CONCURRING OPINION OF JUDGE BRATZA

With some hesitation I have concluded that there was no violation of Article 6 § 1 in the present case. The trial judge’s interventions, particularly during the early part of the evidence-in-chief of the applicant were clearly excessive and in several instances without any apparent justification. In the end, however, I am persuaded that, although plainly disconcerting for the applicant and her counsel, the interruptions did not prevent the applicant from putting forward her account of events or her counsel from pursuing and developing his line of defence and that, viewed as a whole, the applicant’s trial was not unfair.

In reaching this conclusion, I attach some weight to the fact that the criticisms of the trial judge’s conduct of the case were subjected to detailed scrutiny by the Court of Appeal. However, I would have felt more confident in this conclusion if the Court of Appeal had itself expressly ruled on the question whether the judge’s interventions were such as to result in unfairness, rather than confining itself to examining whether the applicant’s conviction was “unsafe”. As pointed out in the majority judgment and in the dissenting opinion of Judge Loucaides, this case gives rise again to the problem identified by the Court in its Condron judgment of the apparent divergence between the Convention test of what constitutes a “fair hearing” and the national courts’ test of whether a conviction is “safe”. It is apparent from the authorities cited in paragraph 36 of the judgment that, in a case such as the present the two tests coincide to the extent that a conviction will not be treated as “safe”, if as a result of excessive interventions by a trial judge the trial proceedings are, taken as a whole, unfair. The particular difficulty which arises in the present case is that these authorities and the principles stated in them were not referred to by the Court of Appeal in dismissing the applicant’s appeal. While I am able to accept the view of the majority of the Court that, if the Court of Appeal had been satisfied that the trial proceedings were unfair, it would have quashed the applicant’s conviction notwithstanding the overwhelming case against her, it would I consider have been preferable that the question whether the trial proceedings were unfair had been expressly addressed and ruled on.

DISSENTING OPINION OF JUDGE LOUCAIDES

The applicant’s complaint in this case is that there has been a breach of the principle of fairness as guaranteed by Article 6 § 1 of the Convention inasmuch as the judge sitting in the court of first instance intervened in defence counsel’s cross-examination of a key witness and his examination-in-chief of the applicant to such an excessive extent and in such an unjustified manner that it disturbed counsel’s concentration, diverted the jury’s attention and prevented the applicant from presenting her version of events coherently and in chronological order. According to the applicant this unfairness was not remedied by the appeal proceedings.

The first question that has to be answered is whether there was in fact a breach of the principle of fairness during the first-instance proceedings.

There is no definition of the term “fairness” for the purposes of the Convention. It is not a term of art and does not have to be given any strict or technical meaning. On the contrary, as pointed out by the Court, the “right to a fair trial holds so prominent a place in a democratic society that there can be no justification for interpreting [the guarantees of] Article 6 § 1 of the Convention restrictively” (Moreira de Azevedo v. Portugal judgment of 23 October 1990, Series A no. 189, § 66).

It should also be pointed out that from the Convention standpoint a hearing may be held “unfair” and a breach of Article 6 even in the absence of proof of actual prejudice. It is not so much the effect on the outcome of the proceedings that is in question but the process of “hearing” (see Artico v. Italy judgment, Series A no. 37, § 35). In this respect, I believe that the appearance of a fair administration of justice on the basis of an objective test should also be relevant to the question of fairness. It is true that the proceedings should be looked at as a whole but at the same time it is correct to say that a single incident or a particular attitude of the Court, even for a limited duration, may render the hearing unfair.

For the purposes of the present case it is important to bear in mind the role of a judge in the common-law system in force in the respondent State. For if a judge goes beyond his legitimate role in the conduct of the proceedings, that is an element that points to unfairness. In contrast with the civil-law system (the inquisitorial system) the judge in the common-law system is not himself carrying out an investigation into the facts of the case and cannot question the witnesses other than to seek clarification on specific matters which appear to him unclear. The questioning of witnesses and any objections to any questions fall within the competence of counsel of the parties (the accusatorial system) (see Halsbury’s Laws of England 4th Edition vol. 17 paragraph 281 no. 1; “If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. Lord Bacon spoke right when he said that: ‘Patience and gravity of hearing is an essential part of justice; and an over-speaking

judge is no well tuned cymbal’”: per Denning L.J . in Jones v. National Coal Board [1957}2 All ER 155, CA.)

It is evident in this case that the trial judge went beyond his role and to a great extent took over the task of questioning key witnesses himself and on occasions even disallowed questions to which the counsel concerned had raised no objection (see the transcript of the cross-examination by applicant’s counsel of Mr David Shepherd, 16 April 1997 and of the examination-in-chief of the applicant, 17 April 1997). The Court of Appeal seems to have accepted that the judge exceeded his role by stating in this respect the following:

“the learned judge did interrupt cross-examination [of S.] far more often than could be justified on any view...

it does seem to us that on occasions this very experienced and highly regarded circuit judge (now retired) did enter the arena sometimes for legitimate reasons and at other times perhaps without justification ” (emphasis added).

However, the applicant’s complaint regarding the interventions in question is not confined to their extent but covers also their nature and effect. She complained in particular that the judge intervened and interrupted the testimony of the witnesses in question in such a way and with such frequency that her counsel’s concentration was disturbed and the attention of the jury and also of the applicant were diverted, the applicant thereby being prevented from presenting a coherent and chronological account of her version of events.

Bearing in mind the interventions in question recorded in the transcript of the evidence presented to this Court, one can readily understand that the applicant and her counsel were disconcerted and thrown off balance and that that had a negative effect on the proper presentation of the case for the defence. In fact, the Court of Appeal itself has accepted the substance of this complaint as is evident from the following passages of its judgment:

“It appears from a reading of the transcripts that there were frequent interruptions at the start of the appellant’s evidence. In our view those interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, as seems to have been the case and as Mr Engel tells us, of disconcerting him. Likewise, so far as the evidence of [S.] is concerned, it does appear that, probably through a misunderstanding of the points that Mr Engel was seeking to make, the learned judge did interrupt cross-examination for more often than could be justified on any view.”

In this context it is important to bear in mind the inequality between counsel in judicial proceedings and the judge presiding over them. If the judge is wrong on any point, if he oversteps his role in any way, or even is discourteous to the lawyer or a witness or obstructs the proper presentation of the evidence or the submissions of the parties, there is nothing that counsel can do during the hearing of the case to remedy the situation. However courageous and able a counsel may be, he cannot afford to point out effectively during the course of the proceedings any errors or irregularities committed by a judge without thereby running the risk of clashing with the judge or of causing ill-feeling that could adversely affect his case. In short, counsel cannot afford to do anything that may arouse the judge’s hostility or antagonise him or which the judge may interpret as so doing. Therefore, the judge should always be conscious of the delicate position of the lawyers appearing before him and exercise the restraint necessary to avoid placing them in an incommodious position that can only have the result of a feeling of oppression on their part to the detriment of the proper presentation of their case. I am inclined to find that the judge failed to exercise such restraint in this case.

Having gone through the transcript I am convinced that the interruptions by the judge did have the effect of preventing counsel for the applicant and the applicant herself from having an adequate and effective opportunity to present their case. That, in my opinion, was unfair and contrary to the relevant provisions of Article 6 § 1 of the Convention. It may be useful to refer here, by way of example, to an unjustified interruption by the judge when he questioned the applicant during the first few minutes of her examination-in-chief. The judge put twenty-two questions to the applicant and they were followed by an exchange between the judge and applicant’s counsel which ended as follows:

“JUDGE HARRISON-HALL: Well, you carry on, you carry on, you carry on then. Don’t let me try to shorten the case.

Mr ENGEL: Sorry?

JUDGE HARRISON-HALL: I said don’t let me try to shorten the case.

Mr ENGEL: Well, it’s not a matter of shortening the case, your Honour. It’s a matter of her being able to put her evidence before the court in the way I think is proper on her behalf and that’s what I am trying to do, in the shortest way possible that I can.

Your Honour, could I ask for a short adjournment?

JUDGE HARRISON-HALL: Yes, certainly.

Mr ENGEL: Thank you very much”.

Another example of an intervention on the part of the judge in question which supports the view I have expressed above is the lengthy series of exchanges between the judge and counsel for the applicant initiated by the former during the cross-examination of Mr Sheppard and which included the following:

“Mr ENGEL: What I’m suggesting, your Honour, is that this money was not stolen by the defendant. What she has said in interview is that is could have been stolen at work or in the pub.

JUDGE HARRISON-HALL: Yes.

Mr ENGEL: So it’s right, in my submission, that these questions are put, which is the reason that I am putting them.

JUDGE HARRISON-HALL: But if it was stolen in the pub, the money, then surely the pay-in slip, what are you suggesting, that there is a pay in slip showing this money would have been paid in on a specific date and she’d written it all out and when the money went the pay-in slip had gone as well?

Mr ENGEL: If it went at work rather than in the pub.

JUDGE HARRISON-HALL: Well only she knows when it went.

Mr ENGEL: No, no, she doesn’t know your Honour, that’s not fair.

JUDGE HARRISON-HALL: Well I understood your case was that it had gone from her handbag.

Mr ENGEL: Sorry, she’s saying, with respect, that it either went at work or in the pub, she’s not saying she knows where ...

JUDGE HARRISON-HALL: Oh ... (inaudible) ... right.”

The applicant alleges that the interruptions demonstrated an element of hostility towards the defence. On the basis of the transcript produced to our Court I am not prepared to accept that there was any deliberate hostility on the part of the judge against any of the parties. Nevertheless, the extent and nature of the judge’s interventions, considered as a whole, might reasonably create the impression to an objective observer that the judge unduly hampered the task of the defence and, in that sense, he was hostile. Consequently, in my opinion there has also been in this case a failure to ensure the required appearance of a “fair hearing”. The Government in their observations of July 2000 state the following: “Not all the trial judge’s interruptions were hostile to the defence ... Even those that were, were aimed at clarifying matters for the jury”.

In arriving at the above conclusions I have been conscious too of the whole context of the case, including certain other irregularities in the conduct of the case by the trial judge; although these were not invoked by the applicant before us, they appear to have been accepted by the Court of Appeal in its judgment that was communicated to the Government as part of our examination of the case with the following question: “Did the applicant receive a fair hearing before the trial judge in accordance with Article 6 § 1 of the Convention?”

These irregularities are evidenced by the following passages of the aforementioned judgment:

“... That was a very short way of putting the defence forward. It does not deal in great detail with the points which Mr Engel had been attempting to advance both in the course of the cross-examination and in his speech. To that extent the criticism is justified.

... Further it is said that the judge wrongly directed the jury that there was no evidence of there being a second paying-in-book in use at the time, and the complaint is made that the appellant said that there was (in conflict, it has to be said, with the evidence of [S.]). This was a mistake on the judge’s part, so it appears, and something which we have to take into account.

It is then said that the judge erroneously implied that defence counsel had failed to suggest to [S.] that there was more than one paying-in book, and once again it appears that the judge was in error about that.

... As we have observed, there are criticisms which can be made of the manner in which this trial was conducted”.

For the above reasons I have come to the conclusion that there has been a breach of the principle of fair hearing during the trial of this case. There remains the question whether the unfairness at the trial was remedied by the Court of Appeal. The applicant in his appeal has included the complaint that the trial was unfair for exactly the same reasons that were stated to us. The Court of Appeal at page 4 of its judgment stated:

“The principal ground relied upon by Mr Engel, who appeared at trial and also on this appeal before us, was that the trial was unfair (and he does not mince his words) because of the attitude of the learned judge from the moment that he began to cross-examine Mr Shepherd ...”

Thereafter, the Court of Appeal after setting out in detail the complaint regarding unfairness during the trial, stated: “We find that there is some substance in those criticisms”.

There follow in the judgment the findings of the Court of Appeal in respect of the “criticisms” in question which I have already quoted above and which can be summarised as follows:

“There were frequent interruptions at the start of the appellant’s evidence”.

“The interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, disconcerting[ the counsel of the applicant].”

“Likewise, so far as the evidence of Mr Shepherd is concerned,... the judge did interrupt cross-examination far more often than could be justified on any view.”

Later on in its judgment the Court of Appeal repeats: “there are criticisms which can be made of the manner in which this trial was conducted” and “counsel found himself incommoded and disconcerted by those interventions and interruptions [of the trial judge]”. The Court then expresses the view that “perhaps Mr Engel was on this occasion a trifle oversensitive” but the Court admits that “that does not, of course, detract from the validity of the criticisms which has made of the manner in which this trial was conducted”.

Yet, in spite of the vindication in substance by the Court of Appeal of the appellant’s complaints regarding the unfair conduct of the trial, as explained above, and in spite of the English case-law, brought to our notice, to the effect that on appeal the appellate court is entitled to examine whether there was in fact an unfair trial, that being something which may result in the judgment of the lower court being quash, the appeal court in this case did not in the end apply the test of unfairness but only the test of whether the conviction was “unsafe”. In fact, it appears that the Court of Appeal felt that that was the only test applicable in an appeal case like the present one. This is evident from the following passage at the end of the judgment:

“We look at those criticisms – some well-founded, some not – in the round. In the end we have to ask ourselves whether or not we think this conviction was unsafe. That is the test we have to apply.

The case was a very strong one; indeed the evidence was overwhelming ... we have not a moment’s hesitation in saying that, so far as we are concerned, the conviction was entirely safe. Notwithstanding the criticisms which we have found to be made out as to the manner in which the trial was conducted, this appeal will be dismissed.”

However, the test of safety of a conviction does not satisfy the test of fairness of a hearing as required by Article 6 of the Convention. I reiterate here what our Court said in the case of Condron v. the United Kingdom judgment of 2 May 2000, ECHR 2000-V:

“The Court must also have regard to the fact that the Court of Appeal was concerned with the safety of the applicants’ conviction, not whether they had in the circumstances received a fair trial. In the Court’s opinion, the question whether or not the rights of the defence guaranteed to an accused under Article 6 of the Convention were secured in any given case cannot be assimilated to a finding that his conviction was safe in the absence of any enquiry into the issue of fairness”.

Therefore, the unfairness of the trial was not, in my opinion, remedied in the appeal proceedings.

For all the above reasons, I find that there has been in this case a breach of the principle of fairness as guaranteed by Article 6 § 1 of the Convention.