AS TO THE ADMISSIBILITY OF
Application No. 22299/93
by D.G.
against the United Kingdom
The European Commission of Human Rights (First Chamber)
sitting in private on 19 October 1993, the following members being
present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
B. MARXER
B. CONFORTI
N. BRATZA
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 7 July 1993 by
D.G. against the United Kingdom and registered on 21 July 1993 under
file No. 22299/93;
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 United Kingdom citizen born in 1966. He is
at present detained at H.M. Prison, Leyland, Lancashire. He is
represented before the Commission by E. Abrahamson, a solicitor
practising in Liverpool.
The facts of the case, as submitted by the applicant's
representative, may be summarised as follows.
On 28 November 1991 in the Crown Court at Manchester the
applicant, who is black, was convicted by a majority of 10 to 2 of
robbery and sentenced to 6 years' imprisonment. The jury retired at
10:56 am and returned at 12:47 pm when a handwritten note was handed
to the trial judge. It read:
"JURY SHOWING RACIAL OVERTONES 1 MEMBER TO BE EXCUSED".
The trial judge told the jury, inter alia:
"Everybody has preconceived ideas and thoughts. You are
brought here from twelve different backgrounds and expected to
apply your twelve different minds to the problems that are put
before you. ... Any thoughts or prejudice of one form or
another, for or against anybody, must be put out of your mind.
... I am certainly not going to discharge any member of the
jury because he or she may wish to do so because they dislike
certain overtones in the conversation. Decide this case
according to the evidence."
At 2:20 pm the jury were called back by the trial judge for a
majority direction. At 3:20 pm they were called back again but had
still not agreed upon either a unanimous or majority verdict. The
trial judge told them:
"Your task is to pool that experience and wisdom. You must do
that by giving your views and listening to the views of other
people. Of necessity there will be discussion. There has got
to be argument and there has got to be give and take within
the scope of the oath that each of you have taken. That is
the way you achieve agreement."
At 4:06 pm the jury returned and delivered a 10-2 majority
verdict finding the applicant guilty.
On 12 December 1991 the applicant applied to the Court of
Appeal (Criminal Division) for leave to appeal against conviction.
The application was refused on 28 February 1992, the single judge
observing to the applicant:
"The learned judge dealt with the novel and delicate situation
presented by the jury note with tact and sensitivity. It
would have been entirely inappropriate for him to have
conducted some sort of enquiry. There was no material
irregularity at your trial."
On 20 May 1992 the applicant renewed his application to the
Court of Appeal (Criminal Division) for leave to appeal against
conviction. The renewed application was refused by the Full Court
on 19 January 1993. It observed inter alia:
"Matters of this kind raise delicate issues. The jury system
does require an element of give and take after proper
directions from the judge. In our judgment His Honour Judge
Hammond dealt with this matter sensitively, sensibly and
correctly, and cannot be faulted for a conclusion that the
jury should continue the deliberations which they had given
their oath to undertake. We, therefore, find no ground for
complaint and we dismiss this application."
COMPLAINTS
The applicant complains that he was not given a fair hearing
by an independent and impartial tribunal contrary to Article 6 of
the Convention. He complains that the jury were not impartial in
that one or more members were indicating some form of racial
prejudice. The applicant further complains that the Court of Appeal
failed to apply the correct test for bias.
The applicant invokes Article 5(1)(a) of the Convention,
complaining that once the jury indicated that one or more of its
members was or may have been prejudiced, the jury and therefore the
Court ceased to be "competent" with regard to the applicant.
The applicant also invokes Article 13 of the Convention,
complaining that he has no effective remedy before a national
authority because the Convention has not been incorporated into
United Kingdom law.
The applicant also complains that discrimination has taken
place against him on grounds of his race and/or colour contrary to
Article 14 of the Convention, in that the trial judge allowed the
jury to continue its deliberations when it was clear that one or
more members of the jury were prejudiced against the applicant and
failed to make any enquiry as to how many members were prejudiced
and as to the reasons for their prejudice; and in that the Court of
Appeal, in failing to set aside his conviction, treated racial bias
less seriously than other types of bias.
THE LAW
1. The applicant complains that he did not receive a fair trial
by an independent and impartial tribunal contrary to Article 6 para.
1 (Art. 6-1) of the Convention. In particular he complains that the
jury which convicted him was not impartial in that one or more of
its members were racially motivated. Article 6 para. 1 (Art. 6-1)
provides, so far as relevant:
"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."
The applicant also alleges violation of Article 14 (Art. 14)
of the Convention, in respect of the proceedings before the courts,
which provides, so far as relevant:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any
ground such as ... race, colour, ...."
The Commission considers that the complaints concerning the
impartiality of the jury and concerning discrimination raise
important issues of fact and law. It therefore decides to invite the
respondent Government to submit observations pursuant to Rule 48
para. 2(b) of the Commission's Rules of Procedure and accordingly to
adjourn this part of the application.
2. Insofar as the applicant complains generally that the Court of
Appeal failed to apply the correct test for bias, 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). The Commission finds no indication on the facts of this case
that the Court of Appeal failed to comply with the standards of
fairness imposed by Article 6 para. 1 (Art. 6-1) of the Convention.
It therefore 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.
3. The applicant invokes Article 5(1)(a) (Art. 5-1-a),
complaining that the court ceased to be "competent" with regard to
himself as soon as it was indicated that one or more members of the
jury were or may have been prejudiced against the applicant.
Article 5(1)(a) (Art. 5-1-a) provides:
"Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by
a competent court; ..."
A "competent court" for the purposes of Article 5(1)(a)
(Art. 5-1-a) is a judicial body independent of the executive and of
the parties and offering adequate procedural guarantees (see eg. No.
7341/76, Eggs v Switzerland, Dec. 4.3.78, D.R. 15 pp. 35, 62) and
the case-law of the Court (eg. Eur. Court H.R., Engel judgment of 8
June 1976, Series A no. 22, pp. 27-28, para. 68). A body which
satisfies these criteria cannot cease to be a "competent court" by
virtue of a procedural irregularity which is alleged to arise in the
course of the trial. A person convicted after trial before such a
court must rely on Article 6 (Art. 6) to complain of any procedural
irregularity allegedly arising in the course of the hearing.
The Crown Court before which the applicant was tried was, at
the outset of the trial, a "competent court" within the meaning of
that term in Article 5(1)(a) (Art. 5-1-a) and, even assuming a
procedural irregularity had been committed during the trial, could
not cease to be a competent court by virtue thereof. There is
therefore no appearance of a violation of Article 5(1)(a)
(Art. 5-1-a) 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 of a breach of Article 13
(Art. 13) of the Convention in that he has no effective remedy
before a national authority as the United Kingdom Government has not
incorporated the Convention into domestic law. Article 13 (Art. 13)
provides:
"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 persons acting in an official capacity."
The Commission recalls that neither Article 13 (Art. 13) nor
the Convention in general prescribes any particular manner by which
the Contracting States should ensure within their internal law the
effective implementation of the provisions of the Convention. The
Commission refers on this point to its own case-law (eg. No.
13013/87, Dec. 14.12.88, D.R. 58 pp. 163, 189-190) and to the case-
law of the Court (eg. Eur. Court H.R., Swedish Engine Drivers' Union
judgment of 6 February 1976, Series A no. 20, p.18, para. 50).
It follows that the United Kingdom is not obliged to transform
the text of the Convention into domestic law. In applying the case-
law mentioned above the Commission finds no appearance of a breach
of Article 13 (Art. 13).
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.
For these reasons, the Commission by a majority
ADJOURNS THE EXAMINATION OF THE APPLICANT'S COMPLAINTS
RELATING TO THE IMPARTIALITY OF THE JURY AND RELATING TO
DISCRIMINATION;
DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy