Information Note on the Court’s case-law 38

January 2002

Oyston v. the United Kingdom (dec.) - 42011/98

Decision 22.1.2002 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Fresh evidence adduced by defendant in rape case refused by Court of Appeal: inadmissible

Article 6-3-d

Examination of witnesses

Limitations on cross-examination of alleged rape victim: inadmissible

In May 1996 the appl icant was convicted of raping and indecently assaulting J., a young woman, and was sentenced to imprisonment. At the trial, J. gave evidence and explained how the applicant had sexually abused her in 1992. At the end of her examination by the prosecution, the applicant’s counsel sought leave, pursuant to section 2 § 1 of the Sexual Offences (Amendment) Act 1976, to cross-examine her about her sexual experience with another man, M., who had introduced her to the applicant, and notably about how M. had raped her and about the alleged control he exerted over her. Leave was granted. It was the defence’s case that J. was obsessed by hatred of M. and it was this which had motivated her allegation against the applicant. L., another young woman who was present at th e time of the alleged rape by the applicant, gave evidence for the defence and denied that J. had been sexually abused by him. She was asked in cross-examination about her sexual relationships and about an abortion which she had had at around that time. In June 1997 the applicant was granted leave to appeal against conviction and sentence. He applied at the same time for leave to adduce fresh evidence with a number of new witnesses. One of them was a young man with whom J. had had a sexual relationship in 1 992. The applicant’s counsel asserted that J.’s relationship with the young man showed that she was not as vulnerable as she appeared to be. In December 1997 the Court of Appeal dismissed the applicant’s appeal. It held that to seek to introduce this evide nce simply to counter the impression that J. was making in the witness box was a paradigm of the type of conduct that section 2 of the 1976 Act was designed to prevent and that the fact that J. had had a brief relationship with the young man before or afte r the date on which the offences were alleged to have been committed by the applicant was in itself of no relevance to the question of whether she was raped and indecently assaulted by the applicant. The court found the other elements of fresh evidence to be of no greater relevance.

Inadmissible under Article 6 § 1 and  § 3 (d): Whilst a defendant must be given an adequate and proper opportunity to challenge and question a witness against him, there may be circumstances where restrictions on access to evidence or to a witness may be necessary or unavoidable. In such cases Art icle 6 § 1, taken together with Article 6 § 3, requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities. Although the interests of victims or witnesses are not expres sly taken into account in Article 6, they may be regarded as protected by the other substantive provisions of the Convention. Criminal proceedings should be organised in such a way that those interests are not unjustifiably imperilled and this may require striking a fair balance between the interests of the defence and those witnesses or victims called upon to testify. In the instant case, the applicant could not complain of inequality of arms at the trial as regards the questioning of witnesses. Although t he 1976 Act places certain restrictions on the cross-examination at trial of an alleged rape victim, it was not alleged that the applicant’s counsel was hindered from putting such questions to J. as were regarded as necessary for the applicant’s defence. T he Court was not prepared to rule, in the abstract, that the operation of section 2 § 1 of Act differentiated between female victims of rape and female witnesses for the defence in a manner incompatible with Article 6. While the relevance of the question p osed to L. about an abortion was less apparent, it could not be regarded as rendering the trial unfair. It would have been possible to object to any improper line of questioning put to L. There were also limits applicable to the questions to L., which were subject to the overriding discretion of the judge. Thus the trial itself was not shown to offend any of the principles of Article 6. The applicant also complained that the proceedings were nonetheless rendered unfair by the way the Court of Appeal had han dled his appeal against conviction. According to the applicant, the question of the credibility of J. was crucial as the jury had essentially to decide who of J. or L. was lying. He argued that it was not for the Court of Appeal to attempt to second-guess what effect the additional evidence would have had on the jury’s views. In this respect, he referred to the case of Condron v. the United Kingdom, where the Court held that the failure of the trial judge to give proper direction to the jury was a defect th at could not be remedied on appeal. However, the facts of the present case were more analogous to those in Edwards v. the United Kingdom where, as in this case, the Court of Appeal had reviewed evidence which had come to light after the applicant’s trial. The Court had found that the rights of the defence were secured by the proceeding before the Court of Appeal, where the applicant’s counsel had every opportunity to seek to persuade the court that the conviction should not stand in light of the new materia l, and that the Court of Appeal was able to assess for itself the value of the new evidence and to determine whether the availability of the information at trial would have disturbed the jury’s verdict. There was no reason to reach a different conclusion i n the present case. The test applied by the Court of Appeal as to the safety of the conviction in the circumstances of the applicant’s case was not incompatible with the requirements of Article 6. Taken as whole, the applicant’s trial and appeal complied w ith Article 6: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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