WEST v. THE UNITED KINGDOM



                      AS TO THE ADMISSIBILITY OF

                       Application No. 34728/97

                       by Rosemary WEST

                       against the United Kingdom

     The European Commission of Human Rights sitting in private on

20 October 1997, the following members being present:

           Mr    S. TRECHSEL, President

           Mrs   G.H. THUNE

           Mrs   J. LIDDY

           MM    E. BUSUTTIL

                 G. JÖRUNDSSON

                 A.S. GÖZÜBÜYÜK

                 A. WEITZEL

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 J.-C. GEUS

                 M.P. PELLONPÄÄ

                 B. MARXER

                 M.A. NOWICKI

                 I. CABRAL BARRETO

                 B. CONFORTI

                 N. BRATZA

                 I. BÉKÉS

                 J. MUCHA

                 D. SVÁBY

                 G. RESS

                 A. PERENIC

                 C. BÎRSAN

                 K. HERNDL

                 E. BIELIUNAS

                 E.A. ALKEMA

                 M. VILA AMIGÓ

           Mrs   M. HION

           MM    R. NICOLINI

                 A. ARABADJIEV

           Mr    M. de SALVIA, 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 7 October 1996 by

Rosemary WEST against the United Kingdom and registered on 4 February

1997 under file No. 34728/97;

     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 1953 and currently

detained at HM Prison Durham.  She is represented before the Commission

by Mr. L. Goatley, a solicitor practising in Gloucester.

     The facts, as submitted on behalf of the applicant, may be

summarised as follows.

     The applicant together with her husband, Fred West, were charged,

inter alia, with the murder of 10 young girls whose remains were

discovered buried in the basement or grounds of the house which they

occupied at 25 Cromwell Street, Gloucester.  It was the prosecution

case that the victims had been sexually abused, and that the applicant

had participated with her husband in the abuse and murder of each of

the victims.  Fred West committed suicide on 1 January 1995 whilst in

custody awaiting trial.

     The features of the case were such as to attract considerable

attention from the media.  The applicant, her sexual proclivities and

the nature of her relationship with her husband were, it is submitted,

the subject of extensive and unremitting adverse pre-trial media

coverage which was prejudicial to her defence and denied her a fair

trial.  Furthermore, prior to her trial certain key prosecution

witnesses were paid or promised payment by the press of significant

sums in return for their stories.

     On 22 November 1995, the applicant was convicted on all 10 counts

of murder and sentenced to life imprisonment.

     The applicant sought leave to appeal against her convictions on

grounds, inter alia, that adverse media coverage and the payment of

money to key prosecution witnesses by the press had been such as to

preclude a fair trial and render her convictions unsafe.

     The Court of Appeal refused the applicant leave to appeal on

19 March 1996, but deferred giving reasons for its decision until

2 April 1996 when a fully reasoned judgment was handed down by the

Court of Appeal sitting in open court.

     The Court of Appeal gave amongst its reasons that the effect of

media coverage is essentially ephemeral and the nature of a trial to

focus the jury's mind on the evidence before them; that the defence

were aware of and cross-examined witnesses as to their contracts and

involvement with the media; that no substantial inconsistencies were

established between the statements which the witnesses had given to the

police and their evidence at trial; and that the judge painstakingly

went through the contracts in his summing up to the jury.

     Mr Goatley, the applicant's solicitor in the criminal

proceedings, did not himself attend the hearing on 2 April 1996, but

obtained a copy of the Court of Appeal's judgment on 9 April 1996,

having requested a copy of the judgment after the hearing from the

Registrar of Appeals.  The hearing on 2 April 1996 was, however,

attended by junior counsel, who had represented the applicant

throughout the trial and application for leave to appeal, although not

it seems on Mr Goatley's express instructions.  Further, it does not

appear that there was any contact between junior counsel and Mr Goatley

following the hearing of the application for leave to appeal on

19 March 1996.  The applicant was subsequently sent a copy of the

judgment by Mr Goatley on 20 April 1996.

     In an affidavit sworn on 13 November 1996, Mr Goatley refers to

a telephone call to the Secretariat to the Commission on 17 September

1996 in relation to which he states:

     "     During the aforesaid telephone call I clearly stated

     by way of introduction that I represented ,

     who had been convicted of the murder of ten young women and

     sentenced to ten life sentences, that the client maintained

     her innocence and felt strongly that her trial had been

     prejudiced by the intrusive conduct of the media in making

     payments to witnesses and in the pre-trial publicity and

     that therefore she did not get a fair trial and that there

     had been a contravention of Articles 6 and 10(2) of the

     European Convention on Human Rights.

           Upon so advising the administrator that I spoke to on

     the telephone I then requested an outline of the procedure

     whereby I could proceed with the Application."

     He has provided an itemised telephone bill which records a call

to the Council of Europe on 17 September 1996, and a manuscript

memorandum of the same date recording various aspects of procedure

before the Commission as provided during a telephone conversation.

COMPLAINTS

     The applicant invokes Article 6 of the Convention.  The applicant

complains that the extensive and relentless adverse coverage of the

case, and the payments made or promised to key prosecution witnesses

by the press for their stories prior to trial was such as to deprive

her of a fair trial.  Specifically, the applicant complains that:

(1)  prejudicial newspaper coverage of the case was so pervasive,

     intrusive and unremitting that it would have had an indelible

     effect on the mind of any person serving on the jury.  The

     applicant points out that the material published dealt with facts

     which were directly in issue at the trial, and dwelt on her

     sexual proclivities and the nature of her relationship with Fred

     West in such a way as to prejudice her defence;

(2)  the witnesses, in selling their stories to the media in

     circumstances where the media were seeking to sensationalise and

     emphasise the more lurid aspects of the case, could no longer be

     relied upon to give objective and reliable testimony at trial;

(3)  such safeguards as exist in domestic law, namely under the

     Contempt of Court Act 1981, to control media coverage of criminal

     proceedings are inadequate and that, in any event, the Attorney

     General, whose duty it is to intervene to control media coverage

     where there is a substantial risk of serious prejudice to those

     proceedings, failed properly to discharge his duty.  In this

     regard the applicant points to Article 10 para. 2 of the

     Convention which permits of restrictions in the exercise of

     freedom of expression where such is necessary in a democratic

     society for maintaining the impartiality of the judiciary.

     The applicant further complains of inequality of arms at the

committal stage of the proceedings in that whilst the prosecution was

represented by both junior and leading counsel, the applicant was

limited under the Legal Aid in Criminal and Care Proceedings (1989) to

representation by junior counsel only.

THE LAW

     The applicant invokes Article 6 (Art. 6) of the Convention.  She

complains that the nature and effect of unremitting and adverse pre-

trial media coverage of the case was such as to establish her guilt in

the minds of the public at large and so denied her a fair trial.  The

applicant further complains that payments made or promised to key

prosecution witnesses by the press in return for their stories rendered

their evidence unreliable and precluded a fair trial.  The applicant

submits that there were inadequate safeguards, alternatively that such

safeguards as existed were not applied in order to control the media

in their contact with prosecution witnesses and coverage of the case

prior to trial. The applicant also complains of inequality of arms at

the committal stage of the criminal proceedings.

     The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with an application within a period of six

months from the date on which the final decision was taken.

     The applicant submits that her complaints were introduced at the

telephone by her legal adviser on 17 September 1996.  In the

alternative, the applicant contends that the six month time limit under

Article 26 (Art. 26) ran from the date on which her legal adviser, and

solicitor in the criminal proceedings, received a copy of the Court of

Appeal's judgment refusing her leave to appeal, namely 9 April 1996 -

and not the date on which the judgement was handed down in court,

namely 2 April 1996 - in which case, the applicant submits, the letter

dated 7 October 1996 which introduced the substance of the applicant's

complaints was within time.

     As to the applicant's first submission, the Commission recalls

that Rule 44 para. 4 of its Rules of Procedure provides that:

     "The date of introduction of the application shall in

     general be considered to be the date of the first

     communication from the applicant setting out, even

     summarily, the object of the application.  The Commission

     may nevertheless for good cause decide that a different

     date be considered to be the date of introduction."

     Although Rule 44 para. 4 does not, in terms, stipulate for the

manner and form of communication, the Commission recalls its case law

to the effect that the running of the six month period under Article

26 (Art. 26) is, as a rule, interrupted by the first written

communication from the applicant setting out summarily the object of

the application, provided that this written communication is not

followed by a long delay before the application is completed (see inter

alia No. 22123/93, Dec. 31.8.94, DR 79, p. 72; and No. 22507/93, Dec.

5 April 1995, DR 81, p. 67).  The Commission has considerable doubts

whether an application in the sense envisaged by its Rules of Procedure

could ever be introduced by telephone. Even assuming such was possible,

only very exceptional circumstances would justify an application being

introduced orally.  There must firstly be some overriding reason why

it was not possible to submit an application in writing, such as the

extremely urgent nature of the case (eg. applications involving a

request for interim measures under Rule 36 of the Commission's Rules

of Procedure in respect of imminent risk to life and limb).  Second,

in such circumstances an oral communication could only be effective to

introduce an application provided the applicant or his legal advisers

made express and unequivocal the fact that they were seeking formally

to introduce the application by this means.

     In the present case, when the applicant's legal adviser first

contacted the Commission by telephone on 17 September 1996, there

remained 15 days before the six-month limit under Article 26 (Art. 26)

expired.  The Commission finds no evidence of any overriding reason why

the applicant could not prior to or on 17 September 1996, or in the

15 days which remained, submit in writing to the Commission the

substance of her complaints under the Convention.  Furthermore, the

Commission does not discern, in the material submitted on the

applicant's behalf, evidence of any express and unequivocal

representation having been made by her legal adviser that he was

seeking, by means of the telephone call on 17 September 1996, formally

to introduce the application to the Commission. It is not established

that his telephone call on 17 September 1996 was anything more than an

approach with a view to obtaining general information about Commission

procedure.  It follows therefore that, even assuming that introduction

of applications by telephone is permissible, neither condition which

would be necessary for such oral introduction has been established in

the present case. The application was therefore introduced by the

applicant's solicitor's first letter of 7 October 1996, setting out the

substance of the application.

     As to the applicant's second submission, the Commission considers

the following principles to be established within its case law:

(1)  the six month period under Article 26 (Art. 26) begins to run on

     the day after the date on which the final domestic decision was

     pronounced orally in public or, if not so pronounced, was

     communicated to the applicant or the applicant's lawyer (eg. No.

     21034/92, Dec. 9.1.95, DR 80, p. 87) or where pursuant to

     domestic law and practice, the applicant is entitled to be served

     ex officio with a written copy of the judgment, from the date of

     receipt (Eur. Court HR, Worm v. Austria judgment of 29 August

     1997, Reports 1997-V, No. 45);

(2)  where the reasons given for the decision are salient to the

     application the six month period will ordinarily be taken to run

     from the date on which the full reasons for the decision were

     given, and not the date on which the applicant or his legal

     adviser was notified merely of the operative part of the decision

     (eg. No. 9299/81, Dec. 13.3.84, DR 36, p. 20);

(3)  the six month period runs from the date on which the applicant's

     lawyer in the relevant domestic proceedings became aware of the

     final decision, notwithstanding that the applicant himself may

     only have become aware of the decision at a later date (eg. No.

     14056/88, Dec. 28.5.91, DR 70, p. 208).

     The Commission recalls that in the present case leave to appeal

was refused by the Court of Appeal on 19 March 1996, which reserved

giving reasons for its decision until 2 April 1996 when a fully

reasoned judgement was handed down in open court.  The applicant's

solicitor did not attend the hearing on 2 April 1996.  The hearing on

2 April 1996 was, however, attended by junior counsel, who had

represented the applicant throughout the criminal proceedings and on

the subsequent application for leave to appeal, although not, it seems,

on the express instructions of the applicant's solicitor.

     Consistent with the above principles, the Commission considers

that in the absence of any sufficient reason to the contrary, the date

of the final decision should be taken from the date of the hearing,

namely 2 April 1996, at which the Court of Appeal handed down the fully

reasoned judgment for its decision refusing the applicant leave to

appeal on 19 March 1996, at which hearing counsel, who had represented

the applicant throughout the criminal proceedings and on the

application for leave to appeal attended.

     The Commission notes that it is nowhere suggested that the

applicant's solicitor was unaware of the date of the hearing, or that

counsel could not have been called upon to communicate the terms of the

judgment. It does not find that the fact that counsel was not expressly

instructed to attend the hearing on 2 April 1996, nor was subsequently

contacted by the applicant's solicitor following that hearing furnishes

sufficient reason to justify the Commission in taking as the final

decision the date on which the applicant's solicitor received a copy

of the Court of Appeal's judgment having requested a copy, following

the hearing, from the Registrar of Appeals. There is no obligation in

domestic law or practice that the written judgment be served on the

applicant by the court as in the Worm case (op. cit.).

     Accordingly, the application, which was introduced by the

applicant's letter of 7 October 1996, was introduced outside the six

month period provided for under Article 26 (Art. 26) of the Convention.

It follows, therefore, that the application must be rejected under

Article 27 para. 3 (Art. 27-3) thereof.

     For these reasons, the Commission, by a majority,

     DECLARES THE APPLICATION INADMISSIBLE.

        M. de SALVIA                        S. TRECHSEL

         Secretary                           President

      to the Commission                   of the Commission

 

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