The European Commission of Human Rights sitting in private on 12 March

1986, the following members being present:

                    MM. C.A. NØRGAARD, President

                        G. SPERDUTI

                        J.A. FROWEIN

                        E. BUSUTTIL

                        G. JÖRUNDSSON

                        G. TENEKIDES

                        S. TRECHSEL

                        B. KIERNAN

                        A.S. GÖZÜBÜYÜK

                        A. WEITZEL

                        H.G. SCHERMERS

                        G. BATLINER

                        J. CAMPINOS

                        H. VANDENBERGHE

                   Mrs  G.H. THUNE

                   Sir  Basil HALL

                    Mr. J. RAYMOND, Deputy 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 12 May 1983 by

J.M. against the United Kingdom and Ireland and

registered on 15 May 1985 under file No. 10386/83;

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 1954 and is currently

serving a sentence of imprisonment.  The facts as submitted by the

applicant may be summarised as follows.  The applicant is represented

before the Commission by Mr. Alastair Logan, solicitor.

The applicant was arrested in his home in Belfast on 24 January 1982.

He was transferred to the custody of the Anti-Terrorist Squad of New

Scotland Yard and transferred to London, where on 28 January 1982 he

was charged with conspiracy to cause explosions in the United Kingdom

between November 1978 and June 1979.

The applicant was granted legal aid for representation at the

committal proceedings and at his trial in the Central Criminal Court.

On 6 September 1982, one week before the committal proceedings, the

applicant's solicitor learned that some of the exhibits to be used in

support of the prosecution case were in the control of the Court of

Criminal Appeal in Dublin.  These exhibits had been produced

originally at the committal proceedings against G.T. who was

arrested and committed on similar charges in London in 1980.  Mr. T.

escaped from prison whilst on remand and was later apprehended in

March 1982 in Ireland.  Mr. T. was subsequently tried by the

Special Criminal Court in Dublin and given a sentence of 10 years for

possession of explosives.  It appears that the Director of Public

Prosecutions gave the exhibits into the possession of the Irish

authorities.

Mr. T. appealed against conviction and sentence on 10 July 1982

and according to the legislation applicable to appeals, the exhibits

produced at the trial entered the custody of the Irish Court of

Criminal Appeal in Dublin.

On 5 August 1982, the Director of Public Prosecutions of the United

Kingdom made an application to the Irish Appeal Court for the release

of the exhibits for use in the committal proceedings against the

applicant.  Permission was given and the Director of Public

Prosecutions gave an undertaking to return the exhibits forthwith on

conclusion of the committal proceedings.

The applicant applied to the Divisional Court of the Queens Bench

Division for an order of Prohibition to halt the committal proceedings

and for a declaration that the prosecution had a duty to preserve and

retain the exhibits and that the Director of Public Prosecutions

should not be allowed to permit the exhibits to be removed from the

jurisdiction of the English courts without the authorisation of the

courts.

The applicant's solicitors were concerned that they would have no

opportunity of forensically examining the exhibits before their return

to Ireland, where they might conceivably be lost or damaged.

Mr. Justice McCullough granted the Prohibition Order on

14 September 1982 and gave leave for the applicant to pursue

his application before the full Divisional Court.

The application was heard before the full Divisional Court on

8 October 1982.  The court refused the declaration and discharged the

Prohibition Order.  The court was satisfied that the Director of

Public Prosecutions had taken the utmost care of the exhibits, which

had been sealed and placed in the custody of a specially designated

officer on transfer to and from Ireland.  The court was of the view

that the Irish Appeal Court could be relied upon to deal

sympathetically with the problems caused by the overlapping

proceedings.  The Director of Public Prosecutions also undertook to

apply to the Irish Court for access to the exhibits for the applicant

and a modification of his undertaking.

The applicant appealed unsuccessfully to the Court of Appeal on

12 November 1982.  He also applied for legal aid for representation at

the hearing of the application of the Director of Public Prosecutions

at the Irish Court.

The applicant's solicitors made inquiries from the Law Society for

England and Wales, but were informed by a letter of 19 November 1982

that there were no facilities within the existing legal aid scheme to

enable the applicant to be represented before the Irish Court.  His

solicitors also approached the Registrar of the Irish Court who

confirmed that there were no legal aid facilities available to the

applicant in Ireland in these circumstances.

On 29 November 1982, the applicant's solicitors attended the hearing

at the Irish Court with an Irish lawyer, although there was no

prospect of remuneration.  They argued that the exhibits should remain

in the United Kingdom and that it was vital for the purposes of a fair

trial no examination of them should take place, without expert

representatives of the applicant being present.  The exhibits were

over fifty in number and consisted of such items as photos, maps,

newspaper wrappings and objects with fingerprints evidence of them.

They wished to ensure that no exhibits were carelessly contaminated

such that, for example, an article with the applicant's fingerprints

on was also found to have traces of explosives.  Mr. T.'s

solicitors had filed an affidavit indicating there may have already

been cross-contamination and that further examination would risk

increased deterioration in the evidential value of the exhibits,

though the applicant's solicitors later discovered no examination of

the exhibits did take place in Ireland.

The Irish Court ordered that the exhibits remain in the custody of the

Director of Public Prosecutions until further order and that the

Director of Public Prosecutions undertake to allow the applicant and

Mr. T. reasonable facilities for scientific examination of the

exhibits and to inform either party when such an examination was to

take place.

The applicant was eventually tried at the Central Criminal Court on

26 May 1983 and sentenced to 17 years imprisonment.  Beyond the fact

that the exhibits were available at the trial, it is not known what

role they played in the applicant's conviction.  He appealed

unsuccessfully, his appeal being dismissed by the full Court of Appeal

on 11 December 1984.

COMPLAINTS

The applicant complains that the Government of the United Kingdom and

the Government of Ireland, in promulgating legislation enabling

persons accused of committing crimes in the United Kingdom to be tried

in Ireland and vice versa, failed to protect his rights under the

Convention in that he had no locus standi to appear before the Irish

Court and that he was not entitled to legal aid for these proceedings.

The applicant complains that the legislation enabling persons accused

of committing crimes in the United Kingdom to be tried in Ireland and

vice versa, fails to protect his rights in that he had no locus standi

as a party before the Irish Court of Appeal and in that he was not

entitled to legal aid in respect of those proceedings.

In particular, he submits that since he had no right of audience

before the Irish Court he was denied the right to "a fair and public

hearing ... by an independent and impartial tribunal established by

law" under Art. 6, para. 1 (Art. 6-1) and that since he was unable to

receive free legal aid, there was a breach of Art. 6, para. 3,

sub-para. c (Art. 6-3-c).

He further submits that the removal of the exhibits abroad out of the

control of English courts and the refusal of the English courts to

make any orders in relation to the exhibits hampered his defence in

breach of Art. 6, para. 3, sub-para. b (Art. 6-3-b).

The applicant also complains of a breach of Art. 6, para. 1 (Art. 6-1)

in that if he had been tried within a reasonable time he would have

had the opportunity to cross-examine a scientific officer, who died on

30 November 1982, enabling his written statement to be used as

evidence.  The applicant further submits that the circumstances

described above severely hampered his obtaining the examination and

attendance of witnesses on his behalf under the same conditions as the

witnesses against him in breach of Art. 6, para. 3, sub-para. d

(Art. 6-3-d).

THE LAW

1.      The applicant complains that the legislation promulgated by

the Governments of the United Kingdom and Ireland to enable those

accused of committing crimes in the United Kingdom to be tried in

Ireland and vice versa failed to secure him the right of audience

before the Irish court seised of possession of the exhibits in

contravention of Art. 6, para. 1 of the Convention (Art. 6-1), and did

not provide him with legal aid to litigate before that court in

contravention of Art. 6, para. 3, sub-para. c (Art. 6-3-c).

Art. 6, para. 1 of the Convention (Art. 6-1) guarantees that in the

determination of a person's civil rights and obligations or of any

criminal charge against him he is entitled to a fair and public

hearing within a reasonable time by an independent and impartial

tribunal established by law.  Art. 6, para. 3, sub-para. c

(Art. 6-3-c) guarantees a person charged with a criminal offence the

right to defend himself in person or through legal assistance of his

own choosing or, if he has not sufficient means to pay for legal

assistance, to be given it free where the interests of justice so

require.

However insofar as the applicant complains of a violation of the

Convention by Ireland, the Commission recalls that the proceedings

before the Irish court concerning the use of the exhibits did not lead

to a determination of the applicant's civil rights and obligations and

he was not charged with an offence before that court.  Accordingly the

complaints as submitted do not disclose any violation of Art. 6,

paras. 1 or 3, sub-para. c (Art. 6-1, art. 6-3-c).  It follows that

this part of the application brought against Ireland is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Art. 27, para. 2 (Art. 27-2).

Insofar as this part of the application complains of a violation of

the Convention by the United Kingdom, legislation of the United

Kingdom cannot confer a right of audience in an Irish Court. Nor were

the proceedings in the Irish Court a part of the criminal proceedings

against the applicant in the English Court.  The proceedings before

the Irish Court were not concerned with the taking of evidence on

which the criminal charge against the applicant would be determined

but with the safeguarding and access to the exhibits. Accordingly,

Art. 6, para. 3, sub-para. c of the Convention (Art. 6-3-c) did not

require the United Kingdom authorities to give legal assistance to the

applicant to appear before the Irish Court.

It follows that insofar as this part of the application relates to the

responsibilities of the United Kingdom it too is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Art. 27, para. 2 (Art. 27-2).

2.      The applicant complains also that he was hampered in this

preparation of his defence by the circumstances of the case.

It is true that Art. 6, para. 3, sub-para. b (Art. 6-3-b) guarantees

that a person charged with a criminal offence shall have adequate time

and facilities for the preparation of his defence.

However, the applicant was not charged with a criminal offence before

the Irish court and accordingly this complaint cannot disclose any

violation of Art. 6, para. 3, sub-para. b (Art. 6-3-b) on the part of

the Irish authorities.  This part of the complaint is therefore

incompatible ratione materiae with the provisions of the Convention

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

As regards the responsibilities of the English authorities, the

Commission recalls that the Irish court ordered the English DPP to

make available to the applicant adequate opportunity to inspect the

exhibits and to inform him if any other inspection was to take place.

The Commission also recalls that the Divisional Court of the Queens

Bench Division held that the English DPP had taken the utmost care of

the exhibits in the precautions taken in respect of their transfer to

and from Ireland.  There has been no allegation made by the applicant

that the exhibits did in fact suffer any contamination.

The Commission therefore finds on examination that this aspect of the

complaint as it has been submitted does not disclose any appearance of

a violation of the rights and freedoms set out in the Convention and

in particular in the above Article (Art. 6-3-b) by the English authorities.

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

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

3.      The applicant also complains in respect of the proceedings in

the English Courts he was prevented from obtaining the examination and

attendance of witnesses because of the delay before his trial during

which a police expert witness died.

It is true that Art. 6, para. 3, sub-para. d (Art. 6-3-d) guarantees

the right for a person charged with a criminal offence "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" and that Art. 6, para. 1 (Art. 6-1) guarantees

the right to the determination of charges within a reasonable time.

Insofar as the applicant makes the complaint of delay against the

Irish court, the Commission recalls that the Irish authorities were

not responsible for fixing the date of the applicant's trial on the

criminal charge and furthermore that the proceedings before the Irish

court did  not lead to a determination of the applicant's civil rights

and obligations and that he was not charged with a criminal offence.

Accordingly, this part of the complaint does not disclose any

violation of Art. 6 (Art. 6) and is incompatible ratione materiae

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

Insofar as the applicant complains in respect of the proceedings in

England, the Commission recalls that the applicant had to wait from

24 January 1982 to 26 May 1983 to be tried and that the said witness died

on 30 November 1982.  However, having regard to the complexity of the

charges, the fact that the preparations for trial were unavoidably

delayed by the judicial review proceedings and by the exhibits being

under the jurisdiction of the Irish court, the Commission finds that

an examination of the case as it has been submitted by the applicant

does not disclose any appearance of a violation of the rights and

freedoms set out in the Convention and in particular of Art. 6,

para. 3, sub-para. d (Art. 6-3-d) read in conjunction with Art. 6,

para. 1 (Art. 6-1), by the Government of the United Kingdom.

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

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

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Deputy Secretary to the Commission          President of the Commission

         (J. RAYMOND)                             (C.A. NØRGAARD)