CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 2 décembre 1992

.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 }                                 FIRST CHAMBER                         AS TO THE ADMISSIBILITY OF                       Application No. 20657/92                       by A.M.                       against the United Kingdom             The European Commission of Human Rights sitting in private on 2 December 1992, the following members being present:                MM.    J.A. FROWEIN, President of the First Chamber                  E. BUSUTTIL            Sir    Basil HALL            Mr.    C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  B. MARXER                    Mr. M. de SALVIA, Secretary to the First Chamber a.i.           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 November 1990 by A.M. against the United Kingdom and registered on 21 September 1992 under file No. 20657/92;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:       THE FACTS         The applicant is an Irish citizen born in 1958.   He is represented before the Commission by Messrs. Oliver J. Kelly & Co., solicitors, of Belfast.         The facts of the case, as submitted by the applicant's representatives and apparent from the documentation submitted, may be summarised as follows.         On 1 June 1989 the applicant was convicted, with another man, of the murder of two British soldiers in Belfast on 19 March 1988.         The trial was unusual in that, because the events arose from the highly publicised funeral of a taxi driver, himself killed at the funeral of persons who had been killed by British security forces in Gibraltar, television cameras and an army helicopter had filmed the events leading to the death of the two soldiers.   The judgment of the trial judge deals largely with the question of identification by police officers of the applicant and his co-defendant from the various filmed versions of the events.   In the course of the trial the prosecution applied for a direction that professional cameramen, journalists and photographers employed by television companies and newspapers who had taken films and photographs of the incidents should not be identified in court, and, in particular, that when they gave evidence their faces should not be seen by the accused or by the public or the press, but only by the court and by the counsel and solicitors appearing on behalf of the prosecution and the defence.   The judge's reasons for acceding to the application are as follows.         "Crown Counsel made the application on the ground that the       direction was necessary in the interests of the due       administration of justice because the witnesses from the media       who would be called by the Crown were concerned for their safety       if they were identified and Crown Counsel made the further point       that this is the first in a series of trials in which the Crown       would propose to call witnesses form the media who were present       on the Andersonstown Road on 19 March 1988.         Counsel for both accused did not object to the identities of the       witnesses being withheld from the press and the public and to       their faces being concealed from the press and the public,       provided that the accused could see them.   The reasons why       counsel for the accused submitted that the accused should be able       to see the face of a witness and that that witness should be able       to see the faces of the accused was because of the possibility       that one of the accused, on seeing the witness, might realise       that the witness if asked by defence counsel, could say that he       (the witness) has seen that accused at a place in the general       area of the Andersonstown Road which was different from the place       where the Crown alleged he was at a particular time ...         I consider that those who take films and photographs for       television and the press at events in Northern Ireland, such as       [the present events] ... and who are called by the Crown to give       evidence at a criminal trial of the taking of those films and       photographs, would feel concerned for their safety if their       identities became known to certain sections of the public, and       that knowledge that they would be identified in the witness box       would operate to deter them from giving their evidence frankly       and fully in the present trial and in subsequent trials...               The effect of my direction is not to exclude the public and the       press from the court.   The public will still hear the evidence       of the witnesses and the press will hear it and report it, but       what the press will be unable to do is to report the identity of       the witness.   It is appropriate to refer to the judgment of Lord       Widgery C.J. in R. v. Socialist Worker Ex p. A-G at 651H:-              'The great virtue of having the public in our courts            is that discipline which the presence of the public            imposes upon the court itself.   When the court is full            of interested members of the public, as indeed one can            say it is today, it is bound to have the effect that            everybody is more careful about what they do, everyone            tries just that little bit harder and there is a            disciplinary effect on the court which would be            totally lacking if there were no critical members of            the public or press present.              When one has an order for trial in camera, all the            public and all the press are evicted at one fell swoop            and the entire supervision by the public is gone.            Where one has a hearing which is open, where the names            of the witnesses are withheld, virtually all the            desirable features of having the public present are to            be seen.   The only thing which is kept from their            knowledge is the name of the witness.'         I make it clear that my direction, of course, contains no       reflection whatever upon, and no implication whatever       against, the accused.   The direction relates solely to the       concerns of the witnesses and the effect on them if they       knew that their identities would be revealed to the public"         In his original grounds of appeal to the Court of Appeal in Northern Ireland, the applicant did not refer to the screening of witnesses.   The matter was, however, raised at the Court of Appeal as the following ground:         "8.   That the appellant was denied a fair trial by reason       of the learned trial judge's ruling that the identity of       certain witnesses be not disclosed to the appellant or       defence counsel and that the appellant should not be       allowed to see those witnesses."         In his judgment of 1 June 1990 Lord Justice Kelly found, in connection with this ground of appeal, as follows:         "It was made plain that none of these witnesses would give       evidence that implicated or disadvantaged either of the       appellants.   Their evidence would be confined to stating       that they had taken the films and photographs, although       some of them would also be asked to describe events they       had witnessed on the Andersonstown Road at the time.         At the trial defence counsel raised no objection to the       identities of the witnesses being withheld.   They did       however object to the witnesses' faces being screened from       the view of the appellants...         Before considering the submissions of Miss McDermott       certain facts must be stated because they are important to       the application of these principles.   The statement that       the witnesses feared for their safety if their identities       were revealed was not challenged by the defence in cross-       examination or at any time.   That it was in the interests       of the administration of justice that their evidence should       be received was not challenged either.   When called to give       evidence they proved that they had taken the video films       and the photographs showing the appellants at the funeral       before the events which gave rise to the charges against       them.   Their evidence did not implicate either appellant       ...         It seems to us that the concealment of a witness' face from       the accused is prima facie contrary to "general aspect of       open justice in the courtroom" (Lord Diplock in [Attorney-       General v. Leveller Magazine [1979] AC 440] at p. 452a).       But as Viscount Haldane pointed out, particular       circumstances may justify and require some appropriate       departure from the general rule...         ...it is the experience of trial judges in terrorist trials       in this jurisdiction that even prosecution witnesses whose       evidence is merely formal, unchallenged by the defence, but       a necessary link in the narrative of the prosecution case,       suffer considerable anxiety for their safety as a result.       Although their evidence in no way implicates an accused,       their anxiety is raised because of their association with       the prosecution case.         Mr. Finegan made the additional point that the trial judge       should have been given the names and addresses of those       media witnesses and this would have served as some       restraint on their evidence.   This was not raised at the       trial and we do not know whether the trial judge was       offered names and addresses and, if so, whether he refused       to receive them.   In any event, if he was not given their       names and addresses or if he refused to receive them and if       this did constitute an irregularity, we cannot see that it       was material or that any injustice was suffered having       regard to the non-implicatory nature of their evidence.       Generally we think it is good practice for a trial judge to       note the names and addresses of witnesses whose identity       has been withheld."         The appeal was dismissed.         On 14 November 1990 the Court of Appeal, by consent, refused the application for leave to appeal to the House of Lords against the judgment of 1 June 1990.   COMPLAINTS         The applicant alleges a violation of Article 6 para. 1 of the Convention by virtue of the fact that the identity of witnesses was disclosed only to the Crown, and witnesses were screened from the accused and the public.   THE LAW   1.     The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   That provision provides, insofar as relevant, as follows:         "1.   In the determination of ... any criminal charge against       him, everyone is entitled to a fair and public hearing ...       Judgment shall be pronounced publicly but the press and public       may be excluded from all or part of the trial in the interest of       morals, public order or national security in a democratic       society, ... or to the extent strictly necessary in the opinion       of the court in special circumstances where publicity would       prejudice the interests of justice."         The Commission notes that the applicant did not object to the screening of the witnesses from the public, but only to the fact that he was unable to see the witnesses in question.   A question may thus arise as to whether the applicant has exhausted domestic remedies in this respect.   However, the Court of Appeal considered the question of the screening of the witnesses generally, and the Commission finds it not necessary in the present case to consider the question of exhaustion of domestic remedies as the application is in any event inadmissible for the following reasons.         The Commission recalls the case-law of the European Court of Human Rights that, in principle, all evidence must be adduced in the presence of the accused at a public hearing with a view to adversarial argument, but this does not mean that a statement from a witness must always be made in court and in public if it is to be admitted in evidence (Eur. Court H.R., Asch judgment of 26 April 1991, Series A no. 203, p. 10, para. 27).   The defendant must be given an adequate and proper opportunity to challenge and question the witnesses against him (ibid.).   In the present case, the witnesses whose identity was not disclosed to the public or the accused, were present in court and could be seen by the judge and by the representatives of both prosecution and defence.   The evidence itself concerned not the question of identification of the applicant (which evidence was given by police officers whose identity was not withheld), but merely the making of certain filmed and photographic evidence.   It was accepted by the defence that the evidence did not implicate the applicant.         Accordingly, given that the applicant was able, through his representatives who could see the witnesses, to put all questions he wished to the witnesses in question, and that, far from being the only item of evidence on which the trial court based its decision to convict, the evidence in question did not implicate the applicant at all, the Commission finds no indication that the decision to screen witnesses from the applicant interfered with his rights under either Article 6 para. 1 (Art. 6-1) or Article 6 para. 3(d) (Art. 6-3-d) of the Convention.         Moreover, to the extent that the public were not able to see the screened witnesses, the Commission notes that the interference with the right to publicity was kept to a minimum by the fact that the public were not excluded from the proceedings, but could hear all questions put to and answers given by those witnesses.   The Commission finds that screening was "in the interest of ... public order or national security" and "to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice".         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     The applicant also alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the identity of the anonymous witnesses was disclosed only to the Crown, and not to the trial judge.         The Commission notes that it is clear from the judgment of the Court of Appeal that this point was not made at the trial, and the Court of Appeal was not aware whether the trial judge had been offered names and addresses, and if so, whether he refused to receive them.         The Commission agrees with the Court of Appeal that a trial judge should be aware of the names and addresses of witnesses whose identity has been withheld, but also finds, given its findings above, that even if the judge was not aware of the names and addresses of the witnesses at issue, this did not amount to a violation of Article 6 para. 1 (Art. 6-1) of the Convention as the evidence in any event was neutral as to guilt.           It follows that this part of the application is also manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission by a majority         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber a.i.   President of the First Chamber           (M. de SALVIA)                          (J.A. FROWEIN)