European Court of Human Rights

FOURTH SECTION

DECISION

Application no. 2495/07
by Gerard MURPHY
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 9 June 2009 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Giovanni Bonello,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 19 December 2006,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Gerard Murphy, is a British national who was born in 1965 and lives in Mitcham. He was represented before the Court by Vickers & Co., a firm of solicitors practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr J. Grainger, Deputy Legal Adviser, Foreign and Commonwealth Office.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

On 22 August 2000 the applicant was arrested on suspicion of driving with excess alcohol and a breathalyser test was administered. He was subsequently charged and pleaded not guilty on 6 September 2000. He was represented throughout the domestic proceedings.

The applicant initially decided to defend the proceedings on the basis that the type of breathalyser machine used by the police was unreliable. He instructed an expert to examine the machine, who served his report on 26 February 2001. The case was listed for 2 March and 20 July 2001 but could not proceed on either occasion because the expert witnesses were not present.

On 13 July 2001 the case was listed for trial on 9 November 2001, but the hearing was subsequently vacated because it was decided that all intoximeter cases should be adjourned pending the decision of the High Court in a lead case, which was decided in February 2002.

The case was then listed for trial on 1 October 2002. On that date the applicant applied to adjourn the hearing, on the ground that he had changed his defence, to argue now that modifications to the intoximeter device used on him had taken it out of the type approved by the Secretary of State. Since he had not previously given notice of this defence, no disclosure relating to it had been made by the prosecution. The adjournment was granted and on 14 November 2002 the applicant filed his defence case statement, which raised five issues in his defence, connected to the accuracy of the intoximeter and its approval for use by the Secretary of State.

On a number of occasions between February and July 2003 the prosecution were ordered to provide disclosure of documents connected with the intoximeter but no such disclosure was made. The trial was listed for 23 February 2004 but did not proceed because the prosecution revealed for the first time that it was unable to comply with the orders for disclosure because the documents in question were in the possession of the manufacturer, which refused to disclose them on grounds of commercial confidentiality.

The trial was rescheduled for 12 October 2004. On 28 September 2004 an amended case statement was filed, in which the applicant indicated that he intended to abandon all his previous grounds of defence, except the argument that changes to the software used with the intoximeter took it outside the type-approval made by the Secretary of State.

On 12-13 October 2004 the case was heard by a district judge sitting in the Magistrates’ Court. The applicant made a preliminary application to dismiss it on the ground of delay, but the judge held that, despite the delay, a fair trial would still be possible. The applicant was subsequently convicted of driving with excess alcohol and sentenced to a fine and a period of disqualification.

The applicant lodged an appeal against conviction on 29 December 2005, on the ground, inter alia, of undue delay. The appeal was heard by the High Court on 20 June 2006. Mr Justice Mitting in the High Court observed as follows:

“... We have heard the appeal ... just under five years and ten months after his arrest. The recitation of those dates shows that something has gone seriously wrong with the administration of justice in this case. The fact that there were no fewer than 44 court appearances reinforces the point. Save in wholly exceptional circumstances or where a defendant absconds, no case before the magistrates should take over four years from arrest to trial, or involve anything like so many appearances. Indeed, no case should take five years and ten months from arrest to appeal to this court. Although the period between trial and appeal is not directly in issue in this appeal, it is to be noted that a little over eight months of that time is attributable to the delay on the part of the appellant and his representatives in lodging an appeal. The case was finally stated on 4 April 2005. The appeal was not actually lodged until 29 December 2005. That delay is symptomatic of that which occurred earlier in the proceedings.”

After setting out an abridged chronology of the proceedings, Mr Justice Mitting referred to the decision of the district judge on 12-13 October 2004 to refuse the application for a stay on the ground of delay:

“The district judge reminded himself correctly ... that proceedings should only be stayed for delay if a fair trial was no longer possible or if it would be unfair to try the defendant. Only the first principle was engaged. The case stated does not set out his reasons for rejecting the application in full; it simply records that he declined to find fault with the Magistrates’ Court, the Administrative Court (I understand that to be a reference to the cases that were decided whose outcome was awaited) or the prosecution. The finding which he must have made, that a fair trial could be had, was therefore implicit. He may also have found again implicitly that the delay had been caused by the defence. If he did make the latter finding, it would, in my view have been an incomplete, though correct, finding. It is true that the prosecution and the court appeared to have allowed the case to be stalled by unfounded applications for secondary disclosure made ostensibly to support unmeritorious technical defences which were, in the end, mostly rightly abandoned. But the remedy lay in their hands.

...

The material of which secondary disclosure was sought by the defence, which remained outstanding when the order of 8 July was made was ... never within the possession of the prosecution at any material time. Nor was it material which the prosecution could insist was given to it by a third party. If that be right, then this material was not material which the prosecution could ever have been required to disclose by way of secondary disclosure.

Further, some of the orders supposedly for disclosure made by the lay magistrates appear to have been for disclosure not of documents but of information. Again, such information can never properly be the subject of an order for secondary disclosure under sections 7 and 8 [of the Criminal Procedure and Investigations Act 1996].

The prosecution should have drawn the provisions of sections 7 and 8 to the attention of the court well before 23 February 2004. ...”

Nonetheless, the High Court found that the district judge had been correct not to stay the proceedings since none of the issues raised in the amended defence statement turned on the reliability of the memory of any witness. The applicant’s appeal was therefore dismissed.

COMPLAINTS

The applicant complained under Article 6 § 1 of the Convention about the unreasonable length of the proceedings and under Article 6 § 3(d) about the prosecution’s failure to disclose all relevant material.

THE LAW

On 7 May 2009 the Court received the following declaration from the Government:

“I, John Grainger, Agent of the Government of the United Kingdom, declare that the Government of the United Kingdom offer to pay ex gratia the sum of 1,500 euros, and £450 plus VAT for costs, to Mr Gerard Murphy with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

The sum in euros, which is to cover any pecuniary and non-pecuniary damage, will be converted into pounds sterling at the rate applicable on the date of payment. Both sums will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay these sums within the said three-month period, the Government undertake to pay simple interest on them, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 12 May 2009 the Court received a letter from the applicant and a signed declaration confirming the friendly settlement.

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, and subject to the usual provision that in the event of the Government’s failure to pay the above sum within three months of the date of adoption of the present decision, simple interest will be payable at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points, the Court considers that it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Fatoş Aracı Lech Garlicki
Deputy Registrar President