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AS TO THE ADMISSIBILITY OF

Application No. 18542/91

by G.M.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 13 May 1992, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, Secretary to the First 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 12 July 1991 by

G.M. against the United Kingdom and registered on 17 May 1991 under

file No. 18542/91;

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 citizen of the United Kingdom born in 1960 and

detained in HM Prison Parkhurst, Isle of Wight. He is represented

before the Commission by Mmes Deighton and Guedalla, Solicitors,

London.

The facts of the present case, as submitted by the applicant and

which may be deduced from documents lodged with the application, may

be summarised as follows:

The applicant was arrested on 16 August 1986 and charged with

conspiracy to cause explosions likely to endanger life or cause serious

injury to property in the United Kingdom between January 1983 and

January 1984. Part of the prosecution case was evidence of the

applicant's fingerprints on parts of two explosive devices which were

found in arms caches in London and on one device which was found in a

public garden and safely disposed of before it exploded. The applicant

denied any involvement in the making of these devices. He explained

that he had worked in a factory on the repair and maintenance of gaming

machines and C.B. radios and, therefore, he would have been in daily

contact with such material. The owner of the factory had been involved

in the Irish National Liberation Army (INLA) activities, but the

applicant denied any involvement, support or sympathy for the Irish

Republican Army (IRA) himself.

Ten days before the trial the prosecution sought leave to extend

the period of time covered in the charge to include a period when an

IRA bomb had exploded in Hyde Park, London, using an explosive device

comparable with those found. The Hyde Park bomb had caused appalling

carnage. The applicant's defence lawyers objected to the request in

view of the short notice and the great prejudice to the applicant in

being tenuously linked to one of the most horrific terrorist outrages.

The trial judge was of the view that the defence to the extension could

be prepared within a week and granted the prosecution's application.

However he left it open to the defence to apply for an adjournment on

the first day of the trial if he were wrong. No such adjournment was

requested.

Towards the end of the trial, after the applicant's counsel had

made submissions to the jury, the prosecution sought and obtained leave

to re-amend the charge from a reference to "the United Kingdom" to a

reference to "the United Kingdom and elsewhere". The trial judge

considered that the amendment was of little importance for the

conspiracy issue and allowed it, but defence counsel were of the

opposite view. Accordingly the judge permitted defence counsel to

address the jury again on the re-amended charge.

The applicant was convicted and sentenced to 25 years'

imprisonment. He appealed to the Court of Appeal on 17 grounds which

the Court of Appeal grouped under 4 main heads:

"1. That the case which the applicant had to meet was unfairly

expanded, in terms of geography and of time, both before and

during the trial.

2. That there was unfairness during the trial in that

prosecuting counsel and a prosecution witness were allowed

too much latitude, and there were unfair interventions by

the judge.

3. That there was a lack of fairness in the summing-up.

4. That as a result of a recent expert examination there was

reason to doubt whether a fingerprint attributed to the applicant

at the trial was in fact his."

On 18 January 1991 the Court of Appeal dismissed the applicant's

appeal. As regards the amended charge, it considered that the

applicant had had ample prior warning of the general nature of the

evidence upon which the prosecution intended to rely at the trial.

Section 5 of the Indictments Act 1915 affords a wide power to grant

leave to amend a charge so long as the amendment causes no injustice

to the accused. The Court of Appeal found that the trial judge had

correctly assessed the amendment issues. It noted, inter alia, that

the applicant had not requested an adjournment at the beginning of the

trial in respect of the first amendment and that defence counsel had

been permitted to address the jury again after the second amendment

even though, in the Court of Appeal's view, this would not have been

necessary given its insignificance.

The Court of Appeal held that the applicant's allegations

concerning the unfair conduct of the trial by the judge were wholly

unfounded. It also heard the applicant's fresh evidence concerning

fingerprints, but concluded that ultimately the testimony of the

applicant's expert witness only served to confirm the prosecution's

case against the applicant.

COMPLAINTS

The applicant complained that he had been denied a fair hearing

by the trial court, contrary to Article 6 para. 1 of the Convention.

He criticised the trial judge's conduct of the case and alleged that

he had not been informed promptly of the full charge against him or

given adequate time and facilities to prepare his defence, contrary to

Article 6 para. 3 (a) and (b) of the Convention. He also claimed that

he had not enjoyed equality of arms with the prosecution over the

examination and attendance of witnesses, contrary to Article 6

para. 3 (d) of the Convention. As a result of these matters and the

elasticity and uncertainty of the charge against him, he complained

that he had been unlawfully deprived of his liberty, contrary to

Article 5 of the Convention.

THE LAW

1. The applicant complained that he did not receive a fair hearing

at first instance and that his defence rights were violated.

The provisions of Article 6 (Art. 6) of the Convention relevant

to the present case read as follows:

"1. In the determination 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:

a. to be informed promptly, in a language which he

understands and in detail, of the nature and cause of the

accusation against him;

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 notes that the trial judge allowed the charge

against the applicant to be amended twice. The first and most

important amendment 10 days before the trial extended the time span

covered by the charge. However the applicant did not ask for an

adjournment at the beginning of his trial on the basis that he had had

insufficient time to prepare an amended defence even though the trial

judge had left this possibility open to him when granting the

amendment. The Commission finds, therefore, that in this respect the

applicant failed to exhaust domestic remedies, as required by Article

26 (Art. 26) of the Convention, and that this part of the case must be

rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

The second amendment at the end of the trial, deemed immaterial

by the trial and appeal courts to the elements of a charge of

conspiracy, extended the geographical span of the charge from the

United Kingdom to the United Kingdom and elsewhere. However the

Commission notes that the applicant's defence counsel had a full

opportunity to object to this amendment both at the trial and on appeal

and that defence counsel were given another opportunity to address the

jury on the matter even though the defence case had been closed. In

the absence of any clear arbitrariness, the Commission is not competent

to evaluate whether the domestic court's assessment of the importance

of this issue was correct. It suffices for the purposes of Article 6

(Art. 6) of the Convention that the applicant had every opportunity to

challenge the amendment. In the circumstances of the present case the

Commission concludes that, in permitting the second amendment to the

charge against the applicant, the applicant's rights under Article 6

paras. 1 and 3 (Art. 6-1, 6-3) of the Convention were not infringed.

It follows that this aspect of the case is manifestly ill-founded

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

The Commission notes the applicant's allegations that the trial

judge had unfairly conducted the case and that he did not enjoy parity

with the prosecution over the examination and attendance of witnesses.

In dealing with complaints of the present kind the Commission must have

regard to the proceedings as a whole, including appeal proceedings

which could rectify alleged deficiencies in the trial. The Commission

observes that the Court of Appeal examined fresh evidence put forward

by the applicant and heard an expert witness on his behalf. It

dismissed the applicant's appeal as unfounded. The Commission finds,

after an examination of the case-file as submitted by the applicant,

no evidence which might substantiate the applicant's allegations. 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. Finally the applicant complained that he has been unlawfully

deprived of his liberty contrary to Article 5 (Art. 5) of the

Convention, the relevant part of para. 1 of which provides 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:

a. the lawful detention of a person after conviction by

a competent court ..."

The Commission finds, however, no evidence in the case to suggest

that the applicant is not lawfully detained after conviction by a

competent court pursuant to Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention. It follows that this aspect of the application must also

be rejected as being 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.

Secretary Acting President

to the First Chamber of the First Chamber

(M. de SALVIA) (F. ERMACORA)

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M. v. THE UNITED KINGDOM

M. v. THE UNITED KINGDOM

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