4.  The applicant was born in 1945 and is currently detained in HMP Long Lartin.
5.  Between 16 May and 13 July 2005 the applicant was tried before a judge and jury in the Crown Court at Snaresbrook for various offences relating to an attempt, together with other unknown persons, to import cocaine worth GBP 35 million into the United Kingdom from Guyana via ports in the Netherlands and Belgium.
6.  Pursuant to Her Majesty’s Courts and Tribunals Service policy, notes of recordings of trials are destroyed after five years. Although the present application was lodged with the Court in 2007, consideration of the applicant’s complaints was adjourned pending judgment in Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, ECHR 2011. Consequently, by the date the United Kingdom Government received notice of the application, transcripts of the applicant’s criminal trial had for the most part been destroyed.
7.  However, from the information available, the circumstances of the trial which give rise to the present application may be summarised as follows.
8.  On the 21 June 2004 a ship called the “Lee Frances” entered the port of Rotterdam. Part of the cargo was a single container which contained palletised drums of molasses from Georgetown, Guyana. The following day the container was searched by customs officials and certain drums – purportedly containing molasses – were found to contain 700 kg of high purity cocaine worth GBP 35 million. The officials refilled the drums with dummy contents and the ship continued to Antwerp where the container was offloaded. The applicant was arrested and interviewed on 29 June 2004, shortly after contacting HM Revenue and Customs to make enquiries about the container. He was charged, inter alia, with assisting in the commission outside the United Kingdom of an offence punishable under the law of Guyana (the export of drugs from that country), contrary to section 20 of the Misuse of Drugs Act 1971, and with the attempted importation of drugs to the United Kingdom.
9.  There were allegations that the applicant had been involved in “jury fixing” in a previous, unrelated trial. Therefore, before the trial the prosecution applied to the court for the following security measures:
 the assignment of a security team to chaperone the jury at all times;
 the identification of the jury by number and not by name;
 the verification by police of the identity of anyone wishing to enter the courtroom’s public gallery;
 the search of members of the public entering the building;
 the retention of all visitors’ mobile telephones during the trial;
 the erection of protective screens to shield the jury and the applicant from the public gallery; and
 the covering of the glass panels in the doors to the court room to prevent people seeing into the room.
10.  The defence were informed of the application and given the opportunity to oppose it. They initially did so on the basis that the protective screens, taken together with the other security measures, would lend a sinister feel to proceedings which would be likely to prejudice the applicant in the eyes of the jury. However, at the conclusion of argument the defence indicated that they were prepared to withdraw their objections provided that the whole of the public gallery was covered rather than just part of it, as had been originally suggested. The trial judge therefore made the order requested.
11.  The defence subsequently attempted to withdraw that concession on the basis that the physical appearance of the screens was more imposing than had been anticipated. They again suggested that the whole trial could be heard in camera but this proposal was rejected by the trial judge, who did not consider that the screens could in any way impinge upon the fairness of the trial.
12.  It was accepted by the prosecution and the defence that the main issue in the case was whether or not the applicant had intended to import drugs into the United Kingdom.
13.  It was the prosecution’s case that the applicant had purchased the cocaine in Guyana under the assumed name of “David Keen”, the manager of a company called Premier Molasses, and that he had intended to import the cocaine into the United Kingdom. The shipment containing the cocaine had been the last of four shipments procured by Premier Molasses from Guyana. The previous three shipments had been delivered via Antwerp to various locations in the United Kingdom, including to an address belonging to an acquaintance of the applicant. There was evidence of telephone calls between the applicant and his acquaintance, which coincided with the deliveries, as well as payments by the acquaintance to the applicant’s account in Guyana. It was suggested by the prosecution that the previous three shipments had been practice runs for the fourth shipment, which contained the cocaine. Although there was one witness in Guyana who stated that the drums containing the cocaine were to be offloaded in Antwerp and transported to the Netherlands (see paragraph 31 below), the prosecution argued that this had been an attempt by the applicant to set up a defence should he be caught.
14.  VO, who was based in Antwerp, was the customs broker for Premier Molasses’ shipping agents.
15.  VO was responsible for issuing each shipment with an agricultural import licence to confirm that the shipment complied with European Union quotas. He was also responsible for guaranteeing the payment of duty on each shipment.
16.  He made three separate statements between 30 June 2004 and 20 January 2005. He also supplied the prosecuting authorities with the original files relating to all four shipments from Guyana. This included all documents relating to the first three shipments, for which he had arranged carriage to the United Kingdom, and correspondence from David Keen asking him to arrange transport for the fourth shipment to the United Kingdom.
17.  Having provided the statements and documentary evidence, VO refused to give live evidence at the applicant’s trial. VO’s explanation for refusing to attend court was recounted in the evidence of DH, a United Kingdom customs official who had been present when VO was interviewed in Belgium. According to DH (who gave evidence at trial), VO believed that, in accordance with Belgian practice, having spoken to investigators on three separate occasions, he had done enough.
18.  The prosecution made several attempts to convince VO to appear as a witness before the trial began. In particular, they wrote to him emphasising the importance of his evidence, making it clear that all expenses would be met and inconvenience kept to a minimum, and informing him that if he did not attend his previous assistance might be wasted. They also tried to reach him through his employer but were told that he was on leave and could not be contacted.
19.  Despite knowing of VO’s reluctance to attend for several months before the trial, the prosecution opened their case referring to his evidence. Two weeks into the trial, when it became clear that VO would not testify, the trial judge directed the prosecution to contact him again. In a letter to VO, the prosecution offered various options to him, including giving evidence via live video link from his home in Belgium. Meanwhile, the defence also wrote to him seeking clarification on apparent inconsistencies in his account. All of these efforts were ignored.
20.  Leave was then given for VO’s statements to be read to the jury pursuant to section 116 of the Criminal Justice Act 2003.
21.  When interviewed, VO provided information about the logistical arrangements for the routing of the fourth shipment to the United Kingdom. He stated that:
“It was clear for [sic] all the files that the destination of the load was England. Premier Molasses had already applied for an import licence for the United Kingdom for the job relating to the container and sent it to us. The transport operation ultimately did not take place because I did not receive an original bill of lading; that meant it was physically impossible for me to take delivery of the container.”
22.  He also gave evidence of his previous dealings with “David Keen”. He explained that, whilst they had never met in person, he and Mr Keen had done business in May and October 2003, at the time of the importation of two of the earlier three shipments, both of which had been destined for the United Kingdom.
23.  VO’s statements referred to a telephone call he had received from a woman at Premier Molasses, who told him that the contents of the container were not to be imported to the United Kingdom but instead sold to a Dutch company. He had asked her for written instructions and details of the Dutch firm, but none was ever given.
24.  A United Kingdom customs officer, BT, referred in his evidence at trial to a conversation between the Belgian shipping agents and a woman from Premier Molasses who he believed was called “N”. This would appear to be the same telephone call referred to by VO (see paragraph 23 above). However, in one of his statements VO indicated that he did not know of anyone called “N” in connection with the case.
25.  The applicant claimed that BT could only have obtained this information by the interception of the telephone call. He further claimed that, as a consequence, the “discrepancy” between the evidence of BT and VO could not be further investigated as the prosecution indicated that there was a danger that the prohibition on the disclosure of intercept evidence (including telephone intercept evidence) might be compromised (see sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) at paragraphs 55-56 below). However, the Government have submitted a transcript of BT’s evidence which demonstrates that the prosecution did not object to any question based on the prohibitions in RIPA.
26.  One month prior to BT giving evidence a discussion had taken place between the trial judge and counsel in the absence of the jury. The discussion touched on issues of intercept evidence and on the “N” call. In the course of the discussion, the defence argued that, since they could not seek disclosure of intercept evidence, when any such issue arose the prosecution should be obliged to satisfy themselves that there was nothing in the material to which they had or could have access which would either undermine their case or assist the defence case. The prosecution neither confirmed nor denied that any interception had taken place, or that they had or had not sought any intercept material. However, they confirmed that they had revisited their duty of disclosure and had nothing further to add. The trial judge subsequently declined to make any ruling on the issue.
27.  The prosecution led evidence that “David Keen” was a false identity assumed by the applicant in the context of business carried out on behalf of Premier Molasses. In particular, they submitted evidence from the Home Office that there was no record of any person by that name. There were also three witnesses from Guyana who identified the applicant as David Keen and faxes in the name of David Keen sent from the applicant’s address.
28.  The prosecution relied on various pieces of logistical evidence which supported their contention that, as with the previous three shipments, the true destination of the fourth shipment was the United Kingdom. This included details of bank transactions, the issuing of shipping licences and other similar communications between Premier Molasses and VO, and the fact that David Keen had pushed for early delivery of the shipment to the United Kingdom. The paperwork relating to the fourth shipment was consistent with that relating to the previous three shipments.
29.  Finally, the prosecution invited the jury to draw adverse inferences as to the applicant’s guilt based on his failure to disclose facts material to his defence when first interviewed. These “material facts” included his apparent belief that he was importing cannabis into the Netherlands and his allegation that VO was a party to the conspiracy (see paragraph 30 below).
30.  The applicant’s initial defence was that he believed that he was arranging a shipment of sugar but had been duped by business associates into arranging the importation of drugs. However, during the trial it came to light that he was fabricating evidence to concoct this defence. Consequently, the applicant admitted that this defence was untrue. Thereafter, he advanced a new defence, which was that he had been involved in a conspiracy to traffic cannabis from Guyana to the Netherlands (via Antwerp) and that VO had been party to this conspiracy. He continued to deny the main count on the indictment, which concerned the attempted importation of drugs to the United Kingdom. However, on 23 June 2005 he pleaded guilty to the separate offence under section 20 of the Misuse of Drugs Act 1971 (see paragraph 8 above).
31.  The applicant relied heavily on the evidence of one of the shipping agents in Guyana, AA, who recalled a conversation in which the applicant told him that the drums which were later found to contain drugs were to be unloaded at Antwerp.
32.  The applicant accepted that import licences for the fourth shipment had been made out for the United Kingdom but claimed that this had been a mistake by customs. Those licences had been returned by Premier Molasses using registered delivery and replaced with the appropriate licences for the Netherlands.
33.  The trial judge’s summing-up contained the following directions to the jury.
34.  On the measures taken to ensure the safety of the jury, the trial judge said:
“Let me remind you of what I said at the beginning of the case about the special security measures taken during the trial. These precautions exist to protect both you, you the jury, and the defendant from any outside interference. Perhaps, as I said at an early stage when we started, it may be that I am being overly cautious, but make no mistake about it at all, none of these measures are to be regarded as any reflection whatsoever on the defendant and they are entirely irrelevant to the issue as to whether he is ‘guilty’ or ‘not guilty’ and we all know that something can appear sinister, which on investigation turns out to be completely innocent. We had, perhaps, an example of it during the case, when someone feared that their spouse was being followed, the matter was fully investigated and although rightly reported to me, it was, in fact, completely innocent. It just demonstrates how careful we must be and assumptions can often be wrong.”
35.  In relation to the reading of VO’s statements, the trial judge directed the jury:
“[A]s you know the general rule in the courts is that unless evidence is agreed it has to be given orally from the witness box, unless there is an admission, or there is an agreement on both sides.
Well there is no agreement as to the accuracy of what [VO] says. On the contrary, the prosecution have been allowed to adduce the evidence; the defence do not accept a word of it - they say that he is on it and that he has acted in a thoroughly dishonest way.”
36.  He then considered the practical difficulties that arose in relation to VO’s evidence:
“[A]s he did not come to court, his evidence does have certain limitations and I want to draw them to your attention.
First of all, when someone’s statement is read out, you do not have the opportunity of seeing him in the witness-box, seeing him in the flesh and sometimes when you do see a witness in the flesh you do get a much clearer idea of whether that evidence is honest and accurate.
Secondly, his evidence has not been tested by the defence under cross-examination and, therefore, you have not had the opportunity of seeing how the evidence survived that form of challenge or test. So you must, therefore, consider the evidence of [VO] in the light of those limitations and you should only act upon it if, having taken those matters into account, you are, nevertheless, sure that it is reliable.”
37.  The trial judge gave a similar warning as to the limitations of VO’s evidence in the absence of cross-examination just before he summarised VO’s evidence.
38.  After this, and having reviewed the efforts made to oblige VO to attend court, the trial judge stated:
“What I seek to emphasise, in fairness to the defendant is that when you assess the evidence of [VO], you look at all the circumstances, throw it all into the melting pot, all the warnings that I have given you, take it all into account and then decide the weight you can properly attach to it; it is a matter for you.”
39.  Whilst they were considering their verdict, the jury asked for – but was refused – copies of the transcripts of VO’s statements. Instead, the trial judge re-read the relevant part of his summing-up summarising those statements. Having done so, he also reminded the jury of the criticism which had been made of the statements by the defence and of his previous warnings to them.
40.  The applicant was convicted unanimously by the jury on 13 July 2005. He appealed against his conviction to the Court of Appeal.
41.  The application for leave to appeal was initially considered and rejected by a single judge of the Court of Appeal.
42.  The applicant then renewed his application to the full court, which dismissed the appeal on 20 February 2007.
43.  There were four grounds of appeal before the Court of Appeal which are relevant to the present application.
44.  First, it was argued that the admission of VO’s statements had violated Article 6 of the Convention and, in particular, that the trial judge would never have allowed the statements to be read had he been aware that BT’s evidence regarding the “N” telephone call would cast doubt on VO’s reliability.
45.  Secondly, the applicant argued that the prosecution had failed to comply with their duty of disclosure under the Regulation of Investigatory Powers Act 2000 in respect of the telephone conversation involving VO and “N”, since this had been important exculpatory evidence.
46.  Thirdly, the applicant maintained that either evidence of the interception of the telephone conversation should have been disclosed to the trial judge or the trial should have been abandoned.
47.  Fourthly, again relying on Article 6 of the Convention, the applicant argued that the security measures in place to protect the jury had violated his right to a fair trial. In support of this fourth ground, he relied on a witness statement prepared by a journalist who had tried to cover the trial. In the statement the journalist indicated that when she first tried to enter the courtroom, she was told by a court official that the trial had finished. However, after remonstrating with the official she was allowed to enter. Once inside, the proceedings were inaudible on account of the screens sealing the public gallery. When she asked if anyone else had complained about the arrangements, she was told that she was the first person to try to attend the trial. Furthermore, she had been told that she could not report anything because there were reporting restrictions in place. Finally, the journalist stated that although she had attended major criminal trials throughout the United Kingdom, she had never encountered such measures, and she considered that as a result the applicant’s trial was to all intents and purposes a secret trial.
48.  In respect of VO’s non-attendance at trial, the Court of Appeal acknowledged that the prosecution’s failure to mention this fact until late in the proceedings was a cause for concern. However, it considered that the dispute over whether VO knew “N” was a “very slender foundation indeed” for any suggestion that his evidence was so unreliable that it ought not to have been allowed to be read.
49.  The court also noted the advantages that the applicant had obtained through VO’s absence:
“It meant that, in so far as he [VO] gave evidence inconsistent with that of the applicant, he was not in court to make that contention good. While the statement by him that the container was intended for the United Kingdom was damaging to the applicant’s case, the applicant had the evidence that was available before the jury to the effect that he had identified particular pallets that were to come out of the container at Antwerp [the evidence of the Guyana shipping agent AA]. It was of assistance to the applicant to have the evidence of [VO] about the instructions that the cargo had been sold to a Dutch company.”
50.  The court was therefore not satisfied that there would have been any positive advantage to the defence in calling VO and thus concluded that there was no arguable basis for criticising the admission of his statements.
51.  The court then turned to the ground of appeal concerning the prosecution’s duty of disclosure. It did not consider that the facts were such as to afford any basis for suggesting that the prosecution had failed either to comply with their duty of disclosure or to follow the Attorney General’s guidelines on the matter (see paragraph 59 below). In fact, even taking this ground together with the absence of VO, the Court of Appeal declared it impossible to find any arguable basis for believing that the prosecution had not fulfilled its duty to ensure that any questions which arose would be examined properly and in accordance with the relevant duties.
52.  Finally, as far as the security measures were concerned, the court began by noting a concession by counsel for the applicant that this ground alone, even if successful, could not compromise the safety of the applicant’s conviction. The court recounted the history of the pre-trial proceedings and noted that the essence of the complaint was largely based on the security screens. The court acknowledged that the security measures clearly caused difficulties but had not been raised by the journalist or anyone else at the time. Ultimately, however, the court concluded that the issue had been dealt with “fully and fairly” by the trial judge.