AS TO THE ADMISSIBILITY OF
Application No. 15123/89
by Mark Selwyn BRAITHWAITE
against the United Kingdom
The European Commission of Human Rights sitting in private
on 18 April 1991, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
H. DANELIUS
Sir Basil HALL
MM. F. MARTINEZ RUIZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
A.V. ALMEIDA RIBEIRO
M.P. PELLONPÄÄ
B. MARXER
Mr. J. RAYMOND, Deputy 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 12 June 1989
by Mark Selwyn BRAITHWAITE against the United Kingdom and registered
on 15 June 1989 under file No. 15123/89;
Having regard to
- the report provided for in Rule 47 of the Rules of
Procedure of the Commission;
- the Government's observations of 20 March 1990 and the
applicant's observations of 31 July 1990;
- the submissions made at an oral hearing on 18 April 1991;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1967 and resident
in London. He is currently serving a prison sentence in Wormwood
Scrubs. He is represented by Danny Simpson, a solicitor practising
in London. The facts as submitted by the parties may be summarised
as follows.
On the night of 6 October 1985, serious civil disorder arose
on the Broadwater Farm Estate in Tottenham, North London, involving
hundreds of members of the public and police officers. At about
22.00 hrs a number of police officers who had been assisting a fire-
fighting team were chased towards police lines by a large crowd. One
officer, P.C. Blakelock, fell and was surrounded by a number of young
men, attacking him with sticks, knives and machetes. He suffered 40
wounds of various degrees of severity and died of his injuries.
The police later arrested 6 persons in connection with the
killing of P.C. Blakelock. Five were arrested between 9 and
12 October 1985. The applicant was arrested on 4 February 1986. At
16.03 hrs, just after his arrival at Enfield Police Station, the
applicant was read a notice which set out his rights. He asked to
consult a solicitor and for his mother to be informed of his
detention. He was told that neither of these requests would be acted
upon whilst a senior officer considered whether the rights should be
delayed under the Police and Criminal Evidence Act 1984. At 14.30 hrs
it was decided that access to a solicitor was to be delayed on the
grounds that others to be arrested may be alerted and forensic
evidence may be lost or destroyed although his solicitor and mother
could both be informed of his detention. The applicant was so
informed. At 16.57 hrs, the applicant's solicitor was informed of his
arrest and of the decision to delay access. At 17.OO hrs the
applicant's sister was told of his arrest.
The applicant was interviewed on 7 occasions from 4 to 6
February in the absence of his solicitor. During those interviews,
the applicant was recorded as making incriminating statements as to
his involvement in the events of 6 October 1985. He admitted being
present during the riot on 6 October 1985 and taking a bottle of
cherryade which had been thrown out of a shop, which had been looted.
He also admitted throwing stones at the police and seeing two police
officers fall and be attacked by a crowd. He further told the police
that he had hit twice one of the policemen with a bar, on his leg and
his side. The applicant however denied hitting the policeman who had
died and said that he had hit the other policeman who had been
attacked nearby.
The applicant was tried with 5 others for the murder of P.C.
Blakelock from 14 January to 19 March 1987 and for being concerned in a
riot. During the course of the trial, the judge (Mr. Justice Hodgson)
directed the acquittal of the 3 juvenile defendants on the charge of
murder as a result of their treatment in police custody and lack of
evidence. The evidence identifying the applicant as one of those who
attacked P.C. Blakelock consisted solely of the statements recorded by
the police during the interviews.
At the trial the applicant gave evidence that he had spent the
whole evening at a friend's house and that the statements he had made
to the police were made up from information he had obtained from the
media and from other persons. He claimed that the police had sworn at
him, bullied and pressurised him. The friend, and a friend of hers,
gave evidence in support of the alibi. It was also contended on his
behalf that even if the statements made by him to the police were true
they amounted to an admission of an attack on another policeman, and
not on Constable Blakelock.
During cross-examination by the applicant's counsel, the
Detective Chief Superintendent in charge of the case stated that he
refused the applicant access to a solicitor since he considered the
solicitor might wittingly or unwittingly alert other persons still
wanted for the murder or lead to the destruction of evidence.
On 19 March 1987, the applicant was found guilty of the charge
of murder and a charge of riot. He was sentenced to life imprisonment
with a sentence of 8 years for riot.
The applicant applied for leave to appeal against conviction
on the grounds inter alia that the trial judge had not given fair or
adequate treatment in his summing-up to the applicant's defence which
was that the admissions made by the applicant amounted to no more than
having taken part in an attack on one of the other policemen on the
scene. Leave was refused by the single judge of the Court of Appeal.
He renewed his application before the full Court of Appeal, which
heard the applicant on 13 December 1988. The Court of Appeal found no
substance in the applicant's criticisms of the trial judge's direction
to the jury which it considered gave a fair and balanced account of
the evidence.
His application for leave to appeal was accordingly refused.
The Court concluded in its judgment:
"The question for us to decide is essentially: was there an
unfair imbalance in the way the judge dealt with Braithwaite?
As to that the answer is an emphatic no. It was a balanced
and fair account. He put matters as clearly as could be.
Braithwaite's defence was an exceedingly difficult one to
run, namely, 'I was not there but if, which is denied, I
was there, I did not do what is alleged against me'. It
is not surprising the jury came to the conclusion they
did. His application too is refused."
RELEVANT DOMESTIC LAW AND PRACTICE
Access to a solicitor in police custody
The detention and treatment of a person whilst in police
custody is subject to the provisions of the Police and Criminal
Evidence Act 1984 ("PACE") as supplemented by Code C of the Codes of
Practice issued by the Secretary of State under Section 66 of PACE.
These provisions came into force on 1 January 1986.
Section 58 of PACE confers a right on a person who has been
arrested and is held in custody in a police station to consult a
solicitor privately at any time if he so requests. It provides as
follows:
"(1) A person arrested and held in custody in a police
station or other premises shall be entitled, if he so
requests, to consult a solicitor privately at any time.
(2) Subject to sub-section (3) below, a request under
sub-section (1) above and the time at which it was made shall
be recorded in the custody record.
(3) Such a request need not be recorded in the custody
record of a person who makes it at a time while he is at a
court after being charged with an offence.
(4) If a person makes such a request, he must be permitted to
consult a solicitor as soon as is practicable except to the
extent that delay is permitted by this section.
(5) In any case he must be permitted to consult a solicitor
within 36 hours from the relevant time, as defined in
Section 41(2) above.
(6) Delay in compliance with a request is only permitted -
(a) in the case of a person who is in police detention
for serious arrestable offence; and
(b) if an officer of at least the rank of superintendent
authorises it.
(7) An officer may give an authorisation under the sub-section
above orally or in writing but, if he gives it orally, he
shall confirm it in writing as soon as is practicable.
(8) An officer may only authorise delay where he has
reasonable grounds for believing that the exercise of the
right conferred by sub-section (1) above at the time when the
person detained desires to exercise it -
(a) will lead to interference with or harm to evidence
connected with a serious arrestable offence or
interference with or physical injury to other
persons; or
(b) will lead to the alerting of other persons
suspected of having committed such an offence but
not arrested for it; or
(c) will hinder the recovery of any property obtained
as result of such an offence.
(9) If delay is authorised -
(a) the detained person shall be told the reason for it;
and
(b) the reason shall be noted on his custody record.
(10) The duties imposed by sub-section (9) above shall be
performed as soon as is practicable.
(11) There may be no further delay in permitting the
exercise of the right conferred by sub-section (1) above once
the reason for authorising delay ceases to subsist. ..."
Section 58 is supplemented by Code C of the Codes of Practice
issued under Section 66 of PACE.
Under Section 66 of PACE, the Secretary of State is under a
duty to issue Codes of Practice in connection with the detention,
treatment, questioning and identification of persons by police
officers. The procedure in connection with the issuing of a Code is
laid down in Section 67. In particular a draft Code has to be laid
before both Houses of Parliament and the Code cannot be brought into
force until each House has approved an Order to that effect.
Section 67(8) of PACE provides that a police officer is
liable to disciplinary proceedings for a failure to comply with any
provision of a Code (unless this is precluded under Section 104 of
PACE). A Code is admissible in evidence by virtue of sub-section (11).
Pursuant to Section 66(b) the Secretary of State issued the
Code of Practice for the detention, treatment and questioning of
persons by police officers, Code C, which applies to persons who
entered police detention after midnight on 31 December 1985.
Where a person is brought to a police station under arrest,
Section 3.1 of the Code requires the custody officer to inform him of
his right to have someone informed of his arrest, the right to consult
a solicitor and the right to consult the various Codes of Practice
issued under Section 66 of PACE. Under Section 3.2 of the Code the
person must be given a written notice setting out these three rights,
the right to a copy of the custody record in accordance with Section
2.4 of Code C and the caution in the terms prescribed by Section 10 of
the Code.
Admission and exclusion of confession evidence
Provision about the admissibility of confession evidence and
the exclusion of unfair evidence is made in Part VIII of PACE. These
provisions came into force on 1 January 1986. For these purposes, a
confession includes, "any statement wholly or partly adverse to the
person who made it, whether made to person in authority or not and
whether made in words or otherwise" (Section 82(1)(a) of PACE).
By virtue of Section 76 of PACE, a confession by an accused
person may be given in evidence against him. Where given, it is
admissible without it having to be corroborated. The section,
however, contains safeguards relating to the circumstances in which
the confesson came to be made and which may mean that the confession
must be excluded. Under sub-section (2) the trial court is required
not to allow the confession to be given in evidence if it is
represented to the court that it was or may have been obtained by
oppression or in consequence of something said or done which was likely
to render the confession unreliable unless the prosecution can prove
to the court, beyond a reasonable doubt, that the confession was not
so obtained. The court may, of its own motion, require the prosecution
to prove that a confession on which the prosecution proposes to rely
was not obtained by oppression or in circumstances likely to render it
unreliable (sub-section (3)). In R v. Fulling [1987] 2 WLR 913, which
was decided by the Court of Appeal in February 1987 during the
applicant's trial, it was held that "oppression" was to be given its
ordinary dictionary meaning and the court cited the Shorter Oxford
English Dictionary definition, "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." By virtue of sub-section (8) of Section 76, oppression
includes torture, inhuman or degrading treatment, and the use of
threat of violence (whether or not amounting to torture).
Section 78 provides as follows:
"(1) In any proceedings the court may refuse to allow
evidence on which the prosecution proposes to rely to be
given 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.
(2) Nothing in this section shall prejudice any rule of law
requiring a court to exclude evidence."
In R v. Mason [1988] 1 WLR 139, the Court of Appeal held that
Section 78 applied to all evidence which might be introduced in the
trial by the prosecution and that, accordingly, a trial judge had a
discretion whether to exclude a confession in the interests of the
fairness of the trial. The Court also held that the Section did no
more than re-state the power which judges had at common law before the
Section was passed to exclude evidence.
In R. v. Samuel [1988] 2 WLR 920 5 (decided on 17 December
1987), the Court of Appeal, which included Hodgson J, dealt with the
admissibility of confession evidence given after, the Court held, the
accused had been wrongly denied access to a solicitor. The Court held
that denial of the right conferred by Section 58 of PACE can lead to
the exclusion of evidence obtained at unlawful interviews conducted
after the denial either by the exercise of the power in the trial
judge conferred by Section 78(1) or, where the prosecutor fails to
satisfy the court that the denial did not amount to oppression, under
Section 76. In the circumstances of this case, the Court of Appeal
found that the reasons given for denial of access to a solicitor,
namely that the solicitor might inadvertently or otherwise hinder
further enquiries, were insufficient given that there was no specific
reason to suspect the solicitor or to anticipate that he would be
hoodwinked by the accused person. The Court applied Section 78 and
the conviction, which was based on confession evidence allegedly
obtained after the denial of access to a solicitor, was quashed.
COMPLAINTS
1. The applicant complains that he did not receive a fair trial
within the meaning of Article 6 para. 1 of the Convention for the
following reasons:
a. He was convicted solely upon an ambiguous, challenged,
series of statements made in the absence of his legal
representative.
b. The trial judge failed to draw the jury's attention to
the several points stressed by the defence upon which the
applicant's account differed from the agreed evidence of the
attack on P.C. Blakelock.
c. The Court of Appeal was not entitled to find that the
trial judge's direction was balanced and fair or that the
applicant's account in interview amounted to a confession to
the murder of P.C. Blakelock.
2. The applicant also complains under Article 5 of the Convention
that no court is competent to determine issues of guilt based on the
evidence available in this case.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 12 June 1989 and registered
on 15 June 1989.
On 2 October 1989, the Commission decided to communicate the
application to the Government pursuant to the Commission's Rules of
Procedure and to invite them to submit written observations on the
admissibility and merits.
The Government's observations were submitted on 20 March 1990
after one extension in the time-limit. The applicant's observations
were submitted on 31 July 1990 after two extensions in the time-limit.
On 6 April 1990, the Commission decided to grant legal aid to
the applicant.
On 4 September 1990, the applicant's solicitor requested that
the Commission obtain a copy of part of the transcript of the
applicant's trial.
On 19 September 1990, the President of the Commission
requested the respondent Government to provide a copy of the relevant
part of the transcript. The respondent Government submitted this
information on 10 October 1990.
0n 10 December 1990, the Commission decided to hold an oral
hearing on the admissiblity and merits of the case. At the hearing,
which was held on 18 April 1991, the parties were represented as
follows:
For the Government:
Mrs. A. F. Glover Agent, Foreign and Commonwealth Office
Mr. A. Moss, QC Counsel
Mr. H. Carter Adviser, Home Office
For the applicant:
Mr. D. Simpson Solicitor, Messrs. John Howell & Co.
Mr. S. Kamlish Counsel
Ms. S. Maguire Counsel
THE LAW
1. The applicant alleges a violation of Article 6 para. 1
(Art. 6-1) of the Convention on the ground that:
a. He was convicted solely upon an ambiguous, challenged,
series of statements made in the absence of his legal
representative.
b. The trial judge failed to draw the jury's attention to
the several points stressed by the defence upon which the
applicant's account differed from the agreed evidence of the
attack on P.C. Blakelock.
c. The Court of Appeal was not entitled to find that the
trial judge's direction was balanced and fair or that the
applicant's account in interview amounted to a confession to
the murder of P.C. Blakelock.
The applicant also complains under Article 5 (Art. 5) of the
Convention that no court can determine issues of guilt based on the
evidence available in this case.
2. The Commission considers that Article 5 (Art. 5) has no
relevance to the applicant's complaints and has examined the case
solely under Article 6 para. 1 (Art. 6-1) of the Convention which
provides as follows:
"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 contends that he did not receive a fair hearing
in the determination of the criminal charges against him in that the
statements made by him to the police on 4, 5 and 6 February 1986
should not have been admitted in evidence.
The Government submit that the applicant has failed to comply
with the requirement as to the exhaustion of domestic remedies in this
respect, or, in the alternative, that the application is manifestly
ill-founded. They point out that the applicant's representatives did
not challenge the admissibility in evidence of the applicant's
statements to the police, either at the outset of the trial or in its
course. Furthermore the applicant did not seek leave to appeal in
respect of the admission of that evidence at the trial.
The applicant concedes that that was so but contends that both
Courts should have made a decision on the point ex officio and
without it having been drawn to their attention.
However, the Commission is not required to decide whether this
allegation discloses any appearance of a violation of this provision
as, under Article 26 (Art. 26) of the Convention, it may only deal
with a matter after all domestic remedies have been exhausted,
according to the generally recognised rules of international law.
In the present case the applicant's lawyers failed to
challenge the admissiblity of the confession evidence at the outset of
the trial (by requesting a 'voire dire'), after the evidence had been
submitted, in his grounds of appeal or in argument before the Court of
Appeal. The effect of this is that the domestic courts were deprived
of the opportunity of considering the issues raised by the use of the
contested evidence. The applicant has therefore, not exhausted the
remedies available to him under United Kingdom law. Moreover, an
examination of the case does not disclose the existence of any special
circumstances which might have absolved the applicant, according to
the generally recognised rules of international law, from exhausting
the domestic remedies at his disposal. As to the submission that the
court should have excluded the evidence of its own motion, the
Commission recalls that, even where domestic courts are under a duty
to consider matters of their own motion, applicants are not relieved
of the requirements of Article 26 (Art. 26) of the Convention (cf.
No. 11244/84, Dec. 2.3.87, to be published in D.R. 55). In any event,
although Section 76 (2) of PACE provides that a trial court is
required not to allow a confession to be given in evidence if it is
represented to the court that it was or may have been obtained by
oppression or in consequence of something said or done which was
likely to render the confession unreliable, the applicant's lawyers do
not appear to have made any representation to the trial court that
oppression was involved in the course of the interviews. Section
76(3) specifically allows a court not to allow a confession to be
given in evidence except in so far as the prosecution proves beyond
reasonable doubt that it was not obtained by oppression. It has not,
however, been substantiated that there was any material before the
Court which would lead a court to apply that provision. No argument
was made in the applicant's grounds of appeal to the Court of Appeal
that oppression was involved such that the Central Criminal Court
should have excluded the evidence of its own motion.
It follows that the applicant has not complied with the
condition as to the exhaustion of domestic remedies in this respect
and this part of the application must therefore be rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.
3. As to the remainder of the application, 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 established case-law (see e.g. No. 458/59, Dec.
29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection
43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).
The Commission has examined these complaints as submitted by
the applicant and finds no indication of unfairness within the meaning
of 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).
For these reasons, the Commission by a majority
DECLARES THIS APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
Full & Egal Universal Law Academy