CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 janvier 1991

.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. 13071/87                       by Derek EDWARDS                       against the United Kingdom             The European Commission of Human Rights sitting in private on 9 January 1991, the following members being present:                 MM. S. TRECHSEL, Acting President                   F. ERMACORA                   G. SPERDUTI                   E. BUSUTTIL                   G. JÖRUNDSSON                   A.S. GÖZÜBÜYÜK                   A. WEITZEL                   J.-C. SOYER                   H. DANELIUS              Sir   Basil HALL              MM.   F. MARTINEZ RUIZ                   C.L. ROZAKIS              Mrs.   J. LIDDY              MM.   J.-C. GEUS                   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 1986 by Derek EDWARDS against the United Kingdom and registered on 10 July 1987 under file No. 13071/87;           Having regard to           - the reports provided for in Rule 47 of the Rules of         Procedure of the Commission;           - the observations submitted by the respondent Government on         25 October 1989 and the observations in reply submitted by the         applicant on 25 November 1989 and 14 February 1990;           - the observations made by the parties at the oral hearing         on 9 January 1991;           Having deliberated;           Decides as follows:   THE FACTS           The applicant is a United Kingdom citizen.   He was born in 1943 and is at present a prisoner in Her Majesty's Prison Frankland, Durham, England.           The facts of the case as submitted by the parties may be summarised as follows.           On 9 November 1984, the applicant was convicted at Sheffield Crown Court of one count of robbery and two counts of burglary.   He received a sentence of imprisonment of ten years for the robbery, and two sentences of eight years each for the burglary offences.   All three sentences are being served concurrently.   His application for leave to appeal against conviction and sentence was dismissed by a single judge of the Court of Appeal on 5 February 1985.   His renewed appeal to the Full Court concerning sentence only was dismissed on 21 May 1985.           On 16 May 1985, the applicant petitioned the Secretary of State for Home Affairs with complaints against police officers who had investigated his case and given evidence at his trial.   An independent police investigation was ordered in the course of which certain facts came to the applicant's attention.   On 3 December 1985 the applicant applied for leave to appeal out of time.   The police report (unpublished) dated 5 December 1985, was delivered to the Police Complaints Authority which directed it to the Director of Public Prosecutions.           In February 1986, the Director of Public Prosecutions decided that there was insufficient evidence to support criminal charges against the police officers but recommended that disciplinary charges be brought against three police officers.   At the disciplinary hearing on 13-15 June 1988, the tribunal decided that there was no case to answer and dismissed the charges.           In the meantime, on 21 March 1986 the Secretary of State for Home Affairs referred the applicant's case to the Court of Appeal (Criminal Division) under Section 17 (1)(a) of the Criminal Appeal Act 1968.   The applicant was represented in these proceedings by Queen's Counsel.   The reference was heard on 18 July 1986 and judgment delivered on the same date.           The evidence against the applicant consisted of detailed verbal admissions that he was implicated in the offences.   The applicant's co-defendant had given the police information which led to the applicant's arrest and subsequent unsigned confession.   He had maintained at his trial that these statements had been concocted by the police and his defence did not require any witnesses except the interviewing officers.   Before the Court of Appeal the applicant submitted that the verdict should be set aside as unsafe and unsatisfactory because of certain shortcomings in the prosecution case.   In particular it appeared that one of the police witnesses had stated under cross-examination by counsel for the applicant that no fingerprints were found at the scene of the crime.   In fact two fingerprints had been found which later turned out to be those of the next door neighbour who was a regular visitor to the house.   The Court of Appeal rejected the allegation that the police officer had told lies at the trial in the following terms: "We do not accept that interpretation of Detective Sergeant Hoyland's evidence.   We think quite plainly what he was indicating there and intended to indicate was that no fingerprints relating to either of the two alleged burglars were discovered at the scene:   neither the fingerprint of Rose nor the fingerprint of Edwards, the present appellant. We do not think, had the matter been carried further, it would have been demonstrated that Hoyland was a person who to that extent could not be believed on his own."           A further shortcoming was the fact that the police had shown two volumes of photographs of possible burglars (including a photograph of the applicant) to one of the victims - a lady of 82 years of age who had caught a fleeting glimpse of the burglar.   Her statement, read to the jury, said that she thought she would be able to recognise her assailant.   She did not pick out the applicant from the photographs.   This fact was not, however, mentioned by one of the police witnesses in a written statement read out to the jury.   Counsel for the applicant submitted that a jury might have been led to believe, had they been informed of this fact, that the admission statements had been "manufactured" by the police as the applicant alleged or to otherwise doubt the veracity of the police.           The Court of Appeal also rejected this view:   "There again we do not take that view.   The fact that Miss Sizer had a fleeting glimpse of her assailant, and the fact that such identification as she did make was largely directed to other matters of identification rather than his features, leads us to believe that the jury would not have been influenced to act other than they did if they had the full story of the photographs and of Police Constable Esdon's activities with regard to that."           The Court of Appeal pointed to other shortcomings which it did not consider cast any doubt on the verdict, namely   -        that the applicant was alleged to have been shown by the police a statement by a defendant although his finger- prints were not found on the statement;   -        a string which had tied the hands of one of the victims had been thrown away and not subjected to forensic examination;   -        an anorak which fitted the description given by one of the victims was found at the applicant's house but was not tested for fibres or for possible comparison with other items;   -        a stocking mask, found at the scene of the crime, was not tested for saliva and a knife, which may have been used by the applicant, was not tested for fingerprints.           As regards the latter points, the Court of Appeal remarked that the mask had not been tested because the applicant had never claimed to wear a mask.   In addition, the knife had been found lying out in the rain and the chances of finding finger prints were thus minimal.           The Court of Appeal considered that even if these matters had been investigated, it would have made no difference to the outcome. The Court concluded:   "It is clear that there was some slipshod police work in the present case, no doubt because they took the view here was a man who had admitted these crimes fully, and consequently there was very little need for them to indulge in further verification of whether what he said was true. Although this is a matter which perhaps casts the police in a somewhat lazy or idle light, we do not think in the circumstances there was anything unsafe or unsatisfactory in the end about these convictions. Consequently, treating this matter as we have to according to section 17 of the Act, we think this appeal fails and must be dismissed."           The applicant also took advice concerning the possibility of appealing to the House of Lords but was informed in an opinion of counsel dated 8 September 1986 that there were no grounds on which an appeal could successfully be pursued before the House of Lords.           The applicant petitioned the Secretary of State for Home Affairs on 24 July 1986 unsuccessfully asserting that the United Kingdom Government had an obligation to ensure that the applicant's rights under Articles 6 paras. 1 and 3 (d) of the Convention were protected and that he was entitled under Article 13 of the Convention to have an effective remedy before a national authority for violations of rights and freedoms in the Convention.   RELEVANT DOMESTIC LAW AND PRACTICE   Duty of prosecution in presenting evidence           Under the Attorney General's Guidelines issued in December 1981, the prosecution is obliged (subject to specified discretionary exceptions) to disclose to the defence "unused material", which includes all witness statements not included in the bundle of statements served on the defence at the stage of committal of the case by the magistrates' court to the Crown Court.           The prosecution is also under a duty to inform the defence of any earlier statement of a prosecution witness which is inconsistent with evidence given by that witness at the trial: R v.   Clarke (1930) 22 Cr.App.R.58.   The prosecution's duty extends to informing the defence of previous inconsistent oral statements as well as written statements.           Consequently where evidence of a prosecution witness is given before the court stating that the witness would recognise the accused again (as in the applicant's case), and the prosecution knows that when shown a photograph of the accused the witness in fact failed to identify him, the prosecution is required to make that fact known to the defence.           For the purpose, among others, of ensuring compliance with this duty, the Court of Appeal has stated that all the statements which have been taken by the police should be put before Counsel for the Crown, and that it should not be left to the police to decide which statements are to be put before Counsel: R v.   Fellowes, 12 July 1985.   Reference to the Court of Appeal by the Home Secretary           Section 17 (1) a of the Criminal Appeal Act 1968 provides that           "Where a person has been convicted on indictment, or been         tried on indictment and found not guilty by reason of         insanity, or been found by a jury to be under disability, the         Secretary of State may, if he thinks fit, at any time either:           (a) refer the whole case to the Court of Appeal and the case         shall then be treated for all purposes as an appeal to the         Court by that person; ..."   Powers of the Court of Appeal           The powers of the Court of Appeal in appeal proceedings are fully applicable to reference proceedings (Stafford v.   D.P.P. [1973] 3 WLR 719).   The scope of the Court of Appeal's powers on appeal is set out in section 2 of the 1968 Act.   Section 2 provides:           "(1) Except as provided by this Act, the Court of Appeal shall         allow an appeal against conviction if they think:                   (a) that the conviction should be set aside on the                 ground that under all circumstances of the case it is                 unsafe or unsatisfactory;                   (b) that the judgment of the court of trial should be                 set aside on the ground of a wrong decision of any                 question of law; or                   (c) that there was a material irregularity in the                 course of the trial,           and in any other case shall dismiss the appeal:           Provided that the Court may, notwithstanding that they         are of opinion that the point raised in the appeal might         be decided in favour of the appellant, dismiss the appeal         if they consider that no miscarriage of justice has         actually occurred.           (2) In the case of an appeal against conviction the Court         shall, if they allow the appeal, quash the conviction.           (3) An order of the Court of Appeal quashing a conviction         shall, except when under section 7 below the appellant is         ordered to be retried, operate as a direction to the court         of trial to enter, instead of the record of conviction, a         judgment and verdict of acquittal."   New evidence on appeal           Under section 23 (1) of the 1968 Act the Court of Appeal hearing an appeal against conviction or sentence may order the production of a document, exhibit or any other thing, may order the attendance and examination of witnesses, and may receive evidence. Section 23 (2) provides that the Court shall exercise the power of receiving evidence if           "(a) it appears to them that the evidence is likely to be         credible and would have been admissible in the proceedings         from which the appeal lies on an issue which is the subject         of the appeal; and           (b) they are satisfied that it was not adduced in those         proceedings but there is a reasonable explanation for the         failure to adduce it."           If the Court of Appeal considers that fresh evidence renders the verdict unsafe or unsatisfactory, it may order a retrial, or may simply quash the conviction and substitute a verdict of acquittal. The appropriate course will depend upon the particular facts of the case, as explained in the following passage from the judgment of Lord Cross in the House of Lords in Stafford v. the D.P.P. (at pp. 737-738):           "At one end of the scale there are cases where the court will         say :                   This fresh evidence puts such an entirely new                 complexion on the case that we are sure that a verdict                 of guilty would not be safe.   So we will quash the                 conviction and not order a new trial.           At the other end of the scale there will be cases where         the court will say as it said in effect of this case:                   The fresh evidence though relevant and credible                 adds so little to the weight of the defence case                 as compared with the weight of the prosecution's                 case that a doubt induced by the fresh evidence                 would not be a reasonable doubt.   So, we will                 leave the conviction standing.           But in many cases the attitude of the court will be:                   We do not feel at this stage sure one way or                 the other.   If this fresh evidence was given                 together with the original evidence and                 any further evidence which the Crown might adduce                 then it may be that the jury - or we, as we                 constituted the jury - would return a verdict of                 guilty but on the other hand it might properly                 acquit.   So we will order a retrial."   COMPLAINTS   1.       The applicant complains that he was denied a fair hearing contrary to Article 6 para. 1 of the Convention since evidence relevant to the credibility of police witnesses was not before the jury at his trial and that he was denied the right to examine witnesses under Article 6 para. 3 (d) of the Convention since he was unable to cross-examine police witnesses on the basis of this evidence at his trial.   2.       The applicant also complains that he was denied an effective remedy in respect of his complaints.   PROCEEDINGS BEFORE THE COMMISSION           The applicant introduced his complaints with the Commission on 26 September 1986 in the context of Application No. 13071/87 which was registered on 10 July 1987.   His complaints were rejected by the Commission on 7 December 1987 for failure to comply with the six months rule.   This decision was based on the assumption that the application had been introduced on 16 March 1987.           Later the applicant showed that he had sent a letter to the Commission on 29 September 1986 which was registered by the prison authorities as having been posted but which was not received by the Commission.           On 13 July 1988 the President of the Commission restored the present complaints to the list.           On 6 July 1989, the Commission decided to communicate the re-opened part of the application to the Government and to invite them to submit written observations on the admissibility and merits.           The Government's observations were submitted on 25 October 1989 and the observations in reply were submitted by the applicant on 25 November 1989 and 14 February 1990.           On 15 December 1989, the applicant was granted legal aid.           On 9 October 1990 the Commission decided to invite the parties to a hearing on the admissibility and merits.   At the hearing, which was held on 9 January 1991, the parties were represented as follows:   The Government:           Ms.   D.L. Brookes         Agent, Foreign and Commonwealth Office         Mr.   D. Pannick           Counsel         Mr.   H. Carter            Home Office         Mr H. Llewellyn          Foreign and Commonwealth Office   The applicant:           Mr.   B. Clarke            Counsel         Mr.   J.K. Campbell        Solicitor           The applicant, Mr Edwards, also attended the hearing.   THE LAW   1.       The applicant complains that he did not receive a fair trial due to the withholding of evidence at his trial by the police.   He invokes Article 6 para. 1 (Art. 6-1) and para. 3 (d) (Art. 6-3-d) of the Convention.   He also complains that he has no effective remedy for his complaints as required by Article 13 (Art. 13) of the Convention.   Article 26 (Art. 26) of the Convention   2.       The respondent Government submit that the applicant has failed to exhaust domestic remedies since he did not appeal from the decision of the Court of Appeal to the House of Lords.           The Commission notes that appeals lie to the House of Lords in limited circumstances, in particular, only in those cases where there is certified as being in issue a point of law of general public importance.   The Commission observes that Counsel advised that as the issues decided by the Court of Appeal were questions of fact and degree, all national avenues of appeal had been exhausted.   The Government suggest that the applicant could have appealed on the basis that the leading case of Stafford v.   D.P.P., which established the principles to be applied in the exercise of the Court of Appeal's appellate powers, should be overturned.   The Commission notes that the applicant's complaints are not directed against the principles established in Stafford v.   D.P.P. It considers that this well-established case-law constitutes a particular circumstance which is sufficient to dispense the applicant, according to the generally recognised principles of international law, from seeking to overturn the law (cf.   No. 10027/82, Dec. 5.12.84, D.R. 40, p. 100 at 116-117).           The Government also argues that the applicant has failed to exhaust domestic remedies on two further grounds: firstly, that he did not renew his application for leave to appeal against his conviction in 1985 and, secondly, that he did not apply in the reference proceedings for documents to be provided or witnesses to be examined.   The Commission finds that the applicant had applied on the basis of the new material for leave to appeal out of time but that this application was overtaken by events in that the case was put before the Court of Appeal in the reference proceedings.   Further, the applicant does not complain that the Court of Appeal failed to hear the new evidence from the witnesses themselves but that he did not receive a fair trial since the evidence and the possibility of cross-examining witnesses on the basis of that evidence was not available at his trial before the jury.   The power of the Court of Appeal as regards evidence is, however, a factor which may be taken into account when assessing the role of the Court of Appeal in the proceedings as a whole.   3.       The Commission is accordingly unable to accept that the application should be declared inadmissible for non-exhaustion of domestic remedies.   Article 6 paras. 1 (Art. 6-1) and 3 (d) (Art. 6-3-d) and Article 13 (Art. 13) of the Convention           Article 6 para. 1 (Art. 6-1), first sentence provides as follows:   "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."           Article 6 para. 3 (d) (Art. 6-3-d) provides:   "3.    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 applicant submits that at his trial relevant evidence was not put before the jury and that as a result his rights under the above provisions were violated.   This evidence related to the credibility of the police witnesses in the case, which turned on whether the alleged confessions by the applicant had been fabricated or not by the police.   Since this evidence was never disclosed at the trial, he submits that he was not given an adequate opportunity to challenge the witnesses against him and that he did not receive a fair trial.   He submits that the reference proceedings before the Court of Appeal did not cure this defect since it did not exercise its discretion to order a full rehearing of all the issues and evidence but at best afforded him the opportunity of having a fragmentary procedure which led to overall unfairness.           The Government submit that the proceedings must be looked at as a whole and that the applicant did receive a fair hearing since he was afforded the opportunity of submitting the new evidence before the Court of Appeal in reference proceedings, where he could also have applied for witnesses to be called and cross-examined.   The Government also rely, inter alia, on the case-law of the Commission and Court to the effect that the assessment of evidence in criminal proceedings is within the appreciation of the domestic courts and cannot as a general rule be reviewed by the Convention organs.           The Commission has made a preliminary examination of the issues arising under Article 6 paras. 1 (Art. 6-1) and 3 (d) (Art. 6-3-d) of the Convention. It considers that the applicant's complaints raise difficult questions of fact and law which are of such complexity that their determination should depend upon a full examination of the merits.           The Commission also finds that the applicant's complaint under Article 13 (Art. 13) of the Convention arises from the same factual basis.           It follows that the application cannot be declared manifestly ill-founded and must be declared admissible, no other ground for declaring it inadmissible having been established.           For these reasons, the Commission, by a majority,           DECLARES THE APPLICATION ADMISSIBLE,         without prejudging the merits of the case.        Secretary to the Commission    Acting President of the Commission                  (H.C. KRÜGER)                     (S. TRECHSEL)