AS TO THE ADMISSIBILITY OF
Application No. 12253/86
by Thomas Fitzpatrick MOFFAT
against the United Kingdom
The European Commission of Human Rights sitting in private on
4 March 1987, the following members being present:
MM. C.A. NØRGAARD, President
G. SPERDUTI
J.A. FROWEIN
E. BUSUTTIL
G. JÖRUNDSSON
S. TRECHSEL
B. KIERNAN
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
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
6 December 1985 by Thomas Fitzpatrick MOFFAT against the United
Kingdom and registered on 1 July 1986 under file No. 12253/86;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
FACTS
The applicant is a British citizen born in 1955 and resident
in Glasgow. He is currently serving a 14 year prison sentence in
Peterhead. The facts as submitted by the applicant may be summarised
as follows.
The applicant was arrested and charged with armed robbery and
various other offences. He was tried at the High Court in Airdrie in
April and May 1982. The applicant had instructed his counsel to apply
to adjourn the trial in order to allow the applicant to prepare his
defence fully. The Court granted an adjournment of one day. The
applicant's counsel failed to apply as instructed for a further
adjournment. The applicant claims that as a result he was not given
the statutory 29 days notice from the service of indictment to his
trial. The applicant also alleges that he did not see the police
precognitions until 6 days before the trial and he then became aware
that the police evidence against him was fabricated and included the
planting of incriminating evidence in his home and evidence of
fabricated statements allegedly made by him to the police. His
defence during his trial was accordingly based on the allegation that
the police witnesses were giving fabricated evidence. The jury
however found the applicant guilty of armed robbery on 13 May 1982 and
he was sentenced to 18 years imprisonment.
The applicant appealed against conviction under S. 228 (2) of
the Criminal Procedure (Scotland) Act 1975 on the basis that he had
new evidence to put before the appeal court and that the trial judge
had made prejudicial remarks to the jury concerning the credibility of
a police witness. The court held that any irregularity in the judge's
summing-up had been corrected by a further explanation to the jury by
the judge. The court refused to take into account certain evidence
which had been available at the time of trial and held that the new
evidence which had been brought forward by the applicant was not
conclusive and would not have had any effect on the verdict of the
jury. His appeal against conviction was therefore dismissed on
3 March 1983, though his sentence was reduced by four years.
COMPLAINTS
The applicant complains that he has been wrongly convicted.
He complains that he was not given adequate time and facilities for
the preparation of his defence. He also complains of being unable to
present certain witnesses which would have proved the inconsistency of
the police evidence, and that the decision of the appeal court as to
the new relevance of the evidence deprived him of a fair hearing
before a jury.
The applicant invokes Article 6 para. 3 (b) and (d), Articles
8 and 10 of the Convention.
THE LAW
The applicant alleges violations of Articles 6 para. 3 (b) and
(d), 8 and 10 (Art. 6-3-b, 6-3-d, 8, 10) of the Convention.
However, the Commission is not required to decide whether or
not the facts alleged by the applicant disclose any appearance of a violation
of this provision, as Article 26 (Art. 26) of the Convention provides that the
Commission "may only deal with the matter... within a period of six months from
the date on which the final decision was taken".
In the present case the decision of the appeal court which was
the final decision regarding the subject of this particular complaint
was given on 3 March 1983 whereas the application was submitted to the
Commission on 6 December 1985, that is more than six months after the
date of this decision. While it is true that the applicant had
previously written to the Commission, the Commission finds that he had
not thereby effectively introduced the present application since he
did not disclose the basis of his complaint until his letter dated
6 December 1985.
It follows that this part of the application has been
introduced out of time and must be rejected under Article 27 para. 3
(Art. 27-3) of the Convention.
It follows that the application must be rejected under Article
27 para. 3 (Art. 27-3) of the Convention as having been introduced out of time.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)