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EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 25901/94

Andrew Graham Russell

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 3 December 1997)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-8) . . . . . . . . . . . . . . . . . . . . . .1

II. ESTABLISHMENT OF THE FACTS

(paras. 9-22). . . . . . . . . . . . . . . . . . . . . .2

III. OPINION OF THE COMMISSION

(paras. 23-36) . . . . . . . . . . . . . . . . . . . . .4

A. Complaint declared admissible

(para. 23). . . . . . . . . . . . . . . . . . . . .4

B. Point at issue

(para. 24). . . . . . . . . . . . . . . . . . . . .4

C. As regards Article 6 para. 1 of the Convention

(paras. 25-36). . . . . . . . . . . . . . . . . . .4

CONCLUSION

(para. 36). . . . . . . . . . . . . . . . . . . . .5

APPENDIX I : PARTIAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION . .6

APPENDIX II : FINAL DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF THE APPLICATION . 12

I. INTRODUCTION

1. The present Report concerns Application No. 25901/94 introduced

on 12 October 1994 against the United Kingdom and registered on

9 December 1994.

2. The applicant is a British citizen, born in 1962 and currently

serving a prison sentence in the United Kingdom.

3. The applicant is represented before the Commission by

Messrs. B. M. Birnberg & Co., solicitors practising in London.

4. The respondent Government are represented by Mr. I. Christie,

Agent of the Government of the United Kingdom.

5. The application was declared partly inadmissible on

28 February 1996. On the same date, the Commission decided to

communicate the complaint concerning the length of the proceedings to

the Government. Following an exchange of written observations, the

complaint relating to the length of proceedings (Article 6 para. 1 of

the Convention) was declared admissible on 9 April 1997. The decisions

on admissibility are appended to this Report. The Government submitted

further observations on the merits of the case on 19 June 1997.

6. Having noted that there is no basis upon which a friendly

settlement within the meaning of Article 28 para. 1 (b) of the

Convention can be secured, the Commission (First Chamber), after

deliberating, adopted this Report on 3 December 1997 in accordance with

Article 31 para. 1 of the Convention, the following members being

present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

7. In this Report the Commission states its opinion as to whether

the facts found disclose a violation of the Convention by the United

Kingdom.

8. The text of the Report is now transmitted to the Committee of

Ministers of the Council of Europe, in accordance with Article 31

para. 2 of the Convention.

II. ESTABLISHMENT OF THE FACTS

9. The applicant was arrested on 31 January 1988 and questioned in

connection with an escape from Gartree prison, Leicestershire, in

December 1987. On 3 February 1988 he was again questioned, in the

presence of his solicitor, in connection with the escape, and also in

connection with his responsibility for a robbery which had taken place

in London on 13 January 1988.

10. The proceedings relating to the escape continued, but the

applicant heard nothing more about the robbery. On 15 November 1988

the applicant's solicitors asked the Crown Prosecution Service (CPS)

whether any steps were to be taken in connection with the robbery. The

CPS replied on 5 December 1988 that the prosecutor had "decided that

there is insufficient evidence against [the applicant] to justify

prosecution".

11. On 19 June 1989 the applicant was convicted of offences relating

to the escape from Gartree prison.

12. On 25 July 1989 the CPS wrote to the applicant's solicitors that

they had now decided to prosecute the applicant in respect of the

robbery. They said that "no steps [were] taken in this matter earlier

to avoid publicity while your client's trial in respect of the ...

escape was being held ...".

13. On the following day, 26 July 1989, the CPS applied to a High

Court judge, ex parte and without giving notice to the applicant's

solicitors, for the issue of a voluntary bill of indictment. In the

supporting affidavit no reference was made to the letter of

5 December 1988. The application was granted and a voluntary bill of

indictment was issued charging the applicant with, inter alia, robbery.

14. The case was initially listed for trial on 18 April 1990. After

an unsuccessful application by the applicant to change the trial venue,

the fixture was moved to 30 May 1990. At the commencement of the trial

the applicant sought to stay the proceedings and submitted to the trial

judge that the prosecution was an abuse of process on the basis of

delay coupled with the prejudice caused by the reversal of the CPS's

decision not to prosecute. This submission was rejected by the trial

judge on 1 June 1990.

15. On 6 June the applicant sought leave from the Divisional Court

to apply for judicial review, in respect of the trial judge's refusal

to stay the proceedings. The Divisional Court adjourned the

application, to await the outcome of a related case concerning the

jurisdiction of the Divisional Court in this area. It was held on

15 November 1990, in this related case, that the Divisional Court did

have jurisdiction over such matters. On 11 July 1991 the application

to the Divisional Court, for leave to apply for judicial review, was

heard and leave was granted.

16. On 7 November 1991 the Divisional Court heard the substantive

judicial review application and ruled that there had been no abuse of

process.

17. The case was listed for mention on 14 February 1992, when the

trial judge fixed the trial for 16 March 1992.

18. On 16 March 1992 the applicant's trial commenced, but the trial

was adjourned to 19 March 1992 for the applicant to instruct counsel

(the applicant had until that point chosen not to be represented by

counsel).

19. On 19 March 1992, the applicant's trial resumed and he was

represented by leading and junior counsel.

20. The applicant was convicted, inter alia, of robbery on

25 March 1992.

21. The applicant applied for leave to appeal against conviction and

sentence on 1 May 1992. The applicant made two requests

(4 November 1992 and 18 January 1993) for the consideration of the

appeal to be delayed. On 28 February 1993 leave to appeal against

conviction and sentence was refused by a single judge. On

25 March 1993 the applicant gave notice that he wished to renew his

application before the full court. In June 1993 and on 23 August 1993

the applicant's solicitors sought extensions of time, on the grounds

of lack of funds. On 10 October 1993 the applicant requested a further

deferral in order to instruct counsel. The application was listed to

be heard on 19 April 1994 although, subsequent to counsel's written

request, the case was relisted for 13 May 1994.

22. On 13 May 1994 the applicant was represented by counsel. His

application for leave was refused by the full Court of Appeal. The

Court of Appeal, agreeing with the single judge, considered that there

was ample evidence to put before the jury, and found no material

irregularity in the case.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

23. The Commission has declared admissible the applicant's complaint

that his case was not heard within a reasonable time.

B. Point at issue

24. The only point at issue is whether the length of the proceedings

complained of exceeded the "reasonable time" requirement referred to

in Article 6 para. 1 (Art. 6-1) of the Convention.

C. As regards Article 6 para. 1 (Art. 6-1) of the Convention

25. The relevant part of Article 6 para. 1 (Art. 6-1) of the

Convention provides as follows :

"In the determination of ... any criminal charge against him,

everyone is entitled to a ... hearing within a reasonable time

by [a] ... tribunal ..."

26. The proceedings in question concerned the criminal charge of

robbery and related offences brought against the applicant and they

accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of

the Convention.

27. The Commission recalls that the reasonableness of the length of

the proceedings must be assessed in the light of the particular

circumstances of the case and with the help of the following criteria:

the complexity of the case, the conduct of the parties and the conduct

of the authorities dealing with the case (see Eur. Court HR, Kemmache

v. France judgment of 27 November 1991, Series A no. 218, p. 27,

para. 60).

28. According to the respondent Government, the length of the period

in question is due to the complexity of the preliminary issue in the

case concerning the question whether the applicant's trial should

proceed despite the initial indication by the Crown Prosecution Service

in 1988 that there would be no prosecution. The Government also

consider that the applicant's conduct contributed to the length of the

proceedings. The Government further argue that the proceedings began

for the purposes of Article 6 para. 1 (Art. 6-1) only when he was

charged on 26 July 1989. The applicant contests the Government's

submissions.

29. The Commission considers that the proceedings began on

3 February 1988 when the applicant was first questioned about the

robbery. That date is the date on which the applicant's situation was

substantially affected by the proceedings against him (Eur. Court HR,

Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24,

para. 46 and Eckle v. the Federal Republic of Germany judgment of

15 July 1982, Series A no. 51, p. 33, para. 73). The proceedings ended

on 13 May 1994 when the applicant was denied leave to appeal by the

full Court of Appeal (see above mentioned Eckle v. Germany judgment,

p. 34, para. 76). They thus lasted a total of just over six years and

three months.

30. The Commission considers that the present case in itself had no

special complexity. However, the applicant's interlocutory application

to stay the proceedings as an abuse of process, and the subsequent

judicial review of the judges' rejection of this application, did

lengthen the proceedings considerably.

31. The Commission considers that the delay prior to the initial

listing of the trial in April 1990 is attributable to the competent

judicial authorities, even though it is not clear that proceedings were

pending between 5 December 1988 and 25 July 1989.

32. The interlocutory proceedings which the applicant brought impeded

the progress of the case, as these proceedings were being dealt with

from 30 May 1990 (when the application was first made) to

7 November 1991 (when the Divisional Court ruled that there had been

no abuse of process). In that period, the trial judge refused the

applicant's submission, the Divisional Court dealt with a related case,

leave to apply for judicial review was granted and the application was

refused. Although the Government remain responsible for the length of

these proceedings, the Commission considers that it cannot be said that

they lasted unreasonably long, given that the applicant had initiated

them and that the interlocutory proceedings had to be adjourned for

six months pending the outcome of a related case.

33. The period between the dismissal of the "abuse of proceedings

application" on 7 November 1991 and the conclusion of the applicant's

trial was less than five months which the Commission considers to be

reasonable.

34. The applicant was convicted on 25 March 1992 and applied for

leave to appeal against conviction and sentence on 1 May 1992. There

was a two year delay before the application was refused by the full

Court of Appeal on 13 May 1994. The Commission notes that this period

can be split into two parts, the period from 1 May 1992 to

23 February 1993 when leave was refused by a single judge, and the

period from 25 March 1993, when the applicant appealed to the full

court, to the final decision on 13 May 1994. During the first period

(11 months) the applicant made two requests that the consideration of

the appeal be delayed (4 November 1992 and 18 January 1993). In the

subsequent period (approximately 14 months), the applicant's solicitors

sought three time extensions (in June 1993, 23 August 1993 and

10 October 1993) and the applicant's counsel sought a further deferral

on 19 April 1994. In the circumstances the Commission considers that

this two year delay, between the application to appeal against

conviction and sentence, and the final refusal of this application by

the Court of Appeal, was largely attributable to the applicant's own

conduct of the case.

35. Having regard to all the circumstances, and to the fact that in

a period of something over six years the courts dealt with the

substantive proceedings at three levels - the first instance, the leave

to appeal proceedings and then the substantive appeal - and the

interlocutory question of whether the proceedings constituted an abuse

of process was also determined by the Divisional Court, the Commission

concludes that the proceedings as a whole cannot be said to have

exceeded the "reasonable time" requirement.

CONCLUSION

36. The Commission concludes, by 9 votes to 8, that there has been

no violation of Article 6 para. 1 (Art. 6-1) of the Convention.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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RUSSELL v. THE UNITED KINGDOM

RUSSELL v. THE UNITED KINGDOM

LEXI