Defence Team Submit Detailed Skeleton Argument in Appeal of Teenager Found Guilty of Public Mischief After Reporting Group Rape in Cyprus
JUSTICE ABROAD
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Defence Team Submit Detailed Skeleton Argument in Appeal of Teenager Found Guilty of Public Mischief After Reporting Group Rape in Cyprus
Justice Abroad is assisting the British teenager and her family in their pursuit of justice.
Today the defence team assembled by Justice Abroad submitted a detailed 154-page skeleton argument in the appeal against conviction which will be heard in the Supreme Court of Cyprus this year. The expert legal team Justice Abroad has assembled comprises of Lewis Power QC, a top barrister from Church Court Chambers at the English Bar of the senior rank of Queen’s Counsel, Cypriot lawyer Nicoletta Charalambidou, an experienced human rights advocate, and Ritsa Pekri, a criminal law expert.
Justice Abroad’s Michael Polak is co-ordinating the appeal against the teenager’s conviction which will proceed in the Cypriot Supreme Court at some point later this year and move on to European Court of Human Rights if justice cannot be found within Cyprus.
The defence have been informed that Fair Trials International has made an application to the Supreme Court of Cyprus to become an amicus curae, friend of the Court, in the teenager’s appeal. Fair Trials International is a renowned independent non-governmental organization which ‘works for fair trials according to international standards of justice and defends the rights of those facing charges in a country other than their own.’ The defence has also been informed that the Attorney General of Cyprus is opposing the participation of Fair Trials International as an amicus curae and that a hearing to determine whether Fair Trial International will be allowed to participate will take place on 25 June 2020 at the Supreme Court in Nicosia.
No date has been set for the hearing of the substantive appeal at this time.
Justice Abroad’s Michael Polak stated the following:
‘we have submitted a detailed skeleton argument which sets out exactly why the teenagers conviction, which was reported around the world in January, is unsafe and needs to be overturned. This skeleton refers to a number of authorities from Cyprus, common law jurisdictions, and the European Court of Human Rights which strongly support what we have been saying about this case for a long time, that the teenager should not have been found guilty and that for her to have to go through life with this conviction would be a miscarriage of justice.
Some of the cases referred to in the skeleton argument are almost factually identical to the teenager’s case in that many of them refer to confession evidence taken in circumstances which render that evidence unreliable such as where it involves a young person, put under pressure, without a lawyer, and without any other procedural safeguards such as the recording of Police interviews.
One such case we have included is the case of Panovits v Cyprus where a youth was taken into a separate room by the Police, without a lawyer, and without the operation of any video or tape recording equipment, and ended up ‘confessing’ to the offence. The European Court of Human Rights held that allowing the use of that ‘confession’ within the trial process was in breach of the defendant’s right to a fair trial under the European Convention on Human Rights. We hope that the Strasbourg Court’s reasoning in Panovits will be properly considered by the Supreme Court in the teenager’s case and she is not forced to have to find justice outside of Cyprus.
We were quite surprised by the Attorney General’s decision to oppose Fair Trial’s application to join the case as an amicus curiae. We thought that, given his position, he would encourage the best possible assistance to the Court before they make their important decision in this case, not seek to limit it.
The main grounds of appeal as set out in the skeleton argument are that:
· The retraction statement should not have been admitted in the trial proceedings
This submission will be made on the basis that the retraction statement was obtained after the Defendant has been detained in the Police station for almost 7 hours, without a lawyer, and without a translator. Further, that the retraction statement is unreliable and should have been excluded because of the PTSD suffered by the Defendant, the messages exhibited by the Defendant demonstrate that she was being placed under intense pressure to retract the rape allegation, and that the evidence of forensic linguist Dr Andrea Nini that it is highly unlikely that the retraction statement contained the words of the teenager.
The case law in regards to ‘oppression or things said and done which make a confession unreliable’, which is the test for the exclusion of statements given by a potential defendant to the Police, is wide and includes:
- “Circumstances existing at the time” including the defendant’s mental state which should be assessed with medical evidence, such as that provided by the eminent psychologist Dr Christine Tizzard, rather than the judge’s own view of the defendant’s performance in interview;
- the test was objective, not what the officers thought about the defendant’s mental condition but what her mental condition actually was; and
- such medical evidence is also relevant as to whether the prosecution have proved that the confession was not made as a result of what was said or done, the burden being placed upon the Prosecution to prove this (R v Everett [1988] Crim.L.R. 826)
The defence team will rely upon a large number of cases both in both common law jurisdictions and in Europe as well as the international treaties to which the Republic of Cyprus is bound including:
· The case of R. v Blackburn (Paul), [2005] EWCA Crim 1349 which was an appeal of a conviction after a trial in the English courts in 1978 is factually very similar to the Appellant’s case and it shows the problems which can arise when interviews of vulnerable people are not recorded. This case pre-dated the recording of interviews which is now mandated in the United Kingdom, and a 15 year old was convicted after trial of attempted murder and attempted buggery in 1978 which arose from an attack on a 9-year-old boy.
At trial in 1978 the defence had argued that the confession of the 15 year old should be excluded because a threat was made against him to charge him with an alleged earlier offence if he did not confess to this one, because of his young age. The defendant was not given access to a lawyer before making the purported confession. The judge rejected the defence application. He found that there had been no threat or improper pressure and he ‘preferred the evidence of the police officers’ over the evidence of the defendant. The question for the Court of Appeal was whether the confession should have gone before the jury. At that time that there was evidence from a forensic linguist available ‘to suggest a significant police involvement in the wording of the appellant's written statement’ and there was also evidence from a consultant forensic psychologist who gave evidence before the Court of Appeal concerning ‘The phenomenon of false confessions and the circumstances in which research has shown that a vulnerable individual, after a prolonged period of questioning, may give what is termed a coerced compliant confession’ with the ‘key feature giving rise to a coerced compliant confession [being] fatigue, which, together with an inability to control what is happening, may induce the individual to experience a growing desire to give up resisting suggestions put to him. Eventually he can take no more and is overwhelmed by the need to achieve his immediate goal of bringing the interrogation to an end. That may not seem rational to an outsider, but it becomes rational if the individual finds the circumstances becoming intolerable.’ The evidence of both the experts in Blackburn mirrors the evidence given by Dr Andreas Nini and Dr Christine Tizzard in the teenager’s trial.
The Court of Appeal, in making their decision, stated that the Judge’s Rules for the admission of evidence were in effect ‘an encapsulation of the common law’ and that these principles included that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor and that any person writing his own statement shall be allowed to do so without any prompting. The Court of Appeal took into account:
i. That there was prompting of the defendant when he gave the confession and evidence indicating a significant police involvement in wording of the written confession which called into questions the credibility of the Officers’ evidence as well as the confession;
ii. There was ‘no doubt that this appellant, who was just past his fifteenth birthday at the time of the interview, should have been advised of his right to legal advice’;
iii. ‘The duration of the interview where the appellant who was just 15 years old at the time, had been questioned for three hours and ten minutes by these two senior police officers before he made any admission…. Such a lengthy questioning of a 15-year-old boy without a parent or guardian present gives us real cause for concern’; and
iv. that, whatever the officers' intention…a boy of this age would have been likely to have regarded those references to the new evidence and the possibility of a further charge as a threat, to be made good if he did not co-operate.’
The Court concluded that they were ‘clear that none of the appellant's admissions should have gone before the jury. Certainly, in the light of current standards they cannot be seen as reliable.’
· European Union Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings which: ‘lays down minimum rules concerning the right of access to a lawyer in criminal proceedings’ and provides that ‘Member States shall ensure that suspects and accused persons have the right of access to a lawyer in such time and in such a manner so as to allow the persons concerned to exercise their rights of defence practically and effectively…. before they are questioned by the police’. Member states are required to ensure that ‘any waiver is given voluntarily and unequivocally.’ The defence team do not accept that the teenager gave any waiver of her right to a lawyer however even on the Prosecution’s case it cannot be said that a waiver was given ‘unequivocally.’
· Article 6 of the European Convention on Human Rights and Fundamental Freedoms which protects fair trial rights has been interpreted along with the EU provisions by the European Court of Human Rights in Beuze v. Belgium (2019) 69 E.H.R.R. 1 of providing the following minimum requirements which must be met:
o suspects must be able to enter into contact with a lawyer from the time when they are taken into custody. It must therefore be possible for a suspect to consult with his or her lawyer prior to an interview, or even where there is no interview (para 133);
o suspects have the right for their lawyer to be physically present
during their initial police interviews and whenever they are questioned in the subsequent pre-trial proceedings and in particular to ensure that the defence rights of the interviewed suspect are not prejudiced (para 134);
o In addition to the above-mentioned aspects, which play a crucial role in determining whether access to a lawyer during
the pre-trial phase has been practical and effective, the Court has indicated that account must be taken, on a case-by-case basis, in assessing the overall fairness of proceedings, of the whole range of services specifically associated with legal assistance.
The Court in Beuze confirmed the two-step test first set out by the Court in Salduz for whether there would be a breach of Article 6 where a defendant has not be provided with a lawyer first looking at whether or not there were compelling reasons to justify the restriction on the right of access to a lawyer, then examining the overall fairness of the proceedings which will attract ‘very strict scrutiny to its fairness assessment… Where there are no compelling reasons’ (para 145) and take into account matters such as:
o whether the applicant was particularly vulnerable, for example by reason of age or mental capacity;
o the quality of the evidence and whether the circumstances in which it was obtained cast doubt on its reliability or accuracy, taking into account the degree and nature of any compulsion;
o in the case of a statement, the nature of the statement and whether it was promptly retracted or modified;
o the use to which the evidence was put, and in particular whether the evidence formed an integral or significant part of the probative evidence upon which the conviction was based, and the strength of the other evidence in the case; and
o the weight of the public interest in the investigation and punishment of the particular offence in issue.
· The European Court of Human Rights has already found Cyprus in breach of Article 6 European Convention on Human Rights in Panovits v Cyprus 2008 (Application no. 4268/04) where the Court found a breach of Article 6 by the Republic of Cyprus when a 17 year old male was taken into a separate room with a number of police officers and there were allegations of veiled threats made by the Police before a confession was obtained. In this case the Court addressed the Cypriot authorities submission that the 17 year old had waived his right to a lawyer and considered ‘that given the vulnerability of an accused minor and the imbalance of power to which he is subjected by the very nature of criminal proceedings, a waiver by him or on his behalf of an important right under Article 6 can only be accepted where it is expressed in an unequivocal manner after the authorities have taken all reasonable steps to ensure that he or she is fully aware of his rights of defence and can appreciate, as far as possible, the consequence of his conduct’ (para 68)
The case of Panovits covers very similar facts as the teenager’s case and demonstrates why the use of the retraction statement ‘confession’ was in breach of her rights and has resulted in an unsafe conviction.
· Akdag v. Turkey (Application no. 75460/10) also demonstrates how strictly the European Court of Human Rights interrogates any argument that there has been a waiver of the right to a lawyer. This case concerned the use of statements made by a detained when she was in custody without legal representation which were used against her in a criminal case where she was found guilty of being a member of a proscribed Kurdish organization. The front page of the statement which the applicant gave indicating her membership of such a group also included a ‘printed statement that, inter alia, the person being questioned had the right to remain silent and the right to choose a lawyer. It appears from the form that the applicant refused legal assistance, since the first page of the record includes a printed phrase stating “No lawyer sought” and a box next to it marked with a printed “X”. Moreover, according to the record, the applicant also stated that she did not want a lawyer or to remain silent.’Even this did not relieve the authorities from having to prove that there was a valid waiver of this right which they failed to do with the Court finding against them. We will be submitted that in the teenagers case there is no signed statement of any kind and that this will fall way short of any possible valid waive.
· The reliance on the retraction statement as the decisive evidence against the Defendant that she had lied about being raped was against her rights to a fair trial under Article 6 of the European Convention on Human Rights;
The trial judge failed to properly direct himself as to the elements of the offence of public mischief and failed to consider each element of the offence before convicting the teenager
· In this regard, it will be submitted that the Judge at the District Court did not provide the Defendant with a fair hearing and closed his mind to an essential element of the offence by continuously shouting ‘this is not a rape trial, I don’t want to hear evidence about rape’ as well as preventing the Defence team from properly examining and putting forward evidence which supported the teenager’s account that a rape had taken place as described, and he therefore failed to properly apply the burden and standard of proof. The defence team will be relying on a number of authorities such as:
o The Cypriot Constitution which sets out, at Article 12 (4) and (5) Every person charged with an offence shall be presumed innocent until proved guilty according to law. (4) and that ‘Every person charged with an offence has the following minimum rights: (a) to be informed promptly and in a language which he understands and in detail of the nature and grounds of the charge preferred against him; (b) to have adequate time and facilities for the preparation of his defence;
o The test in Cypriot law for bias as set out in Phaedeon Economides v. The Police (1983) 2 Cyprus Law Reports 301 which provides that ‘On the question of bias, the test to be applied is whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts could have reasonable suspicion that a fair trial for the applicant was not possible.’
o R v Hulusi (1974) 58 Cr. App R 375 which provide that interventions by the trial judge which can lead to the quashing of a conviction include:
§ When the Judge invites the jury to disbelieve the evidence for the defence in such strong terms that the mischief cannot be cured in the summing up;
§ When the Judge makes it impossible for defending Counsel to do their duty in conducting the defence; and
§ when the Judge effectively prevents the defendant or a witness for the defence from telling his story in his own way.
· Convictions can also be quashed where the conduct of the trial judge towards the defendant might have hampered him in his defence. In R v Cordingley [2007] EWCA Crim 2174 the Court explained:
We have been greatly troubled by the judge’s conduct in this case. We are bound to say that we consider the exchanges between the judge and Counsel…. Betray a rudeness and discourtesy of which the judge should be ashamed…
The issue is whether these matters either individually or cumulatively affect the safety of the conviction….
The safety of a conviction does not merely depend on the strength of the evidence that a jury hears. It depends also on the observance of due process. In this case it seems inescapable that the effect of the judge’s conduct must have been to inhibit the defendant in the course of his defence. He clearly felt that the judge was prejudiced against him.
· EU Directive 2016/343 which provides at Article 6 that ‘the burden of proof for establishing the guilt of suspects and accused persons is on the prosecution’ and that ‘any doubt as to the question of guilt is to benefit the suspect or accused person, including where the court assesses whether the person concerned should be acquitted’ and Article 6 of the European Convention on Human Rights also apply to the way that the Judge approached this case.
· Barberà, Messegué and Jabardo v. Spain,10590/83 § 77 provides that Paragraph 2 of Article 6 which embodies the principle of the presumption of innocence requires inter alia that: (1) when carrying out their duties, the members of a court should not start with the preconceived idea that the accused has committed the offence charged; (2) the burden of proof is on the prosecution, and (3) any doubt should benefit the accused. We will be submitting that these requirements were breached in the teenagers trial.
· In Kyprianou v. Cyprus (Application no. 73797/01) which concerned contempt proceedings against a criminal lawyer after the trial bench felt that he had insulted them the European Court of Human Rights found that the judge’s ‘did not succeed in detaching themselves sufficiently from the situation’ and had therefore breached the object impartiality test. We will be submitting that he trial Judge did not properly consider the evidence which tended to suggest that a rape had taken place and had not acted without bias or considered each element of the offence of public mischief.
The Discourtesy of the Trial Judge
· In the recent civil case of Serafin v Malkiewicz & Others [2019] EWCA Civ 852 – the Court of Appeal ruled on the unfair treatment of the trial Judge stating, inter alia “…one is left with the regrettable impression of a Judge who, if not partisan, developed an animus towards the claimant…” The test in this regards is whether the nature and extent of the interventions had resulted in the trial becoming unfair. Where there was a possibility that justice had been denied , the Court of Appeal ought to intervene.
· It was important not merely to consider the nature and extent of the judge’s interventions but also the rest of the trial. (R v McClelland [2015] EWCA Crim 1080).
· It will be submitted on behalf of the teenager that as well as seeming to prejudge elements of the offence as set out above, the trial Judge also acted with discourtesy towards the teenager and the defence representative in such a way so as to deny the teenager a fair trial.
Further arguments at appeal will include:
· The failure of the Court in ignoring the defence expert evidence including the Forensic Doctor, Marios Matsakis, the linguistics expert Dr Nini, and the psychologist Dr Christine Tizzard;
· The failure of the trial Court to properly consider the evidence before it, including DNA evidence of three of the Israeli youths on a condom which was also found with blood on it, and the evidence from two English youths and the Doctor at the hotel about the state of the teenager when they found her on the night of the rape incident, which supports the teenager’s account of what took place;
· The failure of the trial Court to take into account the prosecuting authorities failure to conduct a proper investigation into the rape; and
· The Court’s neglect to take into account the failure of the prosecuting authority to adduce evidence to prove what happened on the night of the rape in the hotel room in that they failed to call the Israeli youths to give evidence. Therefore the Court was left with only the teenager’s testimony about what happened in that room and should not have found to the criminal standard that she lied about being raped as a consequence.
The teenager, her family, and the legal team would like to convey their thanks to all that have supported the campaign for justice so far and for the generous donations to the Go Fund Me fund (www.gofundme.com/f/Help-Teen-Victim-Get-Justice-In-Cyprus)
The teenager and her mother will not be giving interviews as she helps the teenager to return to her life in the United Kingdom. We ask that their privacy is respected.
Justice Abroad is happy to deal with any enquiries by email: Contact@JusticeAbroad.co.uk
Notes to Editors
Justice Abroad, www.justiceabroad.co.uk has been set up to help those trying to find their way through foreign justice systems with all the associated hurdles that presents. To help such families with these dilemmas and many more, three experts, Michael Polak, a barrister with an international practice focussed on the assistance of foreign nationals in trouble around the world, David Swindle , a former Detective Superintendent who has worked on hundreds of murders and complex high profile investigations in the UK and abroad during his 34 years in the police, and David Walters MVO, a former British Diplomat with over thirty years’ experience having served in over a dozen countries around the world, have pooled their extensive experience. Justice Abroad is endeavouring to ensure that their client experiences a fair, transparent, and unbiased trial process in Cyprus.
Lewis Power QC is a barrister who was called to the Bar of England and Wales in 1990 and achieved the senior rank of Queen’s Counsel (QC) in 2011. He has a strong reputation for fighting difficult cases at trial and advising and advocating in matters with international and cross-jurisdictional elements.
Nicoletta Charalambidou is human rights lawyer with an expertise on European Union law and with a particular interest in victims and suspects rights in criminal procedures and discrimination in the administration of justice. She is also a member to the Legal Experts Advisory Panel of Fair Trials.
Ritsa Pekri is a civil and criminal law lawyer working with Nicoletta Charalambidou LLC with strong experience in criminal cases and those matters involving human rights related issues.
Justice Abroad is also cooperating with KISA - Action for Equality, Support, Antiracism which is a national NGO active in the field of antidiscrimination and antiracism, including discrimination in the administration of justice and a human rights violations watchdog working in the field of victim and suspects rights under EU law.