Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16757/90

S.

against

the UNITED KINGDOM

REPORT OF THE COMMISSION

(adopted on 21 October 1992)

TABLE OF CONTENTS

page

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1-2

(paras. 1-15)

A. The application (paras. 2-4). . . . . . . . . . . . . . . 1

B. The proceedings (paras. 5-10) . . . . . . . . . . . . . . 1

C. The present Report (paras. 11-15) . . . . . . . . . . . 1-2

II. ESTABLISHMENT OF THE FACTS. . . . . . . . . . . . . . . . . 3-6

(paras. 16-32)

A. Particular circumstances of the case. . . . . . . . . . 3-5

(paras. 16-26)

B. Relevant domestic law and practice. . . . . . . . . . . 5-6

(paras. 27-32)

III. OPINION OF THE COMMISSION . . . . . . . . . . . . . . . . . 7-9

(paras. 33-44)

A. Complaint declared admissible . . . . . . . . . . . . . . 7

(para. 33)

B. Point at issue (para. 34) . . . . . . . . . . . . . . . . 7

C. Article 6 of the Convention . . . . . . . . . . . . . . 7-8

(paras. 35-43)

D. Conclusion (para. 44) . . . . . . . . . . . . . . . . . . 9

Dissenting opinion of Mr. L. Loucaides joined . . . . . . . . . . .10

by MM A.S. Gözübüyük and C.L. Rozakis

Dissenting opinion of Mr. E. Busuttil . . . . . . . . . . . . . . .11

APPENDIX I History of the proceedings . . . . . . . . . . . .12

APPENDIX II Decision on the admissibility. . . . . . . . . 13-16

of the application

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The applicant is a British citizen born in 1955 and currently

serving a prison sentence in HM Prison Long Lartin.

3. The application is directed against the United Kingdom. The

respondent Government are represented by their Agent,

Mrs. Audrey Glover of the Foreign and Commonwealth Office.

4. The case concerns the applicant's complaint that he did not

receive a fair trial since he was unable to hear the proceedings during

his trial. It raises issues under Article 6 of the Convention.

B. The proceedings

5. The application was introduced on 8 January 1990 and registered

on 20 June 1990.

6. On 13 July 1990, the Commission decided to give notice of the

application to the respondent Government and invite them to submit

observations on its admissibility and merits.

7. The Government submitted their written observations on

24 April 1991. The applicant made no further observations.

8. On 1O February 1992, the Commission declared the application

admissible.

9. The parties were then invited to submit any additional

observations on the merits of the application. On 19 March 1992, the

applicant submitted additional observations. On 22 September 1992, the

Government filed additional submissions.

10. After declaring the case admissible, the Commission, acting in

accordance with Article 28 (b) of the Convention, placed itself at the

disposal of the parties with a view to securing a friendly settlement

of the case. In the light of the parties' reactions, the Commission

now finds that there is no basis on which a friendly settlement can be

effected.

C. The present Report

11. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD

S. TRECHSEL

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

12. The text of the Report was adopted by the Commission on

21 October 1992 and is now transmitted to the Committee of Ministers

in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 para. 1 of the

Convention, is

1) to establish the facts, and

2) to state an opinion as to whether the facts found disclose

a breach by the State concerned of its obligations under

the Convention.

14. A schedule setting out the history of the proceedings before the

Commission is attached hereto as APPENDIX I and the Commission's

decision on the admissibility of the application as APPENDIX II.

15. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. Particular circumstances of the case

16. On 8 June 1988 the applicant stood trial at Norwich Crown Court

on two counts of rape, one count of indecent assault, one count of

unlawful sexual intercourse, one count of kidnapping and two counts of

making threats to kill. He was represented by solicitor and counsel.

17. During the course of the trial the applicant was placed in the

dock at the front of which was a glass screen. It appears from the

transcript that the applicant was able to hear the indictment read out

at the beginning of the trial and to plead "not guilty" in response.

The applicant was unable to hear some of the evidence. He made

complaints to his solicitor, who passed them on to counsel, and to

counsel directly during the course of trial, but they made no

application to the judge to have the applicant moved to a place where

he could hear. He also complained to the prison officer on duty in the

dock that he could not hear. At the end of each day, the applicant's

solicitor and counsel informed him of the substance of what had been

said.

18. During the trial, evidence was given, inter alia, by M., the

alleged victim of the offences who was a fifteen year old girl, and her

mother and sister. When M. gave evidence, the judge directed that she

be moved nearer to himself and the jury since it was difficult to hear

what she was saying.

19. On 15 June 1988, the applicant was convicted on four of the

counts (one count of rape, one of indecent assault , the count of

kidnapping and one count of making threats to kill). He was sentenced

to a total of 10 years in prison. He was unable to hear the judge when

he passed sentence.

20. The applicant's counsel advised that there were no grounds of

appeal against conviction or sentence. The applicant, unrepresented,

applied for leave to appeal against conviction on the grounds, inter

alia, that he could not hear the proceedings. On 13 September 1988 a

single judge refused leave to appeal to the Court of Appeal against

conviction. The applicant's complaint that he could not hear was not

mentioned in the refusal of leave.

21. The applicant complained to the Solicitors' Complaints Bureau

about the handling of his case by his legal representatives. In a

letter dated 19 December 1988 to the Bureau, the applicant's solicitor

commented as follows on the applicant's allegations that he had taken

no action in respect of the applicant's inability to hear the evidence

at his trial.

"[The applicant]'s trial was apparently the first case to be

heard at the new Norwich Crown Court building. Throughout the

trial [the applicant] sat silently in the dock. He told me that

he is someone who has a hearing problem. I assume that his

failure to hear what was said relates mainly to the evidence

given against him by the complainant M. The prosecution

allegation was that [the applicant] had abused, raped, kidnapped

and threatened to kill M. and that this conduct had been going

on for about two years. She claimed to have told no one because

of her fear of violence from [the applicant] and because of

threats he allegedly made to harm her and her family. She spoke

in a soft voice and the Judge directed that she should give her

evidence sitting at a table positioned between Counsel and the

judge. This meant that she was closer to the jury and her upper

body was therefore visible to the jury rather than obscured by

the witness box. Notwithstanding this she gave her evidence with

her head bowed answering questions often with one word answers

in a soft voice. I was nearer to her than the defendant. I

could hear what she was saying. It is clear that the jury, the

Judge and Counsel could also hear. Because of the court layout

it would have been difficult for the defendant to have heard but

not impossible if his hearing had been unimpaired. I had taken

full instructions from [the applicant] upon the committal papers

in the form of a 22 page statement. Counsel was in my view very

well acquainted with the detail of that statement and put to the

complainant all matters which should have been put. I agree that

[the applicant] told me and Counsel that he could not hear

everything that was being said. Counsel took the view (which I

shared) that as she and the jury could hear and as she would no

doubt have had the opportunity of taking instructions upon any

matters arising which were not contained in her brief, then there

was nothing which needed to be done. It is my view that if [the

applicant] had been placed close to the complainant and facing

her at the time that she was giving her evidence, then this would

have been viewed by the jury as an indication of the intimidating

behaviour of [the applicant] about which M. was complaining."

The applicant disputes that he told his solicitor that he had a

hearing problem and denies that he has any such problem.

22. The applicant renewed his application for leave to appeal to the

Court of Appeal on the same grounds as before, including a letter from

Prison Officer Smith, which stated:

"I was in the dock with the [applicant] and on

several occasions during the day, he asked me what was

happening as he could not hear the witnesses' statements.

On at least 3 occasions I called his solicitor and he was

told the problem. On one of these occasions he told the

[applicant] not to worry as his barrister was doing a good

job. I have to say that I could not hear what the witnesses

were saying."

23. On 6 October 1989 the application was refused by the Court of

Appeal. In his judgment, Lord Justice Walker said as regards the

applicant's complaint that he did not receive a fair trial on being

unable to hear the proceedings:

"We have seen a letter from a prison officer

relating to this matter. There would appear to be

something in the complaint of the applicant,

namely, that he could not hear properly at all

times what was going on. There is no doubt in

our minds, however, that his solicitor and his

counsel had not the slightest difficulty in

following the proceedings and in representing him

in a way which could not possibly be complained

about."

24. On 6 November 1989 the applicant wrote to Norwich Crown Court

complaining about the acoustics. He was informed that as a result of

a recent complaint the acoustics of the court were under review.

25. On 10 November 1989, the applicant was informed by letter from

the Registrar of Criminal Appeals that he could not appeal to the House

of Lords, since he had not had an appeal dismissed by the Court of

Appeal.

26. A similar complaint concerning acoustics in the courtroom in

which the applicant had been tried was made in another case over a year

later. As a result, a report was commissioned concerning the

acoustics. This report, which was completed in 1990, concluded that,

although the glass screen had the effect of reducing the sound level

in the dock by 2dBA, a person speaking from the Bench was nonetheless

intelligible. It recommended that a sound reflector be installed above

the dock to counteract the effect of the glass screen.

B. Relevant domestic law and practice

Presence of the accused

27. In England and Wales, the right of an accused to be present in

court at his trial is a matter of common law and not statute law. The

right of an accused to hear the proceedings is an adjunct of this

common law rule.

28. The general common law rule was stated by Lord Reading CJ in

R. v. Lee Kun (1916) 1 KB 337 at 341, (1915) 11 Cr App R 293 at 300,

as follows:

"There must be very exceptional circumstances to justify

proceeding with the trial in the absence of the accused. The

reason why the accused should be present at the trial is that he

may hear the case made against him and have the opportunity ...

of answering it. The presence of the accused means not only that

he must be physically in attendance, but also that he must be

capable of understanding the nature of the proceedings."

29. The trial judge may, if he considers that the accused in the dock

may intimidate a witness, remove the accused from the presence of the

witness, though not out of hearing: see R v. Smellie (1919) 14 Cr App

R 128, Court of Criminal Appeal (the appellant was compelled to sit on

the stairs leading out of the dock out of sight of a child witness

while she was giving her evidence).

Appeal procedure

30. A person convicted of an offence on indictment in England and

Wales may appeal to the Court of Appeal against his conviction:

Criminal Appeal Act 1968 (hereinafter referred to as CAA 1968), s.1(1).

The appeal may be on any ground which involves a question of law alone

and, with the leave of the Court of Appeal, on any ground which

involves a question of fact alone, or a question of mixed law and fact,

or on any other ground which appears to the Court of Appeal to be a

sufficient ground of appeal.

31. Leave may be granted by the Court of Appeal or by a single judge

of the court: CAA 1968, s.1(2)(b), 31(1), (2)(a). If the single judge

refuses an application on the part of an appellant to give leave to

appeal, the appellant is entitled to have the application determined

by the full Court of Appeal: CAA 1968, s.31(3).

32. The Court of Appeal must allow an appeal against conviction if

it thinks that the conviction should be set aside on the ground that

under all the circumstances of the case it is unsafe and unsatisfactory

(CAA 1968, s.2(1)(a)), or the judgment of the court of trial should be

set aside on the ground of a wrong decision on any question of law

(s.2(1)(b)), or that there was a material irregularity in the course

of the trial (s.2(1)(c)). However, notwithstanding that the court is

of the opinion that the point raised in the appeal might be decided in

favour of the appellant, it may dismiss the appeal if it considers that

no miscarriage of justice has actually occurred (s.2(1) proviso).

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

33. The Commission declared admissible the applicant's complaint

that he did not receive a fair trial since he could not hear the

proceedings which resulted in his conviction.

B. Point at issue

34. Accordingly, the issue to be determined is whether there has been

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

C. Article 6 (Art. 6) of the Convention

35. Article 6 (Art. 6) of the Convention provides in its first

sentence:

"In the determination of his civil rights and obligations or 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."

36. The applicant complains that he did not receive a fair hearing

as required by the above provision since he was unable to hear the

proceedings at his trial.

37. While this requirement is not expressly mentioned in Article 6

(Art. 6) of the Convention, the Court has held that the object and

purpose of the provision taken as a whole indicated that a person

charged with a criminal offence is entitled to take part in the hearing

(see Eur. Court H.R., Colozza Judgment of 12 February 1985, Series A.

No. 89, p. 14, para. 27). The Court stated:

"Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3

guarantee to 'everyone charged with a criminal offence' the right

'to defend himself in person', 'to examine or have examined

witnesses' and 'to have the free assistance of an interpreter if

he cannot understand or speak the language used in court', and

it is difficult to see how he could exercise these rights without

being present."

38. The Colozza case concerned an applicant who had been tried in his

absence. The Commission considers however that the principle of

justice illustrated in that case must extend equally to the present

case. An accused person must be assured of the effective exercise of

his right to take part in the proceedings. The presence of an

applicant in the court is rendered nugatory if he is unable to hear or

to understand the proceedings - cf. Article 6 para. 3 (e) (Art. 6-3-e)

of the Convention. The Commission also notes that common law in

England acknowledges the right of an accused "to hear the case made

against him" (see para. 27 above).

39. The Government have submitted that the complaint of the applicant

is essentially against his legal representatives who chose not to bring

the problem to the attention of the trial judge, who was responsible

for the conduct of the trial. They submit that as a result the matter

cannot be held to engage responsibility of the United Kingdom under the

Convention. They also submit that the acoustics report does not

support a contention that the acoustics of the courtroom were

inadequate.

40. The Commission recalls that the applicant's complaint that he was

unable to hear the evidence, is substantiated by the prison officer who

sat beside him and by his solicitor, who acknowledged that the

applicant complained of this at the time. The solicitor however

explained in his letter of 19 December 1988 that he and counsel took

the decision that nothing should be done, since they had taken full

instructions from the applicant on the basis of the committal

statements and would have the opportunity of taking further

instructions on any new matters arising. Further, he had taken the

view that it would have been undesirable to move the applicant nearer

to the witness M., the alleged victim of the offences, as this could

conceivably have had an intimidating effect.

41. In the present case, therefore, the applicant's legal

representatives took the decision not to bring the applicant's hearing

problem to the attention of the Court. The Commission recalls that a

lawyer cannot in the ordinary course of events be regarded as a State

organ and his acts and omissions cannot incur the liability of the High

Contracting Party in themselves. Domestic courts are however under an

obligation to ensure an accused's effective defence and, if notified

that an officially appointed lawyer is prevented from acting, or is

shirking his duties, must replace him or cause him to fulfill his

obligation (e.g. Eur. Court H.R., Artico judgment of 13 May 1980,

Series A no. 30 pp. 15-16 para. 33). For example, where an applicant

complains that his defence rights under Article 6 para. 3 (Art. 6-3)

have not been effectively guaranteed as a result of the conduct of his

lawyer appointed under legal aid, this will not generally raise an

issue under that provision unless the judicial authorities were aware

of the problem and failed to take the appropriate steps to remedy it

(see e.g. No. 9022/80, Dec. 13.7.1983, D.R. 33 p. 21). While the

Commission notes that the applicant also mentioned the problem to the

prison officer beside him, the prison officer only passed on the

information to the applicant's representatives. As the prison officer

was not a court official or officer of the court, the Commission finds

that this was not sufficient to be considered as putting the court on

notice of the problem. The Commission finds therefore that the failure

to raise the matter or to give the trial court the opportunity to

remedy the defect at the relevant time was the responsibility of the

applicant's legal representatives. While the applicant did raise it

himself later on appeal, the Court of Appeal found that the applicant

had nevertheless received a fair trial since his solicitors and counsel

had had no difficulties and had represented him in a way which could

not be complained about.

42. Further, as regards the acoustics of the courtroom, the

Commission notes that only one other similar complaint was made over

a year later and that the acoustics report found that while the glass

screen reduced the sound level in the dock, a person speaking normally

from the front of the courtroom was nonetheless intelligible. The

Commission therefore finds no evidence that the respondent Government

failed to provide adequate facilities for the conducting of criminal

proceedings.

43. The Commission consequently finds that the facts of the case do

not disclose any failure on the part of the United Kingdom in its

obligation under Article 6 para 1 (Art. 6-1) to ensure that the

applicant received a fair trial in the determination of the criminal

charge against him.

D. Conclusion

44. The Commission concludes by 11 votes to 7, that there has been

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

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

Dissenting Opinion of Mr. L. Loucaides joined by MM. A.S. Gözübüyük and

C. L. Rozakis.

I am unable to agree with the conclusion of the majority that in

this case there has been no violation of Article 6 para. 1 of the

Convention.

The applicant's complaint is that he did not receive a fair

hearing because he was unable to hear all the evidence given by the

witnesses during his trial. His complaint is supported by the prison

officer who was in the dock with him at the material time.

The applicant did all that he could to bring his complaint to the

notice of the trial court but his counsel chose not to make an

application for arrangements to be made to enable the applicant to hear

all the evidence. In his appeal against his conviction the applicant

raised the complaint himself and the Court of Appeal found that the

complaint was substantiated. Yet the Court of Appeal which has the

power to uphold appeals where there has been a material irregularity

in the course of a trial, saw no problem in the case since the

applicant's counsel had no difficulties in following the proceedings.

The court appears to have given no weight to the importance of the

ability of an accused to hear the proceedings which in this case

involved seven charges of serious criminal offences and which attracted

a conviction and sentence of 10 years' imprisonment. The Court made no

mention of any exceptional circumstances which might justify this

shortcoming in the trial.

Thus although the Court admitted that the applicant could not

hear the proceedings at his trial and therefore could not himself take

part in the hearing according to the requirements of Article 6 (1),

this departure from the concept of "fair hearing" was in effect

endorsed by the court through the dismissal of the relevant appeal of

the applicant. The reason given by the Court i.e. that it was

sufficient that the applicant's counsel could follow the proceedings

discloses a wrong interpretation of the concept of a "fair hearing".

An accused's right to understand the proceedings implied from his right

to be present cannot be satisfied by the mere fact that his counsel

alone could follow the proceedings.

In view of the above, I find that the applicant was deprived of

a fair hearing and therefore he was a victim of a violation of

Article 6 para. 1 of the Convention.

Dissenting Opinion of Mr. Busuttil

I find myself in disagreement with the opinion of the majority

of the Commission that there has been no violation of Article 6 para. 1

of the Convention in the present case.

The applicant's complaint is that he did not receive a fair

hearing in that he was unable to hear the proceedings at his trial.

Such a requirement is not mentioned in so many words in Article 6 but

the Court in Colozza (loc. cit) has held that the object and purpose

of the Article read as a whole indicates that a person charged with a

criminal offence is entitled to take part in the hearing.

The accused is usually entitled to be present in court at the

trial of his case, and the right to hear the proceedings is an adjunct

of this rule. Indeed, the presence of the accused in court would be

virtually pointless if he were not at the same time able to hear and

understand the proceedings.

The applicant in this case was placed in the dock, at the front

of which there was a glass screen. He was unable to hear the

proceedings because of this screen. He did all he possibly could

during the trial by complaining to prison officer Smith who was

standing beside him in the dock, and then raised it himself on appeal

before the Court of Appeal after his counsel had advised him that there

were no grounds on which he could appeal.

The Court of Appeal found the complaint to be substantiated but

refused the application on the ground that his legal representatives

had had no difficulty in following the proceedings. It attached no

importance at all to the inability of the accused himself to hear what

was going on.

To my mind, this is an unacceptable proposition since it is not

only important that justice be done but that it should be heard - as

much as seen - to be done by the person most closely and directly

concerned in the proceedings, namely the accused who in this particular

case had to answer serious criminal charges attracting a conviction and

sentence of ten years' imprisonment. Where justice is not sufficiently

transparent to him, the accused might and, indeed human nature being

what it is - would in all probability be left with a gnawing sense of

latent injustice. It was small consolation to him to be told by the

Court of Appeal without more, that his legal advisers had heard

everything and that therefore he had nothing to complaint about. It

was no answer to an accused who in any event was dissatisfied with the

performance of his legal aid advisers.

A fair hearing does not simply mean that an accused is entitled

to be heard; it also means that he must be able to conduct an

effective defence. In my opinion an accused cannot defend himself

effectively if he is unable to hear what the witnesses are saying. In

other words, he must in the first place be able to hear what is going

on around him if he is to be heard in a fair and proper manner.

For these reasons I consider that the accused did not receive

a fair trial in this case and that therefore there has been a violation

of Article 6 para. 1 of the Convention.

Appendix I

HISTORY OF THE PROCEEDINGS

Date Item

________________________________________________________________

08.01.90 Introduction of the application

20.06.90 Registration of the application

Examination of admissibility

13.07.90 Commission's decision to invite the parties to submit

observations on the admissibility and merits

24.04.91 Government's observations

10.02.92 Commission's decision to declare the application

admissible

Examination of the merits

10.02.92 Commission's deliberations on the merits

19.03.92 Applicant's observations on the merits

04.07.92 Consideration of the state of proceedings

22.9.92 Government's observations on the merits

13.10.92 Commission's deliberations on the merits and final

votes

21.10.92 Commission's adoption of the Report

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S. v. THE UNITED KINGDOM

S. v. THE UNITED KINGDOM