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AS TO THE ADMISSIBILITY OF

Application No. 34723/97

by Spencer James MELLORS

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 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. PERENIC

C. BÎRSAN

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 11 November 1996

by Spencer James MELLORS against the United Kingdom and registered on

4 February 1997 under file No. 34723/97;

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 1964. He is currently

serving a prison sentence in Shotts Prison, Scotland. Before the

Commission the applicant is represented by Mr. J. Carroll, a solicitor

practising in Glasgow. The facts of the case, as submitted by the

applicant, may be summarised as follows:

On 8 December 1995 the applicant was committed at Glasgow Sheriff

Court on a charge of rape. Warrants were granted by the Sheriff to

obtain blood and saliva samples for DNA profiling and teeth impressions

for comparison with marks found on the victim. The applicant was then

present and represented.

Between 15 and 21 February 1996 attempts were made to execute the

warrant to which the applicant did not consent. According to the

applicant no violence was involved on his part. In the face of the

applicant's refusal to give consent (which was video-taped by the

police) the medical practitioners refused to execute the warrants.

The applicant was subsequently, on 23 February 1996, charged with

attempting to defeat the ends of justice on the ground that he

repeatedly resisted, obstructed, hindered and frustrated the execution

of the warrants, and with a contravention of Section 3 (1)(b) of the

Bail Etc. (Scotland) Act 1980.

The applicant challenged the charge of attempting to defeat the

ends of justice by a Bill of Suspension to the High Court. The

applicant claimed that refusing to give consent to the execution of a

warrant did not constitute the criminal offence of defeating the ends

of justice. The Bill was refused on 25 April 1996.

In the meantime, on 17 April 1996, without notice being given to

either the applicant or his legal representative, the prosecutor

obtained from the Sheriff at Glasgow a warrant to take hair samples

from the applicant for the purposes of DNA profiling.

On the same day, 17 April 1996, police officers visited the

applicant at Barlinnie Prison in order to bring him to the Police

Station for the purposes of executing the warrant. According to the

applicant the police officers were, with the exception of one or two,

dressed in full body armour, armoured helmets and plated gloves. The

applicant was dragged into the view of a video camera and forcibly put

to the floor. His legs were bent over his back in a "figure of four"

lock and his arms were handcuffed behind his back. He was then carried

bodily with his face towards the floor and his body weight

intermittently supported in an allegedly degrading and painful fashion

by his arms, neck, head and legs. The applicant reacted by struggling,

spitting in the direction of the legs of one of the officers concerned

and making an initial gesture of an attempt to bite a glove hand which

was being forced under his chin. He was put down on the floor of a

police van and was transported from the Prison to Partick Police

Station, a journey of some 25 minutes, at high speed.

The applicant was subsequently charged under Section 41(1)(a) of

the Police (Scotland) Act 1967, on the ground that he resisted,

obstructed, molested, and hindered two members of the police in their

attempts to transport him and so attempted to defeat the ends of

justice.

The applicant further challenged the warrant of 17 April 1996 (by

a Bill of Suspension to the High Court) to take hair samples and sought

an order that the samples should be destroyed on the ground that the

warrant was irregularly obtained. The essence of the complaint was that

the warrant should have been intimated to the applicant so that he

could have challenged it before it was executed. On 21 June 1996 the

High Court refused to pass the Bill and held that although intimation

would in normal circumstances be preferable, in the present case, and

considering the applicant`s previous behaviour, it would not be

appropriate and that the non-disclosure was in fact necessary for the

successful implementation of the warrant. It upheld the Sheriff's

decision.

The applicant stood trial before the High Court at Glasgow and

was convicted on all charges on 2 July 1996. He is now serving a

sentence of 9 years and 9 months imprisonment.

The applicant applied for leave to appeal against conviction.

Leave was granted only in connection with the rape charge and the

appeal has still to be heard.

COMPLAINTS

The applicant complains, under Article 3 of the Convention, about

inhuman and degrading treatment by the police officers in the execution

of the warrant to take hair samples. He further complains that he was

denied a fair hearing in violation of Article 6 and in particular

para. 3 (c) of the Convention as he was excluded, as was his

representative, from a critical stage in the proceedings in which the

prosecution obtained a warrant to take hair samples from him. Finally,

the applicant alleges a violation of Article 7 in that he was charged

and convicted simply for his not wanting to consent to the execution

of a warrant which allegedly did not constitute a criminal offence in

the Scottish law.

THE LAW

1. The applicant complains under Article 3 (Art. 3) of the

Convention about the manner in which the warrant to take his hair

samples was executed by the police.

Article 3 (Art. 3) of the Convention provides as follows:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment".

The Commission recalls that under Article 26 (Art. 26) the

Convention it may only deal with the matter after all domestic remedies

have been exhausted, according to the generally recognised rules of

international law. It is true that the applicant did challenge, by way

of a Bill of Suspension, the warrant permitting the police to obtain

his hair samples. However, the warrant was challenged as to the manner

in which it was granted (on the ground that it had not been lawfully

obtained as it was not intimated to the applicant or his

representative) and not as to how it was executed (that its execution

had been inhuman or degrading). Furthermore, the applicant has not

brought an action for damages by which he could obtain solatium against

the police officers executing the warrant.

Accordingly, the applicant has failed to put this complaint to

the domestic authorities, and this part of the application must

therefore be rejected under Article 27 para. 3 (Art. 27-3) for failure

to comply with the requirement of exhaustion of domestic remedies.

2. The applicant further complains, invoking Article 6 and in

particular para. 3 (c) (Art. 6, 6-3-c) of the Convention, that he was

deprived of the right to a fair hearing as he and his legal

representative were excluded from the proceedings at a critical stage

which involved the obtaining of the warrant to take hair samples.

Article 6 (Art. 6) of the Convention, insofar as relevant,

provides as follows:

"1. 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...

3. Everyone charged with a criminal offence has the following

minimum rights:

...

c. to defend himself in person or through legal

assistance of his own choosing ...

The Commission first notes that the applicant challenged the fact

that he and his representative were not informed of the granting of a

warrant and requested a Bill of Suspension. The High Court found

however that, although disclosure would in normal circumstances be

preferable, non-disclosure was in the present case desirable and indeed

necessary for the successful implementation of the warrant.

The Commission recalls that Article 6 (Art. 6) of the Convention

applies to the determination of "civil rights and obligations" and of

"criminal charges". In the present case, the granting of a warrant did

not in itself determine a criminal charge against the applicant, and

Article 6 (Art. 6) does not therefore apply to the proceedings by which

the warrant was granted. The proceedings as a whole, that is the

proceedings in which the applicant was charged of rape and attempt to

defeat the ends of justice do, however, determine criminal charges, and

the Commission may therefore assess whether the use of evidence,

obtained by the allegedly unlawful warrant, could have affected the

fairness of those proceedings (see Eur. Court HR, Schenk v. Switzerland

judgment of 12 July 1988, Series A no. 140, p. 29, paras. 46-49).

The Commission notes however, that the applicant`s appeal

regarding his conviction for rape is still pending, and any allegations

as to unfairness of the overall proceedings are therefore premature.

It follows that this part of the application is manifestly ill-

founded and must be rejected under Article 27 para. 2 (Art. 27-3) of

the Convention.

3. The applicant finally complains under Article 7 (Art. 7) of the

Convention that he was convicted, on account of his refusal to give

consent to the execution of the blood/saliva and teeth impression

warrant, for a crime which did not constitute a criminal offence at the

time it was committed.

Article 7 (Art. 7) of the Convention, insofar as relevant,

provides as follows:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the

time when it was committed..."

Article 7 para. 1 (Art. 7-1) of the Convention prohibits a

finding of guilt for a criminal offence on account of acts which did

not constitute an offence when the acts were committed. The applicant

was charged with attempts to defeat the ends of justice. He does not

claim that the criminal offence of attempting to defeat the ends of

justice did not exist at the time of the alleged offence but rather

that he was held guilty of an offence he did not commit. Accordingly,

the offence, the applicant was found guilty of, did constitute a

criminal offence at the time it was committed. Further, the Commission

recalls that it is in the first place for the national authorities to

interpret and apply national law (See Eur. Court HR, C.R. v. the United

Kingdom judgment of 22 November 1995, Series A no. 335-C, p. 71, para.

40). The applicant submits no convincing argument as to why obstructing

police officers in their attempt to execute a warrant should not be

included within the concept of attempting to defeat the ends of

justice.

It follows, therefore, that this part of the application, too,

must be rejected as manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO M.P. PELLONPÄÄ

Secretary President

to the First Chamber of the First Chamber

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MELLORS v. THE UNITED KINGDOM

MELLORS v. THE UNITED KINGDOM

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