CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 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 13 May 1986, the following members being present:                       MM. C.A. NØRGAARD, President                         G. SPERDUTI                         J.A. FROWEIN                         F. ERMACORA                         E. BUSUTTIL                         G. JÖRUNDSSON                         G. TENEKIDES                         S. TRECHSEL                         B. KIERNAN                         A.S. GÖZÜBÜYÜK                         A. WEITZEL                         J.C. SOYER                         H.G. SCHERMERS                         H. DANELIUS                         G. BATLINER                         H. VANDENBERGHE                     Mrs G.H. THUNE                     Sir Basil HALL                       Mr. H.C. KRÜGER, 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 16 July 1984 by M. Heston FRANÇOIS against the United Kingdom and registered on 27 July 1984 under file No. 11058/84;   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 facts as they have been submitted on behalf of the applicant, a British citizen born in 1934, who is represented before the Commission by Messrs Mackenzie Patten & Co, solicitors, of London, may be summarised as follows:-   The applicant was convicted on 23 February 1982 of two offences of burglary and one of handling stolen property ("the burglary charges"). He was sentenced to concurrent terms of five years, five years and 18 months imprisonment respectively.   On 8 July 1981, while on bail awaiting trial for the burglary charges, the applicant was arrested and confessed to dishonestly handling two stolen cars and to dishonestly handling a Ministry of Transport Test Certificate.   On 23 February 1982 he was committed for sentence in respect of these offences to the Inner London Crown Court and, immediately following his sentence for the burglary charges, was sentenced to concurrent terms of 18 months, 18 months and 12 months imprisonment respectively for each of them.   The arrest of the applicant on 8 July 1981 followed a police search of his home in respect of which the police claim to have been acting pursuant to a warrant relating to stolen jewelry.   However, the applicant's representative contends that in fact no such warrant was ever issued.   No copy of the alleged warrant exists in the court records of the Magistrates' Court which supposedly issued it, and an internal police enquiry is currently in progress to establish whether or not a warrant was indeed issued.   In the course of their search of the applicant's home on 8 July 1981, the police came upon some 25 files and various tape recordings belonging to the applicant which had been prepared for use in his defence to the burglary charges.   These files and tapes were removed by the police.   The two police officers who were involved in the investigation of the burglary charges were informed that these tapes and documents had been seized, and they subsequently visited the police station at which they were held and examined the files and tapes.   The fact that these items were examined by them was revealed by the solicitor for the Metropolitan Police to the applicant's solicitors.   The police officers stated at the time that they were investigating alleged interference by the applicant with witnesses for the prosecution in relation to the burglary charges.    By the time the matter came to be tried, however, it was conceded that the applicant had in no way interfered with any witness, either those for the prosecution or otherwise.   The applicant contends that the scrutiny of his files relating to his defence enabled the police officers to adapt their evidence at the forthcoming trial.   However, the prosecution evidence in this case, including the statements of two of the police officers in question, was served on the defence before 1 September 1980, prior to the applicant's committal by the Magistrates' Court, at which stage the Magistrates had to decide whether or not there was a case to answer against the applicant.   The applicant applied to the Inner London Crown Court to have the proceedings on the burglary charges stayed on the grounds that the defence documents had been seen by prosecution witnesses, namely the police offices who were thus able to adapt their evidence, and that this constituted an abuse of the Court's process.   After two days of legal submissions by counsel for the applicant this application was rejected and the trial went ahead.   The applicant was convicted and sentenced.   The judge dealt again with the issue of the seizure in his summing-up and pointed out the officers' evidence had been served on the defence before the incident had occurred and that there was no question of any adaptation of their evidence.   The applicant sought leave to appeal from the single judge. Leave to appeal was refused, but the applicant renewed his application to the Full Court of Appeal, which granted leave to appeal.   The appeal, which was heard on 31 January 1984, specifically examined the following questions:-   Whether "Legally privileged documents found by a prosecuting authority cannot be removed from the possession of their owner, or his legal representatives, without their consent, unless the prosecuting authority can demonstrate to the court that it is reasonably suspected that the documents contained evidence of the commission of a crime";   And, whether "The seizure and removal, without consent, of documents that on the face of them have been brought into existence by an accused (or his legal representative) for the purpose of preparing his defence in criminal proceedings for which he has already been committed for trial is to go behind the accused's right to silence, and is, therefore, an abuse of the process of the court."   And, whether "Even if (contrary to the submissions above) the seizure of the legally privileged documents by a prosecuting authority is lawful, the use of the contents of the documents for the purpose of conducting the prosecution is an abuse of the process of the court. The burden is upon the prosecuting authority to satisfy the court that no such use has in fact been made of the contents of such documents." (Counsel for the applicant's heads of argument, transcript of the Court of Appeal P 12 C-E).   The applicant's appeal was rejected on the grounds that, although a power may exist to stay criminal proceedings against an accused as being an abuse of the process to the court, no difficulty arose in the present case to justify an enquiry into the facts of the prosecution's access to the defence's file, or to consider a stay on the basis of such evidence.   The Court of Appeal recognised that the operation of a duty to investigate allegations made by a defendant in such circumstances:   "Would present difficult procedural problems, for example:-   (i)      of defining the issues claimed to exist, which may be very complex;   (ii)     of providing for representation of persons whose conduct is impugned;   (iii)    of ensuring that the persons affected are sufficiently aware of the case they have to meet.   Whilst these problems may be overcome, the issues referred to are best left, we think, to be dealt with during the course of the trial and, if necessary, later by the Court of Appeal.   The Court of Appeal will have the advantage - one of which we have had the benefit in this case - of assessing whether the defendant has suffered any actual prejudice in the course of the trial."   The Court recognised that the only substantial consequence of the perusal of the defendant's files and tapes by the police officers in question was that the prosecution thereby had advanced knowledge of the names of the witnesses whom the applicant intended to call at his trial.   In the course of the appeal Counsel for the applicant conceded that he could not show that any use was made at the trial of any information contained in the defence file.   The Court was further satisfied from the very substantial grounds of appeal filed both by the applicant and by Counsel, that had there been any basis for an assertion that use had indeed been made at the trial of the burglary charges of the applicant's files or tapes, this would have been brought to the Court's attention.   The applicant's counsel submitted that such an analysis of actual prejudice, arising with the benefit of hindsight, is not the appropriate test.   She contended that the fact of seizure of legally privileged documents should, in itself, be sufficient to require the judge to consider the matter before the trial and in a suitable case to exercise a discretion to stay the proceedings in favour of the accused.   Hence, it was not the Court of Appeal's task, in the applicant's Counsel's submission, to take account of the fact that the applicant was not in fact prejudiced by the seizure of his documents and tapes.   The Court of Appeal also took account of the arguments of the prosecution, that it was in the public interest that the prosecution should continue and that the criminal courts should not be used to discipline the police for possible misdemeanours.   The applicant's right to silence was properly preserved by the discretion of the judge to exclude evidence, or to leave the evaluation of evidence to the jury after a clear direction that its value may be doubtful.   The requirement of a pre-trial inquiry in circumstances such as the present case would be impractical, and open to abuse by unscrupulous and dishonest accused persons.   The present case well illustrated the importance of discovering in the course of a trial whether the alleged misconduct by the police had any effect on either the evidence, or the outcome of the trial.   In the present case it had had none.   The court held that there was no general duty on a judge to conduct a pre-trial inquiry on the application of an accused and thereafter to exercise a discretion as to whether or not proceedings should be stayed.   The court had an inherent jurisdiction to stay proceedings but that discretion did not include an obligation to hold a pre-trial inquiry,   "designed to bring about a stay of proceedings into such allegations as the improper obtaining of evidence, tampering with evidence, and the seizure of a defendant's documents prepared for his defence. However reprehensible conduct of this kind may be, it is not, at least in circumstances such as the present, an abuse, or in other words, a misuse, of the court's process.   It is conduct which, in these circumstances, can be dealt with in the trial itself by judicial control upon admissibility of evidence, the judicial power to direct a verdict of not guilty, usually at the close of the prosecution's case, or by the jury taking account of it in evaluation of the evidence before them."   The Court of Appeal added that:   "The unlawful and unjustified seizure of a defendant's documents prepared for his defence should not, of course, occur.   Any activity of this kind, above all together with its possible implications upon the conduct of a trial, is deserving of censure and probably the activation of the police disciplinary code.   Whilst we do not feel able to say, on the material before us, that the police officers' conduct in this case was of that order, we do feel it right to say that police officers must regard documents, albeit that they are lawfully seized from a defendant following arrest and committal for trial, with great caution, lest they contain matters for which a defendant is entitled to claim the protection of privilege so that his right to silence be not destroyed."   Taking account of the circumstances of the conduct of the applicant's trial, the Court of Appeal concluded that there was reason to suppose that the verdict in the applicant's case was neither unsafe or unsatisfactory.   The appeal was therefore dismissed.   The Court of Appeal certified that a question of law of general public importance was involved in their decision to dismiss the appeal and granted legal aid to prepare an application for leave to appeal to the House of Lords on the question of the extent to which the conduct of police officers in the seizure and removal of legally privileged documents without the applicant's consent constituted an abuse of the process of the court and rendered the continuation of criminal proceedings unfair to the applicant.   The application for leave to appeal was heard and dismissed by the appeal committee of the House of Lords on 15 March 1984.   COMPLAINTS   Article 6 (Art. 6)   The applicant complains first that he was denied a fair trial in respect of the burglary charges in view of the seizure of his defence papers and tapes.   He contends that the objective standard of fairness set out in Article 6 (Art. 6) requires that the accused in criminal proceedings must have the option to remain silent until the moment of his trial, and that the Court of Appeal was wrong to assess the significance of the interference with the rights of the defence by reference to its ex post facto criterion of whether or not the papers and tapes were in fact used to the applicant's disadvantage by the police officers who seized them or by the prosecution in the subsequent trial.   In addition, the applicant contends that the right to remain silent and the right of absolute privilege for defence documents may be derived from Article 6, para. 3, sub-para. b of the Convention (Art. 6-3-b), and that this right was similarly not respected in the present case.   Article 8 (Art. 8)   The applicant further contends that the detention of the seized documents and the subsequent act of making them available to the officers investigating the separate burglary offences were contrary to Article 8 (Art. 8).   It is acknowledged that the seizure of the documents would have been justified under Article 8 para. 2 (Art. 8-2) for the purpose of any criminal investigation for which the warrant (if any) was issued. However, it is contended that there could be no such justification for passing the documents to the officers responsible for the quite separate investigation of matters in respect of which the applicant had already been charged, where the documents contained the applicant's proposed defence to such charges and moreover where it was acknowledged that the documents did not contain any material which could aid the police in any criminal enquiries.   The applicant also apparently complains that certain tapes and documents were not returned to him.   PROCEEDINGS BEFORE THE COMMISSION   The application was introduced on 16 July 1984 and registered on 27 July 1984.   On 14 December 1984, the Commission decided to bring the application to the notice of the respondent Government and to invite them to submit written observations on its admissibility and merits on the issue concerning Article 6 (Art. 6).   The Government's observations were submitted on 29 May 1985 and the reply thereto submitted by the applicant on 29 July 1985.   SUBMISSIONS OF THE PARTIES   A.       The respondent Government   1.       The facts   On 8 July 1981, while the applicant was on bail awaiting trial on burglary charges, he was arrested at his home by Brixton police officers, who had a warrant to search his home for stolen goods. During the search, they found files and tapes which they took back to the police station.   Two police officers involved in the investigation of the burglary charges were informed and went to examine the files and tapes.   They were investigating an allegation that the applicant was likely to interfere with witnesses for the prosecution, in particular a Mr. Disdale.   No evidence was found.   They reported to their superiors, who informed the solicitor to the Metropolitan Police, who in turn informed the applicant's solicitors.   The papers and tapes were returned by Brixton police on 23 July 1981.   2.       Relevant domestic law and practice   At common law, where police search premises under a warrant for stolen goods, they may also seize other objects which they believe on reasonable grounds to be material evidence of any crime committed by that person.   A trial judge has power at common law to order a stay of proceedings, the effect of which is that the accused may no longer be tried for the offence in question.   The trial judge also has the discretion to refuse to admit the relevant admissible evidence on the ground that its use at the trial would be unfair.   3.       Admissibility and merits           a)       Article 6, para. 3, para. b (Art. 6-3-b)   The Government submit that the applicant had at least 20 months to prepare his defence i.e. from April 1980 to 11 January 1982, the date of his trial.   The seizure and examination of the files by the police was lawful and the applicant, neither at trial nor in his application, challenges this.           b)       Article 6 para. 1 (Art. 6-1)   It is the constant case-law of the Commission (see e.g. Application No. 9370/81) that the question of whether a trial complies with Article 6 para. 1 (Art. 6-1) must be based on an evaluation of the trial in its entirety rather than on an isolated consideration of one aspect. In this case the applicant did receive a fair hearing despite the examination of his documents by the police.   Firstly the police made no secret of the matter, the applicants solicitors being informed.   Secondly, at trial, the judge heard lengthy argument over two days on the question of whether proceedings should be stayed.   The judge decided not to stay proceedings but left it to his discretion to exclude any evidence on the ground that its use at trial would be unfair.   Since, however the prosecution were not in possession of any evidence gained from the files, and, as the applicant conceded during his appeal, no use was made of any information contained in the files, the judge had no need to exercise his discretion.   Thirdly, the judge placed the matter before the jury in his summing-up and the jury convicted after hearing the evidence and having the opportunity of assessing the credibility of the police witnesses.   Lastly, the trial was fully reviewed by the Court of Appeal, which concluded that there was nothing to suggest that the applicant had suffered any actual prejudice during the trial.   B.       The Applicant   1.       The facts   The applicant maintains that he was not shown a warrant to search his home and none has been produced since.   He submits that the police did not act in the perfectly proper or reasonable manner as the Government suggest.   Material seized has still not been returned. Furthermore the police were aware of the nature of the materials when they were seized and the examination of them by police officers involved in the burglary charge was probably only revealed because one of the officers left a note in the files.   The reason given for examination of the files i.e. to find evidence of, witness-tampering appears as a flimsy excuse, since no evidence to support this allegation was ever found.   2.       Admissibility and merits           a)       Article 6 para. 1 (Art. 6-1)   The applicant alleges that the seizure, retention and examination of his defence materials deprived him of a fair trial.   It is irrelevant whether the applicant suffered any actual prejudice since the seizure in itself constituted a fundamental violation of the Convention. Neither the trial judge nor the Court of Appeal considered whether the applicant's rights under the Convention had been adequately protected.           b)       Article 6, para. 3, sub-para. b (Art. 6-3-b)   There was a direct breach of Article 6, para. 3, sub-para. b (Art. 6-3-b), since this provision must include the right to privileged documents in the preparation of the defence and the right to silence until such time as one is faced by one's tribunal.   THE LAW 1.       The applicant complains that the seizure, retention and examination of his defence documents deprived him of a fair trial.   He also complains that he was deprived of the right to privileged documents in the preparation of his defence and the right to silence, both of which he argues must form part of the rights guaranteed under Article 6, para. 3, sub-para. b (Art. 6-3-b).   Article 6 para. 1 of the Convention (Art. 6-1) reads:   "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. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."   Article 6 para. 3 of the Convention (Art. 6-3) states:   "Everyone charged with a criminal offence has the following minimum rights:   b)       to have adequate time and facilities for the preparation of his defence."   The question of whether a trial conforms to the standards laid down in Article 6 para. 1 (Art. 6-1) must be decided on the basis of an evaluation of the trial in its entirety and not on the basis of an isolated consideration of one particular incident or one particular aspect of the trial.   The Commission refers in this respect to its constant case-law (see e.g. Comm. Report on Application No. 343/57, Nielsen v. Denmark Y.B. 4 p. 548, Application No. 5574/72, D.R. 3 p. 10, Application No. 7306/75, D.R. 7 p. 115 and Application No. 8744/79, D.R. 32 p. 141).   The Commission has accordingly looked at the applicant's trial as a whole on the basis of the parties' submissions.   It recalls in particular that:   i)       the seizure and examination of the documents was brought to the attention of the trial judge who heard full argument on whether there was an abuse of process requiring a stay of proceedings;   ii)      the issue was also fully argued before the Court of Appeal, which gave a full and reasoned judgment;   iii)     both the trial judge and appeal court were satisfied that the police officers made no use of any of the information which was seized, their evidence having been submitted in statements before the seizure took place; and   iv)      the applicant's counsel conceded during the appeal hearing that he could not show that any use was made at the trial of any information contained in the files.   The Commission also notes that the Government alleges that no use was made of any information contained in the files and that the applicant has not contradicted this assertion, arguing instead that it is irrelevant whether he did suffer any actual prejudice.   The Commission concludes therefore that the applicant has failed to establish that in the circumstances of the case he did not receive a fair hearing in the determination of the charges against him.   An examination of the trial as a whole accordingly does not disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1).           As regards Article 6 para. 3 sub-para. b (Art. 6-3-b), the Commission notes that the seized documents were not used to incriminate the applicant in connection with the burglary proceedings and played no part as evidence in his trial.   On examination of the circumstances of the case as a whole therefore, the Commission finds that the applicant suffered no disadvantage in the preparation of his defence and the facts therefore fail to disclose any appearance of a violation of this provision of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention (Art. 27-2).   2.       The applicant further complains that the retention of the documents and the examination of them by police officers involved in another investigation constituted an interference with his right to respect for his private life, home and correspondence contrary to Article 8 of the Convention (Art. 8).   The applicant submits also that not all of his materials were returned.   Article 8 (Art. 8) guarantees to everyone the right to respect for their private and family life, home and correspondence.   However, 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 as, under Article 26 of the Convention (Art. 26), it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case the applicant failed to bring an action challenging the lawfulness of the seizure and retention by seeking a declaration together with an order for the return of any materials in police possession and has, therefore, not exhausted the remedies available to him under domestic law.   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 exhausting the domestic remedies at his disposal.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and this part of the application must in this respect be rejected under Article 27 para. 3 of the Convention (Art. 27-3).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                  President of the Commission         (H.C. KRÜGER)                                 (C.A. NØRGAARD)