EDWARDS v. the UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 13071/87

                      by Derek EDWARDS

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 9 January 1991, the following members being present:

              MM. S. TRECHSEL, Acting President

                  F. ERMACORA

                  G. SPERDUTI

                  E. BUSUTTIL

                  G. JÖRUNDSSON

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H. DANELIUS

             Sir  Basil HALL

             MM.  F. MARTINEZ RUIZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             MM.  J.-C. GEUS

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

             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 26 September 1986

by Derek EDWARDS against the United Kingdom and registered on

10 July 1987 under file No. 13071/87;

        Having regard to

        - the reports provided for in Rule 47 of the Rules of

        Procedure of the Commission;

        - the observations submitted by the respondent Government on

        25 October 1989 and the observations in reply submitted by the

        applicant on 25 November 1989 and 14 February 1990;

        - the observations made by the parties at the oral hearing

        on 9 January 1991;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a United Kingdom citizen.  He was born in

1943 and is at present a prisoner in Her Majesty's Prison Frankland,

Durham, England.

        The facts of the case as submitted by the parties may be

summarised as follows.

        On 9 November 1984, the applicant was convicted at Sheffield

Crown Court of one count of robbery and two counts of burglary.  He

received a sentence of imprisonment of ten years for the robbery, and

two sentences of eight years each for the burglary offences.  All

three sentences are being served concurrently.  His application for

leave to appeal against conviction and sentence was dismissed by a

single judge of the Court of Appeal on 5 February 1985.  His renewed

appeal to the Full Court concerning sentence only was dismissed on

21 May 1985.

        On 16 May 1985, the applicant petitioned the Secretary of

State for Home Affairs with complaints against police officers who had

investigated his case and given evidence at his trial.  An independent

police investigation was ordered in the course of which certain facts

came to the applicant's attention.  On 3 December 1985 the applicant

applied for leave to appeal out of time.  The police report

(unpublished) dated 5 December 1985, was delivered to the Police

Complaints Authority which directed it to the Director of Public

Prosecutions.

        In February 1986, the Director of Public Prosecutions decided

that there was insufficient evidence to support criminal charges

against the police officers but recommended that disciplinary charges

be brought against three police officers.  At the disciplinary hearing

on 13-15 June 1988, the tribunal decided that there was no case to

answer and dismissed the charges.

        In the meantime, on 21 March 1986 the Secretary of State for

Home Affairs referred the applicant's case to the Court of Appeal

(Criminal Division) under Section 17 (1)(a) of the Criminal Appeal Act

1968.  The applicant was represented in these proceedings by Queen's

Counsel.  The reference was heard on 18 July 1986 and judgment

delivered on the same date.

        The evidence against the applicant consisted of detailed

verbal admissions that he was implicated in the offences.  The

applicant's co-defendant had given the police information which led to

the applicant's arrest and subsequent unsigned confession.  He had

maintained at his trial that these statements had been concocted by

the police and his defence did not require any witnesses except the

interviewing officers.  Before the Court of Appeal the applicant

submitted that the verdict should be set aside as unsafe and

unsatisfactory because of certain shortcomings in the prosecution

case.  In particular it appeared that one of the police witnesses had

stated under cross-examination by counsel for the applicant that no

fingerprints were found at the scene of the crime.  In fact two

fingerprints had been found which later turned out to be those of the

next door neighbour who was a regular visitor to the house.  The Court

of Appeal rejected the allegation that the police officer had told

lies at the trial in the following terms:

"We do not accept that interpretation of Detective

Sergeant Hoyland's evidence.  We think quite plainly what

he was indicating there and intended to indicate was that no

fingerprints relating to either of the two alleged burglars

were discovered at the scene:  neither the fingerprint of

Rose nor the fingerprint of Edwards, the present appellant.

We do not think, had the matter been carried further, it

would have been demonstrated that Hoyland was a person who

to that extent could not be believed on his own."

        A further shortcoming was the fact that the police had shown

two volumes of photographs of possible burglars (including a

photograph of the applicant) to one of the victims - a lady of 82

years of age who had caught a fleeting glimpse of the burglar.  Her

statement, read to the jury, said that she thought she would be able

to recognise her assailant.  She did not pick out the applicant from

the photographs.  This fact was not, however, mentioned by one of the

police witnesses in a written statement read out to the jury.  Counsel

for the applicant submitted that a jury might have been led to

believe, had they been informed of this fact, that the admission

statements had been "manufactured" by the police as the applicant

alleged or to otherwise doubt the veracity of the police.

        The Court of Appeal also rejected this view:

"There again we do not take that view.  The fact that

Miss Sizer had a fleeting glimpse of her assailant, and the

fact that such identification as she did make was largely

directed to other matters of identification rather than his

features, leads us to believe that the jury would not have

been influenced to act other than they did if they had the

full story of the photographs and of Police Constable

Esdon's activities with regard to that."

        The Court of Appeal pointed to other shortcomings which it did

not consider cast any doubt on the verdict, namely

-       that the applicant was alleged to have been shown by

the police a statement by a defendant although his finger-

prints were not found on the statement;

-       a string which had tied the hands of one of the

victims had been thrown away and not subjected to forensic

examination;

-       an anorak which fitted the description given by one

of the victims was found at the applicant's house but was

not tested for fibres or for possible comparison with other

items;

-       a stocking mask, found at the scene of the crime, was

not tested for saliva and a knife, which may have been used

by the applicant, was not tested for fingerprints.

        As regards the latter points, the Court of Appeal remarked

that the mask had not been tested because the applicant had never

claimed to wear a mask.  In addition, the knife had been found lying

out in the rain and the chances of finding finger prints were

thus minimal.

        The Court of Appeal considered that even if these matters had

been investigated, it would have made no difference to the outcome.

The Court concluded:

"It is clear that there was some slipshod police work in

the present case, no doubt because they took the view here

was a man who had admitted these crimes fully, and

consequently there was very little need for them to indulge

in further verification of whether what he said was true.

Although this is a matter which perhaps casts the

police in a somewhat lazy or idle light, we do not think in

the circumstances there was anything unsafe or

unsatisfactory in the end about these convictions.

Consequently, treating this matter as we have to according to

section 17 of the Act, we think this appeal fails and must

be dismissed."

        The applicant also took advice concerning the possibility of

appealing to the House of Lords but was informed in an opinion of

counsel dated 8 September 1986 that there were no grounds on which an

appeal could successfully be pursued before the House of Lords.

        The applicant petitioned the Secretary of State for Home

Affairs on 24 July 1986 unsuccessfully asserting that the United

Kingdom Government had an obligation to ensure that the applicant's

rights under Articles 6 paras. 1 and 3 (d) of the Convention were

protected and that he was entitled under Article 13 of the Convention

to have an effective remedy before a national authority for violations

of rights and freedoms in the Convention.

RELEVANT DOMESTIC LAW AND PRACTICE

Duty of prosecution in presenting evidence

        Under the Attorney General's Guidelines issued in December

1981, the prosecution is obliged (subject to specified discretionary

exceptions) to disclose to the defence "unused material", which

includes all witness statements not included in the bundle of

statements served on the defence at the stage of committal of the case

by the magistrates' court to the Crown Court.

        The prosecution is also under a duty to inform the defence of

any earlier statement of a prosecution witness which is inconsistent

with evidence given by that witness at the trial: R v.  Clarke (1930)

22 Cr.App.R.58.  The prosecution's duty extends to informing the

defence of previous inconsistent oral statements as well as written

statements.

        Consequently where evidence of a prosecution witness is given

before the court stating that the witness would recognise the accused

again (as in the applicant's case), and the prosecution knows that

when shown a photograph of the accused the witness in fact failed to

identify him, the prosecution is required to make that fact known to

the defence.

        For the purpose, among others, of ensuring compliance with

this duty, the Court of Appeal has stated that all the statements

which have been taken by the police should be put before Counsel for

the Crown, and that it should not be left to the police to decide

which statements are to be put before Counsel: R v.  Fellowes, 12 July

1985.

Reference to the Court of Appeal by the Home Secretary

        Section 17 (1) a of the Criminal Appeal Act 1968 provides that

        "Where a person has been convicted on indictment, or been

        tried on indictment and found not guilty by reason of

        insanity, or been found by a jury to be under disability, the

        Secretary of State may, if he thinks fit, at any time either:

        (a) refer the whole case to the Court of Appeal and the case

        shall then be treated for all purposes as an appeal to the

        Court by that person; ..."

Powers of the Court of Appeal

        The powers of the Court of Appeal in appeal proceedings are

fully applicable to reference proceedings (Stafford v.  D.P.P. [1973] 3

WLR 719).  The scope of the Court of Appeal's powers on appeal is set

out in section 2 of the 1968 Act.  Section 2 provides:

        "(1) Except as provided by this Act, the Court of Appeal shall

        allow an appeal against conviction if they think:

                (a) that the conviction should be set aside on the

                ground that under all circumstances of the case it is

                unsafe or unsatisfactory;

                (b) that the judgment of the court of trial should be

                set aside on the ground of a wrong decision of any

                question of law; or

                (c) that there was a material irregularity in the

                course of the trial,

        and in any other case shall dismiss the appeal:

        Provided that the Court may, notwithstanding that they

        are of opinion that the point raised in the appeal might

        be decided in favour of the appellant, dismiss the appeal

        if they consider that no miscarriage of justice has

        actually occurred.

        (2) In the case of an appeal against conviction the Court

        shall, if they allow the appeal, quash the conviction.

        (3) An order of the Court of Appeal quashing a conviction

        shall, except when under section 7 below the appellant is

        ordered to be retried, operate as a direction to the court

        of trial to enter, instead of the record of conviction, a

        judgment and verdict of acquittal."

New evidence on appeal

        Under section 23 (1) of the 1968 Act the Court of Appeal

hearing an appeal against conviction or sentence may order the

production of a document, exhibit or any other thing, may order the

attendance and examination of witnesses, and may receive evidence.

Section 23 (2) provides that the Court shall exercise the power of

receiving evidence if

        "(a) it appears to them that the evidence is likely to be

        credible and would have been admissible in the proceedings

        from which the appeal lies on an issue which is the subject

        of the appeal; and

        (b) they are satisfied that it was not adduced in those

        proceedings but there is a reasonable explanation for the

        failure to adduce it."

        If the Court of Appeal considers that fresh evidence renders

the verdict unsafe or unsatisfactory, it may order a retrial, or may

simply quash the conviction and substitute a verdict of acquittal.

The appropriate course will depend upon the particular facts of the

case, as explained in the following passage from the judgment of Lord

Cross in the House of Lords in Stafford v. the D.P.P. (at pp.

737-738):

        "At one end of the scale there are cases where the court will

        say :

                This fresh evidence puts such an entirely new

                complexion on the case that we are sure that a verdict

                of guilty would not be safe.  So we will quash the

                conviction and not order a new trial.

        At the other end of the scale there will be cases where

        the court will say as it said in effect of this case:

                The fresh evidence though relevant and credible

                adds so little to the weight of the defence case

                as compared with the weight of the prosecution's

                case that a doubt induced by the fresh evidence

                would not be a reasonable doubt.  So, we will

                leave the conviction standing.

        But in many cases the attitude of the court will be:

                We do not feel at this stage sure one way or

                the other.  If this fresh evidence was given

                together with the original evidence and

                any further evidence which the Crown might adduce

                then it may be that the jury - or we, as we

                constituted the jury - would return a verdict of

                guilty but on the other hand it might properly

                acquit.  So we will order a retrial."

COMPLAINTS

1.      The applicant complains that he was denied a fair hearing

contrary to Article 6 para. 1 of the Convention since evidence

relevant to the credibility of police witnesses was not before the

jury at his trial and that he was denied the right to examine

witnesses under Article 6 para. 3 (d) of the Convention since he was

unable to cross-examine police witnesses on the basis of this evidence

at his trial.

2.      The applicant also complains that he was denied an effective

remedy in respect of his complaints.

PROCEEDINGS BEFORE THE COMMISSION

        The applicant introduced his complaints with the Commission on

26 September 1986 in the context of Application No. 13071/87 which was

registered on 10 July 1987.  His complaints were rejected by the

Commission on 7 December 1987 for failure to comply with the six

months rule.  This decision was based on the assumption that the

application had been introduced on 16 March 1987.

        Later the applicant showed that he had sent a letter to the

Commission on 29 September 1986 which was registered by the prison

authorities as having been posted but which was not received by the

Commission.

        On 13 July 1988 the President of the Commission restored the

present complaints to the list.

        On 6 July 1989, the Commission decided to communicate the

re-opened part of the application to the Government and to invite them

to submit written observations on the admissibility and merits.

        The Government's observations were submitted on 25 October

1989 and the observations in reply were submitted by the applicant on

25 November 1989 and 14 February 1990.

        On 15 December 1989, the applicant was granted legal aid.

        On 9 October 1990 the Commission decided to invite the parties

to a hearing on the admissibility and merits.  At the hearing, which

was held on 9 January 1991, the parties were represented as follows:

The Government:

        Ms.  D.L. Brookes        Agent, Foreign and Commonwealth Office

        Mr.  D. Pannick          Counsel

        Mr.  H. Carter           Home Office

        Mr H. Llewellyn         Foreign and Commonwealth Office

The applicant:

        Mr.  B. Clarke           Counsel

        Mr.  J.K. Campbell       Solicitor

        The applicant, Mr Edwards, also attended the hearing.

THE LAW

1.      The applicant complains that he did not receive a fair trial

due to the withholding of evidence at his trial by the police.  He

invokes Article 6 para. 1 (Art. 6-1) and para. 3 (d) (Art. 6-3-d) of

the Convention.  He also complains that he has no effective remedy for

his complaints as required by Article 13 (Art. 13) of the Convention.

Article 26 (Art. 26) of the Convention

2.      The respondent Government submit that the applicant has failed

to exhaust domestic remedies since he did not appeal from the decision

of the Court of Appeal to the House of Lords.

        The Commission notes that appeals lie to the House of Lords

in limited circumstances, in particular, only in those cases where

there is certified as being in issue a point of law of general public

importance.  The Commission observes that Counsel advised that as the

issues decided by the Court of Appeal were questions of fact and

degree, all national avenues of appeal had been exhausted.  The

Government suggest that the applicant could have appealed on the basis

that the leading case of Stafford v.  D.P.P., which established the

principles to be applied in the exercise of the Court of Appeal's

appellate powers, should be overturned.  The Commission notes that the

applicant's complaints are not directed against the principles

established in Stafford v.  D.P.P. It considers that this

well-established case-law constitutes a particular circumstance which

is sufficient to dispense the applicant, according to the generally

recognised principles of international law, from seeking to overturn

the law (cf.  No. 10027/82, Dec. 5.12.84, D.R. 40, p. 100 at 116-117).

        The Government also argues that the applicant has failed

to exhaust domestic remedies on two further grounds: firstly, that

he did not renew his application for leave to appeal against his

conviction in 1985 and, secondly, that he did not apply in the

reference proceedings for documents to be provided or witnesses to be

examined.  The Commission finds that the applicant had applied on the

basis of the new material for leave to appeal out of time but that

this application was overtaken by events in that the case was put

before the Court of Appeal in the reference proceedings.  Further, the

applicant does not complain that the Court of Appeal failed to hear

the new evidence from the witnesses themselves but that he did not

receive a fair trial since the evidence and the possibility of

cross-examining witnesses on the basis of that evidence was not

available at his trial before the jury.  The power of the Court of

Appeal as regards evidence is, however, a factor which may be taken

into account when assessing the role of the Court of Appeal in the

proceedings as a whole.

3.      The Commission is accordingly unable to accept that the

application should be declared inadmissible for non-exhaustion of

domestic remedies.

Article 6 paras. 1 (Art. 6-1) and 3 (d) (Art. 6-3-d) and Article 13

(Art. 13) of the Convention

        Article 6 para. 1 (Art. 6-1), first sentence 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."

        Article 6 para. 3 (d) (Art. 6-3-d) provides:

"3.   Everyone charged with a criminal offence has the

following minimum rights:

...

     (d) to examine or have examined witnesses against him

and to obtain the attendance and examination of witnesses on

his behalf under the same conditions as witnesses against

him; "

        The applicant submits that at his trial relevant evidence was

not put before the jury and that as a result his rights under the

above provisions were violated.  This evidence related to the

credibility of the police witnesses in the case, which turned on

whether the alleged confessions by the applicant had been fabricated

or not by the police.  Since this evidence was never disclosed at the

trial, he submits that he was not given an adequate opportunity to

challenge the witnesses against him and that he did not receive a fair

trial.  He submits that the reference proceedings before the Court of

Appeal did not cure this defect since it did not exercise its

discretion to order a full rehearing of all the issues and evidence

but at best afforded him the opportunity of having a fragmentary

procedure which led to overall unfairness.

        The Government submit that the proceedings must be looked at

as a whole and that the applicant did receive a fair hearing since he

was afforded the opportunity of submitting the new evidence before the

Court of Appeal in reference proceedings, where he could also have

applied for witnesses to be called and cross-examined.  The Government

also rely, inter alia, on the case-law of the Commission and Court to

the effect that the assessment of evidence in criminal proceedings is

within the appreciation of the domestic courts and cannot as a general

rule be reviewed by the Convention organs.

        The Commission has made a preliminary examination of the

issues arising under Article 6 paras. 1 (Art. 6-1) and 3 (d)

(Art. 6-3-d) of the Convention. It considers that the applicant's

complaints raise difficult questions of fact and law which are of such

complexity that their determination should depend upon a full

examination of the merits.

        The Commission also finds that the applicant's complaint

under Article 13 (Art. 13) of the Convention arises from the same factual

basis.

        It follows that the application cannot be declared manifestly

ill-founded and must be declared admissible, no other ground for

declaring it inadmissible having been established.

        For these reasons, the Commission, by a majority,

        DECLARES THE APPLICATION ADMISSIBLE,

        without prejudging the merits of the case.

   Secretary to the Commission   Acting President of the Commission

         (H.C. KRÜGER)                    (S. TRECHSEL)

 

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