Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28572/95

by M.H.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 9 May 1995 by M.H.

against the United Kingdom and registered on 18 September 1995 under

file No. 28572/95;

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 1934. He is

represented before the Commission by Mr. Mark Spragg, a solicitor

practising in London. The facts of the application, as they have been

submitted by the applicant, may be summarised as follows.

A. The particular circumstances of the case

The applicant was convicted on 26 June 1993 at the Crown Court

at Southwark, by a majority of 10 to 2, of conspiracy to cheat Her

Majesty the Queen and the Commissioners of Inland Revenue. The offence

occurred over the period of 1 December 1982 and 31 December 1991 and

the loss to the Revenue was £55 million in lost corporation tax and

over £30 million in interest. The applicant was sentenced to 8 years

imprisonment, ordered to pay £513,512 towards the costs of the

prosecution and disqualified from being concerned in the management of

a company for 10 years.

The applicant appealed against conviction and sentence. The

appeal was dismissed by the Court of Appeal on 5 May 1994. However, the

Court of Appeal certified that there was a point of law of general

public importance in the decision to dismiss the appeal, namely whether

there was an offence of cheating the Revenue at common law. The Court

of Appeal nevertheless refused leave to appeal on this point and on

8 December 1994 the House of Lords likewise refused leave to appeal.

The case was brought by the Crown against the applicant and F.S.

The applicant was a director, the joint assistant managing director and

the second largest shareholder (12.5%) of a limited company. F.S. was

a director, subsequently the finance director and the third largest

shareholder (7%) of the same limited company. There were 5 counts (some

being alternatives) on the indictment. Counts 1 and 2 concerned the

period of 1 October 1975 to 31 March 1983 and counts 3 and 4 concerned

the period 1 December 1982 to 31 December 1991. All the counts

concerned the tax affairs of the said limited company. The applicant

was found guilty of count 3. Counts 1 to 4 inclusive named the

applicant, F.S. and others (the others being abroad and not subject to

extradition) as co conspirators.

Prior to the trial F.S. entered into negotiations with the Inland

Revenue and the Prosecution and an agreement was reached whereby F.S.

would plead guilty to count 5, a count drafted specifically for this

purpose. Count 5 was an offence alleged against F.S. alone, and was

that of:

"Cheating Her Majesty the Queen and Her Commissioners of Inland

Revenue, contrary to common law."

In return for this guilty plea it was agreed that Counsel for the

Prosecution would inform the trial judge that the Prosecution was

unable to prove that F.S. received any personal benefit, and that the

other counts on the indictment against F.S. would remain on the file

not to be proceeded with, without an order of the Court, and that in

the event of the applicant being acquitted on counts 1 and 2 (as in

fact occurred), F.S. would likewise be acquitted of them.

Save that count 5 related to a shorter period, 1 November 1985

to 31 October 1986, whereas count 3 related to a period between

1 December 1982 to 31 December 1991, the particulars of the offence

under count 5 were in all material terms identical to the particulars

of the offence under count 3.

An application was made by the prosecution, under section 74 of

the Police and Criminal Evidence Act 1984, to use the guilty plea of

F.S. in the trial of the applicant. Whilst under section 78 of the

Police and Criminal Evidence Act 1984, the judge had a discretion not

to admit the guilty plea, the judge, having heard the point argued by

counsel for the applicant and for the prosecution, chose not to

exercise this discretion applying the test of whether the prejudicial

effect outweighed the probative value, and thus the plea was admitted.

The applicant's lawyers lodged an appeal against this decision.

However the appeal was subsequently abandoned. At the subsequent appeal

against conviction and sentence, the grounds of appeal again raised the

issue of the admission of the guilty plea of F.S. The Court of Appeal

held in relation to the ground concerning the admission of the guilty

plea of F.S., that an abandoned appeal was analogous to an appeal that

had been dismissed and as such the applicant was estopped from raising

the point on an appeal after conviction, the point having been finally

determined by a court of competent jurisdiction.

Although an agreement had been reached that the prosecution were

not to pursue counts 1 to 4 inclusive against F.S., his name

nevertheless remained on the indictment.

At the outset of the trial the jury were informed of the guilty

plea of F.S. F.S. was not called by the prosecution to give evidence

in person and was thus not cross examined by the applicant's counsel.

One of the issues before the jury was whether the prosecution had

proved that the fraud was upon the U.K. Revenue as opposed to a fraud

on the Japanese authorities. The judge in his summing up described the

plea of F.S. as "very powerful evidence that there was a cheat on the

Revenue.". After retiring to consider their verdict, the jury sent a

note to the judge with the following question: "Is there any direct

evidence of fraud (tax evasion) upon the UK Revenue?" (emphasis as in

original). The Judge responded as follows:

"The answer that I give to you is, yes, there is. [F.S.'s]

pleas of guilty to count 5 is direct evidence that [F.S.] cheated

the Revenue in the year alleged, 1 November 1985 to

31 October 1986.

That is direct evidence, his plea of guilty.

That is tax evasion and, indeed, the other particulars in

the offence charged follow.

What you do not know is the basis on which he pleaded. In

other words was he pleading to using false invoices, false

agreements or false correspondence. You do not know that.

What you do know is that [F.S.] pleaded guilty to cheating

Her Majesty's Commissioners of Inland Revenue of Public Revenue

Corporation Tax in that year.

... Let me make it plain; that is the only direct evidence.

All the rest must be inference. It is an inference you may feel

directly follows from the direct evidence, but it is for you to

judge how strong the inference is. In other words, [F.S.'s] plea

to guilty of cheating in 1985/86 does not prove a conspiracy by

itself. You need other evidence to decide that. It certainly

does not prove [M.H.'s] being concerned in that cheat of the

Revenue."

B. Relevant Domestic Law

Section 74 of the Police and Criminal Evidence Act 1984 provides:

"74.

(1) In any proceedings the fact that a person other than the

accused has been convicted of an offence by or before any court

in the United Kingdom shall be admissible in evidence for the

purpose of proving, where to do so is relevant to any issue in

those proceedings, that that person committed that offence,

whether or not any other evidence of his having committed that

offence is given."

However the judge retains a discretion under section 78 of the

Police and Criminal Evidence Act 1984 to exclude such evidence, if to

admit it would have such an adverse effect on the fairness of the

proceedings that the court ought not to admit it.

Section 78 of the Police and Criminal Evidence Act 1984 provides:

"78.

(1) In any proceedings the court may refuse to allow evidence on

which the prosecution proposes to rely to be given 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."

Under Sections 7 to 10 of the Criminal Justice Act 1987, in a

complex and serious case of fraud, the judge may hold a preparatory

hearing before the jury is sworn. During such a hearing the judge may

determine, inter alia, questions as to the admissibility of evidence.

An appeal lies to the Court of Appeal from a ruling by the judge on

admissibility of evidence.

COMPLAINTS

The applicant complains about the alleged unfairness of the

criminal proceedings against him.

The applicant complains that the guilty plea of F.S. was admitted

as evidence in his trial and further that the plea having been

admitted, F.S. was not called as a witness by the Prosecution, thus

denying the applicant the right to cross examine F.S. on his plea.

The applicant also complains that the circumstances surrounding

the plea of F.S. (ie. his negotiations with the Prosecution and the

Inland Revenue) were not made known to the applicant until just before

the commencement of the trial.

The applicant further complains that as the guilty plea of F.S.

to count 5 was admitted, and as F.S.'s name appeared on counts 1 to 4

inclusive along with the applicant's name, the applicant was put in the

position of having to show he did not know of the fraud, which his

second in command admitted to knowing of, and as such the burden of

proof was reversed. Having accepted there was a completed cheat by

F.S. the applicant claims it would have been logically impossible to

deny the fact of there being a cheat in the applicant's case and that

this constituted a breach of Article 6 para.2

The applicant invokes Article 6 paras. 1, 2, 3 (b) and (d) of the

Convention.

THE LAW

The applicant complains about the alleged unfairness of the

criminal proceedings against him. In particular the applicant complains

that the guilty plea of F.S. was admitted as evidence and that F.S. was

not called by the Prosecution, thus denying the applicant the

opportunity to cross examine F.S. on the basis of his plea.

1. The applicant relies on Article 6 paras. 1 and 3 (Art. 6-1, 6-3)

of the Convention.

Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, so

far as relevant, provide as follows:

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

everyone is entitled to a fair ... hearing ... by an independent

and impartial tribunal established by law. ...

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;

d. to examine or have examined witnesses against him and to

obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him;

..."

The Commission finds it appropriate to examine the applicant's

submissions from the angle of paragraph 1 taken together with the

principles inherent in paragraph 3 of Article 6 (Art. 6-3), as the

guarantees in paragraph 3 are specific aspects of the general concept

of a fair trial set forth in paragraph 1 (Eur. Court HR.,

Unterpertinger v. Austria judgment of 24 November 1986, Series A no.

110, p. 14, para. 29).

The applicant complains that during his trial the guilty plea of

F.S. was admitted as evidence. He lodged an appeal against the trial

judge's admission of the plea but later abandoned this appeal. The

applicant attempted to resurrect the complaint regarding the admission

of the guilty plea of F.S. at his substantive appeal against conviction

and sentence before the Court of Appeal. The Court of Appeal held that

an abandoned appeal was analogous to an appeal that had been dismissed

and as such the applicant was estopped from raising the point on an

appeal after conviction, the point having been finally determined by

a court of competent jurisdiction. The Commission considers the

failure of the applicant to pursue his appeal against the trial judge's

admission of the guilty plea of F.S. gives rise to the question whether

by not pursuing his appeal against the admission of the guilty plea he

had failed to exhaust domestic remedies. The Commission is not however

required to resolve this question as the application is in any event

inadmissible for the following reasons.

The Commission recalls that the admissibility of evidence is

primarily governed by the rules of domestic law. The admissibility and

assessment of evidence are in principle matters for the national

courts. The Commission's task under the Convention is to ascertain

whether the proceedings, considered as a whole, were fair (Eur. Court

HR, Bricmont v Belgium judgement of 7 July 1989, Series A no. 158,

p. 31, para. 89 and Saidi v. France judgment of 20 September 1993,

Series A no. 261-C, p. 56, para. 43).

The Commission notes that the guilty plea of F.S. was admitted

as proof that F.S. had committed a tax evasion on the UK Revenue and

thus direct evidence that there was a cheat on the UK Revenue between

1 November 1985 and 31 October 1986 by F.S. The judge made it clear

to the jury that the guilty plea did not prove a conspiracy by itself

and it did not prove the applicant was concerned in that cheat of the

Revenue. The admission of the guilty plea was clearly in accordance

with domestic law (section 74 of the Police and Evidence Act 1984).

Whilst under section 78 of the Police and Criminal Evidence Act 1984,

the judge had a discretion not to admit the guilty plea, the judge,

having heard the point argued by counsel for the applicant and for the

prosecution, chose not to exercise this discretion. The Commission

considers that the admission of the guilty plea must be looked at in

conjunction with the warning given to the jury about the relevance of

the guilty plea. In these circumstances the Commission considers that

the judge's ruling that the guilty plea be admitted as the probative

value of the guilty plea outweighed the prejudicial effect, does not

disclose an arbitrary or unreasonable exercise of the discretion

conferred upon him. The Commission does not, consequently, find

grounds to criticise the judge's refusal to exercise his discretion to

exclude the guilty plea and further does not consider that the

admission of the guilty plea of F.S. rendered the trial of the

applicant unfair.

The applicant also complains that F.S. was not called by the

Prosecution, thus denying the applicant the opportunity to cross

examine F.S. on the basis of his plea. Whilst the prosecution did not

call F.S., relying simply on his plea of guilty, this did not prevent

the applicant calling F.S. himself, whereby the applicant could have

examined F.S. in chief, albeit that cross examination would only have

been permitted had F.S. been declared a "hostile witness". The

Commission also considers there is a distinction between the present

case where a guilty plea is admitted to establish the fact of a

commission of a crime by a person other than the accused and the case

of the admission of a witness' testimony against the accused. In the

circumstances of this case the Commission does not consider that it can

be said that the applicant was denied the right to examine a witness

against him.

The applicant further complains that he lacked adequate time for

the preparation of his defence, in particular that he was informed at

a late stage of the circumstances surrounding the plea of F.S. The

Commission notes that the applicant was given an opportunity to object

to the admission of the guilty plea at the preliminary hearing. In the

preliminary hearing concerning the admission of the guilty plea the

applicant's counsel argued the point that the circumstances in which

F.S.'s plea was obtained should be considered by the judge in the

exercise of his discretion to exclude the guilty plea. In addition the

applicant had the opportunity to appeal against the judge's decision

to admit the plea, before the commencement of the jury trial, however

the applicant chose to abandon an appeal. The Commission does not

consider that there is any substantiation to the applicant's claim that

he was denied sufficient time for preparation.

The Commission considers that domestic law, which allows for the

admission of a guilty plea of a person other than the accused even if

that person does not give evidence, with the judge having the

discretion to exclude the evidence, if to admit it would have an

adverse effect on the fairness of the proceedings, does not impair the

very essence of Article 6 paras. 1 or 3 (Art. 6-1, 6-3).

Furthermore considering the applicant's submissions in their

entirety, the Commission finds no procedural deficiencies in the case

which rendered the criminal proceedings as a whole unfair for the

purposes of Article 6 (Art. 6).

In the circumstances the Commission does not consider that there

is any appearance of a breach of Article 6 para. 1 or of Article 6

para. 3 (b) or (d) (Art. 6-3-b, 6-3-d).

2. The applicant further complains under Article 6 para. 2

(Art. 6-2), that as the guilty plea of F.S. to count 5 was admitted,

and as F.S.'s name appeared on counts 1 to 4 inclusive along with the

applicant's name, the applicant was put in the position of having to

show he did not know of the fraud, which his second in command admitted

to knowing of, and as such the burden of proof was reversed. The

applicant claims that the jury, having been informed that there was a

completed cheat by F.S., were logically unable to deny the fact of

there being a cheat in the applicant's case, and that this likewise

constituted a breach of Article 6 para. 2 (Art. 6-2).

Article 6 para. 2 (Art. 6-2)of the Convention provides as

follows:

"2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law."

The Commission considers the applicant's claim, that the

admission of evidence establishing that there had been a fraud on the

revenue by F.S. changed the burden of proof and thus breached the

applicant's right to be presumed innocent until proved guilty according

to the law, appears to be based on a misconception. The judge in his

comments to the jury made it clear that the plea of F.S. did not prove

a conspiracy by itself and did not prove that the applicant was

concerned in that cheat of the Revenue. Whilst the evidence of the

guilty plea strengthened the prosecution's case, it did not alter the

burden of proof, it remained the task of the prosecution to satisfy the

jury beyond reasonable doubt that there had been a fraud against the

Revenue in which the applicant had been a conspirator. The Commission

considers, in view of the foregoing, that this claim is not

substantiated and that there was no appearance of a violation of

Article 6 para. 2 (Art. 6-2) of the Convention.

The Commission refers to its findings under Article 6 paras. 1

and 3 (Art. 6-1, 6-3) of the Convention and likewise holds that the

domestic law which admitted the guilty plea does not impair the very

essence of Article 6 para. 2 (Art. 6-2) of the Convention and that the

applicant's submissions do not disclose any procedural deficiencies

such as to render the case as a whole unfair for the purposes of

Article 6 (Art. 6).

It follows that the application as a whole 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.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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M.H. v. THE UNITED KINGDOM

M.H. v. THE UNITED KINGDOM