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AS TO THE ADMISSIBILITY OF

Application No. 32874/96

by Gary MOORE

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 11 September 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 29 March 1996 by

Gary MOORE against the United Kingdom and registered on

5 September 1996 under file No. 32874/96;

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, a British citizen born in 1963 is currently

serving a prison sentence in HM Prison Perth, Scotland. Before the

Commission the applicant is represented by Mr John Carroll, a lawyer

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

applicant, may be summarised as follows.

At the time of the incident which subsequently gave rise to the

charge of culpable homicide, the applicant was serving a prison

sentence. He was given temporary leave from prison to visit his

longstanding girlfriend of the time, J. There was a young child by this

relationship, and the leave had been granted to enable the applicant

to resolve and maintain the relationship with J.

Meanwhile, B. had formed a relationship with J. Whilst still in

prison the applicant alleged that he was informed that B. was

endeavouring, through the criminal fraternity, to obtain a firearm and

intended to shoot the applicant. The applicant believed that the

relationship between B. and J. was over.

After the applicant's arrival at J.'s apartment, B. was in the

vicinity and sent a young girl to see J. with a message explaining that

a friend wished to see her. J.'s suspicions were aroused and the

applicant upon looking out the window noticed a number of young men

whose manner of dress and demeanour caused him alarm. The applicant

decided to flee from the flat and, fearing for his own safety searched

for something with which to defend himself. He found a small fruit

knife. Upon leaving the flat via a common area at the back, the

applicant found himself face to face with B.

B., according to the applicant, put a hand into his jacket,

having made a threat towards the applicant. The applicant stated that

he was in fear of being shot and drew the knife and pointed it towards

B. Simultaneously B. shouted at the applicant and ran towards him. The

knife penetrated B. in the chest, but he did not appear to be fully

aware of what had happened, and ran off. He collapsed and died close

to the scene.

At trial in order for the prosecution to successfully prove the

crime of culpable homicide, it was necessary to prove that the

applicant's state of mind was such that he intended to kill or

injure B. It was not in dispute that B. was killed by the knife which

the applicant had with him. The prosecution case was that the applicant

had run downstairs with the purpose of attacking B. and assaulted him

in the street, while the defence case was that the evidence did not

preclude accident, and that the applicant, in fear of his life, had

been trying to flee and the injury inflicted was accidental. The

prosecution's forensic experts confirmed that the injuries may have

been caused by the accidental version of events described by the

applicant.

The applicant was convicted by the jury and sentenced to eight

years' imprisonment on 28 October 1994. He appealed to the High Court

on grounds, inter alia, that the judge had misrepresented the

applicant's evidence to the jury. In particular, the applicant in his

testimony had said that on meeting B. outside he told him, "Get to

fuck." whereas the judge in summing up to the jury stated that the

applicant said, "I told you to get to fuck." Applicant's counsel argued

that the addition of the four extra words gave the implication that

there had been a previous exchange or contact between the applicant and

the deceased which was not the case and that it was because the

deceased had not heeded a prior warning that the applicant attacked

him.

The High Court finally dismissed his appeal on 8 November 1995,

having called for the transcript. The Court recognised the judge had

used different words but did not consider that the difference was

material. The judge had clearly outlined the applicant's case, which

was that he had stabbed the deceased by accident in the circumstances

as described by the applicant. The relevance of the words, in either

version, was the mood in which it portrayed the applicant and it did

not have the significance pointed to by counsel.

COMPLAINTS

The applicant complains that he has not received a fair trial in

accordance with Article 6 (1) of the Convention. The arbitrary nature

of the misdirection and the dismissal upon appeal does not accord with

the concept of a fair trial. The applicant submits that it was not

possible with hindsight for the appeal court to adequately assess the

weight which the trial jury placed upon the mis-directed evidence. The

mis-direction was of an arbitrary nature and an appeal court cannot

dismiss this in the fashion that it did in this case; the version of

evidence given by the applicant was consistent with the account of the

incident as an accident whereas the version recounted in direction to

the jury was consistent to create a wholly different effect, one that

implied the requisite prior intention.

THE LAW

The applicant complains that he did not receive a fair trial,

invoking Article 6 para. 1 (Art. 6-1) which provides in its first

sentence:

"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."

The applicant's complaints centre upon the significance of a mis-

direction to the jury by the trial Judge, the applicant's inability to

correct this and his subsequent conviction. The applicant submits that

whether the mis-direction had a material effect on the verdict

delivered by the jury is impossible to tell and that acceptance of the

misdirection by the appeal court discloses arbitrariness and

unfairness.

With regard to the judicial decisions in this case, the

Commission 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 Contracting Parties. In particular, it

is not competent to deal with complaints alleging errors of fact or law

on the part of the domestic courts, save where it considers that such

errors might have involved a possible violation of any of the rights

and freedoms set out in the Convention (see eg. No. 12505/86,

Dec. 11.10.88, D.R. 58, p. 106 with further references). The Commission

further recalls that the assessment of evidence is principally a matter

for the domestic courts to determine. It is not as a general rule

within the purview of the Commission to gainsay the assessment of

domestic courts as to the relevance of the evidence before them, except

where it is apparent that the approach of the court was arbitrary or

capricious (see eg. Eur. Court HR, Edwards v. the United Kingdom

judgment of 16 December 1992, Series A no. 247-B, para. 34; Saïdi v.

France judgment of 20 September 1993, Series A no. 261-C, para. 43).

The Commission notes that the applicant alleges that the

misdirection by the judge may have misled the jury in a manner

prejudicial to his defence and that his appeal on this ground was

arbitrarily dismissed, since the appeal court had no way of in fact

knowing what effect the misdirection might have had. The Commission

observes however that the potential significance of the judge's

misdirection was examined by the appeal court which ordered the

transcript for that purpose. The appeal court however was not persuaded

by the applicant's counsel that the words had the significance to

mislead in a material way, in the context that the applicant's defence

of accident and the other surrounding circumstances were put clearly

to the jury and that the words, in either sense, were pertinent to the

applicant's mood at the time of the incident. The Commission does not

consider that the appeal court's approach discloses any arbitrariness

or capriciousness. While it is true that the appeal court could not be

certain of the effect the misdirection had on the jury, the Commission

is not satisfied that its appreciation that the misdirection was not

material discloses any unfairness in the circumstances of this case.

It follows that the application discloses no appearance of a

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

it must be rejected as manifestly ill-founded pursuant to Article 27

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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MOORE v. THE UNITED KINGDOM

MOORE v. THE UNITED KINGDOM

LEXI