CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 31 mars 1992

.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 }                        Application No. 15433/89                       by Engin RAGHIP                       against the United Kingdom         The European Commission of Human Rights sitting in private on 31 March 1992, the following members being present:              MM.    C.A. NØRGAARD, President                  J.A. FROWEIN                  S. TRECHSEL                  G. SPERDUTI                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G. H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ RUIZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  A.V. ALMEIDA RIBEIRO                  M.P. PELLONPÄÄ                  B. MARXER                    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 9 June 1989 by Engin Raghip against the United Kingdom and registered on 5 September 1989 under file No. 15433/89 ;         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 1966 and resident in London.   He is represented before the Commission by Mrs. Peirce, a solicitor practising in London.   The facts as submitted by the parties may be summarised as follows.         The applicant, from a family of Turkish origin, was recorded in probation reports prepared in 1980 and 1982 as being of low intellect and an individual who has a high level of nervous anxiety, distrust and fear of authority figures.         Following the death on 6 October 1985 of Police Constable Blakelock in the course of a riot at the Broadwater Farm Estate in Tottenham, North London, the applicant was arrested in his home at 7.20 am on 24 October 1985 in connection with police investigations into the matter. On arrival at the police station, the applicant signed the custody record to the effect that he did not want to see a solicitor at that time.   He was 19 years old at the time of his arrest and was interrogated on 10 occasions by police officers in the absence of a lawyer.   The interrogations took place over a period of just under five days and amounted in total to 14 1/2 hours.         During the course of his detention, the applicant complained of illness and a doctor was twice called to examine him and found that he was suffering from a mild fever, had enlarged neck glands and was probably suffering from a "mild virus infection".   The doctor also recorded that the applicant complained of vomiting after meals.   The applicant also stated that he fainted on the second day of interrogation.         During the interrogation, the applicant at first admitted to throwing stones at the police on 6 October.   On the third day of his detention he was charged with affray and taken before a Magistrates' Court, where he spoke to a solicitor for the first time.   He told the solicitor that he did not feel that he was able to continue being questioned by the police alone.   The police applied to the Court for the applicant to be remanded in custody for further questioning and the Magistrate ordered that a solicitor should be present during the course of any subsequent police questioning. Despite this order, the applicant continued to be interviewed for two further days in the absence of a solicitor.   It appears that on his return to the police station he was asked to sign the custody record to the effect that he did not require a solicitor and he did so.         On 29 October 1985, the applicant appeared before the Magistrates' Court and remained in custody on a charge of affray. The applicant was subsequently charged with murder, riot and affray and tried with five other defendants.   The trial took place from 14 January until 19 March 1987 before Mr. Justice Hodgson. Three of the defendants, who were under 17 years of age, had the charges of murder dismissed by the judge, as a result of oppressive police treatment and the unreliability of their admissions.         The evidence against the applicant was based solely on the statements made to the police during interrogation.   The applicant was recorded as having stated that he had been in the vicinity of a police officer who was being attacked but that he had been unable to get near him.   He allegedly said that he had tried to get in to hit him and if he had got in he might have kicked him or hit him with a broomhandle, but that he did not touch him as he could not get near.         The defence did not have the benefit of a psychologist giving evidence on the applicant's behalf.   A report had been compiled by a psychologist which confirmed the applicant's low IQ but the psychologist did not take into consideration the measurement of the applicant's traits of suggestibility and compliance in terms of providing to the police what he thought they required.   The defence did not call the psychologist as a witness.         The applicant's defence counsel applied in a voir dire for the applicant's statements to the Court to be excluded on the basis of their unreliability. The Court rejected the application. Counsel also made a submission of "no case to answer" at the close of the prosecution case, which was also rejected.         The applicant was convicted of murder and riotous assembly and sentenced to life imprisonment on 19 March 1987.   He applied for leave to appeal to the single judge of the Court of Appeal, who refused leave.         His renewed application came before the full Court of Appeal on 12-13 December 1989.         The applicant had new solicitors representing him on appeal, who had commissioned full psychological tests on the applicant.   The psychologist, Dr. Gisli Gudjonsson, had found that the applicant had an IQ of 74 (below 70 is sub-normal) and that in terms of suggestibility and compliance the applicant was abnormal.   This report, with pre-existing probation reports and the report prepared when the applicant entered prison custody, established that the applicant was of barely normal IQ, had a literate age of 6 years, was in fear of authority figures and abnormally suggestible and compliant.         Application was made to the Court of Appeal for leave to appeal and to call fresh evidence, in particular Dr. Gudjonsson, to testify to the fact that any admissions obtained from the applicant were unsafe and should not have been relied upon.         The Court of Appeal took the view that since the applicant was in the normal range of IQ, albeit at the lowest level, the jury would have been able to assess intelligence and susceptibility of the applicant for themselves when he gave evidence.   The Court found that the new evidence was therefore not admissible and that in any case there was no reasonable explanation for the evidence not being adduced at the trial.   The Court also considered that even if all the psychiatric reports had been before the judge and jury it would not have made any difference to the outcome.   The applicant's complaints that some of the judges' comments to the jury were unfair and that there was no evidence on which to found the necessary intent to murder were also held to be unfounded.   Leave to appeal was refused on 13 December 1989.         On 4 December 1990, the Home Secretary referred the applicant's case to the Court of Appeal under the provisions of the Criminal Appeal Act 1968 in light of the fresh opinion as to the applicant's mental condition given by the psychologist who had advised the defence at the time of the   trial in 1987.         On 5 December 1991, the Court of Appeal quashed the applicant's convictions both in light of the new medical evidence and evidence about the conduct of the police officer in charge of the investigation.   RELEVANT DOMESTIC LAW AND PRACTICE   Access to a solicitor in police custody         The detention and treatment of a person whilst in police custody is subject to the provisions of the Police and Criminal Evidence Act 1984 ("PACE") as supplemented by Code C of the Codes of Practice issued by the Secretary of State under Section 66 of PACE. These provisions came into force on 1 January 1986.         Section 58 of PACE confers a right on a person who has been arrested and is held in custody in a police station to consult a solicitor privately at any time if he so requests.   It provides as follows:         "(1) A person arrested and held in custody in a police station       or other premises shall be entitled, if he so requests, to       consult a solicitor privately at any time.         (2) Subject to subsection (3) below, a request under subsection       (1) above and the time at which it was made shall be recorded in       the custody record.         (3) Such a request need not be recorded in the custody record of       a person who makes it at a time while he is at a court after       being charged with an offence.         (4) If a person makes such a request, he must be permitted to       consult a solicitor as soon as is practicable except to the       extent that delay is permitted by this section.         (5) In any case he must be permitted to consult a solicitor       within 36 hours from the relevant time, as defined in Section       41(2) above.         (6) Delay in compliance with a request is only permitted -              (a) in the case of a person who is in police detention                       for serious arrestable offence; and              (b) if an officer of at least the rank of superintendent                       authorises it.         (7) An officer may give an authorisation under the subsection       above orally or in writing but, if he gives it orally, he shall       confirm it in writing as soon as is practicable.         (8) An officer may only authorise delay where he has reasonable       grounds for believing that the exercise of the right conferred       by subsection (1) above at the time when the person detained       desires to exercise it -              (a) will lead to interference with or harm to evidence            connected with a serious arrestable offence or interference            with or physical injury to other persons; or              (b) will lead to the alerting of other persons suspected of            having committed such an offence but not arrested for it;            or              (c) will hinder the recovery of any property obtained as            result of such an offence.         (9) If delay is authorised -              (a) the detained person shall be told the reason for it;                 and            (b) the reason shall be noted on his custody record.         (10) The duties imposed by subsection (9) above shall be       performed as soon as is practicable.         (11) There may be no further delay in permitting the exercise of       the right conferred by subsection (1) above once the reason for       authorising delay ceases to subsist. ..."         Section 58 is supplemented by Code C of the Codes of Practice issued under Section 66 of PACE.         Under Section 66 of PACE, the Secretary of State is under a duty to issue Codes of Practice in connection with the detention, treatment, questioning and identification of persons by police officers.   The procedure in connection with the issuing of a Code is laid down in Section 67.   In particular a draft Code has to be laid before both Houses of Parliament and the Code cannot be brought into force until each House has approved an Order to that effect.         Section 67(8) of PACE provides that a police officer is liable to disciplinary proceedings for a failure to comply with any provision of a Code (unless this is precluded under Section 104 of PACE).   A Code is admissible in evidence by virtue of subsection 11.         Pursuant to Section 66(b) the Secretary of State issued the Code of Practice for the detention, treatment and questioning of persons by police officers, Code C, which applies to persons who entered police detention after midnight on 31 December 1985.         Where a person is brought to a police station under arrest, Section 3.1 of the Code requires the custody officer to inform him of his right to have someone informed of his arrest, the right to consult a solicitor and the right to consult the various Codes of Practice issued under Section 66 of PACE.   Under Section 3.2 of the Code the person must be given a written notice setting out these three rights and has the right to a copy of the custody record in accordance with Section 2.4 and the caution in the terms prescribed by Section 10 of the Code.   Admission and exclusion of confession evidence         Provision about the admissibility of confession evidence and the exclusion of unfair evidence is made in Part VIII of PACE.   These provisions came into force on 1 January 1986.   For these purposes, a confession includes, "any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise" (Section 82(1)(a) of PACE).         By virtue of Section 76 of PACE, a confession by an accused person may be given in evidence against him.   Where given, it is admissible without it having to be corroborated.   The Section, however, contains safeguards relating to the circumstances in which the confesson came to be made and which may mean that the confession must be excluded.   Under subsection 2 the trial court is required not to allow the confession to be given in evidence if it is represented to the court that it was or may have been obtained by oppression or in consequence of something said or done which was likely to render the confession unreliable unless the prosecution can prove to the court, beyond a reasonable doubt, that the confession was not so obtained. The court can, of its own motion, require the prosecution to prove that a confession on which the prosecution proposes to rely was not obtained by oppression or in circumstances likely to render it unreliable.   In R v. Fulling [1987] 2 WLR 913, which was decided by the Court of Appeal in February 1987 during the applicant's trial, it was held that "oppression" was to be given its ordinary dictionary meaning and the court cited the Shorter Oxford English Dictionary definition, "exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens."   By virtue of subsection 8 of Section 76, oppression includes torture, inhuman or degrading treatment, and the use of threat of violence (whether or not amounting to torture).         Section 78 confers on a court the power to exclude evidence on which the prosecution proposes to rely if it appears to the court that, having regard to all the circumstances (including those in which the evidence was obtained), to admit the evidence would render the proceedings unfair.         In R v. Mason [1988] 1 WLR 139, the Court of Appeal held that Section 78 applied to all evidence which might be introduced in the trial by the prosecution and that, accordingly, a trial judge had a discretion whether to exclude a confession in the interests of the fairness of the trial.   The Court also held that the Section did no more than re-state the power which judges had at common law before the Section was passed to exclude evidence.         In R. v. Samuel [1988] 2 WLR 920, the Court of Appeal, which included Mr. Justice Hodgson, dealt with the admissibility of confession evidence given after, the Court held, the accused had been wrongly denied access to a solicitor.   The Court held that denial of the right conferred by Section 58 of PACE can lead to the exclusion of evidence obtained at unlawful interviews conducted after the denial either by the exercise of the power in the trial judge conferred by Section 78(1) or, where the prosecutor fails to satisfy the court that the denial did not amount to oppression, under Section 76.   In the circumstances of this case, the Court of Appeal found that the reasons given for denial of access to a solicitor, namely that the solicitor might inadvertently or otherwise hinder further enquiries, was insufficient given that there was no specific reason to suspect the solicitor or to anticipate that he would be hoodwinked by the accused person.   The conviction which was based on confession evidence allegedly obtained after the denial of access to a solicitor was quashed.   New evidence on appeal         In regard to the calling of fresh evidence, the powers and duties of the Court of Appeal are set out in section 23 of the Criminal Appeal Act 1968, which provides:           "(1) For purposes of this part of this Act the Court of         Appeal may, if they think it necessary or expedient in         the interests of justice:           ...           (b) order any witness who would have been a compellable         witness in the proceedings from which the appeal lies         to attend for examination and be examined before the         Court, whether or not he was called in those proceedings         ...           (2) Without prejudice to section (1) above, where evidence         is tendered to the Court of Appeal thereunder the Court         shall, unless they are satisfied that the evidence, if         received, would not afford any ground for allowing the         appeal, exercise their power of receiving it 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."   COMPLAINTS         The applicant has complained under Article 6 of the Convention that he did not receive a fair trial as a result of the following:   a) important potential evidence on his behalf was not allowed to be heard or a retrial ordered so that it could be heard by the Court of Appeal - similar psychological evidence concerning one of the juveniles at the trial had led to the charge of murder being dismissed;   b) the only evidence against the applicant was obtained when the applicant, an extremely vulnerable individual, was being interrogated without independent legal advice;   c) the interrogation of the applicant continued in violation of the order of the Court that a solicitor should be present during further interrogations.         The applicant has also complained of the restrictive approach of the Court of Appeal to the admission of fresh evidence and that its unwillingness to order a retrial amounts to a violation of the concept of a fair trial in that evidence for the defence is not heard in the same circumstances as the evidence of the prosecution and that there is consequently no equality of arms particularly where defendants and their families are inexperienced and vulnerable and their lawyers do not address significant questions at trial relating to their defence.         The applicant has further submitted that the failure of the Court of Appeal means that no remedy is available in relation to the violation of Convention rights contrary to Article 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 9 June 1989 and registered on 5 September 1989.         On 2 October 1989, the Commission decided to communicate the application to the Government pursuant to the Commission's Rules of Procedure and to invite them to submit written observations on the admissibility and merits.         The Government's observations were submitted on 6 March 1990 after one extension in the time-limit.   The applicant's observations were submitted on 29 June 1990 also after one extension in the time-limit.         By letter dated 8 December 1991, the Government informed the Commission that the Court of Appeal had quashed the applicant's convictions on 5 December 1991. By letter dated 27 March 1992 the applicant's solicitor informed the Commission that the applicant wished to withdraw his application.     REASONS FOR THE DECISION         The Commission recalls that the applicant's convictions have been quashed and that he wishes to withdraw his application.         In these circumstances the Commission finds that the applicant does not intend to pursue his application before the Commission since the matter has been resolved.   The Commission further considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of the application.         It follows that the application may be struck off the list of cases pursuant to Article 30 para. 1 of the Convention.         For these reasons, the Commission unanimously,           DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.         Secretary to the Commission                  President of the Commission         (H. C. KRUGER)                                     (C. A. NØRGAARD)