CASE OF EZEH AND CONNORS v. THE UNITED KINGDOM

Violation of Art. 6-3-c;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The first applicant , born in GPE in DATE , lived in GPE until he was DATE . He then resided in GPE until he was DATE , after which he returned to GPE .

In DATE he was convicted of rape , possessing an imitation firearm and attempted murder . He was sentenced to CARDINAL concurrent terms of imprisonment , the longest term being DATE .

On DATE the first applicant attended a meeting in the “ C Wing interview room ” with his probation officer for the preparation of his parole assessment report . The probation officer later alleged that the first applicant had threatened to kill her if she did not write down what he said . The first applicant was charged with an offence contrary to Rule CARDINAL ) of the Prison Rules DATE ( “ the Prison Rules ” ) .

He was “ put on report ” and an adjudication hearing before the prison governor was convened for DATE . The first applicant requested legal representation in a form submitted to the governor dated DATE and also during the hearing on DATE before the governor . His reasons for such a request were not considered sufficient by the governor , but the hearing was adjourned to allow him to obtain legal advice . The first applicant 's representative then advised him about the nature and format of the adjudication proceedings and about the questions he should raise .

In his detailed reply to the complaint lodged against him and written after the hearing on DATE , the first applicant stated that he required legal representation to put his points clearly to the authorities .

The hearing resumed on DATE . The record of the hearing indicates that the first applicant was asked whether he had had time to speak to his solicitor and whether he was ready to proceed . The relevant part of the record was ticked to indicate that this was the case . The hearing went ahead . The first applicant disputed that he had used threatening words against the probation officer . He submitted that the probation officer had misunderstood the actual words he had used , because of either his accent or language , and that the impugned remarks were about his life in GPE . Evidence was heard from the first applicant and the probation officer , to whom questions were put by the governor and the first applicant .

The first applicant was found guilty and awarded DATE custody ( pursuant to section CARDINAL of LAW DATE LAW ) together with DATE cellular confinement , DATE exclusion from associated work and DATE forfeiture of privileges . This was the applicant 's CARDINAL offence against discipline and his seventh offence of threatening to kill or injure a member of the prison staff .

On DATE and CARDINAL DATE the applicant unsuccessfully petitioned the Secretary of ORG about the conduct of his adjudication proceedings . In a letter dated DATE , it was confirmed that the Secretary of ORG had reviewed the adjudication procedure as a whole and found it to have been satisfactory .

The second applicant was born in DATE .

NORP In DATE he was convicted on CARDINAL counts of rape and of robbery and was sentenced to CARDINAL concurrent terms of imprisonment , the longest being DATE .

On DATE the second applicant was jogging around a track in the prison exercise yard when he collided with a prison officer . The officer alleged that the second applicant had run into him deliberately and he was charged with the offence of assault , contrary to Rule CARDINAL(CARDINAL ) of FAC .

The adjudication hearing before the governor commenced on DATE , when the second applicant requested legal representation ( or , in the alternative , representation by his probation officer ) at the hearing . This was refused but the hearing was adjourned to allow him to obtain legal advice , which he did on DATE . The second applicant 's representative then advised him about the nature and format of the adjudication proceedings and about the questions he should raise . He was also advised to request legal representation again for the adjudication hearing , which he did on DATE .

The adjudication hearing was reconvened on DATE . The governor rejected the application for legal representation . He heard evidence from the relevant prison officer and another prison officer , from the second applicant and from CARDINAL prisoners called by the second applicant . The second applicant 's case was that the collision had been accidental .

The second applicant was found guilty of assault and awarded DATE custody ( pursuant to section CARDINAL of the CARDINAL Act ) . DATE cellular confinement were also awarded and he was fined GBP CARDINAL . It was his CARDINAL offence against discipline .

On DATE and DATE respectively , the applicants requested leave to apply for judicial review of the governor 's refusal of legal representation . Mr Ezeh also applied for an extension of time in which to do so . The applicants argued that the various statutory and regulatory changes since ORG and PERSON v. ORG ( [ DATE ] CARDINAL Appeal Cases CARDINAL ) had made adjudication of prison disciplinary matters indistinguishable from matters of summary jurisdiction and , therefore , legal representation ought to have been allowed as of right . On DATE a single judge of ORG refused leave to both applicants . He observed that there was no right to legal representation in adjudication hearings and that the governor 's exercise of his discretion not to allow such representation was not irrational or perverse given the facts of the cases . In Mr Ezeh 's case he added that there was therefore no good reason for extending time .

On DATE the applicants ' counsel advised that a renewed application for leave had no realistic prospect of success , given the views expressed by the single judge of ORG .

Control over , and responsibility for , prisons and prisoners in GPE and GPE is vested by LAW in the Home Secretary . He is empowered by CARDINAL ) of that Act to make rules “ for the regulation and management of prisons ... and for the classification , treatment , employment , discipline and control of persons required to be detained therein ” . Such rules are contained in statutory instruments .

The rules in force at the time of the present applicants ' disciplinary hearings were the Prison Rules DATE as amended ( “ the Prison Rules ” ) . Those have since been replaced by LAW ( as amended pursuant to the ORG 's judgment in this case – see paragraphs DATE below ) .

Rule CARDINAL ) of the Prison Rules provided that a prisoner was guilty of an offence against discipline if he used threatening , abusive or insulting words or behaviour .

ORG ( section CARDINAL ) provided as follows :

“ It is important that it is shown how the action was threatening , abusive or insulting , but it may not always be necessary to establish at whom the action was aimed and it is not necessary to name an individual in every charge . ”

Section CARDINAL further provided that the impugned matter could be a specific act or word or a general pattern of behaviour ; that “ threatening , abusive or insulting ” words should be given their ordinary meaning and that it was only necessary to find that a reasonable person at the scene would consider the words or behaviour threatening , abusive or insulting ; and that the accused intended to be , or was reckless as to whether he was , threatening , abusive or insulting .

Section CARDINAL of LAW CARDINAL ( “ the DATE LAW ) is entitled “ Fear or provocation of violence ” and provides :

“ ( CARDINAL ) A person is guilty of an offence if he –

( a ) uses towards another person threatening , abusive or insulting words or behaviour , or

( b ) ORG distributes or displays to another person any writing , sign or other visible representation which is threatening , abusive or insulting ,

with intent to cause that person to believe that immediate unlawful violence will be used against him or another by any person , or to provoke the immediate use of unlawful violence by that person or another , or whereby that person is likely to believe that such violence will be used or it is likely that such violence will be provoked .

( CARDINAL ) An offence under this section may be committed in a public or a private place , except that no offence is committed where the words or behaviour are used , or the writing , sign or other visible representation is distributed or displayed , by a person inside a dwelling and the other person is also inside that or another dwelling .

( CARDINAL ) A person guilty of an offence under this section is liable ... to imprisonment for a term not exceeding DATE or a fine ... or both . ”

Section CARDINAL of the CARDINAL Act is entitled “ Harassment , alarm or distress ” and section CARDINAL ) provides :

“ A person is guilty of an offence if he –

( a ) uses threatening , abusive or insulting words or behaviour , or disorderly behaviour , or

( b ) displays any writing , sign or other visible representation which is threatening , abusive or insulting ,

within the hearing or sight of a person likely to be caused harassment , alarm or distress thereby . ”

Section CARDINAL(CARDINAL ) provides that it is a defence for the accused to prove that there was no person within hearing or sight likely to be caused such harassment , alarm or distress , or that he was inside a dwelling and had no reason to believe that the words or behaviour used , or the writing , sign or other visible representation displayed , would be heard or seen by a person outside that or any other dwelling , or to prove that his conduct was reasonable .

“ Dwelling ” is defined for the purposes of DATE CARDINAL Act as being any structure or part of a structure occupied as a person 's home or as other living accommodation ( whether the occupation is separate or shared with others ) but does not include any part not so occupied , and for this purpose “ structure ” includes a tent , caravan , vehicle , vessel or other temporary moveable structure .

A prisoner was guilty of an offence against discipline if he committed an assault ( Rule CARDINAL(CARDINAL ) of ORG ) . Section CARDINAL of LAW DATE makes provision for the criminal offence of common assault .

Rule CARDINAL ) of the Prison Rules provided that a charge of an offence against discipline should be laid , save in exceptional circumstances , within TIME of the offence and , in general , inquired into by the governor of the prison DATE after it was laid .

Rule CARDINAL of the Prison Rules provided as follows :

“ ( CARDINAL ) If he finds a prisoner guilty of an offence against discipline the Governor may ... impose CARDINAL or more of the following punishments :

( a ) caution ;

( b ) forfeiture for a period not exceeding DATE of any of the privileges under Rule CARDINAL of these Rules ;

( c ) exclusion from associated work for a period not exceeding DATE ;

( d ) stoppage of or deduction from earnings for a period not exceeding DATE and of an amount not exceeding DATE earnings ;

( e ) cellular confinement for a period not exceeding DATE ;

( f ) in the case of a short - term or long - term prisoner , an award of DATE not exceeding DATE ;

( g ) in the case of a prisoner otherwise entitled to them , forfeiture for any period of the right , under LAW ) of these Rules , to have the articles there mentioned .

( CARDINAL ) If a prisoner is found guilty of CARDINAL charge arising out of an incident , punishments under this rule may be ordered to run consecutively but , in the case of an award of additional days , the total period added shall not exceed DATE . ”

Rule CARDINAL(CARDINAL ) of those Prison Rules also provided :

“ Subject to paragraph ( CARDINAL ) , where an offence against discipline is committed by a prisoner who is detained only on remand , DATE may be awarded notwithstanding that the prisoner has not ( or had not at the time of the offence ) been sentenced . ”

The Prison Rules ( Rules CARDINAL , DATE and DATE ) provided other means of special control of prisoners , including removal from association and temporary confinement . The Prison Rules DATE provided that removal from association could lead to placement in a close - supervision centre ( Rule CARDINAL ) .

The Incentives and Earned Privileges scheme has been operating in prisons DATE , with each prison adapting it to meet their particular needs and resources . It aims to encourage responsible behaviour , participation in constructive activity , prisoners ' progress through the prison system and a more disciplined , controlled and safer environment for prisoners and staff .

The scheme operates a “ basic ” regime , offering the least earnings and privileges , and “ standard ” and “ enhanced ” regimes , offering progressively more privileges . Such privileges can include , inter alia , earnings for work , visiting rights , family events within the prison , association , gym , personal cash , phone cards , tobacco , education facilities , in - cell radio and television , computer access and hobby materials .

Prior to DATE disciplinary offences were adjudicated upon by governors who could award a maximum of DATE “ loss of remission ” ( together with DATE solitary confinement ) . Grave or especially grave offences were adjudicated on by ORG which could order forfeiture of a maximum of DATE remission for a grave offence ( together with DATE solitary confinement ) or an unlimited forfeiture of remission for an especially grave offence .

Loss of remission was initially considered in domestic law to amount to nothing more than the loss of a privilege ( see , for example , PERSON v. DATE ] CARDINAL King 's Bench CARDINAL ) . By DATE , however , the NORP courts had rejected that idea : whether or not it could be said , under the prevailing statutory framework , that remission was a privilege or a right , prisoners were told their earliest release date on arrival in prison and could expect , subject to forfeiture being ordered , release on that date . Forfeiture of remission had the effect of causing the detention to continue beyond the period corresponding to that legitimate expectation ( see PERSON Hull ORG , ex parte PERSON and Others [ DATE ] CARDINAL All England Law Reports CARDINAL , and PERSON and PERSON , Prison PERSON ( second edition , DATE ) ) .

In DATE the power of ORG to award unlimited forfeiture of remission was removed .

The Prior Report on ORG ( DATE ) recommended that there should be an effective appeal process where issues of personal liberty were at stake and that there should be a right of appeal to a manifestly independent tribunal where there was any significant forfeiture of remission .

In DATE the distinction between offences , grave offences and especially grave offences was removed and the maximum loss of remission was reduced to DATE for any CARDINAL offence .

Lord PERSON 's report on prison disturbances ( DATE ) recommended that governors ( as opposed to ORG ) should continue to adjudicate on disciplinary offences and that criminal offences should be referred to the criminal courts . The report recommended that the governor 's order be limited to a maximum of DATE loss of remission and that there should be more recourse to alternative punishments such as the loss of facilities and privileges . It was suggested that the initial decision should be taken by a governor , with a right of review by an area manager , and with an appeal thereafter to a complaints adjudicator .

LAW DATE ( “ the DATE LAW ) took away the disciplinary jurisdiction of ORG , allocating it to prison governors . It also introduced a new framework for determining the period of a sentence which would be served in custody . The concept of remission which would result in early release of prisoners prior to the expiry of their sentence was abolished . In its place , a new regime was created which distinguished between those prisoners sentenced to less or DATE imprisonment ( short and long - term prisoners respectively ) .

Section CARDINAL(CARDINAL ) of the DATE LAW provides that , as soon as a long - term prisoner has served CARDINAL of his sentence , it shall be the duty of the Secretary of ORG to release him on licence . Section CARDINAL(CARDINAL ) puts the same obligation of release on the Secretary of ORG as regards short - term prisoners who have served CARDINAL of their sentences : release of the latter category of prisoner is unconditional if the original sentence was for a term of DATE and is on licence if the original sentence was for DATE imprisonment .

In addition , section CARDINAL of the DATE Act provided as follows for the award of “ additional days ” to a prisoner found guilty by the governor of disciplinary offences :

“ ( CARDINAL ) Prison rules , that is to say , rules made under LAW , may include provision for the award of DATE

( a ) to short - term or long - term prisoners ; or

( b ) conditionally on their subsequently becoming such prisoners , to persons on remand ,

who ( in either case ) are guilty of disciplinary offences .

( CARDINAL ) Where DATE are awarded to a short - term or long - term prisoner , or to a person on remand who subsequently becomes such a prisoner , and are not remitted in accordance with prison rules –

( a ) any period which he must serve before becoming entitled to or eligible for release under this Part ; and

( b ) any period for which a licence granted to him under this Part remains in force ,

shall be extended by the aggregate of DATE . ”

The highest number of DATE which could be awarded by the governor was DATE , the same maximum period as recommended by Lord PERSON 's report in DATE .

However , the Prison ( Amendment ) Rules DATE ( ORG no . ORG , which came into force on DATE ) increased the maximum award of DATE to CARDINAL for each offence ; the maximum cellular confinement was increased to DATE and the maximum forfeiture of privileges was increased to DATE ( Rule CARDINAL(CARDINAL ) of FAC ) . An award of DATE could never extend beyond the length of the original sentence imposed by the trial court .

R. v. Governor of ORG , ex parte PERSON ( no . CARDINAL ) ( [ DATE ] CARDINAL Weekly Law Reports CARDINAL ) concerned a short - term prisoner 's detention beyond the statutory release date because of an erroneous calculation of the release date . ORG found detention beyond that statutory release date to be unlawful and awarded damages for false imprisonment . Lord Justice PERSON noted that , under section DATE of the CARDINAL Act , DATE could be added on to the core period foreseen by section CARDINAL(CARDINAL ) so that the date therein envisaged was not absolute , but was DATE that could be affected by decisions made by the governor under section CARDINAL of the CARDINAL Act . Lord Justice Judge pointed out that :

“ The discretionary aspects of earlier arrangements for remission and parole were altered by the [ CARDINAL Act ] . As a ' short - term ' prisoner within section CARDINAL(CARDINAL ) of the [ CARDINAL Act ] , subject to an award of DATE in custody for disciplinary offences , the appellant was entitled to be released on licence as soon as she had served CARDINAL of the sentence imposed by the court . Therefore authorities such as ORG and Winter [ DATE ] CARDINAL KB CARDINAL , based on the principle that there was no entitlement to remission , cease to be relevant ...

The order of the court justifies the detention . Nevertheless , the prisoner is entitled to be released immediately the sentence has been completed . The method of calculating the date of release depends on statutory provisions which must be applied correctly , that is , correctly in law . ”

ORG ( [ CARDINAL ] CARDINAL Weekly Law Reports CARDINAL ) later dismissed an appeal and confirmed the finding of false imprisonment and the award of damages .

In NORP v. the Secretary of ORG for ORG , ex parte PERSON , PERSON and GPE ( judgment of ORG of DATE ) , the appellants argued that LAW should apply to prison disciplinary proceedings , referring , inter alia , to the changes brought about by LAW . ORG , in a judgment delivered by Lord Chief Justice PERSON , held , in particular , as follows :

“ Section CARDINAL(CARDINAL ) of the DATE Act provided a power to make prison rules which included provision for the award of DATE but section ORG ) makes it clear that where DATE are awarded to a prisoner DATE are aggregated with the period which would otherwise have to be served before the prisoner is released on licence . ...

The new statutory framework properly understood is not fatal to the cases advanced by the appellants . Section CARDINAL merely gives their case its proper perspective . The awards of DATE to be served by each of the appellants did not have the effect of adding to their sentence . It was not a fresh sentence of imprisonment . Their effect was to postpone the appellant 's release on licence . The awards clearly had a practical effect so far as the appellants were concerned and that practical effect was to postpone their release . But there was no question of their sentence being increased as a matter of law . DATE could not be imposed so that they extended the actual sentence , which the appellants were serving , and the sentence passed by the court was the justification for the appellant 's detention for the purposes of Article CARDINAL ) [ of LAW ] . ”

The judgment went on to apply “ the PERSON criteria ” ( see PERSON and Others v. the GPE , judgment of DATE , Series A no . CARDINAL ) . It noted that the domestic categorisation of the relevant offences was not criminal but disciplinary . It was held , inter alia , that LAW did not apply to proceedings concerning a penalty of DATE for self - administration of a controlled drug or failure to prevent the administration of a controlled drug by another person contrary to LAW ) of the Prison Rules DATE . It was found that the offence of which the prisoner was found guilty did not precisely replicate any offence contrary to the criminal law and that “ the power of punishment ” was not disproportionate for a disciplinary offence , although it was considered close to the borderline .

This document , entitled “ Prison discipline and LAW Guidance on the use of DATE ” , provided guidance in GPE and GPE on the implications of LAW DATE for the conduct of adjudications and for awards of DATE . In its relevant parts , it provided as follows :

“ CARDINAL . Disciplinary proceedings in prisons require swift hearings and a speedy process to maintain discipline and order . They are not adversarial and the nature of the decision is an administrative public law decision rather than CARDINAL which resolves a dispute between CARDINAL parties . Domestic LANGUAGE law has distinguished prison disciplinary proceedings from criminal proceedings when deciding the procedural standards necessary for fairness . [ ORG Rights ] case - law confirms this view .

NORP However , the fact that the [ NORP Convention on Human Rights ] will not in general apply to disciplinary proceedings does not mean that there is not , in theory , a risk it could apply in certain circumstances . ...

's release and the length of the prisoner 's sentence may all be material to the proportionality of the punishment . ...

The imposition of DATE is generally the heaviest of the range of punishments available to adjudicators and should be used accordingly , in targeted fashion . It is not possible to give an exhaustive list of the types of offence where DATE might be appropriate ; much will depend upon the circumstances of the individual case . The following , however , are examples where DATE may be particularly appropriate following a finding of guilt at adjudication .

( a ) Cases which would have been referred to the police but for the wishes of the victim .

( b ) Serious assaults and assaults on staff .

( c ) Escapes , attempted escapes and absconds .

( d ) ORG offences , particularly involving Class A drugs .

( e ) Concerted or persistent acts of indiscipline .

NORP ... the number of additional days imposed must be proportionate to the aim of securing good order and discipline in the prison . In making this decision , the governor will consider the same factors as those set out in paragraph CARDINAL .

Adjudicators should be particularly careful before imposing a large number of DATE . Overall , it should be extremely rare for punishments of DATE to be made . As a guide , in DATE , PERCENT of punishments of DATE were for DATE .

For more serious cases , adjudicators must ensure that they have fully considered the alternative of referring the matter to [ the ] police ... Only if this is not possible in the circumstances or there are very good reasons where a disciplinary punishment is more appropriate ... should adjudicators use the disciplinary procedure instead . ”

Introduced following the delivery of the ORG 's judgment in the present case , this statutory instrument came into force on DATE to amend LAW DATE . Its explanatory note reads as follows :

“ These Rules amend LAW DATE by providing for an adjudicator , approved by the Secretary of ORG , to inquire into charges of serious offences against discipline set out in those Rules . Where the governor determines that a charge is sufficiently serious , he must refer it to the adjudicator , who is to inquire into the offence no later than CARDINAL days after it has been referred . At an inquiry into a charge that has been referred to the adjudicator , the prisoner who has been charged is given the opportunity to be legally represented . If the adjudicator finds a prisoner guilty , he has the power to impose upon him any punishment which the governor can impose , and can also impose an award of DATE to be served in prison . These Rules also remove from the governor the power to impose DATE as a punishment on a prisoner found guilty by him , and add to his powers in certain other respects . ”

In practice , adjudicators are district judges who visit prisons on a regular basis .

This statutory instrument also increased the maximum cellular confinement which could be awarded by governors to a period not exceeding DATE and added “ removal from his wing or living unit for DATE ” as a further punishment available to them .

The instruction referred to advice received by ORG to the effect that when DATE were imposed the proceedings arguably amounted to the determination of a criminal charge so that they should be held before an independent person rather than a ORG employee . ORG had been recently advised that the risk of a successful challenge under the Convention to the use of DATE was greater than previously thought .

Accordingly , governors and others acting as adjudicators in disciplinary proceedings against prisoners in NORP prisons were required to , inter alia , suspend awarding DATE as from DATE . The relevant ministers had taken into account legal advice and advice from ORG , the latter based on consultation with governors , to the effect that ceasing to impose DATE detention should not have significant operational or management implications for establishments . It was noted , in this respect , that the awards of DATE detention had declined significantly in DATE . The judgment of ORG in the present case would be examined when delivered and it would be of relevance to the ministers and ORG in deciding whether the suspension should be permanent .

The instruction attached a series of questions and answers . In response to the question whether the changes would increase indiscipline , the document noted :

“ Figures show that the use of ADAs [ DATE awards ] has been falling steadily in DATE , Also , ADAs and LOR [ loss of remission ] have never been available for life prisoners , yet this does not seem to have caused any disciplinary problems . There is a wide range of other punishments and of management measures available to deal with indiscipline . In the most serious cases , that is where potentially criminal activity is involved , there also remains the option of referring the matter to the police for possible criminal charges . ”

Section CARDINAL(CARDINAL ) of the Prison Act DATE provides :

“ Rules made under this section shall make provision for ensuring that a person who is charged with any offence under the rules shall be given a proper opportunity of presenting his case . ”

The above provision is implemented through Rule CARDINAL(CARDINAL ) of the Prison Rules :

“ At an inquiry into a charge against a prisoner , he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case . ”

The courts have interpreted Rule CARDINAL ) as conferring a power on the governor to grant , or to refuse , a prisoner legal representation at an adjudication hearing . In NORP v. the Home Secretary , ex parte GPE and Others ( [ DATE ] CARDINAL Queen 's Bench CARDINAL ) , ORG pointed out that there is no right to legal representation for prison adjudications and that its grant in a particular case should be determined by reference to certain factors . Those factors were stated to include the seriousness of the charge and of the potential penalty ; whether any points of law are likely to arise ; the capacity of the particular prisoner to present his own case ; procedural difficulties ; the need of the prison authorities for reasonable speed in making their adjudications ; and the need for fairness as between prisoners and as between prisoners and prison officers .

ORG endorsed the factors outlined in GPE and Others in Hone and PERSON ORG ( [ DATE ] Appeal Cases CARDINAL ) . Lord Bridge found it difficult to imagine that “ the rules of natural justice would ever require legal representation before the governor ” . Lord PERSON considered that :

“ ... it is easy to envisage circumstances in which the rules of natural justice do not call for representation , even though the disciplinary charge relates to a matter which constitutes in law a crime , as may well happen in the case of a simple assault where no question of law arises , and where the prisoner charged is capable of presenting his own case . To hold otherwise would result in wholly unnecessary delays in many cases , to the detriment of all concerned including the prisoner charged , and to a wholly unnecessary waste of time and money , contrary to public interest . Indeed to hold otherwise would not only cause injustice to prisoners : it would also lead to an adventitious distinction being drawn between disciplinary offences which happen also to be crimes and those which happen not to be so , for the punishments liable to be imposed do not depend on any such distinction . ”

In a letter dated CARDINAL DATE , ORG supplied the numbers of prison adjudications which took place DATE , those in which the charges were considered proved and those where DATE were awarded . The approximate figures are set out below :

NORP That letter also pointed out that DATE there were CARDINAL requests for legal or other representation , of which CARDINAL were granted .

The judgment in NORP v. PERSON , PERSON and GPE , cited above , noted that CARDINAL adjudications had taken place in DATE , in which the charges were proved in CARDINAL cases and a total of DATE were awarded .


Violation of Art. 6-1 with regard to access to court;No separate issue under Art. 6-1 with regard to the length of the proceedings;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

On DATE the applicant 's restaurant and adjacent house in GPE ( GPE ) were destroyed as the result of an explosion .

On DATE the applicant filed an action for compensation with ORG ( PERSON ) , against GPE .

On DATE the court pronounced judgment awarding the applicant CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP PERSON ( HRK ) in compensation together with interests and costs .

On DATE ORG introduced a change of LAW which provided that all proceedings concerning actions for compensation for damage resulting from terrorist acts were to be stayed pending the enactment of new legislation on the subject and that before the enactment of such new legislation compensation for damage resulting from terrorist acts could not be sought . So far the NORP authorities have not enacted any new legislation regulating the matter .

On DATE the first instance judgment adopted on DATE was sent to the parties .

On DATE GPE appealed against the judgment of DATE asking the court to stay the proceedings pursuant to the above changes in law .

On DATE the ORG ( PERSON u GPE ) quashed the first instance judgment and remitted the case for a re - trial . It found that the first instance court had not adequately assessed whether the applicant 's property was destroyed by an act which might be deemed to be a terrorist act .

On DATE ORG decided to stay the proceedings in accordance with the above legislation .

On DATE the applicant appealed against that decision . He claimed that LAW was applied retroactively in his case .

On CARDINAL DATE ORG upheld the first instance decision .

On DATE the applicant filed a constitutional complaint challenging the constitutionality of the lower courts ' decisions to stay the proceedings . He also asked ORG to institute proceedings in order to examine the constitutionality of LAW .

On DATE ORG declared the applicant 's complaint inadmissible . It found that the applicant had filed a constitutional complaint against ORG decision of CARDINAL DATE which upheld ORG decision to stay the proceedings concerning the applicant 's claim for compensation . However , according to LAW on FAC an applicant may file a constitutional complaint only against a final decision concerning any proceedings . The court found that the contested decision was not final since it represented a mere procedural decision and since the proceedings were still pending . It did not give any reply to the applicant 's request to institute proceedings in order to examine the constitutionality of the contested laws .

NORP The relevant part of LAW ( Zakon o obveznim odnosima ) reads as follows :

“ Responsibility for loss caused by death or bodily injury or by damage or destruction of another 's property , when it results from violent acts or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . ”

The relevant parts of LAW ( Zakon o izmjenama i dopunama PERSON o obveznim odnosima – Official Gazette no . CARDINAL/CARDINAL ) read as follows :

“ Section CARDINAL of LAW ( the Official Gazette nos . CARDINAL , CARDINAL and DATE ) shall be repealed . ”

“ Proceedings for damages instituted under LAW shall be stayed .

The proceedings referred to in sub - section CARDINAL of this section shall be continued after the enactment of special legislation governing responsibility for damage resulting from terrorist acts . ”

The relevant part of LAW provides :

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”


The applicant [ Mr PERSON ] is a NORP national who was born in DATE and lives in GPE . He is a regular member of the armed forces ( a ship 's captain ) .

He was represented before the ORG by PERSON , of ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

In an order ( auto de procesamiento ) of CARDINAL DATE investigating judge no . CARDINAL of ORG ( juez togado militar central ) charged the applicant and another member of the armed forces with an offence against the ORG ( misappropriation for private use of fuel belonging to the navy , in breach of LAW ) . The investigating judge found , in particular , that there was evidence to warrant prosecution for an offence against the ORG .

The applicant appealed against the order to ORG which , in a decision ( auto ) of DATE , dismissed the appeal and upheld the impugned order . CARDINAL of the judges on the bench that heard the appeal was D.R.G. , a member of the armed forces ' legal corps ( vocal togado ) . In its decision the court pointed out the following :

“ According to the case - law established by ORG ... , an order by means of which a person is charged is a provisional judicial decision of a purely procedural nature by which an accusation is made , and which must subsequently be the subject of adversarial proceedings and a judgment . Such a decision does not mean that the person charged is guilty , nor is it binding on the courts , which may decide not to proceed with the charges if the evidence on which they were based has ceased to exist . ”

Examining the facts of the case in which the applicant was involved , the court added :

“ ... and , finally , the loss to the armed forces ' budget , rationally amount to evidence of wilful conduct on the part of the accused , who was involved in acts of that nature . That conduct may at this initial stage be regarded as constituting the offence set out in LAW , without prejudice to such legal classification and reasoning as may subsequently be adopted when the merits are examined and a final judgment is delivered on the issue of guilt or innocence , regard being had to the fact that an order by which a person is charged is merely a provisional judicial decision of a procedural nature . ”

After the proceedings ( juicio oral ) began in ORG , P.G.B. was appointed as reporting judge and took various investigative measures .

On CARDINAL and DATE the trial was held in public at ORG . The bench consisted of CARDINAL judges : the presiding judge , D.R.G. and P.G.B. as judges from the armed forces ' legal corps ( vocales togados generales auditores ) , and CARDINAL other members ( vocales militares ) . In a judgment delivered on DATE ORG found the applicant guilty as charged , sentenced him to DATE imprisonment and ordered him to pay damages to the ORG authorities in respect of his civil liability for an offence against the ORG .

The court held , inter alia , that the guilty verdict against the applicant had been based on a whole body of evidence that had been examined during the investigation and corroborated or adduced at the hearing DATE in particular , direct evidence such as expert reports , witness statements and documentary evidence .

The applicant appealed on points of law to ORG . He submitted that the bench that had tried him could not be regarded as an impartial tribunal , firstly because D.R.G. had previously been a member of the bench that had ruled on his appeal against the order of CARDINAL DATE in which he had been charged , and secondly because P.G.B. had , as the reporting judge , taken various investigative measures once the case had been sent for trial . The applicant also complained that the evidence had been assessed arbitrarily and that some of the prosecution evidence gathered during the investigation had not been produced at the trial but had been taken into consideration by the court , in breach of the adversarial principle and the presumption of innocence .

In a judgment of DATE ORG ) dismissed the appeal .

With regard to the allegation that the trial court had been biased because D.R.G. had been one of the judges , ORG noted in its judgment that , according to the provisions of domestic law concerning the grounds on which judges might withdraw or be challenged and the relevant case - law , the fact that a judge had taken part in the adoption of a decision dismissing an appeal against a decision to bring charges could not in any way be regarded as an investigative measure capable of impairing ( contaminar ) the objective impartiality of the court which had to determine whether the person charged was guilty . As to the allegation that the court had been biased because P.G.B. , as the reporting judge for the trial court , had taken certain investigative measures at the request of the prosecution , ORG observed that the judge had discharged the duties entrusted to him by law as the court 's representative with a view to ensuring that direct evidence was obtained and that the court had direct knowledge of the investigative measures that needed to be carried out before the hearing .

In respect of the complaint that there had been a breach of the adversarial principle and the presumption of innocence , ORG noted that at the hearing the applicant , who was assisted by his counsel , had examined the co - defendants , the witnesses and the experts and had put such questions as he had considered necessary for his defence . ORG found that his guilt had been established by the trial court on the basis of a whole body of evidence examined during the trial , in accordance with the principle that proceedings should be adversarial and public .

The applicant then lodged an amparo appeal with ORG , relying on his right to a fair hearing by an independent and impartial tribunal and on the principle of presumption of innocence ( LAW ) .

In a decision ( auto ) of DATE , served on the applicant on DATE , ORG dismissed the appeal . As regards the complaint that the CARDINAL judges in question had not been impartial , the court said that the applicant had been told the names of the judges on the trial bench ( and thus those of the CARDINAL judges in issue ) and could have challenged them ; having failed to do so , he had not exhausted domestic remedies . As to his other complaints , ORG held that at the public hearing in ORG the defendants had appeared and given evidence , witnesses had been heard and various experts had given their opinions ; the principle of presumption of innocence had been observed throughout .

LAW provides :

“ CARDINAL . Everyone shall have the right to effective protection by the judges and courts in the exercise of his rights and his legitimate interests ; in no circumstances may there be any denial of defence rights .

Similarly , everyone has the right to [ be heard by ] an ordinary judge determined beforehand by law ; everyone has the right to defend himself and to be assisted by a lawyer , to be informed of the charge against him , to have a trial in public without unreasonable delay and attended by all the safeguards , to adduce the evidence relevant to his defence , not to incriminate himself or to admit guilt and to be presumed innocent . ... ”

The relevant provisions of Institutional Law no . DATE of CARDINAL DATE concerning grounds for challenge read as follows :

“ Judges , presiding judges and other members of military courts ... shall not take part in judicial proceedings if any of the grounds set out in section CARDINAL applies ; if they do take part , [ they ] may be challenged . ”

“ [ A judge ] shall withdraw or , if he does not do so , may be challenged on any of the following grounds :

if he has acted as counsel for or has represented CARDINAL of the parties , has as a lawyer drawn up a report in the proceedings or similar proceedings , or has taken part in the proceedings on behalf of the prosecution or as an expert or ordinary witness ;

if he is or has been a complainant against or accuser of CARDINAL of the parties ; a member of the armed forces who has merely processed the ... complaint initiating the proceedings shall not come within this subsection ;

if he has taken part in the same proceedings in another capacity . ”

If the court or the judge considers that there is no justification for withdrawal , it or he shall order the person who has offered to withdraw to continue in the case , without prejudice to the parties ' right of challenge .

No appeal shall lie against such an order . ”

Section CARDINAL provides that challenges must be made at the beginning of the proceedings or as soon as the person making the challenge becomes aware of the ground for challenge and in any event at least TIME before the hearing unless the ground comes to light subsequently .

With respect to orders by means of which an accused is charged ( auto de procesamiento ) and to appeals against such orders , the LAW provides :

“ Where there is reasonable evidence of guilt on the part of CARDINAL or more identified persons , the investigating judge shall charge them ...

The charges shall be brought by an order [ auto ] , in which shall be mentioned the punishable acts the accused is alleged to have committed , the presumed offence constituted by those acts and the [ relevant ] statutory provisions ... followed by the charges and the measures relating to the accused 's release or detention pending trial ... ”

“ ... The accused and the other parties may lodge an appeal , which shall have no suspensive effect , against the order by means of which the accused is charged within DATE of [ its ] being served ... ”

“ ... if the appeal against the order by means of which the accused is charged is allowed ... , an order shall be made for the compiling of a separate case file ... and the issue of a comprehensive certificate concerning the impugned order and all the items which the judge considers necessary to include in the case file or which were referred to in the initial pleading on appeal . ”

In a judgment delivered on DATE ORG gave a ruling on the circumstances in which a judge could be considered to have taken part in the same proceedings at an earlier stage for the purposes of a challenge under section DATE ) of ORG . It held , inter alia :

“ A challenge to a judge [ vocal ] of a military court on the eleventh ground enumerated in section CARDINAL of ORG is only valid if the judge has taken investigative measures in connection with the case ... The mere fact of having dismissed an appeal against an order by means of which an accused is charged – a decision from which the only inference to be drawn is that the court does not disagree with the investigating judge 's assessment of whether there is reasonable evidence of the accused 's guilt – may not in any circumstances be regarded as an investigative measure capable of impairing the court 's objective impartiality ... ”


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and is currently detained in ORG , GPE .

On DATE , at around lunch time , an argument broke out between the applicant and ORG in a residential street . The applicant had been trying to park a car he was driving and had collided with a parked car which belonged to FAC Within TIME of the dispute , a third man , ORG , arrived at the scene equipped with a loaded shotgun and shot PERSON in the back of the head . PERSON survived but suffered permanent brain damage .

The ORG case was that ORG had been summoned to the scene by the applicant and another co - accused , GPE , using a mobile telephone belonging to GPE The applicant was charged with attempted murder and making threats to kill . The applicant denied the charges , alleging that he had left the scene at an early stage and gone to a neighbouring house . He disputed allegations that he had played any part in summoning ORG

The ORG 's evidence regarding the alleged phone calls came from a number of sources . They pointed to the fact that the applicant was the party involved in the original dispute and that , according to witnesses , he had made threats of violence and of death . An important part of the ORG case involved video recordings from closed circuit television ( ORG ) cameras near the scene . From a combination of video recordings and mobile telephone records for GPE 's telephone , the ORG contended that the applicant could be seen making certain calls . There was also eye witness evidence of him making CARDINAL of the critical calls . In total , the ORG case was that CARDINAL relevant calls were made from GPE 's mobile telephone to ORG or CARDINAL of his associates .

The applicant 's case at trial was that he had made no calls on ORG 's mobile telephone . He accepted that eye witness evidence and ORG recordings demonstrated that he had used a telephone at certain points . However , he said that he was a drug dealer using his own telephone and that the calls were made for his own criminal purposes and were nothing to do with the summoning of PERSON As regards CARDINAL part of the ORG footage , the applicant denied the ORG contention that it showed him making a call at a relevant time .

A compilation of the ORG footage was shown a number of times during the trial . It was played on specialist digital equipment , which was more sophisticated than an ordinary video recorder , specially installed for the trial . It had a number of facilities , including a better capacity to freeze frames , to step forwards and backwards from frame to frame and to coordinate views of different cameras at any particular moment . The machine was operated by a detective constable , Officer M , who had been specially instructed how to use it . Officer M was a member of the investigating team of police officers which had conducted the inquiry into the applicant 's case . He was , formally speaking , a witness in the case in the sense that he had made CARDINAL single paragraph statements recording taking possession of some of the ORG tapes and had made an uncontroversial statement relating to the taking of a mouth swab sample for DNA analysis from one of the other accused in the applicant 's case . Over the period of the trial , which lasted DATE , he had made his services available not only at the trial itself but also to the ORG and the defendants outside the court .

There was some early discussion about the possibility that the jury would wish to view the recordings after they retired . Leading counsel for the applicant directed the judge 's attention to short notes in ORG 's Criminal Pleading , Evidence and Practice , an authoritative text on ORG practice and procedure , on the replaying of various different kinds of recording which may figure in trials . The matter was left that there was no reason why the recordings could not be taken into the jury room and played there by the jury if required .

At the conclusion of his summing - up , the judge told the jury that should they wish to view the recordings again , they only had to ask . The following dialogue took place :

“ Judge : ' Ladies and gentlemen , it may be that you will want to see the videos again . Have arrangements been made for the jury to see them in their room ? '

Counsel for the prosecution : ' ... It is impossible , as I understand it , in fact , to take this into the jury 's room . There are , therefore , either CARDINAL options : either to watch a ORG video on the normal equipment in their room , or alternatively , there is the higher quality– '

Judge : ' The jury must watch what has been shown in court . '

Counsel for the prosecution : ' In that case , I am afraid the position must be that as and when the jury require it , they will have to come back and see it in court . '

Judge : ' There you are . Any time you want to see the video , you can pass a note ... ' ”

The jury subsequently retired . On DATE of their deliberations , they indicated their wish to start reviewing the video evidence in the afternoon . Counsel were advised of the jury 's request and the court convened with junior counsel for the applicant among those attending . The following discussion ensued :

“ Counsel for the prosecution : ' ... the only issue that arises as a result of the ORG request is who exactly is present in court when they view the material . It is a matter that we have discussed between counsel , and of course , subject to your Lordship 's view , I think the general view is that if they are able to watch it on their own , it would be much more constructive – if counsel and your Lordship were not present . In other words , if this was an extension of their jury room– '

Judge : ' And then we would have – what – just the officer working the machine ? '

Counsel for the prosecution : My Lord , that is the only outstanding issue , and I am afraid I have not had an opportunity to speak to [ Officer M ] – who , as your Lordship knows , is the man in charge of DATE as to whether it would be possible for the jury to be shown very briefly how to operate the machinery , or whether that is unrealistic . '

Judge : ' I should imagine that it is PERSON '

Counsel for the prosecution : ' In which case I understand– '

Judge : ' I mean , you have to go backwards and forwards , and you have to catch particular frames , and I think you will probably need [ Officer M ] – '

Counsel for the prosecution : ' My Lord , I am inclined to agree , in which case it would be my suggestion , on behalf of the ORG , that he remains , and at their instruction operates the machinery– '

Judge : ' And does nothing else but to operate the machinery– '

Counsel for the prosecution : ' Indeed – and , of course , makes no communication to them or to anyone else – '

Counsel for GPE : ' Except where they will want to go backwards or forwards – '

Counsel for the prosecution : ' Except , of course , to talk to them about operating the machinery . '

Judge : ' Does anyone have any objections to the court being cleared , along with the defendants and the public gallery , and simply leaving [ Officer M ] there DATE and in that case , I do not think I need ask the jury what they want to see . '

Counsel for the prosecution : ' My Lord , no . '

Judge : ' That is probably much better . '

Counsel for the prosecution : ' Indeed . Thank you very much . '

Judge : ' Thank you . Does everybody agree ? '

Counsel for the prosecution : ' My Lord , yes . '

Counsel for ORG My Lord , yes . '

Counsel for GPE : ' My Lord , yes . '

No assent was recorded from junior counsel for the applicant but no objections were raised to the course of action proposed .

The judge instructed the jury to return and directed them as follows :

“ Ladies and gentlemen , having discussed this matter with counsel , what we are going to do is this : we are going to leave [ Officer M ] in this court with you , and he will play any part of the video that you have seen , and he will play it as you think fit . Remember that there is CARDINAL camera that operates DATE that sometimes you are viewing camera no . CARDINAL , and I think at other times camera no . CARDINAL . [ Officer M ] can not do anything other than operate the video machine , and there is to be no other communication with him DATE or any communication from him DATE than simply asking him to play you what you want to see – and I think it is probably better , because he was in court DATE and apart from discussing among yourselves , perhaps , what you want to see , any other discussion is in your jury room ... ”

The jury was left alone in the court room with Officer M at TIME to begin reviewing the video evidence .

As soon as leading counsel for the applicant , who had been engaged elsewhere during the earlier discussions with counsel regarding the viewing of the video recordings as the applicant 's trial had overrun , was informed of the course of action adopted , a request was made to reconvene the court at TIME The judge agreed to reconvene at TIME as he did not wish to interrupt the jury 's viewing of the video evidence . The jury spent TIME viewing the video recordings in the presence of Officer PERSON

When the court reconvened , leading counsel for the applicant directed the judge 's attention to various authorities , including ORG 's Criminal Pleading , Evidence and Practice , and the following discussion took place :

“ Counsel for the applicant : ' The court has , for all purposes , during TIME , whilst the jury have been reviewing the material , really been an extension of the jury room – '

Counsel for the applicant : ' And what has happened , in reality , is that an individual – he happens to be a police officer – an individual has , in fact , been within that jury room – '

Judge : ' There was instructions – '

Counsel for the applicant : ' I know that , but the difficulty with that is that the person who would normally be supervising “ the sanctity ” , if I can put it that way , of the jury – because , of course , normally there is no problem ; they are in their jury retiring room , and there is no individual who can come near them – '

Judge : ' No – '

Counsel for the applicant : ' Because the jury bailiff acts in accordance with their oath , as one expects , to prevent that – by my understanding is that TIME there has been no such person present . '

Judge : ' But are you saying that if one of the jury bailiffs had been present , that would be all right ? That would have caused other problems . '

Counsel for the applicant : ' My Lord , I am trying to see a way through it . This is a very unusual circumstance .

Judge : ' The unusual circumstance is this ... : we can not put the equipment in the jury room ' .

Counsel for the applicant : ' Yes , I understand that ' .

Judge : ' And that is the first problem ... The second problem is that the jury could not work the equipment . '

Counsel for the applicant : ' ... we understand that [ Officer M ] was able , in fact , to instruct another officer how to use this machine in pretty short order . '

Judge : ' Perhaps , but that is how it was presented to me – '

Counsel for the applicant : ' I am merely looking at the peculiar situation that arises here , and the simple fact of the matter , if we boil it down to first principles , is quite simply this : throughout TIME , there has , in fact , been an outsider in the jury retiring room . Your Lordship , of course , has given directions , and so be it . In fact , we can not inquire – certainly from the jury – as to whether that was followed , because we have no right – '

Judge : ' No , I agree – '

Counsel for the applicant : ' And the problem is this : that those who sit behind the dock are essentially put on trust in relation to the police officer 's lack of communication , and as soon as one recognises that , that , essentially , can not be right , because there is no reason why they should , as it were , feel that they can trust the police officer to that extent ... '

Counsel for the applicant then suggested that the police officer could continue to operate the equipment but that the presence of a jury bailiff in the jury room would ensure that there was no communication between the parties in light of the oath sworn by the jury bailiff to prevent any communication with the jury . The following exchange took place :

“ Counsel for the applicant : ' If the jury bailiff 's oath is that they are to stop any approach by any outsider to the jury , then any communication as to which section of tape the jury wish to see should , in fact , go through that conduit , and that can be in the same room , but the jury bailiff can ensure that there is no communication directly between the parties . '

Judge : ' ... You are suggesting that the police officer could operate the machinery – that is obviously the most convenient way to do it , even if there could possibly be other ways ... – but the jury bailiff has to be present ? '

Counsel for the applicant : ' Yes , because the jury bailiff , consistent with his or her oath , is duty bound to stop all communication , and essentially , that communication can only be complained of if it came from the officer . I am not saying for CARDINAL instant DATE for CARDINAL instant DATE that I have reason to believe that that has happened . '

Judge : ' No . '

Counsel for the applicant : ' I am merely looking at it from a point of principle ... The system ... has a safeguard within it , and normally that is the jury bailiff , who essentially guards the sanctity of the jury once they have retired . ”

The judge observed that there was a need to protect the privacy of the jury while preserving the integrity of the situation . However , he pointed out that “ the die had been cast ” and that :

“ ... either the procedure in the circumstances of this particular case is acceptable , or it is not . I am not sure I would want to change it now . I mean , counsel can consider all of this overnight – ”

He later continued :

“ ... I think I ought to state for DATE and I will DATE precisely what has happened , so that there can be no doubt about it . I will give counsel a chance to consider this matter ... it may be that it is just not sensible to do anything different , and if something has gone wrong , it has gone wrong – but I will give counsel a chance to consider the matter overnight , and if they want to suggest to me anything – alternative procedures – not very different than what we are doing – but any modified procedures , tomorrow I will listen to them . ”

It was then suggested by counsel for GPE that either the jury themselves be instructed how to use the equipment or that the video be played in open court in the presence of the judge . TIME , a solution was agreed which would allow the jury to operate the equipment themselves , with information provided to assist them in locating the part of the recordings that they wished to view . The judge subsequently advised the jury as follows :

“ We have reconsidered the procedure for your viewing [ the ORG ] footage , and in order to give you complete freedom for discussion amongst yourselves as you view that footage , we propose to give you the opportunity to do so in the absence of any other person .

What we propose is this : that you should be shown in a moment or CARDINAL in open court , with everybody present , how that equipment works , and you will then be left to it , and you will decide exactly who is to operate it , and what you wish to see .

Can I remind you that the tape is a composite tape containing footage from CARDINAL cameras . You will be given a sheet of paper – this one – containing an index of counter times , which show where footage from each camera begins , and what each camera is focused on ... If you have any problems in working the equipment , let me know , and I will reconsider the position ... ”

The jury subsequently viewed the video recordings alone for TIME . They continued their deliberations for the rest of DATE and into the following TIME .

On DATE , the jury found the applicant guilty of attempted murder and making threats to kill . He was sentenced to DATE in prison for attempted murder and DATE , to be served concurrently , for making threats to kill . His co - accused , GPE , was found not guilty .

The applicant appealed , arguing that the approach taken to the viewing of the video recordings amounted to a fundamental infringement of the integrity of the jury 's deliberations .

On DATE , ORG dismissed the applicant 's appeal . The court summarised the matter before it as follows :

“ [ Counsel for the applicant ] contends now , as foreshadowed in his submissions to the judge on his return to court , that the course taken amounted , however unwittingly , to a fundamental infringement of the integrity of the jury 's deliberations . He takes his stand on the point of principle . He contends that when somebody has retired , in effect , with the jury for a substantial period the conviction is , for that reason alone , unsafe . He adds , of course , that in this particular case it was a policeman who was in that position . ”

Discussing the role of Officer M , the court noted that :

“ The officer in question was a serving police officer . He was a member of the investigating team of police officers which had conducted the enquiry into this case . That was a team which had assembled the evidence , taken the statements , and no doubt planned the investigation . He was , formally speaking , a witness in the case , in the sense that he had made CARDINAL single paragraph statements recording taking possession of some of the close circuit television tapes and he had also made an entirely uncontroversial statement relating to the taking of a mouth swab sample for DNA analysis from CARDINAL of the other accused ... There was no hint of question about the formal statements that he had made . He had not been called as a witness . His credibility was not in any sense in issue . He was a member of the investigating team , but this was not a case in which there was any challenge to the credibility or propriety of any of the police officers . This was not that kind of a case . There was no challenge whatever to the manner of investigation . The issue at the trial was what the evidence , which the police were accepted properly to have gathered , did or did not prove . ”

During the proceedings , ORG had been invited to receive a witness statement from Officer M which had not been seen by the applicant or his lawyers . However , it concluded on this matter ( at paragraph CARDINAL ) that :

“ ... we do not think that we should be invited to receive partial evidence of what occurred . We are certainly satisfied that no further enquiry , for example of jurors , would in a case of this kind be proper ” .

The court examined the trial transcript and , despite the absence of any recorded assent from the applicant 's junior counsel to the jury 's viewing of the ORG footage in the presence of Officer M , stated that it had absolutely no doubt that assent to the presence of Officer M while the jury viewed the ORG footage was given by all counsel concerned , referring to the various , non - verbal manners of expressing assent in such situations .

The court agreed that a fair trial required that a jury should not be improperly influenced during its deliberations . The ORG observed that this was not a case where any bias , or apparent bias , was in question . The question was whether the conviction was safe , and in particular whether the unusual course taken meant that there was an unacceptable risk that the jury may have come under improper extraneous influence after the close of evidence in the case . The court accepted that this would include an inquiry into whether there was such appearance of that possibility that a fair minded , independent observer would conclude that there was a real danger or a real possibility of the jury 's decision being compromised by external influence .

The court found ( at paragraphs CARDINAL - CARDINAL ) :

“ In DATE our system proceeds upon the basis that jurors can be trusted to heed the very careful injunctions which are given to them throughout the trial process , to try the case upon the evidence heard in court alone and to be scrupulous in not discussing the case with anybody outside their number . Such directions are conventionally given by judges at the outset of the trial . They will have been foreshadowed before that by the instruction given to jurors on attending court . They are always repeated at later stages of the trial and they are invariably endorsed at time of separation , if that necessity arises . Quite apart from that , some jurors need transport for various reasons ; sometimes , but not always , of security . Drivers who are not operating under a bailiff 's oath , hotel staff where appropriate , and many others have dealings with jurors who are in retirement . Once again , the system proceeds on the basis that the jurors treat their task conscientiously and can be trusted to obey the oath that they have taken and not to allow any possibility of extraneous influence to compromise the integrity of their discussions as a group of CARDINAL . The experience of trial judges up and down the country demonstrates that in all but a tiny handful of cases that trust is well placed . Jurors approach what is a difficult and often anxious task with a remarkable sense of duty .

Now to accept the risk which thus arises of influence from someone unknown and unconnected with the case is not , of course , the same as positively to permit DATE person to be present with the jury after it has retired and whilst it is reviewing part of the evidence in the case . If , therefore , there were in this case an unacceptable risk of compromise to the integrity of the jury 's discussions , the modern practice as to the separation of juries during retirement would not necessarily save it . What the modern practice does , however , is to demonstrate the recognition of the fact that the safeguard of the integrity of the jury system lies in the respect that jurors have for the serious oath that they have taken , reinforced by the directions and warnings that they are given by trial judges , rather than in requiring formal rules attempting to insulate them from contact with the outside world . ”

The court noted that the approach adopted in the present case occurred with the authority of the judge and with the consent of all parties , although it emphasised that no question arose as to the applicant 's right to a fair trial being waived . Such a right could only be waived after a full investigation of the facts , in particular as to whether the applicant was fully apprised of the options available . However , the court considered that the agreement of the judge and counsel to the approach adopted was relevant when assessing whether a fair minded observer would have been of the view that there was , as a result of the decision , an unacceptable risk of the jury 's discussions being compromised .

The court further referred to the “ careful direction ” given to the jury that there was to be no communication between them and the officer operating the equipment except for the purposes of finding the correct place on the video . The court noted ( at paragraph CARDINAL ) :

“ He directed them , as we have recorded , that they were to preserve their own discussions of what they had seen until they were in private . That direction came on top of , we are quite sure , conventional directions to the jury of the kind which we have already mentioned that is to say as to the necessity to try the case on the evidence , and , on many occasions , to be scrupulous to avoid discussing the case with anybody outside their number . For the reasons which we have explained , the modern practice is to trust jurors to obey injunctions of this kind . ”

The court noted that the suggestion mooted before the trial judge of having a jury bailiff present demonstrated that there could be no absolute prohibition on contact with the jury . It further observed that there was no indication that the jury had been in any way inhibited by the presence of the police officer : they spent considerable time viewing the recordings . In any event , they continued to view the recordings alone TIME and clearly gave further consideration to them .

Finally , the court considered it significant that the jury had convicted the applicant of attempted murder but acquitted of attempted murder his coaccused , GPE , who was also directly affected by the ORG evidence . The significance was that :

“ ... the jury arrived , after prolonged deliberation , at discriminating verdicts . ”

The court concluded ( at paragraph CARDINAL ) :

“ We are satisfied that on the facts of this case , whether or not what occurred should have happened DATE and we will come to that in a moment – the hypothetical informed and fair minded observer would be aware of all the factors to which we have called attention and he would , we are satisfied , on the facts of this case not believe that there was a real danger , or a real possibility , that the jury 's deliberations had been improperly influenced by an external individual . ”

As to the approach adopted to the viewing of the video evidence as a matter of principle , the court stated ( at paragraphs CARDINAL ) that :

“ We add this . Although in this case we are satisfied that no harm was done , we firmly suggest that this is a course which is not followed in future with or without the consent of the parties . We are alive to CARDINAL considerations which troubled those who were concerned in this case and we understand how it came about that they resulted in the judge doing what he did with the consent of all the parties . We do not , however , think that anybody needed to be concerned that a jury would betray its thinking by identifying a piece of recording that it wanted to see again . Jurors commonly ask questions on all manner of topics . Some of them call for the jury to be reminded of a particular area of evidence . We do not believe that anybody who has any experience of jury trials supposes that anything can be read into the questions which a jury asks . Such a question may come from all jurors or from one . It may come because the evidence is regarded by someone as of great importance or it may come because the jury collectively thinks it is irrelevant but wants to be sure .

The second concern , however , namely that the jury ought to be able to view real evidence of this kind , and discuss it as it views it , is of much greater significance . The breadth of close circuit television coverage in places public and private is nowadays so extensive that juries are more and more presented with evidence of this kind . They also have recorded evidence very often in cases of recorded surveillance . There are other examples , of course , as well . It seems to us that it should be regarded as the plain duty of any party , ORG or defence , which is proposing to rely on such recorded evidence to ensure that there is provided equipment not only to play the recording in court , but also such as the jury can use in its retiring room during its retirement . They must , we are quite satisfied , as jurors be entitled to review precisely the same material as has been put in evidence in court . The judge in this case , we are satisfied , was absolutely right not to permit them to be given a substitute poorer quality ORG recording . If the necessary equipment can be provided in any particular court by agreement as to compatibility of machinery between parties and the court , then so much the better . The ultimate responsibility , however , for the presentation of evidence lies not with the court , but with the parties seeking to adduce it . It is not desirable that equipment should be provided which can only be used in open court , because although it may turn out to be possible to proceed as was done here on DATE of viewing , that will often not be possible , and in many courts the courtroom will by then be in use in the next trial . If in the last resort it really is the case that the recorded material simply is incapable of being played on any machinery which the jury can take into the retiring room -- and we take leave to doubt that that will ever be so with a little forethought -- then we think that the normal course should be followed and in that exceptional case any replaying for the jury during retirement ought to take place in open court . ”

On DATE , the applicant was denied leave to appeal to ORG .

In a judgment of ORG in PERSON [ DATE ] ORG CARDINAL , Lord Hope of PERSON endorsed a judgment of ORG , which took into consideration the jurisprudence of this Court , on the question of apparent bias and concluded 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 . ”

NORP In PERSON v Secretary of ORG for ORG and Another ( GPE ) [ DATE ] ORG CARDINAL , ORG gave further guidance as to the attributes of the “ fair - minded and informed observer ” . Lord Hope of PERSON explained ( at paragraphs CARDINAL ) that :

“ The observer who is fair - minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument . She is not unduly sensitive or suspicious ... Her approach must not be confused with that of the person who has brought the complaint . The ' real possibility ' test ensures that there is this measure of detachment . The assumptions that the complainer makes are not to be attributed to the observer unless they can be justified objectively . But she is not complacent either . She knows that fairness requires that a judge must be , and must be seen to be , unbiased . She knows that judges , like anybody else , have their weaknesses . She will not shrink from the conclusion , if it can be justified objectively , that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially .

Then there is the attribute that the observer is ' informed ' . It makes the point that , before she takes a balanced approach to any information she is given , she will take the trouble to inform herself on all matters that are relevant . She is the sort of person who takes the trouble to read the text of an article as well as the headlines . She is able to put whatever she has read or seen into its overall social , political or geographical context . She is fair - minded , so she will appreciate that the context forms an important part of the material which she must consider before passing judgment . ”

In Goby v Wetherill [ DATE ] CARDINAL PERSON , a civil case , the town sergeant , acting as an usher in the county court , had , through what was described as an excess of zeal , retired into the retiring room with the jury and remained there for TIME whilst they were considering their verdict . ORG held that the action vitiated the verdict , which could not stand .

In R v ORG [ DATE ] Crim LR CARDINAL , a criminal case , CARDINAL uniformed police officers acting as jury bailiffs had retired with the jury and remained there throughout the time when the verdict was being arrived at , apparently in ignorance of the fact that it was something that they ought not to do . ORG allowed an appeal against conviction , holding that the retirement of strangers with the jury during their deliberations was an irregularity which was difficult to cure , even if , as in that case , an assurance had been received from the foreman that the bailiffs had taken no part in the deliberations and had not influenced the members of the jury in their decision .

In R v PERSON ( DATE ) ORG R DATE , ORG upheld a conviction where the clerk of court had been instructed to go to the jury room and ask them to put a question in writing . The court concluded that it was satisfied that the clerk had not , himself , entered the jury room but :

“ Even if he had , we do not think that that would have been in itself an irregularity , because the court always has power to allow somebody to make a communication to the jury , if it is a communication proper to be made , and if it is made by the direction of the court . Everybody knows that the oath that is given to a jury bailiff is that he ' shall suffer no person to speak to them nor speak to them [ himself ] unless it be to ask whether they are agreed upon a verdict , without leave of the court ' . ”

In the subsequent case of R v PERSON ( DATE ) CARDINAL ORG R DATE , an important part of the evidence was in the form of audio recordings . With the authority of the judge and by consent of counsel , a scheme was devised to enable the jury to hear the tapes in their jury room . The jury were supplied with a loudspeaker in their room which was connected to the recording and transmitting equipment in the courtroom . Anyone from the defence or prosecution could sit in the courtroom and observe the proceedings . The technician in the courtroom who was in charge of the equipment had been sworn as a jury bailiff and when the jury required some part of the tapes to be played , the foreman of the jury would instruct the technician by CARDINAL - way radio . The court , dismissing the appeal against conviction , concluded that :

“ ... in the special circumstances of this case what was done was done by order of the court and with the consent of the parties . As matters exist at the moment we do not see what other method could easily , properly and practically have been adopted to overcome the difficulties which obviously existed . ”

Upon responding to a summons , jury members are sent a leaflet called “ Your Guide to Jury Service ” . The leaflet explains that jurors ' discussions are private and that jurors should not discuss any aspects of the trial with anyone other than fellow jurors . It sets out that the verdict must be that of the jurors alone and reminds jurors that their role is to reach a verdict on the evidence presented in the court room at trial . The leaflet also notes that it is an offence for anyone outside the jury to try and influence them .

Once selected for jury duty , jurors must swear an oath or affirmation that they will :

“ faithfully try the defendant and give a true verdict according to the evidence . ”

At the outset of the trial , the jury are conventionally given a direction to the effect that they must try the case on the evidence alone , which is what they hear in court . They are instructed that they must not discuss the case with family , friends or anyone else or conduct their own research into the case .

Section CARDINAL of the Juries Act DATE provides that a trial judge may allow a jury to separate at any time during a trial . Upon allowing the jury to separate the judge will normally re - emphasise that they must not talk about the case to anyone who is not one of their number .

Practice Direction ( ORG : Guidance to Jurors ) was issued on DATE . The practice direction contained the following extract :

“ IV.CARDINAL.CARDINAL Trial judges should ensure that the jury is alerted to the need to bring any concerns about fellow jurors to the attention of the judge at the time , and not wait until the case is concluded . At the same time , it is undesirable to encourage inappropriate criticism of fellow jurors , or to threaten jurors with contempt of court .

ORG should therefore take the opportunity , when warning the jury of the importance of not discussing the case with anyone outside the jury , to add a further warning . It is for the trial judge to tailor the further warning to the case , and to the phraseology used in the usual warning . The effect of the further warning should be that it is the duty of jurors to bring to the judge 's attention , promptly , any behaviour among the jurors or by others affecting the jurors , that causes concern . The point should be made that , unless that is done while the case is continuing , it may be impossible to put matters right . ”

Section CARDINAL(CARDINAL ) of the Contempt of Court Act DATE states that it is a contempt of court to obtain , disclose or solicit any particulars of any statements made , opinions expressed , arguments advanced or votes cast by members of the jury in the course of their deliberations .

In NORP v. PERSON , R v. PERSON and PERSON [ DATE ] ORG CARDINAL , ORG considered the implications of LAW on the common law rule that the court will not investigate the content of jury deliberations . Subsequently , Lord PERSON summarised the current position in R v. PERSON , R v. Mercieca [ DATE ] ORG CARDINAL ( at paragraph CARDINAL ) :

“ The principles of the common law relating to inquiry into the verdicts of juries and matters which may affect the propriety of the manner in which they reach their verdicts have been rehearsed in R v PERSON , particularly in CARDINAL of the opinion of Lord Hope of PERSON , and it is unnecessary for me to repeat what their Lordships have said there . It may nevertheless be helpful if I set out in a series of brief propositions how the law stands , prior to considering how a judge should approach a situation such as that encountered in the present case :

( CARDINAL ) The general rule is that the court will not investigate , or receive evidence about , anything said in the course of the jury 's deliberations while they are considering their verdict in their retiring room : PERSON v PERSON [ DATE ] CARDINAL PERSON CARDINAL , CARDINAL ... ; R v PERSON [ DATE ] CARDINAL Cr App R CARDINAL at CARDINAL ... ; R v PERSON , paragraph CARDINAL ...

( CARDINAL ) An exception to the above rule may exist if an allegation is made which tends to show that the jury as a whole declined to deliberate at all , but decided the case by other means such as drawing lots or tossing a coin . Such conduct would be a negation of the function of a jury and a trial whose result was determined in such a manner would not be a trial at all : R v PERSON , paragraph CARDINAL ...

( CARDINAL ) There is a firm rule that after the verdict has been delivered evidence directed to matters intrinsic to the deliberations of jurors is inadmissible . The ORG so held in R v PERSON , affirming a line of cases going back to PERSON v PERSON [ DATE ] CARDINAL PERSON CARDINAL and R v PERSON ( DATE ) CARDINAL ORG R DATE .

( CARDINAL ) The common law has recognised exceptions to the rule , confined to situations where the jury is alleged to have been affected by what are termed extraneous influences , e.g. contact with other persons who may have passed on information which should not have been before the jury : see such cases as R v PERSON [ DATE ] CARDINAL ORG R CARDINAL and R v Oke [ DATE ] Crim LR CARDINAL .

( CARDINAL ) When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors , judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner . This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence : R v ORG [ DATE ] CARDINAL WLR CARDINAL .

( CARDINAL ) Section CARDINAL(CARDINAL ) of ORG DATE is not a bar to the court itself carrying out necessary investigations of such matters as bias or irregularity in the jury 's consideration of the case . The members of the ORG who were in the majority in R v PERSON all expressed the view that if matters of that nature were raised by credible evidence the judge can investigate them and deal with the allegations as the situation may require : see the opinions of Lord PERSON at paragraphs CARDINAL ; Lord Hope of PERSON at paragraphs CARDINAL and CARDINAL ; Lord PERSON of PERSON at CARDINAL and CARDINAL ; and Lord PERSON of PERSON at paragraph CARDINAL . ”

A trial judge has a discretionary power to discharge a jury , before the jury has given its verdict , if he considers it necessary to do so in order to ensure a fair trial ( NORP v. PERSON and Others [ DATE ] EWCA Crim CARDINAL , at DATE ) .

A trial judge also has discretion under LAW of LAW DATE to discharge an individual juror for any reason , provided that the discharge of the juror does not result in the total number of jurors falling below CARDINAL .

Rule CARDINAL of LAW for GPE and GPE provides , in so far as relevant , that :

“ A barrister when conducting proceedings in ORG :

j ) must not suggest that a victim , witness or other person is guilty of crime , fraud or misconduct or make any defamatory aspersion on the conduct of any other person or attribute to another person the crime or conduct of which his lay client is accused unless such allegations go to a matter in issue ( including the credibility of the witness ) which is material to the lay client 's case and appear to him to be supported by reasonable grounds . ”


The applicant , Mr ORG , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE the applicant was arrested and questioned as a suspect in the context of criminal proceedings for robbery . Another person , LJ , was suspected of being his accomplice .

On DATE the Kaunas ORG ordered the applicant ’s detention on remand for DATE .

On DATE the court extended the term of his remand in custody for DATE .

On DATE the applicant ’s remand was varied by the decision of a prosecutor , and he was placed under house arrest .

On DATE the bill of indictment was confirmed , and the case was transmitted for trial .

On DATE the Kaunas ORG adjourned the trial as ORG had absconded .

On the same date the court ordered the applicant ’s bail - with the written obligation not to leave . It was indicated in the bail decision that appeal lay to ORG against that order , but the applicant did not appeal .

On DATE the court renewed the examination of the case against the applicant .

On DATE he was acquitted .

On DATE ORG dismissed the ORG appeal challenging the acquittal .

On DATE ORG rejected the ORG cassation appeal . That decision was final .