Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 29424/95

by Bernard William REES

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

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 25 August 1995 by

Bernard William REES against the United Kingdom and registered on

1 December 1995 under file No. 29424/95;

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 1944 and currently

detained in HM Prison Full Sutton.

A. Particular circumstances of the case

The facts of the case, as submitted by the applicant, may be

summarised as follows.

On 29 January 1992 five men (three British and two Belgians) were

arrested in Kortrijk in Belgium in possession of 1 kg of cocaine, 8 kg

of amphetamine and 70 ecstasy tablets. The case involved importation

from Belgium and distribution within the United Kingdom of very large

quantities of illegal drugs. All five men were convicted by a Belgian

court of drug trafficking between Holland and Belgium. It was not

disputed that they had conspired to import drugs into the United

Kingdom.

On 28 April 1992 the applicant and a number of other persons were

arrested in London and South Wales.

In March 1993 a trial took place before the Newport Crown Court.

The applicant and other four co-accused were charged with conspiracy

to import and supply cocaine and amphetamine between 1 October 1991 and

1 May 1992. All accused denied having been involved in drugs and none

of them gave evidence before the jury. They claimed that they had been

falsely implicated in the offences.

The prosecution asserted that the applicant had "masterminded"

the whole operation, that he had been the "general" in South Wales and

one of the co-accused his counterpart in London. The prosecution

alleged that between October 1991 and April 1992 there had been at

least two successful importations of drugs into the United Kingdom.

It was further submitted that a third importation had been prevented

by Anglo-Belgian police co-operation resulting in an arrest of drug

traffickers in Belgium in January 1992 and seizure of drugs.

The prosecution case fell into four broad categories of evidence:

observations by police officers, flights of the accused in private

planes to and from the United Kingdom and Belgium and associated

documentation, telephone communications within the United Kingdom and

Belgium (a schedule was produced) and matters resulting from the arrest

and search of the accused and their homes.

The evidence disclosed that on a number of occasions police

officers had arrived at a precise location of a meeting of the co-

accused, or that they had arrived there before the defendants. It was

submitted that such police action could have only occurred as a result

of advance knowledge derived from either a covert electronic

surveillance or an informant.

A number of phone calls to and from persons alleged to have been

involved in the conspiracy were set out in a schedule. This included

phone calls made by an unidentified person in Belgium to a telephone

number in the United Kingdom and phone calls between all co-accused at

a time and from a place which the prosecution asserted was relevant to

the conspiracy. The schedule came from computer printouts of recorded

calls from each subscriber number.

Two different sets of exhibits concerning the police interviews

of the five defendants were introduced by the prosecution: (1) unedited

tape recordings; (2) an edited version of a transcript of the

recordings from which prejudicial material had been removed. The

applicant alleges that certain words were inserted into two questions

"to make understandable what everybody understood in the

circumstances".

The jury were not provided with the original recordings in the

course of the trial. When the jury retired to deliberate, they were

given, among other exhibits, the edited transcript. Nevertheless, the

trial judge told the jurors in his final directions that they could

request "any other original exhibits", and that it would be sent to

them if asked on an "all things being equal" basis. He confirmed that

if there was any problem in supplying any further exhibits requested

by the jury, they would be called back into court to discuss it.

Shortly after retiring to consider their verdict, the jury sent

a note requesting the trial judge to provide them with the tapes of the

police interviews of all five co-accused.

The trial judge, after consultations with the Crown and counsels

of the accused, refused the jury's request. He considered that:

"In this case, which has not been without ... difficult

points from the very first morning, another one has arisen

after the retirement of the jury with a note. The note

reads: "Is it possible to hear the tapes of the police

interviews of all five defendants?

I preface my remarks by making these observations. No

counsel in this case at any stage has asked that the jury

should hear the tapes of interviews. There are no alleged

confessions, no allegations have been made against the

police officers in relation to the conducting of the

interviews, no issue has been raised at any stage about

tones of voice or ways of speaking. Agreed transcripts in

edited form, and in [accused W.]'s case in summarised form,

have been put before the jury. The substantial editing has

been done in order to remove prejudicial material.

The jury now ask their question. If I permit such a

course, and I have a discretion, the following practical

matters arise. Firstly, the tapes will have to be edited.

That will take up to about 24 hours from now, and then they

will have to be heard by me and counsel before a decision

can be made as to whether the edited versions are

acceptable to be heard by the jury. In their unedited form

they last approximately three and a half hour, if my

mathematics is correct, so there is no possibility of the

jury's having the tapes until Friday morning. If they were

to have them then they would have to listen to them for, I

presume, at least two to two and a half hours. They

retired this morning, Wednesday, at about eleven o'clock in

a case where they have been hearing evidence since 6 May so

the practical difficulties of permitting them to hear the

tapes are very great indeed, in my judgment.

Counsel for [accused W.] does not wish the jury to hear the

tape of his client's interview as it seems it could not be

edited in any way that would be satisfactory. [The

applicant]'s counsel does wish the jury to hear the tape of

his client's interview. Other counsels wish to hear edited

versions before deciding.

I think there is a danger of prejudice to a defendant in

the circumstances of this case if the jury were not to hear

his interview and they were to hear others, I have to

balance all these matters. I have considered guidance in

the cases of Riaz and Burke 94 Cr. App. R. 339 and Emmerson

92 Cr. App. R. 284. In the exercise of my discretion, and

in particular the huge practical difficulties and problems

and timing of this request I intend to tell the jury that

it is not possible at this stage for them to hear the

tapes."

On 22 July 1993 the applicant and two of his co-accused were

convicted of conspiracy to import and supply controlled drugs. On

22 October 1993 the applicant was sentenced to 13 years' imprisonment.

Following the conviction, the applicant's counsel drafted, on

behalf of the applicant, ten grounds of appeal against the conviction

and sentence in which the last one concerned the trial judge's refusal

of the jury's request. The arguments were summarised as follows:

"The learned judge wrongly refused a request from the jury

when they retired that they should be supplied with the

original interviews tapes. The request was rejected on the

basis of convenience and the time required to amend the

tapes of co-defendants. No such difficulties were present

in the applicant's tape and his counsel urged the learned

judge to comply with the request."

On 18 February 1994 the single judge refused an application for

leave to appeal on either basis. The judge considered inter alia that:

"If [the tapes] they were not played to the jury in the

course of the trial, it was inappropriate to play them once

the jury had retired, the more so if there were editing

difficulties."

On 28 July 1994 the applicant renewed his application for leave

to appeal before the Full Court of Appeal.

On 10 April 1995 the hearing of the appeal took place. The Court

of Appeal upheld the applicant's conviction. The last ground of appeal

was dismissed in the following terms:

"The last matter which is canvassed before this court

relates to the interviews of [the applicant]. The

submission is made that when the jury, after they had been

out deliberating for some time, came back and asked to hear

tapes of the interviews of all five defendants, that

request should have been acceded to by the learned judge.

There was no difficulty in providing the jury with tapes of

this applicant's interviews, although it is accepted that

it might well have caused a 24-hour delay before tapes

could have been provided of the interviews of other

defendants. In order to understand that submission and the

attitude of this court to it, it is necessary to explain

that, during the course of the trial, the tapes of the

interviews of all the defendants had not been played before

the jury; they contained, in some cases, considerable

amounts of prejudicial and inadmissible evidence, for

example in relation to time spent in French jails, which

had very properly been excluded from the transcript of the

interviews with which the jury were provided. We are told

that in the course of final speeches prosecuting counsel

had sought to comment upon the 'no comment' which had been

made by the [defendants] in course of interviews ... We

shall come in a moment to the way in which the judge dealt

with that. But, so far as [the applicant]'s application

for leave is concerned, it suffices to say that, bearing in

mind the acceptance of [his counsel] that the jury's

request could not have been satisfactorily answered in

relation to the other defendants without some 24 hours or

so delay, the practicability and practicality of playing

only one defendant's tapes of interview was manifestly a

matter for the judge's discretion. We are wholly

unpersuaded, having regard to the circumstances to which we

have referred and to which in a moment we shall return in

relation to the application on behalf of [the applicant's

co-accused], that he exercised his discretion in an

inappropriate fashion.

Accordingly, so far as [the applicant]'s application is

concerned, in relation to his conviction, we take the view

that there are no arguable grounds for the Court to

consider and that application is dismissed."

B. Relevant domestic law and practice

In R. v. Emmerson (1992 Cr. App. R. 294) the Court of Appeal

considered it "... permissible to accede to a request made by a jury

after it has required to hear the tape recording of the police

interview with the defendant that has been made an exhibit but which

has not previously been played to the jury".

The case of R. v. Riaz and Burke (1995 Cr. App. R. 339) was

summarised in the present case as "... in essence the position would

seem to be that tapes were exhibited and in what I might call normal

circumstances, even if they have not been played prior to the jury

retirement, the jury would be entitled to hear them; and those cases

were essentially concerned with situation where in one case the jury

were said to be entitled to hear tapes after their retirement and, in

the other, where they were precluded from hearing them after their

retirement for a number of reasons".

COMPLAINTS

The applicant complains, under Article 6 of the Convention, that

the trial judge prevented the jury from knowing all the actual,

complete and correct evidence supporting allegations he made in his

defence by dismissing the jury's request to hear a tape of police

interviews, in spite of it having been introduced on trial by the

prosecution as the only piece of original evidence on his behalf.

The applicant submits that the "prejudicial material" was removed

from the edited transcript because it contained matters irrelevant to

the case. He claims that certain words were inserted into some

questions and distorted and biased the meaning of his answers. The

applicant contends that he had not been informed about these

alterations, not even before the edited version of the transcript was

given to the jury.

THE LAW

The applicant complains that the trial judge prevented the jury

from knowing all the actual, complete and correct evidence supporting

allegations he made in his defence by dismissing the jury's request to

hear a tape of police interviews, in spite of it having been introduced

on trial by the prosecution as original evidence. He invokes Article 6

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

follows:

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

him, everyone is entitled to a fair and public 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;

..."

The Commission recalls that according to Article 19 (Art. 19) of

the Convention, the duty of the Commission and of the European Court

of Human Rights is to ensure the observance of the engagements

undertaken by the Contracting States in the Convention. In particular,

it is not their function to deal with errors of facts or of law

allegedly committed by a national court unless and insofar as they may

have infringed rights and freedoms protected by the Convention (cf.

Eur. Court HR, the Schenk v. Switzerland judgment of 12 July 1988,

Series A no. 140, p. 29, para. 45).

While Article 6 (Art. 6) of the Convention guarantees the right

to a fair trial, it does not lay down any rules concerning the national

courts' internal procedure, which is therefore primarily a matter for

regulation under national law. In particular, none of the Convention's

provisions expressly requires that a jury must be allowed to hear tapes

of police interviews of an accused if it has an edited transcript at

its disposal.

The question of whether the case was given a fair hearing must

always be decided on the basis of an appraisal of the trial as a whole,

including the decision of the appellate court (cf. No. 9000/80,

Dec. 11.3.83, D.R. 28 pp. 127, 134; Eur. Court HR, the Edwards v. the

United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 34,

para. 34).

In the present case the applicant's conviction was based on a

series of elements such as: the observations by police officers,

flights of all co-accused in private planes to and from the United

Kingdom and Belgium and associated documentation, telephone

communications within the United Kingdom and Belgium and matters

resulting from the arrest and search of the accused and their homes and

not solely or even essentially on his police interviews, as the

applicant claims.

The Commission notes that the applicant, who was represented by

counsel, had the opportunity to address the court and to submit

whatever he found relevant to his case. In particular, neither the

applicant nor his counsel at any stage of the trial asked for the jury

to hear the tapes of the interviews. They made no allegations against

the police officers in relation to the conducting of the interviews and

no issue was raised at any stage about tones of voice or ways of

speaking. Transcripts in edited form agreed by the defence and the

prosecution were put before the jury. The substantial editing was done

in order to remove prejudicial material.

The Commission notes that that the trial judge's decision to

refuse the request from the jury to be supplied with the original

interviews tapes was taken in exercise of discretion of the trial

judge, in accordance with the domestic case-law, i.e. R. v. Emmerson

and R. v. Riaz and Burke (cf., mutatis mutandis, the Gillow v. the

United Kingdom judgment of 24 November 1986, Series A no. 109, p. 28,

para. 71). The applicant was able to put and did put this point to the

appeal courts, which were of the opinion that - given that the

applicant had never requested the tapes to be played and the technical

problems which would be caused by the necessary editing - the judge

rightly exercised his discretion.

The Commission finds that no lack of fairness arose from the

judge's refusal to have edited tapes prepared for the jury: the jury

was ultimately required to decide the case on the basis of precisely

the evidence which was put before the jury.

In these circumstances the Commission finds that the applicant's

trial, when regarded as a whole, cannot be considered to have been

conducted in a manner contrary to Article 6 (Art. 6) of the Convention.

It follows that 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, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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REES v. THE UNITED KINGDOM

REES v. THE UNITED KINGDOM

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