KINGSTON v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 27837/95

                      by Barry KINGSTON

                      against the United Kingdom

     The European Commission of Human Rights (Second Chamber) sitting

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

           Mrs.  G.H. THUNE, President

           MM.   J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

           Ms.   M.-T. SCHOEPFER, 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 27 June 1995 by

Barry KINGSTON against the United Kingdom and registered on 11 July

1995 under file No. 27837/95;

     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 and currently

resident in the United Kingdom. He is represented before the Commission

by Mr. Charles Taylor, a barrister practising in Chichester.

     The facts as submitted by the applicant may be summarised as

follows.

     In March 1992 the applicant was tried before a judge and jury

sitting at Lewes Crown Court on a count of indecent assault on a youth

of 15 years.  He was convicted by a majority verdict of ten to two, and

sentenced to five years' imprisonment.

     The applicant was jointly charged on the count of indecent

assault with his co-defendant, K.P..  K.P. was charged on a further

count of unlawfully causing to be taken by the youth a stupefying drug

with intent.  K.P. admitted the offence of indecent assault but denied

administering any drug to the youth.  In the event the jury convicted

K.P. on the outstanding charge of administering a drug with intent.

     It was the applicant's case that he too had been drugged by K.P.

as  part  of  an  attempt  to  blackmail  him  by  photographing  and

audio-taping him in a compromising situation with the youth, that had

he not been drugged he would not have acted as he was shown to have

acted, and that he had no recollection of so acting.

     In the course of the trial the judge, in the absence of the jury,

was invited to rule, inter alia, on two issues.

     At the outset of the trial the judge was asked to rule whether,

in the event that the jury found the applicant had assaulted the youth

pursuant to an intent induced by the influence of drugs secretly

administered by K.P., it was open to them to find the applicant not

guilty.

     It was the applicant's contention that in circumstances where the

prosecution had proved that despite the effect of any drink or drugs

surreptitiously administered the defendant still intended to perform

the actus reus of the substantive offence, it was open to the defendant

to raise as a defence the possibility that although the act was

intentional the intent was formed by disinhibition or loss of

self-control brought about by drink or drugs surreptitiously

administered.

     The judge found that the common law did not recognise such a

defence and in the event directed the jury on the issue of intention,

so far as is relevant, in the following terms:

     "In deciding whether intended to commit this

     offence, you must take into account any findings that you make

     that he was affected by drugs.  If you think that because he was

     so affected by drugs he did not intend or may not have intended

     to commit an indecent assault upon then you must

     acquit him; but if you are sure that despite the effect of any

     drugs that he might have been slipped - and it is for you to find

     whether he was drugged or not - this part of the case is proved,

     because a drugged intent is still an intent.  So intention is

     crucial, intention at the time; and, of course, members of the

     jury, you will bear in mind there is a distinction between

     intention at the time and a lack of memory as to what happened

     after the time."

     Second, in the course of cross-examining K.S., a witness called

by the prosecution, the applicant's counsel sought the leave of the

trial judge to question K.S. about a conversation he had with K.P. some

two years prior to the events in issue with a view to eliciting

evidence that in response to a question from K.S. as to "how he

managed to persuade them boys to indulge in homosexual acts", K.P. had

responded, "It's surprising what a couple of valium in their drinks

will do."

     The prosecution did not propose to rely upon this evidence since

it related to a conversation some two years prior to the events in

issue.  The applicant's counsel argued that the evidence was relevant

to the applicant's defence in that it went to K.P.'s systematic use of

drugs not just to render unconscious but to obtain sexual acquiescence

and was material to the question of whether the applicant was drugged

and manipulated so as not to have criminal intent.  Counsel for K.P.

resisted the introduction of this evidence on grounds that it was

indicative only of propensity on the part of K.P. to drug boys so as

to render then insensible and therefore not relevant to the specific

issue raised by the applicant in his defence.  Following argument the

trial judge ruled that whilst as between co-accused the sole test of

admissibility was relevance, the evidence in question went no further

than "to indicate a propensity on the part of K.P. to drug boys so as

to have his way with them, and was not indicative of behaviour on his

part in relation to adult men who may be present at the time of such

conduct", and was not in the circumstances relevant in the sense that

the applicant sought to rely on it in his defence.

     The applicant appealed against conviction on grounds, inter alia,

that the judge had erred in law in ruling that involuntary intoxication

was not a defence recognised by the common law, and in refusing to

allow cross-examination of K.S. as to the conversation with K.P., and

that accordingly the conviction was unsafe.

     The Court of Appeal allowed the applicant's appeal and quashed

the conviction on grounds that the common law recognised a defence of

involuntary intoxication. In the judgment of the court, given by the

Lord Chief Justice on 6 May 1993, the court reasoned that 1) if there

was a reasonable doubt that drink or a drug surreptitiously

administered caused a person to lose his self-control and form an

intent which he would not otherwise have formed it was consistent with

the principle that the law should exculpate him because the operative

fault was not his; and 2) the effect of the judge's summing up had been

to withdraw this issue from the jury and, that whilst the issue of

involuntary intoxication may not have troubled them, it was not certain

that they would have inevitably convicted.

     The Court of Appeal further ruled that the applicant's counsel

ought to have been allowed to cross-examine K.S. as to the conversation

with K.P.. Whilst it made no finding that this was of itself a

sufficient ground to render the conviction unsafe, the Court of Appeal

considered that the presence of this evidence before the jury

reinforced the possibility that they might have acquitted if properly

directed on the issue of involuntary intoxication.

     The prosecutor was refused leave to appeal by the Court of

Appeal, but obtained a certificate that a point of law of general

public importance was involved in the decision to allow the appeal,

namely:

     "Whether, if it is proved that the necessary intent was present

     when the necessary act was done by him, a defendant has open to

     him a defence of involuntary intoxication ? (b) If so, on whom

     did the burden of proof lie ?"

     On 17 January 1994 the prosecutor was granted leave to appeal by

the House of Lords.  The appeal was heard on 6 May 1994 and the

unanimous  judgment  of  the  House  of  Lords  was  handed  down  on

21 July 1994.

     The House of Lords concluded that there were three grounds on

which the applicant might be held free from criminal responsibility.

     "First, that his immunity flows from general principles of

     common law.  Secondly, that his immunity is already

     established by a solid line of authority.  Finally, that

     the court should, when face with a new problem acknowledge

     the justice of the case and boldly create a new common law

     defence."

     As to the first, this had been the approach adopted by the Court

of Appeal in finding that exceptionally the law recognised that an

accused might be entitled to be acquitted "if there is a possibility

that although his act was intentional, the intent itself arose out of

circumstances for which he bears no blame."

     Giving judgment in the House of Lords, Lord Mustill stated as

follows:

     "My Lords, with every respect I must suggest that no such

     principle exists or, until the present case, had ever in

     modern times been thought to exist.  Each offence consists

     of a prohibited act or omission coupled with whatever state

     of mind is called for by the statute or common law which

     creates the offence ... to assume that contemporary moral

     judgments affect the criminality of the act, as distinct

     from the punishment appropriate to the crime once proved,

     is to be misled by the expression mens ... the "mens" of

     the defendant must usually be involved in the offence: but

     the epithet "rea" refers to the criminality of the act in

     which the mind is engaged, not its moral character."

     As to the second ground, he noted that, before the issue came

before the Court of Appeal on the applicant's appeal, the availability

of a defence of involuntary intoxication had not been the subject of

any decided authority under English law. It was thought that an obiter

remark by Park J in Pearson's Case (1835) 2 Lew 144 that "if a party

be made drunk by stratagem, or the fraud of another, he is not

responsible"; and a passage  in  Hale's  Pleas  of  the  Crown  (1736),

vol. 1, pp. 31 - 32 could be interpreted consistent with the existence

of such a defence, but neither could be read as authority for such a

principle.

     Following an extensive review of the relevant case law

Lord Mustill concluded:

     "My Lords, I cannot find in this material any sufficient

     grounds for holding that the defence relied upon is already

     established by the common law, any more than it can be

     derived from general principles."

     Having concluded that a defence of involuntary intoxication

neither followed from any general principle of common law, nor had been

recognised or established by any decided authority, the House of Lords

declined to extend the common law to encompass the defence, indicating

that if such a defence were to be created it would need to be

articulated within a statutory framework.  The House of Lords

accordingly answered the certified question in the negative and

remitted the case to the Court of Appeal to dispose of the appeal in

the light of its ruling.

     On 21 March 1995 the Lord Chief Justice gave the judgment of

Court of Appeal on the remitted appeal.  In allowing the conviction to

stand in light of the House of Lord's ruling the Court of Appeal

determined, inter alia, that in the absence of a defence of involuntary

intoxication: 1) the decision of the trial judge as to the relevance

of K.S.'s evidence of his conversation with K.P. could not be said to

have been wrong in law; and 2) that trial judge had not misdirected the

jury on the issue of intention.

COMPLAINTS

1.   The applicant complains in general terms that he did not receive

a fair trial in breach of Article 6 of the Convention.  Specifically

the applicant complains that the Court of Appeal's failure, in hearing

the remitted appeal, to warn the applicant through his counsel that it

would reconsider and review its earlier ruling as to admissibility of

evidence of the conversation between K.P. and K.S. was such as to

deprive the applicant of a fair hearing, and constituted a breach of

the specific rights guaranteed under para. 3(a), (b) and (c) of Article

6 of the Convention.

2.   The applicant further complains under Article 7 of the Convention

he was convicted of an offence which did not constitute a criminal

offence under domestic law at the time when it was committed.  The

applicant complains that at the time of the commission of the offence

the relevant domestic law recognised a defence of involuntary

intoxication which was removed by the subsequent decision of the House

of Lords.

THE LAW

1.   The applicant complains that the absence of any warning by the

Court of Appeal that it would review its earlier ruling as to the

relevance and admissibility of the evidence of the conversation between

K.P. and S.F. was a breach of para. 3(a), (b) and (c) of Article 6

(Art. 6-3-a, 6-3-b, 6-3-c) and such as to render the hearing unfair

contrary to para. 1 of Article 6 (Art. 6-1) of the Convention.  These

provisions, insofar as relevant, provide:

     "1.   In the determination ... of any criminal charge against

     him, everyone is entitled to a fair  ... hearing ... by an

     independent and impartial tribunal established by law.

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

           a.   to be informed promptly, in a language which he

     understands and in detail, of the nature and cause of the

     accusation against him;

           b.   to have adequate time and facilities for the

     preparation of his defence;

           c.   to defend himself in person or through legal

     assistance ...;"

     The Commission recalls that in the context of Article 6

(Art. 6) the overriding question is whether the proceedings when

considered in their entirety, including any appeal proceedings, were

fair (see inter alia Vidal v. Belgium judgment of 22 April 1992, Series

A no. 235-B, pp. 32 - 33, para. 33, and Helmers v. Sweden judgment of

29 October 1991, Series A no. 212, p. 15, para. 31).  The guarantees

provided for by para. 3 of Article 6 (Art. 6-3) are but specific

features of the more general right to a fair trial provided for within

paragraph 1 (see inter alia Unterpertinger v. Austria judgment of  24

November  1986,  Series  A  no. 110, p. 14, para. 29; and T v. Italy

judgment of 12 October 1992, Series A no. 245-C, p. 41, para. 25).

Accordingly the Commission finds it appropriate to examine the

applicant's submissions from the angle of para. 1 of Article 6 taken

together with the principles inherent in paragraph 3 (Art. 6-1+6-3).

     The Commission further recalls that the rules of admissibility

and the assessment of evidence are principally matters for the domestic

courts to determine.  The Commission notes that it is not, as a general

rule, within the purview of the Commission to gainsay the assessment

of the domestic courts as to relevance of the evidence which was before

them, save where it is apparent that the approach of the court in

making its assessment was arbitrary or capricious and such as to render

the proceedings,  taken  as  a  whole,  unfair  (see  inter  alia

Vidal  v. Belgium,  loc.  cit.,  pp.  32 - 33,  paras.  33 - 34;

Edwards  v. the United Kingdom judgment of 16 December 1992, Series A

no. 247-B,  pp. 34-35,  para. 34;  and  Saïdi  v.  France  judgment

of 20 September 1993, Series A no. 261-C, p. 56, para. 43).

     The Commission notes that the Court of Appeal's earlier ruling

that the evidence was relevant and therefore ought to have been

admitted was made in the context of its finding that the defence of

involuntary intoxication was available to the applicant.  The Court of

Appeal did not find that the evidence ought to have been admitted

irrespective of the availability of a defence of involuntary

intoxication, nor that the exclusion of the evidence was a sufficient

ground of itself to render the conviction unsafe.  The Commission does

not therefore consider the Court of Appeal's subsequent ruling that the

evidence was inadmissible inconsistent with its earlier ruling.

     Moreover, the Commission notes that the issue regarding the

admissibility of this evidence had been the subject of full argument

before the Court of Appeal on the earlier appeal.  Although the two

judges sitting with the Lord Chief Justice differed in each appeal, in

both cases the judgment of the court was given by the Lord Chief

Justice.  The Commission does not therefore consider that there was any

absence of continuity between the two courts, or, more particularly,

that the Court of Appeal's subsequent ruling could be said to have been

made in ignorance of the relevant issues.

     Accordingly, the Commission does not consider that the Court of

Appeal acted in a manner which was either arbitrary or capricious, or

was such as to amount to a breach of paras. 1 and 3 of Article 6

(Art. 6-1, 6-3), and in any way to render the proceedings taken as a

whole unfair.

     The applicant complains in general terms of an unfair trial.  The

Commission has considered the proceedings taken as a whole and does not

discern any evidence to sustain this complaint.  Accordingly the

Commission finds no appearance of a violation 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 complains that in breach of Article 7 para. 1

(Art. 7-1) of the Convention he was convicted of an offence which did

not at the time when it was committed constitute a criminal offence

under domestic law.

     Article 7 para. 1 (Art. 7-1) of the Convention, insofar as

relevant, provides:

     "No one shall be held guilty of any criminal offence on account

     of any act or omission which did not constitute a criminal

     offence under national or international law at the time when it

     was committed."

     The Commission recalls that Article 7 para.1 (Art. 7-1) is to be

construed and applied, as follows from its object and purpose, in such

a way as to provide effective safeguards against arbitrary prosecution

and conviction (see Eur. Court HR, S.W. v. the United Kingdom judgment

of 22 November  1995,  Series A  no. 335-B,  p. 41,  para. 34; and C.R.

v. the United Kingdom judgment of 22 November 1995, Series A no. 335-C,

p. 68, para. 32).  Thus what Article 7 para. 1 (Art. 7-1) prohibits is

the development of the law in a way such that acts not previously

punishable are held to entail criminal liability, or existing offences

extended to include acts which it is clear did not previously

constitute a criminal offence (see No. 8710/79, Dec. 7.5.82, DR 28,

p. 81).

     The Commission recalls that the development of the criminal law

through judicial law-making is a well entrenched and necessary part of

legal tradition.  Article 7 (Art. 7) does not outlaw the general

clarification of the rules of criminal liability through judicial

interpretation provided this is consistent with the essence of the

offence and could reasonably be foreseen (see S.W. v. the United

Kingdom, loc. cit., p. 42, para. 36; and C.R. v. the United Kingdom,

loc. cit., p. 69, para. 43).

     The Commission further recalls that it is in the first place for

the courts to interpret and apply domestic law since they are in the

nature of things particularly qualified to settle issues arising in

this connection (see Eur. Court HR, Kemmache v. France (No. 3) judgment

of 24 November 1994, Series A no. 296-C, p. 87, para. 37).

     The Commission notes that the applicant's complaint is not that

any element of the substantive offence was unclear, but rather that at

the time of the commission of the offence domestic law recognised a

defence of involuntary intoxication.

     The  Commission  recalls  that  in  reaching  its  judgment,  the

House of Lords submitted the relevant case-law to extensive review.

The Commission finds no reason to doubt that the position under the

domestic law was otherwise than is stated to be within the judgment of

the House of Lords.  The Commission recalls that the House of Lords

concluded 1) that a defence of involuntary intoxication could not be

said to follow from any general principles of common law; nor 2) could

it be said that the defence had ever been recognised by any established

line of authority.  The Commission does not therefore consider that in

reaching its decision the House of Lords created any new law in the

sense that it overruled any existing or established authority current

at the time of the commission of the offence.  The Commission notes

that whilst the Court of Appeal reached a different conclusion as to

the availability of the defence of involuntary intoxication, it did so

by reasoning from first principles, not on the basis that the defence

had already been established by any solid line of authority.

      Accordingly, the Commission does not consider that at the time

of the commission of the offence it could be said that the defence of

involuntary intoxication had been sufficiently recognised or

established within domestic law that the decision of the House of Lords

represented a departure from existing or established principle so as

to overstep the limits of what could be regarded as acceptable

clarification of the law, or was such as represented an unforeseeable

departure from any existing or established law.  Accordingly, the

Commission finds there was no violation of Article 7 para. 1

(Art. 7-1) 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.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber

 

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