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FOURTH
SECTION
DECISION
Application no. 40945/09
Hassan TABBAKH
against the United
Kingdom
The
European Court of Human Rights (Fourth Section), sitting on
21 February 2012 as a Chamber composed of:
Lech Garlicki, President,
David
Thór Björgvinsson,
Nicolas Bratza,
Päivi
Hirvelä,
George Nicolaou,
Ledi
Bianku,
Zdravka Kalaydjieva, judges,
and
Lawrence Early, Section
Registrar,
Having
regard to the above application lodged on 21 July 2009,
Having
deliberated, decides as follows:
THE FACTS
- The
applicant, Mr Hassan Tabbakh, is a Syrian national who was born in
Aleppo, Syria in 1969 and is currently detained in HMP Woodhill,
Milton Keynes. His application was lodged on 21 July 2009. He was
represented before the Court by Mr H. Miller of Birnberg Peirce
Solicitors, a lawyer practising in London.
A. The circumstances of the case
- The
facts of the case, as submitted by the applicant, may be summarised
as follows.
- After
obtaining a degree in physics and mathematics from Aleppo University,
Syria, the applicant became a mathematics teacher.
- In
1999 the applicant was arrested by Syrian Military Intelligence. He
was detained for approximately one month before being released
without charge. During this period of detention he alleges that he
was tortured. According to the applicant, he was repeatedly punched
in the face and body while bound and blindfolded; he was knocked
unconscious; he was attached to a wheel and beaten on his face, hands
and feet with an electric cable; he was electrocuted with electrodes
attached to his arms and legs; and he was hung from the ceiling and
sexually tortured.
- In
2000 the applicant fled Syria. In November 2001 he arrived in the
United Kingdom and claimed political asylum. It was accepted that he
had a well-founded fear of persecution if returned to Syria and in
July 2005 he was granted Indefinite Leave to Remain in the United
Kingdom as a refugee.
- On
18 December 2007 the applicant was arrested at his home. Following a
search of the applicant and his home, police officers found a plastic
bag containing three plastic bottles, each containing a liquid and a
solid mixture, a handwritten document in Arabic with diagrams, two
bags of fertilizer pellets, two bags containing small pieces of
aluminium foil, an MP3 audio player, a desktop computer and a USB
memory stick. An analytical chemist confirmed that the contents of
the bottles were flammable. Although incapable of causing an
explosion, had the applicant used higher grade ingredients, he might
have been able to construct a viable bomb. A translation of the
Arabic document appeared to give instructions on the construction of
an improvised explosive device. The audio player and computer devices
were found to contain some Islamist material of an extremist nature.
- The
applicant was interviewed at length by police. He denied trying to
make a bomb or that he had a terrorist purpose. He claimed that he
was trying to make fireworks for the Eid festival at the end of
Ramadan and that the Arabic instructions were for a friend who was
going to test the fireworks.
- Between
17 and 30 July 2008 the applicant stood trial before a judge and jury
at Birmingham Crown Court. He was charged with one count of preparing
a terrorist act contrary to section 5 of the Terrorism Act 2006. The
prosecution case was that the applicant had been trying to make a
bomb with the intention of committing an act of terrorism or
assisting someone else to do so.
- The
applicant did not give evidence. He called a number of witnesses,
including Dr Dene Robertson, a consultant psychiatrist who
specialised in the treatment of torture victims. Dr Robertson
concluded that the applicant was suffering from severe post-traumatic
stress disorder and moderately severe depression. His symptoms
included severe anxiety, loss of energy, loss of self-esteem, loss of
appetite, feelings of guilt, recurrent thoughts of death, frequent
angry outbursts, paranoia, difficulty concentrating, persistent
flashbacks, vivid memories and recurrent nightmares of his torture.
Furthermore, Dr Robertson noted that the applicant had been
consistently self-harming whilst in custody at Belmarsh and Woodhill
prisons and during his trial. He had made significant attempts to cut
the arteries in his arms. He also had minor lacerations to his
forearms and minor scratching to his throat.
- Dr
Robertson identified three reasons why he considered that it would be
undesirable for the applicant to give evidence. First, he believed it
likely that the applicant would become so hyper-aroused when being
questioned by someone perceived to be hostile that he would lose
self control. Frequent angry outburst during cross-examination
by the prosecution could prejudice the jury against him. Secondly,
the stress of giving evidence might lead to an inability to
concentrate and remember which would impair his ability to answer
questions appropriately. This could have a direct impact on the
quality of his evidence. Thirdly, the stress of giving evidence would
almost inevitably result in an increased risk of significant
self-harm.
- Although
the applicant had refused to co-operate with Dr Cumming, the
consultant psychiatrist instructed by the prosecution, Dr Cumming
agreed that the applicant suffered from post-traumatic stress
disorder. However, he was unable to form any opinion one way or
another about the undesirability of the applicant giving evidence.
- Following
the close of evidence, the applicant made an application pursuant to
sections 35(1)(b) and 35(3) of the Criminal Justice and Public Order
Act 1994 (“the 1994 Act”) that the judge should rule that
it was undesirable for the applicant to give evidence due to his
medical condition and, consequently, that the judge should not direct
the jury that they might draw such adverse inferences as appeared
proper from the failure of the applicant to give evidence.
- The
judge accepted that the applicant suffered from post-traumatic stress
disorder, largely as a result of being tortured in Syria, and that he
would find it difficult to be questioned by anyone he perceived as
hostile. He also accepted that the applicant had been self-harming
for some time, and that the stress of giving evidence could well lead
to an increased risk of self-harm. Nevertheless he refused the
application and held that it was not undesirable for the applicant to
give evidence. He did not accept that the applicant’s
presentational problems would seriously prejudice the jury and he did
not consider there to be a significant risk that the applicant would
forget the basic chemistry or physics which the case involved.
Moreover, the judge noted that in view of the importance of the
applicant’s evidence to the case, he could not conclude that
his psychiatric problems made it undesirable for him to give
evidence, even if it resulted in an increased risk of self-harm.
- The
judge noted, however, that it was for the jury to reach a decision as
to whether they should draw an adverse inference against the
applicant or not. In his summing up, he directed the jury as follows:
“The second matter which arises from his silence
is that it could count against him. It doesn’t have to but it
could. This is because you could come to the conclusion that he has
not given evidence because he has no answer to the prosecution’s
case, or at least none that would stand up to being tested by
cross-examination.
If you do draw that conclusion against him you must not
convict him wholly or mainly on the strength of it. You must look for
other evidence of guilt and use his failure to give evidence as some
additional support for the prosecution case. It can’t stand
alone, but it can support something else.
You should only draw this conclusion against him if you
think it is a fair and proper conclusion to draw. If it is not a fair
and proper conclusion to draw, then you should not hold his silence
against him in any way at all. And before drawing that conclusion
against him you must also be satisfied about two things. The first is
that the prosecution’s case is so strong that it clearly calls
for an answer from him. The reasoning is that if the prosecution’s
case is nothing, if you add nothing to it you are still left with
nothing, so there has to be a case against him on the prosecution
evidence which calls for an answer. The second element is that the
only sensible explanation for his silence is that he has no answer to
give or at least not one which would stand up to cross-examination.
In this case the defence suggest that there is a
different reason why he has not given evidence, namely, that he has a
mental condition which would affect him as a witness if he gave
evidence in three ways: firstly, that there is a real risk that he
would lose his self-control and end up giving a bad impression of
himself in the witness box; secondly, that the stress of giving
evidence may mean that he can’t concentrate on what he’s
saying, may forget things that he wanted to say. The third element is
that the stress of giving evidence would result in an increased risk
of him causing harm to himself: self-harming. So there are those
three strands to the defence explanation, reason, why he has not gone
into the witness box.
I will come back to the detailed evidence about those
matters in just a moment or two, but if you accept the defence
explanation for his not giving evidence and you think that this
amounts to a reason why you should not draw any conclusion against
him from his silence then do not do so. Otherwise, subject to what I
have said, you are entitled to draw a conclusion against him from his
silence if you think it is a fair and proper conclusion to draw.”
- The
judge then summarised the medical evidence in some detail for the
jury. In the transcript of his summing up, this summary exceeded ten
pages.
- On
30 July 2008 the jury convicted the applicant and the judge sentenced
him to seven years’ imprisonment. The judge reduced his
original sentence of eight years to take account of the applicant’s
serious mental health condition.
- On
14 January 2009 the applicant was granted leave to appeal against his
conviction. On 3 March 2009 the Court of Appeal dismissed the appeal.
The court noted that:
“The test posed by section 35(1)(b) requires to be
answered according to the physical or mental condition of the
accused. Its terms make that clear. It does not however follow that
in answering the very broad question whether it appears to the court
to be undesirable for the defendant to give evidence that all the
circumstances of the case do not fall to be taken into account. If
one contemplates a defendant with a marginal mental health condition
creating a marginal risk of modest or temporary distress or
regression if he were to give evidence, one can see that if the only
issue to which his evidence could go was one of very peripheral
significance the judge would be entitled to take that into account in
concluding that it was undesirable for him to give evidence.
In the present case reading the judge’s ruling as
a whole, it is perfectly clear to us that the judge ruled that the
risk of self-harm was not such in his judgment to make the giving of
evidence undesirable and he went on to add that it did not become
undesirable because any evidence that the defendant might give would
be of insignificant relevance. That approach was, we are satisfied,
one which the judge was quite entitled to take.
We agree with the broad conclusion
of Stanley Burnton J (as he then was) in R
(on the application of Director of Public Prosecutions) v Kavanagh.
The question posed by section 35 is a wide question for the judgment
of the judge. It is plainly not sufficient that the defendant suffers
from some
(his and our emphasis) physical or mental condition; it must be a
mental condition which is such to make it undesirable for him to give
evidence. The fact that he may have some difficulty in giving
evidence is insufficient to justify the conclusion that it is
undesirable that he should do so. Many, if not most, difficulties
that a defendant or for that matter any other witness may have in
giving evidence are things which have to be assessed by the judge of
the tribunal of fact - in a Crown Court trial by the jury. The
purpose of section 35(1)(b) is clearly to enable the judge to remove
the possibility of adverse inference from the jury if it is
undesirable for the defendant to give evidence. In this case the
evidence was by no means all one way, even though the factual
background abroad was accepted. The judge had ample material on which
to reach the conclusion that he did.
Having reached that conclusion, it remained of course
for the jury to decide whether in its judgment it was right to draw
any adverse inference against the defendant. No one here can know
whether the jury did draw such an inference or not. But what is clear
is that the judge left the whole history and all the medical evidence
to the jury with punctilious care over ten pages of summing-up, as he
did the possible contra-indications for which the Crown had argued.
In other words the question was properly left to the jury. There is
not and could not be any criticism of the terms of the summing-up.
The question which matters in this appeal, as Mr Menon has helpfully
put it, depends upon whether the judge’s original ruling was
flawed. It was not, we are satisfied, and in those circumstances the
appeal against conviction must be dismissed.”
- The
Court of Appeal held that here was no point of law of general public
importance to certify. Consequently, the applicant was refused leave
to appeal to the House of Lords.
B. Relevant domestic law and practice
- Section
35(1) – (3) of the Criminal Justice and Public Order Act 1994
(“the 1994 Act”) provides that:
“(1) At the trial of any person ... for
an offence, subsections (2) and (3) below apply unless—
(a) the accused’s guilt is not in
issue; or
(b) it appears to the court that the physical
or mental condition of the accused makes it undesirable for him to
give evidence;
but subsection (2) below does not apply if, at the
conclusion of the evidence for the prosecution, his legal
representative informs the court that the accused will give evidence
or, where he is unrepresented, the court ascertains from him that he
will give evidence.
(2) Where this subsection applies, the court
shall, at the conclusion of the evidence for the prosecution, satisfy
itself (in the case of proceedings on indictment, in the presence of
the jury) that the accused is aware that the stage has been reached
at which evidence can be given for the defence and that he can, if he
wishes, give evidence and that, if he chooses not to give evidence,
or having been sworn, without good cause refuses to answer any
question, it will be permissible for the court or jury to draw such
inferences as appear proper from his failure to give evidence or his
refusal, without good cause, to answer any question.
(3) Where this subsection applies, the court
or jury, in determining whether the accused is guilty of the offence
charged, may draw such inferences as appear proper from the failure
of the accused to give evidence or his refusal, without good cause,
to answer any question.”
- In
R (Director of Public Prosecutions) v. Kavanagh [2005] EWHC 820 (Admin) the Administrative Court gave guidance as to the test to
be applied when considering section 35(1)(b) of the 1994 Act. Stanley
Burnton J (as he then was) held that:
“The court before whom a criminal trial takes
place undoubtedly has a wide discretion in deciding on the issue to
which subsection (1)(b) refers; that is to say, whether the physical
or mental condition of the accused makes it undesirable for him to
give evidence.
Two things, however, are to be
noted. The first is that there must be an evidential basis for any
determination by the court that it is undesirable for the defendant
to give evidence (see R v Cowan).
A statement or a submission by an advocate does not constitute
evidence at all, let alone the kind of evidence on which a court can
properly conclude that it is undesirable for a defendant to give
evidence.
The second point is that it is not
sufficient that the defendant suffers from some physical or mental
condition. The mental condition must be such that makes it
undesirable for him to give evidence. The fact that he may have some
difficulty in giving evidence, for example, is insufficient to
justify a conclusion that it is undesirable for the defendant to give
evidence. Many, if not most, difficulties that a defendant, or indeed
any other witness, may have in giving evidence, are matters to be
taken into account by the judge of fact, be it magistrates or a jury,
in assessing the reliability of his evidence. It does not justify a
comprehensive failure to give evidence. It may go as to the weight of
evidence, not as to the decision whether or not it is undesirable for
him to give evidence.
Secondly, the court will draw an inference against a
defendant in circumstances where, to use the language of the standard
direction, (a) the prosecution’s case is so strong that it
clearly calls for an answer by him, and (b), that the only sensible
explanation for his silence is that he has no answer or none that
would bear examination.”
COMPLAINTS
- The
applicant complained under Article 6 of the Convention that the
judge’s ruling under section 35 of the 1994 Act violated his
right to a fair trial. The applicant further complained that the
Court of Appeal’s judgment was flawed, thus denying him an
effective remedy within the meaning of Article 13 of the Convention.
THE LAW
- The
applicant complained that the judge’s decision not to rule that
it was undesirable for him to give evidence violated his right to a
fair trial under Article 6 of the Convention. Article 6 provides as
relevant:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing ... by [a]
... tribunal ...”
- The
applicant further complained that he was denied an effective remedy
within the meaning of Article 13 of the Convention because the Court
of Appeal’s judgment was flawed. Article 13 provides as
follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
- The
Court recalls that in Condron v. the United Kingdom,
no. 35718/97, ECHR 2000 V, § 56§§ 56-5) it
confirmed in line with its earlier John Murray v. the
United Kingdom judgment (Reports of Judgments and Decisions
1996-I) that the right to silence is not an absolute right.
Accordingly, the fact that a trial judge leaves a jury with the
option of drawing an adverse inference from an accused’s
silence either during police interview or, as in the instant case,
during his trial cannot of itself be considered incompatible with the
requirements of a fair trial.
- The
Court further stressed in its Condron judgment that since the
right to silence, like the privilege against self-incrimination, lay
at the heart of the notion of a fair procedure under Article 6,
particular caution was required before a domestic court could invoke
an accused’s silence against him. Thus it would be incompatible
with the right to silence to base a conviction solely or mainly on
the accused’s silence or on a refusal to answer questions or to
give evidence himself. Nevertheless, it is obvious that the right
cannot and should not prevent that the accused’s silence, in
situations which clearly call for an explanation from him, be taken
into account in assessing the persuasiveness of the evidence adduced
by the prosecution.
- For
the Court, whether the drawing of adverse inferences from an
accused’s silence infringes Article 6 is a matter to be
determined in the light of all the circumstances of the case, having
regard to the situations where inferences may be drawn, the weight
attached to them by the national courts in their assessment of the
evidence and the degree of compulsion inherent in the situation. Of
particular relevance are the terms of the trial judge’s
direction to the jury on the issue of adverse inferences (Condron
v. the United Kingdom, cited above, §§ 56-57; Beckles
v. the United Kingdom, no. 44652/98, § 57, 8 October
2002).
- In
the present case the Court observes the extremely clear terms in
which the trial judge directed the jury. The judge emphasised that
the applicant’s silence could only count against him if the
jury believed that the reason for his silence was that he had no
answer to the prosecution’s case, and even then he could not be
convicted wholly or mainly on the strength of it. The judge further
explained in clear terms that the jury could only conclude that the
reason for the applicant’s silence was that he had no answer to
the prosecution’s case if they were satisfied first, that the
prosecution’s case was so strong that it called for an answer,
and secondly, that the only sensible explanation for the applicant’s
silence was that he had no answer to give.
- Consequently,
unlike the case of Beckles v. the United Kingdom,
no. 44652/98, § 62, 8 October 2002, the Court considers
that the trial judge gave appropriate weight in his direction to the
applicant’s explanation for his silence. In particular, it
notes that the trial judge’s direction to the jury contained
all matters relevant to the plausibility of the applicant’s
explanation for not giving evidence and which, as a matter of
fairness, were necessary to allow the jury to consider fully whether
the reason for his silence was a genuine one, or whether, on the
contrary, his silence was in effect consistent only with guilt.
- Moreover,
the Court recalls that at his trial the applicant had the opportunity
to call an expert witness – a consultant psychiatrist
specialising in the treatment of torture victims – to give
evidence as to the nature of his mental illness and the potential
impact it would have were he to give evidence. In addition, in his
summing-up the trial judge carefully summarised all of the medical
evidence for the jury.
- It
was thereafter the function of the jury to decide whether or not to
draw an adverse inference from the applicant’s silence. Section
34 of the 1994 Act specifically entrusted this task to the jury as
part of a legislative scheme designed to confine the use which can be
made of an accused’s silence at his trial. As the jury was
properly directed, the Court finds that there is no appearance of a
breach of Article 6 § 1 of the Convention.
- With
regard to the applicant’s second complaint, the Court
reiterates that the purpose of Article 13 is to require the provision
of a remedy at national level allowing the competent domestic
authority both to deal with the substance of the relevant Convention
complaint and to grant appropriate relief. Such a remedy is only
required in respect of grievances which can be regarded as arguable
in terms of the Convention (see Halford v. the United Kingdom,
25 June 1997, § 64, Reports of Judgments and Decisions
1997 III; Camenzind v. Switzerland, 16 December 1997, §
53, Reports of Judgments and Decisions 1997 VIII).
- It
is not necessary for the Court to decide whether or not the applicant
in the present case had an “arguable complaint” for the
purposes of Article 13 of the Convention because it considers the
complaint to be inadmissible for the reasons set out below.
- The
applicant was entitled to bring, and, indeed, did bring, an appeal
against his conviction. The Court considers that the right to bring
such an appeal would normally constitute an effective domestic
remedy, even if it does not always produce the outcome that the
applicant hopes for. The applicant’s appeal was dismissed
because the Court of Appeal did not consider that the trial judge had
erred in law. However, prior to dismissing his appeal the substance
of the applicant’s complaint was considered in full.
Consequently, there is nothing to suggest that in all the
circumstances of the present case, an appeal to the Court of Appeal
did not afford the applicant an adequate remedy.
- The
Court therefore finds that there has been no appearance of a
violation of the second applicant’s rights under Article 13 of
the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
