FOURTH SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 14399/02 by Rupert John MASSEY against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 January 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 25 March 2002,

Having regard to the partial decision of 8 April 2003,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Rupert Massey, is a United Kingdom national, who was born in November 1945 and is currently detained in HMP Acklington in Northumberland.

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

In August 1995, the police received a telephone call from GL alleging that the applicant had sexually abused him from December 1981 until December 1983. On 18 September 1995, GL informed the police that he had decided not to make a statement of complaint but on 29 January 1996 stated that he now wished to pursue the matter. On 2 February 1996, the police told GL that there would be a long delay in taking his statement due to other more pressing commitments. On 26 September 1996, the police started to take GL’s statement, a process which continued on 18 and 19 December 1996 and several dates at the beginning of January 1997.

On 22 April 1996, DM telephoned the police and stated that he too had been sexually abused by the applicant from April 1973 until April 1978. DM informed the police that GL had contacted him and asked if he knew anyone else who had been sexually abused by the applicant and DM had answered that he had been. The police told DM that there would be a long delay before his statement could be taken. The police contacted DM again on 25 January 1997. His statement was taken over several days and completed on 4 February 1997. At a police interview on 25 January 1997, DM stated that he believed that the applicant had abused four other people including his brother, AM.

On 20 March 1997, the applicant was arrested on suspicion of indecent assaults on GL and DM. He was interviewed by the police on 21 March 1997 and was subsequently released on police bail.

On 25 January 1997, the police approached AM and on 4 June 1997, he made a statement asserting that he had been abused by the applicant from November 1971 until November 1972.

On 2 July 1997, the police interviewed the applicant regarding the allegations made by AM. In October 1997, the police fingerprinted and took DNA swabs from the applicant. On 5 December 1997, the applicant was interviewed with respect to allegations of indecent assault made by a fourth person, MC, and was then charged with a number of counts of indecent assault. On 7 January 1998, MC withdrew his complaint.

From January to March 1998, the applicant made three remand appearances at the Magistrates’ Court. He requested a full committal hearing with consideration of the evidence. Shortly before the date set for the committal, it appeared that AM had left to work abroad. On 18 and 19 May 1998, the Magistrates’ Court refused the applicant’s applications to discontinue the proceedings on the grounds of delay and adjourned the committal to allow AM, who was working abroad, to return and give evidence.

On 4 September 1998, the applicant was committed for trial on 20 counts relating to three different victims. On 18 December 1998, the trial was fixed for 14 April 1999. However, on 30 March 1999, the trial was delayed because the applicant was suffering from depression and memory loss. The applicant states that the judge ordered a date to be fixed for trial from 1 June 1999 as he was responding well to medication and fit to continue. In June 1999, the Crown Court refused the applicant’s applications to stay the proceedings as an abuse of process or to sever the proceedings so that the applicant would be tried separately in respect of each complainant.

At the beginning of the trial, on 22 November 1999, the trial judge refused another application by the applicant for the proceedings to be stayed as an abuse of process. The applicant had argued that the trial judge should grant a stay on the grounds that the delay in the complainants coming forward prejudiced his defence since it was not possible to investigate the allegations or approach now deceased witnesses, and that the delay in the conduct of the police investigation allowed the contamination of evidence by contact between GL and DM. The judge considered that the delay in the complainants coming forward did not justify a stay of proceedings. He further deemed that, although the police delay in taking statements was “quite inadequate”, the applicant had not shown that any improper or negligent act or omission of the police had permitted contact between GL and DM or that anything had occurred which contaminated their evidence. The judge considered that the prosecution had discharged any onus upon them to establish that a fair trial was possible.

On 7 December 1999, the applicant was convicted of 16 counts of indecent assault and acquitted of four counts of buggery. He was sentenced to a total of six years’ imprisonment and was made subject to the registration requirements of the Sex Offenders Act 1997 for an indefinite period.

The applicant sought leave to appeal against conviction and sentence on various grounds including that the trial judge should have stayed the proceedings as an abuse of process and that the judge wrongly directed the jury on the question of similar fact evidence. On 3 April 2000, a single judge of the Court of Appeal refused to grant leave to appeal against conviction, finding inter alia that the trial judge was entitled to conclude that the proceedings did not constitute an abuse of process. The single judge also refused leave to appeal against sentence.

On 13 December 2000, the full Court of Appeal subsequently granted leave to appeal against conviction, inter alia , on the ground that the trial judge should have granted the applications to stay the proceedings as an abuse of process.

On 20 December 2001, the Court of Appeal refused a renewed application for leave to appeal against sentence and dismissed the applicant’s appeal against conviction. As regarded the applicant’s complaints of delay in the police investigation, which was alleged to have allowed the contamination of the evidence of GL and DM and created the risk of collusion between all three complainants, the Court of Appeal concluded that a stay of proceedings on the grounds of delay could only be granted in exceptional circumstances and only if the defendant showed that a fair trial was impossible. The court considered that Article 6 of the Convention was inapplicable because the applicant had been convicted before the Human Rights Act 1998 came into force but added that, even if Article 6 applied, it would not affect their assessment on the facts. It considered that on the limited documentary material before him, the judge could not have come to any other conclusion than that a fair trial was possible. The court further deemed that there was no basis to conclude that the judge was wrong to refuse the application for a stay made at the end of the prosecution case:

“Unsatisfactory though the police delay was, the police had, on GL’s own evidence, advised him not to talk to others involved. He deliberately ignored this warning, including during the period when he was preparing his statement. It was not the police delay, but GL’s ignoring of the police warning that led to discussion between potential witnesses. Even if the two witnesses’ statements had been taken over the same period, such ignoring of police advice could not be prevented. DM was also advised not to talk to others. Even assuming that the police failed to give appropriate or sufficient warnings, it was not shown that the evidence given by Crown witnesses was thereby contaminated, in the sense of being affected or changed, whether deliberately or inadvertently, by the contacts which took place between GL and DM.”

COMPLAINTS

The applicant complains under Article 6 of the Convention that the proceedings against him were not concluded within a reasonable time.

THE LAW

The applicant complains under Article 6 § 1 of the Convention about delay in the criminal proceedings.

Article 6 § 1 provides as relevant:

“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.”

The applicant’s remaining complaint in this application relates to the length of the criminal proceedings. He was arrested on 20 March 1997 and charged on 5 December 1997, while the appeal concluded only on 20 December 2001. According to the applicant, the length of the proceedings is in breach of the “reasonable time” requirement laid down in Article 6 § 1 of the Convention. The Government reject the allegation.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.

For these reasons, the Court unanimously

Declares the remainder of the application admissible, without prejudging the merits of the case.

Michael O’Boyle Matti Pellonpää Registrar President