Cyprus (Justice)

Brooks Newmark secures a debate on the conviction of Luke Atkinson and Michael Binnington in Cyprus.

 

2.34 pm

Mr. Brooks Newmark (Braintree) (Con): It has become a parliamentary convention for Members to say that they are delighted to have secured an Adjournment debate, but that is not quite true in this case because the circumstances that have led to my securing this debate are of such concern to me, my constituents Luke Atkinson and Michael Binnington, their families and their legal representatives.

What has become a tragedy for all involved began as a simple family holiday to Cyprus in August 2006. I want to give a brief account of what happened according to the human rights organisation Fair Trials International, which has been working closely with Luke and Michael. On their first night in Cyprus, Luke and Michael went to a local nightclub with six other members of their family. Unfortunately, a fight broke out after a local man was accused of touching a girl who was part of their group. One of the boys subsequently sustained a head injury and went to a clinic to get medical attention. Some local boys on mopeds followed them in a threatening manner, with coshes; they alluded to having a knife.

Luke and Michael's uncle, Julian Harrington, who had been asleep, was called and drove to the scene in his hire car. First, he went to the club and picked up Michael and Luke before heading to the clinic. At some point thereafter, Julian encountered two boys on a moped driving towards his car the wrong way down a one-way street. Neither of the boys was wearing a helmet. The car clipped the moped; that resulted in the rider falling off and hitting his head on a pole. Tragically, his passenger, who also fell off, later died from head injuries.

Julian was charged with manslaughter and grievous bodily harm on the basis that he had deliberately driven into the moped three times. Even the survivor of the incident said that the car bumped into the moped just once. Although Luke and Michael had been only passengers in the car, all three men were deemed to have formed a common purpose in wishing to harm the two victims and were charged with exactly the same offences. I will return to the idea of common purpose and to the decision to press charges against each of the three men, but first I want to finish the background.

Mr. Harrington was advised that if he pleaded guilty, he would receive a sentence of between six and 10 years' imprisonment. According to his lawyer in Cyprus, the trial judge gave an indication that Julian should change his plea and that the prosecution should consider its case against Michael and Luke. Julian was given very little time to reach a decision and was understandably confused by the trial process in a foreign country. The circumstances are murky, to say the least. Nevertheless, he decided to plead guilty to avoid a sentence in excess of 20 years, and also to save his nephews and their wider family from any more uncertainty and potential misery.

Mr. Harrington received a very severe sentence of 15 years-far in excess of that usually given to Cypriot nationals found guilty of such offences. The consequences for Luke and Michael were initially more positive. Although they had to stand trial and were subjected to a fierce media frenzy, open abuse and threats in court, they were duly acquitted by the three judges of the assize court and returned to England to get on with their lives.

This debate has arisen because of the prosecution's subsequent decision to appeal against the acquittals to appease public expectation of a conviction. No new or additional evidence was presented by the prosecution, but on 29 January 2008, the supreme court of Cyprus held that the assize court had not given proper weight to the evidence and declared Luke and Michael guilty of manslaughter and GBH. The two boys were due to be sentenced yesterday, but at the last minute the hearing was suspended until 4 April. Needless to say, they are determined not to return to Cyprus to serve any sentence and have vowed to fight the inevitable extradition proceedings from the Cypriot Government.

I hope that I can prevail upon the Under-Secretary to do one of two things. The first and most important is to intervene directly with the Cypriot Government to fend off the initiation of extradition proceedings and to encourage a full review of the case and its handling. The second is to appeal to the Home Secretary to resist the extradition application if and when it is made.

Two key issues strike me as having a bearing on the case. The first is the right to a fair trial. There should be no doubt about the inflammatory effect of the case on public opinion in Cyprus. It was, indeed, a tragedy for the victims, their families and the local community-I do not seek to diminish that. However, there has clearly been an incentive for the Republic to achieve the maximum retributive justice and claim credit for doing that.

The unusual length of the sentence that was handed down is indicative of the public-perhaps even political-pressure that has been brought to bear on the court in this case. All three defendants, but especially Luke and Michael, were tried in the press as much as in court.

I had been led to believe that the legal system in the Republic of Cyprus is very similar to our own. Indeed, the Republic's legal tradition stems in part from residual English statute law and the court must have regard to both common law and equity. Nevertheless, the more I look at the case, the more fundamental the difference between the administration of justice in the UK and that in Cyprus appears to be.

When the assize court found the two men innocent, the prosecution appealed against the decision so that the desired result could be achieved. However, rather than hold a retrial, the supreme court substituted its own verdict. Luke and Michael were convicted by three judges who had never heard the evidence against them in open court. The decision to substitute a verdict instead of ordering a retrial is extremely unusual in most jurisdictions. Indeed, I have been told that it is without precedent in most banana republics, let alone established western democracies. If the Under-Secretary knows of other examples, I should be grateful if she would place them on the record in her reply.

By way of comparison, I want to consider the circumstances that would prevail if a similar case occurred in this country. Since the Criminal Justice Act 2003-and, indeed, before that in certain rare circumstances-British prosecutors have been able to appeal against acquittals. However, such an appeal can be ordered only with permission from the Director of Public Prosecutions if there is new and compelling evidence and if it is in the public interest. In other words, there are rigorous checks and balances. Even in the event of a successful appeal by the prosecution, the outcome for the accused is a full retrial.

An alternative regime, under section 36 of the Criminal Justice Act 1972, allows the Attorney-General to refer a point of law, which arises out of a trial on indictment that resulted in an acquittal, to the Court of Appeal. Such a referral clarifies the legal issues at stake but, crucially, without affecting the acquittal of the defendant. Those two approaches of English law have in mind the paramount need to do justice to the defendant, regardless of the desirability to the state of securing convictions.

The case that we are considering is especially worrying because, although the Cypriot supreme court has the power to

"uphold, vary, set aside or order the retrial of a case as it may think fit",

it substituted its own verdict instead of ordering a retrial. If the supreme court had serious doubts about the safety of Michael and Luke's acquittal, it behoved it, in the interests of justice, to order a retrial and not simply overrule the assize court.

When I met the acting high commissioner of Cyprus yesterday, he was firmly of the opinion that the decision to overturn the acquittal was purely and simply a judicial decision of the supreme court. However, the appeal of the original acquittal was not initiated by the court; rather, it was initiated by the state. We are therefore entitled to ask how far the decision was political and how far it may have been influenced by the oxygen of publicity and the tinderbox of public opinion.

Until about 10 years ago, the Cypriot Attorney-General did not have a right to appeal against an acquittal by the assize court, but since then I understand that about 60 per cent. of acquittals have been appealed. The constitution of Cyprus includes the relevant provisions of the European convention on human rights and fundamental freedoms, which Cyprus has adopted and which includes the right to a public and fair trial. It is the belief of many of those involved in the case that the trial that all three men received was far too public and not fair enough.

Article 6 of the European convention on human rights guarantees the right to trial by an impartial tribunal within a reasonable time. Yet months after being acquitted, Luke and Michael may face extradition to Cyprus as a result of a prosecution appeal whose major motivation appears to have been public opinion. The two men are also placed in an invidious position by the fact that Cyprus has a two-tier legal system, which gives them no further recourse to appeal their conviction or sentence after such an arbitrary ruling by the supreme court.

My final concern about the conduct of the trial is about the way that Julian Harrington's entry of a guilty plea was handled. I am grateful to the acting high

commissioner of the Republic for clarifying that although there is no formal mechanism of plea bargaining in Cyprus, a timely guilty plea can be accepted in mitigation. However, for better or worse, Mr. Harrington believed that he had some incentive to give up years of his life-he thought that he was getting something in return. Indeed, he got far more than he bargained for, and so did his nephews.

The question that must be asked, and answered, is: what reasons could Julian Harrington possibly have had to fall on his sword to no purpose, unless he had been led to believe something-or rather, misled-by the Cypriot authorities as to the likely consequences of his guilty plea? In other words, it would seem that there was some sort of plea bargaining or informal understanding. That fact alone should justify pressure from Her Majesty's Government for a full review of the case by the Cypriot authorities and, in the interim, the refusal of any extradition proceedings that may be brought in due course in respect of Luke and Michael.

My second strand of argument is an attempt to address the substantive issue of law at the heart of the case-the concept of "common purpose"-in so far as I am able to do so without being an English lawyer, let alone a Cypriot one. I have had the opportunity of seeing the supreme court's judgment, some of which makes disquieting reading. The judgment quotes from Michael's statement in the following unequivocal terms:

"I am innocent. When I got in the car, driven by Julian, it did not enter my mind there and then that there was anything wrong going on. I didn't know where he was going and I was very drunk. I never intended to hurt anybody and I was in no position to do anything or to prevent anything from happening."

Luke's statement reads along similar lines, but the judgment comments only that

"The Assize Court did not attach any weight to these unsworn statements, which it considered totally unconvincing."

Both Michael and Luke maintain that they were never given the opportunity to make a statement under oath and that they would have been happy to do so.

Even more worryingly, there is a claim that Luke's testimony had mentioned Julian Harrington's exhortation -"Let's get them!"-when the boys got in the car. Luke denies that that was part of his testimony. The legal basis for prosecuting Michael and Luke, as well as Julian Harrington, was that the three had cooked up a plan for revenge and had all agreed upon it.

In that context, the words "Let's get them!" have chilling connotations and call to mind the case of Derek Bentley. That case is remembered up and down the country for Bentley's shout of "Let him have it, Chris!" to his accomplice, who subsequently shot and killed a policeman. It is remembered also as one of the most famous miscarriages of justice, and one that was rectified by a posthumous pardon for Bentley after 45 years.

The similarity of that case to the prosecution's claim in the present case, that the words "Let's get them!" amounted to a plan of a joint criminal enterprise, is striking. Nevertheless, the assize court found that there was no common purpose or joint enterprise between the three boys to kill or injure the victims or anybody else. The supreme court disagreed, suggesting that the assize court had erred in law. Indeed, the only argument that I have heard in favour of the boys' conviction without a retrial is that the appeal concerned only a point of law. I do not believe that reasoning to be robust.

What the supreme court really meant by an appeal on a point of law was that it placed a different interpretation on the facts. Even the prosecution admitted when making its case that the evidence against the boys was "circumstantial". Instead of examining each event in isolation, as the assize court had done, the supreme court drew its conclusions from the entire sequence of events that transpired that night, and it inferred that there had been a common purpose. However, if the supreme court believed that the assize court had misdirected itself on a point of law, it should have ordered a retrial so that a new court could be properly directed as to the law and hear the facts.

It is crucial to establish both the facts and the sequence of events, and there are manifest difficulties in doing so. Whether we consider the abundance of unsworn statements; the repeatedly changed testimony from witnesses who saw the events unfold at some distance and, I hasten to add, in the dark; the inaccuracies and additions to testimony; or the plain confusion about the sequence of events, the facts are about as clear as mud.

Luke and Michael were arguably too drunk to have formed any common purpose, malicious or otherwise, and in any event were unable to get out of a moving vehicle. There does not appear to be any clear justification for the expedient of throwing out an acquittal and substituting a guilty verdict. The fact remains that the supreme court overruled the assize court and inferred the existence of a common purpose without itself having heard a shred evidence. That is deeply worrying.

I shall draw my remarks to a close by thanking the acting high commissioner of Cyprus to the UK, Mr. Dimitris Hatziargyrou, for agreeing to meet me to discuss the case. As a diplomat responsible to the Executive of a state that believes in the full separation of powers, he was in a difficult situation, but he acquitted himself with both great courtesy and professionalism. I should also like to thank Saima Hirji from Fair Trials International and Karen Todner, Luke and Michael's English solicitor, for their invaluable assistance. Finally, I ask the Minister to do all that she can to secure a just outcome for Michael and Luke.

2.53 pm

...

BROOKS' OTHER CONTRIBUTIONS TO THE SAME DEBATE

Mr. Newmark: Time is short. I understand that the President of Cyprus is visiting the Foreign Secretary in two or three weeks' time, so will the Minister at least approach the latter to get this case put on the agenda when he meets the new President of Cyprus?

Meg Hillier: I would be happy to raise the matter with the Minister for Europe, as it would be better for him to raise the matter with his colleague directly. The hon. Gentleman has put that on the record and I will ensure that I mention the issue personally to my ministerial colleague.

 

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