RAGHIP v. THE UNITED KINGDOM



                      Application No. 15433/89

                      by Engin RAGHIP

                      against the United Kingdom

      The European Commission of Human Rights sitting in private on

31 March 1992, the following members being present:

           MM.   C.A. NØRGAARD, President

                 J.A. FROWEIN

                 S. TRECHSEL

                 G. SPERDUTI

                 E. BUSUTTIL

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H.G. SCHERMERS

                 H. DANELIUS

           Mrs.  G. H. THUNE

           Sir   Basil HALL

           MM.   F. MARTINEZ RUIZ

                 C.L. ROZAKIS

           Mrs.  J. LIDDY

           MM.   L. LOUCAIDES

                 J.-C. GEUS

                 A.V. ALMEIDA RIBEIRO

                 M.P. PELLONPÄÄ

                 B. MARXER

                 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 9 June 1989 by

Engin Raghip against the United Kingdom and registered on

5 September 1989 under file No. 15433/89 ;

      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 1966 and resident in

London.  He is represented before the Commission by Mrs. Peirce, a

solicitor practising in London.  The facts as submitted by the parties

may be summarised as follows.

      The applicant, from a family of Turkish origin, was recorded in

probation reports prepared in 1980 and 1982 as being of low intellect

and an individual who has a high level of nervous anxiety, distrust and

fear of authority figures.

      Following the death on 6 October 1985 of Police Constable

Blakelock in the course of a riot at the Broadwater Farm Estate in

Tottenham, North London, the applicant was arrested in his home at 7.20

am on 24 October 1985 in connection with police investigations into the

matter. On arrival at the police station, the applicant signed the

custody record to the effect that he did not want to see a solicitor

at that time.  He was 19 years old at the time of his arrest and was

interrogated on 10 occasions by police officers in the absence of a

lawyer.  The interrogations took place over a period of just under five

days and amounted in total to 14 1/2 hours.

      During the course of his detention, the applicant complained of

illness and a doctor was twice called to examine him and found that he

was suffering from a mild fever, had enlarged neck glands and was

probably suffering from a "mild virus infection".  The doctor also

recorded that the applicant complained of vomiting after meals.  The

applicant also stated that he fainted on the second day of

interrogation.

      During the interrogation, the applicant at first admitted to

throwing stones at the police on 6 October.  On the third day of his

detention he was charged with affray and taken before a Magistrates'

Court, where he spoke to a solicitor for the first time.  He told the

solicitor that he did not feel that he was able to continue being

questioned by the police alone.  The police applied to the Court for

the applicant to be remanded in custody for further questioning and the

Magistrate ordered that a solicitor should be present during the course

of any subsequent police questioning. Despite this order, the applicant

continued to be interviewed for two further days in the absence of a

solicitor.  It appears that on his return to the police station he was

asked to sign the custody record to the effect that he did not require

a solicitor and he did so.

      On 29 October 1985, the applicant appeared before the

Magistrates' Court and remained in custody on a charge of affray. The

applicant was subsequently charged with murder, riot and affray and

tried with five other defendants.  The trial took place from 14 January

until 19 March 1987 before Mr. Justice Hodgson. Three of the

defendants, who were under 17 years of age, had the charges of murder

dismissed by the judge, as a result of oppressive police treatment and

the unreliability of their admissions.

      The evidence against the applicant was based solely on the

statements made to the police during interrogation.  The applicant was

recorded as having stated that he had been in the vicinity of a police

officer who was being attacked but that he had been unable to get near

him.  He allegedly said that he had tried to get in to hit him and if

he had got in he might have kicked him or hit him with a broomhandle,

but that he did not touch him as he could not get near.

      The defence did not have the benefit of a psychologist giving

evidence on the applicant's behalf.  A report had been compiled by a

psychologist which confirmed the applicant's low IQ but the

psychologist did not take into consideration the measurement of the

applicant's traits of suggestibility and compliance in terms of

providing to the police what he thought they required.  The defence did

not call the psychologist as a witness.

      The applicant's defence counsel applied in a voir dire for the

applicant's statements to the Court to be excluded on the basis of

their unreliability. The Court rejected the application. Counsel also

made a submission of "no case to answer" at the close of the

prosecution case, which was also rejected.

      The applicant was convicted of murder and riotous assembly and

sentenced to life imprisonment on 19 March 1987.  He applied for leave

to appeal to the single judge of the Court of Appeal, who refused

leave.

      His renewed application came before the full Court of Appeal on

12-13 December 1989.

      The applicant had new solicitors representing him on appeal, who

had commissioned full psychological tests on the applicant.  The

psychologist, Dr. Gisli Gudjonsson, had found that the applicant had

an IQ of 74 (below 70 is sub-normal) and that in terms of

suggestibility and compliance the applicant was abnormal.  This report,

with pre-existing probation reports and the report prepared when the

applicant entered prison custody, established that the applicant was

of barely normal IQ, had a literate age of 6 years, was in fear of

authority figures and abnormally suggestible and compliant.

      Application was made to the Court of Appeal for leave to appeal

and to call fresh evidence, in particular Dr. Gudjonsson, to testify

to the fact that any admissions obtained from the applicant were unsafe

and should not have been relied upon.

      The Court of Appeal took the view that since the applicant was

in the normal range of IQ, albeit at the lowest level, the jury would

have been able to assess intelligence and susceptibility of the

applicant for themselves when he gave evidence.  The Court found that

the new evidence was therefore not admissible and that in any case

there was no reasonable explanation for the evidence not being adduced

at the trial.  The Court also considered that even if all the

psychiatric reports had been before the judge and jury it would not

have made any difference to the outcome.  The applicant's complaints

that some of the judges' comments to the jury were unfair and that

there was no evidence on which to found the necessary intent to murder

were also held to be unfounded.  Leave to appeal was refused on 13

December 1989.

      On 4 December 1990, the Home Secretary referred the applicant's

case to the Court of Appeal under the provisions of the Criminal Appeal

Act 1968 in light of the fresh opinion as to the applicant's mental

condition given by the psychologist who had advised the defence at the

time of the  trial in 1987.

      On 5 December 1991, the Court of Appeal quashed the applicant's

convictions both in light of the new medical evidence and evidence

about the conduct of the police officer in charge of the investigation.

RELEVANT DOMESTIC LAW AND PRACTICE

Access to a solicitor in police custody

      The detention and treatment of a person whilst in police custody

is subject to the provisions of the Police and Criminal Evidence Act

1984 ("PACE") as supplemented by Code C of the Codes of Practice issued

by the Secretary of State under Section 66 of PACE. These provisions

came into force on 1 January 1986.

      Section 58 of PACE confers a right on a person who has been

arrested and is held in custody in a police station to consult a

solicitor privately at any time if he so requests.  It provides as

follows:

      "(1) A person arrested and held in custody in a police station

      or other premises shall be entitled, if he so requests, to

      consult a solicitor privately at any time.

      (2) Subject to subsection (3) below, a request under subsection

      (1) above and the time at which it was made shall be recorded in

      the custody record.

      (3) Such a request need not be recorded in the custody record of

      a person who makes it at a time while he is at a court after

      being charged with an offence.

      (4) If a person makes such a request, he must be permitted to

      consult a solicitor as soon as is practicable except to the

      extent that delay is permitted by this section.

      (5) In any case he must be permitted to consult a solicitor

      within 36 hours from the relevant time, as defined in Section

      41(2) above.

      (6) Delay in compliance with a request is only permitted -

           (a) in the case of a person who is in police detention

                      for serious arrestable offence; and

           (b) if an officer of at least the rank of superintendent

                      authorises it.

      (7) An officer may give an authorisation under the subsection

      above orally or in writing but, if he gives it orally, he shall

      confirm it in writing as soon as is practicable.

      (8) An officer may only authorise delay where he has reasonable

      grounds for believing that the exercise of the right conferred

      by subsection (1) above at the time when the person detained

      desires to exercise it -

           (a) will lead to interference with or harm to evidence

           connected with a serious arrestable offence or interference

           with or physical injury to other persons; or

           (b) will lead to the alerting of other persons suspected of

           having committed such an offence but not arrested for it;

           or

           (c) will hinder the recovery of any property obtained as

           result of such an offence.

      (9) If delay is authorised -

           (a) the detained person shall be told the reason for it;

                and

           (b) the reason shall be noted on his custody record.

      (10) The duties imposed by subsection (9) above shall be

      performed as soon as is practicable.

      (11) There may be no further delay in permitting the exercise of

      the right conferred by subsection (1) above once the reason for

      authorising delay ceases to subsist. ..."

      Section 58 is supplemented by Code C of the Codes of Practice

issued under Section 66 of PACE.

      Under Section 66 of PACE, the Secretary of State is under a duty

to issue Codes of Practice in connection with the detention, treatment,

questioning and identification of persons by police officers.  The

procedure in connection with the issuing of a Code is laid down in

Section 67.  In particular a draft Code has to be laid before both

Houses of Parliament and the Code cannot be brought into force until

each House has approved an Order to that effect.

      Section 67(8) of PACE provides that a police officer is liable

to disciplinary proceedings for a failure to comply with any provision

of a Code (unless this is precluded under Section 104 of PACE).  A Code

is admissible in evidence by virtue of subsection 11.

      Pursuant to Section 66(b) the Secretary of State issued the Code

of Practice for the detention, treatment and questioning of persons by

police officers, Code C, which applies to persons who entered police

detention after midnight on 31 December 1985.

      Where a person is brought to a police station under arrest,

Section 3.1 of the Code requires the custody officer to inform him of

his right to have someone informed of his arrest, the right to consult

a solicitor and the right to consult the various Codes of Practice

issued under Section 66 of PACE.  Under Section 3.2 of the Code the

person must be given a written notice setting out these three rights

and has the right to a copy of the custody record in accordance with

Section 2.4 and the caution in the terms prescribed by Section 10 of

the Code.

Admission and exclusion of confession evidence

      Provision about the admissibility of confession evidence and the

exclusion of unfair evidence is made in Part VIII of PACE.  These

provisions came into force on 1 January 1986.  For these purposes, a

confession includes, "any statement wholly or partly adverse to the

person who made it, whether made to a person in authority or not and

whether made in words or otherwise" (Section 82(1)(a) of PACE).

      By virtue of Section 76 of PACE, a confession by an accused

person may be given in evidence against him.  Where given, it is

admissible without it having to be corroborated.  The Section, however,

contains safeguards relating to the circumstances in which the

confesson came to be made and which may mean that the confession must

be excluded.  Under subsection 2 the trial court is required not to

allow the confession to be given in evidence if it is represented to

the court that it was or may have been obtained by oppression or in

consequence of something said or done which was likely to render the

confession unreliable unless the prosecution can prove to the court,

beyond a reasonable doubt, that the confession was not so obtained.

The court can, of its own motion, require the prosecution to prove that

a confession on which the prosecution proposes to rely was not obtained

by oppression or in circumstances likely to render it unreliable.  In

R v. Fulling [1987] 2 WLR 913, which was decided by the Court of Appeal

in February 1987 during the applicant's trial, it was held that

"oppression" was to be given its ordinary dictionary meaning and the

court cited the Shorter Oxford English Dictionary definition, "exercise

of authority or power in a burdensome, harsh, or wrongful manner;

unjust or cruel treatment of subjects, inferiors, etc; the imposition

of unreasonable or unjust burdens."  By virtue of subsection 8 of

Section 76, oppression includes torture, inhuman or degrading

treatment, and the use of threat of violence (whether or not amounting

to torture).

      Section 78 confers on a court the power to exclude evidence on

which the prosecution proposes to rely if it appears to the court that,

having regard to all the circumstances (including those in which the

evidence was obtained), to admit the evidence would render the

proceedings unfair.

      In R v. Mason [1988] 1 WLR 139, the Court of Appeal held that

Section 78 applied to all evidence which might be introduced in the

trial by the prosecution and that, accordingly, a trial judge had a

discretion whether to exclude a confession in the interests of the

fairness of the trial.  The Court also held that the Section did no

more than re-state the power which judges had at common law before the

Section was passed to exclude evidence.

      In R. v. Samuel [1988] 2 WLR 920, the Court of Appeal, which

included Mr. Justice Hodgson, dealt with the admissibility of

confession evidence given after, the Court held, the accused had been

wrongly denied access to a solicitor.  The Court held that denial of

the right conferred by Section 58 of PACE can lead to the exclusion of

evidence obtained at unlawful interviews conducted after the denial

either by the exercise of the power in the trial judge conferred by

Section 78(1) or, where the prosecutor fails to satisfy the court that

the denial did not amount to oppression, under Section 76.  In the

circumstances of this case, the Court of Appeal found that the reasons

given for denial of access to a solicitor, namely that the solicitor

might inadvertently or otherwise hinder further enquiries, was

insufficient given that there was no specific reason to suspect the

solicitor or to anticipate that he would be hoodwinked by the accused

person.  The conviction which was based on confession evidence

allegedly obtained after the denial of access to a solicitor was

quashed.

New evidence on appeal

      In regard to the calling of fresh evidence, the powers and duties

of the Court of Appeal are set out in section 23 of the Criminal Appeal

Act 1968, which provides:

        "(1) For purposes of this part of this Act the Court of

        Appeal may, if they think it necessary or expedient in

        the interests of justice:

        ...

        (b) order any witness who would have been a compellable

        witness in the proceedings from which the appeal lies

        to attend for examination and be examined before the

        Court, whether or not he was called in those proceedings

        ...

        (2) Without prejudice to section (1) above, where evidence

        is tendered to the Court of Appeal thereunder the Court

        shall, unless they are satisfied that the evidence, if

        received, would not afford any ground for allowing the

        appeal, exercise their power of receiving it if (a) it

        appears to them that the evidence is likely to be credible

        and would have been admissible in the proceedings from

        which the appeal lies on an issue which is the subject of

        the appeal; and (b) they are satisfied that it was not

        adduced in those proceedings but there is a reasonable

        explanation for the failure to adduce it."

COMPLAINTS

      The applicant has complained under Article 6 of the Convention

that he did not receive a fair trial as a result of the following:

a) important potential evidence on his behalf was not allowed to be

heard or a retrial ordered so that it could be heard by the Court of

Appeal - similar psychological evidence concerning one of the juveniles

at the trial had led to the charge of murder being dismissed;

b) the only evidence against the applicant was obtained when the

applicant, an extremely vulnerable individual, was being interrogated

without independent legal advice;

c) the interrogation of the applicant continued in violation of the

order of the Court that a solicitor should be present during further

interrogations.

      The applicant has also complained of the restrictive approach of

the Court of Appeal to the admission of fresh evidence and that its

unwillingness to order a retrial amounts to a violation of the concept

of a fair trial in that evidence for the defence is not heard in the

same circumstances as the evidence of the prosecution and that there

is consequently no equality of arms particularly where defendants and

their families are inexperienced and vulnerable and their lawyers do

not address significant questions at trial relating to their defence.

      The applicant has further submitted that the failure of the Court

of Appeal means that no remedy is available in relation to the

violation of Convention rights contrary to Article 13 of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

      The application was introduced on 9 June 1989 and registered on

5 September 1989.

      On 2 October 1989, the Commission decided to communicate the

application to the Government pursuant to the Commission's Rules of

Procedure and to invite them to submit written observations on the

admissibility and merits.

      The Government's observations were submitted on 6 March 1990

after one extension in the time-limit.  The applicant's observations

were submitted on 29 June 1990 also after one extension in the

time-limit.

      By letter dated 8 December 1991, the Government informed the

Commission that the Court of Appeal had quashed the applicant's

convictions on 5 December 1991. By letter dated 27 March 1992 the

applicant's solicitor informed the Commission that the applicant wished

to withdraw his application.

REASONS FOR THE DECISION

      The Commission recalls that the applicant's convictions have been

quashed and that he wishes to withdraw his application.

      In these circumstances the Commission finds that the applicant

does not intend to pursue his application before the Commission since

the matter has been resolved.  The Commission further considers that

respect for Human Rights as defined in the Convention does not require

it to continue the examination of the application.

      It follows that the application may be struck off the list of

cases pursuant to Article 30 para. 1 of the Convention.

      For these reasons, the Commission unanimously,

      DECIDES TO STRIKE THE APPLICATION OUT OF THE LIST OF CASES.

Secretary to the Commission                 President of the Commission

(H. C. KRUGER)                                    (C. A. NØRGAARD)

 

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