THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 34129/96

by Kudlip S. SANDER

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 29 June 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 ,

with 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 22 July 1996 by Kudlip S. Sander against the United Kingdom and registered on 11 December 1996 under file no. 34129/96;

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

Having regard to the observations submitted by the respondent Government on 22 January 1998 and the observations in reply submitted by the applicant on 15 March 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national of Asian origin, born in 1960 and living in Birmingham.

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

On 5 September 1992 the applicant was arrested for conspiracy to defraud. The arrest took place in a flat owned by the applicant, where the police found a number of credit card vouchers. The applicant was not charged but released on bail. The bail was subsequently extended until 19 January 1993, when it was cancelled.

On 4 March 1993 the applicant was arrested again. He was taken to a police station where he was subjected to a strip-search, which apparently produced no incriminating evidence. However, later on Sergeant K authorised a second strip-search in the course of which the police claim to have found a false credit card on the applicant. The applicant was released on bail but was re-arrested in June 1993.

In March 1995 the applicant appeared together with Messrs. JB and GC before the Birmingham Crown Court, composed of a judge and a jury, to be tried for conspiracy to defraud. The prosecution case was that the applicant was one of a group of people who were engaged in obtaining details for embossing false credit cards and recruiting dishonest retailers for a conspiracy to defraud banks and credit card companies. The applicant stood indicted on three counts, but there was also a count against one of his co-accused in which the applicant was not involved.

At the hearing the defence asked the court not to admit as evidence the false credit card which the police claimed to have found on the applicant on 4 March 1993. In the course of the relevant voir dire examination the custody officer, Sergeant K, was questioned on the reasons why he had authorised a second strip-search. The court decided to admit the evidence in question. The court also decided to admit as evidence against the applicant the tape recording of a conversation he had had with a certain Mr. M in which he had made incriminating statements.

The prosecution also relied, inter alia , on credit card vouchers which had been found in the flat owned by the applicant and the testimony of Mr. P whom the applicant had allegedly tried to implicate in the conspiracy. Another prosecution witness, Ms. C, purported to identify the applicant as the Asian man who had visited a hotel room in order to recover an embossing machine which had been forgotten there. However, it was not the prosecution's case that the applicant was the man who had visited the hotel room. 

At the conclusion of the prosecution's case, applicant's counsel requested the dismissal of one of the charges, “count four”, on the basis that there was insufficient evidence of conspiracy to defraud to go before the jury. However, the judge rejected this submission.

After the defence had stated its case, the judge started his summing-up which he had almost completed by Friday night. Before adjourning, the judge agreed that the defence would prepare a note with a list of points the judge ought to remind the jury about. Such a note was indeed prepared by the defence and was given at a certain stage to the judge.

On Monday morning a juror arrived at the court and handed an envelope to the court usher containing the following complaint:

“I have decided I cannot remain silent any longer. For some time during the trial I have been concerned that fellow jurors are not taking their duties seriously. At least two have been making openly racist remarks and jokes and I fear are going to convict the defendants not on the evidence but because they are Asian. My concern is the defendants will not therefore receive a fair verdict. Please could you advise me what I can do in this situation.”

The juror who had written the complaint was asked not to join the other jurors. The judge discussed the complaint with counsel in chambers and then adjourned and listened to submissions in open court. The defence asked the judge to dismiss the jury on the ground that there was a real danger of bias. The judge, however, decided to call the jury back into court, at which stage the juror who had written the complaint joined the others. The judge read out the complaint to them and told them the following:

“Members of the jury, this morning I received a note from one of your number expressing extreme concern that some of your number are not taking your duties seriously, are making openly racist remarks and jokes about Asians and may not reach your verdicts upon the evidence but because of some racial prejudice.

I am not able to conduct an enquiry into the validity of those contentions and I do not propose to do so. This case has cost an enormous amount of money and I am not anxious to halt it at the moment, but I shall have no compunction in doing so long if the situation demands.

When you took the oath or affirmed as jurors it was, you will remember, to bring in true verdicts according to the evidence. That is solemn and binding and means what it says.

I am going to adjourn now and I am going to ask you all to search your conscience overnight and if you feel that you are not able to try this case solely on the evidence and find that you cannot put aside any prejudices you may have will you please indicate that fact by writing a personal note to that effect and giving it to the jury bailiff on your arrival at court tomorrow morning. I will then review the position. Thank you very much.”

The next morning the judge received two letters from the jury. The first letter, which was signed by all the jurors including the juror who had sent the complaint, stated the following:

“We, the undersigned members of the jury, wish to put on record to the Court our response to yesterday's note from a juror implying possible racial bias.

1. We utterly refute the allegation.

2. We are deeply offended by the allegation.

3. We assure the court that we intend to reach a verdict solely according to the evidence and without racial bias.”

The second letter, which the judge commended, was written by a juror who appeared to have thought himself to have been the one who had been making the jokes. The juror in question explained at length that he might have done so, that he was sorry if he had given any offence, that he was somebody who had many connections with people from ethnic minorities and that he was in no way racially biased.

The judge decided that he would not discharge the jury and told them the following:

“Ladies and gentlemen, the events of yesterday afternoon were clearly distressing for you, but I am sure you will see and realise that when a judge receives a note from one of your number raising those sort of issues it is the judge's duty to bring it to the attention of the whole jury.

Whether the suggestions were well or ill-founded is not something I or any judge can decide, nor it is something that can be investigated by the judge. It would be an improper activity. I took the course I did in the exercise of my discretion and I am sorry you were offended and upset.

However, all twelve of you have this morning utterly refuted the allegation, expressed your deep offence at it and assured the court that you intend to reach a verdict or verdicts solely according to the evidence and without racial bias. One of your number has also written at length a most cogent and balanced letter, and it is quite clear to me that each and every one of you are conscious of the oath or affirmation that you have taken and are dutifully prepared to abide by.”

On 8 March 1995 the jury found the applicant guilty on all three counts, but acquitted GC, who was also Asian, of one count. On 20 April 1995 the judge imposed on the applicant a sentence of five years' imprisonment. In imposing this sentence the judge considered that the fact that the applicant had committed offences while on bail constituted an aggravating factor.

The applicant was given leave to appeal against conviction. In his appeal he raised the following grounds: First, the judge should have reacted to the juror's complaint by dismissing the jury; in any event, the juror who had written the complaint should not have been segregated from the other members of the jury in the early stages and the judge should not have disclosed to the jurors the contents of the complaint. Secondly, the judge in his summing up did not deal with the issues raised by the misidentification of the applicant by Ms. C in an adequate manner. Thirdly, the judge did not accede to the defence's request to include a number of points in his summing up. Fourthly, the tape recording of the applicant's conversation with Mr. M should not have been admitted in evidence, because it contained confessions which had not been obtained in accordance with section 76 of the Police and Criminal Evidence Act. Fifthly, Sergeant K should have been called to testify as a witness to establish that the police had planted the false credit card found on the applicant during the second strip-search. Sixthly, count 4 should have been dismissed.

In a judgment rendered on 1 March 1996 the Court of Appeal considered the following: As regards the first ground of appeal, the court had regard to the letter signed by all the members of the jury, and the letter of the juror who was probably responsible for the remarks that had given offence, and found that the trial judge did not err in reaching the conclusion that there was no real risk of bias. Moreover, the judge was right to confront the jury with the problem and ask them to consider it. It was perhaps unfortunate that the juror who had written the complaint was for a time segregated from the other members of the jury, as this led to his identification. However, it would be unrealistic to suppose that the jury would not have wanted to know who the author of the complaint was and the judge dealt with the possibility of tensions among the jurors perfectly sensibly in the direction he gave to them.

As regards the second ground of appeal, the court found that the trial judge had drawn the jurors' attention to the misidentification of the applicant and had invited them not to approach Ms. C's evidence uncritically. The third ground of appeal had to be dismissed as well, since the points raised by the defence in their note were largely matters of argument and the judge was not required to make every single point that could be made on behalf of a defendant or to mention every piece of evidence. As regards the fourth ground, the tape recording did not contain a confession within the meaning of the Police and Criminal Evidence Act. The court did not find any substance in the fifth ground of appeal either, because the argument that Sergeant K was acting in bad faith, when ordering a second strip-search, had never been put to the trial judge during the voir dire. As regards, finally, the sixth ground, the court considered that enough evidence existed to justify putting count four to the jury. In the light of all the above, the Court of Appeal decided to reject the applicant's appeal.

COMPLAINTS

1. The applicant complains under Articles 6 § 1 and 14 of the Convention that he was not tried by an impartial tribunal, because the jury was racially biased.

2. The applicant also complains under Article 6 § 1 of the Convention that he did not have a fair trial because the charges against him were tried together with a charge of conspiracy to defraud in which he was not involved; however, in this manner, the impression was given to the jury that he was associated with that conspiracy as well. He further claims that it was unfair for the judge not to discharge the jury when the misidentification incident occurred, not to dismiss one of the charges against him, count four, and not to draw the jury's attention to the matters contained in the note of the defence.

3. The applicant, moreover, complains under Articles 5 and 6 §§ 1 and 2 of the Convention that the tape recording with the self-incriminating statements was admitted as evidence against him.

4. He also complains under Articles 6 §§ 1 and 2 and 7 of the Convention that the sentence imposed on him was excessive and that the judge took into consideration, as an aggravating circumstance, offences which the applicant was supposed to have committed while on bail. However, the applicant was never convicted of those offences.

5. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that Sergeant K was not called as a witness at the main trial hearing (as opposed to the voir dire examination).

6. He also complains that the second strip-search amounted to a violation of Articles 3 and 5 § 1 (c) of the Convention.

8. Finally, he complains under Articles 6 § 1 and 7 of the Convention of a number of adverse allegations made against him, notably that he was the tenant of the flat where the vouchers had been found, that he was the main instigator of the offences and that he was having a certain lifestyle which he did not deserve. Moreover, he complains under the same provisions that witness P lied to the court.

PROCEDURE

The application was introduced on 22 July 1996 and registered on 11 December 1996.

On 22 October 1997, the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 22 January 1998. The applicant replied on 15 March 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains under Articles 6 § 1 and 14 of the Convention that he was not tried by an impartial tribunal, because the jury was racially biased.

Article 6 § 1 of the Convention provides as follows:

“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by an impartial tribunal … .”

Article 14 of the Convention provides as follows:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Government submit that the facts of the applicant’s case are very similar to those in Gregory v. the United Kingdom in which the Court did not find a violation of Article 6 § 1 of the Convention (Eur. Court HR, Gregory v. the United Kingdom judgment of 25 February 1997, Reports of Judgments and Decisions 1997-I, p. 296). In both cases the judge received a note alleging racial bias. The judge addressed the jury in accordance with domestic case-law and practice. Both applicants’ appeals were dismissed by the Court of Appeal which applied principles similar to those under Article 6 § 1 of the Convention. Although it is not expressly stated, the applicant’s case appears to be, like Gregory v. the United Kingdom, one of alleged objective bias. In both cases there existed a number of factors which would dispel any doubts as to the impartiality of the jury. The judge redirected the jury in a clear, detailed and forceful manner. There were not any further suggestions of racial comments in the trial. The other verdicts of the jury did not show any racial bias. The judge had ample time to evaluate the jurors. Moreover, in the present case the judge adjourned the proceedings after addressing the jurors and sought and received an unequivocally positive assurance from them as to their impartiality. The judge also made it absolutely clear that he would have no compunction in discharging the jury and halting the trial if necessary. Given all the above, the Government submit that there was no violation of Article 6 § 1 of the Convention.

The applicant submits that his case is different from Gregory v. the United Kingdom. The other jurors knew who the complaining juror was. Obviously the latter was forced to withdraw his complaint. The disclosure of his identity must have prejudiced his position and inhibited him in the further discussion of the case. Moreover, one juror admitted to making racist remarks. The other juror about whom the complaint had been made remained silent. These developments should have alerted the judge to the fact that there was something fundamentally wrong with the jury and the judge should have discharged them. The judge did not react in this manner and, as a result, there was a violation of Article 6 § 1 of the Convention.

Having examined the parties' observations, the Court considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

2. The applicant complains under Article 6 § 1 of the Convention that he did not have a fair trial because the charges against him were tried together with a charge of conspiracy to defraud in which he had not been involved, because the judge did not discharge the jury when the misidentification incident occurred, the judge did not dismiss a charge against him and he did not to draw the jury's attention to the matters contained in the note of the defence.

The Court recalls that it is not its function to deal with errors of fact and law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (Eur. Court HR, Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports, § 28). While Article 6 § 1 of the Convention guarantees the right to a fair hearing, it does not lay down rules on evidence as such. It is for the national courts to assess the evidence they have obtained. The Court has nevertheless to ascertain whether the proceedings, including the way in which the evidence was taken, were fair as required by Article 6 § 1. Fairness must be assessed with regard to the proceedings as a whole (Eur. Court HR, Pélissier and Sassi v. France judgment of 25 March 1999, to be published in Reports, §§ 45 and 46). Finally, although Article 6 § 1 obliges courts to give reasons for their decisions, it cannot be understood as requiring a detailed answer to each argument (see the above-mentioned Garcia Ruiz v. Spain judgment, § 26).

The Court considers that there exist instances where the proper administration of justice requires that an applicant should be tried together with persons accused of offences with which he has not been charged. The present applicant has not shown that the proper administration of justice did not require that he should be tried together with the co-accused facing the charges in question. Nor has he adduced anything in support of his allegation that the jurors were left with the impression that he had also been associated with the conspiracy to defraud with which his co-accused had been charged.

The Court also recalls that the judge drew the jurors’ attention to the misidentification of the applicant and invited them not to approach Ms. C’s evidence uncritically. This must have eliminated the risk of unfairness. Moreover, the Court considers that, in the absence of any indication of arbitrariness, it cannot conclude that the judge acted in breach of the Convention when he refused to dismiss a charge (count four) against the applicant of which he was in the end convicted. Finally, the Court notes that the points raised by the defence in their note, which the judge allegedly omitted in his summing-up, were largely matters of argument that a national court would not have been required to address in detail.

In the light of all the above, the Court considers that the complaints raised in this part of the application disclose no appearance of a violation of Article 6 § 1 of the Convention.

The Court, therefore, considers that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4 thereof.

3. The applicant, moreover, complains under Articles 5 and 6 §§ 1 and 2 of the Convention that the tape recording with the self-incriminating statements was admitted as evidence against him.

Article 5 guarantees the right to liberty and security of person and Article 6 § 2 guarantees the presumption of innocence during criminal proceedings. The relevant part of Article 6 § 1 is cited above.

The Court recalls that the principle against self-incrimination is an aspect of the protection afforded by Article 6 §§ 1 and 2 of the Convention. However, the Court considers that this could not imply that courts are always precluded from taking into consideration a confession made by the accused in order to convict him. What the applicant in essence disagrees with is the assessment by the Court of Appeal that the tape recording did not contain a “confession” within the meaning of the Police and Criminal Evidence Act. However, as already stated, it is not the Court’s function to examine whether national courts have committed errors of law, and there is no indication that the Court of Appeal acted arbitrarily when reaching the above conclusion. It follows that this complaint does not disclose any appearance of a breach of Article 6 § 1 of the Convention.

As regards the complaint under Article 5 of the Convention, the Court notes that the applicant in essence argues that his detention after conviction was unlawful because the criminal proceedings against him were unfair, given the nature of the evidence admitted against him. However, even assuming that Article 5 of the Convention can be interpreted in this manner, the Court considers that no appearance of a violation of this provision can be disclosed in the circumstances of the case because the criminal proceedings against the applicant have not been found to be unfair as a result of the admission of the evidence in question.

The Court, therefore, considers that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4 thereof.

4. The applicant complains under Articles 6 §§ 1 and 2 and 7 of the Convention about the sentence imposed on him. Article 7 prohibits retroactive criminal legislation and the relevant parts of Article 6 are mentioned above.

However, the Court notes that there is no indication in the case-file that the applicant tried to obtain leave to appeal against sentence. It follows that the applicant has not exhausted domestic remedies in this respect, as required by Article 35 § 1 of the Convention.

This part of the application must be, therefore, declared inadmissible under Article 35 § 4 of the Convention.

5. The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that Sergeant K was not called as a witness at the main trial hearing. Article 6 § 3 (d) guarantees the examination and cross-examination of witnesses under the same conditions.

The Court notes that there was nothing preventing the applicant from calling Sergeant K as a witness at the main trial himself. Moreover, the argument that Sergeant K had acted in bad faith when ordering a second strip-search was never put to the trial judge during the voir dire examination. In these circumstances, the Court considers that the applicant cannot complain that Sergeant K was not called as a witness at the main trial. It follows that this complaint does not disclose any appearance of a violation of Article 6 of the Convention.

The Court, therefore, considers that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4 thereof.

6. The applicant complains that the second strip-search amounted to a violation of Articles 3 and 5 § 1 (c) of the Convention which, respectively, prohibit degrading treatment and envisage the lawful arrest and detention of someone suspected of having committed a criminal offence.

The Court notes that the applicant did not raise these complaints as a ground of appeal in the criminal proceedings against him. Nor did he institute civil proceedings for damages against the police in this connection. It follows that the applicant has not exhausted domestic remedies in this respect, as required by Article 35 § 1 of the Convention.

This part of the application must be, therefore, declared inadmissible under Article 35 § 4 of the Convention.

7. The applicant complains under Articles 6 § 1 and 7 of the Convention that a number of adverse allegations were made against him in the criminal trial and that prosecution witness P lied to the court. These Convention provisions are mentioned above.

The Court notes that the applicant in essence complains of the conduct of the prosecution in the proceedings against him. Without excluding that such conduct could in certain circumstances give rise to a violation of Article 6 of the Convention, the Court considers that the applicant has not shown that the apparently adverse allegations and P’s testimony had a decisive influence on the jury’s verdict in his case. It follows that no appearance of a violation of Article 6 § 1 of the Convention is disclosed in this connection.

Moreover, the Court does not consider that the applicant’s complaint can raise any issue under Article 7 of the Convention.

The Court, therefore, considers that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be declared inadmissible under Article 35 § 4 thereof.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaint that his case was not heard by an impartial tribunal because, allegedly, the jury was racially biased;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President