Lexploria

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 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 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 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 applicant's representative,

may be summarised as follows.

The particular circumstances of the case

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

The applicant was arrested on 18 February 1987 and interviewed from

11.15 pm until 11.43 pm. A second interview was held between 9.25 am

and 10.37 am the following morning, and a third interview was held that

evening. The third interview, at which she had made a confession, had

begun at 5.10 pm, and was held in the presence of a woman police

officer who acted as interpreter. The applicant was cautioned at the

beginning of the interview, and after various breaks for coffee, there

was an interval while the applicant was photographed. At 8.45 pm the

interview recommenced and between 10.35 and 10.50 there was a further

coffee break. No further caution was given when the interview resumed

at 10.50. The admission in question was made at 11.30 that evening,

the applicant was given a meal at 12.45 am on 20 February, and the

interview ended at 3.06 am.

On 26 November 1987 the applicant was convicted at the Birmingham

Crown Court of the murder of her sister-in-law. The applicant

submitted that evidence obtained in the course of 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 Code C of the

Codes of Practice 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.

On 20 December 1990 the applicant was granted an extension of

time 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. 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 there 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 that 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 under Section 76 (2) (a) of

the Police and Criminal Evidence Act 1978 ("PACE"), or alternatively

that the evidence should have been excluded by the trial judge in the

exercise of his discretion under Section 78 of 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 were the

rules relating to interpreters. Questions as to the circumstance of

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

At the trial the applicant had claimed that she had been given blank

pages to sign - there had been no claim that she signed as a result of

undue pressure.

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

relating to refreshment, observed 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 admitted 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.

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

is 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 violations of Articles 5 and 6 of the

Convention.

In connection with Article 5, the applicant accepts that the

initial arrest may have been justified under Article 5 para. 1 (c) of

the Convention, but she considers that, because the interviews which

followed the arrest were unlawful, the subsequent detention also became

unlawful because it was no longer "prescribed by law", as required by

Article 5 para. 1. She also considers that Article 5 para. 2 has been

violated by the failure to provide an interpreter at her initial

interviews.

The applicant further 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 sees further violations

of Article 6 in the absence of an interpreter at the initial interviews

(Article 6 para. 3 (e)) and in the absence of a legal representative

of her choosing 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)).

THE LAW

1. The applicant alleges a violation of Article 5 (Art. 5) of the

Convention. She considers that the failures to comply with the

relevant Code of Practice under the Police and Criminal Evidence Act

1984 rendered her detention unlawful, even if that detention was

initially covered by Article 5 para. 1 (c) (Art. 5-1-c) of the

Convention. She also alleges a violation of Article 5 para. 2

(Art. 5-2) of the Convention, in that she was not properly informed of

the reasons for her arrest at her initial interviews.

Article 5 (Art. 5) of the Convention provides, so far as

relevant, as follows.

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so.

2. Everyone who is arrested shall be informed promptly, in a

language which he understands, of the reasons for his arrest and

of any charge against him."

However, the Commission is not required to decide whether or not

the facts alleged by the applicant disclose any appearance of a

violation of these provisions, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

... within a period of six months from the date on which the final

decision was taken".

In the present case the applicant's complaints in connection with

her arrest arose in February 1987, and her detention on remand ended

at the latest with her conviction on 26 November 1987, whereas the

application was submitted to the Commission on 11 May 1994, that is

more than six months after that date. Furthermore, an examination of

the case does not disclose the existence of any special circumstances

which might have interrupted or suspended the running of that period.

In particular, the remedies which the applicant pursued in connection

with her conviction cannot affect the running of the six months period

in connection with the complaints about her detention on remand since

those remedies were not capable of affecting the position with regard

to the detention.

It follows that this part of the application has been introduced

out of time and must be rejected under Article 27 para. 3 (Art. 27-3)

of the Convention.

2. The applicant also alleges a violation of Article 6 (Art. 6) of

the Convention. She considers that the absence of an interpreter and

of a legal representative of her choosing at her initial interviews,

together with the admission of the statements taken at the third

interview, amount to a violation of Article 6 paras. 1 and 3

(Art. 6-1, 6-3) of the Convention. With particular reference to the

unexplained disappearance of the transcript of the third interview, she

points out that the West Midlands Crime Squad, which has now been

disbanded, was involved in a "series of miscarriages of justice brought

about by proven unscrupulous methods of the police officers involved",

and considers that the Court of Appeal did not give sufficient weight

to the disappearance.

The Commission considers that it cannot, on the basis of the

file, determine whether there has been a violation of these provisions

of Article 6 (Art. 6) of the Convention without the observations of

both parties.

The Commission therefore adjourns this part of the application.

For these reasons, the Commission, unanimously,

DECLARES INADMISSIBLE the complaints concerning the applicant's

detention, and

DECIDES TO ADJOURN its examination of the remainder of the

application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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ALI v. THE UNITED KINGDOM

ALI v. THE UNITED KINGDOM

LEXI