AS TO THE ADMISSIBILITY OF

                      Application No. 25605/94

                      by Surrye ALI

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 21 May 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 N. BRATZA

                 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 May 1994 by

Surrye ALI against the United Kingdom and registered on 7 November 1994

under file No. 25605/94;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on 5 July

     1996 and the observations in reply submitted by the applicant on

     4 October 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1940.  She is serving

a prison sentence, and is represented before the Commission by

Mr. J. Dickinson, solicitor, of Messrs. John Howell & Co, Sheffield.

The facts of the case, as submitted by the parties, may be summarised

as follows.

The particular circumstances of the case

     The applicant's sister-in-law was murdered on 17 February 1987.

The applicant was arrested on 18 February 1987 and interviewed in

connection with her involvement from 11.15 p.m. until 11.43 p.m..  This

interview was held in the applicant's cell in breach of Code C of the

Police and Criminal Evidence Act 1984 (PACE) and no contemporaneous

notes of the interview were made, also in breach of PACE.  A second

interview was held between 9.28 a.m. and 10.37 a.m. the following

morning.  Both of these interviews were conducted in English without

an interpreter being present.  A third interview was held that evening.

The third interview began at 5.10 pm, and was held in the presence of

a constable, a woman detective sergeant and a detective constable who

acted as an interpreter.  The applicant was cautioned at the beginning

of the interview, and gave written consent that the detective constable

act as an interpreter.  The signed authority recorded that the language

to be used was Punjabi.  The interview continued until 3.06 a.m. the

following day, with breaks from questions between 7.18 p.m. and 8.45

p.m. (during which the applicant was photographed).  At 8.45 p.m. the

interview recommenced and between 10.35 p.m. and 10.50 p.m. there was

a further coffee break.  No further caution was made when the interview

resumed at 10.50 p.m..  The applicant made an alleged admission at

11.30 p.m., that she had restrained the victim's legs whilst the

strangling was carried out.  The applicant was given a meal at 12.45

a.m. on 20 February 1987, and the interview ended at 3.06 a.m..

     On 26 November 1987 the applicant was convicted at the Birmingham

Crown Court of the murder of her sister-in-law.  The co-accused, the

victim's brother, had pleaded guilty to murder.  The applicant alleged

that evidence obtained in the course of the three interviews with the

police should not be admitted.  She claimed that the evidence taken

during the interviews was taken in breach of the parts of PACE relating

to interpretation where an accused person has difficulty in

understanding English.  The trial judge noted that the applicant had

lived in England for 31 years, from the age of 15, that she had brought

up six children in England, and that it was not suggested that she

lived a secluded life.  He also referred to her demeanour in the

witness box in concluding that she had no difficulty in understanding

English.  The trial judge also noted that the fact that an interpreter

had been present at the third of the interviews (when the applicant

made the confession) did not affect that conclusion, as from the police

point of view, it would strengthen the case if an interview were made

in the applicant's own language, rather than English.  The applicant

further claimed at trial that she had never made many of the alleged

admissions and that she had signed blank pages, and the notes had been

written later. She further claimed that the interview had been in

Punjabi (which she spoke but did not read and write, and which was the

language used according to the signed authority) whereas the

interpreter claimed the interview had been conducted in Urdu (which the

applicant spoke and also could read and write). The notes of the

interview as referred to at trial were in Urdu.

     On 20 December 1990 the applicant was granted an extension of

time to apply for leave to appeal of some two and a half years.  Leave

to appeal was refused by the single judge.  On 7 May 1992 the applicant

filed grounds of appeal with the Court of Appeal, and on 19 June 1993

the full Court of Appeal granted leave to appeal. Further grounds were

filed in October 1993.

     The Court of Appeal noted that there was no doubt about the

principal elements of the murder, or about the applicant's presence,

but that the question at the trial had been the extent of the

applicant's participation in the murder. With regard to her

participation, the prosecution relied upon her "confession" in the

third interview, that she had held down the victims legs as the

strangling was taking place.  The Court of Appeal recalled the

circumstances of the third interview, and noted that at the trial the

applicant had relied on Code C of the Code of Practice in connection

with the question of interpretation, but not in other respects.

     Before the Court of Appeal, the applicant relied on the following

alleged breaches of Code C in connection with the third interview:

1.   That she was not offered two light meals and one main meal in any

     period of 24 hours, as she should have been;

2.   That she was not allowed a continuous period of 8 hours rest in

     any period of 24 hours, as she should have been;

3.   That no caution or reminder of caution was given when the

     interview resumed, as should have been.

     The applicant also complained that no lawyer or third person was

present (although none was required by domestic law), that she had been

subjected to prolonged questioning late at night, and the role of the

police officer who had acted as interpreter was unsatisfactory.

     The applicant submitted that the admission was obtained by

oppression, and should have been excluded by Section 76 (2) (a) of

PACE, or alternatively that the evidence should have been excluded by

the trial judge in the exercise of his discretion under Section 78

PACE.  The applicant also pointed out that the original record of the

third interview had been removed from the files of the Birmingham Crown

Court since the first instance trial, and that the disappearance

coincided with the development of a test known as Electro-Static

Document Analysis (ESDA), which permitted the authenticity of documents

to be tested.  She recalled that vital papers had also gone missing in

other cases involving the West Midlands Police Force.

     The Court of Appeal referred to the case of Fulling [1987] 1 QB

426, in which it had held that "oppression" was to be given its

ordinary dictionary meaning, and referred to "Exercise of authority or

power in a burdensome, harsh or wrongful manner; unjust or cruel

treatment of subjects, inferiors, etc.; the imposition of unreasonable

or unjust burdens".   The Court of Appeal in the applicant's case

accepted that there may be cases where "a denial of sleep and

refreshment may well constitute oppressive conduct, but the evidence

would need to be stronger than it is in the present case".  The Court

found that the evidence was not obtained by oppression such that it had

to be excluded by virtue of Section 76 PACE.

     The Court of Appeal also considered the case under Section 78

PACE, that is, the argument that evidence of the third interview should

have been excluded as the circumstances were such as to render the

confession unreliable, and/or that the trial judge should have

exercised his discretion not to admit it.  The Court of Appeal noted

that six years had elapsed since the original trial, and that the only

breaches of Code C which had been specifically referred to then were

the rules relating to interpreters.  Questions as to the circumstances

of the making of the confession had not therefore been put at the

trial.  At the trial, there had initially been no claim that the record

was not made at the time, or that the applicant had not signed the

pages.  However, when the applicant went into the witness box, she

disowned all signatures on the interview notes, and claimed she had

been given blank pages to sign.  Thus, the Court of Appeal noted, when

the Recorder gave his summing up, he was not concerned with the

situation that the confession was made as a result of pressure put upon

her.

     In connection with the question of interpretation, the Court of

Appeal expressed surprise that there should have been doubt as to the

language used at the interview, but that it was inconceivable that the

difference between the prosecution and the defence could be attributed

to errors or difficulties in translation.  The Court of Appeal noted

that the interpreter had been present at the trial.

     The Court of Appeal found a breach of the rules of Code C

relating to refreshment, noted that the notes of the third interview

were missing in "suspicious circumstances" and accepted that, although

the applicant had initially been cautioned, she was not reminded of the

caution when the third interview recommenced at 10.50 pm.  It added

that "[it] is uncertain what benefit the [applicant] could have derived

from the ESDA test on those notes [of the third interview], but she has

been denied the opportunity".  The Court considered that in the

circumstances of the case - including the absence of evidence from the

applicant or the police that she was too tired for the third interview

to continue, and the lack of an allegation at trial that the confession

had been made as a result of pressure being put on her - the evidence

from the third interview was reliable and would have been included if

all the points before the Court of Appeal had been made at first

instance.  The appeal was dismissed.

Relevant domestic law

     Section 76 of the Police and Criminal Evidence Act 1984 ("PACE")

provides that confession evidence is not admissible if it was obtained

by oppression.

     Section 78 of PACE provides that a court may refuse to allow

prosecution evidence if "it appears to the court that, having regard

to all the circumstances, including the circumstances in which the

evidence was obtained, the admission of the evidence would have such

an adverse effect on the fairness of the proceedings that the court

ought not to admit it".

     Section 66 of PACE provides for the making of Codes of Practice

by the Secretary of State.  A breach of a provision of a Code of

Practice makes a police officer liable to disciplinary proceedings

(Section 67 (8) PACE) but not to criminal or civil proceedings

(Section 27 (10) PACE).  The codes are themselves admissible in

evidence, and "if any provision of such a code appears to the court ...

to be relevant to any question arising in the proceedings it shall be

taken into account in determining that question".

     Code C of the Codes of Practice deals with the detention,

treatment and questioning of persons by police officers.  Section 12

deals with interviews in police stations, including a requirement that

in any period of 24 hours, a detained person must be allowed a

continuous period of at least 8 hours of rest free from questioning,

and Section 14 requires an interpreter to be present if a person to be

questioned has difficulty understanding English, wishes an interpreter

to be present, and if the interviewing officer cannot speak the

person's own language.

COMPLAINTS

     The applicant alleges violation of Article 6 of the Convention.

     The applicant considers that the admission of the interviews as

evidence rendered her trial unfair, under Article 6 para. 1, both at

first instance and on appeal.  She complains of violations of Article 6

due to the absence of a legal representative at those initial

interviews (Article 6 para. 3 (c)).  The applicant also complains that

the Court of Appeal failed to attach sufficient weight to the

unexplained disappearance of the admission statement used to convict

the applicant at trial (Article 6 para. 1 and Article 6 para. 3 (b)).

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 11 May 1994 and registered on

7 November 1994.

     On 28 February 1996 the Commission decided to communicate the

applicant's complaint concerning Article 6 to the respondent Government

and to declare the remainder of the application inadmissible.

     The Government's written observations were submitted on 5 July

1996, after an extension of the time-limit fixed for that purpose.  The

applicant replied on 4 October 1996, also after an extension of the

time-limit.

     On 10 September 1996 the Commission granted the applicant legal

aid.

THE LAW

     The applicant complains that she did not receive a fair trial in

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

further invokes Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) in

relation to the fact she was given no legal assistance during her

interviews and that she was unable to have the interview notes

forensically tested for forgery, as they had gone missing.

     Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows:

     "1.   In the determination of ... any criminal charge against

     him, everyone is entitled to a fair ... hearing ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

           ...

           b.    to have adequate time and facilities for the

           preparation of his defence;

           c.    to defend himself in person or through legal

           assistance of his own choosing or, if he has not sufficient

           means to pay for legal assistance, to be given it free when

           the interests of justice so require ..."

     The respondent Government note that the domestic law did not

require that a lawyer be present at the interviews, merely that the

applicant be informed of her right to consult a lawyer.  The Government

state that at the time of the third interview the applicant declined

the offer of the attendance of a lawyer.  The Government also note that

the applicant was given the opportunity before the trial judge and the

Court of Appeal to argue that the interview evidence should be

excluded, but that she failed to establish that the evidence was

obtained by oppression or should be excluded, as adversely affecting

the fairness of the proceedings.  They further allege that there was

nothing about the conduct or length of the third interview or the

circumstances in which the confession was made which prejudiced the

applicant's trial.  Nor do the Government consider that the

disappearance of the records denied the applicant any substantive

defence as they consider that forensic tests could not show that

complete notes had been written on signed blank sheets.

     The applicant considers that she did not receive a fair trial in

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

particular she considers that she was not given legal assistance at her

interviews, and that this constituted, in the circumstances, a breach

of Article 6 para. 3 (c) (Art. 6-3-c).  The applicant further considers

that the disappearance of the third interview notes (which contained

the disputed confessions), amounted to a significant impairment of her

ability to defend herself and put her case that the notes were a

fabrication, and that this in turn amounted to a breach of Article 6

para. 3 (b) (Art. 6-3-b).  The applicant refers to the investigating

officers' connections with the discredited West Midlands Serious Crime

Squad, and expresses doubts as to their integrity. She points out that

the credibility of one of the officers present was undermined by a

television programme in which he was heard stating that he had received

some £10,000.00 in bribes (although it was decided that there was

insufficient evidence to prosecute).  She also points out that the

police officer who acted as interpreter was involved with the West

Midlands Serious Crime Squad in other cases, and that the whole case

was supervised by a Detective Superintendent who was the penultimate

head of the West Midlands Serious Crime Squad.

     The applicant also notes the discrepancy between the signed

authority, which says that the interview was in Punjabi and the police

interpreter's statement that the interview was conducted in Urdu (the

notes of the interview were written in Urdu).  She accepts, however,

that she cannot be subjected to the same examination as the trial judge

carried out, and she therefore does not pursue her allegations that she

did not understand English.

     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 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).

     To the extent that the applicant complains about the fairness of

the proceedings as a whole, the Commission recalls that the guarantees

of Article 6 para. 3 (Art. 6-3) of the Convention are specific aspects

of the right to a fair trial in Article 6 para. 1 (Art. 6-1) of the

Convention (see, for example, Eur. Court HR, Edwards v. the United

Kingdom judgment of 16 December 1992, Series A no. 234-B, p. 34, para.

33, with further references).  In the present case, the Commission will

consider the proceedings as a whole, with particular reference to the

specific aspects raised by the applicant.

     All the applicant's complaints flow from the events surrounding

the initial interviews in the case.

     The Commission recalls that Article 6 (Art. 6) applies even at

the stage of the preliminary investigation into an offence by the

police.  In particular, Article 6 (Art. 6) - especially paragraph 3 -

may be relevant before a case is sent for trial if and so far as the

fairness of the trial is likely to be seriously prejudiced by an

initial failure to comply with its provisions (see Eur. Court HR, John

Murray v. the United Kingdom judgment of 8 February 1996, Reports 1996-

I, p. 54, para. 62).

     The applicant accepts that she cannot challenge the finding of

the trial judge that she was in fact able to understand English.  No

specific problem therefore arises under Article 6 para. 3 (e)

(Art. 6-3-e), although the discrepancy between the language actually

used and the recorded language of the interviews remains.

     As regards the applicant's complaint concerning the absence of

a legal representative, the Commission notes that the applicant had a

right under domestic law to consult a solicitor privately and to be

informed of such right as soon as practicable after the event.

     The applicant considers that, in particular for the third

interview, when it became clear that the applicant was going to be

interviewed for a long period, the police should have ensured that she

consulted a solicitor.  The Government agree that domestic law does not

require a solicitor to be present during interviews, but claim that the

applicant was in fact told that she could see a solicitor if she

wished.

     The Commission recalls that Article 6 (Art. 6) will normally

require an accused to benefit from the assistance of a lawyer at the

initial stages of police interrogation if the consequences of the

accused's attitude are decisive for the prospects of the defence in

subsequent proceedings (see the above-mentioned John Murray judgment,

p. 54, para. 63).  The right may, however be subject to restrictions

for good cause (ibid.).  In the above-mentioned John Murray judgment,

the question of the accused's attitude was particularly relevant

because of the adverse inferences which could be drawn if he remained

silent.  In the present case, the "attitude" was the confession which

the applicant was alleged to have made.  Whilst the confession in all

likelihood changed the course, and possibly the outcome, of the

proceedings against the applicant, that is not the same as the position

in the John Murray case.  What is required in the case of confessions

alleged to have been obtained after alleged undue pressure is a

mechanism by which the undue pressure - in the absence of a lawyer -

can be challenged at court (see No. 9370/81, Dec. 13.10.83, D.R. 35,

p. 75).  To the extent that the Convention requires an individual to

be informed of his right to a lawyer, the Commission notes that the

applicant had a right in domestic law to be informed of her right to

see a solicitor.  Moreover, she did not claim, either at her trial or

on appeal, that she had not been so informed.

     The applicant did not make any reference to the absence of a

lawyer and undue pressure at the initial trial: such an allegation

would have been inconsistent with her claim that she had signed blank

pages and that the notes had been written later.  She did, however,

raise the matter in her appeal.  The Court of Appeal did not deal with

the specific question of the absence of a lawyer (domestic law did not

require a lawyer to be present at the interviews), but it did consider

whether the confession had been obtained by undue pressure, such that

it should have been excluded under Section 76 PACE, or whether in the

circumstances it ought to have been excluded under Section 78 PACE.

Both questions were decided against the applicant.

     A further area of complaint by the applicant is the fact that the

notes of the original interviews and the confessions, which were

available at trial, went missing before the Court of Appeal hearing,

which meant that they could not be subjected to ESDA testing.

     The Commission agrees with the Court of Appeal that it seems

strange that the disappearance of the papers should coincide with the

development of a test which could establish whether the notes were or

were not made at the same time as the signatures.  However, the

applicant is not able to make any specific allegations beyond the fact

that the papers went missing, and that she was therefore unable to have

the ESDA test carried out.  In particular, given her allegation on

appeal that her confession was made under oppression, the applicant has

not specified how the ESDA tests would assist her case. The Commission

does not consider that this facet of the case can affect the fairness

of the proceedings.

     Considering the proceedings as a whole, the Commission notes the

following points.  At the original trial, the applicant's defence was

that she had not made many of the alleged admissions, but that she had

signed blank pages of paper, which had been filled in later.  That

defence was not accepted.  She did not request leave to appeal until

very much later, and a further 18 months elapsed before she filed

grounds of appeal with the full Court of Appeal.  In the light of all

the circumstances of the case, leave was granted and the applicant was

able to bring what was, in effect, a wholly new defence, namely that

the admissions were obtained by undue pressure, and that they should

therefore have been excluded.  The Court of Appeal considered the

allegations - including the alleged and established breaches of the

Code of Conduct - and found that neither Section 76 nor Section 78 of

PACE required exclusion of the admissions.

     Given that the Commission's principal task in assessing the

fairness of proceedings is to consider the way in which the courts

handled the case, and given the above considerations of the specific

matters which flow from the initial interviews with the applicant, the

Commission finds no indication that the provisions of Article 6

(Art. 6) were violated in the present case.

     It follows that the remainder 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 REMAINDER OF THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber