AS TO THE ADMISSIBILITY OF
Application No. 19599/92
by S.K.
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 1 September 1993, the following members being present:
MM. A. WEITZEL, President
C.L. ROZAKIS
F. ERMACORA
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
Sir Basil HALL
Mrs. J. LIDDY
MM. M.P. PELLONPÄÄ
G.B. REFFI
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 20 December 1991
by S.K. against the United Kingdom and registered on 10 March 1992
under file No. 19599/92;
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, who has both British and Irish nationality, was
born in 1968. He is represented before the Commission by
Messrs. P. J. McGrory and Co., solicitors, Belfast.
The facts of the case, as submitted by the applicant's
representative, and which are apparent from the documents lodged, may
be summarised as follows.
The applicant was convicted on 30 March 1990 of the murder of two
soldiers and of other offences. He was sentenced to life imprisonment,
the mandatory penalty for murder, and two periods of imprisonment in
respect of the other offences.
The evidence against the applicant during his trial consisted of
a number of eye-witness accounts, and also evidence from films and
photographs taken by cameramen from various television companies, and
a video recording taken from an army helicopter which was hovering
overhead.
The judge found that the applicant had taken an active part in
the events leading up to the death of the two soldiers, and further
held:
"that [the applicant] contemplated that the murder of the
soldiers was one of the range of the crimes which might be
carried out by the persons who took charge of imprisoning the
soldiers. I am satisfied that he intentionally lent his
assistance in order that those persons might commit some or more
of the crimes within that range, of which murder was a highly
probable one. In addition, he took part in the detention of the
soldiers right up to the time when they were put over the wall
and assisted the group to carry one of them to the wall and put
him over. At this stage it must have been entirely obvious that
the soldiers were being taken to their deaths. On this ground
I am also satisfied that Kelly contemplated that they would be
killed. I therefore hold that Kelly possessed the mens rea for
murder, and I find him guilty of counts 1 and 2 of the murder of
the two soldiers".
The applicant's appeal to the Court of Appeal was dismissed on
5 July 1991. It was heard by Lord Justice Kelly who had previously
considered the applicant's successful pre-trial application for bail.
He held that the trial judge had misdirected himself with regard to one
piece of identification evidence, but that the remainder of the
evidence was so substantial and convincing that it could not be said
that the applicant's conviction was unsatisfactory or unsafe. With
regard to the question of the screening of witnesses, the Court
referred to the case of Murphy (1990) which had dealt with the question
in depth.
COMPLAINTS
The applicant alleges a violation of Article 6 of the Convention
in the following respects:
1. He claims that his hearing was not fair in that the trial judge
had heard a substantial number of bail applications relating to a
number of other accused involved in various trials which arose out of
the deaths of the two soldiers. He also complains that Lord Justice
Kelly, who heard his appeal, had also taken part in the decision on his
bail application.
2. He alleges that his hearing was not public because a substantial
number of witnesses from the media were screened from him and the
general public, thus preventing him from seeing those persons who were
giving evidence against him.
3. He considers that his hearing was not fair because of the way in
which the prosecution presented video evidence.
4. He contends that his hearing cannot be fair as he was charged
with involvement of a peripheral nature but was liable to have the same
sentence imposed on him as the principal perpetrator.
5. Finally, the applicant regards as not fair the fact that the
Court of Appeal, although finding that the trial judge had misdirected
himself as to certain identification evidence, nevertheless went on to
decide the case on appeal without giving the applicant a chance to put
his case to another trial judge ab initio.
THE LAW
1. The applicant alleges a violation of Article 6 (Art. 6) of the
Convention in various respects. Article 6 para. 1 (Art. 6-1) of the
Convention provides as follows:
"1. 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. Judgment
shall be pronounced publicly but the press and public may be
excluded from all or part of the trial in the interest of morals,
public order or national security in a democratic society, where
the interests of juveniles or the protection of the private life
of the parties so require, or to the extent strictly necessary
in the opinion of the court in special circumstances where
publicity would prejudice the interests of justice."
The Commission has had regard to the applicant's complaint that
the trial judge had been involved in a substantial number of bail
applications relating to other accused involved in various trials
arising out of the deaths of the two soldiers. The Commission has also
had regard to the applicant's statement that the judge who heard his
appeal, Lord Justice Kelly, had also been involved in his own pre-trial
bail application.
The Commission considers that an allegation that a judge took
part at an earlier stage of proceedings, whether those proceedings
related to an applicant's own case or to a related case, must be taken
as a complaint that that judge lacked impartiality. The Commission
notes that the allegation in the present case, made without further
substantiation, is that the applicant was justified in his fears as to
the impartiality of the trial judge and the appeal judge because of
involvement in the trial of other persons accused of offences in
connection with the deaths of the two soldiers (in the case of the
trial judge) or because of involvement in the applicant's bail
application (in the applicant's own case).
Given the objective nature of the test of impartiality where no
bias is alleged (cf. Eur. Court H.R., Hauschildt judgment of 24 May
1989, Series A no. 154, p. 21 para. 46), the Commission sees no reason
in the present case to conclude from the respective judges' earlier
participation that there was justification for fears as to their
impartiality. In particular, with regard to the participation of Lord
Justice Kelly in the determination of the applicant's pre-trial bail
application, the Commission notes that the application was successful,
and there is no indication that the judge formed, or even had the
opportunity to form, an opinion as to the applicant's guilt.
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.
2. The applicant also alleges a violation of Article 6 (Art. 6) of
the Convention in that a number of media witnesses were screened from
him and the public.
The applicant did not raise this matter in his appeal to the
Court of Appeal, but the Court of Appeal in its decision referred to
the case of Murphy (1990) in which it had dealt with the question of
screening.
The Commission has considered the ruling in Murphy in Application
No. 20657/92 (Dec. 2.12.92). In that case the Commission found that
the screening of witnesses as undertaken did not violate Article 6
(Art. 6) of the Convention because of the guarantees which were
supplied: in particular, although defendants could not see the screened
witnesses, their representatives could see and put questions to the
witnesses in the normal way. The limitation on publicity caused by the
screening was "in the interest of ... public order or national
security" and "to the extent strictly necessary" within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. In the present case,
too, the evidence which the media witnesses could give was limited to
questions concerning the making of filmed and photographic evidence,
and did not itself implicate the applicant. The applicant, through his
representative, was able to put all the questions he wished to the
witnesses concerned, even though neither he nor the public could see
them. Moreover, the public was able to hear the answers given by the
witnesses, even if they could not see them. Accordingly, the
Commission finds that the screening of media witnesses did not
prejudice the present applicant's rights under Article 6 (Art. 6) of
the Convention.
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 alleges a violation of Article 6 (Art. 6) of the
Convention in that the prosecution presented video evidence in a way
he considers unfair.
The Commission recalls that Article 6 (Art. 6) of the Convention
is intended to provide procedural guarantees relating to the
proceedings as a whole. The applicant does not contend that he was
unable to put any criticisms of the prosecution presentation of video
evidence to the trial court and to the Court of Appeal. The assessment
of evidence is in any event in the first place a matter for the
domestic courts (cf. Eur. Court H.R., Barberà, Messegué and Jabardo
judgment of 6 December 1988, Series A no.146, p. 31, para. 68).
It follows that this part of the application is also manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. The applicant sees a violation of Article 6 (Art. 6) in that,
although he was accused only of aiding, abetting, counselling and
procuring the persons who killed the two soldiers to commit that
offence, he was nevertheless charged with murder, with the result that
he was liable to an automatic, mandatory life sentence. Consequently,
although an accessory, he was sentenced as if he were a principal
offender.
The Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved a
possible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236;
No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77 ; No. 7987/77, Dec.
13.12.79, D.R. 18 pp. 31, 45).
In any event, it is not the Commission's role to determine the
substantive content of domestic law: the trial judge was satisfied,
given the applicant's involvement in the events leading up to the
deaths, that the applicant had committed murder as defined in domestic
law.
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.
5. In connection with one of the applicant's grounds of appeal, the
Court of Appeal found a misdirection by the trial judge but
nevertheless decided the case without ordering a re-trial. The
applicant alleges a further violation of Article 6 para. 1 (Art. 6-1)
of the Convention in this respect.
The Commission again recalls that its function in connection with
Article 6 para. 1 (Art. 6-1) of the Convention is to consider the
fairness of the proceedings taken as a whole (cf. the above-mentioned
Barberà judgment). In the present case, the Court of Appeal found a
misdirection by the trial judge, but concluded that the remainder of
the evidence was so substantial and convincing that the applicant's
conviction was not unsatisfactory or unsafe.
Taking the proceedings as a whole, the Commission finds that they
were not unfair in this respect.
It follows that this part of the application is also 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 First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (A. WEITZEL)
Full & Egal Universal Law Academy