AS TO THE ADMISSIBILITY OF
Application No. 15703/89
by Paul LAW
against the United Kingdom
The European Commission of Human Rights sitting in private on
15 February 1990, the following members being present:
MM. C.A. NØRGAARD, President
E. BUSUTTIL
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 28 July 1989
by Paul LAW against the United Kingdom and registered on 27 October
1989 under file No. 15703/89;
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 a United Kingdom citizen, born in 1963 and
presently detained at HM Prison Stafford, England.
He complains to the Commission of the interview he gave to the
police on 8 February 1989. He had been arrested the day before on
suspicion of armed robbery and wounding with intent. He was first
interviewed on the morning of 8 February with his solicitor present to
give him advice. There was a break for lunch, after which the
interview continued in the absence of the solicitor with the
applicant's consent. It was tape-recorded. As it went on, however,
the applicant requested his solicitor's presence. The applicant was
told that this was not possible and the police refused to discontinue
the questioning. The applicant states that the rest of the interview
was made under duress.
Section 58 of the Police and Criminal Evidence Act 1984
entitles the accused to consult a solicitor privately at any time. If
the police refuse to permit consultation a record has to be made of
the refusal and the reasons for it. The Act strictly limits the
grounds on which such a refusal can be made, e.g. when there are
reasonable grounds for believing that legal consultations would lead
to an interference with or harm to evidence connected with a serious
arrestable offence. Sections 76 and 78 of that Act provide
respectively for the exclusion from a trial of any confessions by an
accused person obtained by "oppression", and for the exclusion of any
evidence which has been obtained in such a way that it would have an
adverse effect on the fairness of the proceedings. "Oppression"
within the meaning of Section 76 includes torture, inhuman or
degrading treatment and the use or threat of violence.
Section 66 of that Act requires the Secretary of State to
issue a Code of Practice for the Detention, Treatment and Questioning
of Persons by Police Officers. Paragraph 6 (5) of the Code requires
that if a person is permitted to consult a solicitor who is available
at the time the interview begins or when it is in progress, he must be
allowed to have his solicitor present whilst he is interviewed.
However, while a failure to observe the Code may result in
disciplinary proceedings against the police officers concerned,
evidence obtained as a result of this failure is not necessarily
inadmissible at the trial.
COMPLAINTS
The applicant complains that he was denied legal
representation and the right to remain silent, in breach of Article 6
paragraph 3 (c) of the Convention.
THE LAW
The applicant has complained that he was denied legal
representation and the right to remain silent, in breach of Article 6
paragraph 3 (c) (Art. 6-3-c) of the Convention which guarantees, inter
alia, the right to defend a criminal charge through legal assistance
of one's own choosing.
The Commission refers to its previous case-law that Article 6
paragraph 3 (c) (Art. 6-3-c) of the Convention gives the accused a
general right to assistance and support by a lawyer throughout the
whole of the criminal proceedings (Can v. Austria, Comm. Report
12.7.84, para. 54). The Commission notes that the applicant was
initially assisted by his lawyer for half a day. He then agreed to
continue the police questioning for a further half day without the
lawyer, although changing his mind later. However, he did not
thereafter refuse to answer any further questions from the police.
Moreover, the applicant has not alleged that he was denied subsequent
consultations with his lawyer. Finally the Commission notes that the
admissibility of any evidence or confession which has been obtained by
oppression during that afternoon of police questioning can be
challenged by the applicant at his trial. Furthermore, he can contend
that the evidence should not be admitted on the ground that it would
have an adverse effect on the fairness of the proceedings. Were the
applicant to make such a challenge, his allegations could be verified
by the tape-recording of the interview. In the light of these factual
circumstances the Commission concludes, even assuming that the
applicant may be said to have complied with the requirements of
Article 26 (Art. 26) of the Convention, that the case does not
disclose any appearance of a violation of Article 6 para. 3 (c)
(Art. 6-3-c) of the Convention. It follows that 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
DECLARES THE APPLICATION INADMISSIBLE.
Deputy Secretary to the Commission President of the Commission
(J. RAYMOND) (C.A. NØRGAARD)
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