CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 30 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. 32350/96                       by Valentine J. REID                       against the United Kingdom          The European Commission of Human Rights sitting in private on 30 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                  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                  P. LORENZEN                  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 30 January 1996 by Valentine J. REID against the United Kingdom and registered on 22 July 1996 under file No. 32350/96;        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 of Afro-Caribbean descent, born in 1969. He is unemployed and resides in Liverpool. In the proceedings before the Commission he is represented by Messrs. Jackson and Canter, solicitors practising in Liverpool.        The facts of the case, as they have been submitted by the applicant, may be summarised as follows:        On 25 July 1991 the applicant was arrested by Detective Constable H, Detective Constable M and a third police officer for having caused criminal damage to a police car. He was taken to a police station. He was asked to empty his pockets in the presence of Sergeant N and, according to the police officers, he was found to be in possession of cocaine. Sergeant N recorded in the custody record that the applicant had acknowledged that he had found the matchbox in which the cocaine was contained outside a youth club. The applicant was charged with causing criminal damage to a police car and unlawful possession of cocaine.        On 2 October 1992 he was acquitted by the Liverpool Crown Court of the second charge. On 19 February 1993 he was acquitted by the Liverpool City Magistrates' Court of the first charge.        On 4 August 1993 the applicant brought proceedings in the Liverpool County Court against the police claiming damages for wrongful arrest and malicious prosecution. The applicant alleged, inter alia, that D.C. H and D.C. M had fabricated the evidence concerning the unlawful possession of cocaine. When the applicant was young and living in Toxteth, D.C. H and D.C. M had apparently served in that area.        The applicant's action was tried by a court composed of a judge and eight jurors - all of them white - on 7 April 1994. In her summing- up judge B, when discussing the role of Sergeant N, said the following:        "You cannot, I suggest, just say: Well, Sergeant N wasn't taking      part in it. It is these two officers who came from Toxteth, who      had it in for the [applicant], who were the niggers in the      woodpile. I know one is not supposed to use words like that and      you will forgive me, and I am sure the [applicant] will forgive      me for using that expression. The allegation involves the active      part of the sergeant in recording the alleged fabricated reply."        In another part of her summing-up, judge B said that        "Everyone recognises ... that the police have a difficult job,      particularly in an area such as Toxteth where from time to time      trouble flares up [but] it is the duty of the police officers to      carry out their difficult job in accordance with the law, and the      law does not allow false charges to be set up.   It is as simple      as that.   Fortunately we do not condone the setting up of      innocent people so that they are put into the position where they      are kept in custody and are the subject of criminal prosecution."        In another part she reminded the jurors of their duty "to appoint a foreman or a forewoman" and then continued as follows: "I suppose being politically correct one would say a spokesperson, you all know what I mean".        The jury found for the police and the applicant's civil action was dismissed.        The applicant appealed on the ground that judge B in her summing- up had made remarks betraying bias on racial grounds.        Lord Justice Beldam, giving the main judgment in the case on 29 January 1996, noted that the complaint was that the judge, by the use of the expression, "clearly evinced bias on racial grounds, and accordingly, public confidence in the administration of justice would be so affronted that she ought, in fairness to the [applicant], have discharged the jury and withdrawn from the case, herself ordering a retrial.   Even if the use of the proverbial expression was no ground for inferring prejudice on her part, she should have recognised that there was a real danger that the jury, however impartial, might be influenced by her use of that expression against the [applicant's] case and should have warned the jury against being biased by her use of it".        Lord Justice Beldam noted that the phrase "a nigger in the woodpile" meant a private reason or motive or action which is not divulged. However, he accepted that in 1996 in a multi-racial society no tribunal should use this figure of speech. Its use could plainly give offence and lead to the suggestion that it was indicative of the attitude of the person using it. However, in the circumstances of the applicant's case the use of the expression was plainly impersonal and could not possibly refer to the applicant. Moreover, the judge had recognised the possibility that she might have caused offence and apologised with the intention to remove any suggestion that she was biased.   Lord Justice Beldam did not consider that anybody hearing the particular extract from the summing-up would have regarded the judge as being biased against the applicant's case. Nor could the other passage, referring to Toxteth as a place where trouble flares up from time to time, lend any support to the applicant's allegations.   He considered that "a fair reading of the summing-up as a whole shows the judge to be holding the scales evenly between the two sides."   As a result, it was not accepted that judge B was actually biased, or that there was any danger that a jury hearing these words would have been unfairly prejudiced against the applicant's case.        Lord Justice Waite, agreeing, noted:        "There was a time when the word 'nigger' might be used      inoffensively in some instances; for example in familiar figures      of speech like the one quoted by the judge in the present case,      or in school playground counting-out games.   Those days have      gone, and the word can never now be used without offence to the      principles of racial integration and good relations which it is      the policy of the law and of the courts to uphold.   The first to      recognise that in the instant case was the judge ...   [The      question must be asked ...] was there in the relevant      circumstances a real danger of bias on the part of any juror in      the sense that he or she might unfairly regard with favour or      disfavour the case of the [applicant]? ... [It] is fanciful to      suppose that any jury, regardless of the skin colour of its      members, applying to this case the traditional jury attributes      of commonsense, fairness and a sense of proportion, would have      been placed by the judge's remarks at the slightest risk of      having their judgment affected by prejudice or predisposition on      racial or any other grounds."        The appeal was dismissed.   COMPLAINTS   1.    The applicant complains under Article 6 para. 1 of the Convention that he did not have a fair hearing by an impartial tribunal. The phrase "nigger in the woodpile" was an example of bias and so was judge B's reference to Toxteth as an area "where from time to time trouble flares up". Moreover, judge B, by making the comments she made about the usage of the word "spokesperson", took the view that any attempt at equality of treatment was of superficial importance being part of some force majeure.   2.    The applicant also complains under Article 14 of the Convention that his Article 6 rights were not secured without discrimination on grounds of race.   THE LAW   1.    The applicant alleges a violation of Article 6 para. 1 (Art. 6-1) of the Convention in that the first instance judge demonstrated bias and gave rise to unfairness in the use of certain phrases in her summing up to the jury.   Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:        "1.    In the determination of his civil rights and obligations      ..., everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law."        The Commission first 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).        The Commission next recalls that questions of impartiality, or bias, can relate to subjective or to objective bias (see, in a criminal case, Eur. Court HR, Gregory v. the United Kingdom judgment of 25 February 1997, Reports 1997-I, No. 31, para. 43).   There is no indication of actual, or subjective, lack of impartiality in the present case on the part of the first instance judge or the jury.        As to the question of whether the applicant could reasonably hold objectively justified fears as to the impartiality of the judge or the jury, the Commission notes that the judge immediately rectified the statement in which she referred to the possibility of two of the policemen (not the applicant) being the "niggers in the woodpile".   The Commission further notes that in the Court of Appeal, Lord Justice Beldam considered that the apology which accompanied the phrase was sufficient to ensure that a jury hearing those words would not have been prejudiced against the case of the applicant.   Lord Justice Waite, too, considered that there was not the slightest risk of the jury's judgment being affected by the statement.   The Commission agrees: the statement formed one phrase in a summing up which runs to over 25 pages, and was accompanied by a recognition by the judge that the phrase was inappropriate.   Moreover, the phrase was not used in the context of a reference to the applicant, but was intended as no more than a graphic way of explaining to the jury that it could not be said that the police officers who came from Toxteth were alone in behaving as the applicant was alleging, but that the sergeant was also necessarily involved in the applicant's allegations.        As to the further comments of which the applicant makes complaint, the Commission does not accept that the reference to Toxteth as a place where trouble flares up from time to time can be taken as indicating or giving rise to any bias whatever: the context of that remark was that however difficult the job of the police may be, they are not allowed to lay false charges.   The comments about the "spokesperson" do not indicate, or encourage, bias.        The Commission thus considers that the applicant could not reasonably hold objectively justified fears as to the impartiality of the judge or the jury.        The Commission has further considered the question of whether the use of the phrase "niggers in the woodpile", taken in the context of the summing up and of the proceedings as a whole, could be said to have deprived the applicant of the fair hearing to which he is entitled by Article 6 para. 1 (Art. 6-1) of the Convention.        It is of fundamental importance in a democratic society that the courts inspire confidence in the public (see, for example, the above- mentioned Gregory judgment, para. 43).   In this context, the Commission attaches considerable weight to the need to ensure that judicial proceedings are pursued with the dignity commensurate with the courts' role in a democratic society.   The Commission accepts that the use by the judiciary of gratuitously offensive words or phrases could, depending on the circumstances, render the proceedings unfair as a whole.   That is not, however, the case here.   In the present case, the judge immediately accepted that her statement was inappropriate, and both judges who made speeches before the Court of Appeal agreed that such statements should not be made.   Lord Justice Waite, in particular, made quite clear that the courts must uphold principles of racial integration.        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 alleges a violation of Article 14 of the Convention in connection with Article 6 (Art. 14+6) thereof.        In the above-mentioned case of Gregory v. the United Kingdom, the European Court of Human Rights found that the applicant's complaint under Article 14 (Art. 14) did not give rise to any separate issue (above-mentioned Gregory case, para. 54).   In the present case, too, the complaints under Article 14 (Art. 14) are indistinguishable from those under Article 6 para. 1 (Art. 6-1) 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.        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