No Justice in Europe

On the 29th of October three members of the European Commission of Human rights (ECHR), sitting in private and without any form of representation, ruled the Application of Mark Barnsley alleging 73 violations of Article 6 of the European Convention on Human rights (Right to a fair trial) inadmissible. No reasons have been given for this decision, and it is not appealable.

"The procedure for taking a case to the Human Rights Court is daunting and cumbersome. An applicant begins by writing to the European Commission of Human Rights at Strasbourg. The Commission filters out cases which are inadmissible...Commission staff have been receiving about 5,500 cases a year, of which only about 200 are declared admissible. In 1992 just 12 British applications were found admissible out of 222 submitted." Joshua Rozenberg, The Search For Justice. ?

There are a number of popular misconceptions about the ECHR, and even the vast majority of lawyers in this country do not have more than the vaguest idea of how it operates. Firstly, it should be made clear that the ECHR is not itself the European Court of Human Rights, but a lesser body which examines whether or not applications meet all the technical requirements, before either rejecting them (which it does in over 96% of cases) or accepting them for further action and possible eventual referral to the European Court (which it does in around 2% of cases.)

"There have been more than 20,000 applications to the Commission, but by July 1993 only 415 cases had been referred to the Human Rights Court." Joshua Rozenberg, The Search For Justice. ?

Another popular misconception is that the ECHR and/or the European Court are empowered to deal with miscarriages of justice. In fact neither body has this power, (the purpose of the former body is explained above,) even the European Court merely decides whether or not specific Articles of the European Convention on Human Rights (in this case the right to a fair trial) have been violated. The European Court has no powers to quash convictions, order retrials, or even refer cases back to the domestic Court of Appeal. Ultimately the Commission and Judges are proposed by the various states and inevitably a number tend to be `establishment-minded'...The Commission is showing signs of applying increasingly severe admissibility criteria to staunch the flow of cases to the Court and thereby many very important cases have, for purely technical reasons, not been able to proceed." Luke Clements, European Human Rights.

In order to save time for the European Court the ECHR rejects a large number of applications on the pretext that they do not fulfil any of a number of technical criteria. Unfortunately, obtaining adequate legal information on what precisely is required is extremely difficult in this country, since so few lawyers understand måuch about the European Convention or the machinations of the ECHR, and in any case no legal aid is available for the purpose of advice or assistance in preparing applications. All that Mark Barnsley had to assist him were a couple of pages of notes hand-written by another prisoner.

One criteria which particularly applies here is that the ECHR will reject applications if they are not supported by full documentation (the onus is on the applicant to assume exactly which documentation the ECHR require.) In Mark's case, he was unable to supply the necessary supporting documentation precisely because, despite nearly 20 letters from Mark and his lawyers to the Crown Prosecution Service (CPS), they are still unlawfully refusing to hand it over. As the CPS know full well, without this documentation it was inevitable that Mark's application was doomed to failure. Legally and morally it is a ridiculous situation. It is regrettable that having already been denied the right of an appeal hearing against his conviction in this country, Mark has now been prevented from demonstrating before the European Court how the British State clearly violated his right to a fair trial.

Because all applications to the ECHR are covered by a confidentiality clause which forbids discussion of the applic tion, on penalty of it being ruled inadmissible, we have not hitherto been able to reveal the precise details of Mark's application, which alleged no less than 73 violations of Article 6 (Right to a fair trial) of the European Convention on Human Rights. We believe that the allegations made in Mark's application are unassailable and provable.

They include the following:

1) That the Prosecution acted unlawfully to 'ambush' the Defence, by introducing extremely dubious 'evidence' (which should have been listed in advance) during the trial. Because of the way this 'evidence' was introduced the Defence were not in a position to call its own counter-evidence to refute it.

2) That the Prosecution did not supply copies of the evidence introduced during the trial to the Defence,and in one case even removed a page of potentially vital evidence from a medical report.

3) That there was a virulent press and television campaign which was hopelessly biased in favour of the Prosecution, and which helped to influence witnesses and prejudice the trial. The coverage featured interviews with the complainants and other Prosecution witnesses before they had given evidence, it was frequently hysterical, often inaccurate and mi leading, and at times claims were made by the media which went way beyond the Prosecution åcase at its worst, and which even 'led aspects of the Prosecution case'. The coverage also showed pictures of Mark in custody, and 2 photocopies of newspaper 'reports' published in Sheffield's The Star newspaper, entitled respectively; "Five Stabbed for Poking Fun at Girlfriend." and "Scarred For Life." were even included in the depositions.

4) That despite numerous written requests by the Defence, and court rulings supporting these requests, a large amount of evidence which should have been served prior to trial was deliberately withheld by the Prosecution. This evidence includes the following:

a) A copy of the Crime Report.

b) Copies of any draft statements.

c) Notes taken during the preparation of statements.

d) Notes taken during the preparation or examination of exhibits and interviews.

e) Details of, and documents relating to, the six people arrested prior to the arrest of Mark Barnsley.

f) Copies of Police notebooks.

g) Details of the previous convictions and/or findings of guilt and/or disciplinary proceedings against anyone involved in the case.

h) A copy of the search warrant.

i) A copy of the `Search Register.'

j) Photocopies of the original hand-written statements.

k) Transcripts of any 999 calls made in connection with the incident.

I) Copies of photographs.

5) In their Police statements a number of Prosecution witnesses named a student who was involved in the incident. The Defence have reason to believe that this person may have vital evidence about the attack on Mark, and the production and subsequent disappearance of the knife. He was a friend of most of the other students involved (including the complainants), and in fact on the same course as some of them, but despite the fact that the Police arrived within minutes of the incident, (and that 5 of his friends had been injured) this man left the scene, along with 2 other student witnesses prior to their arrival. No subsequent statements were apparently taken from these three men, despite the fact that they were named by a number of other witnesses. The Prosecution made an undertaking to the court that they and the Police would do everything possible to find these individuals. The Defence alleges that because it was not in their interest the Police and CPS made no realistic attempt to locate these men, or alternatively that they knew of their whereabouts and deliberately withheld this information from the Defence.

6) There were 5 charges on the indictment against Mark: five counts of `Wounding with intent, contrary to Section 18 of the Offences Against the Persons Act 1861.' No alternative lesser charges (e.g. Section 20 wounding) were recorded on the indictment, and even when the judge asked before the trial if the Prosecution were prepared to consider offering lesser charges they declined to do so. Yet, after Mark had given evidence and the Defence case was effectively over, the Prosecution asked that the judge offer alternative lesser charges of Section 20 wounding to the jury in addition to the 5 Section 18 charges. The jury subsequently found Mark `not guilty' of Section 18 wounding in respect of counts 1, 4 and 5, but `guilty' of Section 20 wounding. Thus, Mark was convicted of 3 offences with which he was never charged, to which he did not have the opportunity to offer pleas or a defence and which were not even formally added to the indictment.

7) That representatives of the State (namely prison officers) wilfully destroyed or stole evidence.

8) Under British law one of the Prosecution's legal obligations is that they serve the Defence with a `Case Summary,' which outlines their evidence, to which a Defence can be offered (or not, in the case of a `guilty' plea.) In this case the Prosecution did not submit a full and proper summary of their case, or of the evidence they intended to use. The Prosecution deliberately misled the Defence in order to prevent them from being in a realistic position to challenge the dubious unlisted `evidence' the Prosecution were allowed to introduce during the trial.

9) That at least one member of the jury violated his conditions of jury service, and had a vested interest in the outcome of the case to the detriment of the Defence.

10) That the Prosecution were allowed to rely on so-called `expert' evidence from `experts' who either had no qualifications in the subject they were talking about, or who exceeded their area of expertise.

11) That the Prosecution deliberately misled and misinformed one of these `experts' in order to prejudice his report in their favour.

12) That the Judge displayed a clear bias against the Defence throughout the trial, that he suppressed evidence, ignored perjury misled and misinformed the jury by misrepresenting and misquoting witness evidence, and that he ultimately ignored the jury's verdict and Mark's mitigation when passing sentence.

13) That the student witnesses openly colluded with each other, and discussed their evidence with each other, before and after giving it in court.

14) That a Police officer involved in the case, on 2 occasions, deliberately lied to the Defence solicitors in an attempt to suppress evidence of drug use by the complainants.

15) That the CPS also attempted to suppress this evidence (blood samples) by delaying access to it in the knowledge that it would deteriorate and in the belief that it would be destroyed.

16) That the Prison authorities deliberately undermined the preparation of Mark's Defence by transferring him out of his normal prison region, suddenly, in unusual circumstances, for no valid reason, and against the requests of himself and his solicitor. They did this shortly before his trial, at a time when they knew it would cause maximum damage by preventing pre-arranged visits with medical and forensic experts and with Mark's lawyers.

17) That the Prison authorities unlawfully opened mail between Mark and his solicitor, and monitored and recorded all Mark's legal phone calls.

18) That Mark was questioned by the Police without the presence of his solicitor or any form of legal representation.

19) That during the first 24 hours Mark was in custody he did not have the benefit of a qualified solicitor.

20) That the Prosecution, the Police, or their agents `doctored' photographs in order to mislead the Defence.

21) That lawyers acting for Mark (his barrister and QC) were negligent in the preparation of his defence, and incompetent in its presentation, that they acted contrary to his instruction, failed to attend conference, misled and misinformed him, betrayed client confidentiality, kept documents and evidence from him, lost documents and evidence, that they failed to return legal documents, and that they took important legal decisions without consulting either Mark or his solicitor. These then are some of the alleged violations of the European Convention on Human Rights, but there are in addition many other matters which significantly contributed to Mark's miscarriage of justice without technically violating the narrow terms of the Convention. Such as, for example, the `planting' and fabrication of evidence, and the perjury of the complainants and other Prosecution witnesses. While it is highly regrettable that the ECHR are not prepared to allow Mark the opportunity to argue his case in the European Court, and to present evidence which supports the allegations that his rights to a fair trial were deliberately violated by agents of the British state, Mark's struggle for justice goes on.

"The odds were so heavily stacked against me in making this application that what has happened, though disappointing, is no great surprise. How can anyone be expected to get justice in the European Court when no legal aid is available to help with making an application, the technicalities of which many lawyers find daunting. Also, where the Prison authorities, the CPS and other arms of the British legal and judicial establishment have been allowed to withhold vital papers and evidence needed to support the application, and to interfere in other ways with my ability to make it. That the Police and CPS deliberately suppressed and withheld evidence prior to my trial; that the Judge misled and manipulated the jury, and suppressed and misrepresented evidence; that every attempt possible was made by the British State to obstruct justice; these things are, I believe, unassailable facts, and I regret that I have been denied the opportunity to present the clear and irrefutable evidence which supports these allegations to the European Court. My fight for justice will not be thwarted by a cabal of Strasbourg bureaucrats. My struggle will continue."

Mark Barnsley, Full Sutton Prison.

Mark has been invited to submit his case to the Criminal Cases Review Commission (CCRC), and an application is currently being prepared which will hopefully contain a great deal of evidence not heard by the jury at Mark's trial. However, having already conspired with the Police and Judiciary to fit Mark up, and having effectively contributed to the sabotage of his application to the ECHR, the CPS are continuing to withhold the documents and evidence Mark needs for his application to the CCRC. This is the same evidence which should lawfully have been served prior to Mark's original trial in July 1995. We demand that the CPS finally hand over this evidence.

"It is wrong to keep innocent people in prison. That is a truth so basic that no amount of politics, of bureaucratic expediency and judicial casuistry, can alter it. Yet the shaming fact is that the continued incarceration of the innocent is nothing less than national policy. There can be no sadder reflection on the state of Britain today than that there seems to be no one in the legal or political hierarchies with the moral fibre, with the simple human decency to want to do anything about it."

Anon? (unless you know different).