Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

The applicant was born in DATE and lives in GPE , GPE and GPE . At the time of the introduction of his application , the applicant served a prison sentence in GPE .

During DATE and DATE ORG FAC uprava istarska ; hereafter : “ the police ” ) received several complaints concerning the use of counterfeit euro banknotes in GPE .

The video surveillance recordings made in CARDINAL of the shops where the counterfeit currency was used revealed that a certain PERSON had paid using MONEY notes .

According to a police report dated DATE , further unspecified investigative police work identified the applicant as the person who had supplied a total of QUANTITY to GPE The report also claimed that the applicant was expected to return from GPE to GPE for the purpose of uttering a further QUANTITY and , if that proved to be successful , he would bring a further QUANTITY with a view to uttering them in GPE .

Acting on the evidence presented in the police report ( see paragraph CARDINAL above ) , on DATE the GPE State Attorney ’s Office ( Županijsko državno odvjetništvo u GPE ) asked an investigating judge from ORG PERSON u GPE ) to authorise the use of special investigative measures in respect of the applicant , namely tapping his telephone , covertly monitoring him using undercover agents , and conducting a simulated purchase operation .

The investigating judge granted the request and on DATE issued an order for the use of special investigative measures . The relevant part of the statement of grounds reads :

“ The request of the [ GPE State Attorney ’s Office ] is well - founded .

As the materials and information available to the police suggest that there is probably cause to believe that PERSON , a national of GPE and GPE , engages in the offence of currency counterfeiting under LAW and CARDINAL of LAW , and given that , in the view of the investigating judge , the investigation can not be efficiently carried out by other means , or would be extremely difficult , the well - founded request of the [ GPE State Attorney ’s Office ] should be granted and the requested measures are hereby ordered with regard to PERSON as indicated in the operative part of this order . These measures will be implemented by the police DATE and DATE . ”

On DATE the GPE State Attorney ’s Office informed the investigating judge that the applicant also used another telephone number , and requested an authorisation for the tapping thereof .

On DATE the investigating judge granted the request , finding that there were no new facts or circumstances suggesting that the use of the special investigative measures in respect of the applicant should be discontinued .

Meanwhile , on DATE , the applicant met an undercover police agent who purchased CARDINAL counterfeit MONEY note from him .

In the ensuing period several further meetings and contacts between the applicant and the undercover agent took place . On DATE the undercover agent purchased CARDINAL counterfeit MONEY notes from the applicant , and on DATE the applicant sold him a further sixtyfour counterfeit MONEY notes .

On DATE the police informed the GPE State Attorney ’s Office of the actions taken through applying special investigative measures . The police stated that the applicant ’s arrest had initially been planned for DATE , when he was supposed to come to GPE for the purpose of selling further counterfeit euro banknotes to an undercover agent but he had postponed that meeting . The police therefore requested an extension of the use of special investigative measures in order to identify and arrest all those involved in the uttering of the counterfeit banknotes and to collect evidence concerning the offence at issue .

On DATE the GPE State Attorney ’s ORG made a fresh request for the use of special investigative measures in respect of the applicant .

The investigating judge granted the request and on DATE issued an order extending the use of special investigative measures for DATE . The judge found that the grounds set out in his order of DATE remained valid ( see paragraph CARDINAL above ) and that the information provided by the police suggested that it was necessary to extend the use of special investigative measures in respect of the applicant for DATE .

On DATE the GPE State Attorney ’s ORG asked for corrections to be made to the order in relation to an incorrect phone number in its request of DATE and also in respect of the omission of another phone number used by the applicant . The investigating judge granted this request on DATE .

On DATE the applicant , accompanied by his brother PERSON , met the undercover agent in PERSON . On that occasion he sold him CARDINAL counterfeit CARDINAL notes for CARDINAL ( ORG ) . Following the illicit transaction , the applicant and PERSON were arrested by the police .

After the arrest the applicant and his car were searched . The police found and seized ORG CARDINAL in cash .

On DATE the police lodged a criminal complaint with ORG Attorney ’s Office ( Općinsko državno odvjetništvo u GPE ) against the applicant on charges of currency counterfeiting . No criminal complaint was lodged against ORG

On DATE the applicant was brought before an investigating judge of ORG for questioning , during which he remained silent . The investigating judge ordered his remand in custody .

The investigating judge also heard ORG as a witness but he invoked his testimonial privilege as the applicant ’s brother and gave no evidence .

Following a request for the opening of a judicial investigation in respect of the applicant , on DATE the investigating judge questioned the applicant , but the applicant again remained silent . On DATE , the investigating judge opened an investigation in respect of the applicant in connection with suspected currency counterfeiting relating to the CARDINAL occasions on which he had sold the counterfeit banknotes to the undercover agents .

In the course of the investigation , the investigating judge obtained an expert report stating that the CARDINAL banknotes of MONEY which the applicant had sold to the undercover agents were counterfeit . The judge also decided that the undercover police agents would be questioned under the pseudonyms ORG and A.B. via video link and with distorted images and sound .

On DATE the investigating judge questioned the undercover agent ORG The applicant ’s lawyer was present during the questioning .

In his statement ORG said that his first contact with the applicant had occurred sometime in DATE , when they had spoken on the phone . According to ORG , he had not told the applicant the reason for calling him , but at the time the applicant had been in GPE so they had been unable to meet . ORG also explained that following this initial contact , he had met the applicant in a restaurant in PERSON at DATE . On that occasion they had started talking about business . The applicant had asked him what he was interested in and ORG had replied that he had heard that the applicant was offering some good “ papers ” . The applicant had replied that it was true and asked ORG what he was really interested in and ORG had repeated that he had heard that the applicant was offering good “ papers ” . However , ORG was no longer able to recall the further details of this conversation with the applicant . ORG explained that during this first meeting the applicant had sold him a MONEY note for CARDINAL NORP kunas ( HRK ) ( approximately EUR CARDINAL ) , which ORG had accepted . According to ORG , the applicant had also said that if ORG wished , they could arrange a further purchase of a larger quantity of such banknotes .

E.K. stated that DATE following his first meeting with the applicant , they had met again in a car park near GPE . On that occasion the applicant had offered GPE the opportunity to buy a further CARDINAL counterfeit CARDINAL . ORG had accepted the offer and had paid ORG CARDINAL for the counterfeit euros . ORG testified that a further meeting with the applicant had taken place in PERSON after a phone call from the applicant . On that occasion the applicant had asked ORG whether he knew anybody who would be interested in the purchase of larger quantities of counterfeit currency and ORG had replied that he had a friend ‒ in actual fact another undercover agent , A.B. ‒ who would be interested . According to ORG , the next meeting with the applicant had taken place some time in DATE in a restaurant in GPE . PERSON explained that on that occasion he had been accompanied by the second undercover agent , PERSON On that occasion ORG had bought MONEY ( it later turned out that the amount was in fact MONEY ) from the applicant for ORG CARDINAL . Following this exchange they had been in contact by phone but they had not met .

The investigating judge also questioned the undercover agent A.B. in the presence of the applicant ’s lawyer .

During his questioning PERSON described the circumstances in which he had first met the applicant in the restaurant in GPE in DATE ( see paragraph CARDINAL above ) . According to PERSON , the applicant had asked him whether or not he wanted to buy counterfeit currency . PERSON had then expressed interest in doing so and the applicant had stated that he could supply CARDINAL counterfeit euros , which he would be prepared to bring to Split . They had then agreed to stay in touch and exchanged phone numbers . A.B. also stated that the applicant had called him in DATE and asked him whether he wanted to buy the counterfeit DATE . Afterwards they had had several telephone conversations until the applicant had finally called PERSON and offered him QUANTITY for the price of ORG CARDINAL . A.B. had accepted that and they had met in a shopping centre in GPE . The illicit exchange had then taken place and the applicant had afterwards been arrested .

After completion of the investigation , the investigating judge forwarded the case file to the Pazin Municipal State Attorney ’s ORG for further examination and a decision .

On DATE the ORG Attorney ’s ORG indicted the applicant in ORG ( PERSON ) on charges of currency counterfeiting in connection with the CARDINAL occasions on which he had sold counterfeit MONEY to the undercover police agents ( see paragraphs CARDINAL and CARDINAL above ) .

A CARDINAL - judge panel of ORG confirmed the indictment on DATE and sent the case for trial .

At a hearing on DATE the applicant , represented by a lawyer , pleaded not guilty with regard to the first CARDINAL instances of the alleged uttering of counterfeit notes ( see paragraphs CARDINAL above ) , whereas he considered himself “ responsible ” for the transaction on DATE because he had “ given in to the inducement ” by the police .

At the same hearing ORG questioned the undercover police agents GPE and PERSON The undercover agent PERSON stated that he could no longer say who had initiated a meeting specifically for the purchase of the counterfeit currency and he was unable to answer the question whether the applicant should have been arrested as soon as he had sold the first counterfeit MONEY note to him . ORG was also unable to say whether he would have been authorised to arrest the applicant . The undercover agent PERSON reiterated the statement he had given to the investigating judge .

Following the questioning of the witnesses , the trial bench examined the secret surveillance recordings and asked the police to inform them whether the CARDINAL paid for the counterfeit notes at the first CARDINAL meetings ( see paragraphs CARDINAL above ) had been traced and confiscated .

On DATE the police replied that they had neither traced the money which had been paid for the purchase of the counterfeits nor confiscated it from the applicant on the first CARDINAL occasions .

A further hearing was held on DATE , at which the trial bench commissioned a psychiatric expert report concerning the applicant ’s mental condition at the moment of the commission of the offences .

NORP In the course of his examination by a psychiatrist the applicant explained that he had had serious financial difficulties and that he had needed money urgently . He also stated that he had never before broken the law and had never committed an offence . In DATE an undercover police agent had started contacting him , asking him whether he could supply counterfeit CARDINAL . The applicant believed that CARDINAL of the people in GPE who owed him money must have given his phone number to the police . As the agent had been very persistent in his calls ( he had called him CARDINAL times ) , the applicant had agreed to his request . The applicant had not believed that he was doing anything bad by simply delivering counterfeit money . He explained that he would have never agreed to do it had he not been pressurised by the undercover agent .

In his report dated DATE the expert witness found that the applicant had had full mental capacity at the time of commission of the offences .

On DATE a further hearing was held before ORG at which the expert witness responded to questions concerning his report .

At the same hearing the applicant was questioned but decided to remain silent and not to give any evidence . Following the applicant ’s questioning , the trial bench concluded the trial proceedings and heard the parties’ closing arguments . The applicant contended that he had been incited by the police to commit the offences at issue . He argued that it had been the undercover agents who had contacted him first and that their evidence concerning the circumstances of their various contacts had been both incomplete and contradictory . He pointed out that there no audio recordings of his meetings with the undercover agents and it was unclear why had they not arrested him before DATE if he had committed an offence on the first CARDINAL occasions , as suggested in the indictment .

On CARDINAL DATE ORG found the applicant guilty as charged and sentenced him to DATE and CARDINAL months’ imprisonment . It also confiscated HRK CARDINAL ( approximately EUR CARDINAL ) and ORG CARDINAL,CARDINAL from the applicant and ordered his expulsion from GPE . ORG held that the CARDINAL occasions on which the applicant had sold counterfeit currency to the undercover agents should be classified as a repeated offence of uttering counterfeit currency under LAW . When sentencing the applicant , ORG explained that the applicant ’s persistence in uttering counterfeit currency on CARDINAL occasions , as well the quantity of counterfeit banknotes uttered ( CARDINAL counterfeit CARDINAL in total ) , constituted particularly aggravating factors . With regard to the applicant ’s plea of entrapment , ORG merely noted that it had no reason to doubt the statements provided by the undercover agents .

The applicant challenged the first - instance judgment before ORG arguing , in particular , that the circumstances of his entrapment had not been properly examined .

On DATE the ORG quashed the firstinstance judgment and remitted the case for re - examination . It found that the first - instance judgment had been based solely on the undercover GPE statements about their conversations with the applicant , which was contrary to LAW .

In the resumed proceedings ORG excluded from the case file as unlawful evidence all the undercover GPE statements about their conversations with the applicant .

At a hearing on DATE ORG again questioned the undercover agents ORG and A.B.

In his statement ORG explained that he could not judge whether he had contacted the applicant more frequently than the applicant had contacted him . He was also unable to recall the details of his conversation with the applicant when they had first talked over the phone . ORG also explained that a simulated purchase operation was sometimes carried out just once and sometimes on several occasions . In the case at issue , he had been instructed by his superiors to conduct several such simulated purchases . Moreover , it was for his superior and not him to determine the ultimate aim of the simulated purchase operation . In any case , the aim of such a police operation was to eradicate currency counterfeiting . ORG was unable to recall who had initiated the meeting in GPE in DATE when he had introduced the applicant to the second undercover agent PERSON Nor could he say who had initiated the other meetings . With regard to his first meeting with the applicant , he could not say whether the applicant had had CARDINAL counterfeit note in his possession or CARDINAL . ORG answered that it was “ [ the applicant ’s ] own business ” .

In his statement PERSON explained that his meeting in PERSON had taken place at the applicant ’s initiative and that it was the applicant who had contacted him more frequently than vice versa . A.B. further stated that it was his superior who had the authority to decide whether the simulated purchase would be organised just once or on several occasions .

Following the questioning of the undercover agents , the defence asked that PERSON ‒ who was initially identified as the person to whom the applicant had allegedly first supplied the counterfeit MONEY ( see paragraphs CARDINAL above ) ‒ be questioned at the trial . The trial bench of ORG dismissed the request by the defence as irrelevant and adjourned the hearing in order to examine the recordings of the applicant ’s secret surveillance .

On DATE and DATE ORG examined the recordings of the applicant ’s communications and meetings with the undercover agents . It found that there had been CARDINAL unsuccessful attempts on the part of the undercover agents to contact the applicant .

At a hearing on DATE ORG heard the parties’ closing arguments . The applicant argued in particular that the police had abused their powers in not arresting him after the first illicit transfer of counterfeit euros and had instead incited him to commit further offences by arranging purchases of larger quantities of counterfeit euros . He also contended that there had never been a reasonable suspicion of his having committed an offence which could have justified the investigating judge ’s decision to authorise the use of undercover investigative measures .

On DATE ORG found the applicant guilty as charged and sentenced him to DATE and CARDINAL months’ imprisonment . It also confiscated HRK CARDINAL ( approximately EUR CARDINAL ) and ORG CARDINAL,CARDINAL from the applicant and ordered his expulsion from GPE . When sentencing the applicant , ORG reiterated its previous findings ( see paragraph CARDINAL above ) .

With regard to the applicant ’s plea of entrapment , ORG observed :

“ In the case at issue , examination of the audio recordings of the phone taps confirmed the circumstances surrounding the communication between the undercover agents and the accused , in particular the intensity of the telephone communications . Taking note of the recorded statements of the undercover agents during their communications [ with the applicant ] , it was established that the purpose of the communications was [ organising ] a meeting with the accused in order to effectuate a simulated purchase .

This court considers that it can not be said that the undercover agents acted improperly in the sense that by their actions they allowed the accused to develop his criminal activity [ or ] in any manner incited him to commit an offence .

Neither the questioning of the undercover agents nor any other [ evidence adduced ] suggests that the undercover agents incited the accused to commit an offence in the sense that they offered him some reward or brought him presents or such like .

It is true [ as was established during the proceedings ] that , for instance , CARDINAL and DATE the undercover agent tried to contact the accused CARDINAL times on his mobile phone , but this court considers that this was not prohibited nor did it incite the accused to commit criminal acts . Those were attempts to contact the accused in the period which was ‘ ORG by the [ investigating judge ’s order ] . It should be also taken into account that in the period at issue there had already been communication between the accused and the undercover agent . ”

The applicant challenged the first - instance judgment by lodging an appeal before ORG . He argued , in particular , that the orders for the use of special investigative measures had not been adequately reasoned , as required LAW . He also contended that there had been no reason to continue with the use of simulated purchases and the undercover GPE activities after the first illicit transfer of counterfeit MONEY in DATE . All further events had constituted entrapment intended to extend the scope of his criminal activity , which eventually resulted in a more severe sentence . The applicant claimed that such measures could have been justified by the necessity to arrest further individuals involved in the offence , but no activity in that respect had been undertaken in his case .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance judgment . It held that the investigating judge ’s orders for the use of special investigative measures had been properly reasoned as required under LAW . With regard to the plea of entrapment , the ORG observed :

“ ... [ The investigating judge ] ordered that the [ special investigative ] measures be implemented DATE and DATE , namely over a period of DATE . The investigating judge ’s order ... of DATE shows that the use of [ special investigative ] measures was extended for DATE from DATE to DATE . It is apparent from the order that , in response to an application by ORG , the investigating judge extended the use of [ special investigative ] measures for appropriate reasons . It [ also]probably cause to believe that the accused had uttered counterfeit CARDINAL , which suggested the commission of a serious criminal offence ( currency counterfeiting ) . Taking into account the nature of such an offence and the fact that the use of special investigative measures was producing certain results , there were relevant reasons for extending the use of [ special investigative ] measures under LAW . It can not therefore be said that the conduct of the undercover agents broadened the extent of the criminal activity of the accused .

It should be noted that it can not be claimed that the use of special investigative measures under LAW ) and ( CARDINAL ) of LAW can be considered as an incitement to commit a criminal offence . The undercover agent ORG contacted the accused only after the use of special investigative measures had been ordered and there is therefore no unlawfulness in his conduct . Furthermore , the fact that ORG first contacted the accused without telling him the reason for the contact , as was established by the first - instance court from the statement of ORG , and the fact that the first meeting took place DATE ( on DATE ) ‒ when the undercover agent in PERSON bought MONEY counterfeit note from the accused for the amount of HRK CARDINAL ‒ can not be considered as an incitement but was a tactical action aimed at gaining the confidence of the accused and further uttering of counterfeit TIME . The fact that the undercover agent succeeded in his task is selfevident , since the accused continued to sell him larger quantities of counterfeit MONEY for real euros until he was arrested . ”

On DATE the applicant filed a request for extraordinary review of a final judgment before ORG ( PERSON ) , challenging the findings of ORG . He contended that ORG had failed to provide adequate reasoning for its findings concerning the incitement . Specifically , it had not thoroughly examined the circumstances of the applicant ’s first contact with the undercover agent when the first instance of incitement had occurred . Furthermore , ORG had not taken into account the fact that the majority of the contacts with the applicant had been initiated by the undercover agents , and it had not analysed the substance of their discussions , even though they had been duly recorded , as a result of the applicant ’s phone having been tapped . In this connection the applicant pointed out relevant parts of the transcript of the phone taps , in particular the part where the undercover agent stated : “ Come on , you must definitely come . Do n’t you know , ok , we are serious people ... ” ; or where the applicant stated “ I will not bring [ it ] and that ’s it ” , after which the undercover agent started inciting him to a criminal act . The applicant also contended that the investigating judge ’s orders for the use of special investigative measures had not been properly reasoned , as required under LAW .

On DATE ORG dismissed the applicant ’s request for extraordinary review of a final judgment , endorsing the reasoning of the lower courts concerning the applicant ’s plea of incitement . It found that there was nothing in the conduct of the undercover agents suggesting incitement . It also considered that there had been sufficient basis for the use of secret surveillance and that the orders of the investigating judge had been issued in accordance with the relevant provisions of LAW .

On DATE the applicant lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) reiterating the arguments he had presented before the lower courts . He pointed out in particular that the use of special investigative measures had been authorised contrary to the relevant domestic law as the investigating judge ’s orders had not been properly reasoned . In his view , this had infringed his right to respect for his private life and the confidentiality of his correspondence guaranteed under ORG CARDINAL and CARDINAL of the LAW . The applicant also contended that he had been incited to commit an offence by the undercover agents and that the lower courts had not properly examined his plea of entrapment .

On DATE ORG declared the applicant ’s constitutional complaint inadmissible on the grounds that the decision of ORG concerned neither a determination of his rights and obligations nor a criminal charge against him .

The decision of ORG was served on the applicant ’s representative on DATE .


CASE OF HORNCASTLE AND OTHERS v. THE UNITED KINGDOM

No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses)

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicants are currently in detention .

On DATE the victim , P.R. , a registered alcoholic , was attacked in his flat . He suffered extensive injuries and spent DATE in hospital .

He made a statement to the police on DATE . The statement bore a statement of truth which read :

“ This statement ... is true to the best of my knowledge and belief and I make it knowing that , if it is tendered in evidence , I shall be liable to prosecution if I have wilfully stated anything in it which I know to be false or do not believe to be true . ”

In his statement , he explained that on DATE of the attack he had been at home in his flat and had drunk CARDINAL litres of cider in the course of DATE . At various times during DATE he had been in the company of X. , B. and M. At some point PERSON had left his flat and had returned carrying a television and a hi - fi system , which they had placed in a bedroom . Later in the evening , X. , NORP and PERSON had left , although the victim explained , “ I do n’t know times and my memory is vague ” . He then recalled answering a knock on the door , following which CARDINAL men had entered the LOC by force and attacked him . The victim said :

“ The bigger male out of the CARDINAL started punching me to the face , followed by a man who was on crutches . I was getting punched by all of them and I eventually fell to the floor . I was dragged and pulled into the bedroom where they saw the television and hi - fi system . I remember them going mad punching me more and more to my body and face . I do n’t remember much else . ”

He described the features of the “ bigger male ” and the “ male on crutches ” , who he knew lived in the same block of flats . He said that the third male was called “ PERSON ” and also described him .

The victim died on DATE from an alcohol - related illness .

Mr PERSON and Mr PERSON were subsequently charged , together with another man , NORP , with causing P.R. grievous bodily harm with intent .

NORP The prosecution case was that PERSON and PERSON had burgled another flat in the victim ’s block of flats , and had taken the stolen property to the victim ’s flat . B. and PERSON had pleaded guilty to that burglary . The prosecution alleged that the attack on the victim had occurred when PERSON and PERSON PERSON had gone with NORP , the owner of stolen property , to recover it . They claimed that Mr PERSON was the “ bigger male ” and NORP was the “ male on crutches ” .

The defence case was that although Mr PERSON and PERSON PERSON had gone to the victim ’s flat to help recover D. ’s property , neither had been involved in the attack .

In a statement to the police , PERSON said that the victim had been very drunk , and that he ( Mr PERSON ) had collected the television and returned it to NORP ’s flat . He had not seen the attack on the victim .

In his statement to the police , Mr PERSON said that he had been drinking with NORP and PERSON . They had gone back to NORP ’s flat at TIME and discovered that it had been burgled . NORP had asked if they would go with him and recover what had been stolen , as he had been told where it was . They had gone to the victim ’s flat at TIME The door had been opened by a man whom the others had pushed out of the way . They had seen the stolen property . He had picked up a DVD player and walked out , stepping over P.R. , the victim , lying on the floor . Mr ORG said that he had had some specks of blood on his shoes , jeans and T - shirt which had come from the wall or a splatter when the victim had been hit . He had been aware that the victim was getting punched and had not wanted to have anything to do with it . He did not know what happened after that . He had put the DVD player in the lift and returned to the flat . At that point the victim was still lying on the floor and there was blood everywhere . He had not hit the victim . He had not expected them to do what they had done .

Another resident of the block of flats , J. , made a statement to the police suggesting that PERSON might have been involved in the assault on the victim . That statement was disclosed to the defence . The defence was ultimately based on the assertion that PERSON was the perpetrator .

The prosecution applied to read the victim ’s statement at trial , under LAW ) of LAW DATE ( “ the DATE LAW see paragraphs CARDINAL below ) . The application was opposed by the applicants under section CARDINAL of ORG “ PACE ” – see paragraph CARDINAL below ) on the ground that it would be unfair to admit the statement which constituted the only admissible evidence of participation against them , as there could be no opportunity to challenge it and it was inherently unreliable . The applicants relied on the admission by the victim that he had drunk a quantity of alcohol ; on his statement that “ I do n’t know times and my memory is vague ” ; and on the fact that the description given of the first male did not fit Mr Blackmore .

The judge ruled on DATE that the statement should be admitted . He found that the condition in DATE ) was satisfied ( namely , that the witness was dead ) ; and that the fact that the statement was the principal evidence against the defendants did not make its admission unfair . He relied in particular on the fact that the defendants had all admitted being present in the victim ’s flat together to recover D. ’s property ; that the defendants were going to call PERSON to give evidence that PERSON had been responsible for the attack ; and that the jury could be given directions as to any difficulties faced by the defence on account of ORG statement being read .

In DATE the trial commenced before a judge and a jury . D. subsequently pleaded guilty . The jury in the trial were later discharged for unrelated reasons and a retrial was ordered . A second trial commenced in DATE , but the jury were again discharged following an issue in relation to the forensic evidence . A third trial commenced in DATE .

NORP The prosecution relied on other evidence , besides the statement of the victim . X. , who had spent DATE drinking with the victim , gave evidence to the effect that P.R. had been tipsy but not drunk on the afternoon of the attack . He also testified that he had subsequently visited the victim in hospital , where the victim had indicated that he had been attacked by CARDINAL people but that he could not really remember who had attacked him . CARDINAL witnesses gave evidence that the victim had told them that NORP and his friends had attacked him . There was also scientific evidence that the blood on the television matched that of the victim . Forensic evidence suggested that the assault had commenced at the front door and the hallway and then moved to the entrance of the bedroom . There was pooling of blood at the entrance to the bedroom , as if the source of the blood had lain there for some time . Blood on NORP ’s crutches matched the victim ’s DNA profile . Evidence was also led to show that P.R. had shown no fear of PERSON when meeting him after the attack .

Mr PERSON gave evidence in his defence . He said that he had been drinking all day with NORP and Mr PERSON . In TIME they had returned to NORP ’s flat and realised that it had been burgled . They had gone downstairs to another flat and he had followed NORP inside . He had seen a man staggering in the hallway . NORP had then pointed out the items that had been stolen . Mr PERSON had picked up the television and returned to NORP ’s flat . He had not seen an assault and had not seen any blood . He , PERSON PERSON and NORP had returned to the pub .

Mr Blackmore did not give evidence at trial .

P.R. ’s neighbour , PERSON , was called to give evidence for the defence . He testified that he had heard some shouting and banging on TIME of the attack and had seen PERSON banging on doors . Later he had seen PERSON holding P.R. in a headlock ; another person had been with him . He had closed the door but had heard a lot of shouting and noise for TIME . His answers in cross - examination were not consistent with his previous statement to the police .

The judge , on Mr PERSON ’s application , admitted evidence of PERSON ’s previous convictions as evidence of a propensity for violence . The judge refused to admit evidence of the previous convictions of PERSON PERSON and Mr PERSON .

The judge made clear the importance of P.R. ’s witness statement at the outset of his review of the evidence in the summing up to the jury , noting :

“ The prosecution case here depends , does it not , upon the evidence of [ the victim ] . ”

He explained to the jury that the victim ’s evidence was not agreed , that the defence had not had the opportunity of testing it by crossexamination and that it would carry less weight than evidence from a witness who had come to court and had testified . He set out examples of areas in the victim ’s statement which had not been cross - examined .

TIME after the jury had retired , they asked to see the victim ’s statement ; the judge told them that they could not see it but reminded them of its contents by reading it to them .

The jury subsequently returned unanimous guilty verdicts in respect of both PERSON and Mr PERSON .

On DATE at TIME the victim , PERSON , was at home alone in the house she shared with her partner , ORG , preparing to take a bath . CARDINAL men entered the house and stole various items , including jewellery . After threatening the victim with a knife , they kidnapped her by taking her away in the car they had come in . A black FAC car owned by her partner was also taken at the same time .

The victim subsequently made a formal statement to the police , containing a statement of truth in the terms outlined above ( see paragraph CARDINAL ) , giving an account of events on DATE . She stated that , as she had been about to bathe , CARDINAL masked men had entered her bedroom ; CARDINAL had a knife . She had been ordered downstairs where there were CARDINAL other men . They had asked where the jewellery , money and car keys were and she had told them about her partner ’s safe in his wardrobe . CARDINAL of the men had then taken her to the car they had come in and had driven off . She assumed that the other CARDINAL men had taken ORG ’s car .

The men in her car had then asked for ORG ’s telephone number , which she gave them , and they had telephoned him . She described the telephone conversations that followed and explained that the men had told her that they wanted QUANTITY before they would let her go . She had also been told that she should not go to the police because she would know what would happen to her if she did . She had been warned not to look at her captors , and had taken the threats to mean that they would kill her if she saw their faces . She said that she had been punched twice in the back of the head , which she understood to have been intended to show her that her kidnappers were serious about hurting her . She had heard her captors say that if they did not get money they would cut off her fingers and toes . CARDINAL of the men had said something about putting her in a vice . She was eventually put in the boot of the car for a while before being dropped off unharmed . After unsuccessful attempts to telephone FAC from various locations , she had eventually spoken to her father who had picked her up . She had arrived home shortly after TIME and the police had arrived TIME . In her statement , she did not identify any person as having participated in her kidnapping .

On DATE ORG made a short statement setting out his account of the ransom demands and how the kidnappers had threatened to cut off the victim ’s fingers if he did not pay the ransom .

On DATE Mr PERSON was arrested in ORG ’s stolen car after having been seen on ORG . A knife was found in the car .

On DATE PERSON made a further police statement . She was shown the knife which had been recovered from the car in which Mr PERSON had been arrested and asked if she had seen it before . She confirmed that it was the knife used to threaten her .

On DATE a police officer visited ORG and the victim , in the presence of the latter ’s father , and told them “ in no uncertain terms ” that the men the police were seeking were dangerous and that it was not beyond them to use guns . He gave as an illustration the use of guns against a couple who had fled and had been murdered in the village to which they had been relocated . He spoke to them about moving .

On DATE the victim and ORG made police statements to the effect that they wished to retract their previous statements and did not want the police to pursue a prosecution , as they were scared for the safety of their families .

Mr Marquis and PERSON were charged with kidnapping . The prosecution relied on other evidence , apart from the victim ’s statement .

First , PERSON was seen with other masked men on the ORG cameras entering the victim ’s house on TIME CARDINAL DATE . That evidence was not disputed at trial although when initially questioned PERSON had not accepted that he had been to the house or that the person shown on the ORG was him . It was also not disputed that ORG ’s car had been taken from outside the house shortly thereafter . The telephone records proving that ORG had subsequently been contacted on his telephone from the victim ’s telephone and that a number of calls were made from Mr Marquis’ telephone to ORG were undisputed .

There was evidence that PERSON had spent TIME CARDINAL DATE at a hotel and that a woman of his acquaintance , GPE , had gone to the hotel to meet him that night . She gave evidence that she had been told to park her car between a red van and “ my XCARDINAL ” . When she had gone to Mr Marquis’ room , she had been introduced to a man ( whom Mr ORG refused to identify ) . She had seen a pink telephone which was identical to the CARDINAL owned by the victim . It was accepted that the telephone used to call ORG TIME was also used by PERSON to contact GPE DATE and DATE . A text to her from PERSON at TIME on DATE stated :

“ Hey do n’t let no - one know where I am , you know . Remember I know your address and that . You should have just said you were going . I ai n’t bothered , but if I get arrested , I know it ’s you ”

NORP CCTV evidence showed PERSON at the wheel of ORG ’s car twice on DATE ; on the second occasion the car had false registration plates .

There was also evidence that a man describing himself as PERSON had rented a room at the hotel where Mr Marquis had stayed on DATE and had described himself as the driver of a black ORG XCARDINAL .

Mr PERSON ’s defence was that there had been no kidnapping . He claimed that the victim and her partner had been involved in an attempted insurance fraud . Mr PERSON denied any involvement in any kidnapping that there may have been .

The victim and ORG did not attend court on DATE in compliance with a witness summons that had been issued for the trial . The victim was arrested on DATE and brought to court . On giving an explanation to the judge that , although she was frightened , she would have attended court but had been told not to attend by Witness Support , she was bailed to appear on DATE . She was warned that if she did not attend a warrant for her arrest would be issued and she could be imprisoned for DATE . The trial was fixed for CARDINAL DATE . ORG later surrendered into custody and was also bailed to appear .

The victim made a further statement on DATE which was video recorded . In it she said that she had made the retraction statement of CARDINAL DATE because she was scared . She thought that those who had kidnapped her were dangerous and she was very frightened . She said :

“ Since I was kidnapped , I have found that the incident has altered my life . I am petrified . I find myself looking over my shoulder and wondering if the people responsible will come and get me . I feel like this because at the time they said to me , ‘ You PERSON better not go to the police ‘ cos you know what will happen if you do’ .

I perceived this as a direct threat against me and I just do n’t know what they are capable of , considering that they forced their way into my house and kidnapped me . I perceive them as very dangerous people .

As such I am terrified all of the time and find myself very tearful , and I am almost not sleeping at TIME . ”

She added that the police had made her more frightened when they told her that she and ORG had to move . She did not feel she could leave her house for fear of what might happen to her and her anxiety had been increased by the court case .

She confirmed that the police had explained the possibility of using special measures at trial . She said that her evidence would be “ greatly enhanced ” if she could speak from behind a screen in the court room . Finally , she said that she had not been subjected to any threats directly or indirectly from those responsible for kidnapping her , but that she still felt scared .

G.P. made a statement on video on DATE . In his statement he referred to the police visit in DATE and the advice to “ leave town ” , which he said had “ really frightened ” them . He said that he had tried to get in touch , through a friend , with a certain “ Bijer ” because another friend had recognised the number which had called him on TIME of the kidnapping as that of “ Bijer ” . “ Bijer ” had rung him , but it was clear that this was not the person who had rung him on the telephone on DATE . “ Bijer ” had explained to him that he had sold the telephone DATE . ORG said that he was not scared to give evidence but just did not want to , in case there were reprisal attacks .

Neither the victim nor ORG attended court on DATE . The victim ’s father ’s evidence to the trial judge was that she had packed her bags and fled DATE .

DATE . On DATE , the prosecution applied to read the statements of PERSON and ORG under section CARDINAL(CARDINAL)(e ) of the DATE Act on the grounds that they would not give evidence through fear ( see paragraphs CARDINAL below ) . The applicants argued that the statements could not be admitted as the fear did not fall within the meaning of the DATE Act as it had not been generated by any action of theirs or their associates , but by what the police officer had said on DATE ( see paragraph CARDINAL above ) .

On DATE the trial judge handed down his ruling on the admission of the statements . He noted , in respect of PERSON ’s video statement of DATE :

“ I have seen a portion of that tape and it is perfectly clear to me the witness was petrified , genuinely really distressed , breaking down into tears . ”

The judge heard evidence from the victim ’s father and the police officer who had spoken to her on DATE . He observed that in her witness statement of DATE , PERSON had explained that she was “ more ” scared as a consequence of the police advice , noting that this was “ on top of her own fears ” . He also observed that in her statement , PERSON had confirmed that the possibility of special measures at trial had been explained to her . He referred to the warning that he had given her as to the serious consequences if she failed to attend court ( see paragraph CARDINAL above ) . He concluded :

“ Having heard all the evidence , the only sensible conclusion is that she was and is so terrified of coming to court to give evidence , she would rather face arrest and imprisonment . I have no doubt she ’s in fear of giving evidence . ”

The judge noted that there was no qualification in section CARDINAL(CARDINAL)(e ) of the DATE Act on how the fear had to have been generated . He accepted that GPE qualified under the LAW to have her statement read as a witness in fear , and stressed that there had been no bad faith by the police in respect of the advice that they had given . The judge found that it would not be unfair or unjust to admit the statement .

In the same ruling the judge declined to admit the evidence of ORG as he was not satisfied that his non - attendance was due to fear .

On CARDINAL DATE an application was made to the judge to admit ORG ’s statement made on DATE in the interests of justice under section DATE ) of the CARDINAL Act ( see paragraph CARDINAL below ) so that it could be advanced as part of the defence case of PERSON . It was submitted that PERSON was put at a great disadvantage because the defence could not cross - examine ORG in relation to the voice heard over the telephone on DATE . The judge refused the application on the basis that ORG was not in fear and he was not prepared to go behind his ruling of DATE ; and the evidence covered many matters which implicated the applicants and not just that part of it relating to the recognition of the voice over the telephone .

Mr Marquis and PERSON were tried at ORG before a judge and a jury .

Oral evidence was heard from LOC , a friend of ORG , which the judge directed the jury to treat with caution . S. said he had been with FAC on TIME of the kidnapping when ORG had received a telephone call . He had answered it and had looked distressed . S. had been able to hear some of the conversation , including a demand for money and a girl crying in the background . ORG had told him that someone had taken his girlfriend and was demanding money . There had then been a couple more calls . ORG had asked him to telephone the police which he had done . The tape of that call recorded the person calling the police as giving an account that CARDINAL black males were demanding money while holding his girlfriend in the bathroom at her house . PERSON gave evidence that ORG had also received further calls from another telephone . S. had recognised the telephone number and when he had put it into his own mobile telephone it had registered as belonging to GPE ( the abbreviation used by PERSON for his first name ) . When PERSON denied that GPE was the same person as Mr Marquis , the judge permitted him to be treated as a hostile witness and evidence was put to him to show he knew Mr Marquis .

A police officer gave evidence that he had called PERSON ’s mobile telephone and had spoken to a man who had given his name as ORG He had sounded agitated and was shouting that they had kidnapped her . He had then heard a mobile telephone ringing and had been told by ORG that it was his girlfriend ’s number . ORG had asked him to listen . He had been able to hear some of the demands for money when the CARDINAL telephones were held against one another . The telephone had rung again and he could hear a girl ’s voice screaming that they had taken her . When the telephone had gone dead , ORG had confirmed that it was his girlfriend and that he did not know where she was . He did not say where he was but said that he would be returning to their home shortly . Another call had then taken place during which money was demanded .

The victim ’s father gave evidence that he had received a telephone call TIME and TIME on DATE from his daughter . She had told him that she had been kidnapped and needed to be picked up . She had sounded distressed . He had collected her and she had given him an account of what she said had happened . She had tried to contact her partner on the telephone , but had not answered . They had gone to her home to see if he was there . When they had arrived at the house , CARDINAL of her friends were there and asked what had happened . She had given an account , tearful and shaken . The victim ’s father had then searched the house but ORG was not there . He had found lukewarm water in the bath and had telephoned the police . Before they came , the victim had given an account of what had happened which was consistent with the statement she subsequently gave to them .

Mr Marquis gave evidence at trial , denying any role in the kidnapping . He stated that his telephone had been used by him DATE and DATE to contact GPE , but that he had lost it when he got into a car owned by some men on TIME CARDINAL DATE and did not get it back from them until he was at the hotel . The telephone had therefore not been in his possession when the calls had been made to ORG He would not identify the men . When he had gone to the room at the hotel , the pink telephone was already there , but he had no idea how it had got there .

Mr PERSON did not give evidence . He provided no evidence from any person which would have formed a basis for the case that the kidnapping was an attempted insurance fraud . It was nonetheless advanced as part of the defence case to the jury .

In his summing up , the trial judge directed the jury in relation to the way that they should treat PERSON ’s statement and the disadvantages to the applicants of being unable to cross - examine her .

On DATE Mr Marquis and PERSON were convicted of kidnapping .

Mr PERSON and Mr PERSON appealed against their convictions on the ground that the victim ’s statement should not have been admitted as evidence . They submitted that the statement was the sole or decisive evidence against them .

Mr Marquis and PERSON appealed against their convictions on the grounds , inter alia , that the victim ’s statement should not have been admitted because there was no evidence that the fear had been caused by the applicants , and the police had contributed hugely to the fear . It was also contended that her evidence was decisive in the case , as it was the only evidence that there had been a kidnapping .

On DATE , ORG unanimously dismissed the appeals .

The court found that LAW ( d ) did not create any absolute right to have every witness examined and that the balance struck by LAW was legitimate and wholly consistent with the Convention . It noted , however , that there could be a very real disadvantage in admitting hearsay evidence and it needed cautious handling . Having regard to the safeguards contained in LAW , which were rigorously applied , it was of the view that there would be no violation of LAW if a conviction were based solely or to a decisive degree on hearsay evidence . Where the hearsay evidence was demonstrably reliable , or its reliability could properly be tested and assessed , the rights of the defence would be respected , there would be sufficient counterbalancing measures and the trial would be fair . The court considered that it was not appropriate that there should be a rule that counterbalancing measures could never be sufficient where the evidence was sole or decisive .

In terms of counterbalancing measures , ORG considered that the power of a trial judge under LAW of the DATE Act to stop the case if the absent - witness evidence was unconvincing ( see paragraph CARDINAL below ) provided for a “ proportionate assessment of the reliability ” of such evidence ; and that it would not serve justice if that power were to be trammelled by a requirement that it be exercised in every case in which the evidence were the sole or decisive evidence . Sole or decisive absent - witness evidence could be wholly convincing and , equally , evidence which was neither sole nor decisive might have such a potential influence on the jury that the judge would be persuaded that a conviction was unsafe . Where there was a legitimate argument that the absent witness evidence was unconvincing and important to the case , the trial judge was required to make up his own mind as to whether a conviction would be safe . PERSON when absent - witness evidence was admitted were well understood by the courts .

DATE . The Court of Appeal gave guidance as to when it would be appropriate to allow absent - witness evidence to be introduced because a witness was in fear . There was , in the case - law of this ORG , no requirement that the fear had to be attributable to the defendant ; the essential questions were whether there was a justifiable reason for the absence of the witness supported by evidence and whether the evidence was demonstrably reliable or its reliability could be properly tested and assessed . ORG added :

“ DATE . It is , however , important that all possible efforts are made to get the witness to court . As is clear , the right to confrontation is a longstanding requirement of the common law and recognised in Article CARDINAL ) . It is only to be departed from in the limited circumstances and under the conditions set out in the [ CARDINAL Act ] . The witness must be given all possible support , but also made to understand the importance of the citizen ’s duty , and indeed that the violent and intimidatory will only flourish the more if that duty is not done , whilst they will normally back down in the face of determination that it be performed . For this reason it is of especial importance that assurances are never given to potential witnesses that their evidence will be read . Unless the defendant consents , it is only the court applying the strict conditions of the [ CARDINAL Act ] based on evidence that can admit such a statement . Any indication , let alone an assurance , can only give rise to an expectation that this will indeed happen , when if it does the impact of the evidence will be diminished and the disadvantage to the accused may result in it not being given at all .

... In the case before us of ORG and PERSON ... the Judge found that the investigating police officer had significantly contributed to the fear of the witness by referring repeatedly to a notorious local example of witnesses being hunted down , although relocated , and killed . Although notorious , that incident was an extreme and very unusual case . The need for police officers to tender careful advice to potential witnesses in order to discharge their duty of care towards them should not lead to such frightening information being laboured out of defensiveness . Whilst the [ CARDINAL Act ] requires fear to be construed broadly , it is not to be expected that fear based upon inappropriate assurances by police officers will result in the evidence being read and the case proceeding on the basis of it to the jury . If the evidence can really only be assessed by the jury by seeing the witness , as will often be the case , it may not be admitted . If it is admitted and central to the case , there is a significant possibility that at the end of the trial the Judge may have to rule under s.CARDINAL that a conviction relying upon it would be unsafe . ”

Having considered the general principles , the court turned to examine the specific facts of the ORG cases .

ORG reviewed the victim ’s statement and the evidence presented to the trial court . It found that there was substantial evidence independent of the statement to prove that Mr PERSON and Mr PERSON had gone to the victim ’s flat , that they had been present when the attack had taken place and that both had taken away items from the flat . It noted :

“ CARDINAL . i ) PERSON and PERSON both admitted they accompanied [ NORP ] to flat CARDINAL and were present when the door was opened .

ii ) PERSON removed the TV on his own admission . The TV had [ the victim ’s ] blood on it . It is an inescapable inference that PERSON must have been present after sufficient violence had been inflicted on [ the victim ] for blood to have got onto the TV . His account that he saw no violence must have been untruthful .

iii ) PERSON admitted taking the DVD and stepping over the prostrate body of [ the victim ] . He must have been present when the violence began and he returned to the flat to help with removing the TV , despite knowing that [ the victim ] had been attacked .

iv ) Neither appellant contended there was anyone else other than [ NORP ] present at that time they first went to the flat or when the DVD or TV were removed .

v ) The scientific evidence pointed clearly to the attack having taken place at the entrance to the flat and at the door to the bedroom which was near the entrance . The attack must therefore have been visible to anyone who remained at the entrance .

vi ) It follows from the above that there was a significant amount of evidence which showed that the attack occurred in the presence of each of the appellants .

vii ) There was no evidence of motive for [ M. ] to have attacked [ the victim ] . On the contrary he was a friend of [ the victim ’s ] and [ the victim ] had shown no fear when he saw him ... after he had been attacked . ”

Despite the substantial amount of independent evidence , ORG accepted that it was clear from the judge ’s ruling on admissibility , from the way in which the case was summed up and from the question from the jury that the victim ’s statement was to a decisive degree the basis on which the applicants were convicted .

However , it considered that the decisive nature of the evidence was CARDINAL of the factors which the court had to put into the balance in the various stages that it had to go through in applying the legislation . It observed that the judge ’s decision on the admissibility of the evidence carefully applied the statutory tests under LAW ; that the applicants had been provided with ample material to attack the victim ’s credibility , including the notes of his treatment in hospital ; that no application had been made CARDINAL of the CARDINAL Act to stop the case ; that the judge ’s direction to the jury was very full and that he had drawn attention to the particular matters that put the defence at a disadvantage , in particular the inability to cross - examine the victim as to his memory , his alcoholism , his description of Mr Blackmore and other matters ; and that there was no suggested reason why the victim should have provided an untruthful statement .

ORG was satisfied that the jury had been able to make a proper assessment of the reliability of the victim ’s evidence contained in the statement . It further considered that the jury was right in placing reliance on the statement , as its convincing nature and reliability in important respects could be tested against other evidence , including the applicants’ own admissions ; the visit of QUANTITY persons to the victim ’s flat and taking items away ; the evidence of blood on the television removed by PERSON ; Mr PERSON ’s evidence in relation to observing the victim on the floor and the blood in the flat ; and the other independent evidence to which it had already referred .

ORG accordingly concluded that the applicants were provided with sufficient counterbalancing measures to ensure respect for their fair trial rights . They had received considerable information about the victim and his time in hospital ; they were able to draw to the jury ’s attention all the arguments for treating the statement as unreliable ; and they were able to put forward an alternative case that the assault was carried out by PERSON by calling independent evidence in support .

ORG reviewed the evidence at trial and the judge ’s decision to admit the victim ’s statement . It also examined the directions given to the jury in relation to the way in which they should treat the statement and the disadvantages to the applicants in not being able to crossexamine the victim , which it considered to be appropriate .

DATE . It found , having regard to its observations on the ambit of “ fear ” under LAW ( see paragraph DATE above ) , that the judge was correct in his ruling as to the victim ’s fear .

The court also took the view that there was sufficient material before the jury to enable them properly to assess the reliability of the victim ’s statement . It explained :

“ CARDINAL . ... We also consider that its convincing nature and reliability in important respects could be tested against other evidence including :

i ) that when the police visited the house , the bath had lukewarm water in it .

ii ) that a knife was recovered from the ORG in which PERSON was arrested ; she identified it as the one used on her .

iii ) that [ ORG ] was phoned using her phone and an identical phone was seen in the bedroom at the FAC Inn used by ORG .

In considering the overall fairness of the decision to admit the evidence of [ the victim ] and in looking at the safety of the conviction , we have taken into account the criticism of the judge ’s refusal to admit the statement of [ ORG ] . ORG sought to admit only part of his evidence contained in the statements . The judge had concluded that [ FAC ] was not in fear and could have attended . To have admitted the whole of the evidence in those circumstances would not have been in accordance with the statutory code and to have admitted part of it on Marquis’ application would have been to provide evidence that was misleading without the rest of the evidence . ”

ORG considered it clear that the convictions did not rest on the evidence of the victim to a decisive extent . It noted :

“ CARDINAL . ... i ) The main evidence against PERSON was that there was clear ORG evidence that PERSON had been at the house at the time [ the victim ] said she was kidnapped ; he admitted that , though in his interview he had not accepted that . He was arrested in [ ORG ’s ] stolen FAC . [ The victim ’s ] statement did not identify him .

ii ) The main evidence against ORG was that his phone was used to make the ransom demands heard by [ S. ] and [ the police officer ] . It was not disputed that a phone identical to one owned by [ the victim ] was seen by [ GPE ] when she went to Marquis’ bedroom at the FAC . [ The victim ’s ] statement did not identify him .

iii ) The only matter proved by [ the victim ’s ] statement was that she had been kidnapped . There was , however , sufficient evidence of that from the other witnesses in the case , particularly her father .

iv ) There was no evidence to support the case advanced by PERSON that the kidnapping was an attempted insurance fraud .

v ) Counsel for the ORG had submitted in his application to the judge to admit the statements of both [ ORG ] and [ the victim ] that they were central to the case . However , the fact that this submission was made is an illustration of the difficulty ... of determining in advance whether the evidence is decisive . Self evidently the evidence of [ FAC ] made no difference , as it was not admitted and in the result , for the reasons we have given , the evidence of [ the victim ] was not , in the event , decisive .

vi ) Thus , if contrary to the view we have expressed , a statement of a person kept away by fear could not be relied upon as evidence of a decisive extent in favour of a conviction , then as the conviction rests on other evidence , then that ground of appeal fails for that additional reason . ”

The court concluded that the applicants’ defence rights were respected , the trial was fair and the convictions were safe .

The applicants appealed to ORG arguing that the decisions to admit the statements in their cases rendered their convictions unfair . They relied heavily on the judgment of the Fourth Section of this Court in Al‑Khawaja and PERSON v. GPE , nos . CARDINAL and ORG , DATE .

On DATE ORG dismissed the ORG appeals . Lord PERSON gave the judgment of the court , with which the other justices agreed . He identified the principal issue raised by the appeals as being whether a conviction based “ solely or to a decisive extent ” on the statement of a witness whom the defendant had had no chance of crossexamining necessarily infringed his right to a fair trial under LAW and CARDINAL ( d ) .

Lord PERSON began with an analysis of the common law approach to a fair trial and the provisions of the CARDINAL Act . He set out the legal framework under section CARDINAL of the DATE allowing , exceptionally , the admission of hearsay evidence at criminal trials ( see paragraphs CARDINAL below ) , explaining

“ CARDINAL . ... [ T]he [ Criminal Justice Act ] DATE contains a crafted code intended to ensure that evidence is admitted only when it is fair that it should be . ”

He went on to detail the “ special stipulations ” set out in sections CARDINAL - CARDINAL of the DATE Act which were applicable to all hearsay evidence and designed to ensure the fairness of the proceedings ( see paragraphs CARDINAL - CARDINAL below ) .

He summarised the safeguards present at trial to protect against any potential for unfairness arising from the admission of hearsay evidence as follows :

“ CARDINAL . ... i ) The trial judge acts as gatekeeper and has a duty to prevent the jury from receiving evidence that will have such an adverse effect on the fairness of the proceedings that it should not be received .

ii ) Hearsay evidence is only admissible in strictly defined circumstances . In essence the judge has to be satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence by calling the witness .

iii ) Once the prosecution case is closed , the judge must withdraw the case from the jury if it is based wholly or partly on hearsay evidence and that evidence is so unconvincing that , considering its importance , the defendant ’s conviction would be unsafe .

iv ) The judge has to direct the jury on the dangers of relying on hearsay evidence .

v ) The jury has to be satisfied of the defendant ’s guilt beyond reasonable doubt .

vi ) The defendant can apply for permission to appeal against his conviction , which will be granted where reasonable grounds for appeal are demonstrated . A failure to comply with the safeguards outlined above , and in particular the admission of hearsay evidence contrary to the rules on its admissibility , will constitute such grounds . Where ORG finds that there has been such a failure , the appeal will be allowed unless the court is satisfied that , despite the shortcoming , the conviction is ‘ safe’ . ”

Lord PERSON considered the approach to absent - witness evidence in other common law jurisdictions . He then examined criminal procedure in civil law jurisdictions and the case - law of this ORG prior to the ORG judgment in Al‑Khawaja and PERSON . He reviewed in some detail the origins and development of the “ sole or decisive rule ” in the ORG ’s caselaw .

He then turned to consider the ORG ’s judgment in Al‑Khawaja and PERSON , citing an extract of the judgment which explained that in the absence of special circumstances arising where the absent witness failed to give oral evidence as a result of fear induced by the defendant , it was doubtful whether any counterbalancing measures would be sufficient to justify the introduction in evidence of an untested statement which was the sole or decisive basis for conviction . He observed :

“ CARDINAL . There are CARDINAL points to be made about this passage . The first is that the ORG appears to have accepted that the sole or decisive rule does not apply so as to preclude the reliance on the statement of a witness who refuses to testify because of fear induced by the defendant . The second is that the ORG did not completely close the door to the possibility of ‘ counterbalancing ORG being sufficient to justify the introduction of a statement as sole or decisive evidence in other circumstances . The ORG made it quite plain , however , that compliance with the statutory regime under which the statements in the CARDINAL appeals had been admitted carried ‘ limited weight’ ... ”

However , having regard to the judgment of ORG and to the development of the “ sole or decisive rule ” in cases largely relating to civil law jurisdictions , Lord PERSON concluded that the DATE Act made the “ sole or decisive ” rule unnecessary in LANGUAGE criminal procedure . He considered that the safeguards it contained meant that if the CARDINAL Act were observed , there would be no breach of LAW ( d ) even if a conviction were based solely or to a decisive extent on absent witness - evidence . He therefore held :

“ CARDINAL . In these circumstances I have decided that it would not be right for this court to hold that the sole or decisive test should have been applied rather than the provisions of the CARDINAL Act , interpreted in accordance with their natural meaning . I believe that those provisions strike the right balance between the imperative that a trial must be fair and the interests of victims in particular and society in general that a criminal should not be immune from conviction where a witness , who has given critical evidence in a statement that can be shown to be reliable , dies or can not be called to give evidence for some other reason . In so concluding I have taken careful account of the GPE jurisprudence . I hope that in due course ORG may also take account of the reasons that have led me not to apply the sole or decisive test in this case . ”

As to the applicants’ alternative arguments that , regardless of the application of the sole or decisive rule , the statements should not have been admitted , Lord PERSON relied on the findings of ORG , which he said had given the arguments “ careful consideration ” .

In a separate concurring opinion , Lord PERSON observed :

“ CARDINAL . ... Obviously , the more crucial the evidence is to the proof of guilt , the more scrupulous must the ORG be to ensure that it can be fairly adduced and is likely to be reliable . In this connection there can be no harm in using the concept of ‘ sole or ORG so long as it is used broadly ... Understood and applied inflexibly , however , the concept would involve insoluble problems of detailed interpretation and application .

The better view may therefore be that no such absolute principle emerges from ORG judgment in PERSON and PERSON v GPE ... ”


Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in the village of GPE in GPE . She was represented before the ORG by PERSON , a lawyer practising in PERSON .

NORP The applicant is the mother of PERSON .

PERSON was detained in remand prison no . IZ-CARDINAL in GPE from DATE . On DATE she was transferred to ORG ( hereinafter “ the FAC ” ) on account of a suspected acute drug poisoning . On DATE she died . The death certificate of CARDINAL DATE listed double pneumonia as the cause of death .

Investigating authorities examined ex officio the circumstances of the death and on DATE refused to open a criminal investigation .

On DATE the applicant asked ORG to provide her with her daughter ’s medical files and to answer the following questions :

“ Did PERSON contract any illness during her stay in [ the remand prison ] or did her existing diseases exacerbate ?

What medical institutions ... was PERSON transferred to for the examination and treatment ?

Was PERSON diagnosed with HIV , tuberculosis or any other contagious disease ? If so , which institution and when ? ”

On DATE the applicant ’s request was dismissed . ORG replied that her daughter ’s medical information remained confidential even after her death . In the absence of her daughter ’s prior authorisation the applicant only had a right to receive the death certificate . According to relevant domestic law provisions access to information requested by the applicant could be provided under limited conditions to investigators , courts or public prosecutors .

The applicant challenged that decision in court under LAW .

On DATE the ORG of Krasnodar upheld the decision of ORG and endorsed its reasoning .

On CARDINAL DATE ORG dismissed the applicant appeal . On DATE the applicant lodged her application with the ORG . Only subsequent to that , on DATE , she filed a first tier cassation appeal , which was dismissed by ORG on DATE .

On DATE the applicant ’s lawyer , at the request of ORG , informed the ORG that he had decided not to submit a cassation appeal to ORG for “ it was not an effective remedy ” .

Relevant domestic law provisions have been summarised by ORG in the case of GPE v. GPE ( dec . ) , no . CARDINAL , § § DATE , CARDINAL DATE .