CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1997

.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. 28572/95                       by M.H.                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 17 January 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION              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 9 May 1995 by M.H. against the United Kingdom and registered on 18 September 1995 under file No. 28572/95;        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 1934.   He is represented before the Commission by Mr. Mark Spragg, a solicitor practising in London.   The facts of the application, as they have been submitted by the applicant, may be summarised as follows.   A.    The particular circumstances of the case        The applicant was convicted on 26 June 1993 at the Crown Court at Southwark, by a majority of 10 to 2, of conspiracy to cheat Her Majesty the Queen and the Commissioners of Inland Revenue.   The offence occurred over the period of 1 December 1982 and 31 December 1991 and the loss to the Revenue was £55 million in lost corporation tax and over £30 million in interest. The applicant was sentenced to 8 years imprisonment, ordered to pay £513,512 towards the costs of the prosecution and disqualified from being concerned in the management of a company for 10 years.        The applicant appealed against conviction and sentence.   The appeal was dismissed by the Court of Appeal on 5 May 1994. However, the Court of Appeal certified that there was a point of law of general public importance in the decision to dismiss the appeal, namely whether there was an offence of cheating the Revenue at common law.   The Court of Appeal nevertheless refused leave to appeal on this point and on 8 December 1994 the House of Lords likewise refused leave to appeal.        The case was brought by the Crown against the applicant and F.S. The applicant was a director, the joint assistant managing director and the second largest shareholder (12.5%) of a limited company.   F.S. was a director, subsequently the finance director and the third largest shareholder (7%) of the same limited company. There were 5 counts (some being alternatives) on the indictment. Counts 1 and 2 concerned the period of 1 October 1975 to 31 March 1983 and counts 3 and 4 concerned the period 1 December 1982 to 31 December 1991. All the counts concerned the tax affairs of the said limited company.   The applicant was found guilty of count 3. Counts 1 to 4 inclusive named the applicant, F.S. and others (the others being abroad and not subject to extradition) as co conspirators.        Prior to the trial F.S. entered into negotiations with the Inland Revenue and the Prosecution and an agreement was reached whereby F.S. would plead guilty to count 5, a count drafted specifically for this purpose. Count 5 was an offence alleged against F.S. alone, and was that of:        "Cheating Her Majesty the Queen and Her Commissioners of Inland      Revenue, contrary to common law."        In return for this guilty plea it was agreed that Counsel for the Prosecution would inform the trial judge that the Prosecution was unable to prove that F.S. received any personal benefit, and that the other counts on the indictment against F.S. would remain on the file not to be proceeded with, without an order of the Court, and that in the event of the applicant being acquitted on counts 1 and 2 (as in fact occurred), F.S. would likewise be acquitted of them.        Save that count 5 related to a shorter period, 1 November 1985 to 31 October 1986, whereas count 3 related to a period between 1 December 1982 to 31 December 1991, the particulars of the offence under count 5 were in all material terms identical to the particulars of the offence under count 3.        An application was made by the prosecution, under section 74 of the Police and Criminal Evidence Act 1984, to use the guilty plea of F.S. in the trial of the applicant. Whilst under section 78 of the Police and Criminal Evidence Act 1984, the judge had a discretion not to admit the guilty plea, the judge, having heard the point argued by counsel for the applicant and for the prosecution, chose not to exercise this discretion applying the test of whether the prejudicial effect outweighed the probative value, and thus the plea was admitted.        The applicant's lawyers lodged an appeal against this decision. However the appeal was subsequently abandoned. At the subsequent appeal against conviction and sentence, the grounds of appeal again raised the issue of the admission of the guilty plea of F.S.   The Court of Appeal held in relation to the ground concerning the admission of the guilty plea of F.S., that an abandoned appeal was analogous to an appeal that had been dismissed and as such the applicant was estopped from raising the point on an appeal after conviction, the point having been finally determined by a court of competent jurisdiction.        Although an agreement had been reached that the prosecution were not to pursue counts 1 to 4 inclusive against F.S., his name nevertheless remained on the indictment.        At the outset of the trial the jury were informed of the guilty plea of F.S.   F.S. was not called by the prosecution to give evidence in person and was thus not cross examined by the applicant's counsel.        One of the issues before the jury was whether the prosecution had proved that the fraud was upon the U.K. Revenue as opposed to a fraud on the Japanese authorities.   The judge in his summing up described the plea of F.S. as "very powerful evidence that there was a cheat on the Revenue.".   After retiring to consider their verdict, the jury sent a note to the judge with the following question: "Is there any direct evidence of fraud (tax evasion) upon the UK Revenue?" (emphasis as in original). The Judge responded as follows:              "The answer that I give to you is, yes, there is.   [F.S.'s]      pleas of guilty to count 5 is direct evidence that [F.S.] cheated      the Revenue in the year alleged, 1 November 1985 to      31 October 1986.              That is direct evidence, his plea of guilty.              That is tax evasion and, indeed, the other particulars in      the offence charged follow.              What you do not know is the basis on which he pleaded.   In      other words was he pleading to using false invoices, false      agreements or false correspondence.   You do not know that.              What you do know is that [F.S.] pleaded guilty to cheating      Her Majesty's Commissioners of Inland Revenue of Public Revenue      Corporation Tax in that year.              ... Let me make it plain; that is the only direct evidence.      All the rest must be inference.   It is an inference you may feel      directly follows from the direct evidence, but it is for you to      judge how strong the inference is.   In other words, [F.S.'s] plea      to guilty of cheating in 1985/86 does not prove a conspiracy by      itself.   You need other evidence to decide that. It certainly      does not prove [M.H.'s] being concerned in that cheat of the      Revenue."   B.    Relevant Domestic Law        Section 74 of the Police and Criminal Evidence Act 1984 provides:        "74.      (1)    In any proceedings the fact that a person other than the      accused has been convicted of an offence by or before any court      in the United Kingdom shall be admissible in evidence for the      purpose of proving, where to do so is relevant to any issue in      those proceedings, that that person committed that offence,      whether or not any other evidence of his having committed that      offence is given."        However the judge retains a discretion under section 78 of the Police and Criminal Evidence Act 1984 to exclude such evidence, if to admit it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.        Section 78 of the Police and Criminal Evidence Act 1984 provides:        "78.      (1) In any proceedings the court may refuse to allow evidence on      which the prosecution proposes to rely to be given 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."        Under Sections 7 to 10 of the Criminal Justice Act 1987, in a complex and serious case of fraud, the judge may hold a preparatory hearing before the jury is sworn. During such a hearing the judge may determine, inter alia, questions as to the admissibility of evidence. An appeal lies to the Court of Appeal from a ruling by the judge on admissibility of evidence.   COMPLAINTS        The applicant complains about the alleged unfairness of the criminal proceedings against him.        The applicant complains that the guilty plea of F.S. was admitted as evidence in his trial and further that the plea having been admitted, F.S. was not called as a witness by the Prosecution, thus denying the applicant the right to cross examine F.S. on his plea.        The applicant also complains that the circumstances surrounding the plea of F.S. (ie. his negotiations with the Prosecution and the Inland Revenue) were not made known to the applicant until just before the commencement of the trial.        The applicant further complains that as the guilty plea of F.S. to count 5 was admitted, and as F.S.'s name appeared on counts 1 to 4 inclusive along with the applicant's name, the applicant was put in the position of having to show he did not know of the fraud, which his second in command admitted to knowing of, and as such the burden of proof was reversed.   Having accepted there was a completed cheat by F.S. the applicant claims it would have been logically impossible to deny the fact of there being a cheat in the applicant's case and that this constituted a breach of Article 6 para.2        The applicant invokes Article 6 paras. 1, 2, 3 (b) and (d) of the Convention.   THE LAW        The applicant complains about the alleged unfairness of the criminal proceedings against him. In particular the applicant complains that the guilty plea of F.S. was admitted as evidence and that F.S. was not called by the Prosecution, thus denying the applicant the opportunity to cross examine F.S. on the basis of his plea.   1.    The applicant relies on Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.        Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention, so far as relevant, provide as follows:        "1.   In the determination ... of any criminal charge against him,      everyone is entitled to a fair ... hearing ... by an independent      and impartial tribunal established by law. ...        3.     Everyone charged with a criminal offence has the following      minimum rights:              b. to have adequate time and facilities for the preparation      of his defence;              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 Commission finds it appropriate to examine the applicant's submissions from the angle of paragraph 1 taken together with the principles inherent in paragraph 3 of Article 6 (Art. 6-3), as the guarantees in paragraph 3 are specific aspects of the general concept of a fair trial set forth in paragraph 1 (Eur. Court HR., Unterpertinger v. Austria judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).        The applicant complains that during his trial the guilty plea of F.S. was admitted as evidence. He lodged an appeal against the trial judge's admission of the plea but later abandoned this appeal.   The applicant attempted to resurrect the complaint regarding the admission of the guilty plea of F.S. at his substantive appeal against conviction and sentence before the Court of Appeal.   The Court of Appeal held that an abandoned appeal was analogous to an appeal that had been dismissed and as such the applicant was estopped from raising the point on an appeal after conviction, the point having been finally determined by a court of competent jurisdiction.   The Commission considers the failure of the applicant to pursue his appeal against the trial judge's admission of the guilty plea of F.S. gives rise to the question whether by not pursuing his appeal against the admission of the guilty plea he had failed to exhaust domestic remedies.   The Commission is not however required to resolve this question as the application is in any event inadmissible for the following reasons.        The Commission recalls that the admissibility of evidence is primarily governed by the rules of domestic law. The admissibility and assessment of evidence are in principle matters for the national courts. The Commission's task under the Convention is to ascertain whether the proceedings, considered as a whole, were fair (Eur. Court HR, Bricmont v Belgium judgement of 7 July 1989, Series A no. 158, p. 31, para. 89 and Saidi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43).        The Commission notes that the guilty plea of F.S. was admitted as proof that F.S. had committed a tax evasion on the UK Revenue and thus direct evidence that there was a cheat on the UK Revenue between 1 November 1985 and 31 October 1986 by F.S.   The judge made it clear to the jury that the guilty plea did not prove a conspiracy by itself and it did not prove the applicant was concerned in that cheat of the Revenue. The admission of the guilty plea was clearly in accordance with domestic law (section 74 of the Police and Evidence Act 1984). Whilst under section 78 of the Police and Criminal Evidence Act 1984, the judge had a discretion not to admit the guilty plea, the judge, having heard the point argued by counsel for the applicant and for the prosecution, chose not to exercise this discretion.   The Commission considers that the admission of the guilty plea must be looked at in conjunction with the warning given to the jury about the relevance of the guilty plea. In these circumstances the Commission considers that the judge's ruling that the guilty plea be admitted as the probative value of the guilty plea outweighed the prejudicial effect, does not disclose an arbitrary or unreasonable exercise of the discretion conferred upon him.   The Commission does not, consequently, find grounds to criticise the judge's refusal to exercise his discretion to exclude the guilty plea and further does not consider that the admission of the guilty plea of F.S. rendered the trial of the applicant unfair.        The applicant also complains that F.S. was not called by the Prosecution, thus denying the applicant the opportunity to cross examine F.S. on the basis of his plea.   Whilst the prosecution did not call F.S., relying simply on his plea of guilty, this did not prevent the applicant calling F.S. himself, whereby the applicant could have examined F.S. in chief, albeit that cross examination would only have been permitted had F.S. been declared a "hostile witness". The Commission also considers there is a distinction between the present case where a guilty plea is admitted to establish the fact of a commission of a crime by a person other than the accused and the case of the admission of a witness' testimony against the accused. In the circumstances of this case the Commission does not consider that it can be said that the applicant was denied the right to examine a witness against him.        The applicant further complains that he lacked adequate time for the preparation of his defence, in particular that he was informed at a late stage of the circumstances surrounding the plea of F.S.   The Commission notes that the applicant was given an opportunity to object to the admission of the guilty plea at the preliminary hearing. In the preliminary hearing concerning the admission of the guilty plea the applicant's counsel argued the point that the circumstances in which F.S.'s plea was obtained should be considered by the judge in the exercise of his discretion to exclude the guilty plea. In addition the applicant had the opportunity to appeal against the judge's decision to admit the plea, before the commencement of the jury trial, however the applicant chose to abandon an appeal.   The Commission does not consider that there is any substantiation to the applicant's claim that he was denied sufficient time for preparation.        The Commission considers that domestic law, which allows for the admission of a guilty plea of a person other than the accused even if that person does not give evidence, with the judge having the discretion to exclude the evidence, if to admit it would have an adverse effect on the fairness of the proceedings, does not impair the very essence of Article 6 paras. 1 or 3 (Art. 6-1, 6-3).        Furthermore considering the applicant's submissions in their entirety, the Commission finds no procedural deficiencies in the case which rendered the criminal proceedings as a whole unfair for the purposes of Article 6 (Art. 6).        In the circumstances the Commission does not consider that there is any appearance of a breach of Article 6 para. 1 or of Article 6 para. 3 (b) or (d) (Art. 6-3-b, 6-3-d).   2.    The applicant further complains under Article 6 para. 2 (Art. 6-2), that as the guilty plea of F.S. to count 5 was admitted, and as F.S.'s name appeared on counts 1 to 4 inclusive along with the applicant's name, the applicant was put in the position of having to show he did not know of the fraud, which his second in command admitted to knowing of, and as such the burden of proof was reversed.   The applicant claims that the jury, having been informed that there was a completed cheat by F.S., were logically unable to deny the fact of there being a cheat in the applicant's case, and that this likewise constituted a breach of Article 6 para. 2 (Art. 6-2).        Article 6 para. 2 (Art. 6-2)of the Convention provides as follows:        "2.    Everyone charged with a criminal offence shall be presumed      innocent until proved guilty according to law."        The Commission considers the applicant's claim, that the admission of evidence establishing that there had been a fraud on the revenue by F.S. changed the burden of proof and thus breached the applicant's right to be presumed innocent until proved guilty according to the law, appears to be based on a misconception.   The judge in his comments to the jury made it clear that the plea of F.S. did not prove a conspiracy by itself and did not prove that the applicant was concerned in that cheat of the Revenue. Whilst the evidence of the guilty plea strengthened the prosecution's case, it did not alter the burden of proof, it remained the task of the prosecution to satisfy the jury beyond reasonable doubt that there had been a fraud against the Revenue in which the applicant had been a conspirator.   The Commission considers, in view of the foregoing, that this claim is not substantiated and that there was no appearance of a violation of Article 6 para. 2 (Art. 6-2) of the Convention.        The Commission refers to its findings under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention and likewise holds that the domestic law which admitted the guilty plea does not impair the very essence of Article 6 para. 2 (Art. 6-2) of the Convention and that the applicant's submissions do not disclose any procedural deficiencies such as to render the case as a whole unfair for the purposes of Article 6 (Art. 6).        It follows that the application as a whole 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.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber