Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13081/87

by Stephen WINDSOR

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 December 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 16 May 1987

by Stephen WINDSOR against the United Kingdom and registered on

7 July 1987 under file No. 13081/87;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1952 and resident

in Rosewell, Scotland. He is presently serving a prison sentence in

Peterhead Prison. The facts as submitted by the applicant may be

summarised as follows.

On 31 July 1985, the applicant was arrested on suspicion of

participation in armed robbery and held in police custody for six

hours, during which period he alleges that he was denied access to a

solicitor. The applicant alleges that during this period he was

questioned, subjected to forensic tests and shown to two potential

witnesses (both of whom were young boys) for purposes of

identification. Neither witness identified him as one of the three

men involved in the robbery. After approximately six hours, the

applicant was charged: he first saw his solicitor 10 minutes prior to

this. One of the witnesses was again brought to identify the

applicant a week later at a proper identification parade but again

failed to identify the applicant. The applicant's solicitor attempted

to trace these two witnesses but was informed that the incident in the

police cells had not taken place.

At the applicant's trial for assault, robbery, attempted murder

and contraventions of the Firearms Act 1965, the applicant pointed out

one of these witnesses, an 11 year old boy, in the court room and this

witness gave evidence that he had been shown the applicant in a police

cell. The other witness had not been located at that time.

For his defence, the applicant lodged a special defence of

alibi to the effect that his car had broken down in the vicinity of

the crime and that he was arrested while making his way on foot to

seek assistance. His car was made a production for the prosecution

who contended that it was the "getaway" car. The applicant's

solicitor employed an independent engineer to examine the car to

substantiate the applicant's assertion that the car had a mechanical

fault which appeared after it had been driven 8-12 miles. While the

engineer made an examination of the car, the police refused the

engineer permission to carry out a road-test. Prior to the trial a

Q.C. acting for the applicant and the co-defendant had obtained

permission from the court for an expert for the defence to examine

production for the prosecution and an expert duly carried out an

examination of the car, without requesting to road-test it.

The applicant was convicted of armed robbery on 27 November

1985 and was sentenced to 20 years' imprisonment.

The applicant appealed, alleging that the judge had

misdirected the jury in various respects and failed to deal fairly

with the evidence in his summing-up. While awaiting the hearing of

his appeal, the applicant asked to examine the two shotguns, which had

been produced at his trial. He was informed on the morning of his

appeal that the guns had been destroyed.

On 21 November 1986, the applicant presented his appeal in

person. His application for legal aid had been refused on 20 February

1986. The High Court dismissed his appeal against conviction finding

his grounds of appeal ill-founded. The Court also stated that the

applicant had sought to raise the point that there was another child

witness who had not identified the applicant as participating in the

robbery and that he had been unable to trace him. The Court held that

since this point was not included in the grounds of appeal the Court

could not deal with it. The applicant's prison sentence was however

reduced from 20 to 14 years.

Since the applicant's appeal, the applicant has learned that

several of the police officers involved in the investigation of his

case have been charged with offences inter alia of perjury, perverting

the course of justice, improper police practice, attempting to bribe

witnesses and threatening witnesses. The applicant petitioned the

Secretary of State on 5 December 1986 alleging inter alia that the

case against him was fabricated by these officers and that he was not

allowed to secure a proper examination of the car. By reply of 28

April 1987, the applicant was informed that a full investigation had

disclosed no grounds on which the Secretary of State could take

further action. In relation to the car, it was stated that an

independent engineer had examined the car on the applicant's behalf

and had given evidence that the radiator tank was dry and would have

overheated if driven any distance. He had been refused permission to

carry out a road-test since it was a production in an important case.

It was also stated that if the applicant had considered a road-test

essential, an application could have been made to the court, which

step the applicant had not taken.

COMPLAINTS

1. The applicant complains that he was not told the names of the

two witnesses who did not identify him at the police station, and was

thus unable to examine them. He invokes Article 6 para. 3 (d) of the

Convention.

2. The applicant also complains that he was not given a fair

trial. He complains in particular that he was prevented from

examining or testing the car or shotguns. He also complains of being

refused access to a solicitor for six hours. He invokes Article 6

para. 1 of the Convention in this respect.

3. The applicant also complains that he cannot take legal

proceedings against the police officers, who fabricated evidence

against him, or against the Procurator Fiscal, who denied the applicant

his legal rights. He complains that he has petitioned for action to

be taken in regard to his allegations inter alia of illegal police

practice, perverting the course of justice and perjury which occurred

in his case and which show that his conviction is unsafe but that no

action has been taken. The applicant invokes Article 5 para. 4 of the

Convention in this respect.

THE LAW

1. The applicant complains that he was not informed of the names

of two boy witnesses and was thus unable to examine them. He invokes

Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, which provides:

"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 Commission notes that in fact the applicant was able to

call one of the witnesses at his trial.

As regards the other child witness, the Commission is not

required to decide whether or not the facts alleged by the applicant

disclose any appearance of a violation of this provision. Under

Article 26 (Art. 26) of the Convention, the Commission may only deal

with a matter after all domestic remedies have been exhausted

according to the generally recognised rules of international law.

The mere fact that the applicant has submitted his case to the

competent courts does not of itself constitute compliance with this

rule. It is also required that the substance of any complaint made

before the Commission should have been raised during the proceedings

concerned. In this respect the Commission refers to its established

case-law (see e.g. No. 1103/61, Yearbook 5 pp. 168, 186; No. 5574/72,

Dec. 21.3.75, D.R. 3 pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37

pp. 113, 120).

In the present case the applicant did not raise the issue of

the other child witness in his grounds of appeal with the result that

the High Court could not deal with the matter. Moreover, an

examination of the case as it has been submitted does not disclose the

existence of any special circumstances which might have absolved the

applicant, according to the generally recognised rules of

international law, from raising this issue in his grounds of appeal to

the High Court.

It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2. The applicant also complains that he did not receive a fair

trial. He complains in particular of not being able to examine the

car or shotguns, and of being refused access to a solicitor for 6

hours. He invokes Article 6 para. 1 (Art. 6-1) of the Convention,

which, in its first sentence, provides:

"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."

Insofar as the applicant complains of being unable to examine

the car, the Commission recalls that the car was in fact examined by

an independent engineer on behalf of the applicant, though the

engineer was not allowed to test-drive the car by the police.

However, the applicant made no application to the Court for a

road-test to be authorised. The Commission further notes that the

applicant was later informed by the Secretary of State that the

road-test had been refused since the car was a production in an

important case.

As regards the shotguns, while the Commission notes that the

applicant applied unsuccessfully to examine the guns before his

appeal, there is no indication that the defence was not given the

opportunity to examine them at the trial. The applicant has failed to

establish in what way an examination of the shotguns was necessary for

the presentation of his appeal.

The Commission accordingly finds that these complaints do not

disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1)

of the Convention.

As regards the applicant's complaint of refusal of access to

his solicitor, the Commission recalls that the applicant was arrested

on 31 July 1985 on suspicion of participation in an armed robbery and

that he was allowed to see his solicitor 6 hours after being arrested,

i.e. 10 minutes before being charged.

The Commission first observes that the Convention does not

expressly guarantee the right of an accused to freely communicate with

his defence counsel for the preparation of his defence. The fact that

this right is not specifically mentioned does not mean it may not be

implicitly inferred from its provisions, in particular those of

Article 6 para. 3 (b) and (c) (Art. 6-3-b-c), which guarantee to the

accused to have adequate time and facilities for the preparation of

his defence and the right to defend himself in person or through legal

assistance of his own choosing. The right for an accused to

communicate with his lawyer has been recognised by the Commission as a

fundamental part of the preparation of his defence. However such a

right to have conversations with one's lawyer and exchange

confidential instructions, as implicitly guaranteed by Article 6 para.

3 (Art. 6-3), cannot be said to be insusceptible of restriction (see

e.g. Can v. Austria, Comm. Report 12.7.84, Eur. Court H.R., Series

A no. 96, pp. 15-19). The Commission must therefore consider whether

or not the alleged delay in consulting a solicitor was in conformity

with the Convention.

In the present case, the applicant had the possibility of over

three months prior to his trial to communicate with his lawyer and

prepare his defence. The applicant has not established that the

initial period of 6 hours of his detention was of crucial relevance to

the preparation of his defence or to the fairness of his trial or that

he was prejudiced in any material way by the refusal of access to his

solicitor during this period.

In light of these considerations, the Commission finds no

appearance of a violation of Article 6 paras. 1, 3 (b) or (c) (Art.

6-1, 6-3-b-c) of the Convention.

It follows that these complaints are manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3. The applicant further complains that he is unable to have

proceedings instituted against the police officers or Procurator

Fiscal involved in his case. He invokes Article 5 para. 4 (Art. 5-4)

of the Convention in this regard.

Article 5 para. 4 (Art. 5-4) guarantees to everyone deprived

of his liberty the right to take proceedings by which the lawfulness

of his detention shall be decided speedily by a court. However, this

provision does not entitle the individual deprived of his liberty to

have criminal proceedings instituted against another person.

The Commission has also considered this complaint under

Article 6 para. 1 (Art. 6-1) of the Convention, which guarantees to

everyone the right of access to a court for the determination of

"civil rights" or "obligations" or a "criminal charge against him".

However, the right under Article 6 para. 1 (Art. 6-1) to have a

criminal charge determined is only a right for the accused and not a

right for the victim of the alleged criminal offence, or for anyone

who makes a charge against another.

Accordingly the applicant has no right under Article 5 para. 4

(Art. 5-4) or Article 6 (Art. 6) of the Convention to have criminal

proceedings instituted against other persons (see e.g. No. 7116/75,

Dec. 4.10.76, D.R. 7 p. 91).

It follows that this complaint is incompatible ratione

materiae with the provisions of the Convention within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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WINDSOR v. the UNITED KINGDOM

WINDSOR v. the UNITED KINGDOM