A man convicted of murder and other offences has lost a case at the European Court of Human Rights based on part of his trial having been heard behind closed doors in the interests of national security.
A chamber of seven judges found no breach of the Convention by the United Kingdom in a case brought by Wang Yam, a UK national, who was convicted in 2008 and 2009 of murder, burglary and fraud, the first two charges after a retrial. The application was based on the fact that at the start of his trial in January 2008 the judge ordered that part of his defence evidence be heard in camera in the interests of national security and to protect the identity of a witness or other person. The defence appealed unsuccessfully against that order. At trial, that evidence, together with the evidence of prosecution witnesses led in rebuttal, was heard in camera. The applicant's appeals were unsuccessful.
The application to the Strasbourg court was based on article 6(1) and (3)(d) (right to a fair trial and right to obtain attendance and examination of witnesses). The applicant alleged in addition that the state had failed to comply with its obligations under article 34 (right of individual petition) by refusing to allow disclosure of the in camera material to the court.
In its judgment, issued today, the court noted that the decision to hold part of the trial in camera had been made for national security reasons, and it had therefore not been provided with detailed reasons. However, it found that Mr Yam had been fully involved in the procedure which had led to the making of the in camera order: all the evidence concerning the reasons for the prosecution request had been made available to him and he had taken part in the hearing on the matter.
In granting the order, the trial judge had also carefully balanced the need for openness against the national security interests at stake and had satisfied himself that Mr Yam could nevertheless have a fair trial. The decision to hold part of the trial in camera had also been reviewed on appeal. The Human Rights Court concluded that the decision and the reasons for it had been subjected to rigorous and independent scrutiny by judges on several occasions. The court also found it significant that the in camera order was limited to the extent necessary to protect the interests at stake and applied only to a specific part of the applicant’s defence.
Further, there was no evidence that the in camera decision had caused any unfairness at the trial. The applicant had argued that holding part of the trial behind closed doors had prevented more defence witnesses from coming forward, but the court found this to be speculative and observed that most of the trial had in any case taken place in public and had attracted much publicity. Nor did it accept an argument that the evidence of the four prosecution witnesses heard in camera had had more standing as a result: the manner in which evidence had been taken from them and put before the jury had been exactly the same as for all other witnesses in the case.
As regards the argument that not being able to disclose the in camera material to the Strasbourg court had affected the applicant's ability to present his case to it, the court found that in his written submissions, he had made no further substantive arguments regarding the alleged unfairness at trial, even though the domestic courts had found that he would be able to do so while respecting the in camera order.
The court concluded that the request to hold part of the trial behind closed doors had been thoroughly reviewed, the applicant had taken part in those proceedings and the justification for the order had been examined in detail several times. Overall, there was nothing to suggest that the order had resulted in any unfairness to the applicant in the trial and there had been no violation of article 6.
Further complaints about the retrial being allowed, and about the circumstantial nature of the case against the applicant for murder, were rejected as manifestly ill founded.
On the case under article 34, the UK decision to withhold the in camera evidence from it had been reviewed by the domestic courts at three levels of jurisdiction, with the courts handing down detailed justifications for their decisions. The court found accordingly that there had been meaningful independent scrutiny of the asserted basis for the continuing need for confidentiality, and there had therefore been no failure by the authorities to comply with their obligations under article 34.