Holding part of a murder trial behind closed doors did not violate the right to a fair trial
Yam v. United Kingdom 16.01.2020 (no. 31295/11)
Trial for intentional homicide trial was held behind closed doors for the testimony of some witnesses.
The national court ruled that this part of the proceedings should have been held behind closed doors for reasons of national security.
The Court in particular found that the decision to have some proceedings closed to the press and the general public closed on national security grounds did not result in the trial being declared unfair. In addition, the domestic courts carried out a detailed examination of the application for such a decision before granting it, a procedure in which the defense had fully participated.
The European Court of Human Rights held unanimously that there had been no violation of the right to a fair trial and that of the examination of witnesses (Article 6 §§ 1 and 3 (d) (a) of the ECHR).
Article 6 par. 1
Article 6 par. 3 δ
The applicant, Wang Yam, is a United Kingdom national who was born in 1961.
In 2006 the applicant was charged with murder and a number of other offences linked to alleged
theft of the victim’s mail.
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, the applicant’s evidence, together with the evidence of prosecution witnesses led solely to
rebut his defence, was heard in camera. He was subsequently convicted of murder after a retrial. His
appeals were unsuccessful.
THE DECISION OF THE COURT…
Article 6 §§ 1 and 3 (d)
The Court noted that the decision to hold part of the applicant’s trial in camera had been made for
national security reasons, and it had therefore not been provided with detailed reasons for that
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
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.
The Court further found that there was no evidence that the in camera decision had caused any
unfairness at the trial. As to the applicant’s argument that holding part of the trial behind closed
doors had prevented more defence witnesses from coming forward 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 the applicant’s argument that prosecution witnesses had
had more standing, as they had been able to testify in camera. It noted that 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.
The applicant had also argued that not being able to disclose the in camera material to the
Strasbourg Court had affected his ability to present his case to it. However, 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 §§ 1 and 3 (d).
Other complaints under Article 6 § 1
The applicant also complained about his being retried for murder, burglary and theft after the first
jury had been unable to come to a verdict on those charges; about the admission of qualified
identification evidence; and about the circumstantial nature of the case against him for murder.
However, the Court found that he had not made out any arguable complaint of unfairness arising
from these issues and rejected the complaints as manifestly ill-founded. It also rejected a complaint
about the 2017 appeal proceedings as it had been raised outside the six-month time-limit.
Mr Yam submitted that the UK authorities’ refusal to disclose the in camera material to the Court
had interfered with his right to individual petition.
The Court noted the applicant had asked it to request the material in question from the UK
authorities, but that it had decided not to do so. This would usually be fatal for a related complaint
under Article 34. In any event, a refusal by a State to supply such material would generally not lead
to a finding that Article 34 had not been complied with, provided that the decision had been subject
to some form of adversarial proceedings before an independent body competent to review the
reasons and the relevant evidence. In the applicant’s case 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. There had therefore been no failure by the authorities to comply with their
obligations under Article 34.