THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 46290/99 by A.J.D. against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 23 November 1999 as a Chamber composed of

Mr J.-P. Costa, President , Sir Nicolas Bratza, Mr L. Loucaides, Mr P. KÅ«ris, Mr W. Fuhrmann, Mrs H.S. Greve, Mr K. Traja, judges ,

and Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 29 September 1998 by A.J.D. against the United Kingdom and registered on 22 July 1999 under file no. 46290/99;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in 1966 and detained in H.M. Prison Maidstone, Kent.

He is represented before the Court by Tasneem Osmani , a lawyer practising in at T. Osmani & Co., Wanstead, London .

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

A. Particular circumstances of the case

On 2 October 1996, at the Isleworth Crown Court, the applicant was convicted of being knowingly concerned in the fraudulent evasion of the prohibition or restriction on the importation of a Class A drug namely 1.6 kilograms of cocaine. The offence was contrary to section 170 (2) of the Customs and Excise Management Act 1979. The applicant was sentenced to 11.5 years' imprisonment. The applicant's co-accused Dickie Ndandaye (“ Ndandaye ”), also known as Mr Jones, pleaded guilty to the same charge and was sentenced to eight years' imprisonment.

Fact of the case against the applicant

On 29 April 1996 the applicant and Ndandaye arrived at London Heathrow airport on a flight from Rio de Janeiro via Amsterdam . British customs officers were looking out for them having been notified by Dutch customs officers that they had found cocaine in Ndandaye's bag. Ndandaye was stopped, questioned, but allowed to leave the customs hall. He was arrested getting into a taxi outside the terminal. His brown hold-all type bag contained 1.6 kg of cocaine. The applicant was arrested by customs officers after he had collected his own luggage. The applicant was searched and he was interviewed three times.

The first interview took place on 29 April 1996. The applicant was cautioned as follows:

“You do not have to say anything but it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.”

The interview ended after 2 minutes because the applicant requested legal advice. The following day he was interviewed for 25 minutes and after the caution read the following statement:

“I wish to make the following statement. I was born on 17 March 1966 and live at 9 Woodham Mews , W12 0HU . I travelled from London to Sao Paulo on a British Airways flight on Tuesday 16 April 1996 through to Wednesday 17 April.

I spent a period of time in Sao Paulo before travelling to Rio de Janeiro . I left Rio de Janeiro on a KLM flight on Sunday 28 April returning via Amsterdam to London on Monday 29 April. I travelled to and from Brazil using my own genuine passport and the personal details contained therein are true and accurate.

I have no knowledge of the importation of crack cocaine by any other person and have not knowingly been involved in such importation myself. My own knowledge on this matter is as a result of information given to me in private consultation with my solicitor. I am not willing to make any further comment at this time.”

The interviewing officers then asked the applicant a number of questions to which he replied “no comment”. The applicant was interviewed for a third time later that day for 15 minutes and gave “no comment” answers.

The prosecution alleged that Ndandaye was a courier and that the applicant was a minder. In this respect it was alleged the offence was a joint enterprise. The prosecution adduced evidence from Miss Deane, a travel agent, that on 16 April 1996 the applicant telephoned her to book a seat on a flight to Brazil and she told him that it would cost £600. Shortly after this the applicant arrived at the shop and gave her £1,200. The applicant stated he wanted to make a booking for a Mr. Jones ( Ndandaye ). She issued extra return tickets in the name of Mr. Jones. They did not in fact return on this flight but on a KLM flight.

The applicant gave evidence that he had been introduced to a person called Jones ( ie Ndandaye ) through a friend and that he himself was in the jewellery and car business. The purpose of the visit to Brazil was to buy gold from someone Ndandaye knew who sold it cheaply. The applicant did not pay for Ndandaye's ticket; he was given £700 by Ndandaye for that. Ndandaye told him that he did not need to take cash with him as payment could be made through his London bank account. They went to Sao Paulo but no real deal was struck because the friend was not willing to sell gold except for cash. They went on to Rio de Janeiro and Ndandaye asked the applicant to stay for an extra couple of days. Ndandaye then presented the applicant with a new return ticket to fly back with KLM two days later. The first time that the applicant had seen Ndandaye carrying the brown holdall was in Rio de Janeiro . The scales found in the applicant's possession were for weighing gold and he had borrowed them as his own scales were not of the right type.

The applicant answered all questions asked of him at trial. He said the reason that he had failed to account for certain details in interview was that he was advised by his lawyer to make a statement and then to answer “no comment”. The applicant sought to give evidence as to what advice he had received from his solicitor and the instructions he had given. However the judge ruled that such evidence was inadmissible on the grounds of hearsay and/or relevance.

The trial judge's summing up

The judge reminded the jury of the terms of the caution, the fact that the appellant was interviewed three times, the topics which were raised in interview, the “no comment” answers and the fact that he made a short statement in writing. The judge stated:

“The law is that you may draw inferences as you think proper from a failure to mention facts at the time. You do not have to hold it against him. It is for you to decide whether it is proper to do so. Failure to mention such facts at that time cannot on its own prove guilt. But, depending on the circumstances, you may hold that failure against him when deciding if he is guilty, that is take it into account as some additional support in the prosecution case. It is for you to decide whether it is fair to do so.

The says that he was advised to make the statement and then to answer “no comment” to all the questions. Advice had come from the legal representative or solicitor who was present with him. You will ask yourselves, members of the jury, why, if the answers which would have been given and have been given in evidence would have pointed to the innocence of the, he would have been advised not to answer questions in interview, or why he chose not to. A solicitor's advice not to answer questions does not prevent you from drawing such inferences as I have already directed that you may draw. It is a matter entirely for you.”

On 2 October 1996 the jury convicted the applicant by a unanimous verdict.

The appeal

Originally the applicant applied for leave to appeal against conviction and sentence on personally drafted grounds. His application was refused by a single judge. His renewed application to the full Court of Appeal was adjourned on 28 July 1998. The adjourned hearing took place with the assistance of Counsel on 3 April 1998.

The applicant's first ground of appeal was that as the inference of post interview fabrication by the applicant was in issue, evidence of what was said to the solicitor pre interview was potentially probative in rebuttal of such inference and thus relevant and admissible. The Court of Appeal agreed stating 'the trial judge should not have indicated an unwillingness to allow the evidence to be adduced'. The Court of Appeal therefore agreed in the interests of justice to allow the evidence to be adduced.

The applicant, giving evidence, told the Court of Appeal that the discussion with his solicitor lasted about 2 hours. He told the solicitor the whole story in accordance with what he later said at trial. The solicitor told him that he did not see anything which connected him with the crime. The solicitor advised the applicant to make a basic statement and to offer “no comment”. He did not think the applicant would ever be charged.

In its judgment of 3 April 1998, the Court of Appeal considered it crucial that the solicitor was not called by the applicant to give evidence at the appeal. It found that it was highly unlikely that the solicitor would have given the applicant the advice he claimed. It concluded that although the judge fell into error in excluding the evidence, having heard the evidence it was clear that it would not have materially advanced the defence case at trial. The applicant had not therefore been unduly prejudiced by its exclusion. As regards the applicant's second ground of appeal which concerned the manner in which the trial judge dealt with the “no comment” answers in interview in his summing up, the Court of Appeal accepted that there was some shortcoming in the summing up in that the judge did not direct the jury that they had to be satisfied that the prosecution had established a case to answer before they could draw an adverse inference from the applicant's failure to answer questions at interview. It was not necessary to do so but desirable. It was not enough to flaw the conviction.

On 19 May 1998, the Court of Appeal refused leave to the House of Lords. On 27 July 1998 the House of Lords refused leave to appeal.

B. Relevant domestic law and practice

Section 34 and Section 35 of the Criminal Justice and Public Order Act 1994 provide so far as is relevant:

“34. (1) Where in any proceedings against a person for an offence, evidence is given that the accused -

(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; ...

being a fact which in the circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, sub-section (2) applies.

(2) Where this sub-section applies -

(c) the court, in determining whether there is a case to answer; and

(d) the court or jury, in determining whether the accused is guilty of offence charged,

may draw inferences from the failure as appear proper”.

COMPLAINTS

The applicant complains of a violation of his right to a fair trial and public hearing by an independent and impartial tribunal under Article 6 § 1 of the Convention. He complains about the trial judge's refusal to allow the applicant to give evidence about the instructions to his solicitor, invoking Article 6 § 3 (c) of the Convention and submitting that the judge usurped the jury's function as a tribunal of fact in contravention of Article 6 § 1. He also complains that the Court of Appeal also usurped the jury's function by substituting its own finding of fact on the evidence which it allowed the applicant to give before it. The applicant states that the jury may have been convinced of his credibility and not found it necessary to have any more corroboration. The Court of Appeal therefore by its actions denied the applicant the right to have an independent and impartial tribunal determine the facts of his case contrary to Article 6 § 1 of the Convention.

THE LAW

The applicant complains that the judge prevented him from giving evidence in his own defence about the instructions he gave to his solicitor prior to interview and that the Court of Appeal usurped the jury's function by hearing the evidence and reaching its own findings on this issue. He invokes Article 6 § 1 and Article 6 § 3 (c) of the Convention.

Article 6 of the Convention provides so far as is 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:

...

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.”

The Court recalls that, as a general rule, it is for the national courts to assess the evidence before them as well as the relevance of the evidence which the accused seeks to adduce. The Court must however determine whether the proceedings considered as a whole, including the way in which prosecution and defence evidence was taken, were fair as required by Article 6 § 1 (see Barberà , Messegué and Jabardo v. Spain judgment, judgment of 6 December 1988, Series A no. 146, p. 31, § 68). In its Edwards v. the United Kingdom judgment of 16 December 1992 (Series A no. 247-B, § 34) the Court stated that in considering whether proceedings had been unfair:

“... the Court must consider the proceedings as a whole including the decision of the appellate court (see, amongst other authorities, the Helmers v. Sweden judgment of 29 October 1991, Series A no. 212, p. 15, § 31). Moreover it is not within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court's task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, inter alia , the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33)”.

The question of admissibility and appreciation of evidence is primarily therefore a matter for regulation under domestic law.

The Court recalls that in the present case the trial judge ruled that the applicant could not give evidence concerning the advice which he had received from his solicitor regarding his refusal to answer questions on arrest. The Court of Appeal found that the judge had erred in doing so and allowed the applicant to give evidence before it on this issue. The applicant has argued that in doing so, and reaching its own findings as to the relevance and credibility of this evidence, the Court of Appeal usurped the functions of the jury which at first instance was the tribunal of fact. This, he submits, deprived him of a determination by an independent and impartial tribunal of the facts in his case.

The Court finds no indication however that the proceedings before the Court of Appeal failed to comply with the requirements of Article 6 § 1 of the Convention. It observes that the applicant was represented by counsel at the appeal hearing and was given the opportunity to give further oral evidence. The applicant could have called his solicitor to corroborate his evidence if he had wished to do so. The Court notes that a jury trial is not essential to the question of fairness. Nor is there is any reason why new evidence cannot be fairly assessed by an appeal court (cf. Edwards v. the United Kingdom, op. cit ., p. 35, §§ 36-37).

The Court finds that in the circumstances of this case any defects in the original trial were remedied by the subsequent proceedings before the Court of Appeal (see , in this respect, the Adolf v. Austria judgment of 26 March 1982, Series A no. 49, pp. 17-18, §§ 38-41).

The Court concludes that, taking the proceedings as a whole, the applicant did receive a hearing before an independent and impartial tribunal in accordance with Article 6 § 1 and was not prevented from defending himself in person contrary to Article 6 § 3 (c) of the Convention.

It follows that this application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa

Registrar President