AS TO THE ADMISSIBILITY
Application No. 12323/86
by Thomas Campbell
against the United Kingdom
The European Commission of Human Rights sitting in private on
6 March 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
G. TENEKIDES
S. TRECHSEL
B. KIERNAN
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 (Art. 25) of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 5 July 1985
by Thomas CAMPBELL against the United Kingdom and registered
on 8 August 1986 under file No. 12323/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1952 and resident
in Glasgow. He is currently serving a life sentence. He is
represented before the Commission by John Carroll, a solicitor. The
facts as submitted by the applicant may be summarised as follows.
On 16 April 1984, a fire occurred in a house in Glasgow in
which six persons died. This was an incident in a spate of violence
and vandalism occurring between rivals in the ice-cream trade.
The applicant, who had relations in the ice-cream trade and a
record of violent offences was arrested and appeared in Court on
16 May 1984 charged with conspiracy. On 22 May, the applicant was
brought back to Court and served with a fresh petition charging murder
in respect of the fire on 16 April 1984. During the judicial
examination of the applicant, the Procurator Fiscal Depute conducting
the case, questioned him on the basis that the applicant was present
at the house and was involved in starting the fire. The applicant in
reply specified in detail an alibi for that time.
The applicant was subsequently indicted to the High Court in
Glasgow on charges of conspiracy to commit robbery, wilful
fire-raising, murder, assault and instigation of others to commit
assault and murder. The applicant was found guilty of assault and
murder on 10 October 1984 and was sentenced to ten years imprisonment
and life imprisonment, with a recommendation that he serve not less
than twenty years.
The applicant applied for legal aid to appeal his conviction:
he had already been legally-aided during the trial. It appears
however the applicant's solicitor and counsel indicated that they
would not be prepared to argue his appeal as he wished. The
applicant therefore prepared and lodged his own grounds of appeal and
with the aid of a solicitor, prepared his submissions on appeal,
copies of which were provided for the Appeal Court judges. The
applicant applied under S 274 of the Criminal Procedure (Scotland)
1975 Act to have the shorthand notes of the trial but this request was
refused both by the Clerk of the Justiciary and the Secretary of
State.
The applicant presented his appeal on 16 June 1985 and was
considerably hampered by being kept in manacles throughout the
proceedings. The applicant requested the Lord Justice Clerk to have
the manacles removed so that he could reach and refer to his papers
but this request was denied and the applicant was kept manacled to at
least one prison officer while before the Court. The prosecution was
represented by a senior Advocate Depute, a Q.C., who was assisted by
junior counsel and members of the Procurator Fiscal service. The
Appeal Court dismissed the appeal and refused his application to
receive "new evidence".
On 18 November 1985, the applicant petitioned the Secretary of
State under S 263 of the Criminal Procedure (Scotland) Act 1975 to
remit the matter back to the Appeal Court. This petition was refused
by letter dated 19 March 1986.
Following his appeal, the applicant was transferred to
Peterhead Prison over 200 miles from his family. As a direct
consequence of his desire to work on his petition and of his
complaints to the European Commission on Human Rights, the applicant
was placed in solitary confinement, where he has remained ever since
while in prison.
On 2 November 1985, an incident occurred in the solitary
confinement block and a number of prisoners were investigated as to
their alleged involvement. On 3 November, the applicant was visited
in his cell by a number of prison officers. An incident then occurred
and the applicant was removed to hospital, where he underwent a
life-saving operation and a rupture to the small bowel was repaired.
On 10 November 1985, the applicant's solicitor arrived at the
hospital to discuss with the applicant the circumstances which led to
his admission to hospital. He had previously been told by the Prison
Division that the applicant was in hospital for an appendix operation.
The visit had been arranged by the solicitor with the sanction of the
prison and hospital staff, and the police who were helping in
supervision. On arrival at the hospital however, the solicitor was
told that he had to submit his person and luggage (consisting of the
applicant's files and a camera) to a search and that police and prison
officers would have to be present at the interview. The solicitor
phoned the Assistant Governor of the prison and explained that the
meeting concerned possible Court proceedings but was told that the
police were in charge. The solicitor therefore was obliged to submit
to the search and to conduct the interview in the presence of police
and prison officers, one of whom had been present during the incident
of which the applicant was complaining.
Following the meeting, the applicant and his solicitor made a
formal complaint of assault by the prison officers. The applicant was
later charged with crimes of rioting and assault in respect of the
incident on 2 November 1985. The applicant was indicted and brought
to trial in May 1986 but the Crown withdrew the case since there
appeared to be no evidence against him. The applicant wished to bring
proceedings against those who made the false allegations but is unable
to receive legal aid for such proceedings. He is also unable to gain
access to the information on which the charges against him were based.
The applicant has however been granted legal aid in order to
pursue an action for damages for assault against the Secretary of
State for Scotland and it appears that a summons has now been issued
instituting proceedings.
COMPLAINTS
The applicant makes the following complaints:
1. The applicant complains that he was not informed adequately of
the nature and cause of the charges against him. The indictment
accused him of setting fire to a house on 16 April 1984 in company
with others and the applicant prepared his defence on the basis of his
alibi. During the trial however, the applicant alleges that
since the Crown had no evidence proving that he was at the scene of
the crime, they changed the nature of the allegations from that of
primary participant ("actor") to that of accessory or accomplice ("art
and part"). Under Scottish criminal law, there is no requirement to
distinguish between these degrees of participation, all who
participate being equally guilty. The applicant contends that he was
not given fair notice of this change in the nature of his alleged
crimes and was therefore misled as to the nature of the charge against
him. This also prevented him from having adequate time and facilities
to prepare his defence.
The applicant invokes Article 6 para. 3 (a) and (b) (Art. 6-3-a,
Art. 6-3-b) of the Convention in this regard.
2. The applicant complains that he was refused a copy of the
transcript of his trial which was necessary to prepare his appeal
properly. He invokes Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.
3. The applicant alleges that he did not receive a fair trial
since:
i. the prosecution failed during the trial to disclose or
explain fully the discrepancies upon which the change in the nature of
the charge was based, and also withheld and concealed evidence vital
to the defence;
ii. the judge in directing the jury impressed his own views
of the evidence on the jury, stating, contrary to the applicant's
assertions, that there was sufficient evidence to convict, failing to
direct the jury that if they did not believe a witness's denial of a
part of evidence they were not entitled to infer that the opposite was
true and leaning strongly in favour of the evidence of a vital
prosecution witness, called Love;
iii. the Appeal Court did not in their judgment deal
effectively with the points of his appeal;
iv. it has appeared in the context of the trial for perjury
of one of the witnesses in the applicant's trial that a witness was
given a promise of immunity from prosecution in order to obtain a
statement from him and that the police directed this witness to
persuade another witness to change her statement to accord with his
own. This information casts grave doubts on the whole of the
prosecution case.
The applicant invokes Article 6 para. 1 (Art. 6-1) of the Convention.
4. The applicant also complains that he was denied the right to
examine or have examined witnesses against him or to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him, since the Crown failed to
disclose information relevant to his defence. The applicant invokes
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.
5. The applicant also alleges that he was denied natural justice
in his trial and appeal and consequently that he was not proved guilty
according to law. He invokes Article 6 para. 2 (Art. 6-2) of the Convention.
6. The applicant complains that as regards the charges against
him, such acts or omissions of the applicant did not constitute a
criminal offence according to Scottish law at the time they were
committed. He invokes in this respect Article 5 and Article 7 (Art. 5,
Art. 7) of the Convention.
7. The applicant contends that he suffered inhuman and degrading
treatment through being manacled throughout his appeal hearing. He
invokes Article 3 (Art. 3) of the Convention.
8. The applicant complains that the conditions imposed on his
solicitor on his visit to the applicant while in hospital (in
particular the presence of police and prison officers, one of whom
took part in the incident in which the applicant received his injury)
attempted to intimidate him and in effect impeded the exercise of his
right of access to Court. The presence of the police and and prison
officers throughout the interview also interfered with his right to
receive and impart information. The applicant invokes in this respect
Articles 6 para. 1 and 10 (Art. 6-1, Art. 10) of the Convention.
9. The applicant also complains that due to lack of access to
information concerning the charges of riot and assault brought against
him and due to lack of financial means, he is unable to bring a civil
action in respect of the false allegations which were subject of the
prosecution. He invokes Article 6 para. 1 (Art. 6-1) of the Convention.
THE LAW
1. The applicant complains of the restrictions imposed on the
visit of his solicitor to him while he was in hospital. He complains
in particular that his solicitor was subjected to a search and that
police and prison officers remained present during the interview. He
invokes Article 6 para. 1 and Article 10 (Art. 6-1, Art. 10) of the Convention.
The Commission considers that these complaints raise issues
similar to those dealt with in CAMPBELL and FELL v. the United Kingdom
(Eur. Court H.R., Campbell and Fell judgment of 28 June 1984, Series A
No. 80) and in BYRNE, McFADDEN and others v. the United Kingdom
(Application Nos. 7879/77, 7931/77, 7935/77 and 7936/77, Comm. Rep.
3.12.85). The Commission therefore decides to invite the parties to
submit observations on these issues pursuant to Rule 42 para. 2 (b) of
the Commission's Rules of Procedures and accordingly to adjourn this
part of the application.
2. The applicant complains of degrading treatment in that he was
kept manacled throughout his appeal hearing.
Article 3 (Art. 3) of the Convention provides that:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission however refers to its previous case-law in this
respect (see e.g. Application No. 2291/64, Dec. of 1.6.67) where it
has been held that while the handcuffing, in public, of a prisoner may
be undesirable, it is clearly not so serious a measure as to amount to
inhuman or degrading treatment within the meaning of Article 3 (Art. 3) of the
Convention.
The Commission also recalls that the applicant was
representing himself before the Court and that he made a request to
the Court have the manacles removed so that he could reach and refer
to his papers. This request was refused and the applicant remained
manacled to at least one prison officer, which he states considerably
hampered him in the presentation of his appeal. In these
circumstances, the Commission considers that an issue under Article 6
para. 1 (Art. 6-1) of the Convention may arise. The Commission therefore decides
to invite the parties to submit observations on this issue pursuant to
Rule 42 para. 2 (b) of the Commission's Rules of Procedure and
accordingly adjourns this part of the application.
3. The applicant also makes complaints about the fairness of his
trial. He complains in particular that the prosecution withheld and
concealed evidence, that one of the prosecution witnesses had been
given a promise of immunity in order to secure evidence from him, that
the judge misdirected the jury and that the appeal court refused to
hear new evidence.
Article 6 para. 1 (Art. 6-1) of the Convention provides that:
"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 Commission recalls however that as regards the witness who
was promised immunity, it appears from the judge's summing-up that the
judge directed the jury that this witness could not be regarded as
having given any incriminating evidence against the applicant. The
Commission also recalls that the applicant was able to raise the
alleged misdirections of the trial judge in his appeal. Insofar as
the applicant complains of the decision of the appeal court, 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
jurisprudence (see e.g. decisions on the admissibility of applications
No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236 and No. 5258/71,
Dec. 8.2.73, Collections 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79,
D.R. 18 pp. 31, 45).
Insofar as the applicant alleges that the prosecution
concealed and withheld evidence, this complaint has not been
substantiated. In light of the above reasoning, the Commission
concludes therefore that these complaints disclose no appearance of a
violation of Article 6 (Art. 6) 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.
4. The applicant also complains that he was not informed
adequately of the nature of the murder charge against him. He
contends that during his trial the Crown changed its case against him
from one of principal to accessory ("art and part"). He also
complains that this prevented him adequately from preparing his
defence.
Article 6 para. 3 (a) and (b) (Art. 6-3-a, Art. 6-3-b) of the
Convention provide:
"Everyone charged with a criminal offence has the following
minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
(b) to have adequate time and facilities for the preparation
of his defence;..."
The Commission notes however that under Scottish criminal law
an indictment is not required to specify whether the person charged is
guilty as principal or accessory. While the applicant therefore may
not have realised that the indictment for murder he could also be
found guilty of being an accomplice instead of a principal, he was
certainly aware that he was accused of involvement in the unlawful
killing of the occupants of the house which was burnt down. He was
also represented by solicitor and counsel who would have been fully
aware of the position.
The Commission concludes therefore that these complaints
disclose no appearance of a violation of Article 6 para. 3 (a) and (b)
(Art. 6-3-a, Art. 6-3-b) 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.
5. The applicant also complains that he was unable adequately to
prepare for his appeal contrary to Article 6 para. 3 (b) (Art. 6-3-b) of the
Convention since he was refused a copy of the transcript of his trial.
It appears however that the only issue arising in the appeal
concerning the transcript was whether the evidence of one of the
witnesses had been contradicted by other evidence not produced at the
trial. The appeal court however held that the alleged contradictory
evidence had been available at the time of trial and therefore could
not now be introduced during the appeal.
In these circumstances, the Commission finds that this
complaint discloses no appearance of a violation of Article 6 para. 3
(b) (Art. 6-3-b) 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.
6. The applicant complains that he was denied the right to have
examined witnesses against him or on his behalf as a result of the
prosecution failing to disclose information relevant to his defence
contrary to Article 6 para. 3 (d) (Art. 6-3-d) of the Convention.
The Commission finds however that the applicant has failed to
substantiate this complaint and that accordingly this part of the
application discloses no appearance of a violation of the Convention.
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
7. The applicant also complains of violations of Article 6
para. 2, Article 5 and Article 7 (Art. 6-2, Art. 5, Art. 7) of the Convention.
The Commission finds no evidence however to support the
applicant's allegation that he has not been lawfully convicted and
sentenced by a competent court, or that the presumption of innocence
has not been respected during the applicant's trial. The applicant
has also failed to substantiate his claim that he was found guilty of
acts or omissions which did not constitute a criminal offence under
Scottish law at the time they were committed. The Commission
therefore finds no appearance of a violation of Articles 5, 6 para. 2
or 7 (Art. 5, Art. 6-2, Art. 7) of the Convention.
It follows that this complaint must be dismissed as manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
8. The applicant complains also that he is unable to gain legal
aid in order to sue for defamation those persons who furnished
information which resulted in a prosecution for riot and assault
being brought against him.
Article 6 para. 1 (Art. 6-1) provides inter alia that:
"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 Commission recalls that according to the constant case-law
of the Commission and the Court Article 6 para. 1 (Art. 6-1) guarantees to
litigants an effective right of access to the courts for the
determination of their civil rights and obligations (see e.g. Eur.
Court H.R., Airey judgment of 9 October 1979, Series A No. 32).
The Commission notes however that the applicant cannot
identify the alleged informants or indeed establish that anything
defamatory has in fact been said. In these circumstances, even
assuming Article 6 (Art. 6) applies, the refusal of legal aid for an action in
defamation does not constitute a violation of Article 6 (Art. 6) of the
Convention, the applicant having failed to substantiate that he has a right of
action against anyone.
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
9. Finally, the Commission notes the applicant's statement that
he has been placed in solitary confinement as a consequence of his
desire to work on his petition and of his complaints to the European
Commission of Human Rights. In this respect the Commission decides to
request the Government's explanations in the context of Article 25
para. 1 (Art. 25-1) in fine of the Convention which provides that those High
Contracting Parties who have made a declaration recognising the
Commission's competence to receive individual petitions undertake not
to hinder in any way the effective exercise of this right.
For these reasons, the Commission
DECLARES INADMISSIBLE the various complaints made by the
applicant under Articles 5, 6 paras. 1, 2 and 3 (a), (b) and
(d), 7 and 10 (Art. 5, Art. 6-1, Art. 6-2, Art. 6-3-a, Art. 6-3-b,
Art. 6-3-d, Art. 7, Art. 10 of the Convention (as set out
under points 3 to 8 of The Law)
DECIDES TO ADJOURN the remainder of the application.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)