AS TO THE ADMISSIBILITY OF

Application No. 37120/97

by R. M. B.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting in private on 9 September 1998, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

I. BÉKÉS

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

Mrs M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 June 1997 by R. M. B. against the United Kingdom and registered on 31 July 1997 under file No. 37120/97;

Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1960 and lives in Falmouth, Cornwall . He is represented by Mr. Richard Parrott , a solicitor of Messrs. Chidlow & Co., Hampshire. The facts of the case, as submitted by the applicant, may be summarised as follows:

The applicant was convicted of indecent assault and indecency with his stepdaughter by the Crown Court at Portsmouth on 22 February 1996. On 1 March 1996 he was sentenced to 18 months imprisonment.

The allegations came to light because the applicant's stepdaughter passed to a schoolfriend a note on which she had written that the applicant had sexually abused her. It was accepted at the applicant's trial that the note had been passed to the friend in mistake for another note on which she had written her address. The stepdaughter was then interviewed by the police and a social worker, and the interview was recorded on video. In the interview she made allegations about her stepfather abusing her on one occasion, probably in mid-April 1995, in Gosport in England, where they now lived, and also on perhaps two occasions about a year before, when they were still living in Scotland. The two convictions were based on the first allegation as any possible offences in Scotland were outside the court's jurisdiction (and were not prosecuted by the Scottish police).

The applicant denied any offence, either in England or Scotland. At the trial, the defence objected to the admission of two pieces of evidence. First, objection was taken to admitting in evidence the note passed to the schoolfriend on the ground that it amounted to a previous consistent statement and that to admit it would be contrary to the rule that a party is not permitted to make evidence for himself. The trial judge ruled that the note was admissible in evidence as an exception to the general rule, since it was to be regarded as a "recent complaint" of a sexual offence, even though it was made between 9 and 23 days after the offence alleged.

The second objection concerned the admission in evidence of the incidents alleged to have occurred in Scotland, it being agreed that the alleged incidents were not close enough in nature or in time to those with which the applicant had been charged to be admitted as evidence of similar facts and that the prejudicial effect of the evidence in any event outweighed any probative value which it might have. The trial judge ruled that the alleged incidents in Scotland were of a similar type to those which were the subject of the charges in the case and close enough in point of time, and that the probative value of the evidence outweighed any prejudicial effect.

Following his conviction, the applicant sought leave to appeal to the Court of Appeal. A single judge refused leave on 14 May 1996. The applicant renewed his application on the grounds that the judge should not have admitted in evidence the stepdaughter's note and the Scottish allegations. Leave was granted on 9 July 1996. The Court stated that "each of the grounds sought to be advanced contains seriously arguable merit".

On 31 July 1996, the Court of Appeal (Lord Justice Otton , Mr Justice Scott Baker and Mr Justice Sedley ) dismissed the applicant's appeal against conviction but allowed the appeal against sentence, reducing the sentence to 14 months imprisonment.

As to the admission in evidence of the note, the Court of Appeal, having set out the facts and referred to the law concerning the admissibility of statements constituting recent complaints in sexual cases, stated that it was satisfied that the note was such a complaint. The Court held that it was a matter for the trial judge to determine whether the complaint had been made at the first opportunity which offered itself and that there had been no error in principle in the judge's approach. Further, the trial judge had given a perfectly appropriate direction to the jury concerning the note.

As to the admission in evidence of the Scottish allegations, the Court of Appeal held that the evidence was admissible in law not as similar fact evidence but as the background against which the alleged offence was committed: it was part of the history relevant to the offence charged, without the totality of which the account placed before the jury could have been incomplete. The trial judge had accordingly been correct in admitting the evidence, albeit on an unsatisfactory basis, and there was no ground for interfering with the judge's exercise of discretion.

The applicant sought from the Court of Appeal a certificate that points of law of general public importance were involved and leave to appeal to the House of Lords. The Court of Appeal (Lord Justice Otton , Mr Justice Scott Baker and Mr Justice Newman) refused a certificate on 13 December 1996, and thus the question of the grant of leave for appeal did not arise. The Court stated with regard to the note passed to a schoolfriend that it was unable to certify that this raised a question of general public importance as it "involves the exercise of judicial discretion and we find it impossible to interfere with the exercise of that discretion". As to the issue of the Scottish evidence the Court stated that, when considering the merits of this case on appeal "we concluded that we were satisfied that the evidence was properly admissible as background evidence. It is true, as counsel has helpfully pointed out, that this matter and similar matters have been subject of consideration by the Law Commission and they made various recommendations in their consultation paper No. 141. The fact that it is now in the public domain through the offices of the Law Commission to our mind is not a sufficient basis for certifying that this particular case raises a question of general public importance."

Relevant domestic law

Appeals to the House of Lords from the Court of Appeal, Criminal Division, are governed by Section 33 of the Criminal Appeal Act 1968 which, so far as material, provides as follows:

"1) An appeal lies to the House of Lords at the instance of the defendant or the prosecution, from any decision of the Court of Appeal...

2) The appeal lie only with the leave of the Court of Appeal or the House of Lords; and leave shall not be granted unless it is certified by the Court of Appeal that a point of law of general public importance is involved in the decision and it appears to the Court of Appeal or the House of Lords (as the case may be) that the point is one which ought to be considered by that House.

3) Except as provided by this part of this Act... no appeal shall lie from any decision of the Criminal Division of the Court of Appeal."

COMPLAINTS

The applicant alleges breaches of Article 6 para. 1 of the Convention.

The applicant claims that his access to the House of Lords has been unjustifiably impeded by the requirement that the court from which he sought to appeal should certify in his favour and that the right of a court to prevent an appeal from itself is unfair. In his case, two of the judges hearing the application for a certificate also heard the appeal.

The applicant also claims that even if the requirement of a certificate does not offend Article 6 of the Convention, the refusal in this case unjustifiably prevented access to court as points of law of general importance were manifestly involved. He relies upon the statement of the Court of Appeal when granting leave to appeal that each of the grounds "sought to be advanced contains seriously arguable merit" as well as on some academic commentaries and considerations of the law relating to the question whether the communication of the note was a complaint and to the admission of such allegations as the Scottish allegations in this case. Lastly, the applicant alleges that the Court of Appeal failed to give adequate reasons for its decision that the communication of the note was a complaint, as it simply stated: "We are satisfied that this note was a complaint."

THE LAW

The applicant invokes Article 6 para. 1 of the Convention, claiming that his access to the House of Lords has been unjustifiably impeded and that it is unfair that a court, consisting of three judges two of whom sat on appeal, can veto an appeal from itself. He also alleges that the Court of Appeal gave inadequate reasoning on one point. Article 6 para. 1 of the Convention provides so far as relevant:

"In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ..."

The Commission first observes that Article 6 of the Convention does not compel Contracting States to set up courts of appeal. Nevertheless, a State which does establish such courts is required to ensure that persons amenable to the law enjoy before these courts the fundamental guarantees contained in Article 6 (see, for example Eur. Court HR, Ekbatani v. Sweden judgment of 26 May 1988, Series A no. 134, p. 12, para. 24).

The fact that in criminal cases an appeal lies to the House of Lords only when it is certified by the Court of Appeal that the decision appealed against involves a point of law of general public importance does not as such amount to an unjustified denial of right of access to court. The question, however, remains whether the fact that such a certificate was refused by a Court of Appeal including two of the three appeal judges who dismissed the applicant's substantive appeal constituted a breach of the requirement of fairness in Article 6 para. 1 of the Convention.

The Commission recalls that the manner in which Article 6 para. 1 applies in relation to appeal proceedings depends on the special features of the proceedings involved. Account must be taken of the entirety of the proceedings in the domestic legal order and the role of the appeal court therein: in the case of leave to appeal proceedings, the nature of those proceedings and their significance in the context of the proceedings as a whole must be considered, together with the powers of the appellate jurisdiction and the manner in which the proceedings are actually conducted (see for example Eur. Court HR, Monnell and Morris v. the United Kingdom judgment of 2 March 1987, Series A no. 115, p. 22, para. 56; Fejde v. Sweden judgment of 29 October 1991, Series A no. 212-C, p. 67, para. 26).

The application for a certificate that a point of law of general public importance was involved was a necessary condition for the applicant's proposed appeal to the House of Lords: without it, neither the Court of Appeal itself nor the House of Lords would consider the grant of leave to appeal.  The refusal by the Court of Appeal was therefore the final step in the proceedings against the applicant.

It is in this context that the Commission must consider the applicant's allegations that the body which considered the question of a point of law of general public importance should not have been composed - as to two of the three judges - of members of the Court of Appeal who had determined the applicant's appeal.

The Commission recalls that the existence of impartiality for the purposes of Article 6 para. 1 of the Convention must be determined according to two tests (see, for example, Eur. Court HR, Hauschildt v. Denmark judgment of 24 May 1989, Series A no. 154, p. 21, paras. 46 and 47). The subjective test, that is, questions of the personal conviction of a particular judge, is not at issue in the present case.

The objective test requires the Commission to determine whether, apart from judges' personal conduct, there are ascertainable facts which may raise doubts as to judges' impartiality (see the above-mentioned Hauschildt judgment, p. 21, para. 48).  The reason for a particularly close examination of cases in which judges exercise consecutive functions in proceedings is that after a judge has dealt with a case once, his impartiality may be open to doubt on a second occasion.  What matters is not the fact of dual participation, but the scope and nature of the decisions taken (see Eur. Court HR, Nortier v. the Netherlands judgment of 24 August 1993, Series A no. 267, p. 15, para. 33).

The Commission notes that the present case is different from, for example, the Oberschlick case, in which the European Court of Human Rights found a lack of impartiality where domestic law prohibited the participation of appeal judges in both the first and the second set of proceedings (Eur. Court HR, Oberschlick v. Austria judgment of 23 May 1991, Series A no. 204, p. 23, para. 50), in that the participation of Lord Justice Otton and Mr Justice Scott Baker at the Court of Appeal on both the appeal and the question of a point of law of general public importance was not contrary to domestic law.

More important, however, is the fact that the question for determination by the Court of Appeal on 31 July 1996 was not the same as the question before the court on 13 December 1996: on the former occasion, the court was determining the appeal, whilst on the latter the question was limited to whether a point of public importance was involved.  The Commission can agree with the applicant to the extent that if a judge is able to refuse leave to appeal against his own judgment in circumstances where no further recourse is available, a litigant may hold objectively justified fears as to his objectivity.  There is, however, no reason why such fears should apply to the determination of the question whether the case raises a point of public importance.  In the present case, the question for the Court of Appeal on 13 December 1996 was not whether the judgment of 31 July 1996 was right or wrong, but merely whether it raised important general issues of public importance.  The Commission can discern no objective reason why a litigant should hold fears as to the impartiality of judges on the second occasion.

It follows that the fact that a certificate was refused by a court including two of the judges who had dismissed the applicant's appeal against conviction discloses no lack of impartiality and no breach of the requirement of fairness in Article 6 para. 1 of the Convention.

The applicant also alleges that, in his case, points of general public importance were manifestly involved and then this was confirmed by the Court of Appeal itself when granting leave to appeal.

The Commission however recalls that, in accordance with Article 19 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its constant case-law (see for example No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31, 45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74, p. 234). The applicant's allegations that the Court of Appeal failed to certify points of general importance are all allegations that the Court of Appeal erred in its assessment of domestic law and as such cannot be considered by the Commission. In this regard, the Commission finds no inconsistency between the view of the Court of Appeal in granting leave to appeal against conviction that the grounds of appeal "contained seriously arguable merit" and the Court's view that its decision on the appeal nevertheless raised no point of law of general public importance.

Finally, the applicant alleges that the Court of Appeal in its decision on appeal failed to give reasons as to why it considered the girl's note to be a complaint.

The Commission notes that the Court of Appeal set out in its judgment the factual circumstances in which the note came to be passed to the schoolfriend of the applicant's stepdaughter and the law governing the admissibility in evidence of statements constituting recent complaints in sexual offences. On the basis of its own assessment of the facts and the law, the Court of Appeal concluded that it was satisfied that the note amounted to a "complaint" for the purposes of domestic law and that the trial judge had not erred in finding that the complaint was recent or in deciding to admit the note in evidence. In these circumstances, the Commission finds that, even in the absence of more detailed reasoning, the judgment of the Court of Appeal indicated with sufficient clarity the grounds on which they based their decision to reject the applicant's appeal insofar as it related to the admission in evidence of his stepdaughter's note and that the case discloses no lack of fairness in this respect.

It follows that the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO    M.P. PELLONPÄÄ

     Secretary                       President

to the First Chamber of the First Chamber