EDWARDS v. the UNITED KINGDOM
Doc ref: 13071/87 • ECHR ID: 001-810
Document date: January 9, 1991
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AS TO THE ADMISSIBILITY OF
Application No. 13071/87
by Derek EDWARDS
against the United Kingdom
The European Commission of Human Rights sitting in private
on 9 January 1991, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
Mr. H.C. KRÜGER, 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 26 September 1986
by Derek EDWARDS against the United Kingdom and registered on
10 July 1987 under file No. 13071/87;
Having regard to
- the reports provided for in Rule 47 of the Rules of
Procedure of the Commission;
- the observations submitted by the respondent Government on
25 October 1989 and the observations in reply submitted by the
applicant on 25 November 1989 and 14 February 1990;
- the observations made by the parties at the oral hearing
on 9 January 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen. He was born in
1943 and is at present a prisoner in Her Majesty's Prison Frankland,
Durham, England.
The facts of the case as submitted by the parties may be
summarised as follows.
On 9 November 1984, the applicant was convicted at Sheffield
Crown Court of one count of robbery and two counts of burglary. He
received a sentence of imprisonment of ten years for the robbery, and
two sentences of eight years each for the burglary offences. All
three sentences are being served concurrently. His application for
leave to appeal against conviction and sentence was dismissed by a
single judge of the Court of Appeal on 5 February 1985. His renewed
appeal to the Full Court concerning sentence only was dismissed on
21 May 1985.
On 16 May 1985, the applicant petitioned the Secretary of
State for Home Affairs with complaints against police officers who had
investigated his case and given evidence at his trial. An independent
police investigation was ordered in the course of which certain facts
came to the applicant's attention. On 3 December 1985 the applicant
applied for leave to appeal out of time. The police report
(unpublished) dated 5 December 1985, was delivered to the Police
Complaints Authority which directed it to the Director of Public
Prosecutions.
In February 1986, the Director of Public Prosecutions decided
that there was insufficient evidence to support criminal charges
against the police officers but recommended that disciplinary charges
be brought against three police officers. At the disciplinary hearing
on 13-15 June 1988, the tribunal decided that there was no case to
answer and dismissed the charges.
In the meantime, on 21 March 1986 the Secretary of State for
Home Affairs referred the applicant's case to the Court of Appeal
(Criminal Division) under Section 17 (1)(a) of the Criminal Appeal Act
1968. The applicant was represented in these proceedings by Queen's
Counsel. The reference was heard on 18 July 1986 and judgment
delivered on the same date.
The evidence against the applicant consisted of detailed
verbal admissions that he was implicated in the offences. The
applicant's co-defendant had given the police information which led to
the applicant's arrest and subsequent unsigned confession. He had
maintained at his trial that these statements had been concocted by
the police and his defence did not require any witnesses except the
interviewing officers. Before the Court of Appeal the applicant
submitted that the verdict should be set aside as unsafe and
unsatisfactory because of certain shortcomings in the prosecution
case. In particular it appeared that one of the police witnesses had
stated under cross-examination by counsel for the applicant that no
fingerprints were found at the scene of the crime. In fact two
fingerprints had been found which later turned out to be those of the
next door neighbour who was a regular visitor to the house. The Court
of Appeal rejected the allegation that the police officer had told
lies at the trial in the following terms:
"We do not accept that interpretation of Detective
Sergeant Hoyland's evidence. We think quite plainly what
he was indicating there and intended to indicate was that no
fingerprints relating to either of the two alleged burglars
were discovered at the scene: neither the fingerprint of
Rose nor the fingerprint of Edwards, the present appellant.
We do not think, had the matter been carried further, it
would have been demonstrated that Hoyland was a person who
to that extent could not be believed on his own."
A further shortcoming was the fact that the police had shown
two volumes of photographs of possible burglars (including a
photograph of the applicant) to one of the victims - a lady of 82
years of age who had caught a fleeting glimpse of the burglar. Her
statement, read to the jury, said that she thought she would be able
to recognise her assailant. She did not pick out the applicant from
the photographs. This fact was not, however, mentioned by one of the
police witnesses in a written statement read out to the jury. Counsel
for the applicant submitted that a jury might have been led to
believe, had they been informed of this fact, that the admission
statements had been "manufactured" by the police as the applicant
alleged or to otherwise doubt the veracity of the police.
The Court of Appeal also rejected this view:
"There again we do not take that view. The fact that
Miss Sizer had a fleeting glimpse of her assailant, and the
fact that such identification as she did make was largely
directed to other matters of identification rather than his
features, leads us to believe that the jury would not have
been influenced to act other than they did if they had the
full story of the photographs and of Police Constable
Esdon's activities with regard to that."
The Court of Appeal pointed to other shortcomings which it did
not consider cast any doubt on the verdict, namely
- that the applicant was alleged to have been shown by
the police a statement by a defendant although his finger-
prints were not found on the statement;
- a string which had tied the hands of one of the
victims had been thrown away and not subjected to forensic
examination;
- an anorak which fitted the description given by one
of the victims was found at the applicant's house but was
not tested for fibres or for possible comparison with other
items;
- a stocking mask, found at the scene of the crime, was
not tested for saliva and a knife, which may have been used
by the applicant, was not tested for fingerprints.
As regards the latter points, the Court of Appeal remarked
that the mask had not been tested because the applicant had never
claimed to wear a mask. In addition, the knife had been found lying
out in the rain and the chances of finding finger prints were
thus minimal.
The Court of Appeal considered that even if these matters had
been investigated, it would have made no difference to the outcome.
The Court concluded:
"It is clear that there was some slipshod police work in
the present case, no doubt because they took the view here
was a man who had admitted these crimes fully, and
consequently there was very little need for them to indulge
in further verification of whether what he said was true.
Although this is a matter which perhaps casts the
police in a somewhat lazy or idle light, we do not think in
the circumstances there was anything unsafe or
unsatisfactory in the end about these convictions.
Consequently, treating this matter as we have to according to
section 17 of the Act, we think this appeal fails and must
be dismissed."
The applicant also took advice concerning the possibility of
appealing to the House of Lords but was informed in an opinion of
counsel dated 8 September 1986 that there were no grounds on which an
appeal could successfully be pursued before the House of Lords.
The applicant petitioned the Secretary of State for Home
Affairs on 24 July 1986 unsuccessfully asserting that the United
Kingdom Government had an obligation to ensure that the applicant's
rights under Articles 6 paras. 1 and 3 (d) of the Convention were
protected and that he was entitled under Article 13 of the Convention
to have an effective remedy before a national authority for violations
of rights and freedoms in the Convention.
RELEVANT DOMESTIC LAW AND PRACTICE
Duty of prosecution in presenting evidence
Under the Attorney General's Guidelines issued in December
1981, the prosecution is obliged (subject to specified discretionary
exceptions) to disclose to the defence "unused material", which
includes all witness statements not included in the bundle of
statements served on the defence at the stage of committal of the case
by the magistrates' court to the Crown Court.
The prosecution is also under a duty to inform the defence of
any earlier statement of a prosecution witness which is inconsistent
with evidence given by that witness at the trial: R v. Clarke (1930)
22 Cr.App.R.58. The prosecution's duty extends to informing the
defence of previous inconsistent oral statements as well as written
statements.
Consequently where evidence of a prosecution witness is given
before the court stating that the witness would recognise the accused
again (as in the applicant's case), and the prosecution knows that
when shown a photograph of the accused the witness in fact failed to
identify him, the prosecution is required to make that fact known to
the defence.
For the purpose, among others, of ensuring compliance with
this duty, the Court of Appeal has stated that all the statements
which have been taken by the police should be put before Counsel for
the Crown, and that it should not be left to the police to decide
which statements are to be put before Counsel: R v. Fellowes, 12 July
1985.Reference to the Court of Appeal by the Home Secretary
Section 17 (1) a of the Criminal Appeal Act 1968 provides that
"Where a person has been convicted on indictment, or been
tried on indictment and found not guilty by reason of
insanity, or been found by a jury to be under disability, the
Secretary of State may, if he thinks fit, at any time either:
(a) refer the whole case to the Court of Appeal and the case
shall then be treated for all purposes as an appeal to the
Court by that person; ..."
Powers of the Court of Appeal
The powers of the Court of Appeal in appeal proceedings are
fully applicable to reference proceedings (Stafford v. D.P.P. [1973] 3
WLR 719). The scope of the Court of Appeal's powers on appeal is set
out in section 2 of the 1968 Act. Section 2 provides:
"(1) Except as provided by this Act, the Court of Appeal shall
allow an appeal against conviction if they think:
(a) that the conviction should be set aside on the
ground that under all circumstances of the case it is
unsafe or unsatisfactory;
(b) that the judgment of the court of trial should be
set aside on the ground of a wrong decision of any
question of law; or
(c) that there was a material irregularity in the
course of the trial,
and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that they
are of opinion that the point raised in the appeal might
be decided in favour of the appellant, dismiss the appeal
if they consider that no miscarriage of justice has
actually occurred.
(2) In the case of an appeal against conviction the Court
shall, if they allow the appeal, quash the conviction.
(3) An order of the Court of Appeal quashing a conviction
shall, except when under section 7 below the appellant is
ordered to be retried, operate as a direction to the court
of trial to enter, instead of the record of conviction, a
judgment and verdict of acquittal."
New evidence on appeal
Under section 23 (1) of the 1968 Act the Court of Appeal
hearing an appeal against conviction or sentence may order the
production of a document, exhibit or any other thing, may order the
attendance and examination of witnesses, and may receive evidence.
Section 23 (2) provides that the Court shall exercise the power of
receiving evidence if
"(a) it appears to them that the evidence is likely to be
credible and would have been admissible in the proceedings
from which the appeal lies on an issue which is the subject
of the appeal; and
(b) they are satisfied that it was not adduced in those
proceedings but there is a reasonable explanation for the
failure to adduce it."
If the Court of Appeal considers that fresh evidence renders
the verdict unsafe or unsatisfactory, it may order a retrial, or may
simply quash the conviction and substitute a verdict of acquittal.
The appropriate course will depend upon the particular facts of the
case, as explained in the following passage from the judgment of Lord
Cross in the House of Lords in Stafford v. the D.P.P. (at pp.
737-738):
"At one end of the scale there are cases where the court will
say :
This fresh evidence puts such an entirely new
complexion on the case that we are sure that a verdict
of guilty would not be safe. So we will quash the
conviction and not order a new trial.
At the other end of the scale there will be cases where
the court will say as it said in effect of this case:
The fresh evidence though relevant and credible
adds so little to the weight of the defence case
as compared with the weight of the prosecution's
case that a doubt induced by the fresh evidence
would not be a reasonable doubt. So, we will
leave the conviction standing.
But in many cases the attitude of the court will be:
We do not feel at this stage sure one way or
the other. If this fresh evidence was given
together with the original evidence and
any further evidence which the Crown might adduce
then it may be that the jury - or we, as we
constituted the jury - would return a verdict of
guilty but on the other hand it might properly
acquit. So we will order a retrial."
COMPLAINTS
1. The applicant complains that he was denied a fair hearing
contrary to Article 6 para. 1 of the Convention since evidence
relevant to the credibility of police witnesses was not before the
jury at his trial and that he was denied the right to examine
witnesses under Article 6 para. 3 (d) of the Convention since he was
unable to cross-examine police witnesses on the basis of this evidence
at his trial.
2. The applicant also complains that he was denied an effective
remedy in respect of his complaints.
PROCEEDINGS BEFORE THE COMMISSION
The applicant introduced his complaints with the Commission on
26 September 1986 in the context of Application No. 13071/87 which was
registered on 10 July 1987. His complaints were rejected by the
Commission on 7 December 1987 for failure to comply with the six
months rule. This decision was based on the assumption that the
application had been introduced on 16 March 1987.
Later the applicant showed that he had sent a letter to the
Commission on 29 September 1986 which was registered by the prison
authorities as having been posted but which was not received by the
Commission.
On 13 July 1988 the President of the Commission restored the
present complaints to the list.
On 6 July 1989, the Commission decided to communicate the
re-opened part of the application to the Government and to invite them
to submit written observations on the admissibility and merits.
The Government's observations were submitted on 25 October
1989 and the observations in reply were submitted by the applicant on
25 November 1989 and 14 February 1990.
On 15 December 1989, the applicant was granted legal aid.
On 9 October 1990 the Commission decided to invite the parties
to a hearing on the admissibility and merits. At the hearing, which
was held on 9 January 1991, the parties were represented as follows:
The Government:
Ms. D.L. Brookes Agent, Foreign and Commonwealth Office
Mr. D. Pannick Counsel
Mr. H. Carter Home Office
Mr H. Llewellyn Foreign and Commonwealth Office
The applicant:
Mr. B. Clarke Counsel
Mr. J.K. Campbell Solicitor
The applicant, Mr Edwards, also attended the hearing.
THE LAW
1. The applicant complains that he did not receive a fair trial
due to the withholding of evidence at his trial by the police. He
invokes Article 6 para. 1 (Art. 6-1) and para. 3 (d) (Art. 6-3-d) of
the Convention. He also complains that he has no effective remedy for
his complaints as required by Article 13 (Art. 13) of the Convention.
Article 26 (Art. 26) of the Convention
2. The respondent Government submit that the applicant has failed
to exhaust domestic remedies since he did not appeal from the decision
of the Court of Appeal to the House of Lords.
The Commission notes that appeals lie to the House of Lords
in limited circumstances, in particular, only in those cases where
there is certified as being in issue a point of law of general public
importance. The Commission observes that Counsel advised that as the
issues decided by the Court of Appeal were questions of fact and
degree, all national avenues of appeal had been exhausted. The
Government suggest that the applicant could have appealed on the basis
that the leading case of Stafford v. D.P.P., which established the
principles to be applied in the exercise of the Court of Appeal's
appellate powers, should be overturned. The Commission notes that the
applicant's complaints are not directed against the principles
established in Stafford v. D.P.P. It considers that this
well-established case-law constitutes a particular circumstance which
is sufficient to dispense the applicant, according to the generally
recognised principles of international law, from seeking to overturn
the law (cf. No. 10027/82, Dec. 5.12.84, D.R. 40, p. 100 at 116-117).
The Government also argues that the applicant has failed
to exhaust domestic remedies on two further grounds: firstly, that
he did not renew his application for leave to appeal against his
conviction in 1985 and, secondly, that he did not apply in the
reference proceedings for documents to be provided or witnesses to be
examined. The Commission finds that the applicant had applied on the
basis of the new material for leave to appeal out of time but that
this application was overtaken by events in that the case was put
before the Court of Appeal in the reference proceedings. Further, the
applicant does not complain that the Court of Appeal failed to hear
the new evidence from the witnesses themselves but that he did not
receive a fair trial since the evidence and the possibility of
cross-examining witnesses on the basis of that evidence was not
available at his trial before the jury. The power of the Court of
Appeal as regards evidence is, however, a factor which may be taken
into account when assessing the role of the Court of Appeal in the
proceedings as a whole.
3. The Commission is accordingly unable to accept that the
application should be declared inadmissible for non-exhaustion of
domestic remedies.
Article 6 paras. 1 (Art. 6-1) and 3 (d) (Art. 6-3-d) and Article 13
(Art. 13) of the Convention
Article 6 para. 1 (Art. 6-1), first sentence 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."
Article 6 para. 3 (d) (Art. 6-3-d) provides:
"3. Everyone charged with a criminal offence has the
following minimum rights:
...
(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 applicant submits that at his trial relevant evidence was
not put before the jury and that as a result his rights under the
above provisions were violated. This evidence related to the
credibility of the police witnesses in the case, which turned on
whether the alleged confessions by the applicant had been fabricated
or not by the police. Since this evidence was never disclosed at the
trial, he submits that he was not given an adequate opportunity to
challenge the witnesses against him and that he did not receive a fair
trial. He submits that the reference proceedings before the Court of
Appeal did not cure this defect since it did not exercise its
discretion to order a full rehearing of all the issues and evidence
but at best afforded him the opportunity of having a fragmentary
procedure which led to overall unfairness.
The Government submit that the proceedings must be looked at
as a whole and that the applicant did receive a fair hearing since he
was afforded the opportunity of submitting the new evidence before the
Court of Appeal in reference proceedings, where he could also have
applied for witnesses to be called and cross-examined. The Government
also rely, inter alia, on the case-law of the Commission and Court to
the effect that the assessment of evidence in criminal proceedings is
within the appreciation of the domestic courts and cannot as a general
rule be reviewed by the Convention organs.
The Commission has made a preliminary examination of the
issues arising under Article 6 paras. 1 (Art. 6-1) and 3 (d)
(Art. 6-3-d) of the Convention. It considers that the applicant's
complaints raise difficult questions of fact and law which are of such
complexity that their determination should depend upon a full
examination of the merits.
The Commission also finds that the applicant's complaint
under Article 13 (Art. 13) of the Convention arises from the same factual
basis.
It follows that the application cannot be declared manifestly
ill-founded and must be declared admissible, no other ground for
declaring it inadmissible having been established.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION ADMISSIBLE,
without prejudging the merits of the case.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)