CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY   Application No. 12045/86 by Douglas BLASTLAND against the United Kingdom           The European Commission of Human Rights sitting in private on 7 May 1987, the following members being present:           MM.   G. SPERDUTI, Acting President              J. A. FROWEIN              F. ERMACORA              G. JÖRUNDSSON              G. TENEKIDES              B. KIERNAN              A. S. GÖZÜBÜYÜK              A. WEITZEL              H. G. SCHERMERS              G. BATLINER              H. VANDENBERGHE         Mrs.   G.H. THUNE         Sir   Basil HALL         Mr.   F. MARTINEZ           Mr.   K. ROGGE, Head of Division acting as Secretary to the         Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 30 July 1985 by Douglas BLASTLAND against the United Kingdom and registered on 17 March 1985 under file No. 12045/86;           Having regard to:   -        the reports provided for in Rule 40 of the Rules of Procedure         of the Commission;   -        the Commission's decision of 18 July 1986 to bring the         application to the notice of the respondent Government and         invite them to submit written observations on its admissibility         and merits;   -        the observations submitted by the respondent Government on         20 October 1986 and the observations in reply submitted by         the applicant on 22 December 1986;           Having deliberated;           Decides as follows:   THE FACTS           The facts apparently not in dispute between the parties may be summarised as follows.           The applicant is a United Kingdom citizen, born in 1957.   At the date of registration of this application, he was detained at H.M. Prison Wakefield, England.   He is represented before the Commission by Mr.   Gilbert Blades, solicitor, Lincoln.           On 14 October 1983 the applicant was convicted of the buggery and murder of a 12 year old boy in Gainsborough, Lincolnshire.   He was sentenced to life imprisonment.           The applicant's defence was that he had not committed the crimes as charged, but that he had done no more than acts of gross indecency or attempted buggery with the boy.   He had then been frightened off by the appearance of a third party, who might have been a certain MH.           In order to exculpate himself, the applicant sought to adduce certain statements by MH which had been procured by the prosecution in the course of their investigations and had been made available to the defence.   Defence counsel applied to the trial judge for the admission of evidence of the following statements:     (a)    Police interviews of MH who had confessed to having committed the crimes, but who subsequently retracted, remade, and finally retracted his confession.     (b)    Statements made by MH to his girlfriend on the night of the murder, at a time when the victim's disappearance had not been noticed by his family or reported to the police, that a young boy had been murdered in Gainsborough.     (c)    Statements made the following morning, at a time when the body of the victim had not yet been found, by MH to other persons that a young boy had been murdered, that the body was on a local playing field, that the victim had had an argument with his parents before leaving his home on the night he was murdered and that the boy lived at a particular address.   This information was substantially true.           The prosecution position was that MH had been fully investigated, but they had concluded that there was no objective case against him, unlike the case against the applicant, which included forensic evidence.           The trial judge ruled that the evidence was inadmissible as it was all hearsay.           A second application by the defence was also refused by the trial judge, an application that MH be called to give oral evidence, but that the defence be allowed to cross-examine him from the outset.           Nevertheless, other evidence about MH was put before the jury by way, inter alia, of expert medical evidence and a schedule of the facts agreed by the parties.   At the end of the trial, the trial judge delivered a full summary of the prosecution and defence cases to the jury.           The hearsay rule has been described as follows:           "Express or implied assertions of persons other than the         witness who is testifying, and assertions in documents         produced to the court when no witness is testifying, are         inadmissible as evidence of the truth of that which is         asserted."   ("Evidence" by Professor Cross, 3rd Edition,         p. 387)           The Court of Appeal, in its judgment of 21 December 1984, upheld the decisions of the trial judge.   Lord Justice O'Connor, delivering the judgment of the court, dealt briefly with the evidence referred to at (a) above, finding that he was bound by previous decisions of the Court of Appeal itself (Turner <1975> 61 Cr App R 67) in which the Court of Appeal found that such a confession as that made by MH was not admissible through the mouth of the person to whom it was made, and the House of Lords (Myers v.   DPP <1965>, AC 1001) to the effect that exceptions to the rule against hearsay could not be newly created.           In criminal cases the acknowledged exceptions to the hearsay rule include confessions, provided that they are used against the party who made them and can be regarded as voluntary, and statements which can be regarded as part of the res gestae, that is statements made in the heat of the moment which can be seen as part of the event itself.   Evidence will be regarded as "original evidence" and not hearsay if it goes to the issue of the state of mind of the maker of a statement, and it is not intended to prove the truth of what the maker of the statement said.           As regards the evidence (b) and (c) above, Lord Justice O'Connor held that it could not fall within the exception concerning proof of a state of mind:           "The defence sought in reality to admit the evidence of MH's         state of knowledge in order to ask the jury to infer that he         may have been present and the murderer.   That is outside the         state of mind line of cases and over the border into the         province of proof of fact and truth ....           We are satisfied, having considered the matter in full, that         the evidence was rightly excluded by the learned judge on the         ground that it was hearsay."           Leave to appeal to the House of Lords was refused, but the following questions were certified as points of law of general public importance:     (1)    Whether the confession by a person other than the defendant to         the offence with which the defendant is charged is admissible         in evidence where that person is not called as a witness.     (2)    Whether evidence of words spoken by a third party who is not         called as a witness is hearsay evidence if it is advanced as         evidence of the fact that the words were spoken and so as to         indicate the state of knowledge of the person speaking the         words if the inference to be drawn from such words is that the         person speaking them is or may be guilty of the offence with         which the defendant is charged.           The House of Lords granted leave to appeal in respect of the second point only and, by its judgment of 25 July 1985, upheld the conclusions of the Court of Appeal, rejecting the case.   It confirmed previous case law that the hearer of an oral statement can give evidence of that statement to establish the state of mind or knowledge of the maker of the statement at the time it was made, but found that MH's knowledge of the murder on the evening when it took place and the following morning was of no probative value to the issue of whether the applicant had committed the offences.   The statement was therefore rightly withheld from the jury.           Lord Bridge of Harwich held as follows:   "Hearsay evidence is not excluded because it has no logically probative value.   Given that the subject-matter of the hearsay is relevant to some issue in the trial, it may clearly be potentially probative.   The rationale of excluding it as inadmissible, rooted as it is in the system of trial by jury, is a recognition of the great difficulty, even more acute for a juror than for a trained judicial mind, of assessing what, if any, weight can properly be given to a statement by a person whom the jury have not seen or heard and which has not been subject to any test of reliability by cross-examination.   As Lord Normand put it, delivering the judgment of the Privy Council in Lejzor Teper v.   The Queen <1952> A.C. 480, 486:           'The rule against admission of hearsay evidence is         fundamental.   It is not the best evidence and it is not         delivered on oath.   The truthfulness and accuracy of the         person whose words are spoken to by another witness         cannot be tested by cross-examination and the light which         his demeanour would throw on his testimony is lost.'   The danger against which this fundamental rule provides a safeguard is that untested hearsay evidence will be treated as having a probative force which it does not deserve.   It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person's state of mind.   This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or is of direct and immediate relevance to an issue which arises at the trial.   It is at this point, as it seems to me, that the argument for the appellant breaks down.   The issue at the trial of the appellant was whether it was proved that the appellant had buggered and murdered K.   MH's knowledge that K had been murdered was neither itself in issue, nor was it, per se, of any relevance to the issue."           Thus, in answer to the general question posed by the case, Lord Bridge of Harwich concluded as follows:           ".... the admissibility of a statement tendered in evidence         as proof of the maker's knowledge or other state of mind         must always depend on the degree of relevance of the state         of mind sought to be proved to the issue in relation to         which the evidence is tendered."     COMPLAINTS           The applicant complains of an unfair trial, in   violation of Article 6 para. 1 of the Convention, in that the United Kingdom courts refused to admit vital evidence tending to implicate a third party of having committed the crimes in question , and hence pointing to the applicant's innocence.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 30 July 1985 and registered on 17 March 1986.           After a preliminary examination of the case by the Rapporteur, the Commission considered the admissibility of the application on 18 July 1986.   It decided to give notice of the application to the respondent Government, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure, and to invite the Government to submit written observations on the question whether the applicant's inability to adduce the statements of MH at his trial interfered with his right to a fair hearing under Article 6 para. 1 of the Convention.           The Government's observations were submitted on 20 October 1986, to which the applicant replied on 22 December 1986, legal aid having been granted on 30 October 1986 by the President of the Commission for the applicant's legal representation before the Commission.     SUBMISSIONS OF THE PARTIES             The Government           1.   The facts           The Government acknowledges the facts of the case as established by the domestic courts, supplemented as follows:           In the course of their investigations into the murder of the boy, K, the police took statements from a large number of people who were not called by the prosecution to give evidence at the applicant's trial.   Copies of these statements were either supplied to the applicant's solicitors or available to them for consultation.           The Government states that MH was not called to give evidence because it was clear that his evidence was such that the jury could not reasonably be invited to place any reliance on it.           The applicant could have called MH to give evidence if he had so wished.             2.   Relevant domestic law and practice           In practice the prosecution is under a general duty to make available to the defence any details in their possession about material witnesses and evidence.           The court may, on the request of either prosecution or defence, oblige a witness to attend and give evidence.           As a general rule a party who calls a witness may not cross- examine him, unless he proves to be an adverse or contradictory witness, in which case, with the judge's leave, he may be questioned about a previous inconsistent statement he had made.   (Section 3 Criminal Procedure Act 1865, "Denman's Act")   A witness is considered adverse only when in the opinion of the judge he bears a hostile animus to the party calling him and so does not give his evidence fairly and with a desire to tell the truth.           The presiding judge has the right to call a witness not called by either the prosecution or the defence, and without the consent of either, if in his opinion this course is necessary in the interests of justice.   (R v.   Wallwork <1958> 42 Cr.   App.   R. 153)           A witness other than the defendant is privileged to refuse to answer any question which might tend to incriminate him.   In practice the judge will warn a witness when necessary, if the witness does not claim the privilege himself.           Apart from common law and statutory exceptions, hearsay evidence (whether oral or written) is inadmissible in criminal proceedings.   The judge has no discretion to admit such evidence. (Myers v.   DPP <1965> A.C. 1001)   The rule may be stated as follows:           "Former statements of any person, whether or not he is a         witness in the proceedings, may not be given in evidence if         the purpose is to tender them as evidence of the truth of         the matters asserted in them, unless they were made by a         defendant and constitute admissions of fact relevant to those         proceedings."           The extent of the rule was described by the Judicial Committee of the Privy Council in Subramaniam v.   Public Prosecutor (1956) 1 WLR 956 at 969 as follows:             "Evidence of a statement made to a witness .... may or may not         be hearsay.   It is hearsay and inadmissible where the object         of the evidence is to establish the truth of what is contained         in the statement.   It is not hearsay and is admissible when it         is proposed to establish by the evidence, not the truth of the         statement, but the fact that it was made."           3.   Admissibility and merits           The Government refers to the Commission's constant case-law that the question of a fair hearing under Article 6 para. 1 of the Convention must be examined in the light of the entire proceedings and not in the light of one particular incident or issue.   The judge's summing up in this case discloses the full extent of the prosecution case against the applicant and his defence.   No challenge to the fairness of this summary has been made in the present case.           The hearsay rule, applying to both prosecution and defence equally, is based on the principle that juries should not be invited to rely on evidence of facts which is not tested by cross-examination.           An examination of the police interview with MH confirms the correctness of the prosecution and judge's decisions not to call MH as a witness.   The interests of justice did not require his testimony. The defence was thereby effectively precluded from cross-examining MH. However, he could not have been required to incriminate himself.   The defence could have called MH as a witness for the defence.           The Government submits that the evidence of witnesses in relation to MH's knowledge of the events in question was also rightly excluded.   The defence's purpose was to infer that MH was at the scene of the crime and probably committed it.   It would not have been right for the jury to be invited to draw such an inference from evidence which has not been tested by cross examination.           The Government emphasises the Commission's case-law on the principle of equality of arms underlying Article 6 para. 3 (d) of the Convention.   This principle was clearly observed in the present case. Moreover the defence had a full opportunity to examine all the material collected by the prosecution, even if it was not used by the prosecution at the trial.           In conclusion, the Government requests the Commission to declare the case inadmissible as being manifestly ill-founded or, in the alternative, to declare that there has been no breach of the Convention.             The applicant           The applicant submits that the hearsay rules, as correctly described by the Government, denied the applicant full equality of arms with the prosecution, and thus constituted a breach of Article 6 para. 1 of the Convention.           He distinguishes between the exclusion of properly categorised hearsay evidence, and the exclusion of wrongly categorised hearsay evidence in his case by the trial judge and Court of Appeal, but which the House of Lords deemed rightly excluded because of its irrelevance.           1.   Properly categorised hearsay evidence           In this case MH's alleged statements to the police, including his confessions, were hearsay evidence, as were the applicant's alleged statements and admission that he had sexually assaulted the victim. The applicant was precluded from having MH's statements adduced as evidence, whereas the prosecution were able to adduce the applicant's alleged admissions by virtue of the recognised exception to the hearsay rule in Myers v.   DPP (1965) AC 1001.           The applicant's defence was that although he was directly implicated in a sexual assault of the victim he had not killed him. MH may have committed the murder.   If the jury had accepted this as a possibility they would have been obliged to acquit the applicant of murder.   The prosecution and the applicant were therefore faced with similar forensic tasks.           The operation of the hearsay rule in the present case put the applicant at a significant disadvantage to the prosecution and was in breach of Article 6 para. 1 of the Convention.             2.   Wrongly categorised hearsay evidence           As regards certain statements which MH allegedly made to persons other than the police on the night and following morning of the murder, the applicant contends they were not hearsay evidence. The applicant was not seeking to tender these statements "as evidence of the truth of the matters asserted in them" (Myers v.   DPP supra.), but as evidence that MH possessed knowledge of the murder at a time and in circumstances from which the jury could infer that he was or might have been the murderer.   The contents of the statements had already been proved aliunde and was common ground between the prosecution and the defence.           The applicant takes issue with the ruling of the House of Lords that these alleged statements by MH were irrelevant, and with the argument that it would not have been right to invite the jury to draw inferences from such untested evidence.   The prosecution conceded certain evidence relating to MH;   this evidence was admitted in court and tended to implicate him in the murder of K.   However the prosecution chose not to call MH as a witness, so that certain explanations could be required of him and he could have been cross- examined.           MH either knew about the murder of K because he witnessed it or committed it himself.   In the former case he would have been the principal prosecution witness.   Thus only the second "most obvious" possibility remains (cf. judgment of Lord Bridge of Harwich, House of Lords).   Given the burden and standard of proof in an English criminal trial, the applicant only had to establish this as a possibility, and no more, to secure his acquittal.           Although proceedings have to be considered as a whole for the purposes of Article 6 para. 1, a particular incident or issue may be so important as to be decisive for the whole case.   (Nielsen v. Denmark, Comm.   Report 15.3.61 Yearbook 4 p. 494 at 548)   The applicant submits that the rulings complained of were of just such importance.           The Commission's approach should properly be to consider whether the evidence was relevant to the applicant's case (as it undoubtedly was) and whether, if it had been admitted, it would have influenced the verdict of the trial court (as indeed it would).   The discretionary powers of the domestic courts in this field are superceded by the Commission's duty to review the fairness of a hearing under Article 6 para. 1 of the Convention.           Apart from the applicant's submissions concerning the principle of equality of arms, the applicant also submits that the trial court's refusal to hear a witness for the defence, which must encompass evidence that the defence wishes to adduce from that witness, is capable per se of amounting to a violation of Article 6 para. 1, as in this case.           In his original submissions to the Commission, the applicant had pointed out that the Criminal Law Revision Commission in 1972 concluded that, subject to certain safeguards, hearsay evidence should be admissible in criminal trials, but that the Commission's recommendations have largely not been implemented.           In conclusion, the applicant requests the Commission to declare the application admissible.   THE LAW           The applicant has complained of an unfair hearing in that the United Kingdom courts excluded certain evidence at his trial, which evidence tended to implicate a third party as the offender rather than the applicant.   He claims that there was a breach of the principle of equality of arms, inherent in Article 6 para. 1 (Art. 6-1) of the Convention, the relevant part of which provides as follows:           "1.   In the determination .... of any criminal charge against         him, everyone is entitled to a fair and public hearing within         a reasonable time by an independent and impartial tribunal         established by law."           The applicant also refers to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention:           "3.   Everyone charged with a criminal offence has the         following minimum rights:           ....           (d)   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 ...."           The Commission notes that in the present application the evidence in question was categorised and excluded as hearsay and irrelevant to the case against the applicant.   The hearsay rule, subject to certain exceptions, excludes, inter alia, evidence of previous statements made by persons who do not give oral testimony at the trial.   The purpose of the rule in the jury trial system is partly to ensure that the best evidence is before the jury, who can evaluate the credibility and demeanour of the witness, and partly to avoid undue weight being given to evidence which cannot be tested by cross-examination.   The Commission finds the purpose of the rule legitimate, and not, in principle, contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           The applicant claims to have suffered inequality of arms with the prosecution by the exclusion of certain statements made by a third party, whereas his own previous statements to the police were allowed to be put in evidence against him as the defendant.   The Government contests the applicant's claim and points out that not only could the applicant have called the third party as a witness for the defence, but also that the defence was afforded a full opportunity to examine all the material collected by the prosecution.           According to the Court and Commission's constant case-law, the principle of equality of arms, i.e. the procedural equality of the accused with the prosecution, which is explicitly reflected in Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, is an inherent element of the notion of a fair hearing, within the meaning of Article 6 para. 1 (Eur.   Court H.R. Neumeister judgment of 27 June 1968 Series A No. 8 para. 22 of THE LAW, No. 8395/78 Dec. 16.12.81 D.R. 27 p. 50 and No. 9000/80 Dec. 11.3.82 D.R. 28 p. 127).   However, the Commission notes the facts of the present case emphasised by the Government, in particular the possibility for the defence to have called the third party in question.   Although that person could not have been made to incriminate himself, the Commission considers that this possibility, together with that of calling other original evidence about him (which evidence, including medical expertise, was admitted), placed the prosecution and defence on an equal footing.   The Commission also notes that the applicant was afforded full facilities to challenge the hearsay ruling of the domestic courts and the prosecution case against him, which included forensic evidence.   In these circumstances, the Commission concludes that the principle of equality of arms was respected in the present application.           The Commission concludes that an examination of the present case as a whole does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   It follows that the application must be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.     Head of Division acting as Secretary         to the Commission              Acting President of the Commission                   (K. ROGGE)                              (G. SPERDUTI)