AS TO THE ADMISSIBILITY
Application No. 12508/86
by Charles FAGAN
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 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 20 November
1985 by Charles FAGAN against the United Kingdom and registered
on 20 September 1986 under file No. 12508/86;
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 of Irish nationality born in 1944 and
resident in Dublin. He is currently serving a prison sentence on the
Isle of Wight.
The facts as submitted by the applicant may be summarised as
follows.
On 26 February 1984, the applicant was arrested by the police
and taken to Woodford police station. On 28 February 1984, he was
moved to Islington police station, where he was charged with six
others with conspiracy to contravene the 1971 Drugs Act. On
29 February 1984, he appeared in the Magistrates' Court and was
remanded in custody. He was committed for trial on 2 April 1984 and
on 8 March 1984, he was convicted of conspiracy to supply cannabis and
sentenced to seven years' imprisonment. He was also fined £30,000
but sentenced to an additional year on default in payment.
The applicant alleges that the detective-sergeant in charge of
his case promised his co-defendant bail if the co-defendant would give
evidence against the applicant. A statement incriminating the
applicant was afterwards used as evidence during the trial. The
applicant also alleges that, when interviewed himself by the
detective-sergeant, he stated that he had never intended to supply the
drug to anyone else. He states that no written statements were
recorded or shown to him concerning anything he said to the
detective-sergeant and denies that he ever took part in any question
and answer interview. The police however produced a statement
recording such interviews. The applicant alleges that these were
completely fabricated in order to secure a verdict of guilty against
him. The applicant also alleges that the detective-sergeant in charge
of the case said that the applicant would be allowed bail if he gave
the sergeant £7,500. The applicant states that in 1984 a man was
convicted of conspiracy to rob as a result of evidence deliberately
planted by this detective-sergeant. In December 1984, the Court of
Appeal subsequently quashed the conviction. Since then this
detective-sergeant has been subjected to investigations concerning
allegations of corruption and involvement in crime.
The applicant's defence during his trial was that this
detective-sergeant had fabricated the evidence against him. The
prosecution did not call this officer as a witness and when the
applicant requested that he be called as a witness by the Court so
that he could be cross-examined by the defence, the judge refused.
The applicant appealed against conviction and sentence. One
of the grounds of appeal concerned the fact that the
detective-sergeant in charge of his case had since been suspended from
duty and charged with conspiracy to rob. It also appeared that
several trials had been abandoned as it was felt unsafe to proceed
where the evidence had been tainted by this officer's involvement.
The applicant submitted that the non-calling of this officer at the
trial, where allegations of fabricated evidence were in issue, was a
major omission.
Leave to appeal against conviction was refused by the single
judge of the Court of Appeal. The applicant renewed his application
to the full court. On 13 December 1985 his application for leave was
granted by the Court, which proceeded immediately to a full appeal
hearing. The applicant was represented by counsel.
The Court held however that there was nothing improper in the
decision of the prosecution or judge not to call the
detective-sergeant as a witness, since he was clearly a suspect
witness. They pointed out that it had been open to the defence
themselves to call him as a witness. They also commented that since
the officer had not been called as a witness, his evidence was not
before the jury and played no part in the applicant's conviction. His
appeal was accordingly dismissed.
COMPLAINTS
The applicant complains that the prosecution and judge refused
to call the detective-sergeant for cross-examination. He states that
his whole defence revolved around his allegations that this police
officer fabricated the evidence against him and he was denied the
opportunity to expose the character of the detective-sergeant.
He accordingly invokes Article 6 para. 3 (d) of the
Convention.
THE LAW
The applicant complains of the refusal of the prosecution and
judge to call the detective-sergeant involved in his case for
cross-examination by the defence.
Article 6 para. 3 (d) (Art. 6-2-d) of the Convention 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 Commission recalls that the essential purpose of this
provision is to ensure equality between the defence and the
prosecution as regards the summoning and examination of witnesses.
It does not grant to the accused an unlimited right to secure the
appearance of witnesses in court (see e.g. Application No. 8417/78,
Dec. 4.5.79, D.R. 16 p. 200).
In the present case, the Commission notes that though the
prosecution and the judge declined to call this particular witness, it
was still possible for the defence to call him. The Commission also
recalls that the matter was considered by the Court of Appeal which held
that there was nothing improper in the decision of the prosecution or
judge not to call the detective-sergeant, since he was clearly a
suspect witness. Further, since he had not been called as witness for
the prosecution, his own evidence as officer in charge of the
investigation had not been used against the applicant and could have
played no part in the applicant's conviction.
In these circumstances, the Commission finds no elements which
indicated that the Court went beyond its discretion in refusing to
call this particular witness. Accordingly an examination of the facts
complained of does not disclose any appearance of a violation of the
Convention and in particular of Article 6 para. 3 (d) of the
Convention.
It follows that the application is manifestly ill-founded
within the meaning of Article 27 para. 2 of the Convention.
For this reason, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)