FOURTH SECTION
CASE OF EZEOKE v. THE UNITED KINGDOM
(Application no. 61280/21)
 
 
JUDGMENT
 
Art 6 § 1 (criminal) • Reasonable time • Applicant’s conviction by a jury of two counts of murder after standing trial five times • One-year delays between the third and fourth trial and between the application for permission to appeal and its refusal • In exceptional case-circumstances proceedings did not proceed with the diligence necessary to keep delays to an absolute minimum
Art 6 § 1 (criminal) • Fair hearing • No indication in case-circumstances of any prejudice to the criminal proceedings on account of the successive trials
 
Prepared by the Registry. Does not bind the Court. STRASBOURG
25 February 2025
 
FINAL
 
25/05/2025
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ezeoke v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 Lado Chanturia, President,
 Tim Eicke,
 Lorraine Schembri Orland,
 Ana Maria Guerra Martins,
 Anne Louise Bormann,
 Sebastian Răduleţu,
 András Jakab, judges,
and Simeon Petrovski, Deputy Section Registrar,
Having deliberated in private on 4 February 2025,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 61280/21) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Obina Christopher Ezeoke (“the applicant”), on 15 December 2021. 2. Mr Ezeoke represented himself in the proceedings before the Court. The United Kingdom Government (“the Government”) were represented by their Agent, Mr M. Boulton of the Foreign, Commonwealth and Development Office. 3. On 31 August 2022 the Government were given notice of the complaints concerning the length and fairness of the criminal proceedings. The remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court. THE FACTS
INTRODUCTION
4. The present case concerns the length and fairness of criminal proceedings against the applicant, who stood trial five times before he was convicted by a jury of the offences with which he was charged. The applicant invokes Article 6 § 1 of the Convention. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born in 1992 and is currently serving a prison sentence in HMP Frankland, in Durham. The applicant’s arrest
6. The applicant was arrested on 18 September 2016 in respect of the murder of a woman (“BE”) and her twenty-one-year-old nephew. The victims were believed to have been shot dead by the applicant as part of a gang-related revenge attack against BE’s sons; BE and her nephew were not involved in gang-related violence and were not thought to have been the intended targets of the attack. 7. When interviewed by the police, the applicant gave no comment and delivered a prepared statement saying that he was not responsible and not present when the murders took place. 8. On 20 September 2016 the applicant was charged with the two murders. 9. Five months later, in a defence statement dated 7 February 2017, the applicant gave particulars of an alibi for the first time. He stated that at the time of the murders he was with CG, her two children, her sister (“RM”) and his friend (“AMC”) at CG’s flat in London. The criminal trials
10. The applicant stood trial on 21 March 2017, six months after his arrest and charge. When the trial had been underway for approximately four weeks and the prosecution case was almost complete, the trial judge fell ill. Once it became apparent that the judge would not be able to sit again within a reasonable time, the jury was discharged. The case was adjourned to start again before a different judge. 11. The second trial commenced on 3 April 2018. During the trial the applicant gave evidence in his defence and called witnesses, including the alibi witness, CG. He did not call RM or AMC. He also disclosed the identity of another key witness, JC, who he asserted had control of the vehicle used in the murders at the relevant time. After deliberating for several days (around forty-two hours in total) the jury indicated that it could not reach a majority verdict. The jury was discharged and the prosecution sought – and were granted – a retrial. 12. The third trial (the first retrial) commenced on 7 January 2019. Once again, the jury was unable to reach a verdict, and was discharged on the third day of deliberations when it indicated that there was no prospect of a majority verdict. The prosecution applied for a further retrial and this application was granted on 12 April 2019. The judge, in his written reasons dated 18 April 2019, referred to the applicable case law (see paragraphs 28-30 below) and concluded that the case easily qualified as one of extreme gravity; it concerned a crime that had undoubtedly occurred; the case against the applicant was a cogent, multistranded, circumstantial case which had not weakened with time, but instead had remained compelling; there was an overwhelming public interest in having a verdict, one way or another, in such a serious case; and the condition of exceptionality, which the prosecution had to satisfy, was met. 13. The fourth trial (intended to be the second retrial) commenced on 10 February 2020. The jury retired on 18 March 2020, the twenty-sixth working day of the trial. By that point the country, and particularly London, was experiencing a public health emergency as a result of the spread of the Covid-19 virus. For reasons related to the public health emergency, by 24 March 2020 the jury had been reduced to eight members, an insufficient number to return a valid verdict. The jury was accordingly discharged. 14. The prosecution applied for the applicant to be retried by a fresh jury. Counsel for the applicant resisted the application on the basis that, owing to the passage of time, it would be oppressive for the applicant to be retried, and any trial proceedings would be unfair and/or constitute an abuse of the court’s process. A jury had been empanelled on four occasions to try him, and he had given evidence on three separate occasions. Furthermore, he had spent the entire period following his arrest in custody under Category A conditions (that is, in a high security prison). 15. The trial judge rejected the applicant’s arguments and, in a decision dated 20 April 2020, ordered a fresh (fifth) trial. 16. The judge noted that the issue to be determined was whether it would be appropriate for there to be a further attempt to reach a conclusion in the second retrial of the applicant. The second retrial had come to an end due to the public health emergency and not because the jury had failed to agree. Had that been the case, the application before the judge would have been an application for a third retrial, for which he would not have given leave. 17. The judge considered the circumstantial evidence relied on by the prosecution, which in his view was powerful and cogent. 18. Furthermore, in the course of oral submissions the judge had asked the applicant’s Counsel if it would be oppressive for the applicant to have a fifth trial, had the fourth trial been aborted during the course of the evidence and the fifth trial started immediately or within a few days. Counsel had conceded that it would not. 19. The judge did not discount the impact of delay in the case. However, he noted that most of the evidence called by the prosecution had been and would be of a kind not reliant on the recollection of witnesses, such as documentary records, CCTV footage, telephone records and properly recorded scientific examinations. The defendant had given evidence in the second retrial before the judge and was not significantly hampered by the fact that he was giving evidence about matters that had occurred in or around 2016. CG’s evidence was affected by the passage of time. However, she did not give any account to the legal representative or police officer until some months after the event which of itself had clearly affected her recollection. 20. The trial judge therefore reached the conclusion that it would not be unfair for a further trial to be held. The material aspects of the judge’s conclusions were as follows:
“27. The position reached in this case is very unusual. For a second retrial to be sanctioned by the court the circumstances must be exceptional. Thus, a third effective trial will be a rarity. For the third effective trial in fact to be the fourth trial faced by defendant because of illness of the trial judge in the first attempt to try the case is bound to be even more rare. In this instance the second retrial was conducted against the backdrop of an increasingly serious public health emergency. It was as a consequence of that emergency – which has been described as the most serious health emergency since the 1918 flu pandemic – that the jury in the second retrial was unable to reach a conclusion of any kind. This combination of circumstances has never occurred previously. It may never occur again. 28. Despite the unprecedented nature of the factual position, the test I have to apply is simply stated. Can the defendant have a fair trial – in the sense of whether it would be fair to try him – if he is retried by another jury? That question requires balancing the effect on the defendant of a further trial and the public interest in the final determination by a jury of an indictment charging exceptionally grave crimes. 29. I do not take lightly the effect of requiring the defendant to stand trial again. I do not ignore the circumstances in which he is currently remanded. Equally, I take into account my own observation of the defendant when he gave evidence in the trial I conducted. That evidence spread over a number of days. If the defendant is a man with little formal education (about which I have no specific evidence), it did not impair his ability to deal with the matters about which he was asked both in evidence in chief and in cross examination. He was a confident witness well able to put over issues to the jury which he considered to be important. There was nothing in his evidence, whether its content or the manner of its delivery, that led me to have any concerns about his ability to present his case to the jury. 30. I have concluded that it would be fair to try this defendant again notwithstanding the delay that will occur. [Counsel for the applicant’s] concession as set out at paragraph 21 above [see paragraph 18 above] means that there is no reason in principle why the second retrial should not be attempted again. The fact that the case had progressed as far as it had does not mean that the jury in the second retrial had reached an impasse. The defendant can have a fair trial and it would not be an abuse of process to try him.”
21. The fifth and final trial commenced ten weeks later, on 7 July 2020. It concluded on 9 September 2020, when the applicant was convicted of both counts of murder by a majority of 11 to 1. On 1 October 2020 he was sentenced to life imprisonment with a minimum term of forty years. The appeal
22. The applicant sought an extension of time (thirty-four days) to appeal to the Court of Appeal against his conviction. By order dated 3 May 2021 the single judge refused permission to appeal on the papers, noting that there would be no point granting the short extension of time sought as none of the applicant’s grounds of appeal were arguable. The application for permission was renewed. On 6 October 2021 the Court of Appeal dismissed the applicant’s application for leave to appeal following a hearing. In a detailed and carefully reasoned ruling, it noted that had there been merit in the appeal, it would have granted an extension of time. According to the court, “no criticism” could be laid at the door of the applicant’s Counsel in relation to time, as they had diligently prosecuted the applicant’s defence throughout, including the application for permission to appeal. 23. The applicant had pursued his appeal to the Court of Appeal on six grounds, including, insofar as is relevant to the application before the Court: the decision to proceed to trial for the fifth time constituted a breach of his right to a fair hearing within a reasonable time, pursuant to Article 6 of the Convention; that decision failed properly to deal with the issue of oppression; and the repeated trials and the delay had such a detrimental effect on the quality of the defence evidence that the outcome of the fifth trial was “at least arguably” unsafe. The applicant pointed out that he had attended five trials over 168 days. While the Crown’s evidence might not have turned upon the recollection of witnesses of fact, the defence case did: the applicant was forced to rely on his memory and that of CG, both of which would have degraded across time. CG’s evidence in particular was fundamental to the applicant’s defence, as he could not have been convicted if her evidence was accepted. By the fifth trial it was clear that she was struggling to recall detail, as a result both of the delay and the confusing and stressful requirement repeatedly to give evidence, and this was very likely to have diminished her credibility in the eyes of the jury. Consequently, there was an increasing imbalance over the course of the successive trials in the ability of the parties adequately to present their case. 24. The Court of Appeal did not consider that the discretion exercised by the fourth trial judge in deciding that the fifth trial should go ahead was perverse, or that no reasonable judge could have reached the same decision. The judge’s ruling was clear and careful; he considered the applicant’s submissions and properly took them into account. Moreover, he was ideally placed to make a judgment about whether the fifth trial should proceed, and ideally placed to determine whether the applicant could have a fair trial. He had observed the applicant giving evidence, and was satisfied that there was nothing in his evidence, whether in its content or delivery, that gave rise to concern about his ability to present his case. He also dealt with the effect of delay on the recollection of the alibi witness, CG. He referred expressly to the strain and pressure on the applicant which would be occasioned by the requirement to stand trial again and made it clear that he did not take it lightly; and he balanced the impact on the applicant with the gravity of the criminality involved and the public interest in convicting the guilty of exceptionally grave crimes. 25. In addition, in the exceptional circumstances of the case the Court of Appeal did not consider it arguable that the requirement to hold a trial within a reasonable time had been breached. In particular, it noted that “exceptional arrangements were put in place to ensure that the fifth trial proceeded quickly despite the pandemic and in the exceptional circumstances that pertained at the time.”
26. Finally, the Court of Appeal considered it unarguable that the delay had such a detrimental effect on the quality of the defence case or evidence that the outcome of the trial was unsafe. It had regard to the following factors:
a. The prosecution case did not involve any contested eyewitness testimony, but was mainly based on evidence from professionals who had contemporaneous notes to help them.
b. There was no difficulty in the defence challenging the prosecution case and any prejudice resulting from the delay was therefore very limited.
c. While the applicant’s evidence was factual and depended on his own contested recall of the relevant events, together with the evidence of CG, the judge was best placed to assess the impact of further delay in relation to that evidence. The judge had no concerns about the applicant’s ability to give evidence in his own defence at a future trial, finding that “he was a confident witness, well able to put over the issues to the jury which he considered to be important.”
d. The quality of CG’s evidence was not arguably diminished by the delay. On the contrary, she was able to moderate her evidence about the nature of her relationship with the applicant, having been shown to be lying about it in the second trial. She gave evidence on four occasions and had no difficulty in recalling the events of September 2016, other than her general lack of particular recollection which was evident when she first attended the police interview on 15 March 2017. Her consistent alibi evidence was that she could clearly remember where the applicant had been, that he was with her and that he could not have committed the murders.
e. The defence expert also gave evidence without any difficulty caused by delay. 27. Leave to appeal was accordingly refused. RELEVANT LEGAL FRAMEWORK AND PRACTICE
28. In relation to whether a second or subsequent retrial would amount to an abuse of process, the Court of Appeal in R v. Bell ([2010] EWCA Crim 3; [2010] 1 Cr App. R. 27), having examined the authorities in the United Kingdom and other common law jurisdictions, stated that the applicable principles were to be found in the following observations of Lord Bingham in Bowe v. R ([2001] UKPC 19):
“It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree... That is no more than a convention, as recognised by the Court of Appeal...in Henworth [2001] EWCA Crim 120; [2001] 2 Cr.App.R.4. It may well be that the prosecuting authorities, having failed to obtain a conviction even by majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further retrial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second retrial... There may of course be cases in which, on their particular facts, a second retrial may be oppressive and unjust .. Whether a second retrial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant’s interests. ... account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system.”
29. In R v. Bell the Court of Appeal added that a second retrial should only be sought in the small number of cases involving a crime of extreme gravity which had undoubtedly occurred and in which the evidence that the defendant committed it on any fair-minded objective judgment remained powerful. 30. In Burton v. R ([2015] EWCA Crim 1307; [2016] 1 Cr. App. R. 7) the Court of Appeal further stated that there must in any case be an informed, dispassionate and searching examination of why a third trial was justified if there had been no irregularities in the first two. THE LAW
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
31. Invoking Article 6 § 1 of the Convention, the applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement, and that he did not have a “fair hearing” as a consequence of the delay and repeated retrials. Article 6 § 1 of the Convention reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time ... by [a] ... tribunal ...”
Admissibility
32. The Government submitted that the applicant’s complaints were manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. However, the Court is of the opinion that the complaints raise sufficiently complex issues of fact and law, so that they cannot be rejected as manifestly ill-founded. It is further satisfied that they are not inadmissible on any other ground. They must therefore be declared admissible.

Outcome for Article 6: violation