MC KEVITT v. THE UNITED KINGDOM - 61474/12 62780/12 - First Section [2016] ECHR 782 (6 September 2016)

FIRST SECTION

DECISION

Applications nos. 61474/12 and 62780/12
Michael MC KEVITT against the United Kingdom
and Liam CAMPBELL against the United Kingdom

The European Court of Human Rights (First Section), sitting on 6 September 2016 as a Chamber composed of:

          Mirjana Lazarova Trajkovska, President,
          Ledi Bianku,
          Linos-Alexandre Sicilianos,
          Paul Mahoney,
          Aleš Pejchal,
          Robert Spano,
          Pauliine Koskelo, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above applications lodged on 18 September 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. The first applicant, Mr Michael McKevitt, is an Irish national who was born in 1949 and is currently imprisoned in Portlaoise, Ireland. The second applicant, Mr Liam Campbell, is an Irish national, who was born in 1962 and is currently detained in HMP Maghaberry in Northern Ireland. Both applicants are represented before the Court by Mr K. Winters of KRW Law - LLP, a lawyer practising in Belfast.

2. The United Kingdom Government (“the Government”) are represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office.

3. The Government of Ireland were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. However, they did not seek to exercise this right.

A. The circumstances of the case

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

1. The Omagh bombing

5. At 3.05pm on 15 August 1998 a 500lb bomb exploded in the centre of Omagh, a town in County Tyrone, Northern Ireland. As a result of the explosion, twenty-nine people were killed, including a woman pregnant with twins, and more than three hundred people were injured. In addition, there was extensive damage to property in the town. The incident was the single worst atrocity in the course of the years of violence which occurred in Northern Ireland from the late 1960s onwards.

6. Approximately half an hour before the blast, three warning calls had been made by callers using a code word previously used by an organisation calling itself Óglaigh na hÉireann, otherwise known as “The Real Irish Republican Army” (“the Real IRA”). The callers gave conflicting and misleading information about the location of the bomb.

7. Following the blast, responsibility was claimed by the Real IRA. However, no individual has been convicted of causing the bomb or the consequent deaths, injuries and property damage.

2. The civil proceedings

8. Many of the families who suffered as a result of the Omagh bomb brought an action for damages for trespass to the person, intentional infliction of harm and conspiracy to injure against the parties they believed to be responsible for the incident. Those parties included the Real IRA as an organisation and the two applicants, who they believed were responsible for the planning, production, planting and detonation of the bomb.

(a) D.R.

9. The principal witness of the plaintiffs in the civil action was D.R., an FBI agent who had infiltrated dissident Republican terrorist groups.

10. On 29 September 2006 the High Court ordered that D.R. could give evidence by video link because he was receiving the benefit of an FBI witness protection program in the United States of America and the Police Service of Northern Ireland (“PSNI”) had assessed the risk to his life to be severe if he were to give evidence in Northern Ireland.

11. On 9 March 2007 the plaintiffs indicated that D.R. was no longer available to give evidence by video link. They submitted an affidavit explaining that the FBI was no longer prepared to make him available because of the threat to his security and an unexplained medical condition. In his absence, they sought to rely on evidence he had given in two previous criminal trials.

(i) The Dublin proceedings

12. In or around 2003 the first applicant had been convicted by the Special Criminal Court in Dublin of membership of the IRA and directing terrorism during the period from August 1999 to October 2000. D.R. had been the principal witness for the prosecution. His evidence, which described the involvement of the Real IRA in the Omagh bombing, the direct involvement of the first applicant in procurement and training within that organisation, and the presence of the second applicant at army council meetings, was based on three statements made by him between January 2001 and March 2001, and documents disclosed by the FBI and British Security Service, including approximately 2,300 pieces of email traffic between him and his handlers.

13. At the trial D.R. had given evidence over fourteen days. For eleven of those days he was cross-examined by counsel for the first applicant, who attacked his credibility as a witness. D.R. did not rely on the email documentation in his direct evidence and he was not cross-examined in relation to it.

(ii) The Woolwich proceedings

14. In 2001, following a sting operation by the British Security Service, three persons had been arrested by the Slovakian police and extradited to the United Kingdom to stand trial for offences committed under the Terrorism Act 2000. The subsequent criminal proceedings took place at Woolwich Crown Court (for further details see O’Farrell and Others v. the United Kingdom, no. 31777/05, 5 February 2013). Neither applicant in the present proceedings was involved in the criminal trial. However, in the course of those proceedings a tape was produced containing a compilation of conversations between a person named “Karl” and members of the British Security Service. It was clear from the conversations that “Karl” was directing the Real IRA’s operation in Ireland and seeking to procure arms and/or funding from foreign Governments. In the course of the Woolwich proceedings D.R. identified “Karl’s” voice as that of the first applicant. His evidence was supported by that of an Inspector in An Garda Síochána (“the Garda”), the National Police Service of Ireland.

(b) Preliminary application concerning the admissibility of hearsay evidence

15. The plaintiffs applied for permission to rely on the transcript of evidence and materials disclosed during the Dublin proceedings. However, the first applicant submitted that the introduction of this hearsay evidence would deprive him of the opportunity to cross-examine D.R. and prevent the court from assessing his credibility.

16. The High Court judge heard evidence about the effort made by the plaintiffs and the first applicant to secure D.R.’s attendance to give video link evidence. He accepted that the plaintiffs’ solicitor had made a number of attempts to cause the FBI to alter its view; the plaintiffs’ solicitor had attempted to obtain some written explanation for D.R.’s inability to give evidence but had been unable to do so; any application to the relevant judicial authorities in the United States of America to take the evidence of D.R. would likely be opposed by the FBI; and although the first applicant had applied to the court to institute a request for D.R. to be called for cross-examination under the Hague Convention, that request had been refused by the United States’ authorities. The judge therefore accepted that the plaintiffs and the first applicant had taken every possible step to secure the attendance of D.R. as a witness.

17. The judge further considered whether or not the action in trespass constituted a “criminal charge” in accordance with the autonomous jurisprudence of this Court. However, he decided that there had been no “criminal charge” as the proceedings were classified as civil under domestic law and any award the court could make would be compensatory. Although the plaintiffs’ had stated that the objective of the proceedings was not to obtain compensation but to “see the applicants held to account”, the judge considered that their subjective intention was of “little or no bearing” in deciding whether the proceedings were criminal or civil. The judge therefore held that the protections contained in Article 6 § 3 of the Convention did not apply as of right.

18. The judge then considered whether the evidence could be admitted pursuant to the Civil Evidence (Northern Ireland) Order 1997 (see paragraph 48 below). In answering this question in the affirmative, he noted that although his power to exclude relevant evidence was circumscribed by the 1997 Order (see paragraph 48 below), the court’s obligation to ensure a fair trial within the meaning of Article 6 of the Convention could be achieved by permitting the plaintiffs to admit the evidence and applying the appropriate safeguards contained within the Order. In particular, he indicated that once the evidence was received it would be open to the applicants to submit that he should accord it no weight.

19. The plaintiffs also sought to rely on a copy of the “Karl” tape. Counsel for the first applicant contended that pursuant to the Security Service Act 1989, the tape had been disclosed unlawfully by the Metropolitan Police to the plaintiffs.

20. In a decision dated 22 October 2008 the High Court Judge found that the tape had been lawfully disclosed to the plaintiffs and could therefore be admitted in evidence, although the weight to be given to it would be “a matter for submissions”.

(d) The substantive hearing before the High Court

21. At the hearing, the first applicant chose not to give evidence in answer to this case against him. The second applicant had initially entered a defence to the claim but subsequently instructed his solicitors to come off record.

(i) Standard of proof

22. The High Court judge first considered the appropriate standard of proof and concluded that it should be the balance of probabilities since the seriousness of the allegation against the applicants alone was not a reason for departing from the civil standard.

(ii) Intent

23. The judge accepted that the Omagh bombing was part of a campaign of terror involving the use of explosive devices in locations where there was a large number of members of the public. In view of the fact that the warnings were specifically designed to prevent detection of the location of the bomb car before the explosion, the judge was satisfied that those involved in the planning, production, planting and detonation of the bomb recognised the likelihood of serious injury or death from its detonation but had decided to take that risk.

(iii) Evidence of previous convictions

24. The plaintiffs sought to adduce evidence of the first applicant’s conviction by the Special Criminal Court in Dublin for directing terrorism. The judge held that the conviction could not be admitted as evidence that the first applicant had committed the acts which grounded the conviction. However, he found that the conviction could be admitted at common law as evidence of bad character, if probative and relevant.

(iv) The weight to be given to the hearsay evidence against the first applicant

25. The first applicant mounted an attack on the character of D.R. based in substantial part on answers he gave during cross-examination in the Dublin proceedings. In particular, in one email D.R. had suggested an intention to perjure himself in unrelated proceedings; he had once described himself as a “whore” and a “mercenary”; he had been charged with passing bad cheques; there was evidence to suggest that he had been prepared to facilitate criminal activity as long as there was a suitable financial reward for him; he was paid for the information provided to the FBI and the British Security Service; and he had had a reputation as a smuggler, drug dealer and “bad guy”.

26. In assessing the weight to be attached to the evidence of D.R., the judge identified two separate questions: whether the email material represented a fair and accurate account of the actual traffic that passed between D.R. and his handlers, and whether the statements and emails represented a fair and accurate account of the exchanges between D.R. and the first applicant. Both of those questions required consideration of the Civil Evidence (Northern Ireland) Order 1997.

27. In respect of the first question, the judge made the following observations:

i. The statements which were prepared for the purpose of giving evidence in the Dublin proceedings were not prepared contemporaneously, but the emails represented actual traffic between D.R. and his handlers. In virtually all cases the emails were generated within hours of the end of lengthy meetings, but caution had to be exercised in relation to isolated comments in response to queries raised by handlers where there may have been failures of recollection or misinterpretation.

ii. D.R.’s motivation for embarking on his activity was the prospect of financial reward. He had been dishonest in his dealings with money and in representation of circumstances, particularly where his financial interests and reputation were involved.

iii. D.R. was engaged under a financial contract with his handlers. Since he had a financial interest in producing material that was likely to be considered significant, care had to be exercised in assessing the material.

iv. The extraordinary level of detail, which included identification by name of a significant number of people whom it was highly unlikely that D.R. would previously have known was compelling evidence of an attempt to provide an accurate and comprehensive record of actual meetings.

v. The materials were generated for the purpose of enabling handlers to assess intelligence and there was no reason to think that the content had been manipulated in any particular way.

vi. The hearsay evidence of D.R. was decisive in the sense that without it the plaintiffs could not succeed against the first applicant.

vii. The applicant had a proper opportunity to investigate the credibility of D.R. He had had the advantage of the disclosures which had been made for the purposes of the criminal trial, including the transcript of cross-examinations.

viii. It was recognised that some material might be missing and there was the possibility of human error, having regard to the limited interaction necessary to deal with the encryption of these materials.

28. In light of the above considerations, the judge was satisfied to a very high standard of probability that the exchanges set out in the emails represented actual traffic that occurred between D.R. and his handlers.

29. The judge further considered Article 6 of the Convention and, in particular, the Chamber judgment in Al-Khawaja and Tahery v. the United Kingdom, nos. 26766/05 and 22228/06, 20 January 2009. Although he recognised that this was not a criminal case and the minimum rights set out in Article 6 § 3 were therefore not expressly engaged, he accepted that the entitlement to a fair hearing would often involve consideration of many of the issues identified as minimum rights within Article 6 § 3 and it was therefore necessary to examine whether the admission of the hearsay evidence and the giving of weight to it would render the hearing unfair. In this regard, the judge noted that the guarantee of a fair hearing required observance of the principle of equality of arms and the principle that proceedings as a whole should be adversarial; in other words, each party had to be afforded a reasonable opportunity to present his case under conditions that did not place him at a substantial disadvantage vis-à-vis his opponent, and be given the opportunity to have knowledge of and comment on the evidence adduced by the other party. Nevertheless, the judge noted that in this case the material upon which the plaintiffs relied had long been known to all of the parties. Consequently, the defendants, who had available the disclosure which was made within the criminal trial and the transcript of the extensive cross-examination of D.R. at that trial, had had a proper opportunity to investigate D.R.’s credibility.

30. In respect of the second question of whether the material was an accurate record of events and conversations, the judge made the following observations:

i. There was evidence of dishonesty by D.R. in respect of financial matters and the fact that he was being paid for intelligence should properly cause the court to exercise caution in relation to the accuracy of this material.

ii. There was, however, overwhelming evidence that D.R.’s account in relation to attendance at meetings and gatherings was accurate - including evidence from Garda officers involved in surveillance of the first applicant - and he could be confident that the emails represented a reliable record of D.R.’s activities.

iii. The Woolwich evidence was strongly supportive of the content of the emails: taken together with the hearsay statement made in the Dublin proceedings that the person identified as “Karl” was in fact the first applicant, the Woolwich evidence would appear to confirm that the first applicant had been actively involved in the procurement of terrorist materials, that he had a leadership role in relation to procurement and was a committed terrorist.

31. The judge was therefore satisfied that he should give considerable weight to the content of the email traffic without offending the first applicant’s fair trial rights under Article 6 of the Convention.

(v) Hearsay evidence against the second applicant

32. The principal evidence against the second applicant was also that of D.R., who had recorded his attendance at meetings of the army council where the second applicant appeared to be in charge. In addition, there was independent telephone evidence which indicated that the drivers on the “bomb run” had phoned the second applicant a number of times on the morning of the Omagh bombing.

33. The judge, having already dealt with the weight to be given to the hearsay evidence of D.R. in considering the position of the first applicant, was satisfied that there was also cogent evidence that the second applicant was a member of the army council of the Real IRA at the time of the Omagh bomb, and that he held an important leadership position in the Real IRA both at that time and subsequently. He was further satisfied that there was cogent telephone evidence demonstrating that the second applicant had been involved in directing the operation and participating in it.

(vi) Liability

34. The judge therefore found both applicants liable in trespass to the plaintiffs. In reaching this conclusion, he described the applicants’ failure to answer the case against them (the first applicant having elected not to give evidence and the second applicant having not attended the hearing at all, either in person or through representatives - see paragraph 21 above) as “inexplicable” and opined that these failures had made the case against them “overwhelming”.

(vii) Damages

35. The quantum of damages was assessed separately for each plaintiff depending on the losses suffered, and included financial awards to reflect dependency (the loss of financial support from the deceased); bereavement (a fixed sum of GBP 7,500 payable for grief and trauma following the death of certain specified family members); psychiatric injury to the surviving relatives; loss of earnings; “aggravated damages” to compensate for the injury to feelings flowing from consequences such as the indignity, mental suffering, disgrace and humiliation which may be caused by tortious conduct; and funeral costs.

(e) Proceedings before the Court of Appeal

36. The applicants appealed against the judge’s decision on the ground that he had been wrong to conclude that the appropriate standard of proof was the civil standard of proof on a balance of probabilities. However, the Court of Appeal found that the High Court judge had correctly analysed the authorities and was right to apply the civil standard. A tort was a claim for civil law remedies - the findings of the court gave rise to no criminal sanctions and would not in themselves assist in any prosecution - and did not cease to be such because the conduct giving rise to the tort was also criminal.

37. Counsel for the first applicant also argued that the High Court judge had been wrong to attach the weight he did to the evidence of D.R., since evidence had shown him to be a demonstrable confidence trickster who manipulated information at every turn; that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin should not have been found to be admissible at common law; and that the judge should not have drawn any adverse inference from the decision of the first applicant not to answer the case against him.

38. However, the Court of Appeal observed that the fact that a witness had been demonstrated to be unreliable and, indeed, mendacious and dishonest on important occasions did not mean that everything he said should be discounted as valueless and unreliable. The judge had made it clear that D.R.’s hearsay evidence had to be approached with care. Moreover, he was evidently alive both to the financial motive to lie and exaggerate and to the evidence from D.R. himself which indicated dishonesty in his own financial affairs. Therefore, on a fair reading of the judgment the judge was fully conscious of serious flaws in D.R. as a witness of truth on some issues.

39. Insofar as the judge had held that the evidence of the first applicant’s conviction by the Special Criminal Court in Dublin could be admitted at common law as evidence of bad character, the Court of Appeal found that he had erred. However, this error did not affect the outcome of the proceedings, as the Woolwich evidence had already established that the first applicant was a committed and active terrorist who was willing to participate in serious terrorist crime. The Dublin conviction therefore added no material weight to the plaintiffs’ case against him.

40. Furthermore, the Court of Appeal found that in the circumstances of what was a relatively strong prima facie case the judge had been fully entitled to draw an adverse inference from the first applicant’s failure to give evidence. The first applicant had clearly had access to material facts but gave no explanation for his failure to call any evidence or go in the witness box.

41. The second applicant appealed on the grounds that the judge should have subjected the hearsay evidence to proper scrutiny in the context of the case against him instead of adopting the findings in relation to the case against the first applicant, especially as he had not been a party to the criminal proceedings in Dublin and had not, therefore, had an opportunity to cross-examine D.R.; that the judge had been wrong to make the evidential leap that his alleged use of a particular mobile telephone connected him to the bomb and placed him in a position of control and command; and that it was wrong of the judge to draw inferences from his absence from the proceedings as he had been unrepresented (his assets were frozen in the Republic of Ireland by the Criminal Assets Bureau and his legal aid had been revoked).

42. However, the Court of Appeal found that the judge had been entitled to reach the conclusion that he did in respect of the evidence of D.R. While his analysis of the evidence in the context of the first applicant’s case was not of itself determinative of the question whether it was reliable evidence against the second applicant, he had been aware of the relevant considerations in determining the strength and weaknesses of the evidence. Moreover, there was some corroboration as the Garda had observed the second applicant and D.R. together and the telephone evidence also connected him to the bombing. Linking the pieces of evidence together, the judge was justified in reaching the conclusion that he did.

43. The Court of Appeal further found that the fact the second applicant had declined to testify meant that he had nothing to contradict the evidence against him, which strengthened that evidence even in the absence of any inference which could be drawn.

44. In a decision dated 7 July 2011 the Court of Appeal dismissed the appeals of both applicants.

45. On 27 July 2012 the applicants were refused permission to appeal to the Supreme Court.

B. Relevant domestic law and practice

1. The tort of trespass to the person

46. A claim for trespass to the person, which may be brought for a wilful or negligent act of direct force, is classified as a civil action under domestic law. It is tried before a civil court, which does not determine whether a criminal offence has been committed in order to assess liability.

47. Where liability for trespass to the person is established, the plaintiff is entitled to claim damages to compensate for his or her loss. The general principle underlying the award of damages for tortious acts is to seek to put the plaintiff in the financial position he or she would have been in had the tort not taken place.

2. Hearsay evidence in civil proceedings

48. The admissibility of hearsay evidence in civil proceedings in Northern Ireland is governed by the Civil Evidence (Northern Ireland) Order 1997. Article 3 of the Order provides that in civil proceedings evidence shall not be excluded on the ground that it is hearsay.

49. Articles 4, 5 and 6 contain safeguards relating to the admission of hearsay evidence:

“4. -(1) Rules of court may provide that, where a party to civil proceedings adduces hearsay evidence of a statement made by a person and does not call that person as a witness, any other party to the proceedings may, with the leave of the court, call that person as a witness and cross-examine him on the statement as if he had been called by the first-mentioned party and as if the hearsay statement were his evidence in chief.

(2) Without prejudice to any other power to adjourn proceedings, where, in accordance with rules of court made by virtue of paragraph (1), the court gives a party leave to call the maker of a statement as a witness, the court may adjourn the proceedings, on such terms as to costs or other matters as it thinks fit, for the purpose-

(a) of enabling the witness to be brought before the court; or

(b) of giving the party concerned a proper opportunity to investigate the statement or the credibility of the witness.

5. -(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) Regard shall be had, in particular, to whether the party by whom the hearsay evidence is adduced gave notice to the other party or parties to the proceedings of his intention to adduce the hearsay evidence and, if so, to the sufficiency of the notice given.

(3) Regard may also be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence is adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

6. -

(3) Where in civil proceedings hearsay evidence is adduced and the maker of the original statement, or of any statement relied upon to prove another statement, is not called as a witness-

(a) evidence which, if he had been so called, would have been admissible for the purpose of attacking his credibility as a witness is admissible for that purpose in the proceedings;

(b) evidence may, with the leave of the court, be adduced of any matter which, if he had been called as a witness, could have been put to him in cross-examination in relation to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party; and

(c) evidence tending to prove that, whether before or after he made the statement, he made another statement inconsistent with it is admissible for the purpose of showing that he has contradicted himself; and

(d) evidence which, if he had been so called, would have been admissible for the purpose of supporting his credibility as a witness is admissible for that purpose in the proceedings, but, in the case of evidence of another statement made by that person, only with the leave of the court;

and where evidence of another statement which is admissible by virtue of sub-paragraph (c) or (d) is adduced accordingly, it shall also be admissible as evidence of the matters stated.”

COMPLAINTS

50. The applicants allege that contrary to Article 6 of the Convention, the civil proceedings did not amount to a “fair hearing”. In particular, they submit that the proceedings were essentially criminal in nature, that the appropriate standard of proof should therefore have been the criminal one, and that the admission of the hearsay evidence of D.R. violated Article 6 § 3(d) of the Convention. In the alternative, if the proceedings could not be described as criminal in nature, they submit that the admission of the hearsay evidence violated Article 6 § 1 of the Convention.

THE LAW

A. Joinder

51. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. The applicants’ complaint under Article 6 of the Convention

52. Article 6 of the Convention provides as relevant:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

... ... ...

3. Everyone charged with a criminal offence has the following minimum rights:

... ... ...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ... ”

1. Was Article 6 § 3(d) of the Convention applicable to the trespass proceedings?

(a) The parties’ submissions

53. The Government submitted that Article 6 § 3(d) was not applicable to the trespass proceedings, as the latter did not satisfy the criteria characterising criminal proceedings within the autonomous meaning of the Convention. First of all, the proceedings, which were brought by private individuals rather than the State, were not classified as criminal under domestic law. Secondly, there was no “offence” under consideration: the fact that the applicants were found liable in the civil courts did not result in any conviction and if they were subsequently to face a criminal charge they would be entitled to the presumption of innocence. Finally, the Government contended that the consequences of the trespass proceedings were not penal; the judge did not have jurisdiction to record a conviction against any defendant or impose any sentence of imprisonment, and compensation was assessed by reference to specific losses sustained by the plaintiffs without reference to the seriousness of the applicants’ conduct.

54. Although the applicants accepted that the trespass proceedings involved the determination of civil rights and obligations, they contended that the Court should not adopt a “mechanistic” approach and in a case such as the present, where they were accused of committing heinous acts, it would be artificial to hold that the protections contained within Article 6 § 3 of the Convention did not apply.

(b) The Court’s assessment

55. In the present case the Court not only agrees with the parties and the domestic courts (see paragraphs 17, 36 and 52-53 above) that the trespass proceedings concerned a determination of the applicants’ “civil rights and obligations”, but is further satisfied that those proceedings did not entail the determination of any “criminal charge” against the applicant for the purposes of Article 6. Consequently, Article 6 § 3 (d) was not, as such, applicable to those proceedings (see Dombo Beheer B.V. v. the Netherlands, 27 October 1993, § 32 Series A no. 274) and the applicants’ arguments thereunder, together with their complaint that the appropriate standard of proof applied by the national judges should have been the criminal one, must be rejected.

56. As regards the applicants’ alternative argument that the safeguards afforded by Article 6 § 3 (d) should have nevertheless been provided to them in the impugned proceedings regardless of whether they were of criminal or civil nature - in particular, in relation to admission of hearsay evidence (see paragraphs 50 and 54 above) - this is a matter that goes to the issue of whether the applicants received a “fair hearing” within the meaning of Article 6 § 1 of the Convention and will more appropriately be dealt with under that provision.

2. Were the trespass proceedings fair within the meaning of Article 6 § 1 of the Convention?

(a) The parties’ submissions

57. The Government submitted that the proceedings were “fair” within the meaning of Article 6 § 1 under its “civil” head. The parties received a fair and public hearing, within a reasonable time, by an independent and impartial tribunal established by law; judgment was pronounced publicly; and the judge applied the rules of evidence in a way appropriate to civil proceedings which properly respected the rights of each party as private litigants and ensured that they were able to exercise their full rights of access to the courts.

58. Furthermore, the Government argued that there was no unfairness in the reliance placed by the judge on the evidence of D.R. Although there was no prohibition on hearsay evidence in civil proceedings under the Court’s case-law, this was, in any event, a case in which numerous safeguards and counterbalancing factors were applied. For example, Articles 4, 5 and 6 of the Civil Evidence (Northern Ireland) Order 1997 contained a number of counterbalancing factors and safeguards to ensure that no unfairness was caused by the admission of hearsay evidence, and the judge considered each of the matters which he was required to consider under these Articles. In particular, he considered whether it would have been reasonable or practicable for the plaintiffs to have produced D.R. as a witness; the credibility of D.R. and the material relied upon; the existence of material corroborating the contents of the email traffic; and whether the applicants had a proper opportunity to investigate D.R.’s credibility. Moreover, the judge had expressly considered the applicants’ fair-trial rights under Article 6 of the Convention and, even though it was not strictly necessary, he had regard to the judgment of the Court in Al-Khawaja and Tahery v. the United Kingdom (cited above). Nevertheless, he concluded that he could give substantial weight to the hearsay evidence without offending the applicants’ Convention right to a fair trial.

59. The applicants, on the other hand, argued that there had been a breach of their right to a fair trial under Article 6 of the Convention as the safeguards provided under the 1997 Order were wholly inadequate and did not make up for the non-attendance of D.R. The evidence of D.R., on which the plaintiffs’ case firmly rested, was clearly not demonstrably reliable, and its reliability could not be tested in his absence. Furthermore, the applicants submitted that there had been no good reason for D.R.’s absence: the primary reason given was ill-health, yet no medical report was ever produced. Moreover, the applicants could not be said to have had an opportunity to challenge D.R.’s evidence, since the Dublin proceedings did not concern the same evidence and, in any event, the second applicant was not involved in these proceedings. In support of their submissions, the applicants relied on the judgment of the Grand Chamber in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011 (which has been followed by Schatschaschwili v. Germany [GC], no. 9154/10, ECHR 2015).

(b) The Court’s assessment

60. The Court considers the applicants’ reliance on Al-Khawaja and Tahery (and, by implication, Schatschaschwili) to be misplaced, since, as already held above (see paragraph 55 above), there was no “criminal charge” in the present case. As explicitly recognised in the Court’s case-law, the requirements inherent in the concept of “fair hearing” are not necessarily the same in cases concerning the determination of civil rights and obligations as they are in cases concerning the determination of a criminal charge. This is borne out by the absence of detailed provisions such as paragraphs 2 and 3 of Article 6 applying to civil cases. Although these provisions have a certain relevance outside the strict confines of criminal law, the national courts have “greater latitude” when dealing with cases concerning civil rights and obligations (see Dombo Beheer B.V., cited above, § 32; and Levages Prestations Services v. France, 23 October 1996, § 46, Reports of Judgments and Decisions 1996-V) as the requirements of Article 6 § 1 are less onerous in these cases (König v. Germany, 28 June 1978, § 96, Series A no. 27).

61. However, while “the minimum rights”, including the individual’s right “to examine or have examined witnesses against him”, listed in Article 6 § 3 concern exclusively criminal proceedings, in civil cases the concept of a fair hearing under Article 6 § 1 implies the right to adversarial proceedings, in accordance with which the parties must have the opportunity not only to adduce evidence in support of their claims, but also to have knowledge of, and comment on, all evidence or observations filed, with a view to influencing the court’s decision (see, among many other authorities, Duraliyski v. Bulgaria, no. 45519/06, § 31, 4 March 2014). Furthermore, the principle of equality of arms, which is one of the elements of the broader concept of a fair hearing, requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent (see, among many other authorities, Nideröst-Huber v. Switzerland, 18 February 1997, § 23, Reports of Judgments and Decisions 1997).

62. Nonetheless, Article 6 § 1 does not lay down any rules on the admissibility of evidence or the way in which evidence should be assessed, these being primarily matters for regulation by national law and the national courts. Normally, issues such as the weight attached by the national courts to given items of evidence or to findings or assessments in issue before them for consideration are not for the Court to review. The Court should not act as a fourth instance and will not therefore question under Article 6 § 1 the judgment of the national courts, unless their findings can be regarded as arbitrary or manifestly unreasonable (see, for instance, Dulaurans v. France, no. 34553/97, §§ 33-34 and 38, 21 March 2000; Khamidov v. Russia, no. 72118/01, § 170, 15 November 2007; and Anđelković v. Serbia, no. 1401/08, § 24, 9 April 2013).

63. In the present case the domestic legal framework, in the form of the Civil Evidence (Northern Ireland) Order 1997 (see paragraph 48 above), contains a number of safeguards designed to ensure a fair trial, such as providing a right for the defendant to call the maker of the statement; ensuring the defendant has adequate opportunity to investigate the statement and the credibility of the witness; permitting the admission of evidence challenging the credibility of the absent witness; and providing guidance for judges in determining what, if any, weight should be given to hearsay evidence.

64. As to the application of the legal framework in the present case, the judge had proper regard to the factors set out in Articles 4, 5 and 6 of the 1997 Order. First of all, in deciding to admit the evidence of D.R., the judge fully considered both the requirements of the 1997 Order together with his obligation under Article 6 of the Convention to ensure that the applicants had a fair trial (see paragraphs 15-18 above).

65. Secondly, the applicants were afforded adequate opportunity to investigate D.R.’s credibility prior to the trespass proceedings and, pursuant to Article 6 of the 1997 Order, they were permitted to call evidence at the hearing challenging D.R.’s credibility (see paragraph 48 above). In this regard, it is observed that the transcript of the lengthy cross-examination of D.R. during the Dublin proceedings was adduced in evidence (see paragraph 18 above) and the first applicant mounted an attack on D.R.’s character based in substantial part on that transcript (see paragraph 25 above). Although the second applicant had not been a party to the Dublin proceedings, the transcript of those proceedings had been disclosed to him and he was therefore fully aware of the issues relevant to D.R.’s credibility. Had he attended the hearing, either in person or through his representative (see paragraph 21 above), he could also have mounted an attack on D.R.’s character or otherwise challenged his evidence. However, he did not do so, and as a consequence he would not have been in a position to challenge the evidence of D.R., even had he given evidence by video link.

66. Finally, in deciding what weight to attach to D.R.’s evidence, the judge had due regard to the requirements of Article 5 of the 1997 Order (see paragraph 48 above) and the requirements of Article 6 of the Convention, including - although this was not strictly necessary - the Court’s case-law under Article 6 § 3(d) concerning the admission of hearsay evidence (see paragraphs 27-33 above). In particular, he considered the applicants’ arguments concerning D.R.’s credibility and the reliability of his evidence; the decisiveness of the evidence; the existence of corroborating evidence; any disadvantage to the applicants resulting from its admission; and, perhaps most importantly, the fact that the applicants had a proper opportunity to investigate and challenge the credibility of D.R.’s evidence.

67. Furthermore, the applicants were able to appeal against the High Court Judge’s decision. However, the Court of Appeal found that the judge had been fully conscious of serious flaws in D.R. as a witness of truth on some issues and had approached his evidence with care (see paragraph 38 above). The court further found that while the judge’s analysis of the evidence in the context of the first applicant’s case was not of itself determinative of the question whether it was reliable evidence against the second applicant, he had been aware of the relevant considerations in determining the strength and weaknesses of the evidence. Moreover, there existed some corroborating evidence connecting the second applicant to the bombing and, linking the pieces of evidence together, the judge had been justified in reaching the conclusion that he did (see paragraph 42 above).

68. In light of the foregoing, in the present case the national courts’ findings cannot be said to have been arbitrary or unreasonable. Moreover, the applicants cannot claim to have been denied the opportunity either to adduce evidence in support of their case or to challenge the evidence submitted by the plaintiffs, or to otherwise have been placed at a disadvantage in the proceedings against them. The Court therefore finds that the applicants’ complaints under Article 6 § 1 of the Convention to be manifestly ill-founded and therefore inadmissible pursuant to Article 35 § 3(a) of the Convention.

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 29 September 2016.

Renata Degener Mirjana Lazarova Trajkovska
Deputy Registrar President

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> MC KEVITT v. THE UNITED KINGDOM - 61474/12 62780/12 - First Section [2016] ECHR 782 (6 September 2016) URL: http://www.bailii.org/eu/cases/ECHR/2016/782.html Cite as: [2016] ECHR 782