CARTLEDGE v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 30551/96

                      by Gordon CARTLEDGE

                      against the United Kingdom

     The European Commission of Human Rights (First Chamber) sitting

in private on 9 April 1997, the following members being present:

           Mrs.  J. LIDDY, President

           MM.   M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 B. MARXER

                 B. CONFORTI

                 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 17 January 1996

by Gordon CARTLEDGE against the United Kingdom and registered on

22 March 1996 under file No. 30551/96;

     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, born in 1944, living in

Widnes.  Before the Commission, he is represented by Messrs. Byrne

Frodsham and Co, solicitors in Widnes.

     The facts of the case, as submitted by the applicant, may be

summarised as follows.

     On 20 August 1988 the applicant was stopped by the police and

arrested for drinking and driving.  At the police station, under

alleged threat of prosecution for failure to provide a specimen, he

allowed a police doctor to take a blood sample.  The blood sample was

found to have a blood alcohol concentration of 0,89%.

     On 13 December 1989 the Dolgellau Magistrates Court convicted the

applicant, after his plea of guilty, of driving a motor vehicle with

excess alcohol in his blood contrary to the Road Traffic Act 1972. He

was not represented.

     On 20 October 1994 the applicant applied to the High Court for

judicial review of the conviction, claiming that the police had not

used the correct procedure in his case and that he could never have

been convicted if the correct procedure for taking blood had been

followed.

     On 31 July 1995 the High Court dismissed the application on the

grounds that in the absence of fraud it had no jurisdiction to quash

a conviction following an unequivocal plea of guilty.  The Court found

inter alia:

     "[the Road Traffic Act 1972 provides for] the circumstances

     in which a specimen of blood can be taken from the suspect

     for analysis of the alcohol content.  In certain

     circumstances a specimen of blood ... can be required of

     the suspect.  These circumstances are where it is

     impossible or inappropriate to rely on the breath test,

     first that the constable making the requirement has

     reasonable grounds to believe that for medical reasons a

     specimen of breath cannot or should not be provided; or

     secondly that there is no reliable breathalyser available

     at the police station, or thirdly that the constable has

     been advised by a medical practitioner that the condition

     of the suspect might be due to some drug ... We refer to

     this as the obligatory specimen.

     In certain circumstances the driver may have the option of

     providing a specimen of blood ... in preference to the

     lower of the two breath test readings. ... We refer to this

     as the driver's option specimen.

     In an effort to ensure that constables administering the

     procedure laid down by the Statute should follow it

     correctly, police forces throughout the country introduced

     standard forms setting out the questions to be asked of the

     suspect and the information to be given.  Until the

     decision of the House of Lords in DPP v. Warren [1993] AC

     319, it was widely thought that these forms correctly

     embodied the statutory procedure.

     ...

     In ... the obligatory specimen, there are five matters of

     which the driver must be informed:

     (i)   the reason why under section 7(3) of the 1988 Act

           breath specimens cannot be taken or used;

     (ii)  in these circumstances he is required to give a

           specimen of blood or urine;

     (iii)it is for the officer to decide which such specimen

           will be given;

     (iv)  warned that a failure to provide the specimen may

           render him liable to prosecution;

     (v)   if the constable decides to require blood, ask him if

           there are any reasons why a specimen cannot or should

           not be taken from him by a doctor. ...

     In the driver's option case, the information is necessarily

     somewhat different ...

     In [the applicant's] case there is a difficulty.  Because

     the records no longer exist, it is not known whether it was

     an obligatory specimen case or a driver's option case.

     Moreover, the proforma used at the material time by the

     North Wales Police can no longer be found.  The best that

     can be done is to produce the proforma in use in October

     1989.  But on the assumption, which it seems reasonable to

     make, that the form was substantially similar to that used

     in the case of [the applicant] and nothing more was said by

     the constable than appears on the form, it is accepted by

     the prosecution that if it was an obligatory case, then the

     information in paragraphs (i) and (v) was not given, and if

     it was a driver's option case, the information did not

     include that set out in paragraphs (i) and (iv) of the

     Warren procedure. ...

     Although as a general rule evidence, if relevant, is

     admissible even if it has been obtained contrary to the

     correct procedure, subject to the Court's power to disallow

     it under section 78 of the Police and Criminal Evidence Act

     1984, it is now well established that if the correct

     procedure laid down by the Road Traffic Acts in this class

     of case is not followed, the evidence is inadmissible.

     The questions therefore that arise are: 1. Does this Court

     have jurisdiction to quash a conviction entered following

     an unequivocal plea of guilty where the conduct of the

     prosecution cannot fairly be categorised as analogous to

     fraud?  2. If the answer to question 1 is no, can the

     conduct of the prosecution ... fairly be categorised as

     analogous to fraud?  3. If the answer to question 1 is no,

     but the answer to question 2 is yes, should the Court

     exercise its discretion to quash [the conviction]?

     ... we would answer the first question ... in the negative.

     That leads us to consider the second question, namely

     whether the conduct of the prosecution in either case can

     properly be described as analogous to fraud.  ... there was

     no falsifying or suppression of evidence that might have

     secured an acquittal.  On the contrary, there is no

     suggestion that the crucial evidence of the analysis of the

     blood [sample] upon which guilt or innocence depended was

     in any way open to doubt.  [The] applicant no doubt pleaded

     guilty on the basis of these analyses and on recognition

     that [he] had consumed alcohol to such an extent that such

     a reading was likely.  There was a procedural error in the

     obtaining of such evidence.  In the [applicant's case] we

     do not think the prosecutor can possibly be criticised for

     failing to foresee that the House of Lords in Warren would

     declare the law to be different from what it was generally

     thought to be. ... We do not think that the conduct of the

     prosecution [in this case] is analogous to fraud.

     Moreover, in our view, there is no injustice to the

     [applicant]. ...

     Even if we are wrong on this, we do not consider that this

     is a case where discretion should be exercised so as to

     quash the [conviction]."

     On 20 September 1995 the applicant introduced a petition for

leave to appeal to the House of Lords.  His principal claims were that

(1) the prosecution had no admissible evidence on which they could

obtain a conviction and that no such evidence had ever come into

existence at any time and that (2) it was unjust that a person could

not obtain a court order to have a conviction for an offence quashed

where he pleaded guilty to that offence in ignorance of the fact that

he could never, as a matter of law, have been convicted of that

offence.

     On 11 December 1995 the House of Lords refused leave to appeal.

COMPLAINTS

1.   The applicant complains that the only evidence proving his guilt

- the blood analysis - was obtained illegally and under English law was

therefore ipso facto inadmissible in evidence.  He claims that the

Dolgellau Magistrates Court should have realised this from the facts

told to them by the prosecution.  He invokes Article 6 paras. 1 and 2

of the Convention.

2.   He also complains under Article 13 of the Convention that, under

English law, he had no remedy for breach of Article 6 para. 2 of the

Convention.

THE LAW

1.   The applicant complains under Article 6 paras. 1 and 2

(Art. 6-1, 6-2) of the Convention of the criminal proceedings in which

he was involved.  These provisions state, insofar as relevant:

     "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. ...

     2.    Everyone charged with a criminal offence shall be

     presumed innocent until proved guilty according to law."

     The Commission first recalls that the rules governing the

admissibility of evidence are in the first place a matter for domestic

courts.  The Commission's task, under the Convention, is to ascertain

whether the proceedings, considered as a whole, including the way in

which evidence was taken, were fair (cf. Eur. Court HR, the Edwards v.

the United Kingdom judgment of 16 December 1992, Series A no. 247-B,

pp. 34-35, para. 4 and the Saïdi v. France judgment of 20 September

1993, Series A no. 261-C, p. 56, para. 43).

     In the present case, it is in the Commission's opinion clear that

the only evidence in the criminal proceedings was the sample of the

applicant's blood.  However, the Commission notes the finding of the

High Court that there was no falsifying or suppression of evidence that

might have secured an acquittal and that, on the contrary, there was

no suggestion that the crucial evidence of the analysis of the blood

sample on which guilt or innocence depended was in any way open to

doubt.  The High Court further observed that the applicant no doubt

pleaded guilty on the basis of these analysis and in recognition that

he had consumed alcohol to such an extent that such a reading was

likely.  Moreover, the applicant did not object at the Magistrates

Court that the specimen of blood has been obtained contrary to the

correct procedure.

     The applicant further appears to complain that the obtaining of

a blood sample under compulsion itself involved a violation of the

right not to incriminate oneself in breach of Article 6 (Art. 6) of the

Convention.

     The Commission recalls that, although not specifically mentioned

in Article 6 (Art. 6) of the Convention, the right to silence and the

right not to incriminate oneself, are generally recognised

international standards which lie at the heart of the notion of a fair

procedure under this Article.  Their rationale lies, inter alia, in the

protection of the accused against improper compulsion by the

authorities thereby contributing to the avoidance of miscarriages of

justice and to the fulfilment of the aims of Article 6 (Art. 6) of the

Convention (cf. Eur. Court HR, the John Murray v. the United Kingdom

judgment of 8 February 1996, Reports of Judgments and Decisions for

1996). The right not to incriminate oneself, in particular, presupposes

that the prosecution in a criminal case seek to prove their case

against the accused without resort to evidence obtained through methods

of coercion or oppression in defiance of the will of the accused

(cf. Eur. Court HR, the Saunders v. the United Kingdom judgment of

17 December 1996, Reports of Judgments and Decisions for 1996).  In

this sense the right is closely linked to the presumption of innocence

contained in Article 6 para. 2 (Art. 6-2) of the Convention invoked

also by the applicant.

     However, the right not to incriminate oneself is primarily

concerned with respecting the will of an accused person to remain

silent.  As the European Court considered in the Saunders judgment,

this right does not extend to the use in criminal proceedings of

material which may be obtained from the accused through the use of

compulsory powers but which has an existence independent of the will

of the suspect such as, inter alia, documents acquired pursuant to a

warrant, breath, blood and urine samples and bodily tissue for the

purpose of DNA testing (cf. the above-mentioned Saunders v. the United

Kingdom judgment, para. 69).

     As a result, in the light of the above considerations, the

Commission does not find that the fact that the sample of blood was

compulsorily obtained and admitted as evidence against the applicant

could lead to the conclusion that the applicant was deprived of a fair

trial within the meaning 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.

2.   The applicant also complains under Article 13 (Art. 13) of the

Convention that, under English law, he had no remedy for breach of

Article 6 para. 2 (Art. 6-2) of the Convention.

     Article 13 (Art. 13) of the Convention reads as follows:

     "Everyone whose rights and freedoms as set forth in this

     Convention are violated shall have an effective remedy

     before a national authority notwithstanding that the

     violation has been committed by a person acting in a

     official capacity."

     The Commission recalls however that Article 13 (Art. 13) of the

Convention does not require a remedy under domestic law in respect of

any alleged violation of the Convention.  It only applies if the

individual can be said to have an "arguable claim" of a violation of

the Convention (cf. Eur. Court HR, the Boyle and Rice v. the United

Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).

     The Commission finds that the applicant cannot be said, in light

of its findings above, to have an "arguable claim" of a violation of

his Convention rights.

     It follows that this part of the application must also be

dismissed as 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.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                         of the First Chamber

 

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