CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 29 janvier 2004

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Ress , President ,   Sir   Nicolas Bratza ,   Mr   B. Zupančič ,   Mr   J. Hedigan ,   Mrs   M. Tsatsa-Nikolovska ,   Mrs   H.S. Greve ,   Mr   K. Traja, judges , and Mr M. Villiger , Deputy Section Registrar , Having regard to the above application lodged on 26 February 2001, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants, Having deliberated, decides as follows:     THE FACTS The applicants, Meina and Claire Latif and Mark Frank Francom, are United Kingdom [Note1] nationals, who were born in April 1981, July 1978 and May 1976, respectively. They are currently detained in HMP Holloway, HMP Durham and HMP Long Lartin, respectively. They are represented before the Court by Mr J. Goodwin, a lawyer practising in Leeds. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were arrested and interviewed by police, along with two other persons, in connection with the robbery, false imprisonment and murder of a woman in April 1998. It was alleged that the victim, an eighteen-year old schizophrenic girl, had been held at the flat where two of the applicants lived and had been subjected to numerous acts of violence. According to the evidence later adduced at trial, the victim was, inter alia , punched and kicked, beaten with a snooker cue and an iron, urinated upon, forced to drink disinfectant and locked in a kitchen cupboard. Once the victim died, she had been placed in a shallow grave where she was found on 25 April 1998. During the police interviews, Meina and Clare Latif, on the advice of their solicitor, made no comment to questions put to them. In his first interview, Mark Francom admitted to disposing of the body and described the deceased’s appearance after she had been struck with an iron by another co-accused. He stated that the deceased had been put in a cupboard and described seeing the deceased with a plastic bag over her head and the same co-accused with her hands round the deceased’s neck. At his second interview, Mark Francom made no comment when the allegations of other witnesses were put to him. All three applicants were subsequently charged with murder and false imprisonment and Clare Latif was also charged with robbery. The two other persons arrested were also charged with murder, false imprisonment and one was charged with robbery. The trial of all five co-accused was held from 21 April to 28 May 1999. The evidence against the applicants consisted of forensic evidence and the statements of a number of witnesses who called at the flat while the deceased was there. The witnesses described injuries being inflicted upon the deceased by each of the applicants. There was also evidence from witnesses to admissions made by Meina and Clare Latif while they were in custody, in which they independently gave detailed descriptions of what had happened to the deceased while in the flat. One witness stated that Meina and Clare Latif had told her that they were going to try to blame it all on one co-accused and that it was Mark Francom who had placed the bag over the deceased’s head and burnt her with a cigarette. At trial, each of the applicants gave evidence and offered an account of events, admitting their presence at the flat but stating that it had been the acts of another co-accused which had killed the deceased without their encouragement or participation. The defence urged that it would not be appropriate to draw any inference from the applicants’ failure to mention during the police interviews facts later relied on in the trial as provided for by section 34 of the Criminal Justice and Public Order Act 1994. The trial judge, in the exercise of her discretion, agreed that she would direct the jury that they should not draw any adverse inference from the applicants’ silence. Leading counsel for one of the applicants told the jury that they would be directed to that effect by the trial judge. However, in her summing-up, the trial judge did not specifically direct the jury that they could not draw adverse inferences from the applicants’ silence at interview. On 28 May 1999, all three applicants were convicted of murder and false imprisonment. Clare Latif was also convicted of robbery. The applicants appealed against conviction and a single judge of the Court of Appeal granted leave to appeal on certain of the grounds of appeal relied upon. The full Court of Appeal granted leave to appeal including on the ground that the failure of the trial judge to specifically direct the jury that no adverse inference should be drawn from their silence during the police interviews rendered their trial unfair within the meaning of Article 6 of the Convention and the Court’s judgment in the case of Condron v. the United Kingdom (no. 35718/97, ECHR 2000-V). On 31 July 2000, the Court of Appeal dismissed the applicants’ appeals against conviction on the ground, inter alia, that any omission or error in the trial judge’s direction to the jury did not render their convictions unsafe or the trial unfair within the meaning of Article 6 of the Convention and the Condron case. The Court emphasised that everyone involved in the trial accepted that no adverse inference should be drawn and that nothing was said by either the trial judge or counsel which was inconsistent with this. Further, the trial wholly depended on which witnesses the jury believed and they clearly did not believe the accounts given by the applicants. The applicants subsequently applied to the Court of Appeal to certify that the case raised a point of law of general public importance and, having done so, to grant leave to appeal to the House of Lords. The Court of Appeal refused the application on 19 December 2000.     B.     Relevant domestic law Section 34 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) provides that: “(1)     Where, in any proceedings against a person for an offence, evidence is given that the accused– (a)     at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or (b)     on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies. (2)     Where this subsection applies– ... (c)     the court, in determining whether there is a case to answer; and (d)     the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper. (3)     Subject to any directions by the court, evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention. ...” Section 38(3) of the 1994 Act adds that: “(3)     A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2) ...” The Judicial Studies Board has adopted several specimen directions regarding the drawing of adverse inferences from silence according to section 34 of the 1994 Act. These specimen directions offer guidance to trial judges as to the directions they should give to the jury. The specimen directions are revised from time to time in accordance with developments in statute and case-law. Prior to May 1999 specimen directions existed for the situation in which a trial judge decided that it was open to the jury to draw an adverse inference. Following the case of R v. McGarry (1999) 1 Criminal Appeal Reports 377), specimen direction no. 40, adopted in May 1999, provided that, if a trial judge decided as a matter of law that it was not open to the jury to draw an adverse inference, a specific direction (contained in specimen direction no. 44) should be given to that effect. COMPLAINT The applicants complain under Article 6 of the Convention that they did not receive a fair trial as a result of the failure of the trial judge to specifically direct the jury that they could not draw adverse inferences from their silence during police interviews. The applicants submit that the Court of Appeal could not remedy the defect on appeal since it was impossible to ascertain whether or not their silence played a significant role in the jury’s decision to convict. THE LAW The applicants complain under Article 6 of the Convention that the trial judge failed to direct the jury not to draw any adverse inferences from their silence during the police interviews. Article 6, as relevant, provides that:   “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 ...”   1. The parties’ submissions The Government submit that the Court should declare the application inadmissible on the basis that the applicants failed to comply with the six-month time-limit established under Article 35 of the Convention. The Government consider that the first letter received by the Court dated 26   February 2001 did not set out the essence of the applicants’ complaints and cannot therefore be considered to have interrupted the running of the six-month period. Further, there was an unreasonable and unexplained delay between the letter of 26 February 2001 and the applicants’ next communication dated 30 July 2001 enclosing their application. In these circumstances, the Government submit that the date of introduction should be taken to be 30 July 2001, which is more than six months after the final domestic decision of 19 December 2000. The Government maintain that, even if the Court rejects this argument, the application of Mark Francom can only be considered to have been introduced on 30 July 2001 since his name was not mentioned in the letter of 26 February 2001 and the solicitors were apparently not instructed by him at that time. In the event that the Court does find that some or all the applicants complied with the six-month time-limit, the Government also make detailed submissions as to why they consider that that there has not been a violation of Article 6 of the Convention. The applicants do not respond to the timeliness point raised by the Government. However they submit that their case was essentially the same as the above-cited Condron case. 2. The Court’s assessment The Court recalls that the purpose of the six-month time-limit is to ensure that cases raising issues under the Convention are dealt with within a reasonable time, to protect those concerned from periods of prolonged uncertainty and to provide the possibility of establishing the facts of the case in order to ensure a fair examination of the question at issue ( Hofstadter v. Austria (dec.), no. 25407/94, 12 December 2000 and Hansen, Wass, Nielsen and Pedersen v. Denmark , no. 22507/93, Commission decision of 5 April 1995). The Court further notes that, since the six-months’ rule serves the interests of legal certainty and marks out the temporal limits of the Court’s supervision, it is not open to the Court to set aside its application ( Walker v. the United Kingdom (dec.), no. 34989/97, Reports of Judgments and Decisions 2000-I). The Court recalls that, in order to stop the six-month period running, a purported letter of introduction must set out, albeit summarily, the object of the application (for example, X. v. Ireland , no. 8299/78, Commission decision of 10 October 1980, Decisions and Reports (DR), 22, p. 51, B. v. the United Kingdom , no. 10293/83, Commission decision of 12 December 1985, DR, 45, p. 41 and Khan v. the United Kingdom , no. 23860/94. Commission decision of 29 November 1995). It is further observed that the Commission has also considered that the letter of introduction should raise the applicant’s complaint “in express terms or at least implicitly” or indicate “the nature of the complaint” and that it should give some “hint as to the Convention issues which could be raised” (respectively N. v. Federal Republic of Germany , no. 9314/81, Commission decision of   7   December   1982, DR, 31, p.200, Magee v. the United Kingdom (dec.) , no.   28135/95, 14   September 1999 and Khan v. the United Kingdom , no.   23860/94, Commission decision of 29 November 1995). The Court equally recalls that if there is a substantial lapse of time between the first letter from the applicant as described above and the submission of further information required to complete the application, the Court may find that the latter date should be regarded as the date of introduction for the purposes of the calculation of the six-month time-limit (for example, Nee v. Ireland (dec.), no. 52787/99, 30 January 2003, Gaillard v. France (dec.), no. 47337/99, 11 July 2000). The Court notes that, in the present case, the first letter received from the applicants’ representatives was dated 26 February 2001 and read, as relevant, as follows: “ MEINA AND CLAIRE LATIF We are representing the above who, once the appropriate application is prepared, wish to make an application to the European Court of Human Rights in relation to their conviction in the U.K. and the subsequent loss of their appeal followed by their refusal to allow this case to be referred to the House of Lords. We should be very grateful if you would be kind enough to forward us the appropriate application for legal aid.” The Court responded in a letter of 12 March 2001 enclosing, inter alia , an application form. No further correspondence was received from the applicants’ representatives until the completed application dated 30   July   2001 arrived at the Court accompanied by a letter in the following terms: “Please find enclosed the application on behalf of Meina Latif, and two associated Applicants Claire Latif and Mark Francom whose applications arising from the same trial and are based upon identical grounds, together with the necessary accompanying documentation.” The Court initially notes that Mark Francom’s name was mentioned for the first time in the letter of 30 July 2001 and finds that this must therefore be considered to be the date of introduction of his application. Turning to the cases of Meina and Clare Latif, the Court notes that the letter of 26 February 2001 only stated that the appliction related to their conviction and unsuccessful appeal. No suggestion was given of the nature of these applicants’ complaints or of the Convention provisions or issues in question. Furthermore, no judgments of the domestic courts or other documents were supplied from which even an indication could have been gleaned as to the object of the application. It was clear that the application related to criminal proceedings but even the fact that the complaint related to the fairness of those proceedings was only made clear in the letter of 30   July 2001. The Court also takes into account the fact that, although the Registry’s reply to the applicants’ first letter instructed them to send their application within six weeks and warned them that otherwise the Court might not accept the date of their first letter as the date of introduction, there was an unexplained delay of twenty weeks before the completed application form and necessary documents were sent to the Court on 30 July 2001. In all of the above circumstances, the Court finds that the date of introduction in respect of Meina and Clare Latif must also be considered to be 30   July   2001. The Court notes that the final domestic decision in the applicants’ case was the refusal of the Court of Appeal to certify a point of law of general public importance on 19 December 2000. The applications were therefore introduced more than six months after the final domestic decision and should be rejected pursuant to Article 35 § 1 of the Convention.       For these reasons, the Court unanimously Declares the application inadmissible.   Mark Villiger   Georg Ress Deputy Registrar   President   [Note1]   To be checked.