Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 25901/94

by Andrew Graham RUSSELL

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 28 February 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 October 1994

by Andrew Graham RUSSELL against the United Kingdom and registered on

9 December 1994 under file No. 25901/94;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1962. He is serving

a prison sentence. The facts of the case, as submitted by the

applicant, may be summarised as follows.

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.

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 that the prosecutor had "decided that there

[was] insufficient evidence against [the applicant] to justify

prosecution, but in relation to [the co-accused as regards the escape]

I have recommended to the police that he be charged with attempted

murder and robbery".

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 ...".

On the following day 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.

The case was listed for trial on 30 May 1990. The applicant

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. The submission was

rejected and the proceedings were adjourned to enable the applicant to

apply for judicial review of the trial judge's decision not to stay the

proceedings.

Leave to apply for judicial review was granted on 7 June 1990,

and the proceedings were adjourned to await the outcome of a related

case which was pending before the Divisional Court. The Divisional

Court ruled on 7 November 1991 that there had been no abuse of

process. It noted that the judge had not been informed of the CPS's

letter of 5 December 1988 when he granted a voluntary bill of

indictment, but considered that the strength of the case would have led

to the grant of a bill, even if the judge had been aware of that

letter.

The Divisional Court found no prejudice to the applicant flowing

from the decision to prosecute which could amount to an abuse of

process. It noted that the applicant had been aware all along of the

nature of the Crown's case against him, and continued that the only

real complaint was that a friend, who had been with the applicant on

the day of the robbery, on learning that the applicant was not to be

charged with the robbery, had disposed of a note-book in which he had

kept details of his whereabouts on that day. The Court noted that the

alibi evidence had been raised very late, but also noted that the book

would in any event only have been used as an aide memoire for the alibi

evidence: the evidence could still be given. As regards the letter of

5 December 1988, the Court found that it was "reprehensible", but "I

cannot see how it can operate so as not to allow [the applicant] to

have a fair trial and in any way to inhibit him from presenting what

defence he has".

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

trial judge fixed the trial for 16 March 1992. An application for the

venue of the trial to be moved, from Leicester to London, was refused

on 13 March 1992.

On 16 March the applicant was not represented, but addressed the

court himself. His solicitor, who was also present, also addressed the

court. As to the alibi witness, the applicant's solicitor informed the

court that he had been in contact with the witness, and that he had a

letter from him that he was going to Australia for a period of between

six and twelve weeks. The letter did not contain an address or contact

number and was not dated. It had been posted in England. The

solicitor received it between 4 and 6 March. The judge declined to

adjourn the trial on the ground that the alibi witness could not be

found, and considered that, in the circumstances, the evidence could

be admitted. As to representation, the judge noted that the applicant

had chosen not to be represented by counsel, and indeed had instructed

his solicitors not to instruct counsel. At the end of the hearing on

16 March, the solicitor informed the court that the applicant had

agreed that it was right that he should be represented by counsel. The

trial was adjourned, on the application and with the consent of the

applicant's solicitor, until 19 March 1992, in order to give time for

counsel to be instructed. The applicant was given the possibility of

applying for a further adjournment if necessary.

On 19 March, the applicant was represented by leading and junior

counsel. A submission that there was insufficient evidence to put to

the jury was rejected, and the alibi witness's statement was read out.

In his summing up, the judge inter alia referred to the alibi witness

statement, and said "You have not seen [the alibi witness] so you have

not had the opportunity to assess him as a witness by hearing him give

evidence, seeing him give evidence and in particular, perhaps hearing

him cross-examined. That is a disadvantage that you suffer from, but

you will take his evidence into account, bearing in mind those

limitations on it."

The applicant was convicted inter alia of robbery on

25 March 1992. Leave to appeal against conviction was refused by the

single judge, and then by the Court of Appeal on 13 May 1994.

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, either as to the alibi evidence or

as to the venue of the trial or the prosecution's change of mind.

COMPLAINTS

The applicant alleges violations of Articles 5 and 6 of the

Convention.

In connection with Article 5, the applicant considers that the

delay in the bringing of his case breached Article 5 paras. 2 and 3 of

the Convention. Under Article 6 of the Convention, the applicant

considers:

- that the fairness of the hearing was undermined by the venue of

the trial and the high profile security;

- that he was given insufficient time to prepare his defence from

14 February 1992 until 16 March 1992;

- that no allowances were made as to the fact that the applicant

was not able to have his initial counsel at trial;

- that the trial judge refused to adjourn the case for the

applicant's alibi witness to give live evidence, with the result

that the applicant was unable to deal with matters which

unexpectedly arose in the course of the trial, such as the fact

that he also used the name Richard Smith, and that the applicant

appeared to have been in Regent Street (where the robbery took

place) on one of the days on which the alibi witness said that

the applicant was in his company.

THE LAW

1. The applicant complains of the length of the proceedings. He

refers in this connection to Article 5 paras. 2 and 3 (Art. 5-2, 5-3)

of the Convention. There is, however, no indication in the applicant's

submissions that he was detained in connection with the robbery of

which he eventually convicted. The Commission will therefore consider

the question of the length of the proceedings under Article 6 (Art. 6)

of the Convention.

The Commission notes that the applicant was initially questioned

in respect of the robbery on 3 February 1988. He was under the

impression that he would not be charged with the robbery from

5 December 1988 until the end of July 1989, when his solicitors were

informed that the CPS were seeking a voluntary bill of indictment. The

proceedings ended on 13 May 1994.

The Commission considers that it cannot, on the basis of the

file, determine whether there has been a violation of Article 6

(Art. 6) of the Convention as regards the length of the proceedings

without the observations of both parties.

The Commission therefore adjourns this part of the application.

2. The applicant also alleges a violation of Article 6 (Art. 6) of

the Convention in several respects. He alleges:

- that the fairness of the hearing was undermined by the venue of

the trial and the high profile security;

- that he was given insufficient time to prepare his defence from

14 February 1992 until 16 March 1992;

- that no allowances were made as to the fact that the applicant

was not able to have his initial counsel at trial;

- that the trial judge refused to adjourn the case for the

applicant's alibi witness to give live evidence, with the result

that the applicant was unable to deal with matters which

unexpectedly arose in the course of the trial, such as the fact

that he also used the name Richard Smith, and that the applicant

appeared to have been in Regent Street (where the robbery took

place) on one of the days on which the alibi witness said that

the applicant was in his company.

Article 6 (Art. 6) of the Convention provides, so far as

relevant, as follows:

"1. In the determination 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. ...

3. Everyone charged with a criminal offence has the following

minimum rights:

b. to have adequate time and facilities for the

preparation of his defence;

c. to defend himself in person or through legal

assistance of his own choosing or, if he has not sufficient means

to pay for legal assistance, to be given it free when the

interests of justice so require;

d. to examine or have examined witnesses against him and

to obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him; ..."

In connection with the venue of the applicant's trial for

robbery, the applicant suggests that his trial was unfair because the

trial was held in Leicester, where he and his co-defendant were held

in connection with the escape, rather than in London, where the robbery

took place and where the witnesses were. He sees the unfairness in the

fact that the circumstances of the escape from prison in December 1987

were well known in Leicester, and that the high security precautions

were more noticeable in Leicester than they would have been in London.

The Commission recalls that the question of the venue for the

applicant's trial was raised before the trial judge and the Court of

Appeal judges, none of whom saw any need to transfer the trial to

London. The Commission considers that the implementation of necessary

security arrangements at a criminal trial cannot in itself be regarded

as rendering the proceedings unfair. The applicant does not suggest

that the security arrangements were unnecessary, but rather that they

would have been less noticeable in London. There is no indication that

the security arrangements in the case were deliberately stage-managed

to prejudice the applicant. The Commission sees no indication in the

present case that the trial venue of Leicester rather than London in

any way affected the fairness of the proceedings.

The applicant complains of the limited time for preparation of

his defence in that on 14 February 1992 the trial date was fixed for

16 March 1992. He also complains that the judge made no allowances for

the fact that the applicant's original counsel was not present.

The Commission first notes that the original trial date of

16 March 1992 was fixed one month before, on 14 February. At the

hearing on 16 March the trial judge observed that the applicant had

chosen not to be represented by counsel and had indeed instructed his

solicitors not to instruct counsel for trial. He was however

represented by his solicitor who addressed the court on his behalf and,

at the end of the hearing, informed the court that the applicant now

agreed that it was right that he should be represented by counsel at

the trial. The applicant's solicitor accordingly applied for an

adjournment of the trial on his behalf so as to allow sufficient time

to enable counsel to be instructed. The application was granted and

the trial judge, with the agreement of the applicant's solicitor,

adjourned the case until 19 March 1992, with liberty to apply for a

further adjournment. No such application was made and, at the trial

which began on 19 March, the applicant was represented by counsel. No

complaint was made at this trial or on the applicant's appeal that

insufficient time had been allowed to enable those representing the

applicant to prepare an effective defence on the applicant's behalf,

or that his representation at the trial was inadequate.

In these circumstances, the Commission finds no grounds on which

to conclude that the limited time allowed for preparation of the

defence resulted in any unfairness in the criminal proceedings against

him.

Finally, the applicant complains of the failure of the trial

judge to adjourn the case for the applicant's alibi witness to give

live evidence.

The Commission again notes that the trial date was fixed on

14 February 1992 at which time the applicant's alibi witness was still

in the United Kingdom. It appears from the record of the proceedings

of 16 March that the applicant's solicitor contacted the alibi witness

to inform him of the date of the trial and was told that the witness

was planning to leave for Australia. It further appears that in an

undated latter received by the applicant's solicitors between 4 and

6 March 1992 the alibi witness stated that he intended to travel to

Australia on 7 March and would anticipate staying there for some six

to twelve weeks. The letter contained no address or indication where

the witness could be contacted. On the basis of these facts the trial

judge declined further to adjourn the trial but admitted in evidence

the alibi statement applied by the witness and, in his summing up to

the jury, drew specific and detailed attention to the contents of the

statement. The Commission further notes that, having reviewed the

case, the Court of Appeal found that the trial judge's approach had

been free from criticism and resulted in no unfairness such as to

render the applicant's conviction unsatisfactory.

In these circumstances, the Commission finds no reason to

conclude that the inability for the applicant to call his alibi witness

to give oral evidence at his trial resulted in any unfairness for the

purposes of Article 6 para. 1 (Art. 6-1) or Article 6 para. 3 (d)

(Art. 6-3-d) of the Convention.

It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECIDES TO ADJOURN its examination of the complaint as to the

length of the proceedings;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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RUSSEL v. THE UNITED KINGDOM

RUSSEL v. THE UNITED KINGDOM

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