AS TO THE ADMISSIBILITY OF

                      Application No. 24399/94

                      by Raymond MENNIE

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 16 October 1996, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 B. MARXER

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 G. RESS

                 A. PERENIC

                 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 15 August 1993 by

Raymond MENNIE against the United Kingdom and registered on

15 June 1994 under file No. 24399/94;

     Having regard to:

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

     the Commission;

-    to the Government's comments contained in their letter of

     14 June 1996 regarding the implications of the judgment of the

     European Court of Human Rights of 10 June 1996 in Pullar v.

     United Kingdom;

     Having deliberated;

     Decides as follows:

THE FACTS

     The facts as submitted by the applicant may be summarised as

follows.

     The applicant is a British citizen, born in 1950, who resides in

Tayside. He is represented before the Commission by Mr. Ronald Tough,

a solicitor practising in Tayside.

A.   Particular circumstances of the case

     The applicant was an elected member of Tayside Regional Council.

     By petition dated 11 June 1991 the applicant and a fellow member

of the Council, Mr. Pullar, were charged, pursuant to section 1 of the

Public Bodies Corrupt Practices Act 1889, with corruptly soliciting

money from Mr. McLaren, a partner in a firm of architects, and from

Mr. Cormack, a partner in a firm of quantity surveyors, in exchange for

the applicant and his co-accused exerting their influence in favour of

an application for planning permission for a proposed development.

     The trial commenced on 13 July 1992 and both the applicant and

his co-accused, Mr. Pullar, pleaded not guilty. The Sheriff Clerk

proceeded to ballot the jury which included a Mr. Forsyth who was an

employee in the firm of Mr. McLaren who was a principal prosecution

witness.  Mr. Forsyth was also acquainted with  Mr. Cormack, another

principal prosecution witness. The juror, Mr. Forsyth, was one of

fifteen employees in the architects firm.  He began employment in the

firm on 30 April 1990 and was given notice of redundancy on

10 July 1992, to take effect on 7 August 1992.

     At the trial in the Sheriff's Court the evidence of Mr. Cormack

and Mr. McLaren, concerned a meeting held with the applicant and his

co-accused, and was to the effect that the applicant and Mr. Pullar

were seeking money in exchange for using their influence to bring about

the success of a planning application.  The applicant gave evidence

denying that money was solicited by him or anyone else.  Mr. Pullar did

not give evidence.

     On 17 July 1992 the applicant and Mr. Pullar were found guilty

by a majority of the jury, though the jury made some changes to the

text of the charge in the indictment relating to the identity of the

land in respect of which planning permission had been sought. The

applicant and his co-accused were sentenced to 12 months' imprisonment.

     The applicant and his legal advisers did not discover the

connection between Mr. Forsyth (the juror) and Mr. McLaren (his

employer) until after the five day trial. The applicant's appeal

against conviction and sentence was heard before the High Court between

5-12 February 1993.  The applicant appealed, inter alia, on the basis

that the presence of Mr. Forsyth on the jury had resulted in a

miscarriage of justice and that the Sheriff should have and had failed

to direct the jury that jurors should bring to the attention of the

court the existence of any personal knowledge of the subject matter of

the charge or of any of the persons named in the indictment.

     The High Court had before it a statement of Mr. McLaren

explaining Mr. Forsyth's employment history and the involvement of both

men at the trial. This statement had not been disclosed to the

applicant before 12 February 1993 and he had no opportunity to cross-

examine the employer as to its contents.  However, neither the

applicant's counsel, nor counsel for Mr. Pullar asked that Mr. McLaren

be called to give evidence, or took any other steps to prevent the

statement being accepted by the Court.

     The applicant's appeal was dismissed on 26 February 1993 by the

High Court.  Certain textual amendments were made to the verdict

because the jury had amended the wording of the charge but had

erroneously failed to remove certain words.  The applicant's counsel

did not raise anything other than a passing comment as to these

amendments and indeed the lack of comment by the defence in this regard

was also noted in the judgment of the High Court.

     In its judgment, the High Court noted that Mr. McLaren had

noticed Mr. Forsyth on the jury on the first day of trial and had

brought the matter to the attention of a Sheriff Clerk. The Clerk had

already been informed by Mr. Forsyth of his position as an employee in

the firm of Mr. McLaren.  This Clerk had asked Mr. Forsyth if he knew

the circumstances of the case or the accused and, when he had replied

in the negative, the Clerk had allowed Mr. Forsyth's name to go forward

for selection as a juror. The Clerk had not informed the Sheriff.

     The High Court considered that there was no evidence that the

juror, an architectural technician, had been involved in any work on

the proposed development or that he knew anything of the alleged

transaction between his employer and the applicant. The court commented

that, if the Sheriff or the parties had been informed, it was probable

that the juror would have been excused by the court under section 133

of the Criminal Procedure (Scotland) Act 1975 ("the 1975 Act") or,

subject to a valid objection by the defence, under section 130 (4) of

the 1975 Act and that the Sheriff's Clerk had been in error in not

bringing the matter to the notice of the Sheriff himself.

     However, the High Court found on the basis of authorities that

the mere suspicion that a juror is biased is insufficient to justify

quashing a verdict. It was not to be assumed that prejudice or the

juror's knowledge would have led him to ignore the evidence and the

directions by the trial judge and to vote only on the basis of personal

prejudice in defiance of his oath.  The High Court did, however, make

a number of recommendations as to future practice in order to avoid a

recurrence of the situation (see "Relevant domestic law and practice"

below).

     The applicant says that after his release from prison he became

aware of the fact that another juror, Mr. M, was closely connected to

a woman who had been making false and injurious allegations against the

applicant before and during the trial, relating to certain of the

applicant's past financial dealings.  The applicant claims that it is

impossible that Mr. M was not aware of the allegations this woman was

making although he also states that Mr. M has claimed that he only

became aware of the allegations after the trial.

B.   Relevant domestic law and practice

     Section 130(1) of the Criminal Procedure (Scotland) Act 1975

("the 1975 Act") enables an accused and the prosecutor to challenge

three jurors without giving any reasons. The challenge must be made

when the juror is balloted. A juror may also be challenged "on cause

shown" before he has been sworn to serve (section 130(4) and (6)).

     Pursuant to section 133 of the 1975 Act, "the court shall have

power to excuse any juror from serving on any trial, the grounds of

such excuse being stated in open court."

     Section 1(4) of the Law Reform (Miscellaneous Provisions)

(Scotland) Act 1980 provides that the fact that any person serving on

a jury for a particular trial was ineligible, not qualified for or

disqualified from jury service shall not of itself affect the validity

of any verdict returned by the jury.

     In their decision in Pullar v. HMA (1993 SCCR 514), the High

Court gave guidance, as to the steps which in future should be taken

to avoid risk of prejudice to the accused, as follows:

     i. when potential jurors arrived at court they should be told the

     names of the accused, complainer or anyone else sufficiently

     important to the case to have been named in the charge or charges

     on the indictment;

     ii. it should be open to the trial judge in his discretion to ask

     the jury to let him know if they think there is any particular

     reason why they should not serve, reminding them that they should

     take this step if they know the accused or anyone named in the

     indictment;

     iii. it is the duty of all those in attendance on the court who

     become aware during the trial of circumstances, which might

     suggest that a juror has personal knowledge of a case or might

     be suspected of being prejudiced, to draw this at once to the

     attention of the presiding judge.

COMPLAINTS

     The applicant invokes Article 6 para. 1 of the Convention.  He

complains of the presence on the jury in his criminal trial of an

employee of a principal prosecution witness who was also acquainted

with another prosecution witness.  The applicant also complains that

since release from prison he has become aware of the fact that a second

juror had knowledge of false and injurious allegations made against the

applicant before and during the trial. He claims that those jurors

cannot be considered impartial and their presence on the jury cast

doubts on the verdict and amounted to a miscarriage of justice and that

the failure of the Sheriff to warn jurors to inform the court of such

personal knowledge was a shortcoming in the proceedings.

     The applicant also complains under Article 6 para. 3 (d) of the

Convention that a statement from the juror's employer was accepted by

the appeal court without his being afforded the opportunity to fully

prepare his defence to the statement or attack such evidence in cross-

examination.

     He further complains under Article 6 para. 3 (b) of the

Convention about inadequate time to prepare a defence to the charges

that were substantially amended in the course of the trial and by the

Lord Justice General in the appeal proceedings.

     The applicant also complains under Article 13 of the Convention

that, as an accused before a Scottish High Court, he had no right to

a further appeal to the House of Lords.

     The applicant further complains under Article 5 para. 5 of the

Convention in that he was precluded from obtaining compensation and

reparation by the domestic courts.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 15 August 1993 and registered

on 15 June 1994.

     On 11 January 1995, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

     On 11 April 1995 the Commission decided to adjourn further

consideration of the application pending the outcome of the proceedings

before the European Court of Human Rights in the case of Pullar

(No. 22399/93) v. United Kingdom.

THE LAW

1.   The applicant complains that he did not receive a fair trial by

an impartial tribunal since one of the jurors was an employee of one

of the two the principal Crown witnesses and knew the other.  He

further claims that since release from prison he has become aware that

another juror had knowledge of false allegations relating to him and

therefore believes that that juror was also biased.

     He further complains of being unable to challenge the statement

of the juror's employer before the appeal court. He invokes Article 6

paras. 1 and 3 (d) (Art. 6-1, 6-3-d).

     The applicant further complains under Article 6 para. 3 (b)

(Art. 6-3-c) that he was not given sufficient time to prepare his

defence to the charges that were substantially amended in the course

of the trial and by the Lord Justice General in the Appeal proceedings.

     Article 6 (Art. 6), insofar as relevant provides as follows.

     "1.   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..."

     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..."

a.   As regards the applicant's complaint that the tribunal was not

impartial, the Commission recalls the established case law of the

Convention organs that there are two aspects of the requirement of

impartiality in Article 6 para. 1 (Art. 6-1).  First, the tribunal must

be subjectively impartial, that is, no member of the tribunal should

hold any personal prejudice or bias.  Personal impartiality is to be

presumed unless there is evidence to the contrary.  Secondly, the

tribunal must also be impartial from an objective view point, that is,

it must offer sufficient guarantees to exclude any legitimate doubt in

this respect (see, for instance, (see e.g. Eur. Court HR, Pullar v.

United Kingdom, judgment of 10 June 1996, para. 30 (to be published),

Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53 p. 14

para. 30).

     In its judgment in Pullar v. United Kingdom the European Court

of Human Rights held that the claim of the applicant's co-accused,

Mr. Pullar, as to the alleged bias of Mr. Forsyth did not amount to a

violation of Article 6 para. 1 (Art. 6-1).  Specifically, the Court

found that because, in the circumstances of the case, it was by no

means clear that an objective observer would conclude that the juror

who knew the witness for the prosecution would have been more inclined

to believe him than the witnesses for the defence, and because the jury

system provided certain inherent safeguards, such as the random

selection of jurors and the oath sworn by them, Mr. Pullar's misgivings

as to the impartiality of the tribunal that tried him could not be

regarded as objectively justified (cf. para. 41).

     The Commission does not consider the applicant's additional claim

of bias in respect of another juror constitutes grounds on which to

distinguish Pullar, that claim being entirely unsubstantiated, such

that impartiality must be presumed.  The Commission is therefore of the

view that there is nothing in the present application that would lead

to a different conclusion from that reached by the European Court of

Human Rights referred to above.

b.   As regards the applicant's claim under Article 6 paras. 1

and 3 (d) (Art. 6-1, 6-3-d), that the applicant was not able to

challenge the statement of Mr. McLaren made for the purposes of the

appeal proceedings, the Commission recalls that the European Court of

Human Rights in its judgment in Pullar v. United Kingdom (see above)

had particular regard to the fact that counsel for Mr. Pullar did not

choose to take any of a number of courses of action that were open to

him to prevent the court from accepting the statement at face value and

that in these circumstances it could not be said that Mr. Pullar had

been denied his rights under Article 6 para. 3 (d) (Art. 6-3-d).

     The Commission notes that the applicant's counsel also failed to

take any steps to prevent the Court taking the statement of Mr. McLaren

at face value and therefore also finds in respect of this complaint

that there is nothing which would lead the Commission to a different

conclusion from that reached by the European Court of Human Rights in

Pullar v. United Kingdom (see above).

c.   As regards the applicant's complaint under Article 6 para. 3 (b)

(Art. 6-3-b) of the Convention that he had inadequate time to prepare

a defence to the charges that were substantially amended in the course

of the trial and by the Lord Justice General in the Appeal proceedings,

the Commission recalls that the specific guarantees under Article 6

para. 3 (Art. 6-3) cannot be looked at in isolation but must be looked

at in the light of the overriding purposes of fairness laid down in

Article 6 para. 1 (Art. 6-1) of the Convention (see Eur. Court HR,

Edwards v. United Kingdom, judgment of 16 December 1992, Series A no.

247-B, paras. 33-34 and other references there quoted).

     The Commission observes that the changes to the indictment

related to an error in respect of the identity of the land in relation

to which planning permission was sought. Further changes, of a textual

nature which were consequent on the trial court's changes, were made

to the verdict by the High Court at the appeal stage. There is no

evidence that, during the trial, the applicant's counsel raised

anything other than a passing comment on this error and indeed the lack

of comment by the defence in this regard was also noted in the judgment

of the High Court. In addition, the substantive issue, namely that the

applicant and his co-accused had solicited bribes at a particular

meeting in exchange for favouring a planning application, did not

change and thus the Commission considers that the changes to the text

of the indictment and the consequent changes to the verdict by the High

Court did not prejudice the applicant.

     It follows that the above complaints must be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2.   The applicant also complains under Article 13 (Art. 13) of the

Convention that, as an accused before a Scottish High Court, he had no

right to a further appeal to the House of Lords.  Article 13 (Art. 13)

provides as follows.

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy before a

     national authority notwithstanding that the violation has been

     committed by persons acting in an official capacity."

     The Commission notes that the applicant is effectively seeking

a second appeal court and that there is no such entitlement under the

Convention (see Eur. Court HR, Delcourt v. Belgium, judgment of

17 January 1970, Series A no. 11 pp. 14-15, para. 25 relating to the

right to a first court of appeal, No. 10153/82, Dec. 13.10.86, D.R. 49

p. 67).

     This part of the application must therefore be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

3.   Finally the applicant invokes Article 5 para. 5 (Art. 5-5) of the

Convention in that he was precluded from obtaining compensation and

reparation by the domestic courts.

     The Commission recalls that the right to compensation under

Article 5 para. 5 (Art. 5-5) of the Convention presupposes that a

violation of one of the other paragraphs of Article 5 (Art. 5) has been

established, either by a domestic organ or by the Convention organs

(cf. No. 10801/84, Comm. Report 3.10.88, D.R. 61 p. 62).

     The Commission notes that the applicant has not shown that the

case raises any matters under Article 5 (Art. 5) so that Article 5

para. 5 (Art. 5-5) is not applicable to the circumstances of the case.

     It follows that this part of the application must be dismissed

as 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