AS TO THE ADMISSIBILITY OF
Application No. 29424/95
by Bernard William REES
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 27 November 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
L. LOUCAIDES
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
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 25 August 1995 by
Bernard William REES against the United Kingdom and registered on
1 December 1995 under file No. 29424/95;
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
detained in HM Prison Full Sutton.
A. Particular circumstances of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 29 January 1992 five men (three British and two Belgians) were
arrested in Kortrijk in Belgium in possession of 1 kg of cocaine, 8 kg
of amphetamine and 70 ecstasy tablets. The case involved importation
from Belgium and distribution within the United Kingdom of very large
quantities of illegal drugs. All five men were convicted by a Belgian
court of drug trafficking between Holland and Belgium. It was not
disputed that they had conspired to import drugs into the United
Kingdom.
On 28 April 1992 the applicant and a number of other persons were
arrested in London and South Wales.
In March 1993 a trial took place before the Newport Crown Court.
The applicant and other four co-accused were charged with conspiracy
to import and supply cocaine and amphetamine between 1 October 1991 and
1 May 1992. All accused denied having been involved in drugs and none
of them gave evidence before the jury. They claimed that they had been
falsely implicated in the offences.
The prosecution asserted that the applicant had "masterminded"
the whole operation, that he had been the "general" in South Wales and
one of the co-accused his counterpart in London. The prosecution
alleged that between October 1991 and April 1992 there had been at
least two successful importations of drugs into the United Kingdom.
It was further submitted that a third importation had been prevented
by Anglo-Belgian police co-operation resulting in an arrest of drug
traffickers in Belgium in January 1992 and seizure of drugs.
The prosecution case fell into four broad categories of evidence:
observations by police officers, flights of the accused in private
planes to and from the United Kingdom and Belgium and associated
documentation, telephone communications within the United Kingdom and
Belgium (a schedule was produced) and matters resulting from the arrest
and search of the accused and their homes.
The evidence disclosed that on a number of occasions police
officers had arrived at a precise location of a meeting of the co-
accused, or that they had arrived there before the defendants. It was
submitted that such police action could have only occurred as a result
of advance knowledge derived from either a covert electronic
surveillance or an informant.
A number of phone calls to and from persons alleged to have been
involved in the conspiracy were set out in a schedule. This included
phone calls made by an unidentified person in Belgium to a telephone
number in the United Kingdom and phone calls between all co-accused at
a time and from a place which the prosecution asserted was relevant to
the conspiracy. The schedule came from computer printouts of recorded
calls from each subscriber number.
Two different sets of exhibits concerning the police interviews
of the five defendants were introduced by the prosecution: (1) unedited
tape recordings; (2) an edited version of a transcript of the
recordings from which prejudicial material had been removed. The
applicant alleges that certain words were inserted into two questions
"to make understandable what everybody understood in the
circumstances".
The jury were not provided with the original recordings in the
course of the trial. When the jury retired to deliberate, they were
given, among other exhibits, the edited transcript. Nevertheless, the
trial judge told the jurors in his final directions that they could
request "any other original exhibits", and that it would be sent to
them if asked on an "all things being equal" basis. He confirmed that
if there was any problem in supplying any further exhibits requested
by the jury, they would be called back into court to discuss it.
Shortly after retiring to consider their verdict, the jury sent
a note requesting the trial judge to provide them with the tapes of the
police interviews of all five co-accused.
The trial judge, after consultations with the Crown and counsels
of the accused, refused the jury's request. He considered that:
"In this case, which has not been without ... difficult
points from the very first morning, another one has arisen
after the retirement of the jury with a note. The note
reads: "Is it possible to hear the tapes of the police
interviews of all five defendants?
I preface my remarks by making these observations. No
counsel in this case at any stage has asked that the jury
should hear the tapes of interviews. There are no alleged
confessions, no allegations have been made against the
police officers in relation to the conducting of the
interviews, no issue has been raised at any stage about
tones of voice or ways of speaking. Agreed transcripts in
edited form, and in [accused W.]'s case in summarised form,
have been put before the jury. The substantial editing has
been done in order to remove prejudicial material.
The jury now ask their question. If I permit such a
course, and I have a discretion, the following practical
matters arise. Firstly, the tapes will have to be edited.
That will take up to about 24 hours from now, and then they
will have to be heard by me and counsel before a decision
can be made as to whether the edited versions are
acceptable to be heard by the jury. In their unedited form
they last approximately three and a half hour, if my
mathematics is correct, so there is no possibility of the
jury's having the tapes until Friday morning. If they were
to have them then they would have to listen to them for, I
presume, at least two to two and a half hours. They
retired this morning, Wednesday, at about eleven o'clock in
a case where they have been hearing evidence since 6 May so
the practical difficulties of permitting them to hear the
tapes are very great indeed, in my judgment.
Counsel for [accused W.] does not wish the jury to hear the
tape of his client's interview as it seems it could not be
edited in any way that would be satisfactory. [The
applicant]'s counsel does wish the jury to hear the tape of
his client's interview. Other counsels wish to hear edited
versions before deciding.
I think there is a danger of prejudice to a defendant in
the circumstances of this case if the jury were not to hear
his interview and they were to hear others, I have to
balance all these matters. I have considered guidance in
the cases of Riaz and Burke 94 Cr. App. R. 339 and Emmerson
92 Cr. App. R. 284. In the exercise of my discretion, and
in particular the huge practical difficulties and problems
and timing of this request I intend to tell the jury that
it is not possible at this stage for them to hear the
tapes."
On 22 July 1993 the applicant and two of his co-accused were
convicted of conspiracy to import and supply controlled drugs. On
22 October 1993 the applicant was sentenced to 13 years' imprisonment.
Following the conviction, the applicant's counsel drafted, on
behalf of the applicant, ten grounds of appeal against the conviction
and sentence in which the last one concerned the trial judge's refusal
of the jury's request. The arguments were summarised as follows:
"The learned judge wrongly refused a request from the jury
when they retired that they should be supplied with the
original interviews tapes. The request was rejected on the
basis of convenience and the time required to amend the
tapes of co-defendants. No such difficulties were present
in the applicant's tape and his counsel urged the learned
judge to comply with the request."
On 18 February 1994 the single judge refused an application for
leave to appeal on either basis. The judge considered inter alia that:
"If [the tapes] they were not played to the jury in the
course of the trial, it was inappropriate to play them once
the jury had retired, the more so if there were editing
difficulties."
On 28 July 1994 the applicant renewed his application for leave
to appeal before the Full Court of Appeal.
On 10 April 1995 the hearing of the appeal took place. The Court
of Appeal upheld the applicant's conviction. The last ground of appeal
was dismissed in the following terms:
"The last matter which is canvassed before this court
relates to the interviews of [the applicant]. The
submission is made that when the jury, after they had been
out deliberating for some time, came back and asked to hear
tapes of the interviews of all five defendants, that
request should have been acceded to by the learned judge.
There was no difficulty in providing the jury with tapes of
this applicant's interviews, although it is accepted that
it might well have caused a 24-hour delay before tapes
could have been provided of the interviews of other
defendants. In order to understand that submission and the
attitude of this court to it, it is necessary to explain
that, during the course of the trial, the tapes of the
interviews of all the defendants had not been played before
the jury; they contained, in some cases, considerable
amounts of prejudicial and inadmissible evidence, for
example in relation to time spent in French jails, which
had very properly been excluded from the transcript of the
interviews with which the jury were provided. We are told
that in the course of final speeches prosecuting counsel
had sought to comment upon the 'no comment' which had been
made by the [defendants] in course of interviews ... We
shall come in a moment to the way in which the judge dealt
with that. But, so far as [the applicant]'s application
for leave is concerned, it suffices to say that, bearing in
mind the acceptance of [his counsel] that the jury's
request could not have been satisfactorily answered in
relation to the other defendants without some 24 hours or
so delay, the practicability and practicality of playing
only one defendant's tapes of interview was manifestly a
matter for the judge's discretion. We are wholly
unpersuaded, having regard to the circumstances to which we
have referred and to which in a moment we shall return in
relation to the application on behalf of [the applicant's
co-accused], that he exercised his discretion in an
inappropriate fashion.
Accordingly, so far as [the applicant]'s application is
concerned, in relation to his conviction, we take the view
that there are no arguable grounds for the Court to
consider and that application is dismissed."
B. Relevant domestic law and practice
In R. v. Emmerson (1992 Cr. App. R. 294) the Court of Appeal
considered it "... permissible to accede to a request made by a jury
after it has required to hear the tape recording of the police
interview with the defendant that has been made an exhibit but which
has not previously been played to the jury".
The case of R. v. Riaz and Burke (1995 Cr. App. R. 339) was
summarised in the present case as "... in essence the position would
seem to be that tapes were exhibited and in what I might call normal
circumstances, even if they have not been played prior to the jury
retirement, the jury would be entitled to hear them; and those cases
were essentially concerned with situation where in one case the jury
were said to be entitled to hear tapes after their retirement and, in
the other, where they were precluded from hearing them after their
retirement for a number of reasons".
COMPLAINTS
The applicant complains, under Article 6 of the Convention, that
the trial judge prevented the jury from knowing all the actual,
complete and correct evidence supporting allegations he made in his
defence by dismissing the jury's request to hear a tape of police
interviews, in spite of it having been introduced on trial by the
prosecution as the only piece of original evidence on his behalf.
The applicant submits that the "prejudicial material" was removed
from the edited transcript because it contained matters irrelevant to
the case. He claims that certain words were inserted into some
questions and distorted and biased the meaning of his answers. The
applicant contends that he had not been informed about these
alterations, not even before the edited version of the transcript was
given to the jury.
THE LAW
The applicant complains that the trial judge prevented the jury
from knowing all the actual, complete and correct evidence supporting
allegations he made in his defence by dismissing the jury's request to
hear a tape of police interviews, in spite of it having been introduced
on trial by the prosecution as original evidence. He invokes Article 6
(Art. 6) of the Convention which, insofar as relevant, reads as
follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
(b) to have adequate time and facilities for the preparation of
his defence;
..."
The Commission recalls that according to Article 19 (Art. 19) of
the Convention, the duty of the Commission and of the European Court
of Human Rights is to ensure the observance of the engagements
undertaken by the Contracting States in the Convention. In particular,
it is not their function to deal with errors of facts or of law
allegedly committed by a national court unless and insofar as they may
have infringed rights and freedoms protected by the Convention (cf.
Eur. Court HR, the Schenk v. Switzerland judgment of 12 July 1988,
Series A no. 140, p. 29, para. 45).
While Article 6 (Art. 6) of the Convention guarantees the right
to a fair trial, it does not lay down any rules concerning the national
courts' internal procedure, which is therefore primarily a matter for
regulation under national law. In particular, none of the Convention's
provisions expressly requires that a jury must be allowed to hear tapes
of police interviews of an accused if it has an edited transcript at
its disposal.
The question of whether the case was given a fair hearing must
always be decided on the basis of an appraisal of the trial as a whole,
including the decision of the appellate court (cf. No. 9000/80,
Dec. 11.3.83, D.R. 28 pp. 127, 134; Eur. Court HR, the Edwards v. the
United Kingdom judgment of 16 December 1992, Series A no. 247-B, p. 34,
para. 34).
In the present case the applicant's conviction was based on a
series of elements such as: the observations by police officers,
flights of all co-accused in private planes to and from the United
Kingdom and Belgium and associated documentation, telephone
communications within the United Kingdom and Belgium and matters
resulting from the arrest and search of the accused and their homes and
not solely or even essentially on his police interviews, as the
applicant claims.
The Commission notes that the applicant, who was represented by
counsel, had the opportunity to address the court and to submit
whatever he found relevant to his case. In particular, neither the
applicant nor his counsel at any stage of the trial asked for the jury
to hear the tapes of the interviews. They made no allegations against
the police officers in relation to the conducting of the interviews and
no issue was raised at any stage about tones of voice or ways of
speaking. Transcripts in edited form agreed by the defence and the
prosecution were put before the jury. The substantial editing was done
in order to remove prejudicial material.
The Commission notes that that the trial judge's decision to
refuse the request from the jury to be supplied with the original
interviews tapes was taken in exercise of discretion of the trial
judge, in accordance with the domestic case-law, i.e. R. v. Emmerson
and R. v. Riaz and Burke (cf., mutatis mutandis, the Gillow v. the
United Kingdom judgment of 24 November 1986, Series A no. 109, p. 28,
para. 71). The applicant was able to put and did put this point to the
appeal courts, which were of the opinion that - given that the
applicant had never requested the tapes to be played and the technical
problems which would be caused by the necessary editing - the judge
rightly exercised his discretion.
The Commission finds that no lack of fairness arose from the
judge's refusal to have edited tapes prepared for the jury: the jury
was ultimately required to decide the case on the basis of precisely
the evidence which was put before the jury.
In these circumstances the Commission finds that the applicant's
trial, when regarded as a whole, cannot be considered to have been
conducted in a manner contrary to Article 6 (Art. 6) 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, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy