AS TO THE ADMISSIBILITY OF
Application No. 13081/87
by Stephen WINDSOR
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 December 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
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 16 May 1987
by Stephen WINDSOR against the United Kingdom and registered on
7 July 1987 under file No. 13081/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1952 and resident
in Rosewell, Scotland. He is presently serving a prison sentence in
Peterhead Prison. The facts as submitted by the applicant may be
summarised as follows.
On 31 July 1985, the applicant was arrested on suspicion of
participation in armed robbery and held in police custody for six
hours, during which period he alleges that he was denied access to a
solicitor. The applicant alleges that during this period he was
questioned, subjected to forensic tests and shown to two potential
witnesses (both of whom were young boys) for purposes of
identification. Neither witness identified him as one of the three
men involved in the robbery. After approximately six hours, the
applicant was charged: he first saw his solicitor 10 minutes prior to
this. One of the witnesses was again brought to identify the
applicant a week later at a proper identification parade but again
failed to identify the applicant. The applicant's solicitor attempted
to trace these two witnesses but was informed that the incident in the
police cells had not taken place.
At the applicant's trial for assault, robbery, attempted murder
and contraventions of the Firearms Act 1965, the applicant pointed out
one of these witnesses, an 11 year old boy, in the court room and this
witness gave evidence that he had been shown the applicant in a police
cell. The other witness had not been located at that time.
For his defence, the applicant lodged a special defence of
alibi to the effect that his car had broken down in the vicinity of
the crime and that he was arrested while making his way on foot to
seek assistance. His car was made a production for the prosecution
who contended that it was the "getaway" car. The applicant's
solicitor employed an independent engineer to examine the car to
substantiate the applicant's assertion that the car had a mechanical
fault which appeared after it had been driven 8-12 miles. While the
engineer made an examination of the car, the police refused the
engineer permission to carry out a road-test. Prior to the trial a
Q.C. acting for the applicant and the co-defendant had obtained
permission from the court for an expert for the defence to examine
production for the prosecution and an expert duly carried out an
examination of the car, without requesting to road-test it.
The applicant was convicted of armed robbery on 27 November
1985 and was sentenced to 20 years' imprisonment.
The applicant appealed, alleging that the judge had
misdirected the jury in various respects and failed to deal fairly
with the evidence in his summing-up. While awaiting the hearing of
his appeal, the applicant asked to examine the two shotguns, which had
been produced at his trial. He was informed on the morning of his
appeal that the guns had been destroyed.
On 21 November 1986, the applicant presented his appeal in
person. His application for legal aid had been refused on 20 February
1986. The High Court dismissed his appeal against conviction finding
his grounds of appeal ill-founded. The Court also stated that the
applicant had sought to raise the point that there was another child
witness who had not identified the applicant as participating in the
robbery and that he had been unable to trace him. The Court held that
since this point was not included in the grounds of appeal the Court
could not deal with it. The applicant's prison sentence was however
reduced from 20 to 14 years.
Since the applicant's appeal, the applicant has learned that
several of the police officers involved in the investigation of his
case have been charged with offences inter alia of perjury, perverting
the course of justice, improper police practice, attempting to bribe
witnesses and threatening witnesses. The applicant petitioned the
Secretary of State on 5 December 1986 alleging inter alia that the
case against him was fabricated by these officers and that he was not
allowed to secure a proper examination of the car. By reply of 28
April 1987, the applicant was informed that a full investigation had
disclosed no grounds on which the Secretary of State could take
further action. In relation to the car, it was stated that an
independent engineer had examined the car on the applicant's behalf
and had given evidence that the radiator tank was dry and would have
overheated if driven any distance. He had been refused permission to
carry out a road-test since it was a production in an important case.
It was also stated that if the applicant had considered a road-test
essential, an application could have been made to the court, which
step the applicant had not taken.
COMPLAINTS
1. The applicant complains that he was not told the names of the
two witnesses who did not identify him at the police station, and was
thus unable to examine them. He invokes Article 6 para. 3 (d) of the
Convention.
2. The applicant also complains that he was not given a fair
trial. He complains in particular that he was prevented from
examining or testing the car or shotguns. He also complains of being
refused access to a solicitor for six hours. He invokes Article 6
para. 1 of the Convention in this respect.
3. The applicant also complains that he cannot take legal
proceedings against the police officers, who fabricated evidence
against him, or against the Procurator Fiscal, who denied the applicant
his legal rights. He complains that he has petitioned for action to
be taken in regard to his allegations inter alia of illegal police
practice, perverting the course of justice and perjury which occurred
in his case and which show that his conviction is unsafe but that no
action has been taken. The applicant invokes Article 5 para. 4 of the
Convention in this respect.
THE LAW
1. The applicant complains that he was not informed of the names
of two boy witnesses and was thus unable to examine them. He invokes
Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, which provides:
"Everyone charged with a criminal offence has the
following minimum rights:
...
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses
against him ..."
The Commission notes that in fact the applicant was able to
call one of the witnesses at his trial.
As regards the other child witness, the Commission is not
required to decide whether or not the facts alleged by the applicant
disclose any appearance of a violation of this provision. Under
Article 26 (Art. 26) of the Convention, the Commission 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
competent 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 raise the issue of
the other child witness in his grounds of appeal with the result that
the High Court could not deal with the matter. 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 this issue in his grounds of appeal to
the High Court.
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 also complains that he did not receive a fair
trial. He complains in particular of not being able to examine the
car or shotguns, and of being refused access to a solicitor for 6
hours. He invokes Article 6 para. 1 (Art. 6-1) of the Convention,
which, in its first sentence, provides:
"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."
Insofar as the applicant complains of being unable to examine
the car, the Commission recalls that the car was in fact examined by
an independent engineer on behalf of the applicant, though the
engineer was not allowed to test-drive the car by the police.
However, the applicant made no application to the Court for a
road-test to be authorised. The Commission further notes that the
applicant was later informed by the Secretary of State that the
road-test had been refused since the car was a production in an
important case.
As regards the shotguns, while the Commission notes that the
applicant applied unsuccessfully to examine the guns before his
appeal, there is no indication that the defence was not given the
opportunity to examine them at the trial. The applicant has failed to
establish in what way an examination of the shotguns was necessary for
the presentation of his appeal.
The Commission accordingly finds that these complaints do not
disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1)
of the Convention.
As regards the applicant's complaint of refusal of access to
his solicitor, the Commission recalls that the applicant was arrested
on 31 July 1985 on suspicion of participation in an armed robbery and
that he was allowed to see his solicitor 6 hours after being arrested,
i.e. 10 minutes before being charged.
The Commission first observes that the Convention does not
expressly guarantee the right of an accused to freely communicate with
his defence counsel for the preparation of his defence. The fact that
this right is not specifically mentioned does not mean it may not be
implicitly inferred from its provisions, in particular those of
Article 6 para. 3 (b) and (c) (Art. 6-3-b-c), which guarantee to the
accused to have adequate time and facilities for the preparation of
his defence and the right to defend himself in person or through legal
assistance of his own choosing. The right for an accused to
communicate with his lawyer has been recognised by the Commission as a
fundamental part of the preparation of his defence. However such a
right to have conversations with one's lawyer and exchange
confidential instructions, as implicitly guaranteed by Article 6 para.
3 (Art. 6-3), cannot be said to be insusceptible of restriction (see
e.g. Can v. Austria, Comm. Report 12.7.84, Eur. Court H.R., Series
A no. 96, pp. 15-19). The Commission must therefore consider whether
or not the alleged delay in consulting a solicitor was in conformity
with the Convention.
In the present case, the applicant had the possibility of over
three months prior to his trial to communicate with his lawyer and
prepare his defence. The applicant has not established that the
initial period of 6 hours of his detention was of crucial relevance to
the preparation of his defence or to the fairness of his trial or that
he was prejudiced in any material way by the refusal of access to his
solicitor during this period.
In light of these considerations, the Commission finds no
appearance of a violation of Article 6 paras. 1, 3 (b) or (c) (Art.
6-1, 6-3-b-c) of the Convention.
It follows that these complaints are manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains that he is unable to have
proceedings instituted against the police officers or Procurator
Fiscal involved in his case. He invokes Article 5 para. 4 (Art. 5-4)
of the Convention in this regard.
Article 5 para. 4 (Art. 5-4) guarantees to everyone deprived
of his liberty the right to take proceedings by which the lawfulness
of his detention shall be decided speedily by a court. However, this
provision does not entitle the individual deprived of his liberty to
have criminal proceedings instituted against another person.
The Commission has also considered this complaint under
Article 6 para. 1 (Art. 6-1) of the Convention, which guarantees to
everyone the right of access to a court for the determination of
"civil rights" or "obligations" or a "criminal charge against him".
However, the right under Article 6 para. 1 (Art. 6-1) to have a
criminal charge determined is only a right for the accused and not a
right for the victim of the alleged criminal offence, or for anyone
who makes a charge against another.
Accordingly the applicant has no right under Article 5 para. 4
(Art. 5-4) or Article 6 (Art. 6) of the Convention to have criminal
proceedings instituted against other persons (see e.g. No. 7116/75,
Dec. 4.10.76, D.R. 7 p. 91).
It follows that this complaint is incompatible ratione
materiae with the provisions of the Convention within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)