Lexploria

Application No. 25647/94

by Stuart Eric POTTER

against the United Kingdom

The European Commission of Human Rights sitting in private on

17 April 1997, the following members being present:

Mr. S. TRECHSEL, President

Mrs. G.H. THUNE

Mrs. J. LIDDY

MM. E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. SVÁBY

G. RESS

A. PERENIC

C. BÎRSAN

P. LORENZEN

K. HERNDL

E. BIELIUNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs. M. HION

MM. R. NICOLINI

A. ARABADJIEV

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 August 1994 by

Stuart Eric POTTER against the United Kingdom and registered on

14 November 1994 under file No. 25647/94; Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

10 January 1996 and the observations in reply submitted by the

applicant on 12 April 1966;

- the respondent Government's letter of 3 March 1997 and the

applicant's letter of 5 March 1997;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom born in 1953.

In the proceedings before the Commission he is represented by

Mr. R. Ince, a solicitor practising in Manchester.

A. Particular circumstances of the case

The facts of the case, as they have been submitted by the

parties, can be summarised as follows:

In April 1989 the applicant was arrested on suspicion of having

obtained computer equipment from X Ltd by means of forgery and

deception. X Ltd, which had lodged the complaint against the applicant,

supplied the prosecution with copies of certain documents on the basis

of which the committal papers were drafted. On 27 April 1990 the

applicant appeared before the Worcester Crown Court and pleaded not

guilty to a count of forgery and a count of deception.

On 17 October 1990 the applicant's case came up for trial before

the same court. The applicant, who was ill, did not attend in person

but was represented by counsel. Two persons linked with X Ltd attended

as prosecution witnesses. They produced the originals of the exhibits

and it was then discovered that these did not accord with the copies

they had originally furnished to the prosecution. Considering that its

evidence was potentially unreliable, the prosecution proposed to the

defence that the counts should be left to lie on the file. The defence

agreed and the presiding judge, judge L, ordered that the trial should

not be proceeded with without leave of a judge of the Crown Court or

the Court of Appeal.

On 18 October 1990 counsel informed the applicant's solicitors

of the outcome of the hearing.

On 17 March 1993 the applicant's solicitors wrote to the Crown

Prosecution Service proposing that, in the light of certain recent

developments, the case should be relisted for trial and that the

prosecution should either withdraw the charges or offer no evidence.

After an initial negative reaction, the Prosecution Service on

27 May 1993 informed the applicant that "in the light of information

now to hand" they would offer no evidence if the applicant applied for

the case to be relisted.

On a date which is not specified, an application for the case to

be relisted was indeed lodged by the applicant.

On 2 November 1993 the prosecution themselves applied for the

case to be relisted for a formal not guilty verdict to be entered. In

their letter they expressly acknowledged that "it would have been

proper to have offered no evidence on the day of the trial, and it is

not clear why this was not done." They also described the case as

"stale".

On 16 November 1993 the applicant, who had had his original legal

aid order extended to cover his application to have the case relisted

for trial, submitted a claim for the reimbursement of his original

costs and expenses.

The application to have the case relisted came up for hearing

before another judge of the Worcester Crown Court on 19 November 1993.

The judge indicated that he would either dismiss the application or

refer it to the judge who had initially ordered the indictment to lie

on the file. At the applicant's request, he opted for the second

alternative.

A second hearing was held on 11 February 1994 before judge L.,

the judge who had originally heard the charges. The prosecution

confirmed that it would offer no evidence if the judge decided to

proceed with the case on that date and further intimated to the court

that the chances of the prosecution ever seeking to pursue a conviction

were very remote. Given, however, the defence's original consent to the

order of 17 October 1990, the prosecution submitted that it considered

it inappropriate for the case to be re-opened.

The applicant submitted that, if he had been present at the

hearing of 17 October 1990, he would not have consented to the order

being made. He had failed to voice his disagreement earlier because he

had been originally advised by his solicitors to wait. Subsequently he

was involved in another trial. The applicant considered that the judge

should exercise his discretion and allow the case to proceed or dismiss

the prosecution in the light of a number of developments after

17 October 1990. One of the prosecution witnesses, who had been

revealed on the morning of 17 October 1990 to have previous convictions

for dishonesty offences, had been dismissed from X Ltd. The computer

equipment had been returned by the police to the applicant. X Ltd was

wound up and it had been revealed that the second prosecution witness

had a long history of commercial failure.

In the course of the hearing the judge indicated that he was

concerned about the request submitted by the applicant to have his

costs and expenses reimbursed, if he was finally acquitted.

In the decision he issued on the same date the judge refused to

allow the applicant's application on the basis of the following

considerations: the applicant's representative had consented to the

order of 17 October 1990 and a considerable amount of time had passed

before the applicant decided to raise his objections.

The judge, however, indicated that, given the passage of time,

he would be disinclined to give his consent to any future application

by the prosecution to resurrect the case, unless "something quite

extraordinary occurred". He further considered that the effect of his

order was that there was no conviction against the applicant; there was

an unsuccessful prosecution against him which did not cast any slur on

his character.

At the end of the hearing the defence requested the judge to

certify the case as one of public interest which should be heard by the

Court of Appeal. The judge held that, even if he had the power to do

so, which was not certain, he was not prepared to issue such a

certificate.

On a date which is not specified the applicant obtained legal aid

to take counsel's advice as to the availability of remedies against the

Crown Court's decision of 11 February 1994. On 10 March 1994 he asked

the Court to reconsider the above-mentioned decision.

On 25 March 1994 he applied for legal aid in connection with his

application of 10 March 1994 and proceedings he intended to institute

in the future to obtain the destruction of his fingerprints and

photograph which were held by the police.

On 28 March 1994 the judge declined to reconsider his order of

11 February 1994.

On 9 May 1994 the applicant was advised by counsel that the Court

of Appeal could have ordered that there be a trial only in the course

of the examination of an appeal against conviction or sentence.

Moreover, the Divisional Court could not exercise judicial review,

because this was "a matter relating to trial and indictment", as this

notion had been recently interpreted by the House of Lords. The only

remedy available was an application requesting judge L. to reconsider

his decision.

On 17 May 1994 the applicant submitted for the second time such

a request. On 2 June 1994 the applicant was informed that the judge

stood by his previous decision and that he would decline to consider

any further application of this nature by the applicant. The judge also

refused any application for legal aid.

The applicant applied for several vacancies and a visa for

Australia. Some prospective employers informed him that the charges

left on the file would affect his employment prospects.

On 15 July 1996 the applicant's case was relisted for hearing

before the Worcester Crown Court. The prosecution applied for and was

granted permission to bring the matter on for trial. The prosecution

offered no evidence and not guilty verdicts were entered in respect of

the original two counts on the indictment.

B. Relevant domestic law

In Re Smalley [1985] AC 622, the House of Lords held the

following in respect of the possibility of challenging counts that are

left on the file:

"It is not difficult to discern a sensible legislative purpose

in excluding appeal or judicial review of any decision affecting

the conduct of a trial on indictment, whether given in the course

of the trial or by way of pretrial directions. In any such case

to allow an appellate or review process might, as Shaw LJ pointed

out in Reg. v Sheffield Crown Court, Ex parte Brownlow [1980]

Q.B. 530, 544, 545, seriously delay the trial. If it is the

prosecutor who is aggrieved by such a decision, it is in no way

surprising that he has no remedy, since prosecutors have never

enjoyed rights of appeal or review when unsuccessful in trials

on indictment. If, on the other hand, the defendant is so

aggrieved, he will have his remedy by way of appeal against

conviction under the Criminal Appeal Act 1968 if he has suffered

injustice in consequence of a material irregularity in the course

of the trial, which, I apprehend, may well result not only from

a decision given during the trial, but equally from a decision

given in advance of the trial which affects the conduct of the

trial, e.g. a wrongful refusal to grant him legal aid."

COMPLAINTS

1. The applicant complains that the court's failure to call the case

on for trial on 11 February 1994 amounts to a violation of his right

to a fair hearing in the determination of a criminal charge against him

under Article 6 para. 1 of the Convention. He submits that the judge

was influenced by the prospect of having to consider making an order

to reimburse the applicant's costs. He also complains that, by refusing

to call the case on for trial, the court implicitly indicated that he

was guilty, violating thereby Article 6 para. 2 of the Convention.

2. The applicant also complains under Article 13 of the Convention

that he did not have an effective remedy in respect of the above-

mentioned violation of Article 6 of the Convention, since there was no

appeal to the Court of Appeal and no right to judicial review in

respect of the judge's decision of 11 February 1994.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 5 August 1994 and registered

on 14 November 1994.

On 11 September 1995 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

10 January 1996, after an extension of the time-limit fixed for that

purpose. The applicant replied on 12 April 1996, also after an

extension of the time-limit.

On 26 January 1996 the Commission granted the applicant legal aid

for the presentation of his case.

On 3 March 1997 the Government informed the Commission that,

after the Worcester Crown Court's decision of 15 July 1996, the case

had been settled, the Government having paid the applicant £3,000 in

respect of his claim for compensation for distress and anxiety felt by

him from February 1994 to July 1996 as well as his costs and expenses.

On 5 March 1997 the applicant informed the Commission that, in the

light of the settlement he had reached with the Government, he did not

wish to maintain his application.

REASONS FOR THE DECISION

The Commission notes that the applicant does not wish to maintain

the application because the case has been settled. It also considers

that respect for Human Rights as defined in the Convention does not

require it to continue the examination of the application.

It follows that the application may be struck off the list of

cases pursuant to Article 30 para. 1 (a) of the Convention.

For these reasons, the Commission, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES.

H.C. KRÜGER S. TRECHSEL

Secretary President

to the Commission of the Commission

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POTTER v. THE UNITED KINGDOM

POTTER v. THE UNITED KINGDOM

LEXI