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
Full & Egal Universal Law Academy