FIRST SECTION

DECISION

Application no . 52334/13 Eric WRIGHT and James BROWN against the United Kingdom

The European Court of Human Rights (First Section), sitting on 18 October 2016 as a Chamber composed of:

Mirjana Lazarova Trajkovska, President, Ledi Bianku, Linos-Alexandre Sicilianos, Aleš Pejchal, Robert Spano, Pauliine Koskelo, Tim Eicke, judges, and Renata Degener , Deputy Section Registrar ,

Having regard to the above application lodged on 31 July 2013,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, Mr Eric Wright and Mr James Brown, are Irish nationals who were born in 1960 and live in Londonderry, Northern Ireland. They are represented before the Court by Mr P. MacDermott of MacDermott, McGurk & Partners Solicitors, a lawyer practising in Londonderry.

2 . The United Kingdom Government (“the Government”) are represented by their Agent, Ms A. McLeod of the Foreign and Commonwealth Office.

3 . By letter dated 21 March 2014 the Government of Ireland were notified of the applications and were asked if they wished to exercise their right to intervene pursuant to Article 36 § 1 of the Convention and Rule 44 of the Rules of Court. However, they did not seek to exercise this right.

A. The circumstances of the case

4 . The facts of the case, as submitted by the parties, may be summarised as follows.

1. The applicants ’ arrest and police interviews

5 . The first applicant was arrested by the army at 07.25 on 1 January 1977 in relation to two attacks on army patrols in Londonderry. He was handed over to the police at 10.15 and he was visited by his father and examined by a police surgeon shortly thereafter. No injuries or complaints were noted.

6 . From 12.02 to 12.57 the first applicant was interviewed by two detectives. During this interview he admitted that he was a member of Fianna na h ’ Eireann, a proscribed Republican organisation, and had acted as a lookout during the two attacks.

7 . A second interview took place between 14.45 and 17.12 the same day, and during this interview the first applicant allegedly signed a statement admitting membership of a proscribed organisation; again admitted to acting as a lookout during the two attacks; and sketched the area showing where he and others had been situated during the attacks. His father was admitted to the interview room at 16.51 and shown the statements of admission.

8 . That evening the first applicant was again medically examined and no complaints or injuries were noted.

9 . The second applicant was arrested by the army at 20.55 on 7 December 1976 in relation to the same two attacks on army patrols. He was transferred to police custody at 00.40 on 8 December 1976.

10 . During his first interview, which took place between 00.40 and 01.15, he admitted to being a member of Fianna na h ’ Eireann.

11 . He was medically examined at 01.40 and no complaints or injuries were noted.

12 . He was again interviewed under caution between 09.15 and 10.30 and during this interview he confirmed that he was a member of a proscribed organisation and admitted to being a lookout during one of the attacks. He further indicated the location of this incident by reference to a map.

13 . The second applicant was visited by a relative at 10.30. He was interviewed again from 11.50 to 13.00, and from 15.00 onward. During the second of these interviews he made a written confession in which he admitted to acting as a lookout during both attacks and carrying shotgun cartridges across the border into the Republic of Ireland.

14 . At 19.30 on 8 December 1976 he was visited by his parents, who declined to countersign his confessions. He was medically examined on the evening of 9 December 1976 and again on the morning of 10 December. On both occasions he denied any ill-treatment and no relevant sign of injury was detected.

2. The applicants ’ trial

15 . The applicants ’ trial took place from 15 to 18 December 1977. The first applicant was charged with one count of membership of a proscribed organisation, two counts of conspiring to communicate information likely to be of use to terrorists, one count of causing grievous bodily harm and one of attempting to cause grievous bodily harm. He entered “not guilty” pleas to all counts. However, he was found to be guilty as charged and sentenced to ten years ’ imprisonment. He did not appeal against conviction and his application for leave to appeal against sentence was dismissed on 17 February 1978.

16 . The second applicant pleaded “guilty” to one count of belonging to a proscribed organisation, two counts of conspiracy to communicate prohibited information, one count of unlawful possession of ammunition and one count of possessing ammunition without a licence. He pleaded not guilty to one count of conspiracy to cause an explosion and one count of conspiracy to discharge a firearm. He was found to be guilty as charged and sentenced to a total of ten years ’ imprisonment. He did not appeal against either conviction or sentence.

3. Reference to the Court of Appeal by the Criminal Cases Review Commission

17 . On 18 October 2011 the applicants ’ cases were referred to the Court of Appeal in Northern Ireland by the Criminal Cases Review Commission (“CCRC”) on the grounds that there was a real possibility that the Court of Appeal would consider that the manner in which they were detained and interviewed involved significant breaches of the Judges ’ Rules (see paragraph 27 below) and of other protections which they should have enjoyed (namely, access to a solicitor before or during the police interviews and the presence of a family member or independent adult); that in consequence of those breaches the admissions made were unreliable and/or inadmissible; and that in the circumstances their convictions were unsafe.

18 . Judgment was delivered by the Court of Appeal on 23 May 2012. The court noted that at the time of the applicants ’ trial confessions made in breach of the Judges ’ Rules were admissible under the emergency provisions legislation (see paragraph 25 below) unless obtained by torture or inhuman or degrading treatment.

19 . In respect of the first applicant, the court held that although the confessions had been obtained in breach of the Judges ’ Rules because he had not had access to a solicitor, independent adult or family member, in light of the statutory background it could not conclude that the admission of the confessions rendered the conviction unsafe. In particular, it noted that the confessions were not contradictory or inaccurate, they were not challenged at trial, and the conviction was not appealed. The first applicant ’ s appeal was therefore dismissed.

20 . The court also found no evidence that the second applicant ’ s conviction was unsafe. In reaching this conclusion, it noted that he had pleaded “guilty” to most of the offences and had not challenged the admissibility or reliability of his confessions in contesting the two counts to which he pleaded “not guilty”. The second applicant ’ s appeal was also dismissed.

21 . On 7 September 2012 the Court of Appeal certified that the following point of law of general public importance was involved in the decision which ought to be considered by the Supreme Court:

“ Where in a trial conducted in accordance with the then applicable statutory emergency provisions a young person was convicted of an offence on the basis of a confession admitted at the time of trial by virtue of the statutory emergency provisions but in circumstances in which such a confession would otherwise have been excluded as having been obtained in a manner which contravened the Judges ’ Rules, the Administrative Directions on Interrogation and the T aking of Statements and the RUC Code and where such confession was obtained in circumstances which did not provide safeguards subsequently and currently considered to be necessary to avoid a miscarriage of justice, does such conviction fall to be considered as unsafe? ”

22 . However, the Court of Appeal refused to grant leave to appeal to the Supreme Court.

23 . On 7 February 2013 the Supreme Court also refused permission on the grounds that the application did not raise an arguable point of law which it ought to consider and that there was no real possibility that the court would find the convictions to be unsafe.

B. Relevant domestic law and practice

1. The Criminal Cases Review Commission

24 . Section 10 of the Criminal Appeal Act 1995 provides that:

“Where a person has been convicted of an offence on indictment in Northern Ireland, the Commission—

(a) may at any time refer the conviction to the Court of Appeal, and

... ... ...

(2) A reference under subsection (1) of a person ’ s conviction shall be treated for all purposes as an appeal by the person under section 1 of the 1980 Act against the conviction.”

2. The legal framework applicable to interrogation in 1976/7

(a) Northern Ireland (Emergency Provisions) Act 1973

25 . Section 6 of the 1973 Act provided that:

“(1) In any criminal proceedings for a scheduled offence a statement made by the accused may be given in evidence by the prosecution in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of subsection (2) below.

(2) If, in any such proceedings where the prosecution proposes to give in evidence a statement made by the accused, prima facie evidence is adduced that the accused was subjected to torture or to inhuman or degrading treatment in order to induce him to make the statement, the court shall, unless the prosecution satisfies them that the statement was not so obtained, exclude the statement or, if it has been received in evidence, shall either continue the trial disregarding the statement or direct that the trial shall be restarted before a differently constituted court (before whom the statement in question shall be inadmissible).”

26 . The effect of section 6 was to suspend the rules and practice governing the admissibility of confessions for the period during which the legislation was in force. However, immediately following the implementation of the legislative changes, judges dealing with cases governed by the 1973 Act declared that they retained a discretion to exclude what was, by statute, otherwise admissible evidence (see, for example, R v. Corey & Others , NIJB, December 1973).

(b) Judges ’ Rules

27 . A note preceding the Judges ’ Rules indicated they did not affect the principles:

“(c) That every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even though he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his doing so.

... ... ...

(e) That it is a fundamental condition of the admissibility in evidence against any person, equally of any oral answer given by that person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary.

The principle set out in paragraph (e) above is overriding and applicable in all cases. Within that principle the following Rules are put forward as a guide to police officers conducting investigations. Non-conformity with these Rules may render answers and statements liable to be excluded from evidence in subsequent criminal proceedings.”

(c) Administrative Directions on Interrogation and the Taking of Statements

28 . The Administrative Directions accompanied the Judges ’ Rules. Paragraph 4 provided that, as far as practical, children and young persons should only be interviewed in the presence of a parent or guardian or, if that was not possible, a person who was not a police officer and was of the same sex as the child. Home Office guidance indicated that this requirement should be seen as applying to anyone under the age of seventeen.

29 . Pursuant to paragraph 7(a), a person in custody should be allowed to speak on the telephone to his solicitor or to his friends provided that no hindrance was reasonably likely to be caused to the process of investigation or to the administration of justice.

(d) Royal Ulster Constabulary Code

30 . The police code applicable at the relevant time provided that:

“ Police pursuing inquiries involving children and young persons must bear in mind that where at all possible children and young persons should be interviewed in the presence of a parent/guardian or other adult friend, and that the venue selected for the interview should not be one which could be calculated to intimidate, unduly embarrass or frighten the person interviewed.”

3. Cadder v. HM Advocate [2010] UKSC 43

31 . In HM Advocate v McLean [2009] HCJAC 97, 2010 SLT 73 the High Court of Justiciary (sitting with seven judges) had held, notwithstanding the decision of the Grand Chamber in Salduz v. Turkey [GC], no. 36391/02, ECHR 2008 , that it was not a breach of Article 6 § 1 of the Convention read in conjunction with Article 6 § 3(c) for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor , since the guarantees otherwise available under the Scottish system were sufficient to avoid the risk of any unfairness.

32 . However, in Cadder the Supreme Court unanimously found that McLean had been incorrectly decided as the High Court of Justiciary had erred in its interpretation of Salduz. The Grand Chamber ’ s judgment was to be understood as laying down two statements of principle: that access to a lawyer should be provided as from the first interrogation of a suspect; and that the rights of the defence would be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer were used for a conviction. There was room for a certain flexibility in the application of these requirements but they did not permit a systematic departure from it.

33 . Furthermore, the Supreme Court did not accept that the guarantees otherwise available under the Scottish system were sufficient to secure a fair trial. Those guarantees were commendable but were, in truth, incapable of removing the disadvantage that a detainee would suffer if, not having access to a solicitor for advice before he was questioned by police, he made incriminating admissions or said something which enabled the police to obtain incriminating evidence from other sources which was then used against him at his trial.

34 . That being said, the Supreme Court indicated that where incriminating statements made during police interrogation without access to a lawyer were used for a conviction, it would only be appropriate to quash that conviction if it was clear that there was insufficient evidence for it without the evidence of the police interview, or taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict had they not had that evidence before them.

35 . Finally, the Supreme Court held that, in the interests of legal certainty, the ruling should not permit the re ‑ opening of closed cases, but rather should only apply to those cases which had not yet gone to trial, to cases where the trial was still in progress, and to appeals that had been brought timeously. For all closed cases it was a matter for the Scottish Criminal Cases Review Commission to decide whether the cases should be referred back to the Appeal Court and for that court to decide what course it ought to take if a reference were to be made to it by the Commission.

COMPLAINT

36 . The applicants complain that their lack of access to a solicitor during the police interviews violated Article 6 § 3(c) of the Convention in conjunction with Article 6 § 1.

THE LAW

37 . Article 6 of the Convention provides as relevant:

“1. In the determination 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.

3. Everyone charged with a criminal offence has the following minimum rights:

(c) 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 when the interests of justice so require; ...”

A. The parties ’ submissions

38 . The Government submitted that the applicants ’ complaint should be declared inadmissible pursuant to Article 35 § 1 of the Convention since the applicants had failed to exhaust domestic remedies and/or had lodged the complaint outside of the period of six months from the date of the final domestic decision.

39 . In particular, the Government noted that at trial neither applicant had challenged the admission of the statements made during police interview. Moreover, neither applicant had appealed against conviction on this ground or on any other. Insofar as the applicants sought to rely on the proceedings before the Court of Appeal in 2011 and the subsequent application for leave to appeal to the Supreme Court, the Government noted that Convention arguments could only be raised in respect of acts predating the coming into force of the Human Rights Act 1998 where they concerned proceedings brought by or at the instigation of a public authority, and in R. v. Kansal (No. 2) [2002] 2 A.C. 69 the House of Lords had specifically rejected the argument that references made to the Court of Appeal by the CCRC and appeals from decisions made on those references fell into this category. The Government therefore submitted that as the most recent Court of Appeal proceedings were legally incapable of determining Convention arguments they could not be considered an effective remedy for the purpose of engaging the jurisdiction of the Court.

40 . The applicants, however, submitted that the reference proceedings had offered them an effective and adequate remedy which they had properly exhausted. Pursuant to section 10 of the Criminal Appeal Act 1995, a reference to the Court of Appeal from the CCRC was to be treated for all purposes as an appeal against the conviction (see paragraph 24 above). Furthermore, in the appeal to the Court of Appeal the applicants had challenged the admissibility and/or reliability of the statements made during police interview (in other words, they had raised their Convention arguments in substance), and the court had the power to quash their convictions if it considered them to be unsafe. The same power was available to the Supreme Court, from which permission to appeal was thereafter unsuccessfully sought.

B. The Court ’ s assessment

1. General principles

41 . It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. States are therefore dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system, and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to make normal use of remedies which are available and sufficient in respect of their Convention grievances (see, among many authorities, Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others , §§ 70-71, 25 March 2014 and Akdivar and Others v. Turkey , 16 September 1996, §§ 65-66, Reports 1996 ‑ IV).

43 . There is, however, no obligation to have recourse to remedies which are inadequate or ineffective. To be effective, a remedy must be capable of remedying directly the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary , no. 47940/99, § 30, 20 July 2004, and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar and Others , cited above, § 71, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009).

44 . The requirements contained in Article 35 § 1 concerning the exhaustion of domestic remedies and the six-month period are closely interrelated (see Galstyan v. Armenia , no. 26986/03, § 39, 15 November 2007 and Williams v. the United Kingdom (dec.) no. 32567/06, 17 February 2009). Thus where no effective remedy is available to an applicant, the time-limit expires six months after the date of the acts or measures about which he complains, or after the date of knowledge of that act or its effect or prejudice on the applicant (see Younger v. the United Kingdom (dec.), no. 57420/00, ECHR 2003-I and Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009 ‑ ...). The pursuit of remedies which do not satisfy the requirements of Article 35 § 1 will not be considered by the Court for the purposes of establishing the date of the “ final decision ” or calculating the starting point for the running of the six ‑ month rule (see Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002 and Sapeyan v. Armenia , no. 35738/03, § 21, 13 January 2009).

45 . The six-month rule stipulated in Article 35 § 1 is intended to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time. It protects the authorities and other persons concerned from uncertainty for a prolonged period of time. Finally, it ensures that, insofar as possible, matters are examined while they are still fresh, before the passage of time makes it difficult to ascertain the pertinent facts and renders a fair examination of the question at issue almost impossible (see Tucka v. the United Kingdom (No. 1) (dec.), no. 34586/10, § 13, 18 January 2011).

2. Application of the general principles to the present case

46 . In a number of cases the Court has had occasion to consider the role that applications to the CCRC – and any resulting referrals to the Court of Appeal – play in criminal proceedings. In Reilly v. the United Kingdom (dec.), no. 53731/00, 26 June 2003 the Court noted that it did not generally regard an application to the CCRC as part of the normal process of exhaustion of domestic remedies as its procedure offered “an exceptional and non-judicial review of purported miscarriages of justice albeit with the possibility of subsequent referral to the Court of Appeal”. Similarly, in Tucka (cited above) it found that a request to the CCRC for a referral to the Court of Appeal would not normally constitute an effective remedy since no time limit applied to an application to the CCRC, and in principle there was no limit on the number of CCRC applications an individual might make in respect of conviction or sentence (although any re-application would have to raise some important new evidence or legal argument that was not raised in the earlier application(s) and was not raised at trial or on appeal).

47 . Nevertheless, where the CCRC has made a referral to the Court of Appeal, and the subsequent proceedings before that court addressed, either explicitly or in substance, the applicants ’ Convention complaints, the Court has preferred to dispose of those complaints on the merits instead of declaring them inadmissible for failure to comply with the six-month time ‑ limit (see, for example, Adetoro v. the United Kingdom , no. 46834/06 , 20 April 2010, Thomas v. the United Kingdom (dec.), no. 19354/02, 10 May 2005, Boyle and Ford v. the United Kingdom (dec.), nos. 29949/07 and 33213/07 and Adams v. the United Kingdom (dec.), no. 70601/11, 12 November 2013).

48 . Furthermore, where the Court has found a violation of Article 6 of the Convention, the Committee of Ministers has frequently accepted that a review by the CCRC was an adequate individual measure to put an end to the violation and erase its consequences (see, for example, Resolution CM/ResDH(2011)289 in respect of the judgment in Edwards and Lewis v. the United Kingdom [GC], nos. 39647/98 and 40461/98, ECHR 2004 X). In fact, in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, § 315, 13 September 2016) the Court itself found that the making of an application to the CCRC would amount to adequate just satisfaction in respect of the violation of the fourth applicant ’ s Article 6 rights.

49 . In view of the aforementioned case-law, and the fact that, following a referral by the CCRC, the proceedings before the Court of Appeal are to be treated for all purposes as an appeal by the applicant against conviction, the Court would not exclude the possibility that reference proceedings may constitute an effective domestic remedy within the meaning of Article 35 § 1 of the Convention , in spite of their relatively “exceptional” nature.

50 . That being said, the Court cannot ignore the fact that even though the national courts retained a discretion to exclude otherwise admissible evidence (see paragraph 26 above), in the present case neither applicant challenged the admission of his statements in evidence during the course of the criminal trial and, in fact, the second applicant pleaded “guilty” on a number of counts. Furthermore, neither applicant sought leave to appeal against his conviction on any ground. Instead, they waited until more than thirty years had elapsed since their conviction before asking the CCRC to refer their cases to the Court of Appeal.

51 . As can be seen from the general principles set out above, Article 35 § 1 of the Convention requires that applicants make “normal” use of remedies before the “appropriate domestic body” (see paragraphs 41-42) in order to prevent a breach of the Convention and remedy directly the impugned state of affairs (see paragraphs 42-43). In the present case, the Court considers that “normal” use of domestic remedies would have entailed a challenge to the admission of the statements during the trial and a subsequent appeal against conviction. Had these proceedings been unsuccessful, it would have been open to the applicants to have then lodged a complaint with this Court. If the applicants had pursued these remedies at the time of their conviction, and had they been successful either before the Court of Appeal or before this Court, the safety of their conviction would have been revisited at a time when they were still serving the sentences of imprisonment about which they now complain. Such a challenge would therefore have been capable of remedying directly the impugned state of affairs.

52 . It is true that in view of the domestic law in force in the 1970s, any challenge by the applicants to the admission of the statements or to the safety of their conviction at that time may have had limited prospects of success. By contrast, following the judgment of the Grand Chamber in Salduz (cited above) and the resulting developments in domestic law, at the time the applicants applied to the CCRC for a referral their prospects of success had significantly improved. However, the Court does not consider that the applicants can now rely on the state of domestic law in 1977 as a reason for failing to exhaust the appropriate domestic remedies, when that law reflected the standards applicable at the time – standards which would not be impugned by this Court for a number of decades. To put it another way, the applicants cannot rely on the referral of their cases to the Court of Appeal in 2012 in order to have the fairness of their trial in 1977 evaluated by this Court in accordance with its current case-law. To find otherwise would undermine the intention of the six-month rule, which is to promote security of the law and to ensure that cases raising issues under the Convention are dealt with within a reasonable time (see paragraph 45 above).

53 . Accordingly, the complaint must be rejected pursuant to Article 35 § 1 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 November 2016 .

             Renata Degener Mirjana Lazarova Trajkovska Deputy Registrar President