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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gradica v Public Prosecutor's Office Attached To the Court of Turin [2009] EWHC 2846 (Admin) (11 November 2009) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2009/2846.html Cite as: [2009] EWHC 2846 (Admin) |
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ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
and
MRS JUSTICE RAFFERTY
____________________
Robert Gradica |
Appellant |
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- and - |
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Public Prosecutor's Office attached to the Court of Turin |
Respondent |
____________________
James Lewis QC and Ben Brandon (instructed by CPS) for the Respondent
Hearing dates: 14 October 2009
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Crown Copyright ©
Lord Justice Pill :
"(1) If the judge is required to proceed under this section (by virtue of section 11) he must decide whether the person was convicted in his presence.
(2) If the judge decides the question in subsection (1) in the affirmative he must proceed under section 21.
(3) If the judge decides that question in the negative he must decide whether the person deliberately absented himself from his trial.
(4) If the judge decides the question in subsection (3) in the affirmative he must proceed under section 21.
(5) If the judge decides that question in the negative he must decide whether the person would be entitled to a retrial or (on appeal) to a review amounting to a retrial.
(6) If the judge decides the question in subsection (5) in the affirmative he must proceed under section 21.
(7) If the judge decides that question in the negative he must order the person's discharge.
(8) The judge must not decide the question in subsection (5) in the affirmative unless, in any proceedings that it is alleged would constitute a retrial or a review amounting to a retrial, the person would have these rights
(a) the right to defend himself in person or through legal assistance of his own choosing or, if he had not sufficient means to pay for legal assistance, to be given it free when the interests of justice so required;
(b) the right 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."
"(1) If the judge is required to proceed under this section (by virtue of section 11 or 20) he must decide whether the person's extradition would be compatible with the Convention rights within the meaning of theHuman Rights Act 1998 (c. 42).
(2) If the judge decides the question in subsection (1) in the negative he must order the person's discharge.
(3) If the judge decides that question in the affirmative he must order the person to be extradited to the category 1 territory in which the warrant was issued. "
". . . Surrender may be subject to the condition that the issuing authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing member state and to be present at the judgment."
"In that case it was concluded [by Lloyd Jones J] (para 38) 'I am satisfied that this applicant, on his return to Italy, would be able to obtain from a court a fresh determination (both legal and factual) of the merits of the charges, where it has not been established that he had waived his right to appear and defend himself' and (para 41) 'I consider that there are sufficient safeguards in Italian domestic law to satisfy this court that the applicant's extradition would not infringe Article 6 of the European Convention on Human Rights and would not be contrary to the interests of justice."
"I have confidence in the Italian judicial authorities to provide a trial process that is fair overall, and compliant with the ECHR."
"Article 6(3)(d) is an aspect of the right to fair trial guaranteed by article 6(1), which, in principle, requires that all evidence must be produced in the presence of the accused in a public hearing with a view to adversarial argument. As with the other elements of article 6(3), it is one of the minimum rights which must be accorded to anyone who is charged with a criminal offence. As minimum rights, the provisions of article 6(3) constitute express guarantees and cannot be read, as it was by the Court of Appeal in Sellick, [[2005] EWCA Crim 651], as illustrations of matters to be taken into account when considering whether a fair trial has been held. Equally, even where those minimum rights have been respected, the general right to a fair trial guaranteed by article 6(1) requires that the Court ascertain whether the proceedings as a whole were fair. Hence, in Unterpertinger v Austria 1991 13 EHRR 17 the Court held that the reading out of statements of witnesses without the witness being heard in a public hearing could not be regarded as being inconsistent with article 6(1) and (3)(d) of the Convention but it went on to emphasise that the use made of this evidence had nevertheless to comply with the rights of the defence which it was the object and purpose of article 6 to protect. This meant that, in principle, the accused had to be given a proper and adequate opportunity to challenge and question a witness against him either when the witness made the statement or at a later stage.
"The Court notes that in the present cases the Government, relying on the Court of Appeal's judgment in Sellick, . . . argue that this Court's statement in Lucą and in other similar cases is not to be read as laying down an absolute rule, prohibiting the use of statements if they are the sole or decisive evidence, whatever counterbalancing factors might be present. However, the Court observes that the Court of Appeal in Sellick was concerned with identified witnesses and the trial judge allowed their statements to be read to the jury because he was satisfied that they were being kept from giving evidence through fear induced by the defendants. That is not the case in either of the present applications and, in the absence of such special circumstances, the Court doubts whether any counterbalancing factors would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for the conviction of an applicant. While it is true that the Court has often examined whether the procedures followed in the domestic courts were such as to counterbalance the difficulties caused to the defence, this has been principally in cases of anonymous witnesses whose evidence has not been regarded as decisive and who have been subjected to an examination in some form or other. This occurred in Doorson v Netherlands (1996) 22 EHRR 330, where the applicant was convicted of drug trafficking on the basis of statements by anonymous witnesses and a witness who attended trial but then absconded. The anonymous witnesses were ultimately questioned at the appeal stage, in the presence of the applicant's lawyer, but not the applicant, and without the identity of the witnesses being revealed to the applicant's lawyer. The Court found no violation. It was satisfied that no violation of article 6(1) taken together with article 6(3)(d) of the Convention could be found if it was "established that the handicaps under which the defence laboured were sufficiently counterbalanced by the procedures followed by the judicial authorities". However, the court also recalled at paragraph 76:
'Even when 'counterbalancing' procedures are found to compensate sufficiently the handicaps under which the defence labours, a conviction should not be based either solely or to a decisive extent on anonymous statements.'"
"The Court is not persuaded any more appropriate direction could effectively counterbalance the effect of an untested statement, which was the only evidence against the applicant."
In the second of the cases, the court stated, at paragraph 46:
"The right of an accused to give evidence in his defence cannot be said to counterbalance the loss of opportunity to see and have examined and cross-examined the only prosecution eyewitness against him."
The court added, at paragraph 47, that in absence of the witness, it did not find that a warning given to the jury "however clearly expressed, would be a sufficient counterbalance where the witness's untested statement was the only direct evidence against the applicant." Violations of article 6 were established.
"If the defendant has been given an adequate and proper opportunity to challenge the depositions either when made or at a later state, their admission in evidence will not in itself contravene art 6(1) and (3)(d). The corollary of that, however, is that where a conviction is based solely or to a decisive degree on depositions that have been made by a person whom the accused has had no opportunity to examine or to have examined, whether during the investigation or at the trial, the rights of the defence are restricted to an extent that is incompatible with the guarantees provided by article 6. . ."
"49. . . . the requirements of Article 6 para. 3 are to be seen as particular aspects of the right to a fair trial guaranteed by Article 6 para. 1 . . .
50. The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair . . .
51. In addition, all the evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument. There are exceptions to this principle, but they must not infringe the rights of the defence; as a general rule, paragraphs 1 and 3 (d) of Article 6 require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statements or at a later stage (see the Ludi v Switzerland judgment of 15 June 1992, Series A no. 238, p. 21, para 49). . .
54. However, if the anonymity of prosecution witnesses is maintained, the defence will be faced with difficulties which criminal proceedings should not normally involve. Accordingly, the Court has recognised that in such cases Article 6 para. 1 taken together with Article 6 para. 3 (d) of the Convention requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities. . .
55. Finally, it should be recalled that a conviction should not be based either solely or to a decisive extent on anonymous statements. . .
58. Having regard to the place that the right to a fair administration of justice holds in a democratic society, any measures restricting the rights of the defence should be strictly necessary. If a less restrictive measure can suffice then that measure should be applied."
"In particular, it is not for the Court to indicate how any new trial is to proceed and what form it is to take. The respondent State remains free, subject to monitoring by the Committee of Ministers, to choose the means by which it will discharge its obligation to put the applicant, as far as possible, in the position he would have been in had the requirements of the Convention not been disregarded, provided that such means are compatible with the conclusions set out in the Court's judgment and with the rights of the defence."
In Demebukov v Bulgaria (Application No 68020/01), 28 February 2008, the ECtHR stated, at paragraph 46:
"The Convention leaves the contracting States wide discretion as regards the choice of the means calculated to ensure that their legal systems are in compliance with the requirements of Article 6."
"On 6 May 1998 at approximately 7.30 in Chiera, on the corner between Corso Vittorio Emanuele 11 and Via Palazzo di Citta, Bujar Marku, an Albanian citizen, was attacked by two persons and stabbed several times"
The victim and attackers had been on a service bus and the attack occurred soon after the three men left the bus. There was substantial evidence about the attack and the two men running away quickly.
"So we can conclude by emphasising that the descriptions provided by the witnesses are totally comparable and, in any event, reflect the physical characteristics of the two accused, thus confirming the accusatory declarations made by Bujar Marku and giving them added reliability: the two accused must, therefore, be held responsible for the crime attributed to them."
"The repetition of the enquiry is not unqualified or automatic but it is possible when the appeal judge, unlike the first instance judge, maintains that he cannot decide on the basis of the evidence gathered. It is necessary to clarify that the need of a new enquiry occurs not only when the evidence already gathered is not clear, or when new evidence emerges, but also when, the evidence that is already gathered is clear, the taking of evidence again may lead to a different evaluation by the second judge and hence lead to a new result."
Mrs Justice Rafferty :