AS TO THE ADMISSIBILITY

Application No. 12323/86

by Thomas Campbell

against the United Kingdom

        The European Commission of Human Rights sitting in private on

6 March 1987, the following members being present:

                    MM. C.A. NØRGAARD, President

                        G. SPERDUTI

                        J.A. FROWEIN

                        F. ERMACORA

                        E. BUSUTTIL

                        G. JÖRUNDSSON

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        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

                   Mr.  F. MARTINEZ

                   Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 5 July 1985

by Thomas CAMPBELL against the United Kingdom and registered

on 8 August 1986 under file No. 12323/86;

        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 born in 1952 and resident

in Glasgow.  He is currently serving a life sentence.  He is

represented before the Commission by John Carroll, a solicitor.  The

facts as submitted by the applicant may be summarised as follows.

        On 16 April 1984, a fire occurred in a house in Glasgow in

which six persons died.  This was an incident in a spate of violence

and vandalism occurring between rivals in the ice-cream trade.

        The applicant, who had relations in the ice-cream trade and a

record of violent offences was arrested and appeared in Court on

16 May 1984 charged with conspiracy.  On 22 May, the applicant was

brought back to Court and served with a fresh petition charging murder

in respect of the fire on 16 April 1984.  During the judicial

examination of the applicant, the Procurator Fiscal Depute conducting

the case, questioned him on the basis that the applicant was present

at the house and was involved in starting the fire.  The applicant in

reply specified in detail an alibi for that time.

        The applicant was subsequently indicted to the High Court in

Glasgow on charges of conspiracy to commit robbery, wilful

fire-raising, murder, assault and instigation of others to commit

assault and murder.  The applicant was found guilty of assault and

murder on 10 October 1984 and was sentenced to ten years imprisonment

and life imprisonment, with a recommendation that he serve not less

than twenty years.

        The applicant applied for legal aid to appeal his conviction:

he had already been legally-aided during the trial.  It appears

however the applicant's solicitor and counsel indicated that they

would not be prepared to argue his appeal as he wished.  The

applicant therefore prepared and lodged his own grounds of appeal and

with the aid of a solicitor, prepared his submissions on appeal,

copies of which were provided for the Appeal Court judges.  The

applicant applied under S 274 of the Criminal Procedure (Scotland)

1975 Act to have the shorthand notes of the trial but this request was

refused both by the Clerk of the Justiciary and the Secretary of

State.

        The applicant presented his appeal on 16 June 1985 and was

considerably hampered by being kept in manacles throughout the

proceedings.  The applicant requested the Lord Justice Clerk to have

the manacles removed so that he could reach and refer to his papers

but this request was denied and the applicant was kept manacled to at

least one prison officer while before the Court.  The prosecution was

represented by a senior Advocate Depute, a Q.C., who was assisted by

junior counsel and members of the Procurator Fiscal service.  The

Appeal Court dismissed the appeal and refused his application to

receive "new evidence".

        On 18 November 1985, the applicant petitioned the Secretary of

State under S 263 of the Criminal Procedure (Scotland) Act 1975 to

remit the matter back to the Appeal Court.  This petition was refused

by letter dated 19 March 1986.

        Following his appeal, the applicant was transferred to

Peterhead Prison over 200 miles from his family.  As a direct

consequence of his desire to work on his petition and of his

complaints to the European Commission on Human Rights, the applicant

was placed in solitary confinement, where he has remained ever since

while in prison.

        On 2 November 1985, an incident occurred in the solitary

confinement block and a number of prisoners were investigated as to

their alleged involvement.  On 3 November, the applicant was visited

in his cell by a number of prison officers.  An incident then occurred

and the applicant was removed to hospital, where he underwent a

life-saving operation and a rupture to the small bowel was repaired.

        On 10 November 1985, the applicant's solicitor arrived at the

hospital to discuss with the applicant the circumstances which led to

his admission to hospital.  He had previously been told by the Prison

Division that the applicant was in hospital for an appendix operation.

The visit had been arranged by the solicitor with the sanction of the

prison and hospital staff, and the police who were helping in

supervision.  On arrival at the hospital however, the solicitor was

told that he had to submit his person and luggage (consisting of the

applicant's files and a camera) to a search and that police and prison

officers would have to be present at the interview.  The solicitor

phoned the Assistant Governor of the prison and explained that the

meeting concerned possible Court proceedings but was told that the

police were in charge.  The solicitor therefore was obliged to submit

to the search and to conduct the interview in the presence of police

and prison officers, one of whom had been present during the incident

of which the applicant was complaining.

        Following the meeting, the applicant and his solicitor made a

formal complaint of assault by the prison officers.  The applicant was

later charged with crimes of rioting and assault in respect of the

incident on 2 November 1985.  The applicant was indicted and brought

to trial in May 1986 but the Crown withdrew the case since there

appeared to be no evidence against him.  The applicant wished to bring

proceedings against those who made the false allegations but is unable

to receive legal aid for such proceedings.  He is also unable to gain

access to the information on which the charges against him were based.

        The applicant has however been granted legal aid in order to

pursue an action for damages for assault against the Secretary of

State for Scotland and it appears that a summons has now been issued

instituting proceedings.

COMPLAINTS

        The applicant makes the following complaints:

1.      The applicant complains that he was not informed adequately of

the nature and cause of the charges against him.  The indictment

accused him of setting fire to a house on 16 April 1984 in company

with others and the applicant prepared his defence on the basis of his

alibi.  During the trial however, the applicant alleges that

since the Crown had no evidence proving that he was at the scene of

the crime, they changed the nature of the allegations from that of

primary participant ("actor") to that of accessory or accomplice ("art

and part").  Under Scottish criminal law, there is no requirement to

distinguish between these degrees of participation, all who

participate being equally guilty.  The applicant contends that he was

not given fair notice of this change in the nature of his alleged

crimes and was therefore misled as to the nature of the charge against

him.  This also prevented him from having adequate time and facilities

to prepare his defence.

        The applicant invokes Article 6 para. 3 (a) and (b) (Art. 6-3-a,

Art. 6-3-b) of the Convention in this regard.

2.      The applicant complains that he was refused a copy of the

transcript of his trial which was necessary to prepare his appeal

properly.  He invokes Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.

3.      The applicant alleges that he did not receive a fair trial

since:

          i. the prosecution failed during the trial to disclose or

explain fully the discrepancies upon which the change in the nature of

the charge was based, and also withheld and concealed evidence vital

to the defence;

         ii. the judge in directing the jury impressed his own views

of the evidence on the jury, stating, contrary to the applicant's

assertions, that there was sufficient evidence to convict, failing to

direct the jury that if they did not believe a witness's denial of a

part of evidence they were not entitled to infer that the opposite was

true and leaning strongly in favour of the evidence of a vital

prosecution witness, called Love;

        iii. the Appeal Court did not in their judgment deal

effectively with the points of his appeal;

         iv. it has appeared in the context of the trial for perjury

of one of the witnesses in the applicant's trial that a witness was

given a promise of immunity from prosecution in order to obtain a

statement from him and that the police directed this witness to

persuade another witness to change her statement to accord with his

own.  This information casts grave doubts on the whole of the

prosecution case.

        The applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention.

4.      The applicant also complains that he was denied the right to

examine or have examined witnesses against him or to obtain the

attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him, since the Crown failed to

disclose information relevant to his defence.  The applicant invokes

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.

5.      The applicant also alleges that he was denied natural justice

in his trial and appeal and consequently that he was not proved guilty

according to law.  He invokes Article 6 para. 2 (Art. 6-2) of the Convention.

6.      The applicant complains that as regards the charges against

him, such acts or omissions of the applicant did not constitute a

criminal offence according to Scottish law at the time they were

committed.  He invokes in this respect Article 5 and Article 7 (Art. 5,

Art. 7) of the Convention.

7.      The applicant contends that he suffered inhuman and degrading

treatment through being manacled throughout his appeal hearing.  He

invokes Article 3 (Art. 3) of the Convention.

8.      The applicant complains that the conditions imposed on his

solicitor on his visit to the applicant while in hospital (in

particular the presence of police and prison officers, one of whom

took part in the incident in which the applicant received his injury)

attempted to intimidate him and in effect impeded the exercise of his

right of access to Court.  The presence of the police and and prison

officers throughout the interview also interfered with his right to

receive and impart information.  The applicant invokes in this respect

Articles 6 para. 1 and 10 (Art. 6-1, Art. 10) of the Convention.

9.      The applicant also complains that due to lack of access to

information concerning the charges of riot and assault brought against

him and due to lack of financial means, he is unable to bring a civil

action in respect of the false allegations which were subject of the

prosecution.  He invokes Article 6 para. 1 (Art. 6-1) of the Convention.

THE LAW

1.      The applicant complains of the restrictions imposed on the

visit of his solicitor to him while he was in hospital.  He complains

in particular that his solicitor was subjected to a search and that

police and prison officers remained present during the interview.  He

invokes Article 6 para. 1 and Article 10 (Art. 6-1, Art. 10) of the Convention.

        The Commission considers that these complaints raise issues

similar to those dealt with in CAMPBELL and FELL v. the United Kingdom

(Eur.  Court H.R., Campbell and Fell judgment of 28 June 1984, Series A

No. 80) and in BYRNE, McFADDEN and others v. the United Kingdom

(Application Nos. 7879/77, 7931/77, 7935/77 and 7936/77, Comm.  Rep.

3.12.85).  The Commission therefore decides to invite the parties to

submit observations on these issues pursuant to Rule 42 para. 2 (b) of

the Commission's Rules of Procedures and accordingly to adjourn this

part of the application.

2.      The applicant complains of degrading treatment in that he was

kept manacled throughout his appeal hearing.

        Article 3 (Art. 3) of the Convention provides that:

        "No one shall be subjected to torture or to inhuman or

        degrading treatment or punishment."

        The Commission however refers to its previous case-law in this

respect (see e.g.  Application No. 2291/64, Dec. of 1.6.67) where it

has been held that while the handcuffing, in public, of a prisoner may

be undesirable, it is clearly not so serious a measure as to amount to

inhuman or degrading treatment within the meaning of Article 3 (Art. 3) of the

Convention.

        The Commission also recalls that the applicant was

representing himself before the Court and that he made a request to

the Court have the manacles removed so that he could reach and refer

to his papers.  This request was refused and the applicant remained

manacled to at least one prison officer, which he states considerably

hampered him in the presentation of his appeal.  In these

circumstances, the Commission considers that an issue under Article 6

para. 1 (Art. 6-1) of the Convention may arise.  The Commission therefore decides

to invite the parties to submit observations on this issue pursuant to

Rule 42 para. 2 (b) of the Commission's Rules of Procedure and

accordingly adjourns this part of the application.

3.      The applicant also makes complaints about the fairness of his

trial.  He complains in particular that the prosecution withheld and

concealed evidence, that one of the prosecution witnesses had been

given a promise of immunity in order to secure evidence from him, that

the judge misdirected the jury and that the appeal court refused to

hear new evidence.

        Article 6 para. 1 (Art. 6-1) of the Convention provides that:

        "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 Commission recalls however that as regards the witness who

was promised immunity, it appears from the judge's summing-up that the

judge directed the jury that this witness could not be regarded as

having given any incriminating evidence against the applicant.  The

Commission also recalls that the applicant was able to raise the

alleged misdirections of the trial judge in his appeal.  Insofar as

the applicant complains of the decision of the appeal court, 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

jurisprudence (see e.g. decisions on the admissibility of applications

No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 and No. 5258/71,

Dec. 8.2.73, Collections 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79,

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

        Insofar as the applicant alleges that the prosecution

concealed and withheld evidence, this complaint has not been

substantiated.  In light of the above reasoning, the Commission

concludes therefore that these complaints disclose no appearance of a

violation of 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.

4.      The applicant also complains that he was not informed

adequately of the nature of the murder charge against him.  He

contends that during his trial the Crown changed its case against him

from one of principal to accessory ("art and part").  He also

complains that this prevented him adequately from preparing his

defence.

        Article 6 para. 3 (a) and (b) (Art. 6-3-a, Art. 6-3-b) of the

Convention provide:

        "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;..."

        The Commission notes however that under Scottish criminal law

an indictment is not required to specify whether the person charged is

guilty as principal or accessory.  While the applicant therefore may

not have realised that the indictment for murder he could also be

found guilty of being an accomplice instead of a principal, he was

certainly aware that he was accused of involvement in the unlawful

killing of the occupants of the house which was burnt down.  He was

also represented by solicitor and counsel who would have been fully

aware of the position.

        The Commission concludes therefore that these complaints

disclose no appearance of a violation of Article 6 para. 3 (a) and (b)

(Art. 6-3-a, Art. 6-3-b) 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.

5.      The applicant also complains that he was unable adequately to

prepare for his appeal contrary to Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention since he was refused a copy of the transcript of his trial.

        It appears however that the only issue arising in the appeal

concerning the transcript was whether the evidence of one of the

witnesses had been contradicted by other evidence not produced at the

trial.  The appeal court however held that the alleged contradictory

evidence had been available at the time of trial and therefore could

not now be introduced during the appeal.

        In these circumstances, the Commission finds that this

complaint discloses no appearance of a violation of Article 6 para. 3

(b) (Art. 6-3-b) 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.

6.      The applicant complains that he was denied the right to have

examined witnesses against him or on his behalf as a result of the

prosecution failing to disclose information relevant to his defence

contrary to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.

        The Commission finds however that the applicant has failed to

substantiate this complaint and that accordingly this part of the

application discloses no appearance of a violation of the Convention.

        It follows that this complaint must be dismissed as manifestly

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

Convention.

7.      The applicant also complains of violations of Article 6

para. 2, Article 5 and Article 7 (Art. 6-2, Art. 5, Art. 7) of the Convention.

        The Commission finds no evidence however to support the

applicant's allegation that he has not been lawfully convicted and

sentenced by a competent court, or that the presumption of innocence

has not been respected during the applicant's trial.  The applicant

has also failed to substantiate his claim that he was found guilty of

acts or omissions which did not constitute a criminal offence under

Scottish law at the time they were committed.  The Commission

therefore finds no appearance of a violation of Articles 5, 6 para. 2

or 7 (Art. 5, Art. 6-2, Art. 7) of the Convention.

        It follows that this complaint must be dismissed as manifestly

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

Convention.

8.      The applicant complains also that he is unable to gain legal

aid in order to sue for defamation those persons who furnished

information which resulted in a prosecution for riot and assault

being brought against him.

        Article 6 para. 1 (Art. 6-1) provides inter alia that:

        "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 Commission recalls that according to the constant case-law

of the Commission and the Court Article 6 para. 1 (Art. 6-1) guarantees to

litigants an effective right of access to the courts for the

determination of their civil rights and obligations (see e.g.  Eur.

Court H.R., Airey judgment of 9 October 1979, Series A No. 32).

        The Commission notes however that the applicant cannot

identify the alleged informants or indeed establish that anything

defamatory has in fact been said.  In these circumstances, even

assuming Article 6 (Art. 6) applies, the refusal of legal aid for an action in

defamation does not constitute a violation of Article 6 (Art. 6) of the

Convention, the applicant having failed to substantiate that he has a right of

action against anyone.

        It follows that this complaint is manifestly ill-founded

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

9.      Finally, the Commission notes the applicant's statement that

he has been placed in solitary confinement as a consequence of his

desire to work on his petition and of his complaints to the European

Commission of Human Rights.  In this respect the Commission decides to

request the Government's explanations in the context of Article 25

para. 1 (Art. 25-1) in fine of the Convention which provides that those High

Contracting Parties who have made a declaration recognising the

Commission's competence to receive individual petitions undertake not

to hinder in any way the effective exercise of this right.

        For these reasons, the Commission

        DECLARES INADMISSIBLE the various complaints made by the

        applicant under Articles 5, 6 paras. 1, 2 and 3 (a), (b) and

        (d), 7 and 10 (Art. 5, Art. 6-1, Art. 6-2, Art. 6-3-a, Art. 6-3-b,

Art. 6-3-d, Art. 7, Art. 10 of the Convention (as set out

under points 3 to  8 of The Law)

        DECIDES TO ADJOURN the remainder of the application.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)