Lexploria

The European Commission of Human Rights sitting in private on

13 May 1986, 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

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

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

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (Art. 25);

Having regard to the application introduced on 16 July 1984 by

M. Heston FRANÇOIS against the United Kingdom and registered on

27 July 1984 under file No. 11058/84;

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 facts as they have been submitted on behalf of the applicant, a

British citizen born in 1934, who is represented before the Commission

by Messrs Mackenzie Patten & Co, solicitors, of London, may be

summarised as follows:-

The applicant was convicted on 23 February 1982 of two offences of

burglary and one of handling stolen property ("the burglary charges").

He was sentenced to concurrent terms of five years, five years and

18 months imprisonment respectively.

On 8 July 1981, while on bail awaiting trial for the burglary charges,

the applicant was arrested and confessed to dishonestly handling two

stolen cars and to dishonestly handling a Ministry of Transport Test

Certificate. On 23 February 1982 he was committed for sentence in

respect of these offences to the Inner London Crown Court and,

immediately following his sentence for the burglary charges, was

sentenced to concurrent terms of 18 months, 18 months and 12 months

imprisonment respectively for each of them.

The arrest of the applicant on 8 July 1981 followed a police search of

his home in respect of which the police claim to have been acting

pursuant to a warrant relating to stolen jewelry. However, the

applicant's representative contends that in fact no such warrant was

ever issued. No copy of the alleged warrant exists in the court

records of the Magistrates' Court which supposedly issued it, and an

internal police enquiry is currently in progress to establish whether

or not a warrant was indeed issued.

In the course of their search of the applicant's home on 8 July 1981,

the police came upon some 25 files and various tape recordings

belonging to the applicant which had been prepared for use in his

defence to the burglary charges. These files and tapes were removed

by the police. The two police officers who were involved in the

investigation of the burglary charges were informed that these tapes

and documents had been seized, and they subsequently visited the

police station at which they were held and examined the files and

tapes. The fact that these items were examined by them was revealed

by the solicitor for the Metropolitan Police to the applicant's

solicitors. The police officers stated at the time that they were

investigating alleged interference by the applicant with witnesses for

the prosecution in relation to the burglary charges. By the time the

matter came to be tried, however, it was conceded that the applicant

had in no way interfered with any witness, either those for the

prosecution or otherwise.

The applicant contends that the scrutiny of his files relating to his

defence enabled the police officers to adapt their evidence at the

forthcoming trial. However, the prosecution evidence in this case,

including the statements of two of the police officers in question,

was served on the defence before 1 September 1980, prior to the

applicant's committal by the Magistrates' Court, at which stage the

Magistrates had to decide whether or not there was a case to answer

against the applicant.

The applicant applied to the Inner London Crown Court to have the

proceedings on the burglary charges stayed on the grounds that the

defence documents had been seen by prosecution witnesses, namely the

police offices who were thus able to adapt their evidence, and that

this constituted an abuse of the Court's process. After two days of

legal submissions by counsel for the applicant this application was

rejected and the trial went ahead. The applicant was convicted and

sentenced. The judge dealt again with the issue of the seizure in his

summing-up and pointed out the officers' evidence had been served on

the defence before the incident had occurred and that there was no

question of any adaptation of their evidence.

The applicant sought leave to appeal from the single judge. Leave to

appeal was refused, but the applicant renewed his application to the

Full Court of Appeal, which granted leave to appeal. The appeal,

which was heard on 31 January 1984, specifically examined the

following questions:-

Whether "Legally privileged documents found by a prosecuting authority

cannot be removed from the possession of their owner, or his legal

representatives, without their consent, unless the prosecuting

authority can demonstrate to the court that it is reasonably suspected

that the documents contained evidence of the commission of a crime";

And, whether "The seizure and removal, without consent, of documents

that on the face of them have been brought into existence by an

accused (or his legal representative) for the purpose of preparing his

defence in criminal proceedings for which he has already been

committed for trial is to go behind the accused's right to silence,

and is, therefore, an abuse of the process of the court."

And, whether "Even if (contrary to the submissions above) the seizure

of the legally privileged documents by a prosecuting authority is

lawful, the use of the contents of the documents for the purpose of

conducting the prosecution is an abuse of the process of the court.

The burden is upon the prosecuting authority to satisfy the court that

no such use has in fact been made of the contents of such documents."

(Counsel for the applicant's heads of argument, transcript of the

Court of Appeal P 12 C-E).

The applicant's appeal was rejected on the grounds that, although a

power may exist to stay criminal proceedings against an accused as

being an abuse of the process to the court, no difficulty arose in the

present case to justify an enquiry into the facts of the prosecution's

access to the defence's file, or to consider a stay on the basis of

such evidence. The Court of Appeal recognised that the operation of a

duty to investigate allegations made by a defendant in such

circumstances:

"Would present difficult procedural problems, for example:-

(i) of defining the issues claimed to exist, which may be very

complex;

(ii) of providing for representation of persons whose conduct is

impugned;

(iii) of ensuring that the persons affected are sufficiently aware

of the case they have to meet.

Whilst these problems may be overcome, the issues referred to are best

left, we think, to be dealt with during the course of the trial and,

if necessary, later by the Court of Appeal. The Court of Appeal will

have the advantage - one of which we have had the benefit in this case

- of assessing whether the defendant has suffered any actual prejudice

in the course of the trial."

The Court recognised that the only substantial consequence of the

perusal of the defendant's files and tapes by the police officers in

question was that the prosecution thereby had advanced knowledge of

the names of the witnesses whom the applicant intended to call at his

trial. In the course of the appeal Counsel for the applicant conceded

that he could not show that any use was made at the trial of any

information contained in the defence file. The Court was further

satisfied from the very substantial grounds of appeal filed both by

the applicant and by Counsel, that had there been any basis for an

assertion that use had indeed been made at the trial of the burglary

charges of the applicant's files or tapes, this would have been

brought to the Court's attention.

The applicant's counsel submitted that such an analysis of actual

prejudice, arising with the benefit of hindsight, is not the

appropriate test. She contended that the fact of seizure of legally

privileged documents should, in itself, be sufficient to require the

judge to consider the matter before the trial and in a suitable case

to exercise a discretion to stay the proceedings in favour of the

accused. Hence, it was not the Court of Appeal's task, in the

applicant's Counsel's submission, to take account of the fact that the

applicant was not in fact prejudiced by the seizure of his documents

and tapes.

The Court of Appeal also took account of the arguments of the

prosecution, that it was in the public interest that the prosecution

should continue and that the criminal courts should not be used to

discipline the police for possible misdemeanours. The applicant's

right to silence was properly preserved by the discretion of the judge

to exclude evidence, or to leave the evaluation of evidence to the

jury after a clear direction that its value may be doubtful. The

requirement of a pre-trial inquiry in circumstances such as the

present case would be impractical, and open to abuse by unscrupulous

and dishonest accused persons. The present case well illustrated the

importance of discovering in the course of a trial whether the alleged

misconduct by the police had any effect on either the evidence, or the

outcome of the trial. In the present case it had had none.

The court held that there was no general duty on a judge to conduct a

pre-trial inquiry on the application of an accused and thereafter to

exercise a discretion as to whether or not proceedings should be

stayed. The court had an inherent jurisdiction to stay proceedings

but that discretion did not include an obligation to hold a pre-trial

inquiry,

"designed to bring about a stay of proceedings into such allegations

as the improper obtaining of evidence, tampering with evidence, and

the seizure of a defendant's documents prepared for his defence.

However reprehensible conduct of this kind may be, it is not, at least

in circumstances such as the present, an abuse, or in other words, a

misuse, of the court's process. It is conduct which, in these

circumstances, can be dealt with in the trial itself by judicial

control upon admissibility of evidence, the judicial power to direct a

verdict of not guilty, usually at the close of the prosecution's case,

or by the jury taking account of it in evaluation of the evidence

before them."

The Court of Appeal added that:

"The unlawful and unjustified seizure of a defendant's documents

prepared for his defence should not, of course, occur. Any activity

of this kind, above all together with its possible implications upon

the conduct of a trial, is deserving of censure and probably the

activation of the police disciplinary code. Whilst we do not feel

able to say, on the material before us, that the police officers'

conduct in this case was of that order, we do feel it right to say

that police officers must regard documents, albeit that they are

lawfully seized from a defendant following arrest and committal for

trial, with great caution, lest they contain matters for which a

defendant is entitled to claim the protection of privilege so that his

right to silence be not destroyed."

Taking account of the circumstances of the conduct of the applicant's

trial, the Court of Appeal concluded that there was reason to suppose

that the verdict in the applicant's case was neither unsafe or

unsatisfactory. The appeal was therefore dismissed.

The Court of Appeal certified that a question of law of general public

importance was involved in their decision to dismiss the appeal and

granted legal aid to prepare an application for leave to appeal to the

House of Lords on the question of the extent to which the conduct of

police officers in the seizure and removal of legally privileged

documents without the applicant's consent constituted an abuse of the

process of the court and rendered the continuation of criminal

proceedings unfair to the applicant. The application for leave to

appeal was heard and dismissed by the appeal committee of the House of

Lords on 15 March 1984.

COMPLAINTS

Article 6 (Art. 6)

The applicant complains first that he was denied a fair trial in

respect of the burglary charges in view of the seizure of his defence

papers and tapes. He contends that the objective standard of fairness

set out in Article 6 (Art. 6) requires that the accused in criminal

proceedings must have the option to remain silent until the moment of

his trial, and that the Court of Appeal was wrong to assess the

significance of the interference with the rights of the defence by

reference to its ex post facto criterion of whether or not the papers

and tapes were in fact used to the applicant's disadvantage by the

police officers who seized them or by the prosecution in the

subsequent trial.

In addition, the applicant contends that the right to remain silent

and the right of absolute privilege for defence documents may be

derived from Article 6, para. 3, sub-para. b of the Convention

(Art. 6-3-b), and that this right was similarly not respected in the

present case.

Article 8 (Art. 8)

The applicant further contends that the detention of the seized

documents and the subsequent act of making them available to the

officers investigating the separate burglary offences were contrary to

Article 8 (Art. 8).

It is acknowledged that the seizure of the documents would have been

justified under Article 8 para. 2 (Art. 8-2) for the purpose of any

criminal investigation for which the warrant (if any) was issued.

However, it is contended that there could be no such justification for

passing the documents to the officers responsible for the quite

separate investigation of matters in respect of which the applicant

had already been charged, where the documents contained the

applicant's proposed defence to such charges and moreover where it was

acknowledged that the documents did not contain any material which

could aid the police in any criminal enquiries.

The applicant also apparently complains that certain tapes and

documents were not returned to him.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 16 July 1984 and registered on

27 July 1984.

On 14 December 1984, the Commission decided to bring the application

to the notice of the respondent Government and to invite them to

submit written observations on its admissibility and merits on the

issue concerning Article 6 (Art. 6).

The Government's observations were submitted on 29 May 1985 and the

reply thereto submitted by the applicant on 29 July 1985.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

1. The facts

On 8 July 1981, while the applicant was on bail awaiting trial on

burglary charges, he was arrested at his home by Brixton police

officers, who had a warrant to search his home for stolen goods.

During the search, they found files and tapes which they took back to

the police station. Two police officers involved in the investigation

of the burglary charges were informed and went to examine the files

and tapes. They were investigating an allegation that the applicant

was likely to interfere with witnesses for the prosecution, in

particular a Mr. Disdale. No evidence was found. They reported to

their superiors, who informed the solicitor to the Metropolitan

Police, who in turn informed the applicant's solicitors.

The papers and tapes were returned by Brixton police on 23 July 1981.

2. Relevant domestic law and practice

At common law, where police search premises under a warrant for stolen

goods, they may also seize other objects which they believe on

reasonable grounds to be material evidence of any crime committed by

that person.

A trial judge has power at common law to order a stay of proceedings,

the effect of which is that the accused may no longer be tried for the

offence in question. The trial judge also has the discretion to

refuse to admit the relevant admissible evidence on the ground that

its use at the trial would be unfair.

3. Admissibility and merits

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

The Government submit that the applicant had at least 20 months to

prepare his defence i.e. from April 1980 to 11 January 1982, the date

of his trial.

The seizure and examination of the files by the police was lawful and

the applicant, neither at trial nor in his application, challenges

this.

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

It is the constant case-law of the Commission (see e.g. Application

No. 9370/81) that the question of whether a trial complies with

Article 6 para. 1 (Art. 6-1) must be based on an evaluation of the

trial in its entirety rather than on an isolated consideration of one

aspect. In this case the applicant did receive a fair hearing despite

the examination of his documents by the police.

Firstly the police made no secret of the matter, the applicants

solicitors being informed. Secondly, at trial, the judge heard

lengthy argument over two days on the question of whether proceedings

should be stayed. The judge decided not to stay proceedings but left

it to his discretion to exclude any evidence on the ground that its

use at trial would be unfair. Since, however the prosecution were not

in possession of any evidence gained from the files, and, as the

applicant conceded during his appeal, no use was made of any

information contained in the files, the judge had no need to exercise

his discretion.

Thirdly, the judge placed the matter before the jury in his summing-up

and the jury convicted after hearing the evidence and having the

opportunity of assessing the credibility of the police witnesses.

Lastly, the trial was fully reviewed by the Court of Appeal, which

concluded that there was nothing to suggest that the applicant had

suffered any actual prejudice during the trial.

B. The Applicant

1. The facts

The applicant maintains that he was not shown a warrant to search his

home and none has been produced since. He submits that the police did

not act in the perfectly proper or reasonable manner as the Government

suggest. Material seized has still not been returned. Furthermore the

police were aware of the nature of the materials when they were seized

and the examination of them by police officers involved in the

burglary charge was probably only revealed because one of the officers

left a note in the files.

The reason given for examination of the files i.e. to find evidence

of, witness-tampering appears as a flimsy excuse, since no evidence to

support this allegation was ever found.

2. Admissibility and merits

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

The applicant alleges that the seizure, retention and examination of

his defence materials deprived him of a fair trial. It is irrelevant

whether the applicant suffered any actual prejudice since the seizure

in itself constituted a fundamental violation of the Convention.

Neither the trial judge nor the Court of Appeal considered whether the

applicant's rights under the Convention had been adequately protected.

b) Article 6, para. 3, sub-para. b (Art. 6-3-b)

There was a direct breach of Article 6, para. 3, sub-para. b

(Art. 6-3-b), since this provision must include the right to

privileged documents in the preparation of the defence and the right

to silence until such time as one is faced by one's tribunal.

THE LAW

1. The applicant complains that the seizure, retention and

examination of his defence documents deprived him of a fair trial. He

also complains that he was deprived of the right to privileged

documents in the preparation of his defence and the right to silence,

both of which he argues must form part of the rights guaranteed under

Article 6, para. 3, sub-para. b (Art. 6-3-b).

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

"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. Judgment shall be pronounced publicly but

the press and public may be excluded from all or part of the trial in

the interests of morals, public order or national security in a

democratic society, where the interests of juveniles or the protection

of the private life of the parties so require, or to the extent

strictly necessary in the opinion of the court in special

circumstances where publicity would prejudice the interests of

justice."

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

"Everyone charged with a criminal offence has the following minimum

rights:

b) to have adequate time and facilities for the preparation of

his defence."

The question of whether a trial conforms to the standards laid down in

Article 6 para. 1 (Art. 6-1) must be decided on the basis of an

evaluation of the trial in its entirety and not on the basis of an

isolated consideration of one particular incident or one particular

aspect of the trial. The Commission refers in this respect to its

constant case-law (see e.g. Comm. Report on Application No. 343/57,

Nielsen v. Denmark Y.B. 4 p. 548, Application No. 5574/72, D.R. 3

p. 10, Application No. 7306/75, D.R. 7 p. 115 and Application

No. 8744/79, D.R. 32 p. 141).

The Commission has accordingly looked at the applicant's trial as a

whole on the basis of the parties' submissions. It recalls in

particular that:

i) the seizure and examination of the documents was brought to

the attention of the trial judge who heard full argument on whether

there was an abuse of process requiring a stay of proceedings;

ii) the issue was also fully argued before the Court of Appeal,

which gave a full and reasoned judgment;

iii) both the trial judge and appeal court were satisfied that the

police officers made no use of any of the information which was

seized, their evidence having been submitted in statements before the

seizure took place; and

iv) the applicant's counsel conceded during the appeal hearing

that he could not show that any use was made at the trial of any

information contained in the files.

The Commission also notes that the Government alleges that no use was

made of any information contained in the files and that the applicant

has not contradicted this assertion, arguing instead that it is

irrelevant whether he did suffer any actual prejudice.

The Commission concludes therefore that the applicant has failed to

establish that in the circumstances of the case he did not receive a

fair hearing in the determination of the charges against him. An

examination of the trial as a whole accordingly does not disclose any

appearance of a violation of Article 6 para. 1 (Art. 6-1).

As regards Article 6 para. 3 sub-para. b (Art. 6-3-b),

the Commission notes that the seized documents were not used to

incriminate the applicant in connection with the burglary proceedings

and played no part as evidence in his trial. On examination of the

circumstances of the case as a whole therefore, the Commission finds

that the applicant suffered no disadvantage in the preparation of his

defence and the facts therefore fail to disclose any appearance of a

violation of this provision of the Convention.

It follows that this part of the application is manifestly ill-founded

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

2. The applicant further complains that the retention of the

documents and the examination of them by police officers involved in

another investigation constituted an interference with his right to

respect for his private life, home and correspondence contrary to

Article 8 of the Convention (Art. 8). The applicant submits also that

not all of his materials were returned.

Article 8 (Art. 8) guarantees to everyone the right to respect for

their private and family life, home and correspondence. However, the

Commission is not required to decide whether or not the facts alleged

by the applicant disclose any appearance of a violation of this

provision as, under Article 26 of the Convention (Art. 26), 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 failed to bring an action

challenging the lawfulness of the seizure and retention by seeking a

declaration together with an order for the return of any materials in

police possession and has, therefore, not exhausted the remedies

available to him under domestic law. Moreover, an examination of the

case as it has been submitted, 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.

It follows that the applicant has not complied with the condition as

to the exhaustion of domestic remedies and this part of the

application must in this respect be rejected under Article 27 para. 3

of the Convention (Art. 27-3).

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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F. v. THE UNITED KINGDOM

F. v. THE UNITED KINGDOM

LEXI