THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 57836/00 by Spencer James MELLORS against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 19 June 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced on 12 January 2000 and registered on 5 June 2000,

Having deliberated, decides as follows:

THE FACTS

The applicant, Spencer James Mellors, is a United Kingdom national , born in 1964 and serving a prison sentence in HM Prison Craiginches, Aberdeen. H e is represented before the Court by Mr Carroll, a lawyer practising in Glasgow.

A. The circumstances of the case

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

The applicant was arrested on a charge of attempted murder arising out of a high speed car chase which occurred in the early hours of 29 October 1995. He was questioned on arrest also as a suspect in a separate incident of rape and assault which also occurred during the early morning of 29 October 1995. In this incident, a prostitute M. had been taken to the house occupied by the applicant - there she had inter alia been assaulted, a cord tied round her neck, repeatedly raped and she been bitten on the hand and face.

On 30 November 1995, charges were added of rape and assault on M. and the applicant continued to be remanded in custody. When he refused to co-operate in providing samples for DNA analysis and teeth impressions, the prosecutor obtained warrants from the Sheriff on 30 November 1995. Though the applicant was taken to a police station for the warrants to be executed, the medical practitioners refused to take the samples. The applicant denied that he resisted in any way. On 23 February 1996, he was charged with attempting to defeat the ends of justice on the ground that he had repeatedly resisted, obstructed, hindered and frustrated the execution of the warrants by the doctors. He was also charged with obstructing two police officers in the execution of their duty at that time, inter alia , by struggling, attempting to bite and spitting.

On 17 April 1996, the prosecutor made further application to the Sheriff, in the absence of the applicant's lawyer, alleging that the applicant was repeatedly obstructing attempts to take samples and obtained a further warrant to remove hair samples. On the same day, police officers wearing full body armour removed the applicant from his cell carrying him in a position of a “figure of a four” with his hands handcuffed behind his back. Hair samples were removed at a police station. The applicant's application to challenge the charge of attempting to defeat the ends of justice by his resistance to the execution of the warrants was made by Bill of Suspension to the High Court. The Bill was refused and the court delivered its opinion on 25 April 1996. His challenge to the warrant to take the hair samples and for the samples to be destroyed on the ground that the warrant was obtained by irregularity, also by way of Bill of Suspension, was dismissed by the High Court on 21 June 1996. The High Court held that though prior notice of the application for the warrant was preferable, it had not been appropriate in this case considering the applicant's previous behaviour and that non-disclosure had been necessary for the successful implementation of the warrant.

In preparing for the trial on the charges of rape and assault, the applicant's legal representatives had identified a witness W. who gave a statement to them with a description of M.'s assailant which did not match the applicant. M. herself in a statement given before the trial had given a description of the attacker which did not match the applicant. In an identification parade, M. picked out a 'stand in', not the applicant.

When the indictment was served, W.'s name appeared on the list of witnesses for the prosecution. He was designated as “care of the police”, which indicated that any contact with him had to be made through the police.

On 24 June 1996, before the trial began in the High Court, there was a meeting between the Advocate Depute (the prosecutor) and defence counsel. The Advocate Depute told the defence that the witness W. was not in the building. There was a discussion as to whether he was required to attend as a witness. The defence informed the Advocate Depute that W. was considered an essential witness for the defence. The Advocate Depute undertook to have W. available as a witness when the defence required to call him. He did not mention that W. had not in fact been cited as a witness by the prosecution (i.e. a summons to appear had not been served on him, in the absence of which a warrant could not be issued to require his presence at the trial).

When M. appeared to give evidence, she carried out a 'dock identification” of the applicant, namely, she pointed to the applicant in the court room as her assailant.

When the defence called for W. to appear as a witness, the court usher reported that W. was not present. At the close of the defence evidence, the Advocate Depute informed the court that the police had been trying to find W. for several days but had been unsuccessful. In fact, junior counsel for the Advocate Depute who was present in the court room knew that this was not correct. She had been called to the telephone by the police who had located W.. They informed her that W. refused to come to the trial. She advised the police that they should let W. go. She had written a note of this information which she later claimed to have passed to the Advocate Depute. He later denied that he had been given or made aware of this information. In the light of what was said in court, defence counsel ended his case and the trial ended shortly afterwards.

On 2 July 1996, the applicant was convicted, by a majority verdict, of all charges and sentenced to 9 years 9 months' imprisonment.

The applicant lodged an appeal with the High Court sitting as an appeal court. His lawyers became aware that the prosecution had never cited W. as a witness, which was confirmed by the Procurator Fiscal.

Leave to appeal had been granted to the applicant on one ground of appeal relating to the direction which the trial judge had given on his defence of alibi.

On 13 January 1998, the appeal court granted leave to appeal on an additional ground relating to what was said to be additional evidence from W. who was not heard at trial.

The applicant claims that delays occurred in having his appeal heard due to changes in representation for the prosecution. The Advocate Depute at the trial had meanwhile become a judge. The Home Advocate Depute took over the case and explained to the appeal court that some confusion had arisen over the witness W. The trial Advocate Depute had stated that the defence had been informed from the beginning that W. had not been cited while his junior recalled that the defence had been told that W. had not been present but, since the defence required, him the police would have him made available. The Home Advocate Depute stated that junior counsel's recollection was likely to be more accurate. Evidence was also before the court that the police had been looking for W. for some days before the defence called him and that they had found him. Junior counsel had remained silent when the Advocate Depute erroneously told the court that they could not find him, in deference to his position.

The appeal court called upon the counsel for the applicant and the Crown to draw up a list of witnesses whose evidence should be heard to determine whether a miscarriage of justice had occurred. The applicant's list included inter alia the trial Advocate Depute and junior counsel with a view to questioning them about what they did and said about the issues at the trial. The applicant considered that the trial Advocate Depute had lied, that junior counsel's silence could be equated to lying by omission and that the trial Advocate Depute had perverted the course of justice. The Crown produced its own list with W. and police officers who had taken a statement from him.

The Crown objected to the applicant's list and made representations in private to the Lord Justice General. The applicant's solicitors were notified afterwards that the Lord Justice General had restricted the list to those mentioned by the Crown. The applicant no longer wished to have W. called as a witness after the background to his non-appearance at trial became known and as the passage of time raised a legitimate fear that the witness would no longer be able to recall the events due to long term drug abuse.

By interlocutor of 13 February 1998, Lord Philip was designated as the judge to hear the evidence. On 16 October 1998, W. was late to court as the police had to take him for a methadone prescription on the way. In his evidence, W.'s recollections of his movements over the relevant time period were inconsistent and vague. He appeared to claim that he had last seen M. before midnight getting into a silver car, contradicting earlier accounts where he had stated that he had seen her going towards a taxi rank with a man who did not look like the applicant and at a later time closer to the time of the assault.

In his note of 20 November 1998, Lord Philip gave his view of the credibility and reliability of W. :

“When giving his evidence appeared to be affected by a drug or drugs. He gave evidence slowly, deliberately and sometime inaudibly. His speech was sometimes slurred. His demeanour is best described by the colloquial expression 'spaced out'. He said that he had formerly been a regular and heavy drug user and that as a result his memory was in general affected. He asserted that he no longer took drugs, but this was at odds with the impression created by his demeanour. He said that at the time of the events about which he was asked he was under the influence of drugs and his memory was unclear on a number of things.

Against this background I find myself unable to categorize as a credible or reliable witness. While he claimed that in general terms his memory of the time of the crime was very poor, he was firm in some parts of his evidence (for example at page 32 C) and vague and evasive at others. My impression was that he had made up his mind in advance what his evidence was to be on a limited number of points and was not prepared to be drawn on others. I could not be satisfied that his evidence was truthful.”

The High Court heard submissions from the Home Advocate Depute and the applicant's counsel.

On 22 July 1999, the judgment of the court was given by the Lord Justice General, Lord Rodger. It dismissed the applicant's appeal.

In his judgment, Lord Rodger noted that the applicant's defence had accepted that M. had been taken to his house where she had been assaulted and raped but that he had claimed that it was not him. He had been elsewhere and relied on alibi evidence that he had been involved in a high speed car chase with the police at the time. He alleged that it must have been a cousin of his who had been involved in the attack on M. M. however had identified the applicant at the trial and said that he had a scar, which was not contested. Though she had not picked out the applicant in the identification parade and had given a description that did not match the applicant in some respects, there was powerful support for her identification in the forensic evidence - the semen samples taken by swab and from the bed were 37,900 times more likely to be the applicant than an unrelated person and 7,400 times more likely to be him than any cousin. A piece of paper was found in the applicant's house with M.'s name and address on it. M.'s evidence had been that she had met her assailant at about 4.00 a.m. roughly - she did not know exactly - and that she had seen the time 4.45 a.m. on a clock in the bedroom of the house where she had been taken. She had no real recollection of the time when she left the house, though stated that it was about 2.30 to 3.00 p.m.. The taxi records showed that she was in fact picked up at about 1.36 p.m. Lord Rodger commented that given her ordeal it was not surprising that her evidence about timing was not accurate.

Lord Rodger recalled that the defence position was that the applicant had returned to the house after the car chase but had left again by 5.33 a.m. when a taxi was recorded as calling at the house. He had then stayed at a friend's house until he went to a public house at about 11.50 a.m. Two witnesses had given evidence in support of this alibi at the public house. The prosecution had accepted that at some point between 4.00 and 5.00 a.m. the applicant had been in his car being chased by the police, that he had gone home and remained there until he left by taxi at 5.33 am. The prosecution had invited the jury to find however that the incident with M. had begun after this time and that he had brought M. back to his house then.

Lord Rodger observed that it was important for the jury to consider the matter of timing and in particular whether they accepted that M. must have been wrong when she said that the applicant had approached her at about 4 a.m. He reviewed the judge's direction on the alibi point and found that the judge had sufficiently drawn to the jury's attention the evidence supporting the applicant's evidence that he was in the public house before the taxi came to pick up M. and the discrepancies in M.'s evidence on timing, properly leaving it to the jury to decide how these mattered in the overall context of the evidence. The ground of appeal relating to this aspect was therefore rejected.

As regards W.'s evidence, Lord Rodger noted that the Advocate Depute had been aware on the first morning of the trial that the police had been unable to find and cite W. though instructed by the Crown to do so. Information was passed to the defence about this, though recollections of what was said varied - in particular whether the defence had been informed that W. had not been cited at all. It was agreed however that the police would continue to make efforts to find him and make him available, and that the trial should nonetheless continue. At the moment when the defence sought to call W. at trial, Ms D., the junior counsel for the Advocate Depute, had been informed by the police that W. had been found. As he had not been cited, there was no warrant for his attendance and he could not be forced to come to court. Ms D. told the police to ask him to attend court voluntarily and, when he declined, he was allowed by the police to go on his way. Ms D. said that she passed a note with this information to the Advocate Depute. The latter however had said that he had no recollection of receiving the note. The defence were therefore not informed that W. had been found and closed the case without his evidence having been heard.

“It is important to note that, although the account of the circumstances relating to proceeds largely on the narrative given to this court by the Advocate Depute and on the supporting police documents, Mr Burns on behalf of the did not challenge that account in any of its essentials. In particular he did not challenge the Advocate Depute's conclusion that what happened at the trial happened because of a failure of communication between the Crown junior and the trial Advocate Depute about having been contacted on the morning of 1 July. It is accordingly on the narrative which we have outlined that we must consider the remaining grounds of appeal; ...”

He concluded :

“...first, that the defence agreed to proceed with the trial knowing that was not present to be called as a witness and might not be present before the end of the trial; secondly, the defence did so only on the basis of an undertaking by the Crown that efforts would continue to be made to try to locate and to make him available; thirdly, on 1 July the police found and informed the Crown; fourthly, due to a breakdown in communication within the Crown team the Crown failed to inform the defence that he had been located; fifthly, the defence were thereby denied the opportunity, in these new circumstances, of asking for an adjournment of the trial with a view to having cited and brought to give evidence. We are satisfied that the failure by the Crown to inform the defence that had been located amounted to a serious flaw in the conduct of the case... The effect of that flaw in the proceedings on the substance of the case can only be judged, however, by ascertaining the nature and extent of any evidence which might have given, if called as a witness, and which might therefore have been available to the jury, along with all the other evidence in the case. It was for this reason that the court ordered his evidence to be heard by Lord Philip...

The agents attached ...two precognitions of , one of which was taken before the trial. On the basis of that precognition, the original argument on behalf of the was, that if called as a witness, would have said that some time during the night he saw going away with a man ... is recorded as saying that:

'I'm convinced they've got the wrong guy for this. I know . I saw him at court one of the times when I was there. He's got a very distinctive appearance... He's nothing like the man that went away with that night. gave a description to me of the man having black hair that was going grey and with a wee scar just along the cheek bone. has got a great big scar going right down and then another one going right across. is also very heavily built and very broad and the guy I saw was much more thinly built.'

Had that been the substance of 's evidence then, leaving aside any question of credibility or reliability, it would have been material and relevant to the issues before the jury since evidence to the jury was that the man who approached her and with whom she got into the taxi was the man who raped her and would have been saying that the man in question was not .

At the hearing however, 's position was completely different. The substance can be summarised this way. At the relevant time, he was 'high on drugs, really bad'. When he last saw she was getting into an ordinary car, not a taxi. He was positive that it was not a taxi... She had approached the car and the front seat passenger's window had been opened. The person in the car had spoken through the window. had not seen speaking to a man when walking down the street. After going away in the car, had not returned until the following day. When she had been away for some time, walked about the area looking for her. This would have been between midnight and one o'clock in the morning. It followed that he had last seen , getting into the car, before midnight. He was positive that it had not been at about four o'clock since the police did not allow prostitutes to work beyond four o'clock and the complainer would have stopped working before that time. She might work up until two or half past two, but never as far on as four o'clock. ...

Mr Burns submitted that the court should bear in mind that 's evidence had been taken on 16 October 1998, three years after the events, whereas if cited, he would have given evidence at the trial at the beginning of July 1996, less than nine months after the incident. He was a drug abuser and this clearly affected his recollection, but it might well be that his recollection would have been better in July 1996 than in October 1998. The court should not therefore assume that his evidence at trial would have been the same as that taken before Lord Philip. Furthermore, ...'s evidence was actually material since it cast further doubt on the Crown position that the incident began when the called a taxi at 5.33 a.m. and went to the Anderston area and approached . According to , would not have been working at that time and in any event he had last seen her going away in a car before midnight.”

Lord Rodger went on to recall the impression made on Lord Philip by W. in giving his evidence, in particular his opinion that he was not a credible or reliable witness. He was not persuaded that he would have been a credible or reliable witness if he had given evidence before a jury, and the idea that he would have give evidence along the lines of his earlier statements was based on nothing but speculation. Applying the test as to whether W.'s evidence before Lord Philip would have led a reasonable jury to a different verdict, he concluded that it would not. At most it would have added another strand of evidence concerning the timing when went away with her assailant. The strength of the Crown case however had always lain on the evidence that M. had identified the applicant in court, that he had a scar as described, that the forensic evidence showed that she had been at his house, that there was a piece of paper with her name on it in his house and the DNA evidence pointed overwhelmingly to the applicant as the person who had intercourse with M. Whatever might be the exact time at which the incident started, that was a body of evidence which pointed clearly to the applicant.

“In response to that powerful case based to a large extent on scientific evidence, the could do no more than advance the line that the attack must have been carried out by a male relation who was supposedly living in the house at the same time but whose precise identity he was unable to give and who, of course, was not called as a witness. Given that the majority of the jury accepted the powerful case for the Crown, notwithstanding the obvious confusion of as to the precise time when the incident began, we see no reason to suppose that the introduction of 's evidence on timing would have been of significance...

.. For all these reasons we have reached the conclusion that, notwithstanding the irregularity which occurred in the proceedings, there was no miscarriage of justice. ... The appeal as a whole must therefore be refused.”

COMPLAINTS

1. The applicant complains under Article 6 § 1 of the Convention that he was denied representation in the hearing on the application for the warrant for hair samples on 17 April 1996.

2. The applicant complains under Article 3 of the Convention of the manner in which the warrant for hair samples was executed, in particular in that he was trussed up and carried like an animal.

3. The applicant was convicted on charges arising out of his refusal to give oral consent to the execution of the “blood/saliva” warrant and the “teeth impression” warrant, which he alleges had not previously constituted a criminal offence known to the law of Scotland. He invokes Article 7 § 1 of the Convention.

4. The applicant complains under Article 6 § 1 of the Convention that he was denied the right to call and examine witnesses on the same terms and conditions as the prosecutor. The prosecutor had control of the witnesses and his actions prevented the applicant leading the important evidence of W. This evidence was of relevance to the issues and could have swayed the verdict, as shown by the fact there was majority decision by the jury. By the time W. did give evidence years later, his evidence was degraded by the effects of drug abuse and assessed long after the events by judges who had no direct experience of the witness or of the events of the trial.

5. The applicant complains of the involvement of Lord Rodger as the judge chairing the appeal court. He had been the Lord Advocate until 14 November 1996, covering the time of the applicant's arrest and first appearance in court. The proceedings would have been reported to the Crown Office for Crown counsel's opinion. Lord Rodger as Lord Advocate would have worked closely with the Home Advocate Depute who was the trial Depute and whose actions concerning the witness W. were under critical examination in the appeal. Lord Rodger also would have been influential in the appointment of the trial depute as a judge while the appeal was pending. The other two judges were also replaced during the appeal and the two later judges who joined Lord Rodger in his decision had not heard or made comment on the earlier submissions and disclosures concerning the role of the trial depute at trial. Lord Rodger's judgment erred in stating (on page 11) that the trial depute had not addressed the court or defence concerning the reasons for W.'s non-appearance. Lord Rodger had also erred in stating that the defence had accepted the Crown's version of what had occurred during the trial concerning W. The applicant was therefore deprived of a trial before an impartial tribunal contrary to Article 6 § 1 of the Convention.

6. The applicant finally complains that his trial was not determined within a reasonable time as required by Article 6 § 1 of the Convention.

THE LAW

1. The applicant makes complaints arising out of the obtaining and execution of a warrant to take a hair sample for the purposes of DNA testing. He invokes Articles 3 (prohibition of torture and ill-treatment), 6 (right to a fair trial) and 7 (prohibition of retrospective criminal offences) of the Convention.

The Court recalls however that these matters formed the subject of an application made by the applicant to the European Commission of Human Rights, no. 34723/97, which was rejected as inadmissible on 21 May 1998.

Article 35 § 2 (b) of the Convention requires the Court to reject any application which is substantially the same as a matter already submitted to a procedure of international investigation and which contains no relevant, new information.

The applicant submits that the Commission's decision was in effect wrong and adds further argument to explain his contention that the procedure was inhuman, degrading and unlawful. The only relevant new fact that appears from his submissions is that the appeal proceedings relating to the trial at which the DNA evidence was used have now terminated. It does not appear however that the applicant is challenging the way in which this evidence was used in his trial or that he is alleging that this rendered the proceedings unfair. Insofar as he alleges that the warrant was improperly obtained and executed, his challenge against these aspects was dismissed by the High Court on 21 June 1996, which information was taken into account by the Commission when it reached its decision of inadmissibility.

The Court finds that this part of the application raises no relevant, new information and that it must be rejected pursuant to Article 35 §§ 2 (b) and 4 of the Convention.

2. The applicant also complains that he did not receive a fair trial in respect of the charges of rape and assault since the prosecution failed to disclose the availability of an important defence witness and the appeal court lacked impartiality. He also complains that the proceedings did not terminate within a reasonable time. He invokes Article 6 of the Convention, which provides insofar as relevant:

“1. 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. ...

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 Court finds that issues arise meriting communication to the respondent Government. It therefore adjourns this part of the application.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant's complaints concerning his trial for assault and rape;

DECLARES INADMISSIBLE the remainder of the application.

             S. Dollé     J.-P. Costa

Registrar     President