CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 octobre 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. 34728/97                        by Rosemary WEST                        against the United Kingdom        The European Commission of Human Rights sitting in private on 20 October 1997, the following members being present:              Mr     S. TRECHSEL, President            Mrs    G.H. THUNE            Mrs    J. LIDDY            MM     E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H. DANELIUS                  F. MARTINEZ                  C.L. ROZAKIS                  L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER                  M.A. NOWICKI                  I. CABRAL BARRETO                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  J. MUCHA                  D. SVÁBY                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  E. BIELIUNAS                  E.A. ALKEMA                  M. VILA AMIGÓ            Mrs    M. HION            MM     R. NICOLINI                  A. ARABADJIEV              Mr     M. de SALVIA, Secretary to the Commission          Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 7 October 1996 by Rosemary WEST against the United Kingdom and registered on 4 February 1997 under file No. 34728/97;        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 1953 and currently detained at HM Prison Durham.   She is represented before the Commission by Mr. L. Goatley, a solicitor practising in Gloucester.        The facts, as submitted on behalf of the applicant, may be summarised as follows.        The applicant together with her husband, Fred West, were charged, inter alia, with the murder of 10 young girls whose remains were discovered buried in the basement or grounds of the house which they occupied at 25 Cromwell Street, Gloucester.   It was the prosecution case that the victims had been sexually abused, and that the applicant had participated with her husband in the abuse and murder of each of the victims.   Fred West committed suicide on 1 January 1995 whilst in custody awaiting trial.        The features of the case were such as to attract considerable attention from the media.   The applicant, her sexual proclivities and the nature of her relationship with her husband were, it is submitted, the subject of extensive and unremitting adverse pre-trial media coverage which was prejudicial to her defence and denied her a fair trial.   Furthermore, prior to her trial certain key prosecution witnesses were paid or promised payment by the press of significant sums in return for their stories.        On 22 November 1995, the applicant was convicted on all 10 counts of murder and sentenced to life imprisonment.        The applicant sought leave to appeal against her convictions on grounds, inter alia, that adverse media coverage and the payment of money to key prosecution witnesses by the press had been such as to preclude a fair trial and render her convictions unsafe.        The Court of Appeal refused the applicant leave to appeal on 19 March 1996, but deferred giving reasons for its decision until 2 April 1996 when a fully reasoned judgment was handed down by the Court of Appeal sitting in open court.        The Court of Appeal gave amongst its reasons that the effect of media coverage is essentially ephemeral and the nature of a trial to focus the jury's mind on the evidence before them; that the defence were aware of and cross-examined witnesses as to their contracts and involvement with the media; that no substantial inconsistencies were established between the statements which the witnesses had given to the police and their evidence at trial; and that the judge painstakingly went through the contracts in his summing up to the jury.        Mr Goatley, the applicant's solicitor in the criminal proceedings, did not himself attend the hearing on 2 April 1996, but obtained a copy of the Court of Appeal's judgment on 9 April 1996, having requested a copy of the judgment after the hearing from the Registrar of Appeals.   The hearing on 2 April 1996 was, however, attended by junior counsel, who had represented the applicant throughout the trial and application for leave to appeal, although not it seems on Mr Goatley's express instructions.   Further, it does not appear that there was any contact between junior counsel and Mr Goatley following the hearing of the application for leave to appeal on 19 March 1996.   The applicant was subsequently sent a copy of the judgment by Mr Goatley on 20 April 1996.        In an affidavit sworn on 13 November 1996, Mr Goatley refers to a telephone call to the Secretariat to the Commission on 17 September 1996 in relation to which he states:        "      During the aforesaid telephone call I clearly stated      by way of introduction that I represented <the applicant>,      who had been convicted of the murder of ten young women and      sentenced to ten life sentences, that the client maintained      her innocence and felt strongly that her trial had been      prejudiced by the intrusive conduct of the media in making      payments to witnesses and in the pre-trial publicity and      that therefore she did not get a fair trial and that there      had been a contravention of Articles 6 and 10(2) of the      European Convention on Human Rights.              Upon so advising the administrator that I spoke to on      the telephone I then requested an outline of the procedure      whereby I could proceed with the Application."        He has provided an itemised telephone bill which records a call to the Council of Europe on 17 September 1996, and a manuscript memorandum of the same date recording various aspects of procedure before the Commission as provided during a telephone conversation.   COMPLAINTS        The applicant invokes Article 6 of the Convention.   The applicant complains that the extensive and relentless adverse coverage of the case, and the payments made or promised to key prosecution witnesses by the press for their stories prior to trial was such as to deprive her of a fair trial.   Specifically, the applicant complains that:   (1)   prejudicial newspaper coverage of the case was so pervasive,      intrusive and unremitting that it would have had an indelible      effect on the mind of any person serving on the jury.   The      applicant points out that the material published dealt with facts      which were directly in issue at the trial, and dwelt on her      sexual proclivities and the nature of her relationship with Fred      West in such a way as to prejudice her defence;   (2)   the witnesses, in selling their stories to the media in      circumstances where the media were seeking to sensationalise and      emphasise the more lurid aspects of the case, could no longer be      relied upon to give objective and reliable testimony at trial;   (3)   such safeguards as exist in domestic law, namely under the      Contempt of Court Act 1981, to control media coverage of criminal      proceedings are inadequate and that, in any event, the Attorney      General, whose duty it is to intervene to control media coverage      where there is a substantial risk of serious prejudice to those      proceedings, failed properly to discharge his duty.   In this      regard the applicant points to Article 10 para. 2 of the      Convention which permits of restrictions in the exercise of      freedom of expression where such is necessary in a democratic      society for maintaining the impartiality of the judiciary.        The applicant further complains of inequality of arms at the committal stage of the proceedings in that whilst the prosecution was represented by both junior and leading counsel, the applicant was limited under the Legal Aid in Criminal and Care Proceedings (1989) to representation by junior counsel only.   THE LAW        The applicant invokes Article 6 (Art. 6) of the Convention.   She complains that the nature and effect of unremitting and adverse pre- trial media coverage of the case was such as to establish her guilt in the minds of the public at large and so denied her a fair trial.   The applicant further complains that payments made or promised to key prosecution witnesses by the press in return for their stories rendered their evidence unreliable and precluded a fair trial.   The applicant submits that there were inadequate safeguards, alternatively that such safeguards as existed were not applied in order to control the media in their contact with prosecution witnesses and coverage of the case prior to trial. The applicant also complains of inequality of arms at the committal stage of the criminal proceedings.        The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with an application within a period of six months from the date on which the final decision was taken.        The applicant submits that her complaints were introduced at the telephone by her legal adviser on 17 September 1996.   In the alternative, the applicant contends that the six month time limit under Article 26 (Art. 26) ran from the date on which her legal adviser, and solicitor in the criminal proceedings, received a copy of the Court of Appeal's judgment refusing her leave to appeal, namely 9 April 1996 - and not the date on which the judgement was handed down in court, namely 2 April 1996 - in which case, the applicant submits, the letter dated 7 October 1996 which introduced the substance of the applicant's complaints was within time.        As to the applicant's first submission, the Commission recalls that Rule 44 para. 4 of its Rules of Procedure provides that:        "The date of introduction of the application shall in      general be considered to be the date of the first      communication from the applicant setting out, even      summarily, the object of the application.   The Commission      may nevertheless for good cause decide that a different      date be considered to be the date of introduction."        Although Rule 44 para. 4 does not, in terms, stipulate for the manner and form of communication, the Commission recalls its case law to the effect that the running of the six month period under Article 26 (Art. 26) is, as a rule, interrupted by the first written communication from the applicant setting out summarily the object of the application, provided that this written communication is not followed by a long delay before the application is completed (see inter alia No. 22123/93, Dec. 31.8.94, DR 79, p. 72; and No. 22507/93, Dec. 5 April 1995, DR 81, p. 67).   The Commission has considerable doubts whether an application in the sense envisaged by its Rules of Procedure could ever be introduced by telephone. Even assuming such was possible, only very exceptional circumstances would justify an application being introduced orally.   There must firstly be some overriding reason why it was not possible to submit an application in writing, such as the extremely urgent nature of the case (eg. applications involving a request for interim measures under Rule 36 of the Commission's Rules of Procedure in respect of imminent risk to life and limb).   Second, in such circumstances an oral communication could only be effective to introduce an application provided the applicant or his legal advisers made express and unequivocal the fact that they were seeking formally to introduce the application by this means.        In the present case, when the applicant's legal adviser first contacted the Commission by telephone on 17 September 1996, there remained 15 days before the six-month limit under Article 26 (Art. 26) expired.   The Commission finds no evidence of any overriding reason why the applicant could not prior to or on 17 September 1996, or in the 15 days which remained, submit in writing to the Commission the substance of her complaints under the Convention.   Furthermore, the Commission does not discern, in the material submitted on the applicant's behalf, evidence of any express and unequivocal representation having been made by her legal adviser that he was seeking, by means of the telephone call on 17 September 1996, formally to introduce the application to the Commission. It is not established that his telephone call on 17 September 1996 was anything more than an approach with a view to obtaining general information about Commission procedure.   It follows therefore that, even assuming that introduction of applications by telephone is permissible, neither condition which would be necessary for such oral introduction has been established in the present case. The application was therefore introduced by the applicant's solicitor's first letter of 7 October 1996, setting out the substance of the application.        As to the applicant's second submission, the Commission considers the following principles to be established within its case law:   (1)   the six month period under Article 26 (Art. 26) begins to run on      the day after the date on which the final domestic decision was      pronounced orally in public or, if not so pronounced, was      communicated to the applicant or the applicant's lawyer (eg. No.      21034/92, Dec. 9.1.95, DR 80, p. 87) or where pursuant to      domestic law and practice, the applicant is entitled to be served      ex officio with a written copy of the judgment, from the date of      receipt (Eur. Court HR, Worm v. Austria judgment of 29 August      1997, Reports 1997-V, No. 45);   (2)   where the reasons given for the decision are salient to the      application the six month period will ordinarily be taken to run      from the date on which the full reasons for the decision were      given, and not the date on which the applicant or his legal      adviser was notified merely of the operative part of the decision      (eg. No. 9299/81, Dec. 13.3.84, DR 36, p. 20);   (3)   the six month period runs from the date on which the applicant's      lawyer in the relevant domestic proceedings became aware of the      final decision, notwithstanding that the applicant himself may      only have become aware of the decision at a later date (eg. No.      14056/88, Dec. 28.5.91, DR 70, p. 208).        The Commission recalls that in the present case leave to appeal was refused by the Court of Appeal on 19 March 1996, which reserved giving reasons for its decision until 2 April 1996 when a fully reasoned judgement was handed down in open court.   The applicant's solicitor did not attend the hearing on 2 April 1996.   The hearing on 2 April 1996 was, however, attended by junior counsel, who had represented the applicant throughout the criminal proceedings and on the subsequent application for leave to appeal, although not, it seems, on the express instructions of the applicant's solicitor.        Consistent with the above principles, the Commission considers that in the absence of any sufficient reason to the contrary, the date of the final decision should be taken from the date of the hearing, namely 2 April 1996, at which the Court of Appeal handed down the fully reasoned judgment for its decision refusing the applicant leave to appeal on 19 March 1996, at which hearing counsel, who had represented the applicant throughout the criminal proceedings and on the application for leave to appeal attended.        The Commission notes that it is nowhere suggested that the applicant's solicitor was unaware of the date of the hearing, or that counsel could not have been called upon to communicate the terms of the judgment. It does not find that the fact that counsel was not expressly instructed to attend the hearing on 2 April 1996, nor was subsequently contacted by the applicant's solicitor following that hearing furnishes sufficient reason to justify the Commission in taking as the final decision the date on which the applicant's solicitor received a copy of the Court of Appeal's judgment having requested a copy, following the hearing, from the Registrar of Appeals. There is no obligation in domestic law or practice that the written judgment be served on the applicant by the court as in the Worm case (op. cit.).        Accordingly, the application, which was introduced by the applicant's letter of 7 October 1996, was introduced outside the six month period provided for under Article 26 (Art. 26) of the Convention. It follows, therefore, that the application must be rejected under Article 27 para. 3 (Art. 27-3) thereof.        For these reasons, the Commission, by a majority,          DECLARES THE APPLICATION INADMISSIBLE.             M. de SALVIA                         S. TRECHSEL          Secretary                            President       to the Commission                    of the Commission