CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 septembre 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. 32874/96                        by Gary MOORE                        against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 11 September 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    M.P. PELLONPÄÄ                  E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL            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 29 March 1996 by Gary MOORE against the United Kingdom and registered on 5 September 1996 under file No. 32874/96;         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, a British citizen born in 1963 is currently serving a prison sentence in HM Prison Perth, Scotland. Before the Commission the applicant is represented by Mr John Carroll, a lawyer practising in Glasgow. The facts of the case, as submitted by the applicant, may be summarised as follows.         At the time of the incident which subsequently gave rise to the charge of culpable homicide, the applicant was serving a prison sentence. He was given temporary leave from prison to visit his longstanding girlfriend of the time, J. There was a young child by this relationship, and the leave had been granted to enable the applicant to resolve and maintain the relationship with J.         Meanwhile, B. had formed a relationship with J. Whilst still in prison the applicant alleged that he was informed that B. was endeavouring, through the criminal fraternity, to obtain a firearm and intended to shoot the applicant. The applicant believed that the relationship between B. and J. was over.         After the applicant's arrival at J.'s apartment, B. was in the vicinity and sent a young girl to see J. with a message explaining that a friend wished to see her. J.'s suspicions were aroused and the applicant upon looking out the window noticed a number of young men whose manner of dress and demeanour caused him alarm. The applicant decided to flee from the flat and, fearing for his own safety searched for something with which to defend himself. He found a small fruit knife. Upon leaving the flat via a common area at the back, the applicant found himself face to face with B.         B., according to the applicant, put a hand into his jacket, having made a threat towards the applicant. The applicant stated that he was in fear of being shot and drew the knife and pointed it towards B. Simultaneously B. shouted at the applicant and ran towards him. The knife penetrated B. in the chest, but he did not appear to be fully aware of what had happened, and ran off. He collapsed and died close to the scene.         At trial in order for the prosecution to successfully prove the crime of culpable homicide, it was necessary to prove that the applicant's state of mind was such that he intended to kill or injure B. It was not in dispute that B. was killed by the knife which the applicant had with him. The prosecution case was that the applicant had run downstairs with the purpose of attacking B. and assaulted him in the street, while the defence case was that the evidence did not preclude accident, and that the applicant, in fear of his life, had been trying to flee and the injury inflicted was accidental. The prosecution's forensic experts confirmed that the injuries may have been caused by the accidental version of events described by the applicant.         The applicant was convicted by the jury and sentenced to eight years' imprisonment on 28 October 1994. He appealed to the High Court on grounds, inter alia, that the judge had misrepresented the applicant's evidence to the jury. In particular, the applicant in his testimony had said that on meeting B. outside he told him, "Get to fuck." whereas the judge in summing up to the jury stated that the applicant said, "I told you to get to fuck." Applicant's counsel argued that the addition of the four extra words gave the implication that there had been a previous exchange or contact between the applicant and the deceased which was not the case and that it was because the deceased had not heeded a prior warning that the applicant attacked him.         The High Court finally dismissed his appeal on 8 November 1995, having called for the transcript. The Court recognised the judge had used different words but did not consider that the difference was material. The judge had clearly outlined the applicant's case, which was that he had stabbed the deceased by accident in the circumstances as described by the applicant. The relevance of the words, in either version, was the mood in which it portrayed the applicant and it did not have the significance pointed to by counsel.     COMPLAINTS         The applicant complains that he has not received a fair trial in accordance with Article 6 (1) of the Convention. The arbitrary nature of the misdirection and the dismissal upon appeal does not accord with the concept of a fair trial. The applicant submits that it was not possible with hindsight for the appeal court to adequately assess the weight which the trial jury placed upon the mis-directed evidence. The mis-direction was of an arbitrary nature and an appeal court cannot dismiss this in the fashion that it did in this case; the version of evidence given by the applicant was consistent with the account of the incident as an accident whereas the version recounted in direction to the jury was consistent to create a wholly different effect, one that implied the requisite prior intention.     THE LAW         The applicant complains that he did not receive a fair trial, invoking Article 6 para. 1 (Art. 6-1) which provides in its first sentence:         "In the determination of his civil rights and obligations or 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."         The applicant's complaints centre upon the significance of a mis- direction to the jury by the trial Judge, the applicant's inability to correct this and his subsequent conviction. The applicant submits that whether the mis-direction had a material effect on the verdict delivered by the jury is impossible to tell and that acceptance of the misdirection by the appeal court discloses arbitrariness and unfairness.         With regard to the judicial decisions in this case, 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 Contracting Parties. In particular, it is not competent to deal with complaints alleging errors of fact or law on the part of the domestic courts, save where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention (see eg. No. 12505/86, Dec. 11.10.88, D.R. 58, p. 106 with further references). The Commission further recalls that the assessment of evidence is principally a matter for the domestic courts to determine. It is not as a general rule within the purview of the Commission to gainsay the assessment of domestic courts as to the relevance of the evidence before them, except where it is apparent that the approach of the court was arbitrary or capricious (see eg. Eur. Court HR, Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B, para. 34; Saïdi v. France judgment of 20 September 1993, Series A no. 261-C, para. 43).         The Commission notes that the applicant alleges that the misdirection by the judge may have misled the jury in a manner prejudicial to his defence and that his appeal on this ground was arbitrarily dismissed, since the appeal court had no way of in fact knowing what effect the misdirection might have had. The Commission observes however that the potential significance of the judge's misdirection was examined by the appeal court which ordered the transcript for that purpose. The appeal court however was not persuaded by the applicant's counsel that the words had the significance to mislead in a material way, in the context that the applicant's defence of accident and the other surrounding circumstances were put clearly to the jury and that the words, in either sense, were pertinent to the applicant's mood at the time of the incident. The Commission does not consider that the appeal court's approach discloses any arbitrariness or capriciousness. While it is true that the appeal court could not be certain of the effect the misdirection had on the jury, the Commission is not satisfied that its appreciation that the misdirection was not material discloses any unfairness in the circumstances of this case.         It follows that the application discloses no appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention and that it must be rejected as manifestly ill-founded pursuant to Article 27 para. 2(Art. 27-2)   of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.           M.F. BUQUICCHIO                              J. LIDDY          Secretary                                 President    to the First Chamber                      of the First Chamber