D.G. v. the United Kingdom



AS TO THE ADMISSIBILITY OF

Application No. 22299/93

by D.G.

against the United Kingdom

The European Commission of Human Rights (First Chamber)

sitting in private on 19 October 1993, the following members being

present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

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 1993 by

D.G. against the United Kingdom and registered on 21 July 1993 under

file No. 22299/93;

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 United Kingdom citizen born in 1966. He is

at present detained at H.M. Prison, Leyland, Lancashire. He is

represented before the Commission by E. Abrahamson, a solicitor

practising in Liverpool.

The facts of the case, as submitted by the applicant's

representative, may be summarised as follows.

On 28 November 1991 in the Crown Court at Manchester the

applicant, who is black, was convicted by a majority of 10 to 2 of

robbery and sentenced to 6 years' imprisonment. The jury retired at

10:56 am and returned at 12:47 pm when a handwritten note was handed

to the trial judge. It read:

"JURY SHOWING RACIAL OVERTONES 1 MEMBER TO BE EXCUSED".

The trial judge told the jury, inter alia:

"Everybody has preconceived ideas and thoughts. You are

brought here from twelve different backgrounds and expected to

apply your twelve different minds to the problems that are put

before you. ... Any thoughts or prejudice of one form or

another, for or against anybody, must be put out of your mind.

... I am certainly not going to discharge any member of the

jury because he or she may wish to do so because they dislike

certain overtones in the conversation. Decide this case

according to the evidence."

At 2:20 pm the jury were called back by the trial judge for a

majority direction. At 3:20 pm they were called back again but had

still not agreed upon either a unanimous or majority verdict. The

trial judge told them:

"Your task is to pool that experience and wisdom. You must do

that by giving your views and listening to the views of other

people. Of necessity there will be discussion. There has got

to be argument and there has got to be give and take within

the scope of the oath that each of you have taken. That is

the way you achieve agreement."

At 4:06 pm the jury returned and delivered a 10-2 majority

verdict finding the applicant guilty.

On 12 December 1991 the applicant applied to the Court of

Appeal (Criminal Division) for leave to appeal against conviction.

The application was refused on 28 February 1992, the single judge

observing to the applicant:

"The learned judge dealt with the novel and delicate situation

presented by the jury note with tact and sensitivity. It

would have been entirely inappropriate for him to have

conducted some sort of enquiry. There was no material

irregularity at your trial."

On 20 May 1992 the applicant renewed his application to the

Court of Appeal (Criminal Division) for leave to appeal against

conviction. The renewed application was refused by the Full Court

on 19 January 1993. It observed inter alia:

"Matters of this kind raise delicate issues. The jury system

does require an element of give and take after proper

directions from the judge. In our judgment His Honour Judge

Hammond dealt with this matter sensitively, sensibly and

correctly, and cannot be faulted for a conclusion that the

jury should continue the deliberations which they had given

their oath to undertake. We, therefore, find no ground for

complaint and we dismiss this application."

COMPLAINTS

The applicant complains that he was not given a fair hearing

by an independent and impartial tribunal contrary to Article 6 of

the Convention. He complains that the jury were not impartial in

that one or more members were indicating some form of racial

prejudice. The applicant further complains that the Court of Appeal

failed to apply the correct test for bias.

The applicant invokes Article 5(1)(a) of the Convention,

complaining that once the jury indicated that one or more of its

members was or may have been prejudiced, the jury and therefore the

Court ceased to be "competent" with regard to the applicant.

The applicant also invokes Article 13 of the Convention,

complaining that he has no effective remedy before a national

authority because the Convention has not been incorporated into

United Kingdom law.

The applicant also complains that discrimination has taken

place against him on grounds of his race and/or colour contrary to

Article 14 of the Convention, in that the trial judge allowed the

jury to continue its deliberations when it was clear that one or

more members of the jury were prejudiced against the applicant and

failed to make any enquiry as to how many members were prejudiced

and as to the reasons for their prejudice; and in that the Court of

Appeal, in failing to set aside his conviction, treated racial bias

less seriously than other types of bias.

THE LAW

1 The applicant complains that he did not receive a fair trial

by an independent and impartial tribunal contrary to Article 6 para.

1 (Art. 6-1) of the Convention. In particular he complains that the

jury which convicted him was not impartial in that one or more of

its members were racially motivated. Article 6 para. 1 (Art. 6-1)

provides, so far as relevant:

"In the determination 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 also alleges violation of Article 14 (Art. 14)

of the Convention, in respect of the proceedings before the courts,

which provides, so far as relevant:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any

ground such as ... race, colour, ...."

The Commission considers that the complaints concerning the

impartiality of the jury and concerning discrimination raise

important issues of fact and law. It therefore decides to invite the

respondent Government to submit observations pursuant to Rule 48

para. 2(b) of the Commission's Rules of Procedure and accordingly to

adjourn this part of the application.

2 Insofar as the applicant complains generally that the Court of

Appeal failed to apply the correct test for bias, 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 eg. No. 458/59, X v Belgium, Dec. 29.3.60, Yearbook 3

pp.222, 236; No. 5258/71, X v Sweden, Dec. 8.2.73, Collection 43

pp.71, 77; No. 7987/77, X v Austria, Dec. 13.12.79, D.R. 18 pp. 31,

45). The Commission finds no indication on the facts of this case

that the Court of Appeal failed to comply with the standards of

fairness imposed by Article 6 para. 1 (Art. 6-1) of the Convention.

It therefore 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 invokes Article 5(1)(a) (Art. 5-1-a),

complaining that the court ceased to be "competent" with regard to

himself as soon as it was indicated that one or more members of the

jury were or may have been prejudiced against the applicant.

Article 5(1)(a) (Art. 5-1-a) provides:

"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:

a. the lawful detention of a person after conviction by

a competent court; ..."

A "competent court" for the purposes of Article 5(1)(a)

(Art. 5-1-a) is a judicial body independent of the executive and of

the parties and offering adequate procedural guarantees (see eg. No.

7341/76, Eggs v Switzerland, Dec. 4.3.78, D.R. 15 pp. 35, 62) and

the case-law of the Court (eg. Eur. Court H.R., Engel judgment of 8

June 1976, Series A no. 22, pp. 27-28, para. 68). A body which

satisfies these criteria cannot cease to be a "competent court" by

virtue of a procedural irregularity which is alleged to arise in the

course of the trial. A person convicted after trial before such a

court must rely on Article 6 (Art. 6) to complain of any procedural

irregularity allegedly arising in the course of the hearing.

The Crown Court before which the applicant was tried was, at

the outset of the trial, a "competent court" within the meaning of

that term in Article 5(1)(a) (Art. 5-1-a) and, even assuming a

procedural irregularity had been committed during the trial, could

not cease to be a competent court by virtue thereof. There is

therefore no appearance of a violation of Article 5(1)(a)

(Art. 5-1-a) 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.

4 The applicant also complains of a breach of Article 13

(Art. 13) of the Convention in that he has no effective remedy

before a national authority as the United Kingdom Government has not

incorporated the Convention into domestic law. Article 13 (Art. 13)

provides:

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before

a national authority notwithstanding that the violation has

been committed by persons acting in an official capacity."

The Commission recalls that neither Article 13 (Art. 13) nor

the Convention in general prescribes any particular manner by which

the Contracting States should ensure within their internal law the

effective implementation of the provisions of the Convention. The

Commission refers on this point to its own case-law (eg. No.

13013/87, Dec. 14.12.88, D.R. 58 pp. 163, 189-190) and to the case-

law of the Court (eg. Eur. Court H.R., Swedish Engine Drivers' Union

judgment of 6 February 1976, Series A no. 20, p.18, para. 50).

It follows that the United Kingdom is not obliged to transform

the text of the Convention into domestic law. In applying the case-

law mentioned above the Commission finds no appearance of a breach

of Article 13 (Art. 13).

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

ADJOURNS THE EXAMINATION OF THE APPLICANT'S COMPLAINTS

RELATING TO THE IMPARTIALITY OF THE JURY AND RELATING TO

DISCRIMINATION;

DECLARES THE REMAINDER OF THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)