McKENZIE v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 22301/93

                      by Morris McKENZIE

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

1 December 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

                 G.B. REFFI

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

           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 April 1993 by

Morris McKENZIE against the United Kingdom and registered on

21 July 1993 under file No. 22301/93;

      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 1928.  He is

resident in South Ronaldsay and is the local Church of Scotland

Minister.  He is represented before the Commission by David MacLennan,

a solicitor practising in Edinburgh.

      The facts of the case, as submitted by the applicant's

representative and insofar as they may be deduced from documents lodged

with the application, may be summarised as follows.

      On 27 February 1991, police officers carried out a five hour

search of the applicant's home and adjacent church, seizing various

articles.  The applicant and his wife were told by the officers that

they and several other adults were suspected of being members of an

organised group who indulged in child sexual abuse.

      The applicant and his wife were detained at a police station for

nearly five hours pursuant to section 2 of the Criminal Justice

(Scotland) Act 1980, which authorises detention at a police station of

a person reasonably suspected of an imprisonable offence for the

purpose of investigating the offence.  Five other adults on the island

also had their houses searched and were detained at the police station.

      The Social Work Department of Orkney Islands Council obtained

Place of Safety Orders over nine children who were removed from Orkney

to the mainland of Scotland where they were kept in foster care at

different homes until 4 April 1991 when their return was ordered by the

Sheriff.  No criminal proceedings have ever been taken against the

applicant and his wife or any of the other five adults detained on

27 February.

      On 20 June 1991, the Secretary of State for Scotland appointed

a Public Inquiry with the following remit:

      "To inquire into the actings of Orkney Islands Council (in

      particular those of their Social Work Department and of their

      Reporter to the Children's Panel for their area), of the Northern

      Constabulary and of all persons acting on behalf of either of

      them, and into the effect on [sic] those actings and the

      attendant publicity in relation to:

      (1)  the decision to seek authority to take to a place of safety

      nine children resident in South Ronaldsay;

      (2)  the removal of those children from their homes on

      27 February 1991;

      (3)  the detention of those children in places of safety

      following the removal and until returned to their homes (and in

      particular how they were cared for and interviewed while so

      detained);

      (4)  the decision not to continue proceedings before the Sheriff

      for a finding on the evidence;

      and to make recommendations."

      The Inquiry heard evidence from 26 August 1991 to 25 March 1992.

The evidence heard included the allegations of organised child sexual

abuse on which the agencies acted but the Inquiry was not required

within the terms of its remit to investigate the truth or falsity of

the allegations.  As the Chairman of the Inquiry put it in his Report

(para. 1.10),

      "A delicate distinction then had to be preserved in relation to

      evidence which could from one point of view be seen as relating

      to the truth or otherwise of the allegations but which was on the

      other hand relevant to an exploration of the reasons for the

      actings of the agencies which were the subject of the Inquiry.

      Such evidence was relevant as reflecting the beliefs of the

      persons carrying out those activities.  Whether the beliefs were

      true or not had to be left as a distinct and unresolved question.

      That delicate distinction had to be recognised in the evidence

      throughout the Inquiry and some care had to be taken to stress

      that any references made to organised abuse involving the nine

      children  were always intended as references to merely alleged

      abuse. The matter was the more sensitive when it became apparent

      that although the Crown had indicated that there was no intention

      to pursue the earlier criminal investigation it was stated that

      certain other police investigations were still proceeding so that

      there was a necessity to steer clear of matters which might yet

      require to be examined in another context. The substance of the

      allegations was not explored and the adults identified in them

      were and remain entitled to rely on the basic presumption of

      innocence."

      During the Inquiry, witnesses identified the applicant as the

central figure during the alleged instances of child sexual abuse.

They were asked to state publicly their view of the truth or falsity

of the allegations and some witnesses were asked whether they believed

the allegations made by some of the alleged victims of the abuse.  The

applicant was not permitted to give evidence or lead any evidence to

refute the allegations due to the terms of the remit of the Inquiry.

Nor was he permitted to give any interviews to the media during the

course of the Inquiry.

      At no point before or during the Inquiry was the applicant

notified by the authorities that there would be no further proceedings

with respect to the matters that had caused him to be detained by the

police.  During the inquiry it was stated that certain other

investigations were still proceeding.  By the date of his application

the applicant had still not been notified as to whether or not criminal

investigation was still continuing.

      The Inquiry reported on 27 October 1992.

COMPLAINTS

      The applicant complains that the Public Inquiry determined his

civil right to honour and reputation without a fair and public hearing

in breach of Article 6 para. 1 of the Convention. He was unable by the

terms of the remit to give evidence or counter evidence relating to the

truth of falsity of the allegations against him.

      The applicant complains of a denial of effective access to court

to have determined the justification of an attack on his reputation,

in further breach of Article 6 para. 1.

      The applicant complains also that the Public Inquiry amounted to

the determination of criminal charges against him without a fair and

public hearing contrary to Article 6 para. 1 and without affording him

the minimum right to defend himself contrary to Article 6 para. 3(c).

In addition the terms of remit of the Inquiry are alleged to have

violated the presumption of innocence, in breach of Article 6 para. 2

of the Convention, in that he was held out to be guilty of criminal

conduct without an opportunity to prove his innocence.

      The applicant further complains that there are no effective

remedies before a national authority of the United Kingdom, in breach

of Article 13 of the Convention.

THE LAW

1.    The applicant complains that the proceedings before the Inquiry

determined his civil right to reputation and honour without affording

him the guarantees of fairness imposed by Article 6 para. 1

(Art. 6-1) of the Convention which, so far as relevant provides:

      "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."

      The Commission recalls that the right to honour and reputation

is a "civil right" within the meaning of Article 6 para. 1

(Art. 6-1) (see eg. No. 808/60, ISOP v. Austria, Dec. 8.3.62, Yearbook

5 pp. 108, 122; No. 7116/75, X v. Federal Republic of Germany, Dec.

4.12.76, D.R. 7 p. 91; No. 10877/84,  Wallen v. Sweden, Dec. 16.5.85,

D.R. 43 pp. 184, 186; No. 11430/85, Sciarretta v. Italy, Dec. 16.10.85,

D.R. 50, p. 191; No. 10594/83, Munro v. U.K., Dec. 14.7.87, D.R. 52,

p. 158).

      The Commission further recalls that for the "civil rights" limb

of Article 6 para. 1 (Art. 6-1) to be applicable, there has to be a

"determination" of a civil right ( a "contestation").  It is clear from

the case-law of the Court that for proceedings to amount to a

"contestation " it is sufficient that the outcome should be "decisive

for private rights and obligations" (see eg. Eur. Court H.R., Ringeisen

judgment of 16 July 1971, Series A no. 13, p.39, para. 94; Eur. Court

H.R., H v. France judgment of 24 October 1989, Series A no. 162-A,

p. 20 para. 47; Eur. Court H.R., Benthem judgment of 23 October 1985,

Series A no.97, p. 16 para. 36).

      In deciding whether there is a "contestation" as to a civil

right, the Court has held that the word "contestation" should be given

a substantive rather than a formal meaning (Eur. Court H.R., Le Compte,

Van Leuven and De Meyere judgment of 23 June 1981, Series A no. 43,

p.20, para. 45).  The Commission must therefore consider whether the

nature of the Inquiry was such as to amount in substance to a dispute,

or "contestation", the outcome of which would be decisive of the

applicant's civil right to honour and reputation.

      The Commission notes from the terms of remit that the purpose of

the Inquiry was to inquire into the actings of the various agencies

involved in the matter of the removal of nine children from Orkney and

to make recommendations.  Such an investigative inquiry culminating in

a report with recommendations does not lead to a decision determinative

of rights and in the Commission's view is not therefore a procedure to

which Article 6 para. 1 (Art. 6-1) applies.

      The Commission finds that, since the applicant's honour and

reputation were not the subject of dispute ("contestation") at the

Inquiry, neither the proceedings themselves nor the publication of the

Inquiry Report "determined" the applicant's civil right to honour and

reputation within the meaning of Article 6 para. 1 (Art. 6-1).

      It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2.    The applicant also complains of a further breach of Article 6

para. 1 (Art. 6-1) in that any action for defamation against witnesses

at the Public Inquiry would be met by a defence of absolute or

qualified privilege, thereby denying his right of access to a court to

have the justification of any attack upon his reputation determined.

      The Commission recalls that it has constantly held that Article 6

para. 1 (Art. 6-1) grants the right of access to court to have

determined the justification of attacks upon a person's reputation (see

the line of case-law derived from ISOP v. Austria cited above).

      Article 6 para. 1 (Art. 6-1) does not in itself however guarantee

any particular content for "rights and obligations" in the substantive

law of the contracting states (see eg. Eur. Court H.R., James and

others judgment of 21 February 1986, Series A no. 98, para. 81; Eur.

Court H.R., Lithgow and other judgment of 8 July 1986, Series A no.

102, p. 70, para. 192).

      In the present case, the content of the right to protect

reputation may be regarded as limited in domestic law by the defence

of privilege. It is therefore questionable whether the existence of

this defence, the applicability and extent of which can be contested

in the courts can be construed as thereby depriving the applicant of

access to court in the determination of his "civil rights and

obligations".

      However, even assuming that the availability of the defence of

privilege, whether absolute or qualified, to any action in defamation

brought by the applicant is taken as constituting a limitation on the

right to bring defamation proceedings and therefore as a restriction

on effective access to court to vindicate the civil right of honour and

reputation (see No. 17101/90, Fayed v. United Kingdom, Comm. Rep.

7.4.93, pending before the European Court of Human Rights), the

Commission finds that the requirements of Article 6 para. 1 (Art. 6-1)

were not violated for the reasons set out below.

      The Commission recalls that the right of access to court

guaranteed by Article 6 para. 1 (Art. 6-1) is not absolute, but may be

regulated by States, which have a certain margin of appreciation,

provided the essence of the right is not impaired (see Eur. Court H.R,,

Ashingdane judgment of 28 May 1985, Series A no. 93, pp.24-25 para.s

55-57).

      The Commission must therefore examine whether the limitation on

access to court which results from the availability of the defence of

privilege pursues a legitimate aim and bears a reasonable relationship

of proportionality to that aim in the circumstances.

      The Commission notes that the limitation on access created by the

fact that witnesses at the Inquiry can avail themselves of the defence

of privilege in any subsequent defamation proceedings pursues the aim

of encouraging witnesses to be candid at the Inquiry.  The Commission

considers it to be a matter of general public interest and necessary

in a democratic society that governments appoint public inquiries to

investigate specific instances of suspected public maladministration

which have caused considerable public concern.  Publication of the

Inquiry Report enables the public to be better informed about the way

in which governmental services operate and is likely to lead to an

overall improvement in administrative standards.  The Inquiry's

recommendations may also lead to beneficial legislative or policy

changes.  In the context of this general public interest in the holding

of such investigative Inquiries, the Commission considers that the aim

of encouraging frankness in giving evidence is legitimate.

      The question remains whether the defence of privilege bears a

reasonable relationship of proportionality to this legitimate aim.  In

this respect the Commission notes that, as a matter of United Kingdom,

the witnesses at the Inquiry would enjoy only qualified privilege in

view of the investigative, non-judicial nature of the Inquiry.  There

was no adversarial issue between parties to be decided by the Inquiry

as if it was acting as a court of law.  A defamation action against

witnesses who gave evidence at the Inquiry would therefore succeed to

the extent that malice on their part could be proved.

      The Commission also notes that in the conduct of the Inquiry the

Chairman was bound by the rules of procedural propriety, so that any

unfair decision by him affecting the applicant could have been

challenged by the applicant by way of judicial review.

      In the Commission's view, the fact that the witnesses' privilege

was qualified and not absolute, and the availability of judicial review

of the proceedings at the Inquiry, provide sufficient guarantees for

persons affected which are proportionate to the general public interest

in holding investigative public inquiries at which witnesses give their

evidence with full candour.

      In the light of these considerations, the Commission finds that

the likelihood of an action for defamation being met by an effective

defence of privilege represents a limitation on the applicant's right

of access to court which does not impair the essence of that right, nor

transgress the principle of proportionality, in the determination of

the applicant's separate right to honour and reputation.  It concludes,

therefore, that there is no appearance of a violation of Article 6

para. 1 (Art. 6-1) of the Convention disclosed in this respect.

      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.

3.    The applicant also complains that the Inquiry amounted to the

determination of a criminal charge against him without a fair and

public hearing, and that he was deprived of the right to be presumed

innocent until proved guilty and the minimum right to defend himself

in person, contrary to Article 6 paras 1, 2 and 3 (c)

(Art. 6-1, 6-2, 6-3-c) respectively.

      Article 6 para. 2 (Art. 6-2) provides:

      "2.  Everyone charged with a criminal offence shall be presumed

      innocent until proved guilty according to law."

      Article 6 para. 3 (c) (Art. 6-3-c) provides, so far as relevant:

      "3.  Everyone charged with a criminal offence has the following

      minimum rights:

      ...

           c. to defend himself in person or through legal assistance

      of his own choosing ...."

      The Commission therefore has to ascertain whether there was a

"criminal charge" against the applicant  or whether he was "charged

with a criminal offence" within the meaning of the above provisions.

      The Commission recalls that these expressions are to be

interpreted as having an autonomous meaning in the context of the

Convention and not on the basis of their meaning in domestic law (see

Eur. Court H.R., Deweer judgment of 27 February 1980, Series A no.35,

p. 22 para. 42).  The prominent place held in a democratic society by

the right to a fair trial favours a substantive rather than a formal

conception of the "charge" referred to by Article 6 (Art. 6) (see Eur.

Court H.R., Adolf judgment of 26 March 1982, Series A no. 49, p. 15

para. 30).

      The notion of a "criminal charge" has been defined by the Court

for the purposes of Article 6 para. 1 (Art. 6-1) as "the official

notification given to an individual by the competent authority of an

allegation that he has committed a criminal offence" (see eg. Eur.

Court H.R. Deweer judgment, loc. cit. p. 24 para. 46; Eckle judgment

of 15 July 1982, Series A no. 51, p. 33 para. 73).  The Commission

refers also to its own case-law in which it has adopted the test of

whether the situation of the suspect has been affected by a possible

criminal prosecution (see eg.  No. 17101/90, Dec. 15.5.92, to be

published in D.R.).

      The Commission notes that the applicant was informed by the

police that he was suspected of having committed offences in relation

to child abuse. Since then it has never been stated clearly and

publicly by the competent authorities that no criminal proceedings

would be brought against the applicant. In these circumstances the

applicant could consider himself to be affected by a possible criminal

prosecution and, therefore, to be subject to a "criminal charge" within

the meaning of Article 6 para. 1 (Art. 6-1) from 27 February 1991.

      The Commission considers however that in the present case there

has been no "determination" of the criminal charge against the

applicant.  The Commission has already noted that the purpose of the

Inquiry was to inquire into the actings of the various agencies

involved in the matter of the removal of nine children from Orkney and

to make recommendations.  The Inquiry did not conduct a criminal

investigation, nor did the Inquiry Report make any findings that the

applicant had committed any criminal offence.  The Inquiry was not

determinative of the applicant's criminal liability and therefore the

criminal limb of Article 6 para. 1 (Art. 6-1) was not applicable to the

proceedings before the Inquiry. On the same basis, Article 6 para. 3

(c) (Art. 6-3-c) cannot be relied upon as requiring that the applicant

be afforded the opportunity to defend himself in the context of the

Inquiry.

      It follows that this part of the application is incompatible

ratione materiae with the provisions of the Convention within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

      As regards the complaint under Article 6 para. 2 (Art. 6-2), the

Commission considers that there is no appearance of a violation of this

provision.  The Inquiry chairman was fully aware of the need to

distinguish the relevance of evidence to the subject matter of the

Inquiry from its relevance to the truth or falsity of the allegations,

with which the Inquiry was not concerned.  He referred in his report

in the care taken in the proceedings to emphasise that references to

abuse of the children  concerned alleged abuse and that the adults

identified in them were entitled to the presumption of innocence.

      It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

4.    The applicant further complains of a breach of Article 13

(Art. 13), alleging that there are no effective remedies before a

national authority for their above Convention claims.  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 Article 13 (Art. 13) only applies to

claims which fall within the scope of one of the substantive provisions

of the Convention (see No. 6753/74, Comm. Dec. 19.12.74, D.R. 2 p. 118,

119; No.7598/76, Comm. Rep. 17.7.80, D.R. 21 p.5, 35).  To the extent

that the Commission has already found that Article 6 para. 1, 2 and

3 (c) (Art. 6-1, 6-2, 6-3-c) were not applicable to the Inquiry

proceedings, it follows that there is no basis in the present case for

the applicability of Article 13 (Art. 13) in conjunction with those

complaints which the Commission finds incompatible ratione materiae.

      In regard to the other complaints, the Commission recalls that

Article 13 (Art. 13) of the Convention does not require a remedy under

domestic law in respect of every alleged violation of the Convention.

It only applies if the applicant can be said to have an "arguable

claim" of a violation of the Convention (Eur. Court H.R., Boyle and

Rice judgment of 27 April 1988, Series A no. 131, p. 23 para. 52).  The

Commission  has found above that the applicant's remaining complaints

under Article 6 (Art. 6) of the Convention are manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

In the light of the reasons upon which those findings are based, the

Commission also considers that the facts of the present case fail to

disclose an "arguable claim" of a violation of these provisions and the

applicant therefore cannot derive from Article 13 (Art. 13) of the

Convention a right to a remedy for these Convention claims.  It follows

that to this extent the applicant's complaint under Article 13

(Art. 13) of the Convention is manifestly ill-founded.

      For these reasons, the Commission by a majority

      DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber         President of the First Chamber

      (M.F. BUQUICCHIO)                           (A. WEITZEL)

 

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