CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 mars 1987

.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 } .s23A41E03 { width:36pt; display:inline-block }                                    AS TO THE ADMISSIBILITY     Application No. 12323/86 by Thomas Campbell against the United Kingdom             The European Commission of Human Rights sitting in private on 6 March 1987, 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                         J. CAMPINOS                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 (Art. 25) of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 5 July 1985 by Thomas CAMPBELL against the United Kingdom and registered on 8 August 1986 under file No. 12323/86;           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 Glasgow.   He is currently serving a life sentence.   He is represented before the Commission by John Carroll, a solicitor.   The facts as submitted by the applicant may be summarised as follows.           On 16 April 1984, a fire occurred in a house in Glasgow in which six persons died.   This was an incident in a spate of violence and vandalism occurring between rivals in the ice-cream trade.           The applicant, who had relations in the ice-cream trade and a record of violent offences was arrested and appeared in Court on 16 May 1984 charged with conspiracy.   On 22 May, the applicant was brought back to Court and served with a fresh petition charging murder in respect of the fire on 16 April 1984.   During the judicial examination of the applicant, the Procurator Fiscal Depute conducting the case, questioned him on the basis that the applicant was present at the house and was involved in starting the fire.   The applicant in reply specified in detail an alibi for that time.           The applicant was subsequently indicted to the High Court in Glasgow on charges of conspiracy to commit robbery, wilful fire-raising, murder, assault and instigation of others to commit assault and murder.   The applicant was found guilty of assault and murder on 10 October 1984 and was sentenced to ten years imprisonment and life imprisonment, with a recommendation that he serve not less than twenty years.           The applicant applied for legal aid to appeal his conviction: he had already been legally-aided during the trial.   It appears however the applicant's solicitor and counsel indicated that they would not be prepared to argue his appeal as he wished.   The applicant therefore prepared and lodged his own grounds of appeal and with the aid of a solicitor, prepared his submissions on appeal, copies of which were provided for the Appeal Court judges.   The applicant applied under S 274 of the Criminal Procedure (Scotland) 1975 Act to have the shorthand notes of the trial but this request was refused both by the Clerk of the Justiciary and the Secretary of State.           The applicant presented his appeal on 16 June 1985 and was considerably hampered by being kept in manacles throughout the proceedings.   The applicant requested the Lord Justice Clerk to have the manacles removed so that he could reach and refer to his papers but this request was denied and the applicant was kept manacled to at least one prison officer while before the Court.   The prosecution was represented by a senior Advocate Depute, a Q.C., who was assisted by junior counsel and members of the Procurator Fiscal service.   The Appeal Court dismissed the appeal and refused his application to receive "new evidence".             On 18 November 1985, the applicant petitioned the Secretary of State under S 263 of the Criminal Procedure (Scotland) Act 1975 to remit the matter back to the Appeal Court.   This petition was refused by letter dated 19 March 1986.           Following his appeal, the applicant was transferred to Peterhead Prison over 200 miles from his family.   As a direct consequence of his desire to work on his petition and of his complaints to the European Commission on Human Rights, the applicant was placed in solitary confinement, where he has remained ever since while in prison.           On 2 November 1985, an incident occurred in the solitary confinement block and a number of prisoners were investigated as to their alleged involvement.   On 3 November, the applicant was visited in his cell by a number of prison officers.   An incident then occurred and the applicant was removed to hospital, where he underwent a life-saving operation and a rupture to the small bowel was repaired.           On 10 November 1985, the applicant's solicitor arrived at the hospital to discuss with the applicant the circumstances which led to his admission to hospital.   He had previously been told by the Prison Division that the applicant was in hospital for an appendix operation. The visit had been arranged by the solicitor with the sanction of the prison and hospital staff, and the police who were helping in supervision.   On arrival at the hospital however, the solicitor was told that he had to submit his person and luggage (consisting of the applicant's files and a camera) to a search and that police and prison officers would have to be present at the interview.   The solicitor phoned the Assistant Governor of the prison and explained that the meeting concerned possible Court proceedings but was told that the police were in charge.   The solicitor therefore was obliged to submit to the search and to conduct the interview in the presence of police and prison officers, one of whom had been present during the incident of which the applicant was complaining.           Following the meeting, the applicant and his solicitor made a formal complaint of assault by the prison officers.   The applicant was later charged with crimes of rioting and assault in respect of the incident on 2 November 1985.   The applicant was indicted and brought to trial in May 1986 but the Crown withdrew the case since there appeared to be no evidence against him.   The applicant wished to bring proceedings against those who made the false allegations but is unable to receive legal aid for such proceedings.   He is also unable to gain access to the information on which the charges against him were based.           The applicant has however been granted legal aid in order to pursue an action for damages for assault against the Secretary of State for Scotland and it appears that a summons has now been issued instituting proceedings.     COMPLAINTS           The applicant makes the following complaints:   1.       The applicant complains that he was not informed adequately of the nature and cause of the charges against him.   The indictment accused him of setting fire to a house on 16 April 1984 in company with others and the applicant prepared his defence on the basis of his alibi.   During the trial however, the applicant alleges that since the Crown had no evidence proving that he was at the scene of the crime, they changed the nature of the allegations from that of primary participant ("actor") to that of accessory or accomplice ("art and part").   Under Scottish criminal law, there is no requirement to distinguish between these degrees of participation, all who participate being equally guilty.   The applicant contends that he was not given fair notice of this change in the nature of his alleged crimes and was therefore misled as to the nature of the charge against him.   This also prevented him from having adequate time and facilities to prepare his defence.           The applicant invokes Article 6 para. 3 (a) and (b) (Art. 6-3-a, Art. 6-3-b) of the Convention in this regard.   2.       The applicant complains that he was refused a copy of the transcript of his trial which was necessary to prepare his appeal properly.   He invokes Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.   3.       The applicant alleges that he did not receive a fair trial since:             i. the prosecution failed during the trial to disclose or explain fully the discrepancies upon which the change in the nature of the charge was based, and also withheld and concealed evidence vital to the defence;            ii. the judge in directing the jury impressed his own views of the evidence on the jury, stating, contrary to the applicant's assertions, that there was sufficient evidence to convict, failing to direct the jury that if they did not believe a witness's denial of a part of evidence they were not entitled to infer that the opposite was true and leaning strongly in favour of the evidence of a vital prosecution witness, called Love;           iii. the Appeal Court did not in their judgment deal effectively with the points of his appeal;            iv. it has appeared in the context of the trial for perjury of one of the witnesses in the applicant's trial that a witness was given a promise of immunity from prosecution in order to obtain a statement from him and that the police directed this witness to persuade another witness to change her statement to accord with his own.   This information casts grave doubts on the whole of the prosecution case.           The applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention.     4.       The applicant also complains that he was denied the right to examine or have examined witnesses against him or to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him, since the Crown failed to disclose information relevant to his defence.   The applicant invokes Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.   5.       The applicant also alleges that he was denied natural justice in his trial and appeal and consequently that he was not proved guilty according to law.   He invokes Article 6 para. 2 (Art. 6-2) of the Convention.   6.       The applicant complains that as regards the charges against him, such acts or omissions of the applicant did not constitute a criminal offence according to Scottish law at the time they were committed.   He invokes in this respect Article 5 and Article 7 (Art. 5, Art. 7) of the Convention.   7.       The applicant contends that he suffered inhuman and degrading treatment through being manacled throughout his appeal hearing.   He invokes Article 3 (Art. 3) of the Convention.   8.       The applicant complains that the conditions imposed on his solicitor on his visit to the applicant while in hospital (in particular the presence of police and prison officers, one of whom took part in the incident in which the applicant received his injury) attempted to intimidate him and in effect impeded the exercise of his right of access to Court.   The presence of the police and and prison officers throughout the interview also interfered with his right to receive and impart information.   The applicant invokes in this respect Articles 6 para. 1 and 10 (Art. 6-1, Art. 10) of the Convention.   9.       The applicant also complains that due to lack of access to information concerning the charges of riot and assault brought against him and due to lack of financial means, he is unable to bring a civil action in respect of the false allegations which were subject of the prosecution.   He invokes Article 6 para. 1 (Art. 6-1) of the Convention.     THE LAW   1.       The applicant complains of the restrictions imposed on the visit of his solicitor to him while he was in hospital.   He complains in particular that his solicitor was subjected to a search and that police and prison officers remained present during the interview.   He invokes Article 6 para. 1 and Article 10 (Art. 6-1, Art. 10) of the Convention.           The Commission considers that these complaints raise issues similar to those dealt with in CAMPBELL and FELL v. the United Kingdom (Eur.   Court H.R., Campbell and Fell judgment of 28 June 1984, Series A No. 80) and in BYRNE, McFADDEN and others v. the United Kingdom (Application Nos. 7879/77, 7931/77, 7935/77 and 7936/77, Comm.   Rep. 3.12.85).   The Commission therefore decides to invite the parties to submit observations on these issues pursuant to Rule 42 para. 2 (b) of the Commission's Rules of Procedures and accordingly to adjourn this part of the application.     2.       The applicant complains of degrading treatment in that he was kept manacled throughout his appeal hearing.           Article 3 (Art. 3) of the Convention provides that:           "No one shall be subjected to torture or to inhuman or         degrading treatment or punishment."           The Commission however refers to its previous case-law in this respect (see e.g.   Application No. 2291/64, Dec. of 1.6.67) where it has been held that while the handcuffing, in public, of a prisoner may be undesirable, it is clearly not so serious a measure as to amount to inhuman or degrading treatment within the meaning of Article 3 (Art. 3) of the Convention.           The Commission also recalls that the applicant was representing himself before the Court and that he made a request to the Court have the manacles removed so that he could reach and refer to his papers.   This request was refused and the applicant remained manacled to at least one prison officer, which he states considerably hampered him in the presentation of his appeal.   In these circumstances, the Commission considers that an issue under Article 6 para. 1 (Art. 6-1) of the Convention may arise.   The Commission therefore decides to invite the parties to submit observations on this issue pursuant to Rule 42 para. 2 (b) of the Commission's Rules of Procedure and accordingly adjourns this part of the application.   3.       The applicant also makes complaints about the fairness of his trial.   He complains in particular that the prosecution withheld and concealed evidence, that one of the prosecution witnesses had been given a promise of immunity in order to secure evidence from him, that the judge misdirected the jury and that the appeal court refused to hear new evidence.           Article 6 para. 1 (Art. 6-1) of the Convention provides that:           "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..."             The Commission recalls however that as regards the witness who was promised immunity, it appears from the judge's summing-up that the judge directed the jury that this witness could not be regarded as having given any incriminating evidence against the applicant.   The Commission also recalls that the applicant was able to raise the alleged misdirections of the trial judge in his appeal.   Insofar as the applicant complains of the decision of the appeal court, the Commission recalls that in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant jurisprudence (see e.g. decisions on the admissibility of applications No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 and No. 5258/71, Dec. 8.2.73, Collections 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).           Insofar as the applicant alleges that the prosecution concealed and withheld evidence, this complaint has not been substantiated.   In light of the above reasoning, the Commission concludes therefore that these complaints disclose no appearance of a violation of Article 6 (Art. 6) of the Convention.           It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant also complains that he was not informed adequately of the nature of the murder charge against him.   He contends that during his trial the Crown changed its case against him from one of principal to accessory ("art and part").   He also complains that this prevented him adequately from preparing his defence.           Article 6 para. 3 (a) and (b) (Art. 6-3-a, Art. 6-3-b) of the Convention provide:           "Everyone charged with a criminal offence has the following         minimum rights:           (a) to be informed promptly, in a language which he         understands and in detail, of the nature and cause of the         accusation against him;           (b) to have adequate time and facilities for the preparation         of his defence;..."           The Commission notes however that under Scottish criminal law an indictment is not required to specify whether the person charged is guilty as principal or accessory.   While the applicant therefore may not have realised that the indictment for murder he could also be found guilty of being an accomplice instead of a principal, he was certainly aware that he was accused of involvement in the unlawful killing of the occupants of the house which was burnt down.   He was also represented by solicitor and counsel who would have been fully aware of the position.           The Commission concludes therefore that these complaints disclose no appearance of a violation of Article 6 para. 3 (a) and (b) (Art. 6-3-a, Art. 6-3-b) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.     5.       The applicant also complains that he was unable adequately to prepare for his appeal contrary to Article 6 para. 3 (b) (Art. 6-3-b) of the Convention since he was refused a copy of the transcript of his trial.           It appears however that the only issue arising in the appeal concerning the transcript was whether the evidence of one of the witnesses had been contradicted by other evidence not produced at the trial.   The appeal court however held that the alleged contradictory evidence had been available at the time of trial and therefore could not now be introduced during the appeal.           In these circumstances, the Commission finds that this complaint discloses no appearance of a violation of Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   6.       The applicant complains that he was denied the right to have examined witnesses against him or on his behalf as a result of the prosecution failing to disclose information relevant to his defence contrary to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.           The Commission finds however that the applicant has failed to substantiate this complaint and that accordingly this part of the application discloses no appearance of a violation of the Convention.           It follows that this complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   7.       The applicant also complains of violations of Article 6 para. 2, Article 5 and Article 7 (Art. 6-2, Art. 5, Art. 7) of the Convention.           The Commission finds no evidence however to support the applicant's allegation that he has not been lawfully convicted and sentenced by a competent court, or that the presumption of innocence has not been respected during the applicant's trial.   The applicant has also failed to substantiate his claim that he was found guilty of acts or omissions which did not constitute a criminal offence under Scottish law at the time they were committed.   The Commission therefore finds no appearance of a violation of Articles 5, 6 para. 2 or 7 (Art. 5, Art. 6-2, Art. 7) of the Convention.           It follows that this complaint must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   8.       The applicant complains also that he is unable to gain legal aid in order to sue for defamation those persons who furnished information which resulted in a prosecution for riot and assault being brought against him.           Article 6 para. 1 (Art. 6-1) provides inter alia that:           "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..."           The Commission recalls that according to the constant case-law of the Commission and the Court Article 6 para. 1 (Art. 6-1) guarantees to litigants an effective right of access to the courts for the determination of their civil rights and obligations (see e.g.   Eur. Court H.R., Airey judgment of 9 October 1979, Series A No. 32).           The Commission notes however that the applicant cannot identify the alleged informants or indeed establish that anything defamatory has in fact been said.   In these circumstances, even assuming Article 6 (Art. 6) applies, the refusal of legal aid for an action in defamation does not constitute a violation of Article 6 (Art. 6) of the Convention, the applicant having failed to substantiate that he has a right of action against anyone.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   9.       Finally, the Commission notes the applicant's statement that he has been placed in solitary confinement as a consequence of his desire to work on his petition and of his complaints to the European Commission of Human Rights.   In this respect the Commission decides to request the Government's explanations in the context of Article 25 para. 1 (Art. 25-1) in fine of the Convention which provides that those High Contracting Parties who have made a declaration recognising the Commission's competence to receive individual petitions undertake not to hinder in any way the effective exercise of this right.           For these reasons, the Commission           DECLARES INADMISSIBLE the various complaints made by the         applicant under Articles 5, 6 paras. 1, 2 and 3 (a), (b) and         (d), 7 and 10 (Art. 5, Art. 6-1, Art. 6-2, Art. 6-3-a, Art. 6-3-b,   Art. 6-3-d, Art. 7, Art. 10 of the Convention (as set out   under points 3 to   8 of The Law)             DECIDES TO ADJOURN the remainder of the application.         Secretary to the Commission          President of the Commission                (H.C. KRÜGER)                       (C.A. NØRGAARD)