CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 mars 1986

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  The European Commission of Human Rights sitting in private on 12 March 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         E. BUSUTTIL                         G. JÖRUNDSSON                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         H.G. SCHERMERS                         G. BATLINER                         J. CAMPINOS                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                       Mr. J. RAYMOND, Deputy Secretary to the Commission   Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Art. 25);   Having regard to the application introduced on 12 May 1983 by J.M. against the United Kingdom and Ireland and registered on 15 May 1985 under file No. 10386/83;   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 1954 and is currently serving a sentence of imprisonment.   The facts as submitted by the applicant may be summarised as follows.   The applicant is represented before the Commission by Mr. Alastair Logan, solicitor.   The applicant was arrested in his home in Belfast on 24 January 1982. He was transferred to the custody of the Anti-Terrorist Squad of New Scotland Yard and transferred to London, where on 28 January 1982 he was charged with conspiracy to cause explosions in the United Kingdom between November 1978 and June 1979.   The applicant was granted legal aid for representation at the committal proceedings and at his trial in the Central Criminal Court.   On 6 September 1982, one week before the committal proceedings, the applicant's solicitor learned that some of the exhibits to be used in support of the prosecution case were in the control of the Court of Criminal Appeal in Dublin.   These exhibits had been produced originally at the committal proceedings against G.T. who was arrested and committed on similar charges in London in 1980.   Mr. T. escaped from prison whilst on remand and was later apprehended in March 1982 in Ireland.   Mr. T. was subsequently tried by the Special Criminal Court in Dublin and given a sentence of 10 years for possession of explosives.   It appears that the Director of Public Prosecutions gave the exhibits into the possession of the Irish authorities.   Mr. T. appealed against conviction and sentence on 10 July 1982 and according to the legislation applicable to appeals, the exhibits produced at the trial entered the custody of the Irish Court of Criminal Appeal in Dublin.   On 5 August 1982, the Director of Public Prosecutions of the United Kingdom made an application to the Irish Appeal Court for the release of the exhibits for use in the committal proceedings against the applicant.   Permission was given and the Director of Public Prosecutions gave an undertaking to return the exhibits forthwith on conclusion of the committal proceedings.   The applicant applied to the Divisional Court of the Queens Bench Division for an order of Prohibition to halt the committal proceedings and for a declaration that the prosecution had a duty to preserve and retain the exhibits and that the Director of Public Prosecutions should not be allowed to permit the exhibits to be removed from the jurisdiction of the English courts without the authorisation of the courts.   The applicant's solicitors were concerned that they would have no opportunity of forensically examining the exhibits before their return to Ireland, where they might conceivably be lost or damaged.   Mr. Justice McCullough granted the Prohibition Order on 14 September 1982 and gave leave for the applicant to pursue his application before the full Divisional Court.   The application was heard before the full Divisional Court on 8 October 1982.   The court refused the declaration and discharged the Prohibition Order.   The court was satisfied that the Director of Public Prosecutions had taken the utmost care of the exhibits, which had been sealed and placed in the custody of a specially designated officer on transfer to and from Ireland.   The court was of the view that the Irish Appeal Court could be relied upon to deal sympathetically with the problems caused by the overlapping proceedings.   The Director of Public Prosecutions also undertook to apply to the Irish Court for access to the exhibits for the applicant and a modification of his undertaking.   The applicant appealed unsuccessfully to the Court of Appeal on 12 November 1982.   He also applied for legal aid for representation at the hearing of the application of the Director of Public Prosecutions at the Irish Court.   The applicant's solicitors made inquiries from the Law Society for England and Wales, but were informed by a letter of 19 November 1982 that there were no facilities within the existing legal aid scheme to enable the applicant to be represented before the Irish Court.   His solicitors also approached the Registrar of the Irish Court who confirmed that there were no legal aid facilities available to the applicant in Ireland in these circumstances.   On 29 November 1982, the applicant's solicitors attended the hearing at the Irish Court with an Irish lawyer, although there was no prospect of remuneration.   They argued that the exhibits should remain in the United Kingdom and that it was vital for the purposes of a fair trial no examination of them should take place, without expert representatives of the applicant being present.   The exhibits were over fifty in number and consisted of such items as photos, maps, newspaper wrappings and objects with fingerprints evidence of them. They wished to ensure that no exhibits were carelessly contaminated such that, for example, an article with the applicant's fingerprints on was also found to have traces of explosives.   Mr. T.'s solicitors had filed an affidavit indicating there may have already been cross-contamination and that further examination would risk increased deterioration in the evidential value of the exhibits, though the applicant's solicitors later discovered no examination of the exhibits did take place in Ireland.   The Irish Court ordered that the exhibits remain in the custody of the Director of Public Prosecutions until further order and that the Director of Public Prosecutions undertake to allow the applicant and Mr. T. reasonable facilities for scientific examination of the exhibits and to inform either party when such an examination was to take place.   The applicant was eventually tried at the Central Criminal Court on 26 May 1983 and sentenced to 17 years imprisonment.   Beyond the fact that the exhibits were available at the trial, it is not known what role they played in the applicant's conviction.   He appealed unsuccessfully, his appeal being dismissed by the full Court of Appeal on 11 December 1984.   COMPLAINTS   The applicant complains that the Government of the United Kingdom and the Government of Ireland, in promulgating legislation enabling persons accused of committing crimes in the United Kingdom to be tried in Ireland and vice versa, failed to protect his rights under the Convention in that he had no locus standi to appear before the Irish Court and that he was not entitled to legal aid for these proceedings.   The applicant complains that the legislation enabling persons accused of committing crimes in the United Kingdom to be tried in Ireland and vice versa, fails to protect his rights in that he had no locus standi as a party before the Irish Court of Appeal and in that he was not entitled to legal aid in respect of those proceedings.   In particular, he submits that since he had no right of audience before the Irish Court he was denied the right to "a fair and public hearing ... by an independent and impartial tribunal established by law" under Art. 6, para. 1 (Art. 6-1) and that since he was unable to receive free legal aid, there was a breach of Art. 6, para. 3, sub-para. c (Art. 6-3-c).   He further submits that the removal of the exhibits abroad out of the control of English courts and the refusal of the English courts to make any orders in relation to the exhibits hampered his defence in breach of Art. 6, para. 3, sub-para. b (Art. 6-3-b). The applicant also complains of a breach of Art. 6, para. 1 (Art. 6-1) in that if he had been tried within a reasonable time he would have had the opportunity to cross-examine a scientific officer, who died on 30 November 1982, enabling his written statement to be used as evidence.   The applicant further submits that the circumstances described above severely hampered his obtaining the examination and attendance of witnesses on his behalf under the same conditions as the witnesses against him in breach of Art. 6, para. 3, sub-para. d (Art. 6-3-d).   THE LAW   1.       The applicant complains that the legislation promulgated by the Governments of the United Kingdom and Ireland to enable those accused of committing crimes in the United Kingdom to be tried in Ireland and vice versa failed to secure him the right of audience before the Irish court seised of possession of the exhibits in contravention of Art. 6, para. 1 of the Convention (Art. 6-1), and did not provide him with legal aid to litigate before that court in contravention of Art. 6, para. 3, sub-para. c (Art. 6-3-c).   Art. 6, para. 1 of the Convention (Art. 6-1) guarantees that in the determination of a person's civil rights and obligations or of any criminal charge against him he is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.   Art. 6, para. 3, sub-para. c (Art. 6-3-c) guarantees a person charged with a criminal offence the right 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 where the interests of justice so require.   However insofar as the applicant complains of a violation of the Convention by Ireland, the Commission recalls that the proceedings before the Irish court concerning the use of the exhibits did not lead to a determination of the applicant's civil rights and obligations and he was not charged with an offence before that court.   Accordingly the complaints as submitted do not disclose any violation of Art. 6, paras. 1 or 3, sub-para. c (Art. 6-1, art. 6-3-c).   It follows that this part of the application brought against Ireland is incompatible ratione materiae with the provisions of the Convention within the meaning of Art. 27, para. 2 (Art. 27-2).   Insofar as this part of the application complains of a violation of the Convention by the United Kingdom, legislation of the United Kingdom cannot confer a right of audience in an Irish Court. Nor were the proceedings in the Irish Court a part of the criminal proceedings against the applicant in the English Court.   The proceedings before the Irish Court were not concerned with the taking of evidence on which the criminal charge against the applicant would be determined but with the safeguarding and access to the exhibits. Accordingly, Art. 6, para. 3, sub-para. c of the Convention (Art. 6-3-c) did not require the United Kingdom authorities to give legal assistance to the applicant to appear before the Irish Court.   It follows that insofar as this part of the application relates to the responsibilities of the United Kingdom it too is incompatible ratione materiae with the provisions of the Convention within the meaning of Art. 27, para. 2 (Art. 27-2).   2.       The applicant complains also that he was hampered in this preparation of his defence by the circumstances of the case.   It is true that Art. 6, para. 3, sub-para. b (Art. 6-3-b) guarantees that a person charged with a criminal offence shall have adequate time and facilities for the preparation of his defence.   However, the applicant was not charged with a criminal offence before the Irish court and accordingly this complaint cannot disclose any violation of Art. 6, para. 3, sub-para. b (Art. 6-3-b) on the part of the Irish authorities.   This part of the complaint is therefore incompatible ratione materiae with the provisions of the Convention within the meaning of Art. 27, para. 2 (Art. 27-2).   As regards the responsibilities of the English authorities, the Commission recalls that the Irish court ordered the English DPP to make available to the applicant adequate opportunity to inspect the exhibits and to inform him if any other inspection was to take place. The Commission also recalls that the Divisional Court of the Queens Bench Division held that the English DPP had taken the utmost care of the exhibits in the precautions taken in respect of their transfer to and from Ireland.   There has been no allegation made by the applicant that the exhibits did in fact suffer any contamination.   The Commission therefore finds on examination that this aspect of the complaint as it has been submitted does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular in the above Article (Art. 6-3-b) by the English authorities.   It follows that this part of the application is manifestly ill-founded within the meaning of Art. 27, para. 2 of the Convention (Art. 27-2).   3.       The applicant also complains in respect of the proceedings in the English Courts he was prevented from obtaining the examination and attendance of witnesses because of the delay before his trial during which a police expert witness died.   It is true that Art. 6, para. 3, sub-para. d (Art. 6-3-d) guarantees the right for a person charged with a criminal offence "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" and that Art. 6, para. 1 (Art. 6-1) guarantees the right to the determination of charges within a reasonable time.   Insofar as the applicant makes the complaint of delay against the Irish court, the Commission recalls that the Irish authorities were not responsible for fixing the date of the applicant's trial on the criminal charge and furthermore that the proceedings before the Irish court did   not lead to a determination of the applicant's civil rights and obligations and that he was not charged with a criminal offence. Accordingly, this part of the complaint does not disclose any violation of Art. 6 (Art. 6) and is incompatible ratione materiae within the meaning of Art. 27, para. 2 (Art. 27-2).   Insofar as the applicant complains in respect of the proceedings in England, the Commission recalls that the applicant had to wait from 24 January 1982 to 26 May 1983 to be tried and that the said witness died on 30 November 1982.   However, having regard to the complexity of the charges, the fact that the preparations for trial were unavoidably delayed by the judicial review proceedings and by the exhibits being under the jurisdiction of the Irish court, the Commission finds that an examination of the case as it has been submitted by the applicant does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and in particular of Art. 6, para. 3, sub-para. d (Art. 6-3-d) read in conjunction with Art. 6, para. 1 (Art. 6-1), by the Government of the United Kingdom.   It follows that this part of the application is manifestly ill-founded within the meaning of Art. 27, para. 2 of the Convention (Art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Deputy Secretary to the Commission           President of the Commission            (J. RAYMOND)                              (C.A. NØRGAARD)