CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 mai 2017

.s800EAC49 { font-size:12pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 12 May 2017   FIRST SECTION Application no. 20391/16 Martin Raymond Jude MURRAY against the United Kingdom lodged on 5 April 2016 STATEMENT OF FACTS The applicant, Mr Martin Raymond Jude Murray, is an Irish national, who was born in 1987 and is currently detained at HMP Maghaberry. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant and three other persons were arrested on 13 September 2008 following an altercation in which one man died and two women were seriously injured. The applicant was detained until 16 September 2008 and, after appearing before the Magistrate’s Court, was remanded in custody. Thereafter, he made a number of applications for bail. One of these bail applications was heard by Mr Justice Treacy over two days (14 May 2009 and 25 June 2009) before being refused on 30 June 2009. At the hearing on 14 May 2009 the applicant’s criminal record was opened to the judge and the judge commented on the seriousness of it. On 25 September 2009 the application for bail was renewed before Mr   Justice Treacy. In the course of the hearing he described the applicant as “clearly someone with a propensity to violence”. He further noted that he had “an atrocious criminal record”. He concluded that it was “clear from his demeanour on the screen and during the course of his bail application that it would be entirely inappropriate to release the applicant on bail...”. Thirteen months later the applicant and three co-defendants were arraigned and pleaded “not guilty”. The trial was fixed for late November. In early November 2011 the prosecution made an application to admit bad character evidence in the trial. This application was heard by a disclosure judge (Mr Justice Hart), who refused it in view of the proximity of the trial. In or around this time the applicant’s solicitor became aware that Mr   Justice Treacy was listed as the trial judge. He discussed with counsel whether they should make an application for recusal. However, counsel did not recommend making an application, since Mr Justice Treacy was unlikely to have had any recollection of the bail applications, and an application for recusal would likely result in an adjournment of the trial, which would give the prosecution an opportunity to make a further application to admit bad character evidence. According to the solicitor and counsel, this matter was discussed with the applicant. The applicant, however, denies that the issue was ever raised with him. On 13 April 2011 Mr Justice Treacy, sitting without a jury, convicted the applicant of murder and affray but found him “not guilty” of two counts of attempted murder. The applicant appealed to the Court of Appeal against conviction and sentence. At the conclusion of the hearing, the court dismissed the applicant’s grounds of appeal but reserved its reasons. Following the hearing, the applicant changed his representatives. His new representatives requested information about the bail applications made while he was remanded in custody. In particular, they sought the dates of the applications, the names of the judges who heard them, and transcripts of the hearings. Upon receiving this information they added a fresh ground of appeal, namely that there was a real danger the trial judge had been biased. Although they did not allege any actual bias, relying on Article 6 of the Convention they contended that there was a real possibility of latent bias. In a judgment delivered on 3 July 2015 the Court of Appeal gave reasons for dismissing the grounds argued at the hearing. It also considered the fresh ground raised by the applicant. It granted leave to appeal on the issue but dismissed the appeal. Having regard to Hauschildt v. Denmark , 24 May 1989, Series A no.   154, the Court of Appeal found that the mere fact that a trial judge or an appeal judge had also made pre-trial decisions in a case could not in itself justify fears as to his impartiality. On the contrary, the issue of bias was fact-sensitive, and on the facts of the present case an informed observer would determine that no bias had been made out and that the applicant had received a fair trial. In reaching this conclusion, the court noted that no individual instance of bias, conscious or subconscious, had been identified, and the applicant had in fact been found “not guilty” of serious charges (two counts of attempted murder) in respect of which prima facie cases existed. With regard to the decision not to make an application for Mr   Justice   Treacy’s recusal, the court opined: “The failings of counsel may directly or indirectly lead to the conclusion that a conviction is unsafe. However, decisions made in good faith after proper consultation with the defendant will not without more render a conviction unsafe, even were the court to disagree with the decisions. We are not persuaded that the decision of counsel in consultation with the appellant Martin Murray was wrong. It showed an awareness of the sensitivity of the situation and potential difficulties for the appellant in adopting a particular course. Indeed, ... there can be two views about whether and in what circumstances an application should be made to a trial judge to recuse himself. This can clearly be a matter of tactical decision made in good faith.” The applicant sought permission to appeal to the Supreme Court. However, on 9 October 2015 the Court of Appeal refused to certify that a point of law of general importance was involved in the decision, and refused leave to appeal to the Supreme Court. B.     Relevant domestic law and practice 1.     “Diplock” trials In 1973, at the height of “the Troubles” in Northern Ireland, the right to trial by jury was suspended for certain “scheduled offences”. These trials, known as “Diplock trials”, were conducted by single judges sitting without juries. Following the signing of the Belfast Agreement (“the Good Friday Agreement”) on 10 April 1998, Northern Ireland entered into a process of security “normalisation”. Consequently, the Justice and Security (Northern Ireland) Act 2007 (“the 2007 Act”) repealed the emergency legislation underpinning the Diplock system. However, as it was not considered possible for Northern Ireland to operate without special arrangements for a small number of exceptional cases, the 2007 Act provided for a new system of non-jury trial. Pursuant to section 1 of the 2007 Act, a trial will be conducted with a jury unless the Director of Public Prosecutions issues a certificate that it should be conducted without a jury. He may only do so if he suspects that the defendant is connected to a proscribed organisation, and he is satisfied that as a consequence there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. 2.     Judicial bias At the time of the applicant’s trial, the test of apparent bias had been settled by the House of Lords in Porter v Magill [2001] UKHL 67, in which Lord Hope indicated that the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”. COMPLAINT The applicant complains under Article 6 § 1 of the Convention that he did not receive a fair trial before an impartial tribunal. QUESTIONS TO THE PARTIES In the written observations the parties should, in particular, address the following:   1.     Did the fact that the trial judge had also heard the applicant’s pre-trial applications for bail breach his right under Article 6 of the Convention to a fair trial before an impartial tribunal? In answering this question, the parties should refer to the Court’s judgment in Dāvidsons and Savins v. Latvia , nos.   17574/07 and 25235/07, 7 January 2016. They should also provide the Court with full transcripts of the bail hearings.   2.     In view of the fact that the applicant, through his representatives, did not ask the trial judge to recuse himself, could he be said to have waived his rights under Article 6 of the Convention?