CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 avril 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. 30551/96                       by Gordon CARTLEDGE                       against the United Kingdom          The European Commission of Human Rights (First Chamber) sitting in private on 9 April 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              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 17 January 1996 by Gordon CARTLEDGE against the United Kingdom and registered on 22 March 1996 under file No. 30551/96;        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 1944, living in Widnes.   Before the Commission, he is represented by Messrs. Byrne Frodsham and Co, solicitors in Widnes.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 20 August 1988 the applicant was stopped by the police and arrested for drinking and driving.   At the police station, under alleged threat of prosecution for failure to provide a specimen, he allowed a police doctor to take a blood sample.   The blood sample was found to have a blood alcohol concentration of 0,89%.        On 13 December 1989 the Dolgellau Magistrates Court convicted the applicant, after his plea of guilty, of driving a motor vehicle with excess alcohol in his blood contrary to the Road Traffic Act 1972. He was not represented.        On 20 October 1994 the applicant applied to the High Court for judicial review of the conviction, claiming that the police had not used the correct procedure in his case and that he could never have been convicted if the correct procedure for taking blood had been followed.        On 31 July 1995 the High Court dismissed the application on the grounds that in the absence of fraud it had no jurisdiction to quash a conviction following an unequivocal plea of guilty.   The Court found inter alia:        "[the Road Traffic Act 1972 provides for] the circumstances      in which a specimen of blood can be taken from the suspect      for analysis of the alcohol content.   In certain      circumstances a specimen of blood ... can be required of      the suspect.   These circumstances are where it is      impossible or inappropriate to rely on the breath test,      first that the constable making the requirement has      reasonable grounds to believe that for medical reasons a      specimen of breath cannot or should not be provided; or      secondly that there is no reliable breathalyser available      at the police station, or thirdly that the constable has      been advised by a medical practitioner that the condition      of the suspect might be due to some drug ... We refer to      this as the obligatory specimen.        In certain circumstances the driver may have the option of      providing a specimen of blood ... in preference to the      lower of the two breath test readings. ... We refer to this      as the driver's option specimen.        In an effort to ensure that constables administering the      procedure laid down by the Statute should follow it      correctly, police forces throughout the country introduced      standard forms setting out the questions to be asked of the      suspect and the information to be given.   Until the      decision of the House of Lords in DPP v. Warren [1993] AC      319, it was widely thought that these forms correctly      embodied the statutory procedure.      ...        In ... the obligatory specimen, there are five matters of      which the driver must be informed:        (i)    the reason why under section 7(3) of the 1988 Act            breath specimens cannot be taken or used;      (ii)   in these circumstances he is required to give a            specimen of blood or urine;      (iii)it is for the officer to decide which such specimen            will be given;      (iv)   warned that a failure to provide the specimen may            render him liable to prosecution;      (v)    if the constable decides to require blood, ask him if            there are any reasons why a specimen cannot or should            not be taken from him by a doctor. ...        In the driver's option case, the information is necessarily      somewhat different ...        In [the applicant's] case there is a difficulty.   Because      the records no longer exist, it is not known whether it was      an obligatory specimen case or a driver's option case.      Moreover, the proforma used at the material time by the      North Wales Police can no longer be found.   The best that      can be done is to produce the proforma in use in October      1989.   But on the assumption, which it seems reasonable to      make, that the form was substantially similar to that used      in the case of [the applicant] and nothing more was said by      the constable than appears on the form, it is accepted by      the prosecution that if it was an obligatory case, then the      information in paragraphs (i) and (v) was not given, and if      it was a driver's option case, the information did not      include that set out in paragraphs (i) and (iv) of the      Warren procedure. ...        Although as a general rule evidence, if relevant, is      admissible even if it has been obtained contrary to the      correct procedure, subject to the Court's power to disallow      it under section 78 of the Police and Criminal Evidence Act      1984, it is now well established that if the correct      procedure laid down by the Road Traffic Acts in this class      of case is not followed, the evidence is inadmissible.        The questions therefore that arise are: 1. Does this Court      have jurisdiction to quash a conviction entered following      an unequivocal plea of guilty where the conduct of the      prosecution cannot fairly be categorised as analogous to      fraud?   2. If the answer to question 1 is no, can the      conduct of the prosecution ... fairly be categorised as      analogous to fraud?   3. If the answer to question 1 is no,      but the answer to question 2 is yes, should the Court      exercise its discretion to quash [the conviction]?        ... we would answer the first question ... in the negative.      That leads us to consider the second question, namely      whether the conduct of the prosecution in either case can      properly be described as analogous to fraud.   ... there was      no falsifying or suppression of evidence that might have      secured an acquittal.   On the contrary, there is no      suggestion that the crucial evidence of the analysis of the      blood [sample] upon which guilt or innocence depended was      in any way open to doubt.   [The] applicant no doubt pleaded      guilty on the basis of these analyses and on recognition      that [he] had consumed alcohol to such an extent that such      a reading was likely.   There was a procedural error in the      obtaining of such evidence.   In the [applicant's case] we      do not think the prosecutor can possibly be criticised for      failing to foresee that the House of Lords in Warren would      declare the law to be different from what it was generally      thought to be. ... We do not think that the conduct of the      prosecution [in this case] is analogous to fraud.      Moreover, in our view, there is no injustice to the      [applicant]. ...        Even if we are wrong on this, we do not consider that this      is a case where discretion should be exercised so as to      quash the [conviction]."        On 20 September 1995 the applicant introduced a petition for leave to appeal to the House of Lords.   His principal claims were that (1) the prosecution had no admissible evidence on which they could obtain a conviction and that no such evidence had ever come into existence at any time and that (2) it was unjust that a person could not obtain a court order to have a conviction for an offence quashed where he pleaded guilty to that offence in ignorance of the fact that he could never, as a matter of law, have been convicted of that offence.        On 11 December 1995 the House of Lords refused leave to appeal.   COMPLAINTS   1.    The applicant complains that the only evidence proving his guilt - the blood analysis - was obtained illegally and under English law was therefore ipso facto inadmissible in evidence.   He claims that the Dolgellau Magistrates Court should have realised this from the facts told to them by the prosecution.   He invokes Article 6 paras. 1 and 2 of the Convention.   2.    He also complains under Article 13 of the Convention that, under English law, he had no remedy for breach of Article 6 para. 2 of the Convention.   THE LAW   1.    The applicant complains under Article 6 paras. 1 and 2 (Art. 6-1, 6-2) of the Convention of the criminal proceedings in which he was involved.   These provisions state, insofar as relevant:        "1.    In the determination ... 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. ...        2.     Everyone charged with a criminal offence shall be      presumed innocent until proved guilty according to law."        The Commission first recalls that the rules governing the admissibility of evidence are in the first place a matter for domestic courts.   The Commission's task, under the Convention, is to ascertain whether the proceedings, considered as a whole, including the way in which evidence was taken, were fair (cf. Eur. Court HR, the Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, pp. 34-35, para. 4 and the Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, p. 56, para. 43).        In the present case, it is in the Commission's opinion clear that the only evidence in the criminal proceedings was the sample of the applicant's blood.   However, the Commission notes the finding of the High Court that there was no falsifying or suppression of evidence that might have secured an acquittal and that, on the contrary, there was no suggestion that the crucial evidence of the analysis of the blood sample on which guilt or innocence depended was in any way open to doubt.   The High Court further observed that the applicant no doubt pleaded guilty on the basis of these analysis and in recognition that he had consumed alcohol to such an extent that such a reading was likely.   Moreover, the applicant did not object at the Magistrates Court that the specimen of blood has been obtained contrary to the correct procedure.        The applicant further appears to complain that the obtaining of a blood sample under compulsion itself involved a violation of the right not to incriminate oneself in breach of Article 6 (Art. 6) of the Convention.        The Commission recalls that, although not specifically mentioned in Article 6 (Art. 6) of the Convention, the right to silence and the right not to incriminate oneself, are generally recognised international standards which lie at the heart of the notion of a fair procedure under this Article.   Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 (Art. 6) of the Convention (cf. Eur. Court HR, the John Murray v. the United Kingdom judgment of 8 February 1996, Reports of Judgments and Decisions for 1996). The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused (cf. Eur. Court HR, the Saunders v. the United Kingdom judgment of 17 December 1996, Reports of Judgments and Decisions for 1996).   In this sense the right is closely linked to the presumption of innocence contained in Article 6 para. 2 (Art. 6-2) of the Convention invoked also by the applicant.        However, the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent.   As the European Court considered in the Saunders judgment, this right does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing (cf. the above-mentioned Saunders v. the United Kingdom judgment, para. 69).        As a result, in the light of the above considerations, the Commission does not find that the fact that the sample of blood was compulsorily obtained and admitted as evidence against the applicant could lead to the conclusion that the applicant was deprived of a fair trial within the meaning of Article 6 (Art. 6) of the Convention.        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.   2.    The applicant also complains under Article 13 (Art. 13) of the Convention that, under English law, he had no remedy for breach of Article 6 para. 2 (Art. 6-2) of the Convention.        Article 13 (Art. 13) of the Convention reads as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy      before a national authority notwithstanding that the      violation has been committed by a person acting in a      official capacity."        The Commission recalls however that Article 13 (Art. 13) of the Convention does not require a remedy under domestic law in respect of any alleged violation of the Convention.   It only applies if the individual can be said to have an "arguable claim" of a violation of the Convention (cf. Eur. Court HR, the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).        The Commission finds that the applicant cannot be said, in light of its findings above, to have an "arguable claim" of a violation of his Convention rights.        It follows that this part of the application must also be dismissed as 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