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AS TO THE ADMISSIBILITY OF
Application No. 28120/95
by (1) Anthony GARLAND
(2) Stephen McMULLAN
(3) Hugh McLAUGHLIN
(4) Michael BECK
(5) Brendan McCRORY
(6) Daniel PETTICREW
(7) Ciaran McALLISTER
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
A. PERENIC
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 7 July 1995
by
Anthony GARLAND, Stephen McMULLAN, Hugh McLAUGHLIN, Michael
BECK,
Brendan McCRORY, Daniel PETTICREW, Ciaran McALLISTER against
the United
Kingdom and registered on 3 August 1995 under file No.
28120/95;
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 applicants are seven British citizens born in 1974,
1969, 1973,
1973, 1967, 1974 and 1975 respectively. They are all
resident in
Belfast and represented before the Commission by Mr Peter
Madden, of
Madden and Finucane, solicitors in Belfast. The facts as
submitted by
the applicants can be summarised as follows.
The applicants were all arrested under section 14 of the
Prevention of
Terrorism (Temporary Provisions) Act 1989: the first
applicant on
2 August 1991, the second, third and fourth applicants four
days later,
on 6 August 1991, the fifth applicant on 4 November 1991,
the sixth
applicant on 28 April 1992 and the seventh applicant on 30
April 1992.
The applicants were all detained at Castlereagh Holding
Centre: the
first applicant between 2 and 8 August 1991, the second and
third
applicants between 6 and 12 August 1991, the fourth
applicant between
6 and 9 August 1991, the fifth applicant between 4 and 8
November 1991,
the sixth applicant between 28 April and 29 April 1992 and
the seventh
applicant between 30 April and 1 May 1992. Apart from the
sixth and
seventh applicants, who were at no stage permitted to have a
solicitor
present at their interviews, the other applicants were all
denied
access to a solicitor for about 48 hours after arrest.
On the basis of admissions made in the course of their
interrogation at Castlereagh Holding Centre, the applicants
were all
charged with inter-alia attempted murder and related
offences in
respect of a bomb attack on a mobile RUC patrol on 2 August
1991. The
first, second, third and fourth applicants were charged in
August 1991,
the fifth in November 1991, the sixth in April 1992 and the
seventh in
May 1992.
The first, third and fourth applicants were refused bail on
18 September 1991, 29 October 1991 and 27 August 1991
respectively, on
the basis of the seriousness of the charges they faced, the
fear that
they would fail to surrender to custody and that they would
commit an
offence whilst on bail. The seventh applicant was granted
bail on
18 December 1992. The first, third and fourth applicants
were granted
bail on 27 October 1994, the trial judge considering that
since the
prosecution no longer sustained its objection that the
applicants would
commit offences whilst on bail, and taking into account the
long period
that the applicants had spent in custody, it was in the
interests of
justice that they should be released. The second, fifth and
sixth
applicants were refused bail but were discharged in the
course of the
trial.
The trial commenced on 9 September 1993 and ended on 9
November
1994. Judgment was given on 3 March 1995. Much of the trial
concerned disputes as to the admission of statements that
had allegedly
been made by the applicants in the course of interviews at
Castlereagh
Holding Centre. On 16 February 1994 the fifth applicant was
discharged
by the trial judge. On 24 May 1994 the trial judge exercised
his
discretion to exclude the statements of the seventh
applicant from the
trial. He stated:
"In deciding to exercise my discretion in favour of the
accused,
it is precisely and uniquely because of my perception and
assessment of his vulnerable personality that I believe this
to
be the correct course. In other words, it is because of my
evaluation of attributes personal to the accused rather than
any
impropriety on the part of the police officers, that I have
reached this decision... I now exercise my discretion to
exclude
the statement of the accused in order to avoid unfairness to
him
and in the interests of justice."
There being no further evidence against the seventh
applicant,
the trial judge discharged him. The second and sixth
applicants were
similarly discharged on 12 September 1994. In exercising his
discretion to exclude the statements of the second
applicant, the Judge
stated:
"The allegations made by the accused about the threats
of
violence which he claimed were administered to him were not
only
intrinsically implausible they were squandered emphatically
by
evidence, which I found convincing and compelling. I should
make
it clear that I was persuaded beyond any doubt about the
allegation of ill-treatment which the accused made were
untrue.
I reject those allegations without reservation. The question
of admissibility is not thereby determined.
However, it is claimed on his behalf that the interests of
justice require that I should have regard to the
vulnerability
of the accused and his inability to cope with or withstand
the
pressures of even legitimate interrogation in deciding
whether
his confession should be admitted...
Therefore, in order to avoid unfairness to him, I have
decided to exercise my discretion to exclude the confession
which
he was alleged to have made.
I hasten to reiterate and make clear, this conclusion is in
no way intended to be critical of the manner of interview of
the
accused. As I have already said I was convinced by the
evidence
called on this voir dire that his allegations are without
foundation."
In exercising his discretion to exclude the statements of
the
sixth applicant the Judge stated:
"A number of grounds were advanced on his behalf as to
why his
alleged admission should not be admitted in evidence... I
have
very grave reservations as to the truth of the claims made
by
[the sixth applicant]. I believe that many of them are
untrue.
I cannot dismiss though, with the requisite degree of
confidence
and assurance that could allow me to rule that his
confessions
are admissible. I therefore direct that his admission,
alleged
to have been made by him, should not be received in
evidence."
In the course of those rulings, the Judge also considered
and
then rejected applications from the first, third and fourth
applicants
that their statements should be excluded. However, as
regards the
third applicant, the Judge did accede to a request to
exclude
admissions alleged to have been made by him subsequent to
the second
deferral of access to his solicitor. He stated as follows:
"I do not accede to the application made on behalf of
this
accused, save in respect of any admission alleged to have
been
made by him subsequent to the second deferral of access to
his
solicitor on the 8th August. I have concluded that it has
not
been established that the second deferral of access was
validly
made and that I should exclude any admission made thereafter
in
the exercise of my discretion in order to avoid unfairness
to the
accused and in the interests of justice. I shall give my
reasons
at a later stage for refusing to accede to the other
submission
made on his behalf.
I turn then to the cases of [the first and fourth
applicants].
I do not accede to the application made on their behalf and
I
shall give my detailed reasons for that refusal in due
course.
I consider that the admissions alleged to have been made by
them
should be received in evidence."
On 3 March 1995 judgment was given in respect of the first,
third
and fourth applicants, the second, fifth, sixth and seventh
applicants
having been previously discharged. In the course of his
judgment, Kerr
J. referred to the effect that the absence of audio
equipment at the
interviews had had on the length of the trial. He stated:
"... I have myself made the point in the course of
submissions
that a voice need not be unduly raised in order to convey a
sense
of real menace. I am convinced, however, that this did not
occur
in the present case.
I have been obliged, in reaching that conclusion, to rely
heavily on my subjective evaluation of the evidence which
was
given by [the fourth applicant] and the interviewing
officers on
this topic...
In this context, I feel constrained to say that the task of
resolving the conflict would have been made immeasurably
easier -
even if at the prosaic level of reducing considerably the
number
of witnesses who required to be called - if audio equipment
had
been installed to record the exchanges at interview. I
hasten to
acknowledge that there may be strong practical arguments of
which
I am not in a position to make a sound judgment which
militate
against the introduction of audio equipment in a case such
as
this. The effect of its absence should not be
underestimated,
however. This trial opened in August 1993 and did not end
until
December 1994. It was afflicted by a great number of
interruptions - some inevitable, many, I regret to say,
avoidable. But an enormous number of court hours was
expended
on an examination of what occurred during interviews of this
and
the other accused; this was an exercise which would have
been
unnecessary if audio recording of the interviews had taken
place.
So that the scale of the prolonging effect of the absence of
such
equipment may be appreciated, I should state that it is my
confident opinion that had it been available, this trial
could
have been completed within a few weeks instead of the
sixteen
months that it occupied."
The first, third and fourth applicants were all acquitted on
the
basis that the prosecution had not disclosed certain
evidence to which
the applicants were entitled. Kerr J. stated the following:
"The net position, therefore, is that I have concluded
that the
statements made by the accused should be admitted in
evidence for
the reasons which I have given. I have not been provided
with
evidence that would justify reversing that decision. If I
accept
and can rely on the contents of the accused's admissions
these
are sufficient to establish their guilt. But I have been
told
by the Crown that material which was relevant to the defence
of
the accused and which was potentially helpful to their
defence
was not produced until after the challenge to the
admissibility
of the statements had been completed. It was also conceded
on
behalf of the prosecution, although this concession is not
binding in the Court, that if the exercise of recalling
witnesses
was not carried out, I could not be satisfied to the
requisite
standard that unfairness to the accused would be avoided if
I
continued to have regard to the statements.
... I feel I cannot ignore what I have been told by Crown
counsel
as to the potential of the material which was withheld.
Since
it was accepted that this could have assisted the accused's
defence, it appears to me to be inescapable that it may have
provided the basis for successful challenge to the admission
of
the statements in evidence, notwithstanding my conclusion
based
on the testimony that I heard. Equally, the possibility that
it
would have provided an effective challenge to the
reliability of
those statements cannot be dismissed. In light of this. I
cannot, in justice, express my satisfaction beyond
reasonable
doubt of the adequacy of the statements to establish the
guilt
of the accused...
It remains for me to say this. It will be clear from my
judgment that while I must find the accused not guilty, I do
not
consider this result a resounding vindication of their
innocence.
Indeed on one view they are the less than deserving
beneficiaries
of an inadvertent lapse on the part of the prosecuting
authorities. Nevertheless, in common with all who appear
before
these Courts, they are entitled to expect and receive in
their
favour the strict and precise application of our criminal
law.
It is because the stringent requirements of proof of guilt
imposed by that system of law have not been achieved that
they
are entitled to be pronounced not guilty."
COMPLAINTS
1. All the applicants complain that they were subjected to
inhuman
and degrading treatment contrary to Article 3 of the
Convention.
2. The applicants further complain under Article 5 para. 3
of the
Convention that they did not receive a trial within a
reasonable time
and that they were not released pending trial.
3. The applicants also complain that they were denied the
right to
a fair trial as guaranteed by Article 6 para. 1 of the
Convention and
in particular that they were forced to incriminate
themselves contrary
to Article 6 para. 2, that they were denied access to a
lawyer and
adequate facilities to prepare their defences contrary to
Article 6
para. 3 (b) and (c).
4. The applicants further complain under Article 6 para. 1
that they
did not have a trial within a reasonable time.
5. The first, third and fourth applicants complain that the
comments
of the Judge at the end of his judgment of 3 March 1995
violated their
right to be presumed innocent as guaranteed by Article 6
para. 2 of the
Convention.
THE LAW
1. The applicants complain that they were subjected to
inhuman and
degrading treatment contrary to Article 3 (Art. 3) of the
Convention
which provides as follows:
"No one shall be subjected to torture or to inhuman or
degrading
treatment or punishment."
The Commission notes that the applicants allege that they
suffered ill-treatment in the course of interrogation at
Castlereagh
Holding Centre. However the Commission is not required to
decide
whether or not the facts alleged by the applicants disclose
any
appearance of a violation as Article 26 (Art. 26) of the
Convention
provides that the Commission "may only deal with the
matter ... within
a period of six months from the date on which the final
decision was
taken". Where there is no final, domestic decision
taken in respect of
complaints, the six months time-limit runs from the date of
the events
which are complained of (see eg. No. 9599/81, Dec. 11.3.85,
D.R. 42 p.
33).
The Commission recalls that the first applicant was
interrogated
between 2 and 8 August 1991, the second and third applicants
between
6 and 12 August 1991, the fourth applicant between 6 and 9
August 1991,
the fifth applicant between 4 and 8 November 1991, the sixth
applicant
between 28 April and 29 April 1992 and the seventh applicant
between
30 April and 1 May 1992. The applicants' complaints were
however
introduced before the Commission on 7 July 1995. The
Commission did
not therefore receive the applicants complaints until more
than 3 years
after the alleged ill-treatment had taken place.
Even assuming therefore that there were no domestic remedies
to
exhaust in relation to the alleged ill-treatment, they did
not submit
these complaints to the Commission within the requisite six
months time
limit laid down in Article 26 (Art. 26) of the Convention.
Accordingly, the above complaints must be dismissed as
inadmissible as out of time pursuant to Article 27 para. 3
(Art. 27-3) of the Convention.
2. The applicants also complain under Article 5 para. 3
(Art. 5-3) of the Convention that they were not released
pending trial
and were denied the right to a trial within a reasonable
time. Article
5 (Art. 5), so far as relevant, provides:
"1. Everyone has the right to liberty and security of
person.
No one shall be deprived of his liberty save in the
following
cases and in accordance with a procedure prescribed by law:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence
or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be
brought
promptly before a judge or other officer authorised by law
to
exercise judicial power and shall be entitled to trial
within a
reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial."
The Commission recalls that the applicants were all released
on
or before 27 October 1994, either on bail or because they
had been
discharged by the Judge. As the applications were not lodged
until
7 July 1995, which is more than six months after the
applicants were
released, it follows that the complaints relating to length
of
detention on remand were lodged out of time, having regard
to the six
month time-limit imposed by Article 26 (Art. 26) of the
Convention (cf.
No. 8130/78, Dec. 10.5.79, D.R. 16 p. 120).
It follows that this part of the application must therefore
be
dismissed as out of time pursuant to Article 27 para. 3
(Art. 27-3) of
the Convention.
3. The applicants also complain that they were denied the
right to
a fair trial as guaranteed by Article 6 para. 1 (Art. 6-1)
of the
Convention and in particular that they were forced to
incriminate
themselves contrary to Article 6 para. 2 (Art. 6-2), that
they were
denied access to a lawyer and adequate facilities to prepare
their
defences contrary to Article 6 para. 3 (b) and (c) (Art.
6-3-b, 6-3-c).
Those provisions provide, so far as relevant:
"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...
2. Everyone charged with a criminal offence shall be
presumed
innocent until proved guilty according to 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;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means
to pay for legal assistance, to be given it free when the
interests of justice so require; ..."
The Commission recalls that the applicants were all
acquitted.
In particular it notes that the second, fifth, sixth and
seventh
applicants were discharged because the trial judge exercised
his
discretion to exclude their statements from the trial in the
interests
of justice. As regards the first, third and fourth
applicants, the
judge acquitted them on the basis that the prosecution had
failed to
disclose evidence that might have been relevant to his
decision as to
whether or not to admit their statements in the trial.
As shown by the rule of the exhaustion of domestic remedies
laid
down in Article 26 (Art. 26) of the Convention, it first
falls to the
national authorities to redress any violation of the
Convention. In
the present case, the Commission considers that the alleged
violations
of the Convention relating to the trial procedure were
rectified by the
acquittal of the applicants (cf. No. 15831/89, Dec. 25.2.91
D.R. 69
p. 317).
Accordingly, the applicants can no longer claim to be
victims of
a violation in respect of these matters and these complaints
must be
dismissed as manifestly ill-founded within the meaning of
Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicants further complain that the criminal charges
against
them were not determined within a reasonable time as
required by
Article 6 para. 1 (Art. 6-1) of the Convention.
The proceedings at issue were of different lengths for each
of
the applicants, since they were arrested and acquitted on
different
dates. The Commission recalls that the first applicant was
arrested
on 2 August 1991 and acquitted on 3 March 1995, a total
period of
3 years, 7 months; that the second applicant was arrested on
6 August
1991 and acquitted on 12 September 1994, a total period of 3
years,
1 month and 3 days; that the third and fourth applicants
were arrested
on 6 August 1991 and acquitted on 3 March 1995, a total
period of
3 years, 6 months and 28 days; that the fifth applicant was
arrested
on 4 November 1991 and acquitted on 16 February 1994, a
total period
of 2 years, 3 months and 12 days; that the sixth applicant
was arrested
on 18 April 1992 and acquitted on 12 September 1994, a total
period of
2 years 4 months and 14 days; and that the seventh applicant
was
arrested on 30 April 1992 and acquitted on 24 May 1994, a
total period
of 2 years 24 days.
The Commission finds that it cannot, on the basis of the
file,
determine the admissibility of this part of the application
at this
stage and considers that it is therefore necessary, in
accordance with
Rule 48 para. 2 (b) of the Commission's Rules of Procedure,
to give
notice of these complaints to the respondent Government.
5. The first, third and fourth applicants complain that the
comments
of the Judge at the end of his judgment of 3 March 1995
where he stated
that he did not consider the result to be "a resounding
vindication of
their innocence", violated their right to be presumed
innocent as
guaranteed by Article 6 para. 2 (Art. 6-2) of the
Convention.
The Commission finds that it cannot, on the basis of the
file,
determine the admissibility of this part of the application
at this
stage and considers that it is therefore necessary, in
accordance with
Rule 48 para. 2 (b) of the Commission's Rules of Procedure,
to give
notice of these complaints to the respondent Government.
For these reasons, the Commission,
DECIDES TO ADJOURN the examination of the applicants'
complaints
under Article 6 (Art. 6) of the Convention concerning the
length
of the proceedings and the right to be presumed innocent;
unanimously,
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
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