Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 15123/89

by Mark Selwyn BRAITHWAITE

against the United Kingdom

The European Commission of Human Rights sitting in private

on 18 April 1991, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

H. DANELIUS

Sir Basil HALL

MM. F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

B. MARXER

Mr. J. RAYMOND, Deputy Secretary to the Commission

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 June 1989

by Mark Selwyn BRAITHWAITE against the United Kingdom and registered

on 15 June 1989 under file No. 15123/89;

Having regard to

- the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

- the Government's observations of 20 March 1990 and the

applicant's observations of 31 July 1990;

- the submissions made at an oral hearing on 18 April 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1967 and resident

in London. He is currently serving a prison sentence in Wormwood

Scrubs. He is represented by Danny Simpson, a solicitor practising

in London. The facts as submitted by the parties may be summarised

as follows.

On the night of 6 October 1985, serious civil disorder arose

on the Broadwater Farm Estate in Tottenham, North London, involving

hundreds of members of the public and police officers. At about

22.00 hrs a number of police officers who had been assisting a fire-

fighting team were chased towards police lines by a large crowd. One

officer, P.C. Blakelock, fell and was surrounded by a number of young

men, attacking him with sticks, knives and machetes. He suffered 40

wounds of various degrees of severity and died of his injuries.

The police later arrested 6 persons in connection with the

killing of P.C. Blakelock. Five were arrested between 9 and

12 October 1985. The applicant was arrested on 4 February 1986. At

16.03 hrs, just after his arrival at Enfield Police Station, the

applicant was read a notice which set out his rights. He asked to

consult a solicitor and for his mother to be informed of his

detention. He was told that neither of these requests would be acted

upon whilst a senior officer considered whether the rights should be

delayed under the Police and Criminal Evidence Act 1984. At 14.30 hrs

it was decided that access to a solicitor was to be delayed on the

grounds that others to be arrested may be alerted and forensic

evidence may be lost or destroyed although his solicitor and mother

could both be informed of his detention. The applicant was so

informed. At 16.57 hrs, the applicant's solicitor was informed of his

arrest and of the decision to delay access. At 17.OO hrs the

applicant's sister was told of his arrest.

The applicant was interviewed on 7 occasions from 4 to 6

February in the absence of his solicitor. During those interviews,

the applicant was recorded as making incriminating statements as to

his involvement in the events of 6 October 1985. He admitted being

present during the riot on 6 October 1985 and taking a bottle of

cherryade which had been thrown out of a shop, which had been looted.

He also admitted throwing stones at the police and seeing two police

officers fall and be attacked by a crowd. He further told the police

that he had hit twice one of the policemen with a bar, on his leg and

his side. The applicant however denied hitting the policeman who had

died and said that he had hit the other policeman who had been

attacked nearby.

The applicant was tried with 5 others for the murder of P.C.

Blakelock from 14 January to 19 March 1987 and for being concerned in a

riot. During the course of the trial, the judge (Mr. Justice Hodgson)

directed the acquittal of the 3 juvenile defendants on the charge of

murder as a result of their treatment in police custody and lack of

evidence. The evidence identifying the applicant as one of those who

attacked P.C. Blakelock consisted solely of the statements recorded by

the police during the interviews.

At the trial the applicant gave evidence that he had spent the

whole evening at a friend's house and that the statements he had made

to the police were made up from information he had obtained from the

media and from other persons. He claimed that the police had sworn at

him, bullied and pressurised him. The friend, and a friend of hers,

gave evidence in support of the alibi. It was also contended on his

behalf that even if the statements made by him to the police were true

they amounted to an admission of an attack on another policeman, and

not on Constable Blakelock.

During cross-examination by the applicant's counsel, the

Detective Chief Superintendent in charge of the case stated that he

refused the applicant access to a solicitor since he considered the

solicitor might wittingly or unwittingly alert other persons still

wanted for the murder or lead to the destruction of evidence.

On 19 March 1987, the applicant was found guilty of the charge

of murder and a charge of riot. He was sentenced to life imprisonment

with a sentence of 8 years for riot.

The applicant applied for leave to appeal against conviction

on the grounds inter alia that the trial judge had not given fair or

adequate treatment in his summing-up to the applicant's defence which

was that the admissions made by the applicant amounted to no more than

having taken part in an attack on one of the other policemen on the

scene. Leave was refused by the single judge of the Court of Appeal.

He renewed his application before the full Court of Appeal, which

heard the applicant on 13 December 1988. The Court of Appeal found no

substance in the applicant's criticisms of the trial judge's direction

to the jury which it considered gave a fair and balanced account of

the evidence.

His application for leave to appeal was accordingly refused.

The Court concluded in its judgment:

"The question for us to decide is essentially: was there an

unfair imbalance in the way the judge dealt with Braithwaite?

As to that the answer is an emphatic no. It was a balanced

and fair account. He put matters as clearly as could be.

Braithwaite's defence was an exceedingly difficult one to

run, namely, 'I was not there but if, which is denied, I

was there, I did not do what is alleged against me'. It

is not surprising the jury came to the conclusion they

did. His application too is refused."

RELEVANT DOMESTIC LAW AND PRACTICE

Access to a solicitor in police custody

The detention and treatment of a person whilst in police

custody is subject to the provisions of the Police and Criminal

Evidence Act 1984 ("PACE") as supplemented by Code C of the Codes of

Practice issued by the Secretary of State under Section 66 of PACE.

These provisions came into force on 1 January 1986.

Section 58 of PACE confers a right on a person who has been

arrested and is held in custody in a police station to consult a

solicitor privately at any time if he so requests. It provides as

follows:

"(1) A person arrested and held in custody in a police

station or other premises shall be entitled, if he so

requests, to consult a solicitor privately at any time.

(2) Subject to sub-section (3) below, a request under

sub-section (1) above and the time at which it was made shall

be recorded in the custody record.

(3) Such a request need not be recorded in the custody

record of a person who makes it at a time while he is at a

court after being charged with an offence.

(4) If a person makes such a request, he must be permitted to

consult a solicitor as soon as is practicable except to the

extent that delay is permitted by this section.

(5) In any case he must be permitted to consult a solicitor

within 36 hours from the relevant time, as defined in

Section 41(2) above.

(6) Delay in compliance with a request is only permitted -

(a) in the case of a person who is in police detention

for serious arrestable offence; and

(b) if an officer of at least the rank of superintendent

authorises it.

(7) An officer may give an authorisation under the sub-section

above orally or in writing but, if he gives it orally, he

shall confirm it in writing as soon as is practicable.

(8) An officer may only authorise delay where he has

reasonable grounds for believing that the exercise of the

right conferred by sub-section (1) above at the time when the

person detained desires to exercise it -

(a) will lead to interference with or harm to evidence

connected with a serious arrestable offence or

interference with or physical injury to other

persons; or

(b) will lead to the alerting of other persons

suspected of having committed such an offence but

not arrested for it; or

(c) will hinder the recovery of any property obtained

as result of such an offence.

(9) If delay is authorised -

(a) the detained person shall be told the reason for it;

and

(b) the reason shall be noted on his custody record.

(10) The duties imposed by sub-section (9) above shall be

performed as soon as is practicable.

(11) There may be no further delay in permitting the

exercise of the right conferred by sub-section (1) above once

the reason for authorising delay ceases to subsist. ..."

Section 58 is supplemented by Code C of the Codes of Practice

issued under Section 66 of PACE.

Under Section 66 of PACE, the Secretary of State is under a

duty to issue Codes of Practice in connection with the detention,

treatment, questioning and identification of persons by police

officers. The procedure in connection with the issuing of a Code is

laid down in Section 67. In particular a draft Code has to be laid

before both Houses of Parliament and the Code cannot be brought into

force until each House has approved an Order to that effect.

Section 67(8) of PACE provides that a police officer is

liable to disciplinary proceedings for a failure to comply with any

provision of a Code (unless this is precluded under Section 104 of

PACE). A Code is admissible in evidence by virtue of sub-section (11).

Pursuant to Section 66(b) the Secretary of State issued the

Code of Practice for the detention, treatment and questioning of

persons by police officers, Code C, which applies to persons who

entered police detention after midnight on 31 December 1985.

Where a person is brought to a police station under arrest,

Section 3.1 of the Code requires the custody officer to inform him of

his right to have someone informed of his arrest, the right to consult

a solicitor and the right to consult the various Codes of Practice

issued under Section 66 of PACE. Under Section 3.2 of the Code the

person must be given a written notice setting out these three rights,

the right to a copy of the custody record in accordance with Section

2.4 of Code C and the caution in the terms prescribed by Section 10 of

the Code.

Admission and exclusion of confession evidence

Provision about the admissibility of confession evidence and

the exclusion of unfair evidence is made in Part VIII of PACE. These

provisions came into force on 1 January 1986. For these purposes, a

confession includes, "any statement wholly or partly adverse to the

person who made it, whether made to person in authority or not and

whether made in words or otherwise" (Section 82(1)(a) of PACE).

By virtue of Section 76 of PACE, a confession by an accused

person may be given in evidence against him. Where given, it is

admissible without it having to be corroborated. The section,

however, contains safeguards relating to the circumstances in which

the confesson came to be made and which may mean that the confession

must be excluded. Under sub-section (2) the trial court is required

not to allow the confession to be given in evidence if it is

represented to the court that it was or may have been obtained by

oppression or in consequence of something said or done which was likely

to render the confession unreliable unless the prosecution can prove

to the court, beyond a reasonable doubt, that the confession was not

so obtained. The court may, of its own motion, require the prosecution

to prove that a confession on which the prosecution proposes to rely

was not obtained by oppression or in circumstances likely to render it

unreliable (sub-section (3)). In R v. Fulling [1987] 2 WLR 913, which

was decided by the Court of Appeal in February 1987 during the

applicant's trial, it was held that "oppression" was to be given its

ordinary dictionary meaning and the court cited the Shorter Oxford

English Dictionary definition, "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." By virtue of sub-section (8) of Section 76, oppression

includes torture, inhuman or degrading treatment, and the use of

threat of violence (whether or not amounting to torture).

Section 78 provides as follows:

"(1) In any proceedings the court may refuse to allow

evidence on which the prosecution proposes to rely to be

given 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.

(2) Nothing in this section shall prejudice any rule of law

requiring a court to exclude evidence."

In R v. Mason [1988] 1 WLR 139, the Court of Appeal held that

Section 78 applied to all evidence which might be introduced in the

trial by the prosecution and that, accordingly, a trial judge had a

discretion whether to exclude a confession in the interests of the

fairness of the trial. The Court also held that the Section did no

more than re-state the power which judges had at common law before the

Section was passed to exclude evidence.

In R. v. Samuel [1988] 2 WLR 920 5 (decided on 17 December

1987), the Court of Appeal, which included Hodgson J, dealt with the

admissibility of confession evidence given after, the Court held, the

accused had been wrongly denied access to a solicitor. The Court held

that denial of the right conferred by Section 58 of PACE can lead to

the exclusion of evidence obtained at unlawful interviews conducted

after the denial either by the exercise of the power in the trial

judge conferred by Section 78(1) or, where the prosecutor fails to

satisfy the court that the denial did not amount to oppression, under

Section 76. In the circumstances of this case, the Court of Appeal

found that the reasons given for denial of access to a solicitor,

namely that the solicitor might inadvertently or otherwise hinder

further enquiries, were insufficient given that there was no specific

reason to suspect the solicitor or to anticipate that he would be

hoodwinked by the accused person. The Court applied Section 78 and

the conviction, which was based on confession evidence allegedly

obtained after the denial of access to a solicitor, was quashed.

COMPLAINTS

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

within the meaning of Article 6 para. 1 of the Convention for the

following reasons:

a. He was convicted solely upon an ambiguous, challenged,

series of statements made in the absence of his legal

representative.

b. The trial judge failed to draw the jury's attention to

the several points stressed by the defence upon which the

applicant's account differed from the agreed evidence of the

attack on P.C. Blakelock.

c. The Court of Appeal was not entitled to find that the

trial judge's direction was balanced and fair or that the

applicant's account in interview amounted to a confession to

the murder of P.C. Blakelock.

2. The applicant also complains under Article 5 of the Convention

that no court is competent to determine issues of guilt based on the

evidence available in this case.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 12 June 1989 and registered

on 15 June 1989.

On 2 October 1989, the Commission decided to communicate the

application to the Government pursuant to the Commission's Rules of

Procedure and to invite them to submit written observations on the

admissibility and merits.

The Government's observations were submitted on 20 March 1990

after one extension in the time-limit. The applicant's observations

were submitted on 31 July 1990 after two extensions in the time-limit.

On 6 April 1990, the Commission decided to grant legal aid to

the applicant.

On 4 September 1990, the applicant's solicitor requested that

the Commission obtain a copy of part of the transcript of the

applicant's trial.

On 19 September 1990, the President of the Commission

requested the respondent Government to provide a copy of the relevant

part of the transcript. The respondent Government submitted this

information on 10 October 1990.

0n 10 December 1990, the Commission decided to hold an oral

hearing on the admissiblity and merits of the case. At the hearing,

which was held on 18 April 1991, the parties were represented as

follows:

For the Government:

Mrs. A. F. Glover Agent, Foreign and Commonwealth Office

Mr. A. Moss, QC Counsel

Mr. H. Carter Adviser, Home Office

For the applicant:

Mr. D. Simpson Solicitor, Messrs. John Howell & Co.

Mr. S. Kamlish Counsel

Ms. S. Maguire Counsel

THE LAW

1. The applicant alleges a violation of Article 6 para. 1

(Art. 6-1) of the Convention on the ground that:

a. He was convicted solely upon an ambiguous, challenged,

series of statements made in the absence of his legal

representative.

b. The trial judge failed to draw the jury's attention to

the several points stressed by the defence upon which the

applicant's account differed from the agreed evidence of the

attack on P.C. Blakelock.

c. The Court of Appeal was not entitled to find that the

trial judge's direction was balanced and fair or that the

applicant's account in interview amounted to a confession to

the murder of P.C. Blakelock.

The applicant also complains under Article 5 (Art. 5) of the

Convention that no court can determine issues of guilt based on the

evidence available in this case.

2. The Commission considers that Article 5 (Art. 5) has no

relevance to the applicant's complaints and has examined the case

solely under Article 6 para. 1 (Art. 6-1) of the Convention which

provides as follows:

"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. ..."

The applicant contends that he did not receive a fair hearing

in the determination of the criminal charges against him in that the

statements made by him to the police on 4, 5 and 6 February 1986

should not have been admitted in evidence.

The Government submit that the applicant has failed to comply

with the requirement as to the exhaustion of domestic remedies in this

respect, or, in the alternative, that the application is manifestly

ill-founded. They point out that the applicant's representatives did

not challenge the admissibility in evidence of the applicant's

statements to the police, either at the outset of the trial or in its

course. Furthermore the applicant did not seek leave to appeal in

respect of the admission of that evidence at the trial.

The applicant concedes that that was so but contends that both

Courts should have made a decision on the point ex officio and

without it having been drawn to their attention.

However, the Commission is not required to decide whether this

allegation discloses any appearance of a violation of this provision

as, under Article 26 (Art. 26) of the Convention, it may only deal

with a matter after all domestic remedies have been exhausted,

according to the generally recognised rules of international law.

In the present case the applicant's lawyers failed to

challenge the admissiblity of the confession evidence at the outset of

the trial (by requesting a 'voire dire'), after the evidence had been

submitted, in his grounds of appeal or in argument before the Court of

Appeal. The effect of this is that the domestic courts were deprived

of the opportunity of considering the issues raised by the use of the

contested evidence. The applicant has therefore, not exhausted the

remedies available to him under United Kingdom law. Moreover, an

examination of the case does not disclose the existence of any special

circumstances which might have absolved the applicant, according to

the generally recognised rules of international law, from exhausting

the domestic remedies at his disposal. As to the submission that the

court should have excluded the evidence of its own motion, the

Commission recalls that, even where domestic courts are under a duty

to consider matters of their own motion, applicants are not relieved

of the requirements of Article 26 (Art. 26) of the Convention (cf.

No. 11244/84, Dec. 2.3.87, to be published in D.R. 55). In any event,

although Section 76 (2) of PACE provides that a trial court is

required not to allow a confession to be given in evidence if it is

represented to the court that it was or may have been obtained by

oppression or in consequence of something said or done which was

likely to render the confession unreliable, the applicant's lawyers do

not appear to have made any representation to the trial court that

oppression was involved in the course of the interviews. Section

76(3) specifically allows a court not to allow a confession to be

given in evidence except in so far as the prosecution proves beyond

reasonable doubt that it was not obtained by oppression. It has not,

however, been substantiated that there was any material before the

Court which would lead a court to apply that provision. No argument

was made in the applicant's grounds of appeal to the Court of Appeal

that oppression was involved such that the Central Criminal Court

should have excluded the evidence of its own motion.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies in this respect

and this part of the application must therefore be rejected under

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

3. As to the remainder of the application, 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 established 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).

The Commission has examined these complaints as submitted by

the applicant and finds no indication of unfairness within the meaning

of Article 6 para. 1 (Art. 6-1) 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).

For these reasons, the Commission by a majority

DECLARES THIS APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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BRAITHWAITE v. THE UNITED KINGDOM

BRAITHWAITE v. THE UNITED KINGDOM

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