CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 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. 25605/94                       by Surrye ALI                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 21 May 1997, the following members being present:                Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  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 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 reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on 5 July      1996 and the observations in reply submitted by the applicant on      4 October 1996;        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 parties, may be summarised as follows.   The particular circumstances of the case        The applicant's sister-in-law was murdered on 17 February 1987. The applicant was arrested on 18 February 1987 and interviewed in connection with her involvement from 11.15 p.m. until 11.43 p.m..   This interview was held in the applicant's cell in breach of Code C of the Police and Criminal Evidence Act 1984 (PACE) and no contemporaneous notes of the interview were made, also in breach of PACE.   A second interview was held between 9.28 a.m. and 10.37 a.m. the following morning.   Both of these interviews were conducted in English without an interpreter being present.   A third interview was held that evening. The third interview began at 5.10 pm, and was held in the presence of a constable, a woman detective sergeant and a detective constable who acted as an interpreter.   The applicant was cautioned at the beginning of the interview, and gave written consent that the detective constable act as an interpreter.   The signed authority recorded that the language to be used was Punjabi.   The interview continued until 3.06 a.m. the following day, with breaks from questions between 7.18 p.m. and 8.45 p.m. (during which the applicant was photographed).   At 8.45 p.m. the interview recommenced and between 10.35 p.m. and 10.50 p.m. there was a further coffee break.   No further caution was made when the interview resumed at 10.50 p.m..   The applicant made an alleged admission at 11.30 p.m., that she had restrained the victim's legs whilst the strangling was carried out.   The applicant was given a meal at 12.45 a.m. on 20 February 1987, and the interview ended at 3.06 a.m..        On 26 November 1987 the applicant was convicted at the Birmingham Crown Court of the murder of her sister-in-law.   The co-accused, the victim's brother, had pleaded guilty to murder.   The applicant alleged that evidence obtained in the course of the 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 PACE 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.   The applicant further claimed at trial that she had never made many of the alleged admissions and that she had signed blank pages, and the notes had been written later. She further claimed that the interview had been in Punjabi (which she spoke but did not read and write, and which was the language used according to the signed authority) whereas the interpreter claimed the interview had been conducted in Urdu (which the applicant spoke and also could read and write). The notes of the interview as referred to at trial were in Urdu.          On 20 December 1990 the applicant was granted an extension of time to apply for leave 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. With regard to her participation, the prosecution relied upon her "confession" in the third interview, that she had held down the victims legs as the strangling was taking place.   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 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 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 by Section 76 (2) (a) of PACE, or alternatively that the evidence should have been excluded by the trial judge in the exercise of his discretion under Section 78 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 then were the rules relating to interpreters.   Questions as to the circumstances of the making of the confession had not therefore been put at the trial.   At the trial, there had initially been no claim that the record was not made at the time, or that the applicant had not signed the pages.   However, when the applicant went into the witness box, she disowned all signatures on the interview notes, and claimed she had been given blank pages to sign.   Thus, the Court of Appeal noted, when the Recorder gave his summing up, he was not concerned with the situation that the confession was made as a result of pressure put upon her.        In connection with the question of interpretation, the Court of Appeal expressed surprise that there should have been doubt as to the language used at the interview, but that it was inconceivable that the difference between the prosecution and the defence could be attributed to errors or difficulties in translation.   The Court of Appeal noted that the interpreter had been present at the trial.        The Court of Appeal found a breach of the rules of Code C relating to refreshment, noted 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 included 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, and Section 14 requires an interpreter to be present if a person 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 violation of Article 6 of the Convention.        The applicant 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 complains of violations of Article 6 due to the absence of a legal representative 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)).   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 11 May 1994 and registered on 7 November 1994.        On 28 February 1996 the Commission decided to communicate the applicant's complaint concerning Article 6 to the respondent Government and to declare the remainder of the application inadmissible.        The Government's written observations were submitted on 5 July 1996, after an extension of the time-limit fixed for that purpose.   The applicant replied on 4 October 1996, also after an extension of the time-limit.        On 10 September 1996 the Commission granted the applicant legal aid.   THE LAW        The applicant complains that she did not receive a fair trial in accordance with Article 6 para. 1 (Art. 6-1) of the Convention. She further invokes Article 6 para. 3 (b) and (c) (Art. 6-3-b, 6-3-c) in relation to the fact she was given no legal assistance during her interviews and that she was unable to have the interview notes forensically tested for forgery, as they had gone missing.        Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair ... hearing ...        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;              c.     to defend himself in person or through legal            assistance of his own choosing or, if he has not sufficient            means to pay for legal assistance, to be given it free when            the interests of justice so require ..."        The respondent Government note that the domestic law did not require that a lawyer be present at the interviews, merely that the applicant be informed of her right to consult a lawyer.   The Government state that at the time of the third interview the applicant declined the offer of the attendance of a lawyer.   The Government also note that the applicant was given the opportunity before the trial judge and the Court of Appeal to argue that the interview evidence should be excluded, but that she failed to establish that the evidence was obtained by oppression or should be excluded, as adversely affecting the fairness of the proceedings.   They further allege that there was nothing about the conduct or length of the third interview or the circumstances in which the confession was made which prejudiced the applicant's trial.   Nor do the Government consider that the disappearance of the records denied the applicant any substantive defence as they consider that forensic tests could not show that complete notes had been written on signed blank sheets.        The applicant considers that she did not receive a fair trial in accordance with Article 6 para. 1 (Art. 6-1) of the Convention.   In particular she considers that she was not given legal assistance at her interviews, and that this constituted, in the circumstances, a breach of Article 6 para. 3 (c) (Art. 6-3-c).   The applicant further considers that the disappearance of the third interview notes (which contained the disputed confessions), amounted to a significant impairment of her ability to defend herself and put her case that the notes were a fabrication, and that this in turn amounted to a breach of Article 6 para. 3 (b) (Art. 6-3-b).   The applicant refers to the investigating officers' connections with the discredited West Midlands Serious Crime Squad, and expresses doubts as to their integrity. She points out that the credibility of one of the officers present was undermined by a television programme in which he was heard stating that he had received some £10,000.00 in bribes (although it was decided that there was insufficient evidence to prosecute).   She also points out that the police officer who acted as interpreter was involved with the West Midlands Serious Crime Squad in other cases, and that the whole case was supervised by a Detective Superintendent who was the penultimate head of the West Midlands Serious Crime Squad.        The applicant also notes the discrepancy between the signed authority, which says that the interview was in Punjabi and the police interpreter's statement that the interview was conducted in Urdu (the notes of the interview were written in Urdu).   She accepts, however, that she cannot be subjected to the same examination as the trial judge carried out, and she therefore does not pursue her allegations that she did not understand English.        The Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see eg. No. 458/59, X v. Belgium, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, X v. Sweden, Dec. 8.2.73, Collection 43, pp. 71, 77; No. 7987/77, X v. Austria, Dec. 13.12.79, D.R. 18, pp. 31, 45; No. 19890/92, Ziegler v. Switzerland, Dec. 3.5.93, D.R. 74, p. 234).        To the extent that the applicant complains about the fairness of the proceedings as a whole, the Commission recalls that the guarantees of Article 6 para. 3 (Art. 6-3) of the Convention are specific aspects of the right to a fair trial in Article 6 para. 1 (Art. 6-1) of the Convention (see, for example, Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 234-B, p. 34, para. 33, with further references).   In the present case, the Commission will consider the proceedings as a whole, with particular reference to the specific aspects raised by the applicant.        All the applicant's complaints flow from the events surrounding the initial interviews in the case.        The Commission recalls that Article 6 (Art. 6) applies even at the stage of the preliminary investigation into an offence by the police.   In particular, Article 6 (Art. 6) - especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Eur. Court HR, John Murray v. the United Kingdom judgment of 8 February 1996, Reports 1996- I, p. 54, para. 62).        The applicant accepts that she cannot challenge the finding of the trial judge that she was in fact able to understand English.   No specific problem therefore arises under Article 6 para. 3 (e) (Art. 6-3-e), although the discrepancy between the language actually used and the recorded language of the interviews remains.        As regards the applicant's complaint concerning the absence of a legal representative, the Commission notes that the applicant had a right under domestic law to consult a solicitor privately and to be informed of such right as soon as practicable after the event.        The applicant considers that, in particular for the third interview, when it became clear that the applicant was going to be interviewed for a long period, the police should have ensured that she consulted a solicitor.   The Government agree that domestic law does not require a solicitor to be present during interviews, but claim that the applicant was in fact told that she could see a solicitor if she wished.        The Commission recalls that Article 6 (Art. 6) will normally require an accused to benefit from the assistance of a lawyer at the initial stages of police interrogation if the consequences of the accused's attitude are decisive for the prospects of the defence in subsequent proceedings (see the above-mentioned John Murray judgment, p. 54, para. 63).   The right may, however be subject to restrictions for good cause (ibid.).   In the above-mentioned John Murray judgment, the question of the accused's attitude was particularly relevant because of the adverse inferences which could be drawn if he remained silent.   In the present case, the "attitude" was the confession which the applicant was alleged to have made.   Whilst the confession in all likelihood changed the course, and possibly the outcome, of the proceedings against the applicant, that is not the same as the position in the John Murray case.   What is required in the case of confessions alleged to have been obtained after alleged undue pressure is a mechanism by which the undue pressure - in the absence of a lawyer - can be challenged at court (see No. 9370/81, Dec. 13.10.83, D.R. 35, p. 75).   To the extent that the Convention requires an individual to be informed of his right to a lawyer, the Commission notes that the applicant had a right in domestic law to be informed of her right to see a solicitor.   Moreover, she did not claim, either at her trial or on appeal, that she had not been so informed.        The applicant did not make any reference to the absence of a lawyer and undue pressure at the initial trial: such an allegation would have been inconsistent with her claim that she had signed blank pages and that the notes had been written later.   She did, however, raise the matter in her appeal.   The Court of Appeal did not deal with the specific question of the absence of a lawyer (domestic law did not require a lawyer to be present at the interviews), but it did consider whether the confession had been obtained by undue pressure, such that it should have been excluded under Section 76 PACE, or whether in the circumstances it ought to have been excluded under Section 78 PACE. Both questions were decided against the applicant.        A further area of complaint by the applicant is the fact that the notes of the original interviews and the confessions, which were available at trial, went missing before the Court of Appeal hearing, which meant that they could not be subjected to ESDA testing.        The Commission agrees with the Court of Appeal that it seems strange that the disappearance of the papers should coincide with the development of a test which could establish whether the notes were or were not made at the same time as the signatures.   However, the applicant is not able to make any specific allegations beyond the fact that the papers went missing, and that she was therefore unable to have the ESDA test carried out.   In particular, given her allegation on appeal that her confession was made under oppression, the applicant has not specified how the ESDA tests would assist her case. The Commission does not consider that this facet of the case can affect the fairness of the proceedings.        Considering the proceedings as a whole, the Commission notes the following points.   At the original trial, the applicant's defence was that she had not made many of the alleged admissions, but that she had signed blank pages of paper, which had been filled in later.   That defence was not accepted.   She did not request leave to appeal until very much later, and a further 18 months elapsed before she filed grounds of appeal with the full Court of Appeal.   In the light of all the circumstances of the case, leave was granted and the applicant was able to bring what was, in effect, a wholly new defence, namely that the admissions were obtained by undue pressure, and that they should therefore have been excluded.   The Court of Appeal considered the allegations - including the alleged and established breaches of the Code of Conduct - and found that neither Section 76 nor Section 78 of PACE required exclusion of the admissions.        Given that the Commission's principal task in assessing the fairness of proceedings is to consider the way in which the courts handled the case, and given the above considerations of the specific matters which flow from the initial interviews with the applicant, the Commission finds no indication that the provisions of Article 6 (Art. 6) were violated in the present case.        It follows that the remainder of the application 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 REMAINDER OF THE APPLICATION INADMISSIBLE.       M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber