AS TO THE ADMISSIBILITY OF
Application No. 14067/88
by D. S.
against the United Kingdom
The European Commission of Human Rights sitting in private
on 6 July 1989, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
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
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, 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 21 June 1988
by D. S. against the United Kingdom and registered on 29 July 1988
under file No. 14067/88;
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, D. S., is a citizen of the United Kingdom born
in 1959. He is at present detained at HM Prison, Shotts, Lanarkshire.
The facts submitted may be summarised as follows.
The applicant was tried, on charges of murder and assault by
punching following a stabbing incident, before the High Court at
Dunfermline on 7 August 1986. The applicant had gone to his
girl-friend's parents' house with a knife after she had indicated her
intention of leaving him. The door of the house was opened by his
girl-friend's father and a fight ensued during which the father
received at least three severe wounds from the knife held by the
applicant, one of which penetrated a lung and was fatal.
The principal evidence against the accused was given by his
girl-friend who stated that she saw the accused dragging the deceased
by the hair outside the house. She indicated that when she went
outside she saw her father staggering towards the window and the
accused running at him with a knife. She further stated that she saw
her father holding the accused's wrist with the knife in it. Other
evidence against the accused related to the nature and position of the
stab wounds. The applicant stated in his defence that he was attacked
by his girl-friend's father and that the knife fell out of his pocket.
He picked it up and in his attempting to fend him off he, without any
intention to do so, stabbed him. In his evidence to the court,
the applicant stated inter alia that the stabbing was an accident.
The trial judge did not consider that self-defence was open to
the applicant in these circumstances since it required a deliberate
act by the victim of an attack for his own protection. He did,
however, allow the plea of self-defence in relation to the charge of
assault by punching, since the applicant had indicated in his evidence
that he punched his girl-friend's father in order to protect himself
from the attack. The jury found the applicant guilty of both charges
by a majority verdict and he was sentenced to life imprisonment.
On an appeal to the High Court of Justiciary, the court
considered that the trial judge had misdirected the jury and ought to
have allowed the plea of self-defence to be considered. The Court
considered that the applicant's evidence had been ambiguous as to
whether the stabbing was accidental or whether he was defending
himself.
However, the Court found that in the circumstances of the case
this could not have made any difference to the outcome and in any
event there was no miscarriage of justice because:
(a) the trial judge in his direction reminded the jury of the
applicant's evidence and his version of the events and informed them
that if they believed such version or if they had any reasonable
doubts as to its correctness, it was their duty to acquit him;
(b) the jury having rejected the question of self-defence in relation
to the punching of the victim by the applicant and the quarrel which
ended in the fatal stabbing of the victim by the applicant would not
reasonably have accepted that such stabbing occurred in the course of
self-defence.
COMPLAINTS
The applicant considers that he was not given a fair hearing
as a result of the misdirection by the trial judge and that the appeal
court ought to have ordered a re-trial. He invokes Article 6 of the
Convention.
THE LAW
The applicant has complained under Article 6 (Art. 6) of the
Convention that he did not receive a fair trial. In particular he
complains that the trial judge was found to have misdirected the jury
and that the High Court of Justiciary did not order a re-trial.
Article 6 para. 1 (Art. 6-1) first sentence of the Convention
provides:
1. 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.
With regard to the judicial decisions of which the applicant
complains, 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).
In the present case there is no indication from the documents
submitted by the applicant that the proceedings were unfair. In
particular the Commission notes that the High Court of Justiciary upheld
the applicant's claim that the trial judge had misdirected the jury
but found that in the circumstances of the case this could not have
made any difference to the outcome since the applicant's version of
the facts which constituted the basis of the applicant's defence was
placed before the jury who were instructed to acquit the applicant if
they believed such version or had a reasonable doubt as to its
correctness. In addition, the jury rejected the plea of self-defence
in respect of the charge of assault by punching.
In these circumstances the Commission does not consider that
the rights of the defence were prejudiced by the observation of the
trial judge. It follows that the application must be rejected as
being manifestly ill-founded.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission Acting President of the Commission
(H. C. KRÜGER) (J. A. FROWEIN)
Full & Egal Universal Law Academy