2011 the prosecution made an application to admit bad character evidence in the trial. This application was heard by a disclosure judge, who refused it in view of the proximity of the trial.

10 . In or around this time the applicant ’ s solicitor became aware that Mr Justice Treacy was listed as the trial judge. He discussed with counsel whether they should make an application for recusal. However, counsel did not recommend making an application since Mr Justice Treacy was unlikely to have had any recollection of the bail applications and an application for recusal would likely result in an adjournment of the trial, which would give the prosecution an opportunity to make a further application to admit bad character evidence.

11 . The solicitor and counsel have since stated in sworn affidavits that the decision whether to apply for recusal was discussed with the applicant. The applicant – also in a sworn affidavit – denies that the issue was ever raised with him.

12 . On 13 April 2011 Mr Justice Treacy, sitting without a jury, convicted the applicant of murder and affray but found him “not guilty” of two counts of attempted murder.

13 . The applicant appealed to the Court of Appeal against conviction and sentence. At the conclusion of the hearing the court dismissed the applicant ’ s grounds of appeal but reserved its reasons.

14 . Following the hearing the applicant changed his representatives. His new representatives requested information about the bail applications made while he was remanded in custody. In particular, they sought the dates of the applications, the names of the judges who heard them, and transcripts of the hearings. Upon receiving this information the new representatives added a fresh ground of appeal, namely that there was a real danger that the trial judge had been biased. Although they did not allege any actual bias, relying on Article 6 of the Convention they contended that there was a real possibility of latent bias.

15 . In a judgment delivered on 3 July 2015 the Court of Appeal gave reasons for dismissing the grounds argued at the hearing. It also considered the fresh ground raised by the applicant. It granted leave to appeal on the issue but dismissed the appeal.

16 . Having regard to Hauschildt v. Denmark , 24 May 1989, Series A no. 154, the Court of Appeal found that the mere fact that a trial judge or an appeal judge had also made pre-trial decisions in a case could not in itself justify fears as to his impartiality. On the contrary, the issue of bias was fact-sensitive, and on the facts of the present case an informed observer would determine that no bias had been made out and that the applicant had received a fair trial. In reaching this conclusion, the court noted that no individual instance of bias, conscious or subconscious, had been identified, and the applicant had in fact been found “not guilty” of serious charges (two counts of attempted murder) in respect of which prima facie cases existed.

17 . With regard to the decision not to mak e an application for Mr Justice Treacy ’ s recusal, the court opined:

“It is clear that the solicitor instructing counsel was aware that the trial judge had heard applications for bail made by Martin Murray. He consulted with Martin Murray who raised with him the fact that the nominated trial judge had heard an application for bail. The solicitor emailed counsel inquiring whether there was an issue arising from the fact that he had heard applications for bail and asking him whether this should be raised at the application for the admission of bad character evidence to be made the following day. He discussed the issue with counsel that evening who advised that any decision should be made after the determination of the bad character application. After the bad character application had been rejected the matter was discussed again with counsel and it was not recommended that a recusal application be made as this would lead to an adjournment of the case and a subsequent bad character application. It was felt that if the judge had any recollection of the bail applications he would have mentioned it himself. The solicitor and counsel aver that the issue was discussed with Martin Murray before the commencement of the trial and a tactical decision was made not to make an application to the judge with which Martin Murray agreed. Martin Murray avers that this issue was never raised with him by either counsel or solicitor. However, on 22 October 2013 he told his present solicitor that when he discovered the name of the nominated trial judge he spoke to his earlier solicitor and informed him that he would not get a fair trial as a result of what had arisen during his application for bail. The appellant ’ s accounts are not wholly consistent. ... Thus in the case of Martin Murray there was a tactical issue as to how to deal with the trial judge ’ s involvement in the bail hearings and according to counsel the matter was discussed with him including the consequences of an adjournment of the trial and a renewal of the bad character application.

... ... ...

...[ D]ecisions made in good faith after proper consultation with the defendant will not without more render a conviction unsafe, even were the court to disagree with the decisions. We are not persuaded that the decision of counsel in consultation with the appellant Martin Murray was wrong. It showed an awareness of the sensitivity of the situation and potential difficulties for the appellant in adopting a particular course. ... This can clearly be a matter of tactical decision made in good faith.”

18 . The applicant sought permission to appeal to the Supreme Court. However, on 9 October 2015 the Court of Appeal refused to certify that a point of law of general importance was involved in the decision and refused leave to appeal to the Supreme Court.

19 . In 1973, at the height of “the Troubles” in Northern Ireland, the right to trial by jury was suspended for certain “scheduled offences”. These trials, known as “Diplock trials”, were conducted by single judges sitting without juries.

20 . Following the signing of the Belfast Agreement (“the Good Friday Agreement”) on 10 April 1998, Northern Ireland entered into a process of security “normalisation”. Consequently, the Justice and Security (Northern Ireland) Act 2007 (“the 2007 Act”) repealed the emergency legislation underpinning the Diplock system. However, as it was not considered possible for Northern Ireland to operate without special arrangements for a small number of exceptional cases, the 2007 Act provided for a new system of non-jury trial.

21 . Pursuant to section 1 of the 2007 Act, a trial will be conducted with a jury unless the Director of Public Prosecutions issues a certificate that it should be conducted without a jury. He may only do so if he suspects that the defendant is connected to a proscribed organisation, and he is satisfied that as a consequence there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury.

22 . At the time of the applicant ’ s trial, the test of apparent bias had been settled by the House of Lords in Porter v Magill [2001] UKHL 67, in which Lord Hope indicated that the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

COMPLAINT

23 . The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair trial before an impartial tribunal.

THE LAW

24 . Article 6 § 1 of the Convention provides, insofar as relevant, as follows:

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

25 . While the Government accepted that the complaint was admissible, and in particular that the applicant had exhausted domestic remedies, they argued that the trial judge had acted appropriately and reasonably at all times and therefore constituted an impartial tribunal within the meaning of the Convention. Any doubts as to the impartiality of the tribunal were not objectively justified and, even if they were, the applicant had waived his rights under Article 6 of the Convention.

26 . With regard to the latter point, the Government argued that the applicant ’ s waiver had been unequivocal. First of all, through his legal representatives he had made no application to recuse the trial judge even though the Court of Appeal clearly found that both he and his representatives had been aware of the judge ’ s involvement in the bail applications. Moreover, the Court of Appeal found as a fact that the decision not to apply for recusal had been a tactical decision, discussed in advance with the applicant, which had been taken in good faith and was reasonable in the circumstances of the case.

27 . The applicant, on the other hand, maintained that his trial was flawed ab initio . With regard to the issue of waiver, he submitted that the question of recusal had not been raised with him by his solicitor or counsel, and there was no contemporaneous record of any such advices which would support the statements made in their sworn affidavits.

28 . It is not necessary for the Court to consider whether there were objective reasons to doubt the impartiality of the applicant ’ s trial, For the reasons set out below, the Court considers that even if this were the case, the application should in any event be declared inadmissible since the applicant waived any rights he may have had under Article 6 § 1 of the Convention.

29 . The Court has repeatedly stated that neither the letter nor the spirit of Article 6 of the Convention prevents a person from waiving of his own free will, either expressly or tacitly, the entitlement to the guarantees of a fair trial. However, if it is to be effective for Convention purposes, such a waiver must be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. A waiver need not be explicit, but it must be voluntary and constitute a knowing and intelligent relinquishment of a right. Before an accused can be said to have implicitly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be. Moreover, the waiver must not run counter to any important public interest (see, among many examples, Murtazaliyeva v. Russia [GC], no. 36658/05, § 117, 18 December 2018).

30 . It follows that a waiver of the right to an impartial tribunal, a fundamental right among those listed in Article 6 § 1 which constitute the notion of a fair trial, must be strictly compliant with the above requirements.

31 . In the present case, the Court of Appeal weighed up the evidence before it, including the sworn affidavits submitted by the applicant and his solicitor and counsel at trial, and concluded that all three were aware that the trial judge had heard an earlier bail application; that they discussed among themselves the possibility of seeking his recusal; a tactical decision was taken not to do so; and that decision was not unreasonable in the circumstances. The Court has repeatedly held that where domestic proceedings have taken place, it is not its task to substitute its own assessment of the facts for that of the domestic courts and it is for the latter to establish the facts on the basis of the evidence before them (see, among many other authorities, Edwards v. the United Kingdom , 16 December 1992, § 34, Series A no. 247 ‑ B, and Klaas v. Germany , 22 September 1993, § 29, Series A no. 269). Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see Avşar v. Turkey , no. 25657/94, § 283, ECHR 2001 ‑ VII and Barbu Anghelescu v. Romania , no. 46430/99, § 52, 5 October 2004).

32 . There are no such cogent elements in the case at hand. On the contrary, the Court of Appeal considered all the evidence before it but clearly preferred that of the solicitor and counsel who represented the applicant at his trial. Full reasons were given for this decision, with the Court noting, in particular, that “[t]he appellant ’ s accounts are not wholly consistent”. Consequently, the Court cannot go behind the facts as found by the Court of Appeal, and must therefore proceed on the basis that the applicant was fully aware that the trial judge had heard an earlier bail application but, following a discussion with his legal representatives, agreed, for tactical reasons, that they would not ask the judge to recuse himself.

33 . On this factual basis, the Court considers that the applicant tacitly waived any rights he may have had under Article 6 § 1 of the Convention.

35 . Finally, having regard to the general public interest, there are obvious similarities between the present case and that of Roberts and Roberts v. the United Kingdom (dec.), no. 38681/08, 5 July 2011. In Roberts and Roberts, although the applicants were aware of the fact that one of the judges participating in their appeal hearing was the judge who had refused leave to appeal on the papers, and although they knew of the judge ’ s background, they failed to request that he recuse himself. The Court found that the decision not to proceed with a challenge to the judge ’ s alleged partiality and request his recusal was a tactical one, taken by the applicants after advice from experienced counsel. Although it ultimately declared the complaint inadmissible for non-exhaustion of domestic remedies, in part because the question of impartiality was not raised at any level of jurisdiction in the domestic proceedings, the Court nevertheless indicated that if a party, for tactical reasons, chooses to adopt one approach in presenting his case, he must bear the consequences of his choice and it is not in the interests of justice to allow him later to seek to rely on an argument which, although known to him prior to or during the impugned proceedings, he chose not to present to the court at that time. The Court has repeatedly affirmed that “legal certainty constitutes one of the fundamental elements of the rule of law which requires, inter alia , that, where a court has finally determined an issue, its ruling should not be called into question” (see, for example, Harkins v. the United Kingdom (dec.) [GC], no. 71537/14, § 56, 15 June 2017) and that is equally true in both civil and criminal proceedings. As such, the waiver in issue in the present case cannot be said to run counter to any important public interest; on the contrary, it would run counter to both the public interest and the interests of justice to allow the applicant to call his criminal conviction into question on the basis of an argument which, for tactical reasons, he declined to make during the trial.

36 . In light of the forgoing the Court considers that the applicant not only waived any rights he may have had under Article 6 § 1 of the Convention, but that the waiver complied strictly with the requirements set out in paragraph 29 above. Therefore, despite the Governments concession concerning the admissibility of the present complaint, the Court nevertheless considers it to be manifestly ill-founded within the meaning of Article 35 § 3(a) of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 5 December 2019 .

Renata Degener Aleš Pejchal Deputy Registrar President