CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 décembre 1990

.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 }                          AS TO THE ADMISSIBILITY OF                         Application No. 15847/89                       by Nwachukwa IROEGBU                       against the United Kingdom             The European Commission of Human Rights sitting in private on 3 December 1990, the following members being present:                 MM. C.A. NØRGAARD, President                   J.A. FROWEIN                   S. TRECHSEL                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H.G. SCHERMERS                   H. DANELIUS              Mrs.   G. H. THUNE              Sir   Basil HALL              Mr.   F. MARTINEZ RUIZ              Mrs.   J. LIDDY              MM.   L. LOUCAIDES                   A.V. ALMEIDA RIBEIRO                   M.P. PELLONPÄÄ                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 26 September 1989 by Nwachukwa IROEGBU against the United Kingdom and registered on 30 November 1989 under file No. 15847/89;           Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a British citizen born in 1960 and resident in London.   The facts as submitted by the applicant may be summarised as follows.           On 5 November 1986, the applicant was arrested in connection with drugs offences.   During the subsequent questioning by the police, the applicant alleges that he requested a solicitor repeatedly but the police denied him access to a solicitor.   The police alleged that during this period the applicant made confessions concerning the drugs offences.           The applicant was tried in the Crown Court on charges of possession of cannabis with intent to supply.   He was convicted and sentenced to three years' imprisonment.           The applicant's counsel advised against appealing and his legal aid was withdrawn.   The applicant lodged an appeal himself and on 25 May 1988, the Full Court granted him leave to appeal against conviction and sentence.   He was also granted legal aid for representation at the hearing of the appeal.           The appeal was heard before the Court of Appeal on 28 July 1988.   The main grounds of appeal were:           (1)   that the judge erred in law in allowing as evidence the         admissions allegedly made by the applicant since the         requirements of the Police and Criminal Evidence Act 1984         and the Code of Practice had not been complied with;           (2)   that the judge in his summing-up went beyond justifiable         comment in expressing his own view of the applicant's guilt         and showed undue bias.           As regards the first ground, the Court of Appeal held that insofar as there was substance in this complaint, counsel for the defence had not objected to the evidence of the admissions under Section 78 of the Police and Criminal Evidence Act 1984 during the trial and the matter could not now be dealt with in the Court of Appeal.           As regards the second ground, the Court of Appeal had regard to one particular passage from the transcript of the judge's summing-up, where the judge is recorded as saying:   "Mr.   McGrail, for the defence, has his instructions, but grasping the nettle, because it is obvious to everyone in this court, is it not, that I think his client is lying; lying cunningly, the prosecution say, in that he admits matters of detail that do not point to his guilt, but denies - and I think 'ducks and weaves' was one of the phrases used by counsel for the crown - anything which he thinks hurts his case..."           The Court held, however, as follows:   "...it appears such a surprising and unlikely observation for an experienced judge to have made, that the court caused the position to be checked with the shorthand writer who stated in a letter brought to the notice of counsel, that on checking it was possible that the words 'I think' were a mis-transcription for the word 'either'.   Such an explanation would make good logical sense in the passage concerned and would of course be no source of surprise to the court.   However, prosecuting counsel present at the trial has confirmed to us that the words 'I think' are indeed correct and this court deals with the appeal on that basis.   It must be said at once that, in the view of this court, no such comment should ever be made by a judge in the course of summing-up even in a case in which, as prosecuting counsel told us was the position here, the manner or content of a witness's evidence appeared to warrant incredulity.   It is axiomatic that it is the function of the judge to remain, and to appear to remain, objective, leaving the jury, in accordance with customary forms of direction, to decide the facts for themselves.   While the judge should (as he did elsewhere in his summing-up) instruct the jury to ignore, if they disagree with it, any view of the evidence which the judge may appear to express, it can never be appropriate for a judge to give an express indication of his own misbelief in relation to the evidence of a witness, let alone that of the defendant.   That said, however, a single remark of that kind will not ipso facto render a verdict which accords with the judge's indication of view unsafe or unsatisfactory, and indeed this court does not consider that it did so in this case.   Not only did the judge give a customary form of direction at the outset, but throughout his judgment, in the passages above-mentioned and elsewhere, he repeatedly made clear to the jury not only that the issue was one of credibility, but that the decision was entirely one for them.   Whilst the court considers that, taken alone, the indication complained of was one which should never have been given, when the summing-up is read as a whole we do not consider that the jury would have been misled or improperly influenced by it."           The applicant's appeal was therefore dismissed.   His application for leave to appeal to the House of Lords was dismissed on 15 May 1989.   COMPLAINTS           The applicant complains that he did not receive a fair trial or appeal contrary to Article 6 of the Convention.   He complains that the Court of Appeal dismissed his appeal despite the fact that it considered that the alleged confessions were inadmissible.   He complains that he was denied access to a solicitor by the police and convicted unfairly on disputed evidence obtained in the absence of a solicitor.   He complains that the judge's conduct was prejudicial and unfair and that his defence counsel acted unfairly and against his interests.           The applicant also invokes Article 14 of the Convention.   THE LAW           The applicant complains that he did not receive a fair trial contrary to Article 6 para. 1 (Art. 6-1) of the Convention, which provides as follows in the first sentence:           "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 applicant has complained of a number of matters as having deprived him of a fair trial.   The Commission has examined each of these in turn.   1.       The applicant complains that he was denied access to his solicitor by the police and that the alleged confession obtained during this period was admitted in evidence at his trial.           However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) as, under Article 26 (Art. 26)of the Convention, it 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 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, during his trial, challenge the admissibility of this evidence under Section 78 of the Police and Criminal Evidence Act 1984, with the result that the Court of Appeal was unable to examine this aspect of his appeal.   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 his complaint in the proceedings referred to.           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 has also complained that the judge was prejudiced and unfair.           The Commission recalls that the applicant brought his complaints concerning the judge's comments in his summing-up before the Court of Appeal.           The Commission examined a similar complaint concerning an alleged error in a judge's summing-up in Application No. 10361/83 (Lynch v. Ireland, Dec. 9.5.84, to be published in D.R.).   In this application it held as follows:           "The Commission recalls its function in examining         whether or not a trial has been fair within the meaning         of Article 6 para. 1 (Art. 6-1) of the Convention.   It is         not called upon to decide whether the domestic courts have         correctly assessed the evidence before them, but only 'whether         evidence for and against the accused has been presented in         such a way, that he has had a fair trial' ...           In addition, as the Commission stated in the Nielsen case         (Application No. 343/57, Comm.   Rep. 15.3.61, YB4 p. 548),         the question whether the proceedings have been unfair must         be decided:           'on the basis of a consideration of the trial as a whole         and not on the basis of an isolated consideration of one         particular incident.   Admittedly, one particular incident         or one particular aspect ... may have been so prominent         or may have been of such importance as to be decisive for         the general evaluation of the trial as a whole.         Nevertheless, even in this contingency, it is on the basis         of an evaluation of the trial in its entirety that the         answer must be given to the question whether or not there         has been a fair trial' ...".           In the present case, the Court of Appeal found that while one of the judge's remarks should not have been made, there was no unsafe or unsatisfactory verdict since in the context of the summing-up it was made clear to the jury that the issue of credibility was entirely one for them.   The Court concluded that the jury would not have been misled or improperly influenced by the judge's remark.           In such circumstances the Commission finds no appearance of a violation of Article 6 para. 1 (Art. 6-1) on this ground.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant has also complained of the conduct of his defence by his barrister.           However, under Article 25 para. 1 (Art. 25-1) of the Convention, the Commission may only receive an application from a person, non-governmental organisation or group of individuals where the applicant alleges a violation by one of the Contracting Parties of the rights and freedoms set out in the Convention and where that Party has recognised this competence of the Commission.   The Commission may not, therefore, receive applications directed against private individuals such as, in this case, the applicant's lawyer.   In this respect the Commission refers to its established case-law (see e.g.   No. 172/56, Dec. 20.12.57, Yearbook 1 pp. 211, 215; No. 852/60, Dec. 19.9.61, Yearbook 4 pp. 346, 352; No. 9022/80, Dec. 13.7.83, D.R. 33 pp. 21, 36).           It follows that this part of the application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.       The applicant has also invoked Article 14 (Art. 14) of the Convention, which prohibits discrimination in the enjoyment of the rights set out in the Convention.           The Commission has examined the applicant's complaint as submitted by him.   However, the Commission finds that it does not disclose any appearance of a violation of this provision.           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.           For these reasons, the Commission, by a majority           DECLARES THE APPLICATION INADMISSIBLE.       Secretary to the Commission          President of the Commission              (H.C. KRÜGER)                       (C.A. NØRGAARD)