IROEGBU v. the UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                      Application No. 15847/89

                      by Nwachukwa IROEGBU

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 3 December 1990, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

             Mrs.  G. H. THUNE

             Sir  Basil HALL

             Mr.  F. MARTINEZ RUIZ

             Mrs.  J. LIDDY

             MM.  L. LOUCAIDES

                  A.V. ALMEIDA RIBEIRO

                  M.P. PELLONPÄÄ

             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 26 September

1989 by Nwachukwa IROEGBU against the United Kingdom and registered

on 30 November 1989 under file No. 15847/89;

        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 1960 and resident

in London.  The facts as submitted by the applicant may be summarised

as follows.

        On 5 November 1986, the applicant was arrested in connection

with drugs offences.  During the subsequent questioning by the police,

the applicant alleges that he requested a solicitor repeatedly but the

police denied him access to a solicitor.  The police alleged that

during this period the applicant made confessions concerning the drugs

offences.

        The applicant was tried in the Crown Court on charges of

possession of cannabis with intent to supply.  He was convicted and

sentenced to three years' imprisonment.

        The applicant's counsel advised against appealing and his

legal aid was withdrawn.  The applicant lodged an appeal himself and

on 25 May 1988, the Full Court granted him leave to appeal against

conviction and sentence.  He was also granted legal aid for

representation at the hearing of the appeal.

        The appeal was heard before the Court of Appeal on

28 July 1988.  The main grounds of appeal were:

        (1)  that the judge erred in law in allowing as evidence the

        admissions allegedly made by the applicant since the

        requirements of the Police and Criminal Evidence Act 1984

        and the Code of Practice had not been complied with;

        (2)  that the judge in his summing-up went beyond justifiable

        comment in expressing his own view of the applicant's guilt

        and showed undue bias.

        As regards the first ground, the Court of Appeal held that

insofar as there was substance in this complaint, counsel for the

defence had not objected to the evidence of the admissions under

Section 78 of the Police and Criminal Evidence Act 1984 during the

trial and the matter could not now be dealt with in the Court of

Appeal.

        As regards the second ground, the Court of Appeal had regard

to one particular passage from the transcript of the judge's

summing-up, where the judge is recorded as saying:

"Mr.  McGrail, for the defence, has his instructions, but

grasping the nettle, because it is obvious to everyone in

this court, is it not, that I think his client is lying;

lying cunningly, the prosecution say, in that he admits

matters of detail that do not point to his guilt, but denies

- and I think 'ducks and weaves' was one of the phrases used

by counsel for the crown - anything which he thinks hurts his

case..."

        The Court held, however, as follows:

"...it appears such a surprising and unlikely observation

for an experienced judge to have made, that the court caused

the position to be checked with the shorthand writer who

stated in a letter brought to the notice of counsel, that on

checking it was possible that the words 'I think' were a

mis-transcription for the word 'either'.  Such an

explanation would make good logical sense in the passage

concerned and would of course be no source of surprise to

the court.  However, prosecuting counsel present at the

trial has confirmed to us that the words 'I think' are

indeed correct and this court deals with the appeal on that

basis.

It must be said at once that, in the view of this court, no

such comment should ever be made by a judge in the course of

summing-up even in a case in which, as prosecuting counsel

told us was the position here, the manner or content of a

witness's evidence appeared to warrant incredulity.  It is

axiomatic that it is the function of the judge to remain,

and to appear to remain, objective, leaving the jury, in

accordance with customary forms of direction, to decide the

facts for themselves.  While the judge should (as he did

elsewhere in his summing-up) instruct the jury to ignore, if

they disagree with it, any view of the evidence which the

judge may appear to express, it can never be appropriate for

a judge to give an express indication of his own misbelief in

relation to the evidence of a witness, let alone that of the

defendant.

That said, however, a single remark of that kind will not

ipso facto render a verdict which accords with the judge's

indication of view unsafe or unsatisfactory, and indeed this

court does not consider that it did so in this case.  Not

only did the judge give a customary form of direction at the

outset, but throughout his judgment, in the passages

above-mentioned and elsewhere, he repeatedly made clear to

the jury not only that the issue was one of credibility, but

that the decision was entirely one for them.  Whilst the

court considers that, taken alone, the indication complained

of was one which should never have been given, when the

summing-up is read as a whole we do not consider that the

jury would have been misled or improperly influenced by it."

        The applicant's appeal was therefore dismissed.  His

application for leave to appeal to the House of Lords was dismissed

on 15 May 1989.

COMPLAINTS

        The applicant complains that he did not receive a fair trial

or appeal contrary to Article 6 of the Convention.  He complains that

the Court of Appeal dismissed his appeal despite the fact that it

considered that the alleged confessions were inadmissible.  He

complains that he was denied access to a solicitor by the police and

convicted unfairly on disputed evidence obtained in the absence of a

solicitor.  He complains that the judge's conduct was prejudicial and

unfair and that his defence counsel acted unfairly and against his

interests.

        The applicant also invokes Article 14 of the Convention.

THE LAW

        The applicant complains that he did not receive a fair trial

contrary to Article 6 para. 1 (Art. 6-1) of the Convention, which

provides as follows in the first sentence:

        "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 applicant has complained of a number of matters as having

deprived him of a fair trial.  The Commission has examined each of

these in turn.

1.      The applicant complains that he was denied access to his

solicitor by the police and that the alleged confession obtained during

this period was admitted in evidence at his trial.

        However, the Commission is not required to decide whether or

not the facts alleged by the applicant disclose any appearance of a

violation of Article 6 para. 1 (Art. 6-1) as, under Article 26

(Art. 26)of the Convention, it may only deal with a matter after

all domestic remedies have been exhausted according to the

generally recognised rules of international law.

        The mere fact that the applicant has submitted his case to the

courts does not of itself constitute compliance with this rule.  It is

also required that the substance of any complaint made before the

Commission should have been raised during the proceedings concerned.

In this respect the Commission refers to its established case-law (see

e.g.  No. 1103/61, Yearbook 5 pp. 168, 186; No. 5574/72, Dec. 21.3.75,

D.R. 3 pp. 10, 15; No. 10307/83, Dec. 6.3.84, D.R. 37 pp. 113, 120).

        In the present case the applicant did not, during his trial,

challenge the admissibility of this evidence under Section 78 of the

Police and Criminal Evidence Act 1984, with the result that the Court

of Appeal was unable to examine this aspect of his appeal.  Moreover,

an examination of the case as it has been submitted does not

disclose the existence of any special circumstances which might have

absolved the applicant, according to the generally recognised rules of

international law, from raising his complaint in the proceedings

referred to.

        It follows that the applicant has not complied with the

condition as to the exhaustion of domestic remedies and his

application must in this respect be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

2.      The applicant has also complained that the judge was

prejudiced and unfair.

        The Commission recalls that the applicant brought his

complaints concerning the judge's comments in his summing-up before

the Court of Appeal.

        The Commission examined a similar complaint concerning an

alleged error in a judge's summing-up in Application No. 10361/83

(Lynch v. Ireland, Dec. 9.5.84, to be published in D.R.).  In this

application it held as follows:

        "The Commission recalls its function in examining

        whether or not a trial has been fair within the meaning

        of Article 6 para. 1 (Art. 6-1) of the Convention.  It is

        not called upon to decide whether the domestic courts have

        correctly assessed the evidence before them, but only 'whether

        evidence for and against the accused has been presented in

        such a way, that he has had a fair trial' ...

        In addition, as the Commission stated in the Nielsen case

        (Application No. 343/57, Comm.  Rep. 15.3.61, YB4 p. 548),

        the question whether the proceedings have been unfair must

        be decided:

        'on the basis of a consideration of the trial as a whole

        and not on the basis of an isolated consideration of one

        particular incident.  Admittedly, one particular incident

        or one particular aspect ... may have been so prominent

        or may have been of such importance as to be decisive for

        the general evaluation of the trial as a whole.

        Nevertheless, even in this contingency, it is on the basis

        of an evaluation of the trial in its entirety that the

        answer must be given to the question whether or not there

        has been a fair trial' ...".

        In the present case, the Court of Appeal found that while one

of the judge's remarks should not have been made, there was no unsafe

or unsatisfactory verdict since in the context of the summing-up it

was made clear to the jury that the issue of credibility was entirely

one for them.  The Court concluded that the jury would not have been

misled or improperly influenced by the judge's remark.

        In such circumstances the Commission finds no appearance of

a violation of Article 6 para. 1 (Art. 6-1) on this ground.

        It follows that this complaint is manifestly ill-founded

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

3.      The applicant has also complained of the conduct of his

defence by his barrister.

        However, under Article 25 para. 1 (Art. 25-1) of the Convention,

the Commission may only receive an application from a person,

non-governmental organisation or group of individuals where the

applicant alleges a violation by one of the Contracting Parties of the

rights and freedoms set out in the Convention and where that Party has

recognised this competence of the Commission.  The Commission may not,

therefore, receive applications directed against private individuals

such as, in this case, the applicant's lawyer.  In this respect the

Commission refers to its established case-law (see e.g.  No. 172/56,

Dec. 20.12.57, Yearbook 1 pp. 211, 215; No. 852/60, Dec. 19.9.61,

Yearbook 4 pp. 346, 352; No. 9022/80, Dec. 13.7.83, D.R. 33 pp. 21, 36).

        It follows that this part of the application is incompatible

ratione personae with the provisions of the Convention within the

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

4.      The applicant has also invoked Article 14 (Art. 14) of the

Convention, which prohibits discrimination in the enjoyment of the

rights set out in the Convention.

        The Commission has examined the applicant's complaint as

submitted by him.  However, the Commission finds that it does not

disclose any appearance of a violation of this provision.

        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.

        For these reasons, the Commission, by a majority

        DECLARES THE APPLICATION INADMISSIBLE.

  Secretary to the Commission         President of the Commission

         (H.C. KRÜGER)                      (C.A. NØRGAARD)

 

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