THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39661/98

by A.J.

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 11 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 31 October 1997 by A.J. against the United Kingdom and registered on 4 February 1998 under file no. 39661/98;

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 1936 and currently detained in Her Majesty’s Prison, Dartmoor. He is represented before the Court by Messrs Foot and Bowden , solicitors practising in Plymouth, and Mr J. Lofthouse , a barrister practising in London. The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Particular circumstances of the case

The applicant lived with his wife between 1991 and 1995. It was alleged that he indecently assaulted his stepdaughter, K (born in 1983), on many occasions during this period, including digital penetration and licking of the vagina, and that he raped her on up to five occasions when she was between the ages of 9 and 11. Eight months after the applicant left the matrimonial home, K made her allegations known to her mother’s new co- habitee and the applicant was charged with three specimen counts of rape, indecent assault and indecency with a child.

The applicant pleaded not guilty and was tried in Plymouth Crown Court before a judge and jury. There was clear medical evidence that someone had penetrated K on a number of occasions, but the applicant denied that it had been him. The defence case was that some other person could have penetrated K during the eight month period between the applicant leaving the family home and K first making her complaint. On 1 May 1996, the trial judge, in his summing-up to the jury, said ( inter alia ):

“In summing this case up to you, I will set out our respective functions, direct you as to the law, and summarise the evidence that you have heard to the extent that seems necessary and appropriate in this particular case. I direct you as to the law, and you must act upon those directions and apply them faithfully to the facts as you find them.

The facts in the case are for you and you alone, not me, and those facts must be drawn from the evidence you have seen and heard in this courtroom and from nowhere else. ...

As I have already said, the responsibility in deciding the facts is entirely yours, and please ignore what I may say about the evidence unless you happen to agree with it. Conversely, if I omit some fact or matter which you consider to be important, please give it as much weight as you consider proper.

You will not, I know, hold it against this defendant that he came from the dock to give his evidence as opposed to coming through the door of the court as have other witnesses. He has to be seated somewhere, and the dock is the place specially set aside for him in this courtroom.

But he is a witness in this case, and all witnesses, and I emphasise the word “all”, and that includes K, her mother, natural father, stepfather, and the defendant, enter the witness box on a level or even basis. They give their evidence, and that evidence is tested by cross-examination. You see, you hear those witnesses, and no doubt you will already have assessed them, and you will have observed not only what they had to say to you but the way that they said it. ...

The prosecution bring these charges, the content of the three counts on this indictment. It is for the prosecution to prove each of them, and not for the defendant to prove anything, let alone his innocence, and you cannot bring in a verdict in this case on any particular count unless and until on the whole of the evidence the prosecution satisfy you and make you sure that guilty is the proper verdict in relation to that count. ...

The child has been unable to say precisely when certain incidents occurred, and precisely how many. If you are sure that during the period set out in the indictment that [sic] the allegation has been proved on one occasion, that will suffice. Do you all understand? But the fact that K variously told her present stepfather, her mother, and later the police and a doctor what had allegedly happened to her cannot, as a matter of law, be evidence that it happened or how it happened.

Now I want to say something about the sexual abuse of children. That has always been regarded as a serious matter by the community whom you represent and, as a consequence, by the courts. The way that the courts, the police, local authorities and the public deal with such offences has changed radically in recent years. The climate has changed from a situation where the victim bottled up what had happened to her all her life, too afraid to let it come out into the open.

There are all sorts of reasons for that fear, and I will deal with those or some of them in a moment. One only has to remember the print or the painting of the Victorian father opening the door and pointing to his young daughter with child in her arms saying: ‘Never darken my door again’, but perhaps that is an extreme example in a much earlier time.

The allegations in this case began a substantial time ago, around 1990 or 1991. But delay in disclosing these matters by an alleged victim is not uncommon in this type of case. Such offences will typically be committed in the family by the mother’s then partner or family friend. The alleged abuser will usually be in a position of trust and some power, and the nature of the abuse will often induce a sense of shame and a deterioration in the victim’s own self esteem and, as here, she may well wish to put it firmly to the back of her mind and just get on with it for the sake of the family and peace and quiet.

But even today, in a more enlightened age, what is involved in making a genuine complaint is not to be underestimated: in having to relive and to recount what had happened, firstly to a parent or stepparent, then to the police, and to a doctor, and then in court in public, even over a video link. She may have feelings of guilt, that she herself was in some way to blame. She may fear the risk of breaking up a family in which the abuse occurred, and perhaps the worst fear of all, that having made full disclosure and having waited for many months (if not many years) for the matter to come to light and then to trial, that nobody would believe her. The complainant of course is not on trial here, but she may very well feel that she is. Please make allowances for that too when you assess her as a witness.

Indeed, you may have been moved by the evidence that K gave and the somewhat dignified manner in which she gave it. But I am afraid you must put emotion entirely to one side, and try this case with a cold, clinical, and an objective eye, for to do otherwise would risk injustice and I am sure not one of you would wish that. ...”

The judge next explained the legal elements of each offence on the indictment, and then summarised the evidence in the case. When summarising K’s testimony he said, in connection with the issues of her delay in reporting the alleged abuse and the possibility that someone other than the applicant might have abused her:

“In answer to Mr Lofthouse , [K] said that she was mentally upset at what the defendant was doing to her over a period of some five years, and told her mother’s boyfriend about what the defendant had been doing some eight months after the defendant had left home. She said that she had not told anybody before because she was frightened what the defendant might do, and in any event he might try and contact her and her mother again.

In October of last year, she said that she felt able to tell somebody about it then, and told A (that is her mother’s boyfriend) because she trusted him. She said it was not because something had happened after the defendant had left. No-one else had ever interfered with her in the same way as the defendant had done.

She said that she once had a boyfriend called F who was now expelled from school for locking a teacher in a room. She said that she last saw her natural father some three years ago at an interval of once a week, and it was something that she had to do because the court had ordered it. She said that she had not told the woman police officer in her first interview about the defendant putting his penis into her vagina because she did not think it was a nice thing to say, and in any event, she said she was not ready to tell the woman police officer at that time.

Finally, she said that she did not find it easy to talk about these matters, and only did so because she trusted her mother’s boyfriend. She believed that he would not recoil from her in disgust and go and tell her mother. She thought that if he did tell her mother, that would upset her, and that she would have thought that it was her fault. She said she felt very uncomfortable about telling the police that the defendant had put his penis and finger into her vagina. ...”

Having summarised the evidence of the other witnesses, the judge concluded:

“Well, that concludes the evidence in this case. If what the defendant says is true or may be true, then you will acquit him on all counts of this indictment.

You are going to have to decide who is telling you the truth in this case and who is not. You may ask yourselves, well how do we approach the evidence in the case?

Well, may I suggest that first of all you look at the evidence of K entirely on its own and then against the rest of the evidence in the case. Then approach the evidence of the defendant in precisely the same way.

You will have to ask yourselves what relevance there is, if any, in asking [K’s natural father] about his caution last year, and in referring to a letter allegedly written by K to a boy named F. Do they, can they (either of them) have any relevance or bearing on the allegations that you have to determine? If they do, or may do, please give them as much weight as you think proper. Or – and it is a matter entirely for you – have they been introduced into this case as a diversion to deflect you from the real issues that you have to consider, and if you are sure that they have been, then no doubt you will ask yourselves why.

Now this is an important case. It is important because it is serious. And it is serious from the point of view of the defendant who is on trial. But it is also serious from the point of view of the public, because if it is proved that the defendant has committed these offences or any of them, it is only right that he should be convicted. The question is, has it been proved? And having said that, never lose sight, of course, that the defendant does not have to prove his innocence; rather the Crown has to make you sure of his guilt.

You may ask yourselves where do we begin in our deliberations? That of course is a matter for you and you alone, not me. It may assist you if I were to highlight some issues which may indicate who is and who is not telling you the truth in this case. If they help you, all well and good, give them as much weight as you think proper, but on the other hand, if they do not, please ignore them entirely.

Did the defendant say to Police Constable J in London before he had been informed as to the reason for the visit: ‘Oh, she has gone that low, has she?’ If you are satisfied that he said that at that time, what does it mean?

On the evidence that you have heard, would K have known about the detail of oral sex and the movement of her mouth up and down an erect penis that felt like a rubber, or was that something that she may have gleaned from either school, her friends, or watching the video ‘Burlesque’?

Similarly, would K have known about ejaculation over her stomach, describing semen as coming out of a slit at the top of the penis, being lumpy and creamy-white in colour?

In what circumstances was the child’s hymen damaged, such damage being caused by the entry of an erect penis over a period of months or years prior to the onset of the child’s puberty?

What is the significance, if any, of the child asking her mother if you can become pregnant before your periods had begun?

Was the position allegedly adopted by the defendant for sexual intercourse with K designed to achieve partial penetration only, so as to preserve her hymen?

And finally, why did K not mention in her first interview the fact that the defendant had inserted his finger and penis into her vagina? Was it because it had never happened, or was it because she was not ready then to mention it at that stage, and was in any event too embarrassed to do so?

I know that you will resolve any doubts that you may have in this case in favour of the defendant. ...”

The jury retired for about four and a half hours, and then convicted the applicant, by a majority verdict of 10 to 2 in respect of the rape and indecency charges, and unanimously in respect of the indecent assault. On May 23 1996 the judge sentenced the applicant to eight years’ imprisonment for the offence of rape, and three years’ and eighteen months’ imprisonment for the offences of indecent assault and indecency respectively, running concurrently with the rape sentence.

The applicant appealed against both conviction and sentence. The Court of Appeal, dismissing his appeals, stated ( inter alia ):

“We consider that the judge was entitled to make the observations he did in his summing-up. He was entitled to place allegations of this kind in the context that he did. The observations he made accord entirely with an assessment that any experienced judge, and indeed, we would add, any informed member of the public, would recognise as being well-founded. However, having done so, it would in our clear judgment have been preferable for the learned judge to include some reference to the defence submissions on the issue of delay, particularly when on one view it was the only window of opportunity for the penetration to have occurred when the appellant was not living with the child.

That said, and that criticism having been made, the question for this court remains whether this failure was such as to make the conviction unsafe. We are not so persuaded. Taken as a whole, the summing-up clearly left the issue of the child’s credibility on which the prosecution case rested for the jury to decide. ...”

On 1 May 1997 the Court of Appeal refused leave to appeal to the House of Lords.

COMPLAINTS

The applicant complains that, as a result of the judge’s summing-up, he was denied a fair trial before an impartial tribunal, in breach of Article 6 § 1 of the Convention, and that the summing-up failed properly to respect the presumption of innocence, in breach of Article 6 § 2.

THE LAW

The applicant complains that he did not receive a fair trial before an impartial tribunal, in breach of Article 6 § 1 of the Convention, which states (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. ...”

In addition, the applicant complains that the judge’s summing-up to the jury amounted to a breach of his right to be presumed innocent under Article 6 § 2 of the Convention, which states:

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

The applicant submits that a fair trial under the English system requires a fair and balanced summing-up to the jury, but that this was not provided in his case. He refers in particular to the judge’s comments in connection with the complainant’s delay in reporting the alleged abuse, and contends that unfairness was caused by the judge’s use of emotive language and the fact that, in effect, he told the jury to consider the complainant’s evidence and the delay sympathetically. He states that it is of crucial importance that the impugned remarks formed part of the summing-up dealing with the law, which the jury had to accept from the judge. The effect of the summing-up was, in his submission, to negate one of his best points and to fail to place before the jury the matters of evidence which favoured the defence. It is impossible to determine whether or not the jury was influenced by the judge’s comments because of the Contempt of Court Act 1981, section 8(1), states that it is a contempt of court to obtain, disclose or solicit any particulars of any statements made, opinions expressed, arguments advanced or votes cast by members of the jury in the course of their deliberations. However, the fact that they deliberated for over four hours and delivered majority verdicts in respect of two of the charges suggests that one or more of them might have been susceptible to the judge’s influence. He refers to the observation of the Court of Appeal that it would have been preferable if the summing-up had included some reference to the defence submissions on the issue of delay and submits that the Court of Appeal dealt only summarily with the substantial arguments advanced on his behalf in connection with the failure to put the defence case.

The Court considers that, on the facts of this particular case, the complaints under Article 6 §§ 1 and 2 are closely linked. It therefore decides to examine them together. In doing so, it must consider the proceedings as a whole, including the decision of the appellate court (see, mutatis mutandis , the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 34, § 34). Moreover, it is not within the province of the European Court to substitute its assessment of the facts for that of the domestic courts. Its task is to ascertain whether the proceedings in their entirety were fair (ibid., p. 35, § 34).

While Article 6 of the Convention guarantees the right to a fair trial, it does not lay down any rules concerning the national courts’ internal procedure, which is therefore primarily a matter for regulation under national law. It cannot, however, be excluded that the non-observance of national rules may raise an issue under Article 6 (see application no. 13926/88, N. v. Denmark, Commission’s decision on admissibility of 4 October 1990, Decisions and Reports vol. 66, p. 217, and 5574/72, X. v. the United Kingdom, Commission’s decision on admissibility of 21 March 1975, Decisions and Reports vol. 3, p. 10 at p. 17, §§ 7-8).

In this case, the tribunal which tried the applicant at first instance was composed of a judge and a jury. In accordance with English law, it was the role of the jury to assess the evidence presented during the trial and to decide, as a question of fact, whether or not the applicant had committed the offences with which he was charged. Because of the rule in section 8(1) of the Contempt of Court Act 1981 preserving the secrecy of the jury-room, it is impossible to determine the effect that the judge’s comments may have had on the jury’s deliberations. The Court is, however, prepared to assume that, given the judge’s authority and experience, his expressed views may have had a significant influence on the members of the jury. It will therefore consider whether, in the light of the judge’s comments, and taking the proceedings as a whole, the applicant received a fair trial.

In this respect, the Court observes, first, that the applicant had the opportunity to put forward his defence by giving evidence and, through his counsel, cross-examining the other witnesses and addressing the jury. The judge’s comments to which the applicant objects were, for the most part, of a general nature, concerning the factors which might discourage a child from informing others about sexual abuse. As the Court of Appeal noted, the members of the jury, in common with any informed member of the public, were likely already to be familiar with such considerations. It is true that at one point in his summing-up, when he stated “... the nature of the abuse will often induce a sense of shame and a deterioration in the victim’s self esteem and, as here, she may well wish to put it firmly to the back of her mind ...”, the judge appears to be making a finding of fact. However, the Court considers it significant that the judge informed the jury at a number of points during his summing-up that it was their task, and not his, to assess the facts and that they should feel free to disregard his comments about the evidence. In addition, he stressed on several occasions that the applicant was presumed to be innocent and that the burden of proving guilt rested with the prosecution.

Moreover, the Court notes that, as a further guarantee of fairness, the Court of Appeal assessed whether or not the applicant’s conviction was unsafe, and found that the summing-up clearly left the issue of the child’s credibility for the jury to decide. As stated above, it lies beyond the European Court’s competence under the Convention to substitute its assessment of the facts for that of the domestic courts, either at first or second instance.

In conclusion, therefore, the Court considers that, taken as a whole, the proceedings offered sufficient guarantees to provide the applicant with a fair trial and that the presumption of innocence was respected.

It follows that this application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J-P. Costa

Registrar President