CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25605/94                       by Surrye ALI                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 11 May 1994 by Surrye ALI against the United Kingdom and registered on 7 November 1994 under file No. 25605/94;        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 1940.   She is serving a prison sentence, and is represented before the Commission by Mr. J. Dickinson, solicitor, of Messrs. John Howell & Co, Sheffield. The facts of the case, as submitted by the applicant's representative, may be summarised as follows.   The particular circumstances of the case        The applicant's sister-in-law was killed on 17 February 1987. The applicant was arrested on 18 February 1987 and interviewed from 11.15 pm until 11.43 pm.   A second interview was held between 9.25 am and 10.37 am the following morning, and a third interview was held that evening.   The third interview, at which she had made a confession, had begun at 5.10 pm, and was held in the presence of a woman police officer who acted as interpreter.   The applicant was cautioned at the beginning of the interview, and after various breaks for coffee, there was an interval while the applicant was photographed.   At 8.45 pm the interview recommenced and between 10.35 and 10.50 there was a further coffee break.   No further caution was given when the interview resumed at 10.50.   The admission in question was made at 11.30 that evening, the applicant was given a meal at 12.45 am on 20 February, and the interview ended at 3.06 am.        On 26 November 1987 the applicant was convicted at the Birmingham Crown Court of the murder of her sister-in-law.   The applicant submitted that evidence obtained in the course of three interviews with the police should not be admitted.   She claimed that the evidence taken during the interviews was taken in breach of the parts of Code C of the Codes of Practice relating to interpretation where an accused person has difficulty in understanding English.   The trial judge noted that the applicant had lived in England for 31 years, from the age of 15, that she had brought up six children in England, and that it was not suggested that she lived a secluded life.   He also referred to her demeanour in the witness box in concluding that she had no difficulty in understanding English.   The trial judge also noted that the fact that an interpreter had been present at the third of the interviews (when the applicant made the confession) did not affect that conclusion as, from the police point of view, it would strengthen the case if an interview were made in the applicant's own language, rather than English.        On 20 December 1990 the applicant was granted an extension of time to appeal of some two and a half years.   Leave to appeal was refused by the single judge.   On 7 May 1992 the applicant filed grounds of appeal with the Court of Appeal, and on 19 June 1993 the full Court of Appeal granted leave to appeal. Further grounds were filed in October 1993.        The Court of Appeal noted that there was no doubt about the principal elements of the murder, or about the applicant's presence, but that the question at the trial had been the extent of the applicant's participation in the murder.   The Court of Appeal recalled the circumstances of the third interview, and noted that at the trial the applicant had relied on Code C of the Code of Practice in connection with the question of interpretation, but not in other respects.        Before the Court of Appeal, the applicant relied on the following alleged breaches of Code C in connection with the third interview:   1.    That she was not offered two light meals and one main meal in any      period of 24 hours, as she should have been;   2.    That she was not allowed a continuous period of 8 hours rest in      any period of 24 hours, as she should have been;   3.    That no caution or reminder of caution was given when the      interview resumed, as there should have been.        The applicant also complained that no lawyer or third person was present (although none was required by domestic law), that she had been subjected to prolonged questioning late at night, and that the role of the police officer who had acted as interpreter was unsatisfactory.        The applicant submitted that the admission was obtained by oppression, and should have been excluded under Section 76 (2) (a) of the Police and Criminal Evidence Act 1978 ("PACE"), or alternatively that the evidence should have been excluded by the trial judge in the exercise of his discretion under Section 78 of PACE.   The applicant also pointed out that the original record of the third interview had been removed from the files of the Birmingham Crown Court since the first instance trial, and that the disappearance coincided with the development of a test known as Electro-Static Document Analysis (ESDA), which permitted the authenticity of documents to be tested.   She recalled that vital papers had also gone missing in other cases involving the West Midlands Police Force.        The Court of Appeal referred to the case of Fulling [1987] 1 QB 426, in which it had held that "oppression" was to be given its ordinary dictionary meaning, and referred to "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".    The Court of Appeal in the applicant's case accepted that there may be cases where "a denial of sleep and refreshment may well constitute oppressive conduct, but the evidence would need to be stronger than it is in the present case".   The Court found that the evidence was not obtained by oppression such that it had to be excluded by virtue of Section 76 PACE.        The Court of Appeal also considered the case under Section 78 PACE, that is, the argument that evidence of the third interview should have been excluded as the circumstances were such as to render the confession unreliable, and/or that the trial judge should have exercised his discretion not to admit it.   The Court of Appeal noted that six years had elapsed since the original trial, and that the only breaches of Code C which had been specifically referred to were the rules relating to interpreters.   Questions as to the circumstance of the making of the confession had not therefore been put at the trial. At the trial the applicant had claimed that she had been given blank pages to sign - there had been no claim that she signed as a result of undue pressure.        The Court of Appeal found a breach of the rules of Code C relating to refreshment, observed that the notes of the third interview were missing in "suspicious circumstances" and accepted that, although the applicant had initially been cautioned, she was not reminded of the caution when the third interview recommenced at 10.50 pm.   It added that "[it] is uncertain what benefit the [applicant] could have derived from the ESDA test on those notes [of the third interview], but she has been denied the opportunity".   The Court considered that in the circumstances of the case - including the absence of evidence from the applicant or the police that she was too tired for the third interview to continue, and the lack of an allegation at trial that the confession had been made as a result of pressure being put on her - the evidence from the third interview was reliable and would have been admitted if all the points before the Court of Appeal had been made at first instance.   The appeal was dismissed.   Relevant domestic law        Section 76 of the Police and Criminal Evidence Act 1984 ("PACE") provides that confession evidence is not admissible if it was obtained by oppression.        Section 78 of PACE provides that a court may refuse to allow prosecution evidence if "it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".        Section 66 of PACE provides for the making of Codes of Practice by the Secretary of State.   A breach of a provision of a Code of Practice makes a police officer liable to disciplinary proceedings (Section 67 (8) PACE) but not to criminal or civil proceedings (Section 27 (10) PACE).   The codes are themselves admissible in evidence, and "if any provision of such a code appears to the court ... to be relevant to any question arising in the proceedings it shall be taken into account in determining that question".        Code C of the Codes of Practice deals with the detention, treatment and questioning of persons by police officers.   Section 12 deals with interviews in police stations, including a requirement that in any period of 24 hours, a detained person must be allowed a continuous period of at least 8 hours of rest free from questioning. Section 14 requires an interpreter to be present if a detained person is to be questioned, has difficulty understanding English, wishes an interpreter to be present, and if the interviewing officer cannot speak the person's own language.   COMPLAINTS        The applicant alleges violations of Articles 5 and 6 of the Convention.        In connection with Article 5, the applicant accepts that the initial arrest may have been justified under Article 5 para. 1 (c) of the Convention, but she considers that, because the interviews which followed the arrest were unlawful, the subsequent detention also became unlawful because it was no longer "prescribed by law", as required by Article 5 para. 1.   She also considers that Article 5 para. 2 has been violated by the failure to provide an interpreter at her initial interviews.        The applicant further considers that the admission of the interviews as evidence rendered her trial unfair, under Article 6 para. 1, both at first instance and on appeal.   She sees further violations of Article 6 in the absence of an interpreter at the initial interviews (Article 6 para. 3 (e)) and in the absence of a legal representative of her choosing at those initial interviews (Article 6 para. 3 (c)). The applicant also complains that the Court of Appeal failed to attach sufficient weight to the unexplained disappearance of the admission statement used to convict the applicant at trial (Article 6 para. 1 and Article 6 para. 3 (b)).   THE LAW   1.    The applicant alleges a violation of Article 5 (Art. 5) of the Convention.   She considers that the failures to comply with the relevant Code of Practice under the Police and Criminal Evidence Act 1984 rendered her detention unlawful, even if that detention was initially covered by Article 5 para. 1 (c) (Art. 5-1-c) of the Convention.   She also alleges a violation of Article 5 para. 2 (Art. 5-2) of the Convention, in that she was not properly informed of the reasons for her arrest at her initial interviews.        Article 5 (Art. 5) of the Convention provides, so far as relevant, as follows.        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:              c.     the lawful arrest or detention of a person effected      for the purpose of bringing him before the competent legal      authority on reasonable suspicion of having committed an offence      or when it is reasonably considered necessary to prevent his      committing an offence or fleeing after having done so.        2.     Everyone who is arrested shall be informed promptly, in a      language which he understands, of the reasons for his arrest and      of any charge against him."        However, the Commission is not required to decide whether or not the facts alleged by the applicant disclose any appearance of a violation of these provisions, as Article 26 (Art. 26) of the Convention provides that the Commission "may only deal with the matter ... within a period of six months from the date on which the final decision was taken".        In the present case the applicant's complaints in connection with her arrest arose in February 1987, and her detention on remand ended at the latest with her conviction on 26 November 1987, whereas the application was submitted to the Commission on 11 May 1994, that is more than six months after that date.   Furthermore, an examination of the case does not disclose the existence of any special circumstances which might have interrupted or suspended the running of that period. In particular, the remedies which the applicant pursued in connection with her conviction cannot affect the running of the six months period in connection with the complaints about her detention on remand since those remedies were not capable of affecting the position with regard to the detention.        It follows that this part of the application has been introduced out of time and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant also alleges a violation of Article 6 (Art. 6) of the Convention.   She considers that the absence of an interpreter and of a legal representative of her choosing at her initial interviews, together with the admission of the statements taken at the third interview, amount to a violation of Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.   With particular reference to the unexplained disappearance of the transcript of the third interview, she points out that the West Midlands Crime Squad, which has now been disbanded, was involved in a "series of miscarriages of justice brought about by proven unscrupulous methods of the police officers involved", and considers that the Court of Appeal did not give sufficient weight to the disappearance.        The Commission considers that it cannot, on the basis of the file, determine whether there has been a violation of these provisions of Article 6 (Art. 6) of the Convention without the observations of both parties.        The Commission therefore adjourns this part of the application.        For these reasons, the Commission, unanimously,        DECLARES INADMISSIBLE the complaints concerning the applicant's      detention, and        DECIDES TO ADJOURN its examination of the remainder of the      application.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                         (C.L. ROZAKIS)