Garland, Mcmullan, Mclaughlin, Beck, Mccrory, Petticrew and Mcallister v. the United Kingdom



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