Lexploria

AS TO THE ADMISSIBILITY

Application No. 12508/86

by Charles FAGAN

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 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 20 November

1985 by Charles FAGAN against the United Kingdom and registered

on 20 September 1986 under file No. 12508/86;

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 of Irish nationality born in 1944 and

resident in Dublin. He is currently serving a prison sentence on the

Isle of Wight.

The facts as submitted by the applicant may be summarised as

follows.

On 26 February 1984, the applicant was arrested by the police

and taken to Woodford police station. On 28 February 1984, he was

moved to Islington police station, where he was charged with six

others with conspiracy to contravene the 1971 Drugs Act. On

29 February 1984, he appeared in the Magistrates' Court and was

remanded in custody. He was committed for trial on 2 April 1984 and

on 8 March 1984, he was convicted of conspiracy to supply cannabis and

sentenced to seven years' imprisonment. He was also fined £30,000

but sentenced to an additional year on default in payment.

The applicant alleges that the detective-sergeant in charge of

his case promised his co-defendant bail if the co-defendant would give

evidence against the applicant. A statement incriminating the

applicant was afterwards used as evidence during the trial. The

applicant also alleges that, when interviewed himself by the

detective-sergeant, he stated that he had never intended to supply the

drug to anyone else. He states that no written statements were

recorded or shown to him concerning anything he said to the

detective-sergeant and denies that he ever took part in any question

and answer interview. The police however produced a statement

recording such interviews. The applicant alleges that these were

completely fabricated in order to secure a verdict of guilty against

him. The applicant also alleges that the detective-sergeant in charge

of the case said that the applicant would be allowed bail if he gave

the sergeant £7,500. The applicant states that in 1984 a man was

convicted of conspiracy to rob as a result of evidence deliberately

planted by this detective-sergeant. In December 1984, the Court of

Appeal subsequently quashed the conviction. Since then this

detective-sergeant has been subjected to investigations concerning

allegations of corruption and involvement in crime.

The applicant's defence during his trial was that this

detective-sergeant had fabricated the evidence against him. The

prosecution did not call this officer as a witness and when the

applicant requested that he be called as a witness by the Court so

that he could be cross-examined by the defence, the judge refused.

The applicant appealed against conviction and sentence. One

of the grounds of appeal concerned the fact that the

detective-sergeant in charge of his case had since been suspended from

duty and charged with conspiracy to rob. It also appeared that

several trials had been abandoned as it was felt unsafe to proceed

where the evidence had been tainted by this officer's involvement.

The applicant submitted that the non-calling of this officer at the

trial, where allegations of fabricated evidence were in issue, was a

major omission.

Leave to appeal against conviction was refused by the single

judge of the Court of Appeal. The applicant renewed his application

to the full court. On 13 December 1985 his application for leave was

granted by the Court, which proceeded immediately to a full appeal

hearing. The applicant was represented by counsel.

The Court held however that there was nothing improper in the

decision of the prosecution or judge not to call the

detective-sergeant as a witness, since he was clearly a suspect

witness. They pointed out that it had been open to the defence

themselves to call him as a witness. They also commented that since

the officer had not been called as a witness, his evidence was not

before the jury and played no part in the applicant's conviction. His

appeal was accordingly dismissed.

COMPLAINTS

The applicant complains that the prosecution and judge refused

to call the detective-sergeant for cross-examination. He states that

his whole defence revolved around his allegations that this police

officer fabricated the evidence against him and he was denied the

opportunity to expose the character of the detective-sergeant.

He accordingly invokes Article 6 para. 3 (d) of the

Convention.

THE LAW

The applicant complains of the refusal of the prosecution and

judge to call the detective-sergeant involved in his case for

cross-examination by the defence.

Article 6 para. 3 (d) (Art. 6-2-d) of the Convention 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 Commission recalls that the essential purpose of this

provision is to ensure equality between the defence and the

prosecution as regards the summoning and examination of witnesses.

It does not grant to the accused an unlimited right to secure the

appearance of witnesses in court (see e.g. Application No. 8417/78,

Dec. 4.5.79, D.R. 16 p. 200).

In the present case, the Commission notes that though the

prosecution and the judge declined to call this particular witness, it

was still possible for the defence to call him. The Commission also

recalls that the matter was considered by the Court of Appeal which held

that there was nothing improper in the decision of the prosecution or

judge not to call the detective-sergeant, since he was clearly a

suspect witness. Further, since he had not been called as witness for

the prosecution, his own evidence as officer in charge of the

investigation had not been used against the applicant and could have

played no part in the applicant's conviction.

In these circumstances, the Commission finds no elements which

indicated that the Court went beyond its discretion in refusing to

call this particular witness. Accordingly an examination of the facts

complained of does not disclose any appearance of a violation of the

Convention and in particular of Article 6 para. 3 (d) of the

Convention.

It follows that the application is manifestly ill-founded

within the meaning of Article 27 para. 2 of the Convention.

For this reason, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Menu

FAGAN v. THE UNITED KINGDOM

FAGAN v. THE UNITED KINGDOM

LEXI