AS TO THE ADMISSIBILITY OF
Application No. 26282/95
by William BURNS
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
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 9 September 1994
by William BURNS against the United Kingdom and registered on
24 January 1995 under file No. 26282/95;
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 applicant is a United Kingdom national, was born in 1949 and
is resident in Queensferry, Scotland.
A. The particular facts of the case
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 18 February 1993 the applicant had been drinking in a bar and
took a taxi. Having refused to pay the £11.00 fare, the applicant
consented to being driven in the taxi to a police station where the
matter was dealt with by two police officers. Approximately three weeks
later the applicant received a summons from the Procurator Fiscal's
office with the charge of incurring a taxi fare without paying or
intending to pay it. In a letter dated 17 May 1993 to the Procurator
Fiscal's office, the applicant accused the two police officers of
stealing £11.00 from him when he was in the police station which
episode was, he alleged, revenge by the Masonic Lodge for complaints
he had previously made in relation to the police. The Procurator Fiscal
replied by confirming that a police investigation would be carried out.
By letter dated 8 June 1993 the Procurator Fiscal's office refused the
applicant's request for copies of the statements of the prosecution
witnesses.
The case was first before the District Court on 10 May 1993 when
the applicant pleaded not guilty to the charges and the hearing took
place on 17 December 1993. The applicant was not legally represented.
The taxi-driver and the two police officers gave evidence and were
cross-examined by the applicant. Both police officers stated that the
applicant had been cautioned and charged, was not put in a cell as he
alleged, that the applicant left the police station having completed
the necessary procedures after approximately one hour, that the
applicant had not offered to pay the taxi fare and that he had £16.53
with him on entering and on leaving the police station. When the
applicant put it to those officers that he had more money with him, the
Procurator Fiscal objected to the line of questioning stating that the
matter was irrelevant to the charges. The trial judge agreed.
The applicant then submitted that the case against him should be
struck out as there was no case to answer. This application was refused
and the applicant proceeded to give evidence stating that he had
disagreed over the amount of the taxi fare. The applicant claimed that
he had approximately £60.00 when he entered the police station and he
applied for an adjournment in order to allow him to present witness
evidence to this effect which would counter the evidence to the
contrary given by the police officers. The judge refused the
application on the basis that the applicant had ample time before the
hearing to call defence witnesses having been advised of the need to
do so in the notice of trial issued. The trial judge also felt that it
was inappropriate at that stage to adjourn the proceedings. The
applicant then closed his case and led no witnesses. The judge found
the applicant guilty as charged. The applicant denied previous
convictions and, subsequently, on the receipt of the proofs of those
convictions he was sentenced on 18 February 1994 to pay a £60.00 fine
and the taxi fare within eight weeks.
The applicant appealed to the High Court against his conviction
and sentence. He filed a six page document containing his grounds of
appeal challenging, inter alia, the trial judge's refusal to strike out
the case against him or to adjourn the proceedings, the trial judge's
findings on the facts and his sentence. On 19 April 1994 the District
Court judge completed a detailed report on, inter alia, the District
Court proceedings, the evidence led by the parties and her findings of
fact. By letter dated 3 June 1994 the Deputy Chief Constable informed
the applicant that no proceedings were to be issued against the police
officers pursuant to his complaint.
On 30 August 1994 the High Court, having held a hearing,
delivered a detailed judgment rejecting the appeal. The judgment notes
that the High Court declined to allow the applicant to read his
prepared statement aloud. The court could see no purpose in such an
exercise since the three judges had already had the benefit of reading
that statement. As regards the refusal to adjourn the hearing at first
instance, the High Court found that the applicant was aware of the
existence of his witnesses and their evidence on the date of the trial
and concluded that the trial judge's decision not to adjourn was well
founded.
On 22 September 1994 the District Court office demanded the
payment of the fines in default of which a warrant of arrest could
issue. By letter dated 24 September 1994 the applicant stated that he
would not pay or acquiesce with "the lawless freaks in the Satanic
cult". An arrest warrant subsequently issued, the applicant was
arrested on 10 June 1995 and he was detained until the following Monday
morning, 12 June 1995, when he was brought before the District Court.
The applicant agreed before that court to pay the fine and taxi fare
in default of which he would have to serve seven days imprisonment.
On 14 June 1995 the applicant complained about his arrest to the
Chief Constable. The latter responded that it was a lawful arrest
pursuant to an arrest warrant. The applicant replied by accusing the
Chief Constable of having an allegiance with the "Satanic cult of
Freemasonry's Get-Burns-Task-Force". By letter dated 16 June 1995 the
applicant informed the Procurator Fiscal that he had reconsidered and
would submit to imprisonment rather than pay the fine. Accordingly,
from 30 June to 6 July 1995 the applicant served a prison sentence.
B. Relevant domestic law and practice
While there is no obligation on the prosecution to provide a list
of prosecution witnesses to the defence, as a matter of practice the
Procurator Fiscal provides a list of such witnesses on request on the
basis that the defence will reciprocate by providing a list of their
witnesses. Also as a matter of practice, the defence can discuss with
the Prosecutor Fiscal the nature of the prosecution evidence in order
that the defence may arrange, for example, the precognitions they find
necessary or consider an appropriate plea. There is no entitlement to
obtain copies of the prosecution witness statements.
The defence may request precognition of prosecution witnesses
which means that those witnesses may be requested to submit to
questioning by the defence prior to the trial. There is no obligation
on the prosecution witness to give precognition although there is some
authority for the view that it is part of that person's civic duty to
do so. If a witness is reluctant, the defence can apply to the court
for precognition on oath. While there is some authority for the view
that precognition on oath should only be allowed in exceptional
circumstances, it has been held that the object of the statutory
provision is to place the defence on equal terms with the prosecution
in the preparation of the case (Brady v. Lochart 1985 SCCR 349).
COMPLAINTS
The applicant complains that he was treated unreasonably by the
courts due to a conspiracy against him by the Satanic cult of
Freemasonry which involved, inter alia, the police, the courts and the
Procurator Fiscal. He complains under Article 6 para. 2 that he was
convicted when he was known to be innocent. He also complains under
Article 6 para. 3(a) of the Convention that he was not charged or
cautioned by the police and under Article 6 para. 3(d) that he was
refused an adjournment of the trial at first instance.
He further complains under Article 10 of the Convention that the
High Court did not allow him to express himself fully as regards his
appeal and under Article 14 of the Convention that he was discriminated
against because of the conspiracy against him. He further complains
that he was detained in a prison cell on the night of 18/19 February
1993 and that the police officers lied about this also.
THE LAW
1. The applicant complains that he was treated unreasonably by the
courts, convicted when known to be innocent and alleges a conspiracy
by the "Satanic cult of Freemasons" involving the courts, the
Procurator Fiscal and the police. He specifically complains that he was
not allowed an adjournment to call defence witnesses. In this respect,
he submits that the two police officers lied in evidence as regards the
amount of money he had with him when he arrived at the police station
and submits that, since he was not allowed copies of their statements
prior to the hearing, he was accordingly taken by surprise by their
evidence and he should have been granted the adjournment to establish
the true facts. The High Court on appeal, according to the applicant,
ignored the statements he obtained from those defence witnesses. In
these respects, the applicant invokes Article 6 paras. 2 and 3(d) of
the Convention
Since the specific guarantees contained in paragraph 3 of
Article 6 (Art. 6-3) of the Convention are specific aspects of the
general concept of a fair trial set forth in paragraph 1 of this
Article, in the circumstances of the present case, the Commission will
consider the complaint under Article 6 para. 3(d) (Art. 6-3-d) from the
angle of paragraph 1 of Article 6 (Art. 6-1) of the Convention taken
together with the principles inherent in paragraph 3 of that Article.
(see, for example, Eur. Court HR, Unterpertinger v. Austria judgment
of 24 November 1986, Series A no. 110, p. 14, para. 29). The Commission
also considers that the applicant's allegation made under Article 6
para. 2 (Art. 6-2) of the Convention, as to he being convicted when it
was known that he was innocent, is more properly considered under
Article 6 para. 1 (Art. 6-1) of the Convention.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, reads as follows:
"1. 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. ..."
With regard to the judicial decisions in the case, 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 errors of law
or fact on the part of 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 established case-law (see, for example, No.
12505/86, Dec. 11.10.88, D.R. 58 pp. 106, 110 with further references).
The Commission further recalls that as a general rule, it is for
the national court, and in particular for the court of first instance,
to assess the evidence before them as well as the relevance and
admissibility of the evidence which the accused seeks to adduce.
Article 6 para. 1 (Art. 6-1) of the Convention does not give an
unlimited right to have witnesses called and domestic courts may
exercise some discretion, provided that the Convention and particularly
the right to a fair hearing are respected in deciding whether the
hearing of defence witnesses is likely to establish the truth (Eur.
Court HR, Barbera, Messegue and Jabardo v. Spain judgment of 6 December
1988, Series A no. 146, p. 31, para. 68, No. 8417/78, Dec. 4.5.79, D.R.
16 p. 200 and No. 8231/78, Dec. 6.3.82, D.R. 28 p. 5).
Furthermore, only exceptional circumstances could lead the
Convention organs to conclude that a refusal to hear defence witnesses
violated Article 6 (Art. 6) of the Convention (see Vidal v. Belgium,
Comm. Report 14.1.91, Series A no. 235-B, pp. 38-39, paras. 47-49 and
Eur. Court H.R., Bricmont v. Belgium judgment of 7 July 1989, Series
A no. 158, p. 31, para. 89). The complete silence, for example, of a
judgment as to why a court rejected the hearing of a defence witness
is not consistent with the requirements of Article 6 (Art. 6) of the
Convention (see Eur. Court H.R., Vidal v. Belgium judgment, loc. cit,
pp. 32-33, paras. 33-34).
As to the present applicant's complaint about the refusal of an
adjournment in order to allow him to call defence witnesses, the
Commission notes that the applicant wished to introduce witness
evidence to counter evidence given by the police officers that the
applicant had £16.53 with him on arrival and on leaving the police
station, the applicant maintaining that he had approximately £60.00 and
that the police officers stole money from him at the station. However,
the Commission notes that the issue before the court was whether or not
the applicant incurred a taxi fare of £11.00 without paying or
intending to pay it and not whether the police officers misappropriated
money from him or not.
Insofar as the applicant submits that proof of his allegation of
theft would have discredited the evidence given by the police officers
in relation to the charge against him, the Commission notes that the
applicant claims that the police officers' evidence as to the amount
of money he retained and their denial of theft during the trial, took
him by surprise and he should therefore have been granted the
adjournment. However, the Commission notes that approximately six
months before the hearing the applicant lodged a complaint with the
Procurator Fiscal about alleged theft by those officers and therefore
the issue was not something which arose during the trial. In addition,
the Commission does not consider that it was unforeseeable that those
officers, in responding on cross-examination to questions posed by the
applicant, would have denied a charge of theft.
Moreover, the trial judge carefully considered the application
for the adjournment. The judge refused the application on the basis,
inter alia, that the applicant had ample time before the hearing to
call defence witnesses having been advised of the need to do so when
the notice of trial issued. The High Court similarly considered this
submission by the applicant concluding that the applicant was aware of
the relevant defence evidence and witnesses on the day of the trial.
Furthermore, the Commission notes that, while there is no entitlement
to copies of the prosecution witness statements, the applicant has
submitted no evidence to demonstrate that he made any application for
a list of the names of prosecution witnesses, that he requested an
indication from the Prosector Fiscal as to the nature of the
prosecution evidence, that he attempted to take precognition of any
prosecution witness prior to his trial or that he applied to take
precognition on oath in the case of a reluctant witness.
In such circumstances, the Commission considers that the refusal
of the adjournment of the trial does not disclose a violation of
Article 6 para. 1 (Art. 6-1) of the Convention.
As to the applicant's complaints about unreasonable treatment,
about a conspiracy against him and about he being convicted when the
authorities knew that he was innocent, the Commission finds no evidence
of a conspiracy as described by the applicant or at all or that the
applicant was convicted other than on the basis of the evidence against
him. In addition, it is noted that the hearing took place approximately
nine months after the summons issued against him, that the applicant
was given every opportunity to arrange his defence witnesses prior to
the trial, to make his case during the trial and to cross-examine
prosecution witnesses, that both courts carefully considered the
applicant's submissions and applications, that the District Court
delivered a detailed and reasoned report on the trial and that the High
Court's judgment was similarly detailed and reasoned. In such
circumstances, the Commission finds that these complaints of the
applicant do not disclose a violation of Article 6 (Art. 6) of the
Convention.
Accordingly, the applicant's complaints under Article 6
(Art. 6) of the Convention are manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant also complains under Article 6 para. 3(a)
(Art. 6-3-a) of the Convention that he was not cautioned or charged.
He also complains about being placed in a prison cell on the night of
18/19 February 1993. The Commission considers that such matters are
more appropriately considered under Article 5 (Art. 5) of the
Convention. However, the Commission notes that the only evidence
submitted by the applicant in these respects is his suggestion, made
to the police officers during their cross-examination by him, that he
was not charged or cautioned and was so placed in a prison cell which
suggestions were denied by both police officers. The Commission finds
that insofar as the applicant's submissions in this respect raise
issues under Article 5 (Art. 5) of the Convention, they are
unsubstantiated and, accordingly, manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further complains under Article 10 (Art. 10) of the
Convention that the High Court did not allow him to read aloud the
terms of his notice of appeal or of his prepared statement during the
appeal hearing and because he was not allowed to "express the full
terms of his appeal" at that hearing. The Commission has also
considered this complaint under Article 6 (Art. 6) of the Convention.
The Commission notes that the High Court had before it the
applicant's detailed notice of appeal (six pages) together with a copy
of his prepared statement. The High Court could not see any purpose in
allowing the applicant to read out his prepared statement since the
judges already had a copy of it before them. The Commission notes that
the applicant's detailed grounds of appeal were also before the High
Court, they having been previously filed in the High Court office. It
is also noted that the applicant does not allege that the judges of the
High Court did not have or did not read those documents. In addition,
the applicant has not specified in what other respect he was not
allowed to adequately express himself nor has he submitted that he was
prevented from making any oral submission.
In such circumstances, the Commission considers that this
complaint of the applicant does not disclose a violation of Articles 6
or 10 (Art. 6, 10) of the Convention and, accordingly, is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
4. Finally, the applicant further complains under Article 14
(Art. 14) of the Convention that he was discriminated against because
of the alleged conspiracy by the "Satanic cult of Freemasons" against
him.
The Commission recalls that this Article protects individuals in
analogous situations from a discriminatory difference in treatment in
the exercise of the rights and freedoms recognised by the Convention
and its Protocols. The Commission considers that the applicant's
allegations as to a conspiracy against him are unsubstantiated and that
the application does not otherwise disclose any difference in treatment
of the applicant as regards the rights and freedoms recognised by the
Convention and its Protocols. The Commission therefore considers that
this complaint is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
BURNS v. THE UNITED KINGDOM