Communicated on 4 March 2014

FOURTH SECTION
Application no. 347/13
Tariq FAGAN and Michael FERGUS
against the United Kingdom
lodged on 19 November 2012
STATEMENT OF FACTS

The applicants, Mr Tariq Fagan and Mr Michael Fergus, are British nationals who were born in 1991 and 1985 respectively. Both applicants are currently detained in HMP Swaleside in Kent. They are represented before the Court by Mr C. Frederick of Hartnells Solicitors and Ms D. Buck of Edwins Solicitors, both of whom are lawyers practising in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1.  Background to the proceedings
The applicants, together with one other defendant, were charged with a number of offences, including kidnapping, false imprisonment and blackmail.
On 10 September 2010 a man named Andre Stephens had been forced into a blue van by a number of men and was driven around and beaten while demands for a ransom were made to his friends and family. His car was also stolen during the incident.
On 14 September 2010 Mr Stephens described one of his kidnappers in a statement to the police:
“The first guy that come to me, I would be able to recognise his face coz he’s the only face I actually got to see ... it would be hard for me to actually describe you his actual look. I’m no good at describing people’s features. The easiest way for me to explain it to you is he looks like an English rapper ... It’s like he had a kind of sucked in face. His eyes were kind of sucked in. Stubble ... black guy. He had a hat on ... hood up ... sunken cheeks and his eyes were kind of sunken. Full stubble. Slimmer than me. A bit shorter than me ... I am six foot three.”
On 23 September 2010 he compiled an E-FIT image which supposedly resembled the second applicant.
Mr Stephens’ car was found abandoned at the scene of an aggravated burglary on 24 September 2010. It had false plates, upon which four of the first applicant’s fingerprints were found.
On 26 November 2010 a driver delivering cigarettes was robbed by a man driving a blue van with the registration number X493 LBJ. It was subsequently discovered that on the evening of 10 September 2010 a blue Suzuki van with the registration number X493 LBJ had been photographed leaving central London (southbound) by the automatic number plate recognition system on Vauxhall Bridge.
On 7 December 2010 a seller who gave his name as Pablo Rowe advertised his blue van for sale on Gumtree. His description fitted that of the first applicant.
It also came to light that during the kidnap both applicants’ telephones were located similarly along the kidnap route, alongside that of Mr Stephens, which had been used by his kidnappers to make the ransom demand.
The first applicant was arrested on 21 December 2010 and attempted to destroy the SIM card from his mobile phone. The number plates from Mr Stephens’ car were recovered from his property.
On 2 March 2011 Andre Stephens attended a video identification (VIPER) procedure. The video ID parade was played from a DVD onto a television. After viewing the parade he asked to look a second time at numbers 2 and 3. He then indicated that although he couldn’t be one hundred per cent sure he would say number 3 was one of his kidnappers. On leaving the identification room, he said “I’m sure it was number 3”. On 18 March 2011 he gave a further statement saying that he knew it was number 3 who kidnapped him as soon as he saw him and he only asked to see number 2 again because he thought he might have been one of the other men in the van. Number 3 was the second applicant.
On 4 November 2011 the applicants were arrested for a non-residential burglary. A congestion charge receipt was discovered in the possession of the first applicant for a blue Suzuki Carry panel van with the registration X493 LBJ. It was registered to “Pablo Lowe” but the first applicant had insured it on 22 October 2010. The first applicant’s laptop also revealed a search for “Is my car wanted by police?”
2.  Preliminary ruling of 13 June 2011
In or around May 2011, Mr Stephens indicated that he no longer wished to give evidence due to fear of the applicants. He had been a willing and co‑operative witness until that point, but he claimed that he had received a series of phone calls indicating that the caller knew his personal details and those of close family members. He was explicitly threatened; in particular, he was warned not to give evidence and told that if he did negative consequences would follow for him and his family. He was visited by a Detective Constable who explained various forms of witness protection to him and warned him that he might be summonsed. Mr Stephens indicated that if that were so he would not say anything in court.
The Crown did not seek to summons him. Instead, it applied to adduce his evidence as hearsay pursuant to section 116 of the Criminal Justice Act 2003. The relevant evidence of Mr Stephens was comprised of an interview in which he set out the circumstances of the alleged offence; the identification evidence, in the form of a written statement; and a statement concerning the completion of the E-FIT.
In a decision dated 13 June 2011, the Crown Court Judge concluded, as a matter of fact, that Mr Stephens had been put in a state of extreme fear by one of the defendants or someone associated with them and with their knowledge and approval. He therefore found as a fact, to the criminal standard, that the defendants were associated with the threats to Mr Stephens. The judge also accepted that the issue between the Crown and the defence was primarily whether or not the defendants were concerned in the crimes against Mr Stephens. For that, the Crown relied very heavily on Mr Stephens’ evidence, which was the only evidence of the circumstances of the offences. Moreover, in the absence of any eyewitnesses, his (partial) identification of one of the defendants was very important. In fact, the judge accepted that Mr Stephens’ evidence “could, in a sense, be described as sole or decisive evidence”, although he also noted that it was not the only evidence that the Crown relied on.
The judge also noted that where a defendant had improperly put an important witness in fear, so that he was absent from the trial, the defendant should not be able to profit from the witness’ absence. He found this to be “a very important consideration”, before proceeding to consider the impact of Mr Stephen’s evidence and how it could be tested. With regard to the identification evidence, he observed that it was all captured on a DVD recording, on which the steps Mr Stephens went through in his identification process were very transparent and could be fully tested and assessed by a jury. Obviously the defence would not be able to ask him why he “firmed up” his evidence after leaving the identification room, but Mr Stephens had explained that in a statement. He therefore concluded that Mr Stephens’ evidence was reliable insofar as it was documented, reasoned, it could be tested, and it could be fully commented upon.
In light of the above, he concluded that the evidence was properly admissible under section 116 and it would be unfair not to admit it. Indeed, he was satisfied to the criminal standard that it would be fair to admit it, both under section 78 of the Police and Criminal Evidence Act 1984 and under the interests of justice test in the Criminal Justice Act 2003 (see below).
3.  The criminal trial
At the trial the judge gave a lengthy direction to the jury, explaining the law and summarising the evidence.
In particular, he directed the jury that:
“Nobody in this case had argued that [the kidnap] did not happen, or did not happen in the way that Mr Stephens has said. What is said in this case is that Mr Stephens never appeared in front of you in the witness box to give evidence.
What I have been reminding you about comes from the source of his ABE videoed interview very shortly after these incidents, plus a series of witness statements that he made to the police over the intervening months.
The first was played to you and you were able to see Mr Stephens on that, so you have at least had sight of him, and the others were read to you. But none of that was with the agreement of the defence; they wanted Mr Stephens here. As I have already told you, you must not speculate as to why he has not come to court. Speculation, I remind you because it is so important, involves guessing and you must not guess.
The fact is he has not been to court but his evidence is still in front of you and you can still act on it if you accept it. But clearly you may think the defence have been disadvantaged by the fact that Mr Stephens did not appear as a witness in front of you.
You will no doubt listen with interest as I did to the precise ways the defence say they have been disadvantaged by his absence and it really all hinges, does it not, on identification issues.”
The judge summarised the ways that the defence alleged that they had been prejudiced by Mr Stephens’ absence before concluding:
“Think of all those matters and of course if you think the defence has been prejudiced in any of those ways you will make full and proper allowance for it.”
On 8 and 11 July 2011 the applicants were convicted in the Crown Court by majority verdicts of a number of offences. The first applicant was convicted of kidnap, false imprisonment, blackmail and robbery and was sentenced to a total of ten years’ detention in a young offender’s institute. The second applicant was convicted of kidnap and sentenced to three years’ imprisonment. A third defendant was acquitted of all charges.
4.  The Court of Appeal proceedings
The applicants appealed on the grounds first, that the judge had erred in ruling that Stephens’ evidence could be read, and secondly, that the identifications by Stephens of the van linked to the first applicant and his description of the second applicant should not have been led once it was apparent his evidence could not be cross-examined upon. The second applicant also appealed against sentence.
The Court of Appeal dismissed the applicants’ appeal against conviction on 7 September 2012. In doing so, it noted that what went on during the identification procedures was before the jury in its totality by virtue of its recording. The Crown had also called all police officers and civilian employees present during the procedure and during the taking of Mr Stephens’ statement. In addition, it had relied on the supporting telephone evidence which was powerful evidence that the second applicant’s telephone was at the scene of the crime and that he had it in his possession.
With regard to the efforts made to secure Mr Stephens’ attendance, the court found that although Mr Stephens should have been brought to court by whatever appropriate means, the fact that it was not done was not fatal to the judge’s conclusion. The defendants had an obvious interest in the absence of Mr Stephens and his fear did not have to be their work by “direct contact”. In this regard, the judge’s ruling and his reasoning were unimpugnable.
The second applicant’s appeal against sentence was also dismissed.
B.  Relevant domestic law and practice
1.  Common law principles
Hearsay evidence is any statement of fact other than one made, of his own knowledge, by a witness in the course of oral testimony (see paragraph 20 of the judgment of Lord Phillips in R. v. Horncastle and others, summarised below). As a general rule it is inadmissible in a criminal case unless there is a common law rule or statutory provision which allows for its admission. There is a discretion at common law for a trial judge to exclude any evidence if its prejudicial effect outweighs its probative value. This, in turn, is supplemented by section 78 of the Police and Criminal Evidence Act 1984, which provides the court with a discretion to exclude evidence if its admission would have such an adverse effect on the fairness of the trial that it ought not to be admitted (see below). Second, if hearsay evidence is admitted and the jury have heard it, the trial judge, in his summing up, must direct the jury as to the dangers of relying on hearsay evidence. Third, in a jury trial, the jury must receive the traditional direction as to the burden of proof i.e. that they must be satisfied of the defendant’s guilt beyond reasonable doubt.
2.  Primary legislation
a.  The Criminal Justice Act 2003
Under section 114 of the 2003 Act, hearsay evidence is only admissible in criminal proceedings if one of a number of “gateways” applies. One such gateway is section 114(1)(d) which allows for the admission of hearsay if the court is satisfied that it is in the interests of justice for it to be admissible. Section 114(2) provides:
“In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant)—
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a);
(c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.”

Section 116, which allows for the admission of statements of absent witnesses, provides:
“(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter,
(b) the person who made the statement (the relevant person) is identified to the court’s satisfaction, and
(c) any of the five conditions mentioned in subsection (2) is satisfied.
(2) The conditions are—
(a) that the relevant person is dead;
(b) that the relevant person is unfit to be a witness because of his bodily or mental condition;
(c) that the relevant person is outside the United Kingdom and it is not reasonably practicable to secure his attendance;
(d) that the relevant person cannot be found although such steps as it is reasonably practicable to take to find him have been taken;
(e) that through fear the relevant person does not give (or does not continue to give) oral evidence in the proceedings, either at all or in connection with the subject matter of the statement, and the court gives leave for the statement to be given in evidence.
(3) For the purposes of subsection (2)(e) ‘fear’ is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.
(4) Leave may be given under subsection (2)(e) only if the court considers that the statement ought to be admitted in the interests of justice, having regard—
(a) to the statement’s contents,
(b) to any risk that its admission or exclusion will result in unfairness to any party to the proceedings (and in particular to how difficult it will be to challenge the statement if the relevant person does not give oral evidence),
(c) in appropriate cases, to the fact that a direction under section 19 of the Youth Justice and Criminal Evidence Act 1999 (c. 23) (special measures for the giving of evidence by fearful witnesses etc) could be made in relation to the relevant person, and
(d) to any other relevant circumstances.
(5) A condition set out in any paragraph of subsection (2) which is in fact satisfied is to be treated as not satisfied if it is shown that the circumstances described in that paragraph are caused—
(a) by the person in support of whose case it is sought to give the statement in evidence, or
(b) by a person acting on his behalf,
in order to prevent the relevant person giving oral evidence in the proceedings (whether at all or in connection with the subject matter of the statement).”
In addition, section 124 allows the admission of evidence to challenge the credibility of the absent witness, for example, through the admission of evidence of his bad character, including previous convictions, a propensity to be untruthful and so on. It also allows the admission of inconsistent statements that the witness has made. Section 124(2) allows the admission of evidence to challenge the credibility of the absent witness in circumstances where it would not be admissible in respect of a live witness, for example, when it relates to a collateral issue in the case.
Where a case is based wholly or partly on hearsay evidence, section 125 requires the trial judge to stop the case (and either direct an acquittal or discharge the jury) if, considering its importance to the case against the defendant, the hearsay evidence is so unconvincing that a conviction would be unsafe.
Section 126 preserves both the common law discretion and the section 78 discretion of the trial judge to exclude hearsay evidence (see below). It also provides a statutory discretion to exclude hearsay evidence if the trial judge is satisfied that “the case for excluding it, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it, taking account of the value of the evidence”.
b. The Police and Criminal Evidence Act 1984
Section 78 provides for the exclusion of unfair evidence:
“(1) In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.
(3) This section shall not apply in the case of proceedings before a magistrates’ court inquiring into an offence as examining justices.”
c. The Human Rights Act 1998
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
3.  Relevant case-law from England and Wales
a. R. v. Horncastle and others
The Chamber’s judgment of 20 January 2009 in Al-Khawaja and Tahery was considered by the Supreme Court of the United Kingdom in R. v. Horncastle and others [2009] UKSC 14. The case concerned the appeals of four defendants who had been convicted on the basis of statements of absent victims, which were read at trial under section 116 of the 2003 Act. For two of the defendants, the maker of the statement had died. For another two, the witness was too fearful to attend trial. Their appeals were heard together with that of a fifth defendant, Carter, who had been convicted on the basis of business records, which were introduced at his trial.
On 9 December 2009, Lord Phillips, giving the judgment of the Supreme Court, found that, although domestic courts were required by the Human Rights Act 1998 to take account of the Strasbourg jurisprudence in applying principles that were clearly established, on rare occasions, where a court was concerned that the Strasbourg judgment did not sufficiently appreciate or accommodate some aspect of English law, it might decline to follow the judgment. The Chamber’s judgment was such a case.
Lord Phillips considered that a defendant should not be immune from conviction where a witness, who had given critical and apparently reliable evidence in a statement, was unavailable to give evidence at trial through death or some other reason. In analysing the relevant case-law of this Court on Article 6 § 3(d), Lord Phillips concluded that, although this Court had recognised the need for exceptions to the strict application of Article 6 § 3(d), the manner in which it approved those exceptions resulted in a jurisprudence which lacked clarity. The sole or decisive rule had been introduced into the Strasbourg case-law in Doorson v. the Netherlands, 26 March 1996, Reports of Judgments and Decisions 1996‑II without discussion of the underlying principle or full consideration of whether there was justification for imposing the rule as an overriding principle applicable equally to continental and common law jurisdictions. Indeed the rule seemed to have been created because, in contrast to the common law, continental systems of criminal procedure did not have a comparable body of jurisprudence or rules governing the admissibility of evidence.
Lord Phillips found that the rule would create severe practical difficulties if applied to English criminal procedure. First, it was not easy to apply because it was not clear what was meant by “decisive”: under English criminal procedure no evidence could be admitted unless it was potentially probative and, in theory, any item of probative evidence could make the difference between conviction and acquittal. Second, it would be hard enough to apply that test at first instance but it would be impossible for national appellate courts or this Court to decide whether a particular statement was the sole or decisive basis for a conviction. In a jury trial, the only way the rule could be applied would be to exclude all hearsay evidence.
Lord Phillips also observed:
“The sole or decisive test produces a paradox. It permits the court to have regard to evidence if the support that it gives to the prosecution case is peripheral, but not where it is decisive. The more cogent the evidence the less it can be relied upon. There will be many cases where the statement of a witness who cannot be called to testify will not be safe or satisfactory as the basis for a conviction. There will, however, be some cases where the evidence in question is demonstrably reliable. The Court of Appeal has given a number of examples. I will just give one, which is a variant of one of theirs. A visitor to London witnesses a hit and run road accident in which a cyclist is killed. He memorises the number of the car, and makes a statement to the police in which he includes not merely the number, but the make and colour of the car and the fact that the driver was a man with a beard. He then returns to his own country, where he is himself killed in a road accident. The police find that the car with the registration number that he provided is the make and colour that he reported and that it is owned by a man with a beard. The owner declines to answer questions as to his whereabouts at the time of the accident. It seems hard to justify a rule that would preclude the conviction of the owner of the car on the basis of the statement of the deceased witness, yet that is the effect of the sole or decisive test.”
Lord Phillips instead concluded that the 2003 Act made such a rule unnecessary in English criminal procedure because, if the 2003 Act were observed, there would be no breach of Article 6 § 3(d) even if a conviction were based solely or to a decisive extent on hearsay evidence. To demonstrate this point, Annex 4 to the judgment analysed a series of cases against other Contracting States where this Court had found a violation of Article 6 § 1 when taken with Article 6 § 3(d). In each case, had the trial taken place in England and Wales, the witness’s testimony would not have been admissible under the 2003 Act either because the witness was anonymous and absent or because the trial court had not made sufficient enquiries to ensure there was good reason for the witness’s absence. Alternatively, had the evidence been admitted, any conviction would have been quashed on appeal.
Lord Brown delivered a concurring judgment in which he stated:
“These appeals are of the utmost importance. If the Strasbourg case law does indeed establish an inflexible, unqualified principle that any conviction based solely or decisively on evidence adduced from an absent or anonymous witness is necessarily to be condemned as unfair and set aside as contrary to articles 6(1) and 6(3)(d) of the Convention, then the whole domestic scheme for ensuring fair trials – the scheme now enshrined (as to hearsay evidence) in the Criminal Justice Act 2003 and (as to anonymous evidence) in the Criminal Evidence (Witness Anonymity) Act 2008 [see paragraph 46 above] – cannot stand and many guilty defendants will have to go free. It is difficult to suppose that the Strasbourg Court has in fact laid down so absolute a principle as this and, indeed, one exception to it, at least, appears to be acknowledged: the fairness of admitting hearsay evidence from a witness absent as a result of the defendant’s own intimidation.
...
Nor can Strasbourg readily be supposed to have intended the sort of practical problems and anomalies identified by the Court of Appeal (paragraphs 61-63 and 68‑71 [of its judgment]) that must inevitably flow from any absolute principle of the kind here contended for. Obviously, the more crucial the evidence is to the proof of guilt, the more scrupulous must the Court 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 decisive’ so long as it is used broadly – as it is in the 2008 Act with regard to anonymous witnesses and, indeed, in the control order context where it relates rather to the allegations made against the suspect than the evidence adduced in support. 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 the Strasbourg Court’s judgment in Al-Khawaja and Tahery v United Kingdom...”
b. R v. Ibrahim [2012] EWCA Crim 837
This case concerned the appeal of a defendant who had been convicted of rape. He appealed against his conviction on the ground that the admission of untested hearsay evidence of an unreliable victim infringed upon his right to a fair trial under Article 6 of the Convention. Both the Supreme Court’s judgment in Horncastle and the Grand Chamber’s judgment in Al-Khawaja and Tahery were considered by the Court of Appeal. The court noted that in Horncastle both the Court of Appeal and the Supreme Court had emphasized that when untested hearsay evidence was critical, the question of whether the trial was fair would depend on three principal factors: first, there must be good reason to admit the untested hearsay in compliance with the statutory code; second, and most importantly, there must be an enquiry as to whether that evidence can be shown as reliable; and thirdly, there must be consideration of the extent of counter-balancing measures.
The Court of Appeal observed that there were differences in approach between the Supreme Court and the Grand Chamber, primarily in the fact that the Supreme Court chose not to apply the ‘sole or decisive’ test. Nevertheless, it ruled that those differences might be more in form than substance and from both judgments four questions could be deduced. These were whether there was proper justification for admitting the evidence under s.116 of the Criminal Justice Act 2003; how important the hearsay statements were; how ‘demonstrably reliable’ the statements were; and whether or not the counterbalancing safeguards inherent in the Common Law, the Criminal Justice Act 2003 and s.78 of PACE were properly applied. The overarching question was always the single test of whether the defendant had a fair trial.
COMPLAINT
The applicants complain under Article 6 § 3(d) of the Convention that their right to examine the witnesses against them was violated by the admission of Mr Stephens’ evidence.

QUESTION TO THE PARTIES
Did the admission of Mr Stephens’ evidence violate the applicants’ rights under Article 6 § 3(d) of the Convention?