EDWARDS v. THE UNITED KINGDOM
Doc ref: 13071/87 • ECHR ID: 001-45475
Document date: July 10, 1991
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Application No. 13071/87
Derek EDWARDS
against
the UNITED KINGDOM
REPORT OF THE COMMISSION
(adopted on 10 July 1991)
TABLE OF CONTENTS
page
I. INTRODUCTION (paras. 1-17) 1-3
A. The application (paras. 2-4) 1
B. The proceedings (paras. 5-12) 1-2
C. The present Report (paras. 13-17) 2-3
II. ESTABLISHMENT OF THE FACTS (paras. 18-43) 4-11
A. The particular circumstances of the case 4-7
(paras. 18-31)
B. Relevant domestic law and practice 7-11
(paras. 32-43)
III. OPINION OF THE COMMISSION (paras. 44-60) 12-15
A. Complaints declared admissible 12
(para. 44)
B. Points at issue (para. 45) 12
C. As regards Article 6 paras. 1 and 3 (d) 12-14
of the Convention (paras. 46-54)
Conclusion (para. 54) 14
D. As regards Article 13 of the Convention 15
(paras. 55-58)
Conclusion (para. 58) 15
E. Recapitulation (paras. 59-60) 15
Dissenting opinion of MM. Gözübüyük, Weitzel, 16
Martinez and Rozakis, Mrs. Liddy and Mr. Geus
APPENDIX I History of the proceedings 17-18
APPENDIX II Decision on the admissibility 19-23
of the application 7.12.87
APPENDIX III Decision on the admissibility 24-35
of the application 9.1.91
I. INTRODUCTION
1. The following is an outline of the case, as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a citizen of the United Kingdom, born in
1943, who at the time of lodging his application was detained in H.M.
Prison Frankland, Durham, where he was serving a ten year prison
sentence. He was represented before the Commission by Mr. J.K.
Campbell, Solicitor, Messrs. Freeman Johnson, Solicitors, Durham.
3. The application is directed against the United Kingdom. The
respondent Government were represented by their Agent, Mr. M.C. Wood,
succeeded by Mrs. A.F. Glover, and Ms. D.L. Brookes, all of the
Foreign and Commonwealth Office.
4. The case concerns the applicant's complaint that he did not
receive a fair hearing since the police withheld certain evidence at
his trial. The evidence was reviewed by the Court of Appeal, which
criticised various aspects of the work of the police, but found that
these matters did not render unsafe the applicant's convictions. The
application raises issues under Article 6 paras. 1 and 3 (d) and
Article 13 of the Convention.
B. The proceedings
5. The application was introduced on 29 September 1986 and
registered on 10 July 1987.
6. The applicant's complaints were rejected by the Commission on
7 December 1987 for failure to comply with the six months' rule. This
decision was based on the assumption that the application had been
introduced on 16 March 1987. Later the applicant showed that he had
sent a letter to the Commission on 29 September 1986 which was
registered by the prison authorities as having been posted, but which
was not received by the Commission. On 13 July 1988 the President of
the Commission restored the present complaints to the list.
7. On 6 July 1989 the Commission decided to give notice of the
application to the respondent Government, pursuant to Rule 42 para. 2
(b) of its Rules of Procedure (former version), and to invite the
parties to submit their written observations on admissibility and
merits.
8. The Government's observations were submitted on 25 October
1989, to which the applicant replied in person on 25 November 1989.
After an extension of the time-limit fixed, the applicant's
representative submitted observations on 14 February 1990.
9. On 15 December 1989 the applicant had been granted legal aid
for his representation before the Commission.
10. On 9 October 1990 the Commission decided to invite the parties
to a hearing on admissibility and merits. The hearing was held on
9 January 1991. The Government were represented by its Agent,
Ms. D.L. Brookes, Mr. D. Pannick, Counsel, Mr. H. Carter, Home Office,
and Mr. H. Llewellyn, Foreign and Commonwealth Office. The applicant
was represented by Mr. J.K. Campbell, Solicitor, and Mr. B. Clarke,
Counsel. The applicant also attended the hearing. Following the
hearing and deliberations, the Commission declared the application
admissible.
11. On 23 January 1991 the parties were sent the text of the
Commission's decision on admissibility and they were invited to submit
further observations on the merits of the case. The Government
submitted observations on 27 February 1991. The applicant submitted
observations on 28 February 1991 and some further information about
the Court of Appeal's practices on 15 March 1991. The Government
replied to the applicant's further observations on 16 April 1991.
12. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reaction, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
13. The present Report has been drawn up by the Commission in
pursuance of Article 31 para. 1 of the Convention and after
deliberations and votes in plenary session, the following members
being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.C. GEUS
M.P. PELLONPÄÄ
14. The text of this Report was adopted by the Commission on
10 July 1991 and is now transmitted to the Committee of Ministers of
the Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
15. The purpose of the Report, pursuant to Article 31 para. 1 of
the Convention, is
1) to establish the facts, and
2) to state an opinion as to whether the facts found
disclose a breach by the State concerned of its
obligations under the Convention.
16. A schedule setting out the history of the proceedings before
the Commission is attached hereto as APPENDIX I and the Commission's
decisions on the admissibility of the applications as APPENDICES II
and III.
17. The pleadings of the parties, together with the documents
lodged as exhibits, are held in the archives of the Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
18. On 9 November 1984, the applicant was convicted at Sheffield
Crown Court of one count of robbery and two counts of burglary. The
jury's decision was by a majority verdict of ten to two. He received
a sentence of imprisonment of ten years for the robbery, and two
sentences of eight years each for the burglary offences. All three
sentences were to be served concurrently. His application for leave
to appeal against conviction and sentence was dismissed by a single
judge of the Court of Appeal on 5 February 1985. His renewed appeal
to the Full Court, concerning sentence only, was dismissed on 21 May
1985.
19. On 16 May 1985, the applicant petitioned the Secretary of
State for Home Affairs with complaints against police officers who had
investigated his case and given evidence at his trial. An independent
police investigation was ordered in the course of which certain facts
came to the applicant's attention. On 3 December 1985, the applicant
applied for leave to appeal out of time. The police report
(unpublished), dated 5 December 1985, was delivered to the Police
Complaints Authority which directed it to the Director of Public
Prosecutions.
20. In February 1986, the Director of Public Prosecutions decided
that there was insufficient evidence to support criminal charges
against the police officers, but recommended that disciplinary charges
be brought against three police officers. At the disciplinary
hearing, 13 to 15 June 1988, the tribunal decided that there was no
case to answer and dismissed the charges.
21. In the meantime, on 21 March 1986, the Secretary of State for
Home Affairs referred the applicant's case to the Court of Appeal
(Criminal Division) under Section 17 (1)(a) of the Criminal Appeal Act
1968. The applicant was represented in these proceedings by Queen's
Counsel. The reference was heard on 18 July 1986 and judgment
delivered on the same date.
22. The evidence against the applicant consisted of detailed
verbal admissions that he was implicated in the offences. The
applicant's co-defendant had given the police information which led to
the applicant's arrest and his subsequent unsigned confession. He had
maintained at his trial that these statements had been concocted by
the police and his defence did not require any witnesses except the
interviewing officers. He protested his innocence and his
truthfulness, pointing out that he had not denied his numerous
misdeeds in the past, as could be verified from his criminal record
over the years. Before the Court of Appeal the applicant submitted
that the verdict should be set aside as unsafe and unsatisfactory
because of certain shortcomings in the prosecution case. In
particular it appeared that one of the police witnesses had stated
under cross-examination by counsel for the applicant that no
fingerprints were found at the scene of the crime. In fact two
fingerprints had been found which later turned out to be those of the
next door neighbour who was a regular visitor to the house. The
applicant had not been informed of this before his trial.
23. However the Court of Appeal rejected the allegation that the
police officer had told lies at the trial in the following terms:
"We do not accept that interpretation of Detective
Sergeant Hoyland's evidence. We think quite plainly what
he was indicating there and intended to indicate was that no
fingerprints relating to either of the two alleged burglars
were discovered at the scene: neither the fingerprint of
Rose nor the fingerprint of Edwards, the present appellant.
We do not think, had the matter been carried further, it
would have been demonstrated that Hoyland was a person who
to that extent could not be believed on his own."
24. A further shortcoming was the fact that the police had shown
two volumes of photographs of possible burglars (including a
photograph of the applicant) to one of the victims - a lady of 82
years of age who had caught a fleeting glimpse of the burglar. Her
statement, read to the jury, said that she thought she would be able
to recognise her assailant. She did not pick out the applicant from
the photographs. This fact was not, however, mentioned by one of the
police witnesses in a written statement read out to the jury and had
not been indicated to the applicant before his trial. Before the
Court of Appeal counsel for the applicant submitted that a jury might
have been led to believe, had they been informed of this fact, that
the admission statements had been "manufactured" by the police as the
applicant alleged, or to otherwise doubt the veracity of the police.
25. The Court of Appeal also rejected this view:
"There again we do not take that view. The fact that
Miss Sizer had a fleeting glimpse of her assailant, and the
fact that such identification as she did make was largely
directed to other matters of identification rather than his
features, leads us to believe that the jury would not have
been influenced to act other than they did if they had the
full story of the photographs and of Police Constable
Esdon's activities with regard to that."
26. Counsel for the applicant did not request the Court of Appeal
to exercise their discretionary power to rehear evidence under section
23 of the 1968 Act (see para. 37 below) by, for example, cross-examining
the police officers who gave evidence at the applicant's trial. This
was because the applicant's representatives considered that there was
little prospect of such a request being granted.
27. The Court of Appeal pointed to other shortcomings which it did
not consider cast any doubt on the verdict, namely,
- that the applicant was alleged to have been shown by
the police a statement by a defendant although his finger-
prints were not found on the statement;
- a string which had tied the hands of one of the
victims had been thrown away and not subjected to forensic
examination;
- an anorak which fitted the description given by one
of the victims was found at the applicant's house but was
not tested for fibres or for possible comparison with other
items;
- a stocking mask, found at the scene of the crime, was
not tested for saliva, and a knife, which may have been used
by the applicant, was not tested for finger-prints.
28. As regards the latter points, the Court of Appeal remarked
that the mask had not been tested because the applicant had never
claimed to wear a mask. In addition, the knife had been found lying
out in the rain and the chances of finding finger-prints were
thus minimal.
29. The Court of Appeal considered that even if these matters had
been investigated, it would have made no difference to the outcome.
The Court concluded as follows:
"It is clear that there was some slipshod police work in
the present case, no doubt because they took the view here
was a man who had admitted these crimes fully, and
consequently there was very little need for them to indulge
in further verification of whether what he said was true.
Although this is a matter which perhaps casts the
police in a somewhat lazy or idle light, we do not think in
the circumstances there was anything unsafe or
unsatisfactory in the end about these convictions.
Consequently, treating this matter as we have to according to
section 17 of the Act, we think this appeal fails and must
be dismissed."
30. The applicant also took advice concerning the possibility of
appealing to the House of Lords but was informed, in an opinion of
counsel dated 8 September 1986, that there were no grounds on which an
appeal could successfully be pursued before the House of Lords.
31. The applicant petitioned the Secretary of State for Home
Affairs on 3 June 1987 unsuccessfully asserting that the United
Kingdom Government had an obligation to ensure that the applicant's
rights under Article 6 paras. 1 and 3 (d) of the Convention were
protected and that he was entitled under Article 13 of the Convention
to have an effective remedy before a national authority for violations
of rights and freedoms in the Convention.
B. Relevant domestic law and practice
a) Duty of prosecution in presenting evidence
32. Under the Attorney General's Guidelines issued in December
1981, the prosecution is obliged (subject to specified discretionary
exceptions) to disclose to the defence "unused material", which
includes all witness statements not included in the bundle of
statements served on the defence at the stage of committal of the case
by the magistrates' court to the Crown Court.
33. The prosecution is also under a duty to inform the defence of
any earlier statement of a prosecution witness which is inconsistent
with evidence given by that witness at the trial (R v. Clarke [1930]
22 Cr.App.R.58). The prosecution's duty extends to informing the
defence of previous inconsistent oral statements as well as written
statements.
34. Consequently where evidence of a prosecution witness is given
before the court stating that the witness would recognise the accused
again (as in the applicant's case), and the prosecution knows that
when shown a photograph of the accused the witness in fact failed to
identify him, the prosecution is required to make that fact known to
the defence.
35. For the purpose, among others, of ensuring compliance with
this duty, the Court of Appeal has stated that all the statements
which have been taken by the police should be put before Counsel for
the Crown, and that it should not be left to the police to decide
which statements are to be put before Counsel (R v. Fellowes, 12 July
1985).
b) Jury verdicts
36. A jury's verdict may be either unanimous or by a majority. It
must be unanimous unless the trial judge, in accordance with section
17 Juries Act 1974, has directed, after at least two hours of
unsuccessful jury deliberations, that a majority verdict will be
accepted. A majority verdict will be effective if, where there are
not less than 11 jurors, 10 of them agree on a verdict, or, where
there are 10 jurors, 9 of them agree on the verdict.
37. If the jury do not agree on either a unanimous or a majority
verdict, they may, at the discretion of the trial judge, be
discharged, but such a discharge does not amount to acquittal and the
accused may be tried again by a second jury. In the event of a second
jury disagreeing, it is common practice for the prosecution formally
to offer no evidence (Halsbury's Laws of England 4th Edition Volume
11(2) paras. 1028 and 1037 ; Archbold Pleading, Evidence and Practice
in Criminal Cases, 43rd Edition, Volume 1 paras. 4-444 to 4-447).
c) Reference to the Court of Appeal by the Home Secretary
38. Section 17 (1) a of the Criminal Appeal Act 1968 provides as
follows:
"Where a person has been convicted on indictment, or been
tried on indictment and found not guilty by reason of
insanity, or been found by a jury to be under disability, the
Secretary of State may, if he thinks fit, at any time either:
(a) refer the whole case to the Court of Appeal and the case
shall then be treated for all purposes as an appeal to the
Court by that person; ..."
d) Powers of the Court of Appeal
39. The powers of the Court of Appeal in appeal proceedings are
fully applicable to reference proceedings (Stafford v. D.P.P. [1973] 3
WLR 719). The scope of the Court of Appeal's powers on appeal is set
out in section 2 of the Criminal Appeal Act 1968. Section 2 provides
as follows:
"(1) Except as provided by this Act, the Court of Appeal shall
allow an appeal against conviction if they think:
(a) that the conviction should be set aside on the
ground that under all circumstances of the case it is
unsafe or unsatisfactory;
(b) that the judgment of the court of trial should be
set aside on the ground of a wrong decision of any
question of law; or
(c) that there was a material irregularity in the
course of the trial,
and in any other case shall dismiss the appeal.
Provided that the Court may, notwithstanding that they
are of opinion that the point raised in the appeal might
be decided in favour of the appellant, dismiss the appeal
if they consider that no miscarriage of justice has
actually occurred.
(2) In the case of an appeal against conviction the Court
shall, if they allow the appeal, quash the conviction.
(3) An order of the Court of Appeal quashing a conviction
shall, except when under section 7 below the appellant is
ordered to be retried, operate as a direction to the court
of trial to enter, instead of the record of conviction, a
judgment and verdict of acquittal."
e) New evidence on appeal
40. Section 23 of the Criminal Appeal Act 1968 provides, insofar
as material, as follows:
"(1) For purposes of this part of this Act, the Court
of Appeal may, if they think it necessary or expedient
in the interests of justice -
(a) order the production of any document,
exhibit or other thing connected with the
proceedings, the production of which appears
to them necessary for the determination of
the case;
(b) order any witness who would have been
a compellable witness in the proceedings
from which the appeal lies to attend for
examination and be examined before the
Court, whether or not he was called in those
proceedings; and
(c) subject to subsection (3) below, receive
the evidence, if tendered, of any witness.
(2) Without prejudice to subsection (1) above, where
evidence is tendered to the Court of Appeal thereunder
the Court shall, unless they are satisfied that the
evidence, if received, would not afford any ground
for allowing the appeal, exercise their power of
receiving it if -
(a) it appears to them that the evidence is
likely to be credible and would have been
admissible in the proceedings from which the
appeal lies on an issue which is the subject
of the appeal; and
(b) they are satisfied that it was not adduced
in those proceedings but there is a reasonable
explanation for the failure to adduce it.
(3) Subsection (1)(c) above applies to any witness
(including the appellant) who is competent but not
compellable..."
41. These powers of the Court of Appeal extend to rehearing
evidence which has already been given at first instance if the Court
thinks it necessary or expedient in the interests of justice (R v.
Lattimore and Others [1976] 62 Cr. App. R. 53). However it is unusual
for the Court of Appeal to rehear evidence which has been tried and
tested before a jury at first instance. From information provided by
the Deputy Registrar of the Criminal Appeal Office, it may be inferred
that the Court would not itself rehear all the evidence rather than
order a retrial. These powers are thus normally confined to hearing
fresh evidence or changed evidence which has arisen since the trial
and which the jury did not have the benefit of hearing. Even so such
powers are infrequently used, in all probably not more than a dozen
times a year. The Court of Appeal nevertheless reads the transcript
of the trial so that they are aware of the basis upon which the jury
reached its findings.
42. If the Court of Appeal considers that fresh evidence renders
the verdict unsafe or unsatisfactory, it may order a retrial, or may
simply quash the conviction and substitute a verdict of acquittal.
The appropriate course will depend upon the particular facts of the
case, as explained in the following passage from the judgment of
Lord Cross in the House of Lords in Stafford v. the D.P.P. (at
pp. 737-738):
"At one end of the scale there are cases where the court
will say:
This fresh evidence puts such an entirely new
complexion on the case that we are sure that a verdict
of guilty would not be safe. So we will quash the
conviction and not order a new trial.
At the other end of the scale there will be cases where
the court will say as it said in effect of this case:
The fresh evidence though relevant and credible
adds so little to the weight of the defence case
as compared with the weight of the prosecution's
case that a doubt induced by the fresh evidence
would not be a reasonable doubt. So, we will
leave the conviction standing.
But in many cases the attitude of the court will be:
We do not feel at this stage sure one way or
the other. If this fresh evidence was given
together with the original evidence and
any further evidence which the Crown might adduce
then it may be that the jury - or we, as we
constituted the jury - would return a verdict of
guilty but on the other hand it might properly
acquit. So we will order a retrial."
43. The power to order a retrial was broadened by section 40 of
the Criminal Justice Act 1988, in force since 1 August 1989 after the
applicant's case. Since then four retrials have been ordered but it
may reasonably be assumed, according to the Deputy Registrar of the
Criminal Appeal Office, that retrials were not more frequent before.
There does not appear to have been any occasion when the Court of
Appeal has itself heard all the witnesses who gave evidence at the
trial (letter 4 March 1991 from the Deputy Registrar of the Criminal
Appeal Office to the applicant's solicitor).
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
44. The Commission has declared admissible the applicant's
complaints that the withholding of certain information from him by the
prosecution before and during his trial constituted breaches of his
rights under Article 6 paras. 1 and 3 (d) and Article 13 of the
Convention.
B. Points at issue
45. The following are the points at issue in the present
application:
- whether the prosecution's withholding of certain information
from the applicant was in violation of paragraph 1, read in
conjunction with paragraph 3 (d) of Article 6 of the Convention;
- whether the applicant had effective domestic remedies for his
Convention claims pursuant to Article 13 of the Convention.
C. As regards Article 6 paras. 1 and 3 (d) of the Convention
46. Article 6 para. 1, first sentence, provides as follows:
"In the determination of his civil rights and obligations
or of any criminal charge against him, everyone is entitled
to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law."
47. Article 6 para. 3 (d) reads as follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against
him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions
as witnesses against him;"
48. The applicant submits that certain evidence was withheld from
him and, therefore, not put before the jury at his trial. As a
result, his rights under the above provisions were allegedly
violated. This evidence was withheld by the police who, firstly, had
stated at his trial that no fingerprints had been found at the scene
of the crime, whereas, in fact, two fingerprints of a neighbour had
been found (para. 22 above); secondly, the police failed to state at
the trial that one of the prosecution witnesses had not identified the
applicant's photograph in a police album, although she had thought
that she would be able to identify the offender (para. 24 above). The
applicant also complains of other lacunae in the police inquiry (para.
27 above). In his view the evidence that was withheld affected the
credibility of the police witnesses in the case, which had turned on
whether the confession by the applicant had been fabricated or not by
the police. Since the aforementioned evidence was not disclosed at the
trial, he submits that he was not given an adequate opportunity to
challenge the witnesses against him and that he did not receive a fair
hearing. He submits that the reference proceedings before the Court
of Appeal did not cure this defect since the Court did not exercise
its discretion to order a full rehearing of all the issues and
evidence, but at best afforded him the opportunity of having a
fragmentary procedure which led to overall unfairness.
49. The Government submit that the proceedings must be looked at
as a whole and that the applicant did receive a fair hearing. He was
afforded the opportunity of putting the new evidence before the Court
of Appeal in reference proceedings, where he could also have applied
for witnesses to be called and cross-examined. He did not request the
Court of Appeal to hear any witnesses. In the Government's view
Article 6 para. 3 (d) of the Convention is not relevant to the key
issues in the present case, namely the failure by prosecuting
authorities to disclose certain information which might assist the
defence and, in particular, the credibility of the police witnesses in
their evidence about the applicant's confession to them, which was the
main evidence against the applicant. This confession evidence was
tested before the jury when the police officers were cross-examined by
the applicant's counsel. In the Government's submission the case
calls for examination under Article 6 para. 1 of the Convention alone.
In this respect they reiterate that the proceedings viewed as a whole
cannot be deemed unfair given that the Secretary of State referred the
issues to the Court of Appeal, which considered all the facts but
concluded that, despite some slipshod aspects of the police's conduct,
there was nothing unsafe or unsatisfactory about the applicant's
conviction. The Court of Appeal's judgment cannot be said to be
arbitrary or so unfair, or questionable, as to entitle the Commission
to substitute its judgment for that of the national courts (cf. inter
alia No. 10862/84, Schenk v. Switzerland, Comm. Report 14.5.87 para.
56; Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,
Series A no. 115, p. 20 and 25, paras. 49 and 69; Windisch judgment of
27 September 1990, Series A no. 186, p. 10, para. 25).
50. The Commission considers that the provisions of Article 6
para. 3 (d) of the Convention are relevant to the present application.
Whilst technically it is true that the applicant was able to
cross-examine the police officers concerned about his confession, the
information that they withheld from the defence and the jury may have
affected the conditions under which that cross-examination took place
and may have been relevant to their credibility. Article 6 para. 3
(d) refers expressly to a parity of conditions for the examination of
witnesses and to this extent is relevant to the present case.
51. The guarantees of Article 6 para. 3 are specific aspects of
the right to a fair hearing within the meaning of the first paragraph
of Article 6 of the Convention. Moreover in assessing whether defence
rights have been secured under Article 6, the proceedings in question
must be considered as a whole, including the proceedings before the
appellate court. It is, therefore, appropriate for the Commission to
consider the applicant's complaints under Article 6 paras. 1 and 3 (d)
taken together (cf. Eur. Court H.R., Windisch judgment of 27 September
1990, Series A no. 186, pp. 9 and 10, paras. 23 and 25).
52. The manner of the application of Article 6 of the Convention
to proceedings before an appellate court does, however, depend on the
special features of the proceedings involved, seen in their domestic
law context, account being taken of the role and functions of that
court (Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A
no. 134, p. 13, para. 27). Moreover, the assessment of evidence comes
within the appreciation of independent and impartial domestic courts
and cannot be reviewed by the Commission unless there is an indication
that the courts have drawn unfair or arbitrary conclusions from the
facts before them. It is not the Commission's role to substitute its
decision concerning the facts of the case for that of the national
courts. It can only consider whether the evidence has been presented
in such a manner and the proceedings in general, viewed in their
entirety, have been conducted in such a way that the accused had a
fair trial (No. 10862/84 Schenk v. Switzerland, Comm. Report 10.5.87,
at pp. 37-38, para. 56 of the annex to the judgment of 12 July 1988,
Eur. Court H.R., Series A no. 140).
53. As regards the facts of the present case, the Commission notes
that the applicant's conviction was mainly based on his confession to
the police. He had a full opportunity to challenge the manner in
which that confession was obtained and to contest the police evidence
at his trial. The information which was withheld from the applicant
was extensively considered by the Court of Appeal, whose task was to
examine whether the applicant's conviction was unsafe or
unsatisfactory as a result of the conduct and testimony of the police.
The applicant also had a full opportunity to persuade the Court of
Appeal as to the significance of that information, but in the light of
all the evidence, including the trial transcript which was before it,
the Court of Appeal rejected the applicant's contentions. The
Commission has no reason to doubt that the Court of Appeal's decision
to dismiss the applicant's appeal was based upon thorough evaluation
of the weight to be given to the information which had been withheld.
There is no evidence in the present case that the Court of Appeal's
decision was in any way unfair or arbitrary. In the circumstances the
Commission is of the opinion that the applicant was not denied a fair
hearing in the proceedings against him, viewed as a whole.
Conclusion
54. The Commission concludes, by 8 votes to 6, that there has been
no violation of paragraph 1, read in conjunction with paragraph 3 (d)
of Article 6 of the Convention.
D. As regards Article 13 of the Convention
55. The applicant further complains that he had no effective
domestic remedy in respect of his complaints under Article 6 of the
Convention, contrary to Article 13. He did not elaborate this
complaint and the Government were not invited by the Commission to
comment on the matter.
56. Article 13 of the Convention provides as follows:
"Everyone whose rights and freedoms as set forth in
this Convention are violated shall have an effective
remedy before a national authority notwithstanding that
the violation has been committed by persons acting in an
official capacity."
57. However, the Commission refers to the constant case-law of the
Convention organs that Article 13, as a more general guarantee, is not
applicable in cases where the more specific guarantees of Article 6 of
the Convention apply. In cases of the present kind, Article 6
constitutes the lex specialis in relation to Article 13, whose
requirements are less strict and are, accordingly, absorbed by Article
6 (cf. Eur. Court H.R., Kamasinski judgment of 19 December 1989,
Series A no. 168, pp. 45-46, para. 110, and Comm. Report 5.5.88,
p. 65, para. 206).
Conclusion
58he Commission concludes, by 12 votes to 2, that no separate
issue arises under Article 13 of the Convention in the present case.
E. Recapitulation
59. The Commission concludes, by 8 votes to 6, that there has been
no violation of paragraph 1, read in conjunction with paragraph 3 (d)
of Article 6 of the Convention (para. 54 above).
60. The Commission concludes, by 12 votes to 2, that no separate
issue arises under Article 13 of the Convention in the present case
(para. 58 above).
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Dissenting opinion of MM. Gözübüyük, Weitzel,
Martinez and Rozakis, Mrs. Liddy and Mr. Geus
We consider that there has been a violation of paragraph 1,
read in conjunction with paragraph 3 (d) of Article 6 of the
Convention in the present case.
As regards the facts of this case we note that it is not
disputed that the prosecution authorities were in breach of domestic
law in withholding certain information from the defence. It is for
this reason that the Secretary of State referred the applicant's case
to the Court of Appeal. The Court of Appeal, however, concluded that
the evidence in question was of little significance to the applicant's
conviction, which in their view had not been shown to be unsafe or
unsatisfactory.
We are particularly struck by the conclusion of the Court of
Appeal concerning the most important part of the withheld evidence
that "the jury would not have been influenced to act other than they
did" if they had had the full story (para. 24 above). We appreciate
that the jury system is widely considered in the United Kingdom to be
essential to ensure the fairness of the criminal justice system.
However, there is no way of knowing what elements of a case influence
a jury's decision as it gives no reasons for its findings. It is
noteworthy that in the present case the jury gave a majority verdict
(by 10 votes to 2), not a unanimous one. There was obviously,
therefore, disagreement as to the assessment of the evidence and the
credibility of the witnesses. If one other member of the jury in the
applicant's case had had doubts about the credibility of any witness
the applicant ultimately might not have been convicted. The Court of
Appeal did not hear the oral evidence and there appears to be no
precedent for its rehearing all the witnesses who testified at the
trial. Yet in assessing the credibility of witnesses it is essential
not only to have regard to the contents of their testimony (which can
be checked in the written trial transcript), but also to have regard
to the manner in which it is given - the tone of voice, the sense of
certainty or hesitation of the speaker. These latter elements
obviously do not feature in the written record of the trial. (In the
present case the only witnesses at the trial were the applicant and
the police officers testifying to the applicant's verbal admissions.)
We, therefore, find it disquieting that the Court of Appeal speculated
about the jury's decision on this issue and substituted its view for
that of the jury. Moreover, in our view, where in the circumstances
of the present case veracity was the key question, the issue could
not, as a matter of fair trial, have been properly determined without
a direct assessment of the police and the applicant's testimony on all
the relevant material by one and the same court (cf. mutatis mutandis
Eur. Court H.R., Ekbatani judgment of 26 May 1988, Series A no. 134,
p. 14, para. 32).
Appendix I
HISTORY OF THE PROCEEDINGS
Date Item
________________________________________________________________
26.09.86 Introduction of application
10.07.87 Registration of application
Examination of admissibility
07.12.87 Commission's decision to declare
application inadmissible
13.07.88 President's decision to restore
case to Commission's list
06.07.89 Commission's deliberations and
decision to give notice of application
to respondent Government and to
invite parties to submit written
observations on admissibility and
merits
25.10.89 Government's observations
25.11.89 Applicant's personal observations
15.12.89 Grand of legal aid to applicant
14.02.90 Observations by applicant's
representative
09.10.90 Commission's deliberations and
decision to hold a hearing
09.01.91 Hearing on admissibility and merits,
the parties being represented as
follows:
Government:
Ms. D.L. Brookes, Agent
Mr. D. Pannick, Counsel
Mr. H. Carter, Home Office
Mr. H. Llewellyn, Foreign and
Commonwealth Office
Applicant:
Mr. J.K. Campbell, Solicitor
Mr. B. Clarke, Counsel
Applicant also attended hearing
09.01.91 Commission's deliberations and
decision to declare application
admissible
Examination of the merits
23.01.91 Parties invited to submit further
written observations on the merits
27.02.91 Government's observations
28.02.91 Applicant's observations
15.03.91 Information from applicant
13.04.91 Commission's consideration of
state of proceedings
16.04.91 Government's further observations
04.07.91 Commission's deliberations on
merits and on text of its
Article 31 Report. Final votes taken
10.07.91 Adoption of Report