THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 40768/98

by Stuart McDONNELL

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 25 May 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 28 January 1998 by Stuart McDonnell against the United Kingdom and registered on 15 April 1998 under file no. 40768/98;

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 1972. He is currently serving a prison sentence in the United Kingdom.

The applicant is represented before the Court by John Carroll & Company, a firm of solicitors based in Glasgow, Scotland.

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

On 29 December 1997 police officers acting on information searched the applicant’s home pursuant to a warrant issued under the Misuse of Drugs Act 1971 (“the 1971 Act”). The applicant was cautioned by the police at the start of the search and did not exercise his right to silence. The search of the applicant’s home uncovered quantities of cannabis resin and amphetamines as well as cash and a “tick list”.

Towards the end of the search a visitor (“R.”) called at the house. The police admitted him and he was found to be in possession of a set of scales. When questioned about the scales, R. replied in the applicant’s presence: “They’re Pele’s ”. Pele was the applicant’s nickname. The applicant did not react to R.’s statement. A brownish residue on R.’s scales was later found to contain the active principles of cannabis.

The applicant was charged under the 1971 Act with being concerned in the supply of controlled drugs.

At the trial both the applicant and R., who was called as a defence witness, denied that the incriminating words were uttered by R. In the applicant’s submission R. had said that the scales were broken. The applicant maintained that the drugs belonged to a third party (“J.”) who called at his house before the police arrived and had left his jacket with him. R. testified that the scales had been left in his car by another third party and that they had nothing to do with the applicant. He told the jury that it was a coincidence that he had turned up at the applicant’s house with the scales and that the only purpose of his visit was to collect the jacket left there by J. The prosecution accepted that the applicant and R. did not know each other.

At the close of the trial the judge directed the jury that it was for the prosecution to prove the applicant’s guilt beyond reasonable doubt and summed up the evidence which they had heard during the trial. As to R.’s statement and the applicant’s failure to deny its implications, the trial judge stated:

“... You can also have regard to evidence about what was said by another person about the accused in his hearing and that is because he has an opportunity there and then to contradict what is being said about him if he wishes to dispute it, and that is obviously of relevance when you are looking at the evidence of what [R.] may have said about the scales and the police asked him a question about the scales... You might think from that that the scales had been associated with the weighing of cannabis and you might want to relate that to what was found in the house and also the Crown would ask you to take account of what, according to the police, [R.] said about the scales. ... You remember that evidence was that he said ‘They’re Pele’s ’ – Pele being the nickname of the accused. That, of course, is denied and it is for you to decide whether you accept the police evidence or whether you disbelieve it or at least you think it is open to doubt, having regard to the evidence given by the [applicant] and [R.] ... Now, you will have to consider that issue, was that said and if so what can you take from it. Is this in some way indicative of some activities to do with weighing quantities of cannabis and does that have some bearing on the question of being concerned in the supplying of the cannabis so you can see it is a matter which might be regarded as being relevant to the central issue here.”

By a majority the jury found the applicant guilty of the charges and on 5 March 1997 he was sentenced to four and a half years’ imprisonment.

The applicant appealed to the High Court of Justiciary, which heard his appeal on 10 October 1997. Before the High Court the applicant contended that the trial judge should have directed the jury that while the silence of an accused in the face of an accusation of guilt could be taken into account in considering the case against him, in the applicant’s case no such accusation had been made by R. Accordingly the jury should have been directed to disregard the evidence as to his silence in the face of R.’s statement that the scales belonged to “ Pele ”.

In dismissing the appeal, the High Court concluded:

“... It seems to us that in considering the question of the case against the accused, there is no good reason to restrict the scope of the principle ... to a case where the accusation is one of the guilt of the accused. Accordingly it is available to cover situations in which a statement is made which if true would be criminative of the accused. There may be cases in which the statement which is made is of a comparatively trivial nature, in which case it will of course be a matter for comment in the trial as to whether any significance can be attached to silence in the face of such a statement. In the circumstances we consider that the appeal is not well founded and it will be refused.”

COMPLAINT

The applicant complains that he was denied a fair trial in breach of Article 6 of the Convention. In his submission that Article guaranteed him a right to silence and that right was infringed on account of the fact that his failure to react to R.’s statement was taken to be capable of being construed as guilt.

THE LAW

The applicant relies on Article 6 of the Convention in support of his contention that he was denied a fair trial. Article 6 provides as relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair hearing...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The applicant maintained that under the domestic law of Scotland an accused person has a right to silence and must be advised of that right by the police when questioned. He acknowledged that under domestic law an accused is never told that his silence in the face of an accusation of guilt by a third party who is not a police officer could be used as evidence against him at his trial. However the situation in which he found himself was different. He averred that in his case the trial judge misdirected himself in domestic law by allowing the jury to infer guilt or draw an adverse inference from his lack of response to a statement allegedly made in his presence by a person who was not a police officer and which did not amount to an accusation of guilt.

The Court observes that according to Article 19 of the Convention, its duty is to ensure the observance of the engagements undertaken by the Contracting Parties in the Convention. In particular, it is not its function to deal with errors of fact or law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention (see the Garcia Ruiz v. Spain judgment of 21 January 1999, to be published in Reports of Judgments and Decisions 1999, § 28). On that understanding its enquiry in the instant case must be confined to examining the compatibility of the judge’s direction on the issue of the applicant’s silence with respect to the incriminating statement allegedly made by R. in his presence with the requirements of a fair procedure contained in Article 6 of the Convention.

In that respect the Court notes that the applicant has invoked in his cause the right to silence, a right which has been recognised in the Convention case-law as lying at the heart of the notion of a fair procedure (see the John Murray v. the United Kingdom judgment of 8 February 1996, Reports 1996-I, p. 49, § 45). It recalls in this respect that, like the privilege against self-incrimination, the right to silence provides an accused person with protection against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to securing the aims of Article 6 (see ibidem the aforementioned John Murray judgment).

The Court observes that the police’s question concerning the scales was directed to R. in the presence of the applicant. The applicant failed to dispute the truth of R.’s statement or to react to it in any other way. In the Court’s opinion the silence of the applicant when confronted with R.’s statement cannot be construed as an exercise of his right to silence or his privilege not to incriminate himself as understood in the Convention case-law. While he was under caution at the relevant time it must be noted that this caution applied to questions which were addressed to him by the police and put him on notice that anything that he said to them might be noted and used in evidence. It would appear that the applicant did not in fact rely on his right to silence and co-operated with the police during the house search by offering explanations as to the provenance of the drugs found on the premises. It has not been contended by the applicant that the police deliberately manoeuvred him into a situation in order to compel him to address the truth of R.’s statement in defiance of his right to silence. The Court recalls in this respect that R. testified at the trial that it was a coincidence that he showed up at the applicant’s house in possession of the scales.

Having regard to the circumstances in which the statement was made and in particular to the absence of a context of compulsion, the Court considers that the applicant’s complaint does not disclose any appearance of a violation of his right to silence. The applicant’s failure to dispute the truth of R.’s statement was an element of evidence which was relevant to the assessment of the case against him. While Article 6 guarantees the right to a fair trial, it does not lay down any rules on the admissibility of evidence or the way it should be assessed, which are therefore primarily matters for regulation by national law and the national courts (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, p. 29, §§ 45 and 46).

The Court would further observe that the judge’s direction to the jury on how they were to deal with the issue of the applicant’s silence followed argument by the prosecution and the defence on what R. actually said in the applicant’s presence. The jury were not invited to proceed on the basis that the prosecution’s account of what R. had said was correct. Moreover, the applicant was not convicted solely on the strength of his failure to react to R.’s statement. The prosecution case against him was based on factors other than the applicant’s silence and the jury were instructed to have regard to the totality of the evidence which they had heard in determining whether the prosecution had proved their case against the accused beyond reasonable doubt.

For these reasons the Court considers that the application is inadmissible as being manifestly ill-founded within the meaning of 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