Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 32350/96

by Valentine J. REID

against the United Kingdom

The European Commission of Human Rights sitting in private on

30 October 1997, the following members being present:

Mr S. TRECHSEL, President

Mrs G.H. THUNE

Mrs J. LIDDY

MM E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

C.L. ROZAKIS

L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

N. BRATZA

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

Mr M. de SALVIA, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 30 January 1996

by Valentine J. REID against the United Kingdom and registered on

22 July 1996 under file No. 32350/96;

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 of Afro-Caribbean descent,

born in 1969. He is unemployed and resides in Liverpool. In the

proceedings before the Commission he is represented by Messrs. Jackson

and Canter, solicitors practising in Liverpool.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows:

On 25 July 1991 the applicant was arrested by Detective

Constable H, Detective Constable M and a third police officer for

having caused criminal damage to a police car. He was taken to a police

station. He was asked to empty his pockets in the presence of

Sergeant N and, according to the police officers, he was found to be

in possession of cocaine. Sergeant N recorded in the custody record

that the applicant had acknowledged that he had found the matchbox in

which the cocaine was contained outside a youth club. The applicant was

charged with causing criminal damage to a police car and unlawful

possession of cocaine.

On 2 October 1992 he was acquitted by the Liverpool Crown Court

of the second charge. On 19 February 1993 he was acquitted by the

Liverpool City Magistrates' Court of the first charge.

On 4 August 1993 the applicant brought proceedings in the

Liverpool County Court against the police claiming damages for wrongful

arrest and malicious prosecution. The applicant alleged, inter alia,

that D.C. H and D.C. M had fabricated the evidence concerning the

unlawful possession of cocaine. When the applicant was young and living

in Toxteth, D.C. H and D.C. M had apparently served in that area.

The applicant's action was tried by a court composed of a judge

and eight jurors - all of them white - on 7 April 1994. In her summing-

up judge B, when discussing the role of Sergeant N, said the following:

"You cannot, I suggest, just say: Well, Sergeant N wasn't taking

part in it. It is these two officers who came from Toxteth, who

had it in for the [applicant], who were the niggers in the

woodpile. I know one is not supposed to use words like that and

you will forgive me, and I am sure the [applicant] will forgive

me for using that expression. The allegation involves the active

part of the sergeant in recording the alleged fabricated reply."

In another part of her summing-up, judge B said that

"Everyone recognises ... that the police have a difficult job,

particularly in an area such as Toxteth where from time to time

trouble flares up [but] it is the duty of the police officers to

carry out their difficult job in accordance with the law, and the

law does not allow false charges to be set up. It is as simple

as that. Fortunately we do not condone the setting up of

innocent people so that they are put into the position where they

are kept in custody and are the subject of criminal prosecution."

In another part she reminded the jurors of their duty "to appoint

a foreman or a forewoman" and then continued as follows: "I suppose

being politically correct one would say a spokesperson, you all know

what I mean".

The jury found for the police and the applicant's civil action

was dismissed.

The applicant appealed on the ground that judge B in her summing-

up had made remarks betraying bias on racial grounds.

Lord Justice Beldam, giving the main judgment in the case on

29 January 1996, noted that the complaint was that the judge, by the

use of the expression, "clearly evinced bias on racial grounds, and

accordingly, public confidence in the administration of justice would

be so affronted that she ought, in fairness to the [applicant], have

discharged the jury and withdrawn from the case, herself ordering a

retrial. Even if the use of the proverbial expression was no ground

for inferring prejudice on her part, she should have recognised that

there was a real danger that the jury, however impartial, might be

influenced by her use of that expression against the [applicant's] case

and should have warned the jury against being biased by her use of it".

Lord Justice Beldam noted that the phrase "a nigger in the

woodpile" meant a private reason or motive or action which is not

divulged. However, he accepted that in 1996 in a multi-racial society

no tribunal should use this figure of speech. Its use could plainly

give offence and lead to the suggestion that it was indicative of the

attitude of the person using it. However, in the circumstances of the

applicant's case the use of the expression was plainly impersonal and

could not possibly refer to the applicant. Moreover, the judge had

recognised the possibility that she might have caused offence and

apologised with the intention to remove any suggestion that she was

biased. Lord Justice Beldam did not consider that anybody hearing the

particular extract from the summing-up would have regarded the judge

as being biased against the applicant's case. Nor could the other

passage, referring to Toxteth as a place where trouble flares up from

time to time, lend any support to the applicant's allegations. He

considered that "a fair reading of the summing-up as a whole shows the

judge to be holding the scales evenly between the two sides." As a

result, it was not accepted that judge B was actually biased, or that

there was any danger that a jury hearing these words would have been

unfairly prejudiced against the applicant's case.

Lord Justice Waite, agreeing, noted:

"There was a time when the word 'nigger' might be used

inoffensively in some instances; for example in familiar figures

of speech like the one quoted by the judge in the present case,

or in school playground counting-out games. Those days have

gone, and the word can never now be used without offence to the

principles of racial integration and good relations which it is

the policy of the law and of the courts to uphold. The first to

recognise that in the instant case was the judge ... [The

question must be asked ...] was there in the relevant

circumstances a real danger of bias on the part of any juror in

the sense that he or she might unfairly regard with favour or

disfavour the case of the [applicant]? ... [It] is fanciful to

suppose that any jury, regardless of the skin colour of its

members, applying to this case the traditional jury attributes

of commonsense, fairness and a sense of proportion, would have

been placed by the judge's remarks at the slightest risk of

having their judgment affected by prejudice or predisposition on

racial or any other grounds."

The appeal was dismissed.

COMPLAINTS

1. The applicant complains under Article 6 para. 1 of the Convention

that he did not have a fair hearing by an impartial tribunal. The

phrase "nigger in the woodpile" was an example of bias and so was judge

B's reference to Toxteth as an area "where from time to time trouble

flares up". Moreover, judge B, by making the comments she made about

the usage of the word "spokesperson", took the view that any attempt

at equality of treatment was of superficial importance being part of

some force majeure.

2. The applicant also complains under Article 14 of the Convention

that his Article 6 rights were not secured without discrimination on

grounds of race.

THE LAW

1. The applicant alleges a violation of Article 6 para. 1 (Art. 6-1)

of the Convention in that the first instance judge demonstrated bias

and gave rise to unfairness in the use of certain phrases in her

summing up to the jury. Article 6 (Art. 6) of the Convention provides,

so far as relevant, as follows:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair and public hearing ... by an

independent and impartial tribunal established by law."

The Commission first recalls that, in accordance with Article 19

(Art. 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 eg. No. 458/59, X v. Belgium, Dec. 29.3.60, Yearbook 3

pp.222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43

pp.71, 77; 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 Commission next recalls that questions of impartiality, or

bias, can relate to subjective or to objective bias (see, in a criminal

case, Eur. Court HR, Gregory v. the United Kingdom judgment of

25 February 1997, Reports 1997-I, No. 31, para. 43). There is no

indication of actual, or subjective, lack of impartiality in the

present case on the part of the first instance judge or the jury.

As to the question of whether the applicant could reasonably hold

objectively justified fears as to the impartiality of the judge or the

jury, the Commission notes that the judge immediately rectified the

statement in which she referred to the possibility of two of the

policemen (not the applicant) being the "niggers in the woodpile". The

Commission further notes that in the Court of Appeal, Lord Justice

Beldam considered that the apology which accompanied the phrase was

sufficient to ensure that a jury hearing those words would not have

been prejudiced against the case of the applicant. Lord Justice Waite,

too, considered that there was not the slightest risk of the jury's

judgment being affected by the statement. The Commission agrees: the

statement formed one phrase in a summing up which runs to over

25 pages, and was accompanied by a recognition by the judge that the

phrase was inappropriate. Moreover, the phrase was not used in the

context of a reference to the applicant, but was intended as no more

than a graphic way of explaining to the jury that it could not be said

that the police officers who came from Toxteth were alone in behaving

as the applicant was alleging, but that the sergeant was also

necessarily involved in the applicant's allegations.

As to the further comments of which the applicant makes

complaint, the Commission does not accept that the reference to Toxteth

as a place where trouble flares up from time to time can be taken as

indicating or giving rise to any bias whatever: the context of that

remark was that however difficult the job of the police may be, they

are not allowed to lay false charges. The comments about the

"spokesperson" do not indicate, or encourage, bias.

The Commission thus considers that the applicant could not

reasonably hold objectively justified fears as to the impartiality of

the judge or the jury.

The Commission has further considered the question of whether the

use of the phrase "niggers in the woodpile", taken in the context of

the summing up and of the proceedings as a whole, could be said to have

deprived the applicant of the fair hearing to which he is entitled by

Article 6 para. 1 (Art. 6-1) of the Convention.

It is of fundamental importance in a democratic society that the

courts inspire confidence in the public (see, for example, the above-

mentioned Gregory judgment, para. 43). In this context, the Commission

attaches considerable weight to the need to ensure that judicial

proceedings are pursued with the dignity commensurate with the courts'

role in a democratic society. The Commission accepts that the use by

the judiciary of gratuitously offensive words or phrases could,

depending on the circumstances, render the proceedings unfair as a

whole. That is not, however, the case here. In the present case, the

judge immediately accepted that her statement was inappropriate, and

both judges who made speeches before the Court of Appeal agreed that

such statements should not be made. Lord Justice Waite, in particular,

made quite clear that the courts must uphold principles of racial

integration.

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

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

2. The applicant alleges a violation of Article 14 of the Convention

in connection with Article 6 (Art. 14+6) thereof.

In the above-mentioned case of Gregory v. the United Kingdom, the

European Court of Human Rights found that the applicant's complaint

under Article 14 (Art. 14) did not give rise to any separate issue

(above-mentioned Gregory case, para. 54). In the present case, too,

the complaints under Article 14 (Art. 14) are indistinguishable from

those under Article 6 para. 1 (Art. 6-1) of the Convention.

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

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M. de SALVIA S. TRECHSEL

Secretary President

to the Commission of the Commission

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REID v. THE UNITED KINGDOM

REID v. THE UNITED KINGDOM

LEXI