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AS TO THE ADMISSIBILITY OF

Application No. 15023/89

by H.

against the United Kingdom

The European Commission of Human Rights sitting in private on

4 April 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mr. L. LOUCAIDES

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 3 March 1988

by H. against the United Kingdom and registered on 23 May 1989

under file No. 15023/89;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen of Irish extraction. He

was born on 19 January 1947 in London and resides in East Preston,

West Sussex.

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

may be summarised as follows.

The applicant has for many years suffered from a mental

disorder and in 1985 he was prescribed the drug chlorpromazine, a

tranquiliser, at a local mental health centre in Worthing. He states

that at the end of May 1986 he stopped taking the drug for a few days

because of its side-effect of drowsiness, and he subsequently became

very emotional and depressed. On the evening of 6 June 1986, he

consumed a number of alcoholic drinks in a local public house, and

after a few hours he suddenly felt ill and began to shudder. He went

outside, where he began to move involuntarily, and unintentionally put

his foot through some window panes. He was arrested by the police and

taken to a police station, where he was seen by a general medical

practitioner (although he had requested a psychiatrist) and charged

under Section 1 (1) of the Criminal Damage Act 1971 with recklessly

causing criminal damage. He was convicted by Worthing Magistrates

Court on 5 March 1987, fined £25 and ordered to pay compensation of

£49, all to be paid in £10 fortnightly instalments. Evidence was

heard in his absence as he had been taken into hospital after taking

too many tranquilisers. The applicant appealed on the ground of

mental disorder to Chichester Crown Court, which dismissed the appeal

on 4 September 1987 after a hearing at which he appeared and presented

psychiatric reports, having been refused legal aid.

In criminal trials the burden of proof is upon the prosecution

to prove beyond reasonable doubt all the elements of the case against

the accused including his criminal intent, i.e. the mens rea of the

offence. If the accused presents certain defences, such as an alibi

or a claim of self defence, whilst certain evidence must be provided

by the accused, nevertheless the legal burden of proof rests with the

prosecution to disprove such claims. An exception to this legal onus

lies with a defence of insanity. Everyone is presumed by law to be

sane and accountable for his actions. If an accused seeks to rebut

this presumption and pleads insanity, it is for the defence to

substantiate the plea on the balance of probabilities. However, the

prosecution must first prove beyond reasonable doubt that the accused

did the act or made the omission charged.

To establish a defence of insanity the accused must present

evidence that at the time of committing the act he was labouring under

a defect of reason owing to a disease of the mind so as not to know

the nature and quality of the act or that what he was doing was

wrong. Acts committed under the influence of alcohol or drugs, or

provoked by stress, racial harassment, economic or social

disadvantage, but which were not related to a disease of the mind, do

not fall within the defence of insanity. The common law on insanity

is laid down in the McNaghten Rules of 1843.

COMPLAINTS

The applicant complains that the burden on the accused in

criminal proceedings to prove insanity on the balance of probabilities

is contrary to the presumption of innocence ensured by Article 6 para.

2 of the Convention. He submits that the criminal damage of which he

was convicted was an act resulting from his mental disorder after

having ceased to take his medication and after having consumed some

beer. This cast doubt on his mens rea and the prosecution should have

been required to prove his sanity, yet the courts allegedly failed to

deal with this element of his defence and convicted him.

The applicant also alleges that the courts are prejudiced

against people who are mentally ill, or who belong to certain ethnic

groups like the Irish. He invokes Article 14 of the Convention read

in conjunction with Article 6 para. 2.

THE LAW

1. The applicant complains that his conviction for criminal

damage violated Article 6 para. 2 (Art. 6-2) of the Convention which

provides as follows:

"Everyone charged with a criminal offence shall be

presumed innocent until proved guilty according to law."

The applicant submits that the law of insanity, laid down in

the McNaghten Rules of 1843, imposed an unjustifiable burden on him to

show that he was suffering from such a defect of reason owing to a

disease of the mind as not to know the nature and quality of his act.

However, the Commission notes that the Rules of which the

applicant complains do not concern the presumption of innocence, as

such, but the presumption of sanity. In this context the Commission

refers to the judgment of the Court in the Salabiaku case:

"Presumptions of fact or of law operate in every legal

system. Clearly, the Convention does not prohibit such

presumptions in principle. It does, however, require

the Contracting States to remain within certain limits

in this respect as regards criminal law ...

Article 6 para. 2 (Art. 6-2) does not ... regard presumptions

of fact or of law provided for in the criminal law with

indifference. It requires States to confine them

within reasonable limits which take into account the

importance of what is at stake and maintain the rights

of the defence."

(Eur. Court H.R., Salabiaku judgment of 7 October 1988,

Series A no. 141, para. 28)

The Commission observes that in English law the burden of

proof remains with the prosecution to prove beyond reasonable doubt

that the accused did act or make the omission charged. The Commission

does not consider that requiring the defence to present evidence

concerning the accused's mental health at the time of the alleged

offence, constitutes in the present case an infringement of the

presumption of innocence. Such a requirement cannot be said to be

unreasonable or arbitrary. It finds, therefore, no appearance of a

violation of Article 6 para. 2 (Art. 6-2) of the Convention in the

present case. Accordingly, this part of the application must be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

2. The applicant has also complained of discrimination in the

application of the presumption of innocence by courts against people

who are mentally ill or who, like him, are of Irish origin. He

invokes Article 14 (Art. 14) of the Convention which requires

Contracting States to secure Convention rights and freedoms without

discrimination on any ground.

However, the Commission finds no evidence whatsoever in the

case-file that the applicant suffered discrimination in respect of his

right under Article 6 para. 2 (Art. 6-2) of the Convention by virtue

of his mental health or Irish origins. This part of the application

is, therefore, also manifestly ill-founded within the meaning of

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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H. v. UNITED KINGDOM

H. v. UNITED KINGDOM