FOURTH SECTION
Application no. 31295/11
Wang YAM against the United Kingdom
lodged on 28 April 2011
STATEMENT OF FACTS

The applicant, Mr Wang Yam, is a Chinese national, who was born in 1961 and is detained at HMP Whitemoor March. He is represented before the Court by Geoffrey Robertson QC and Kirsty Brimelow QC instructed by Janes Solicitors, a solicitors’ firm based in London.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 16 January 2009 following two trials at the Central Criminal Court the applicant was convicted of murder and related counts of using the deceased’s identity and bank accounts.
1.  Background facts
The deceased was an 86-year-old recluse who lived alone at 9 Downshire Hill, Hampstead, London. The deceased was away on holiday in April 2006 and upon his return discovered that some of his post, including cheques, had been stolen. On 2 May 2006 he reported the thefts to the police. On 8 May 2006 the deceased made a telephone call to Her Majesty’s Revenue and Customs in order to ascertain whether an expected cheque had been posted.
On 14 June 2006 the deceased’s body was found in his house, where it had been for some weeks. He had been beaten to death, possibly tortured, and his body had been buried under a three-foot-high pile of paper that had been moved from an adjoining room. Between mid-May and mid-June attempts were made to misuse the deceased’s cheques, credit card and accounts.
At some point between 8 May and 14 June 2006 the neighbourhood postman told police of an incident where he recalled being accosted by a stubble-chinned man wearing a beige jacket who asked him if he had the post for 9 Downshire Hill. He recalled telling the man that he had been unable to deliver the post because tree branches had been piled against the door. The following day he found that the branches had been cleared away.
The postman attended a Viper Identification Procedure on 4 July 2006. At the identification procedure the postman failed to make a positive identification but said: “number 1 [the applicant] is the only one who is like the picture in my mind”.
2.  Application to hold the defence in camera
In December 2007 the Crown Prosecution Service indicated that it would ask for the applicant’s trial to be held in camera.
On 15 January 2008 the trial judge granted the request and ordered that the defence would be heard in camera. He reasoned that if the press and the public were not excluded from certain parts of the trial “serious risks would be taken”. In particular he stressed the possibility of the Crown preferring to drop the prosecution rather than incur those risks. In the circumstances the judge held that the interests of justice required him to exclude the press and public from the relevant parts of the trial in order that it could proceed effectively. At this point the trial was scheduled to start on 28 January 2008. An informative note was appended to the order mentioning that purporting to reveal or speculating as to the reasons for why parts of the trial were to be held in camera could be punishable as a contempt of court. The applicant sought to appeal the decision.
On 28 January 2008 the Court of Appeal upheld the order. The Lord Chief Justice, in the court’s “open judgment”, observed that the judge had the power to order a partially closed trial under the court’s inherent case-management powers. Before the Court of Appeal it was argued that the Crown was engaging in “forensic blackmail” by mentioning that they might drop the prosecution. It was further submitted that the trial could not be fair without the presence of the press and public. The court found that a fair trial was possible even if some of it were held in camera. In coming to that conclusion the court found that the trial judge had correctly applied the relevant test and had fully considered both the public interests in holding open criminal trials and in ensuring criminal trials can be held without causing prejudice to other important interests.
3.  The first trial
The applicant’s first trial took place between 28 January and 1 April 2008.
The Crown’s case against the applicant was that he had been stealing the deceased’s post and attempting to steal his money. They said that the applicant was deeply and solely involved in that period in trying to “take over” the deceased’s identity.
The Crown led evidence that demonstrated that the applicant was involved in attempts to extract and control approximately GBP 60,000 that was held in the deceased’s accounts. This included telephone calls, use of the deceased’s bank accounts, and use of his bank cards. However no direct or forensic evidence was available to show that the applicant was responsible for the murder. Instead the Crown relied upon circumstantial evidence. The applicant’s defence stressed a number of evidential findings – with the possible inference that the deceased was killed by more than one person – to support a case that the applicant was supplied with the stolen material by “gangsters”.
On 28 March 2008 the jury retired to consider its verdict. On 31 March 2008 the applicant was found guilty of stealing GBP 20,000 by deception. On 1 April 2008 he was further found guilty of handling stolen goods, the alternative charge to burglary. The jury was discharged after failing to reach verdicts on the charges of burglary and murder.
4.  The retrial
The Crown sought a retrial of the remaining charges on which the jury failed to decide. The retrial took place between 13 October 2008 and 16 January 2009. The trial judge rejected an abuse of process application made by the defence team. He found that the fact that a verdict was received in relation to handling stolen goods charge did not preclude a trial for murder and burglary, even though the factual bases for both groups of offences was contradictory. A submission of no case to answer was similarly rejected.
On 16 January 2009 the applicant was convicted of murder and sentenced to life imprisonment with a minimum term of 20 years’ imprisonment. He received four-and-a-half years’ imprisonment for the offence of burglary and four-and-a-half years for receiving the same stolen goods as were referred to in the burglary count. He received two years’ imprisonment for a money transfer offence and one month imprisonment for the theft of GBP 20. These sentences were set to run concurrently.
5.  Appeal against conviction and sentence
The applicant sought to appeal against his conviction and sentence on six broad grounds. His application for leave to appeal was referred to Full Court and was dealt with in a “rolled-up” hearing. First, he claimed that the verdict received at the first trial of handling stolen goods relied on factual findings that were inconsistent with the factual findings required to sustain convictions for burglary and murder. Second, although he could not challenge the previous judgment of the Court of Appeal in connection with the decision to hold the defence in camera, the applicant suggested that the closure of the trial to the public jeopardised the fairness of proceedings and the safety of the conviction. He submitted, in view of the nature of his defence, that had the trial been open to the public and press further supporting witnesses could have come forward. Third, he submitted that the evidence of the postman should have been excluded as prejudicial under section 78 of the Police and Criminal Evidence Act 1984 due to problems with the identification procedure. Fourth, the applicant contended that it could not have been said beyond reasonable doubt that he was the one who made each of the recorded telephone calls. Fifth, he submitted that muffled sounds at the end of the deceased’s telephone call to Revenue and Customs on 8 May 2006 demonstrated that there could possibly have been someone with him. This, it was said, undermined the Crown’s case that the murder occurred following an attack by a lone aggressor at the threshold of the door to the deceased’s house. Lastly, the applicant suggested that a “lurking doubt” should have remained in the minds of the appeal judges due to overwhelming reliance on circumstantial evidence in the case.
On 5 October 2010 leave to appeal was granted in part and the appeal dismissed. As for the first ground, the court accepted that the verdict in handling stolen goods should not have been received as there had not been an acquittal on the alternative counts. For that reason, and in light of the clear prima facie case against the applicant, the court concluded that it would be “contrary to all principle” to have refused to try him. The conviction for handling stolen goods was accordingly quashed. The court did not consider that the principle of autrefois acquit was engaged as the applicant had not previously been acquitted of the murder or the burglary.
In respect of the second ground, the court first set out the relevant principles:
“... a trial ought to take place in public unless there is very powerful reason to the contrary: Scott v. Scott [1913] AC 417... We agree that among the many reasons for that are included the public interest in the proceedings of the court being subjected to scrutiny, the maintenance of public confidence and the possible emergence of evidence which has hitherto been unavailable: see R v. Legal Aid Board, ex parte Kaim Todner [1999] QB 966 at 977E. Exceptionally however, it may be unavoidable to hear some part of the evidence in camera, for example if that is the only way of ensuring a fair trial, if Article 2 rights would otherwise be infringed, or sometimes if State security is involved.”
The court did not allow the applicant to challenge the previous decision on whether to hold the defence in camera on the basis that it represented res judicata. However it did agree that the applicant could challenge his conviction on this basis if he could show that the decision rendered it unsafe. The applicant contended that further witnesses would have come forward had the trial been entirely public and further evidence of the applicant’s good character may have come out.
The court found that there had been substantial media publicity of the trial in any event and that it was not satisfied that a public hearing would have led further witnesses to come forward. In addition at the first trial the applicant’s counsel made a public opening statement to the court, identifying the persons upon whom his defence relied. The possibility remained for this to be done in the second trial, although for tactical reasons it was not taken up. The court also observed that many allegations had been advanced against prosecution witnesses in public. In respect of the good character evidence the court observed that there was a great deal of evidence available to the trial judge and that it was summarised “very favourably” to the jury. The court was not convinced that hearing the evidence of four witnesses in private unfairly elevated their evidence in the eyes of the jury.
As regards the third ground, the court accepted that two technical errors had been made in the identification procedure. However, it noted that neither of those errors had any adverse consequences. The court observed that the trial judge properly directed the jury on the fact that the identification was only qualified.
In respect of the fourth ground, the court noted that the trial judge did not unfairly denigrate the evidence of any of the defence expert witnesses. The court held that he gave appropriate assistance to the jury in its evaluation of the expert evidence it had received.
As for the fifth ground, the court could see nothing prejudicial in the way the judge had summed up this part of the expert evidence.
In respect of the final ground, the court was satisfied that there was a great deal of evidence implicating the applicant in the fraud and the murder. In particular the court found that there was at least sufficient evidence to allow the case to be left to a jury. The court further held that the trial judge’s direction on circumstantial evidence was “impeccable”.
The Court of Appeal refused the appeal in relation to sentence, given that a life sentence was mandatory and that a substantial reduction – from a minimum term of 30 years to one of 20 years – had already been made by the trial judge in view of the applicant’s previous good character.
The Court of Appeal refused to certify a point of law of general public importance in a letter on 1 November 2010. The court made a public pronouncement to that effect on 14 December 2010.
B.  Relevant domestic law and practice
The general position in respect of public hearings is summarised by the decision of the House of Lords in Scott v. Scott [1913] AC 417 in which their Lordships held that “every Court of justice is open to every subject of the King”.
At common law the court has an inherent power to hold hearings in camera where necessary in the interests of justice. The position was clarified in the later decision in of the House of Lords in Attorney-General v. the Leveller Magazine [1979] AC 440, in which their Lordships stated that the general rule of open justice could be departed from:
“... where the nature or circumstances of the particular proceedings are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest... [W]here a court in the exercise of its inherent power to control the conduct of proceedings before it departs in any way from the general rule, the departure is justified to the extent and to no more than the extent that the court reasonably believes to be necessary in order to serve the ends of justice.”
The House of Lords went on to state that where there was a risk to national security, that risk “must be shown also to be a risk to the administration of justice” in order for a court to decide to sit in camera.
Rule 16.10 of the Criminal Procedure Rules in force at the material time governs the procedure by which applications for an order that a trial be held in camera may be made:
“Where a prosecutor or a defendant intends to apply for an order that all or part of a trial be held in camera for reasons of national security or for the protection of the identity of a witness or any other person, he shall not less than seven days before the date on which the trial is expected to begin serve a notice in writing to that effect on a Crown Court officer and the prosecutor or the defendant as the case may be.”
COMPLAINTS
The applicant complains that the criminal proceedings against him taken as a whole were unfair and violated Article 6 § 1 of the Convention.
In particular the applicant complains that the in camera hearing of his defence violated Article 6 as such. He further complains that the in camera hearing compromised his right to defend himself and altered the perception of the defence witnesses contrary to Article 6 § 3 (d).
The applicant, in addition, complains that there was an abuse of process and violation of the principle of autrefois acquit contrary to Article 6.
He further complains that his conviction for murder on the basis of wholly circumstantial evidence breached Article 6.
Lastly he complains that the admission of the identification evidence unfairly prejudiced him in the eyes of the jury and that the unfairness could not be adequately remedied through cross-examination in breach of Article 6.

QUESTIONS TO THE PARTIES

1.  Did the decision to hold the defence in camera during the applicant’s trial for murder violate Article 6 § 1?

2.  In any event, was the applicant’s trial taken as a whole fair within the meaning of Article 6?