Statewatch article: RefNo# 21943
Right to a fair trial
Statewatch archive
Right to a fair trial
bacdoc September=1992

Braithwaite v UK (18.4.91) No 15123/89
European Commission on Human Rights

Facts

This application was made by Mark Braithwaite, one of the three
persons convicted of the murder of PC Blakelock. The only
evidence against him was his alleged and challenged confession
made in the absence of his legal representative. He alleged that
the trial judge failed to draw the jury's attention to several
points stressed by the defence. The applicant also complained
that the Court of Appeal found that the trial judge's direction
was balanced and fair and that the applicant's account in his
interview amounted to a confession.

Decision

The commission declared the application inadmissible. It decided
that the applicant should have challenged the admissibility of
the confession evidence during the course of the trial, in his
grounds of appeal and in argument before the Court of Appeal. He
had thus not exhausted his domestic remedies. The commission
rejected the submission that the trial judge should have excluded
the evidence. The commission went on to say that:

`In any event, although section 76(2) of PACE provides that
a trial court is required not to allow a confession to be
given in evidence if it is represented to the court that it
was or may have been obtained by oppression or in
consequence of something said or done which was likely to
render the confession unreliable, the applicant's lawyers
do not appear to have made any representation to the trial
court that oppression was involved in the course of
interviews. Section 76(3) specifically allows a court not
to allow a confession to be given in evidence except in so
far as the prosecution proves beyond reasonable doubt that
it was not obtained by oppression. It has not, however,
been substantiated that there was any material before the
court which would lead a court to apply that provision. No
argument was made in the applicant's grounds of appeal to
the Court of Appeal that oppression was involved such that
the Central Criminal Court should have excluded the
evidence of its own motion.'

Comment

The European Commission has always been reluctant to act as a
final court of appeal in criminal cases and it is likely that the
outcome of the case may not have been any different had it
reached the court. Article 6 provides the defendant with a right
to a `fair and public hearing', `to have adequate time and
facilities for the preparation of his defence' and `to defend
himself in person or through legal assistance of his own
choosing'.

This may be the first case under the European Convention to deal
with s76 of PACE. It indicates the strict approach that may be
taken to procedural hurdles like the prior exhaustion of domestic
remedies.


Quaranta v Switzerland (24.5.91) Series A, Vol 205
European Court of Human Rights

Facts

The applicant, a young person on probation, was charged with
drugs offences and risked up to three years' imprisonment. He was
of foreign origin and from an underprivileged background with no
occupational training. He had a long criminal record, took drugs
and at the time was living on social security. Legal aid was
refused at first instance, although it was subsequently granted
for an appeal.

Decision

The court decided that the right to free legal assistance in
criminal cases (article 6(3)(c)) is dependent on the inter-
pretation of the `interests of justice'. It held that legal aid
should have been granted initially and that the fact that it was
granted for appeal to a higher court did not cure the original
defect.

Comment

The legal aid provisions in Switzerland appear to be inadequate
and it is hoped that legal aid would never have been refused in
similar circumstances in this country.


Demicoli v Malta (27.8.91) Series A, Vol 210

E

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