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AS TO THE ADMISSIBILITY OF

Application No. 19599/92

by S.K.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 September 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

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 20 December 1991

by S.K. against the United Kingdom and registered on 10 March 1992

under file No. 19599/92;

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, who has both British and Irish nationality, was

born in 1968. He is represented before the Commission by

Messrs. P. J. McGrory and Co., solicitors, Belfast.

The facts of the case, as submitted by the applicant's

representative, and which are apparent from the documents lodged, may

be summarised as follows.

The applicant was convicted on 30 March 1990 of the murder of two

soldiers and of other offences. He was sentenced to life imprisonment,

the mandatory penalty for murder, and two periods of imprisonment in

respect of the other offences.

The evidence against the applicant during his trial consisted of

a number of eye-witness accounts, and also evidence from films and

photographs taken by cameramen from various television companies, and

a video recording taken from an army helicopter which was hovering

overhead.

The judge found that the applicant had taken an active part in

the events leading up to the death of the two soldiers, and further

held:

"that [the applicant] contemplated that the murder of the

soldiers was one of the range of the crimes which might be

carried out by the persons who took charge of imprisoning the

soldiers. I am satisfied that he intentionally lent his

assistance in order that those persons might commit some or more

of the crimes within that range, of which murder was a highly

probable one. In addition, he took part in the detention of the

soldiers right up to the time when they were put over the wall

and assisted the group to carry one of them to the wall and put

him over. At this stage it must have been entirely obvious that

the soldiers were being taken to their deaths. On this ground

I am also satisfied that Kelly contemplated that they would be

killed. I therefore hold that Kelly possessed the mens rea for

murder, and I find him guilty of counts 1 and 2 of the murder of

the two soldiers".

The applicant's appeal to the Court of Appeal was dismissed on

5 July 1991. It was heard by Lord Justice Kelly who had previously

considered the applicant's successful pre-trial application for bail.

He held that the trial judge had misdirected himself with regard to one

piece of identification evidence, but that the remainder of the

evidence was so substantial and convincing that it could not be said

that the applicant's conviction was unsatisfactory or unsafe. With

regard to the question of the screening of witnesses, the Court

referred to the case of Murphy (1990) which had dealt with the question

in depth.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention

in the following respects:

1. He claims that his hearing was not fair in that the trial judge

had heard a substantial number of bail applications relating to a

number of other accused involved in various trials which arose out of

the deaths of the two soldiers. He also complains that Lord Justice

Kelly, who heard his appeal, had also taken part in the decision on his

bail application.

2. He alleges that his hearing was not public because a substantial

number of witnesses from the media were screened from him and the

general public, thus preventing him from seeing those persons who were

giving evidence against him.

3. He considers that his hearing was not fair because of the way in

which the prosecution presented video evidence.

4. He contends that his hearing cannot be fair as he was charged

with involvement of a peripheral nature but was liable to have the same

sentence imposed on him as the principal perpetrator.

5. Finally, the applicant regards as not fair the fact that the

Court of Appeal, although finding that the trial judge had misdirected

himself as to certain identification evidence, nevertheless went on to

decide the case on appeal without giving the applicant a chance to put

his case to another trial judge ab initio.

THE LAW

1. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in various respects. Article 6 para. 1 (Art. 6-1) of the

Convention 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. Judgment

shall be pronounced publicly but the press and public may be

excluded from all or part of the trial in the interest of morals,

public order or national security in a democratic society, where

the interests of juveniles or the protection of the private life

of the parties so require, or to the extent strictly necessary

in the opinion of the court in special circumstances where

publicity would prejudice the interests of justice."

The Commission has had regard to the applicant's complaint that

the trial judge had been involved in a substantial number of bail

applications relating to other accused involved in various trials

arising out of the deaths of the two soldiers. The Commission has also

had regard to the applicant's statement that the judge who heard his

appeal, Lord Justice Kelly, had also been involved in his own pre-trial

bail application.

The Commission considers that an allegation that a judge took

part at an earlier stage of proceedings, whether those proceedings

related to an applicant's own case or to a related case, must be taken

as a complaint that that judge lacked impartiality. The Commission

notes that the allegation in the present case, made without further

substantiation, is that the applicant was justified in his fears as to

the impartiality of the trial judge and the appeal judge because of

involvement in the trial of other persons accused of offences in

connection with the deaths of the two soldiers (in the case of the

trial judge) or because of involvement in the applicant's bail

application (in the applicant's own case).

Given the objective nature of the test of impartiality where no

bias is alleged (cf. Eur. Court H.R., Hauschildt judgment of 24 May

1989, Series A no. 154, p. 21 para. 46), the Commission sees no reason

in the present case to conclude from the respective judges' earlier

participation that there was justification for fears as to their

impartiality. In particular, with regard to the participation of Lord

Justice Kelly in the determination of the applicant's pre-trial bail

application, the Commission notes that the application was successful,

and there is no indication that the judge formed, or even had the

opportunity to form, an opinion as to the applicant's guilt.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

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

the Convention in that a number of media witnesses were screened from

him and the public.

The applicant did not raise this matter in his appeal to the

Court of Appeal, but the Court of Appeal in its decision referred to

the case of Murphy (1990) in which it had dealt with the question of

screening.

The Commission has considered the ruling in Murphy in Application

No. 20657/92 (Dec. 2.12.92). In that case the Commission found that

the screening of witnesses as undertaken did not violate Article 6

(Art. 6) of the Convention because of the guarantees which were

supplied: in particular, although defendants could not see the screened

witnesses, their representatives could see and put questions to the

witnesses in the normal way. The limitation on publicity caused by the

screening was "in the interest of ... public order or national

security" and "to the extent strictly necessary" within the meaning of

Article 6 para. 1 (Art. 6-1) of the Convention. In the present case,

too, the evidence which the media witnesses could give was limited to

questions concerning the making of filmed and photographic evidence,

and did not itself implicate the applicant. The applicant, through his

representative, was able to put all the questions he wished to the

witnesses concerned, even though neither he nor the public could see

them. Moreover, the public was able to hear the answers given by the

witnesses, even if they could not see them. Accordingly, the

Commission finds that the screening of media witnesses did not

prejudice the present applicant's rights under Article 6 (Art. 6) of

the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

3. The applicant alleges a violation of Article 6 (Art. 6) of the

Convention in that the prosecution presented video evidence in a way

he considers unfair.

The Commission recalls that Article 6 (Art. 6) of the Convention

is intended to provide procedural guarantees relating to the

proceedings as a whole. The applicant does not contend that he was

unable to put any criticisms of the prosecution presentation of video

evidence to the trial court and to the Court of Appeal. The assessment

of evidence is in any event in the first place a matter for the

domestic courts (cf. Eur. Court H.R., Barberà, Messegué and Jabardo

judgment of 6 December 1988, Series A no.146, p. 31, para. 68).

It follows that this part of the application is also manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

4. The applicant sees a violation of Article 6 (Art. 6) in that,

although he was accused only of aiding, abetting, counselling and

procuring the persons who killed the two soldiers to commit that

offence, he was nevertheless charged with murder, with the result that

he was liable to an automatic, mandatory life sentence. Consequently,

although an accessory, he was sentenced as if he were a principal

offender.

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 e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;

No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77, Dec.

13.12.79, D.R. 18 pp. 31, 45).

In any event, it is not the Commission's role to determine the

substantive content of domestic law: the trial judge was satisfied,

given the applicant's involvement in the events leading up to the

deaths, that the applicant had committed murder as defined in domestic

law.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5. In connection with one of the applicant's grounds of appeal, the

Court of Appeal found a misdirection by the trial judge but

nevertheless decided the case without ordering a re-trial. The

applicant alleges a further violation of Article 6 para. 1 (Art. 6-1)

of the Convention in this respect.

The Commission again recalls that its function in connection with

Article 6 para. 1 (Art. 6-1) of the Convention is to consider the

fairness of the proceedings taken as a whole (cf. the above-mentioned

Barberà judgment). In the present case, the Court of Appeal found a

misdirection by the trial judge, but concluded that the remainder of

the evidence was so substantial and convincing that the applicant's

conviction was not unsatisfactory or unsafe.

Taking the proceedings as a whole, the Commission finds that they

were not unfair in this respect.

It follows that this part of the application is also 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.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)

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S.K. v. THE UNITED KINGDOM

S.K. v. THE UNITED KINGDOM

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