AS TO THE ADMISSIBILITY OF
Application no. 42011/98
by Owen OYSTON
against the United Kingdom
The European Court of Human Rights, sitting on 22 January 2002 as a Chamber composed of
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mr A. Pastor Ridruejo,
Mr J. Makarczyk,
Mrs V. Strážnická,
Mr R. Maruste,
Mr S. Pavlovschi, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 7 June 1998 and registered on 1 July 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Owen Oyston, is a United Kingdom national, who was born in 1934 and lives in Lancaster, England. He is represented before the Court by Mr David Price, a lawyer practising in London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 May 1996, the applicant was convicted at the Liverpool Crown Court of raping and indecently assaulting a young woman, J. He was sentenced to six years’ imprisonment for rape and three years’ imprisonment for indecent assault, the two sentences to run concurrently. The applicant was acquitted at the same time of raping a second woman, B.
The background of the case may be described as follows. When J. was aged 14 she joined a modelling agency in Manchester and began attending weekend classes. The agency was owned by Peter Martin, a friend of the applicant, and the weekend classes took place at Martin’s home. When J. was aged 15, she started staying overnight at Martin’s house on Fridays and Saturdays. A number of other girls aged between 13 and 20 also stayed at the house. Martin exerted control over the girls, to the extent that he would tell them what to wear, what to eat, when to wash and when to go to bed. J. left school when she was aged 16 and went to live permanently at Martin’s house at about Easter 1992. Martin used to take the girls to restaurants. On one such occasion, about eight weeks after J. began living with him, Martin pointed out the applicant to her, telling her that he was “a very important man and dead rich”. About two weeks later, when Martin, J. and another girl from the agency L. were at the restaurant, the applicant was also present. After the meal, Martin said that they were to drive the applicant home in Martin’s car.
At the trial, J. gave evidence that she got into the back of the car at Martin’s suggestion, while L. sat in the front with Martin who was driving. J. stated that during the journey the applicant forced her to have oral sex with him. On arrival at the applicant’s home, Martin told J. and L. to get out as the applicant wanted to show them his house. J. followed the applicant and L. and ended up in a bedroom. The applicant and L., who was his girlfriend, had sexual intercourse. The applicant then told J. to take off her clothes and made her have sexual intercourse with him. J. and L. then left the house and joined Martin who was waiting in the car. J. said that she did as the applicant wanted because she was dominated by Martin, and was afraid of upsetting the applicant, whom she knew to be Martin’s friend.
J. contacted the police in October 1994. On 9 February 1995, the applicant was arrested and charged with a number of offences of a sexual nature allegedly committed against young women from the modelling agency. Martin, who had been arrested in September 1994 was also charged with a number of offences of a sexual nature committed against young women from the modelling agency, including the rape of J.
The applicant was originally charged with six offences. His defence to each charge was that the event alleged had never taken place. The applicant’s evidence was that he had no recollection of J. having visited his home, and that there had been no contact of a sexual nature between him and J. at any time.
At the end of J.’s examination in chief by the prosecution, the applicant’s leading counsel obtained leave from the trial judge pursuant to section 2(1) of the Sexual Offences (Amendment) Act 1976 (see below) to cross-examine J. on her sexual experiences with Martin, and in particular on the fact that she had been raped by Martin and about the alleged control that he exerted over her. It was the defence case that J. was obsessed with a hatred of Martin and it was this which motivated her allegation against the applicant. J. was extremely distressed by this cross-examination.
L. gave evidence for the defence. She had started working at Martin’s agency when aged 11 and had begun a relationship with the applicant when aged 16. She stated that on one occasion she had travelled to the applicant’s home with Martin, the applicant (with whom she was then having a relationship) and J.; that Martin had driven the car, she had travelled in the front passenger seat, and the applicant and J. had travelled in the back of the car; that L. had gone into the applicant’s bedroom in order to use the toilet in the en suite bathroom. When L. came out of the toilet, she saw J. and the applicant lying on the bed, fully clothed. They all then left. Nothing improper occurred.
L. was asked in cross-examination by the prosecution about her relationship with the applicant, who had been introduced to her by Martin. She was also asked about sexual relationships with other men introduced to her by Martin. She accepted that she had had sexual intercourse with four of the men, when she was aged between 16 and 19 years, and in the case of two of the men, while she was still conducting a relationship with the applicant. When re-examined by defence counsel, she described these relationships as “almost dirty or sordid” and contrasted them with her relationship with the applicant, which she said was “[r]omantic, how it should have been”. L. was also asked by prosecution counsel about an abortion which she had had at around this time, and was asked whether she had had “three in a bed” sex involving the applicant.
No reference was made to L.’s sexual experience by either counsel in their closing speeches, or by the judge in summing up the case for the jury. The jury proceeded to convict the applicant.
On 12 June 1997, the Court of Appeal granted the applicant’s application for leave to appeal against conviction and sentence. The applicant applied at the same time for leave to adduce fresh evidence, in the form of a number of witnesses whose evidence was not available at the trial because, the applicant submitted, he was unaware of their existence or of the fact that they had material to make available to him. One of the witnesses was a young man with whom J. had had a sexual relationship while on holiday in Crete in 1992, and to whom she had subsequently written a letter, a copy of which formed part of the fresh evidence which it was sought to adduce. The Court of Appeal gave the applicant leave to amend his grounds of appeal in order to contend that his convictions were in all the circumstances unsafe, having regard to the fresh evidence.
Lord Bingham CJ said, in giving judgment granting leave:
“While we conclude that these witnesses are not in a position to give evidence which would have been admissible at the trial, we nonetheless consider that this is material which could have been used to attack the credit of J. and which the applicant should be free to draw to the attention of the court in support of his submission that in the light of these materials and of the case as a whole this court should consider the convictions of the applicant to be unsafe.”
On 9 December 1997, the Court of Appeal dismissed the applicant’s appeal against conviction and sentence. The Court of Appeal received the fresh evidence under section 23(1)(c) of the Criminal Appeal Act 1968, and then considered its significance in the context of the appeal. Phillips LJ said, in giving the judgment of the Court of Appeal:
“...the full Court ruled that we should give the new material such weight as it deserves when considering the extent to which the credit of J. might have been shaken had it been available to the defence at the time of the trial. The Court did not consider, however, that it amounted to evidence which could be placed before the jury. Before us [applicant’s counsel] challenged that conclusion. He submitted that where, as here, the prosecution case turns exclusively on the evidence of the complainant, evidence that bears on the credit of the complainant is not merely collateral, but goes to the heart of the case... It seemed to us somewhat arid to invite lengthy argument about the basis upon which we should consider the significance of the new material. If it proved such as to to lead us to doubt the credibility of the complainant, we would be loth to entertain argument that the convictions should nonetheless stand because of a technical rule of evidence against the admissibility of evidence going solely as to credit. ... In these circumstances, we decided that the convenient course was to receive the evidence under section 23(1)(c) of the Criminal Appeal Act 1968 and, having done so, to evaluate the significance of that material.”
As regarded the significance of the evidence of J.’s holiday on Crete when it was alleged that she had had sexual intercourse with a young man, Lord Phillips said:
“[Applicant’s counsel] urged that this evidence was significant and could have been admitted by the Judge on three bases:
(1) it showed that J. was not as vulnerable as she appeared.
(2) it had significance in relation to a pregnancy test.
(3) the evidence was in conflict with other evidence J. had given and thus tended to destroy her credibility.
J.’s vulnerable appearance
To seek to introduce this evidence simply to counter the general impression that J. was making in the witness box would have been a paradigm example of the type of conduct that section 2 of the 1976 Act is designed to prevent. We have no doubt that the judge would have refused an application made on that basis. The fact that J. had enjoyed the brief relationship with a young man, which is reflected by the letter, whether before or after the date on which the offences were alleged to have been committed by the [applicant], is of itself of no relevance to the question of whether she was raped and indecently assaulted by a man nearly four times her age.
The pregnancy test
J. had a pregnancy test on 16th June 1992. The defence were aware of this, but naturally asked her nothing about it. The new material indicates that the test probably resulted from anxiety as a result of having had sexual intercourse with [the young man in Crete] so that it would have been safe to cross-examine as to why J. did not have a pregnancy test after the alleged rape by the [applicant]. This argument does not attach intrinsic significance to the evidence itself, nor constitute any reason why it should have been introduced at trial. There are various reasons why the victim of a rape might not think it necessary to have a pregnancy test and the fact that the defence refrained from asking about this under a misapprehension does not affect the safety of the verdicts.”
Concerning alleged inconsistencies revealed in J.’s evidence, Lord Justice Phillips said:
“In her evidence in chief, J. said nothing about the effect that the alleged offences had had on her. Under cross-examination she volunteered the statement that “when I came back from the house I spent a year of my life trying to forget what happened.” We do not find that the Cretan holiday, if it took place during the year in question, is inconsistent with that statement...[applicant’s counsel] submitted that the Cretan holiday was inconsistent with the statement that Martin had messed up her life completely and that she hated having sex...[applicant’s counsel] said that if all this material had been available he would have adopted a completely different approach to J.’s statement as to what happened...
This puzzled us for we could not envisage how [applicant’s counsel] could have hoped to persuade the Judge to allow him to adduce evidence about what J. had said in relation to events at [Martin’s house] in order to cross-examine her on the truth of those statements. Furthermore, J. had given evidence at Martin’s trial which ended in his conviction in September 1996 on counts which included rape of J. We asked [applicant’s counsel] if he was suggesting that J.’s account of the sexual abuse and rape that Martin inflicted on her was untrue. He answered that he could not say that. It seems to us that that concession, which was inevitable, undermines the points that [applicant’s counsel] has sought to make on inconsistencies. There can be no doubt that J. was subjected to appalling sexual abuse by Martin. In whatever way she behaved thereafter, her behaviour cannot be an indication that this abuse never occurred, and thus we do not see it can be an indication that abuse at the hands of the [applicant] never occurred.”
B. Relevant domestic law and practice
Section 2 of the Sexual Offences (Amendment) Act 1976 provides as follows:
“(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence and no question in cross-examination shall be adduced or asked at the trial, by or on behalf of any defendant at the trial, about any sexual experience of a complainant with a person other than that defendant.
(2) The judge shall not give leave in pursuance of the preceding subsection for any evidence or question except on an application made by him in the absence of the jury by or on behalf of a defendant; and on such an application the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”
The applicant complained under Article 6 §§ 1 and 3(d) of the Convention that he was denied a fair hearing because the Court of Appeal, having regard to the limitation imposed by section 2 of the Sexual Offences (Amendment) Act 1976 on the cross-examination of rape victims, rejected his appeal based on fresh evidence relevant to the credibility of J., the victim, whereas no such limitation had been applied by the trial judge in relation to the evidence of L., a witness called by the defence.
The applicant complains of unfairness and inequality of arms at his trial for rape offences, referring to the different rules applying to the examination of J. and L. and the reasons given by the Court of Appeal for refusing his appeal. He invokes Article 6 §§ 1 and 3(d) of the Convention, which provide 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; ...”
The parties’ submissions
The Government submit that taking the proceedings as a whole the applicant had a fair trial. He had been represented by experienced senior counsel; his counsel only sought leave to cross-examine J. on her sexual experience with Martin and on the applicant’s own instructions kept his cross-examination brief as J. was suffering distress; the prosecution’s cross-examination of L. about her sexual relationships with other men to whom she had been introduced by Martin had been relevant and used for purposes beyond undermining her credibility as a witness since it was consistent with the prosecution case that Martin provided the applicant with young women; applicant’s counsel did not object to the cross-examination of L. and in fact re-examined her about her sexual experiences with these men; and the summing-up to the jury was scrupulously fair.
The Government submit that the appeal proceedings were also fair, pointing to the fact that leave had been granted and the Court of Appeal had commented that if the new evidence had led them to doubt the victim’s credibility they would have been reluctant to allow the convictions to stand because of a technical rule of evidence. Having considered the fresh evidence however they found that it was not relevant to the issues in the case and that there was no basis for doubting the safety of the conviction. The Court’s case-law indicates that it should be slow in interfering with the domestic court’s assessment of the evidence. The Court of Appeal’s conclusion showed that section 2 of the 1976 Act was a justifiable measure which properly balanced J.’s rights under Article 8 of the Convention and the right of the applicant to a fair trial under Article 6. The Government noted that the applicant did not contend that the limited protection to rape victims given by section 2 would always constitute a breach of Article 6. They further emphasise that the applicant made no suggestion at trial or on appeal that the cross-examination of L. was improper. This case could in their view be distinguished from the case of Condron v. the United Kingdom (no. 35718/97 (Sect. 3) ECHR-V, §§ 62-66), where the defect in the trial was found to cast doubt on the safety of the conviction by this Court and they rely on the case of Edwards v. the United Kingdom (judgment of 16 December 1992, Series A no. 249-B, §§ 34 and 39) as showing that defects in a trial can by cured by an appeal hearing.
The applicant submits that the appeal was incapable of remedying the defects in his trial as the Court of Appeal considered the “safety” of the conviction without consideration of the fairness of the proceedings under Article 6 and, following an unfair procedure at trial, it was speculating as to the basis on which the jury must have reached their verdict. This was, as in the Condron case (cited above), incompatible with the requirements of Article 6. He argues that that decisive issue for the jury was the credibility of J. and L., one of whom must have been lying. The procedural rules which permitted the cross-examination of the key defence witness, L., as to her past sexual history in order to undermine her credibility in the eyes of the jury, while prohibiting the same form of cross-examination of the key prosecution witness were fundamentally unfair. The principle of equality of arms was breached as this placed the defence as a substantial disadvantage vis-à-vis the prosecution. It also infringed the requirement under Article 6 § 3(d) that the defendant was entitled to obtain the examination of witnesses on his behalf under the same conditions as witnesses against him. His complaint is not directed to the merits of the statutory restriction in section 2 of the 1976 Act but to the fact that there is no equivalent restriction on the cross-examination of a defence witness.
The applicant also submits that the Government is wrong to state that the resulting unfairness was capable of being remedied by the Court of Appeal hearing as the Court of Appeal was bound to operate within the same procedural rules. It could not be suggested that the cross-examination of L. could either have been prevented at trial or formed a ground of appeal. It was also fundamentally unfair for the assessment of the relative credibility of the key witnesses to be divided between the two tribunals. There was a risk that the Court of Appeal might have been unconsciously influenced by the jury’s verdict of guilty into underestimating the significance of the evidence relevant to credibility (referring to Rowe and Davis v. the United Kingdom [GC] no. 28901/95, ECHR 2000-II, § 65).
The applicant further disputed that the questioning of L. was not solely directed to undermining her credibility, arguing that there was no dispute at trial as to whether L. had been introduced to the applicant by Martin and no question that L. had been provided against her will as was alleged with J. In addition, the questions were directed to aspects of her past sexual history which had no bearing on this point, including her sexual relationships with four other men, whether she had had “three in a bed sex” involving the applicant and about an abortion. The implicit suggestion was that L. was sexually promiscuous and for that reason unworthy of belief, the line of inference forbidden in relation to a complainant by section 2 of the 1976 Act. Any re-examination by the applicant’s counsel was carried out to neutralise the damage done by the cross-examination.
The Court’s assessment
The Court recalls that the guarantees in paragraph 3 of Article 6 are specific aspects of the right to a fair trial set forth in paragraph 1 (see, amongst many authorities, the Edwards v. the United Kingdom judgment cited above, p. 34, § 33). It will therefore examine the applicant’s complaints with regard to the overriding principle of fairness set out in that provision. In so doing, regard will also be had to the proceedings as a whole (see, for example, the Rowe and Davis judgment cited above, § 59).
The Court’s case-law establishes that it is a fundamental aspect of the right to a fair trial that criminal proceedings should be adversarial and that there should be equality of arms between the prosecution and defence. This does not mean that the parties must be put in exactly the same position as each other. While both prosecution and defence must be given an opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party and a defendant be given an adequate and proper opportunity to challenge and question a witness against him, there may be circumstances where restrictions on access to evidence or to a witness may be necessary or unavoidable. The Court has recognised that in such cases Article 6 § 1 taken together with Article 6 § 3(d) requires that the handicaps under which the defence labours be sufficiently counterbalanced by the procedures followed by the judicial authorities (Van Mechelen v. the Netherlands judgment of 23 April 1997, Reports 1996-III pp. 711-712, §§ 51-54).
Furthermore, the interests of victims or witnesses while not expressly taken into account in Article 6 may be regarded as protected by the other substantive provisions of the Convention (e.g. the right to life, liberty and security of person, the right to private life including protection of moral and physical integrity). Criminal proceedings should be organised in such a way that those interests are not unjustifiably imperilled and this may require striking a fair balance between the interests of the defence and those witnesses or victims called upon to testify (see the Doorson v. the Netherlands judgment of 26 March 1996, Reports 1996-II, p. 470, § 70).
Against that background, the Court observes that the applicant cannot complain of inequality of arms at the trial as regards the questioning of witnesses. It is true that section 2 of the 1976 Act places certain restrictions on the cross-examination at trial of an alleged rape victim. However, the applicant’s counsel applied to the trial judge for permission to question the victim J. concerning her sexual relationship with Martin and this was granted. It is not alleged that in fact the applicant’s counsel was in any way hindered from putting such questions to J. as were regarded necessary for the furthering of the applicant’s defence. The Court is not prepared to rule, in the abstract, that the operation of section 2 of the 1976 Act differentiates between female victims of rape and female witnesses for the defence in a manner incompatible with Article 6 of the Convention. Nor is it persuaded that the fact that the applicant’s witness L. was asked questions about her sexual relationships was incompatible with Article 6 of the Convention. The Court considers that the conduct of Martin in allegedly introducing young women such as L. and J. to other men for the purposes of sex was relevant to the factual issues under examination, as was the type of activity in which the young women were expected to participate. While the relevance of the question posed to L. about an alleged abortion is less apparent, the Court does not consider that this may be regarded as rendering the trial unfair. As the Government have pointed out and the applicant concedes, it would have been possible to object to any improper line of questioning put to L. e.g. if it had related to matters which could not affect credibility or could only do so in a slight degree or there was a great disproportion between the imputation made and the importance of the witness’s evidence. There were also limits applicable therefore to the questions that could be put to L., which were subject to the overriding discretion of the judge.
The Court concludes that the trial itself has not been shown to offend any of the principles of Article 6.
The applicant complains that the proceedings were nonetheless rendered unfair due to the way in which the Court of Appeal handled his appeal against conviction. He had obtained, following the trial, alleged fresh evidence which he considered undermined the credibility of the victim J.’s evidence at trial, in particular, that she had had a sexual relationship with a young man on holiday at around the same period as the alleged rape.
The Court notes that the applicant was granted leave to appeal by the Court of Appeal on the basis that the evidence, though strictly speaking not admissible, could have been used to attack the victim’s credibility and that it should be considered whether it rendered the applicant’s conviction unsafe. After hearing the applicant’s arguments on appeal, the Court of Appeal confirmed the view that under section 2 of the 1976 Act the evidence concerning this relationship would not have been admitted. However, it commented that it would have been reluctant to allow a technical rule to prevail if the evidence had led it to doubt the victim’s credibility. It went on to consider that evidence and concluded for reasons, which appear cogent to this Court, that it had no relevance to the question of whether she had been raped by the applicant.
The applicant argues that the question of J.’s credibility was crucial as the jury had essentially to decide whether J. or L. was lying. In those circumstances, he argued that it was not for the Court of Appeal to attempt to second-guess what effect this additional evidence would have had on the jury’s views of the respective credibility of J. and L.. In addition, he argues that the Court of Appeal paid no attention to the requirement of fairness in its assessment of whether the conviction was rendered unsafe by the new evidence.
The Court notes that the applicant refers to the case of Condron v. the United Kingdom (cited above) where it held that the failure of the trial judge to give a proper direction to the jury about the adverse inferences which could be drawn from the accused’s failure to answer police questions was a defect that could not be remedied on appeal. It had regard in that assessment to the fundamental importance of the right to silence which was issue in that case. The Court considers that the facts of the present case are more analogous to those pertaining in Edwards v. the United Kingdom where, as in this case, the Court of Appeal had reviewed evidence coming to light after the applicant’s trial. There the Court found that the rights of the defence were secured by the proceedings before the Court of Appeal, where the applicant’s counsel had every opportunity to seek to persuade the court that the conviction should not stand in light of the new material, and that the Court of Appeal was able to assess for itself the value of the new evidence and to determine whether the availability of the information at trial would have disturbed the jury’s verdict.
The Court sees no reason to reach a different conclusion in this application. While it is correct that the Court of Appeal, prior to the enactment of the Human Rights Act 1998, did not give express consideration to the principle of fairness safeguarded in Article 6, it does not find that the test applied by that court as to the safety of the conviction in the circumstances of the applicant’s case was incompatible with the requirements of that provision.
The Court concludes that taken as a whole the applicant’s trial and appeal complied with Article 6 of the Convention. His complaints are manifestly ill-founded and must be rejected pursuant to Article 34 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Matti Pellonpää
OYSTON v. THE UNITED KINGDOM DECISION
OYSTON v. THE UNITED KINGDOM DECISION