EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

DECISION

AS TO THE ADMISSIBILITY OF

Application No. 24264/94

by Anthony GARNER

against the United Kingdom

The European Commission of Human Rights sitting in private on 22 February 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

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 24 January 1994 by Anthony GARNER against the United Kingdom and registered on 3 June 1994 under file No. 24264/94;

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 facts as submitted by the applicant may be summarised as follows.

A. Particular facts of the case

The applicant is a British citizen born in 1945 and resident in Manchester. He is a solicitor by profession.

The applicant, together with two others, was charged with conspiring to steal motor vehicles. The applicant was arrested on 25 November 1989 and made no admissions when interviewed. On 1 June 1990 he and his two co-accused were committed for trial and they were arraigned at the Crown Court in September 1990. The applicant and one co-accused pleaded not guilty, while the other pleaded guilty.

Thereafter there were a number of court applications by the applicant, including to change his solicitor and to obtain bail, which delayed the fixing of a trial date. The case was listed for trial in February 1991 but the trial date was vacated, further to the application of the applicant, on the basis that the applicant had had a gall bladder operation and was not at the time fit to stand trial.

In August 1991 the applicant was granted bail. There were two sureties and stringent conditions attaching to the bail including a curfew, a condition of residence, an obligation to report daily at 12.00 noon to the nearest police station and a condition that the applicant was not to travel outside of two miles of that residence except with the permission of the Crown Prosecution Service, with notice to the Crown Court and only in the company of his solicitor's clerk.

However, on 12 September 1991 the applicant wrote to the judge who had given him bail and to his solicitor's clerk saying that he was going abroad. The applicant had, on previous occasions, asked for leave to go abroad to look for witnesses but since he would not give the names of those witnesses he wished to find to assist him, those requests were refused.

On 21 October 1991 the applicant's case was relisted for mention with a view to fixing a date for the hearing in the immediate future. On that date a bench warrant was issued for the applicant's arrest.

On 18 November 1991 the applicant communicated with his solicitors stating that he was in hospital in Austria, having broken his leg and arm and suffered a spinal injury, as a result of a skiing accident. On 22 November 1991 the applicant's solicitors informed the Crown Court that the applicant was in hospital in Austria. On 27 November 1991 the applicant attended a consultant (whom he had not seen before) at a hospital in Manchester, seeking a medical examination in order to obtain a certificate from the consultant stating that he would not be able to appear at a court hearing. The consultant's certificate read as follows:

"I have examined this patient at the Alexandra Hospital this evening and am of the opinion that he is unfit to attend the trial at the Crown Court on Monday, 2nd December 1991.

He has sustained a comminuted fracture of his left shin which is fixed with an external fixator . He is also in considerable pain."

On 2 December 1991 the applicant's trial commenced and the applicant's counsel sought an adjournment on the basis that his client was not available as he was unfit to stand trial, the evidence being the consultant's certificate. On that day the consultant was contacted by telephone and he confirmed the accuracy of that which he had certified even though he had not been informed by the applicant that it was in fact the applicant's own trial that was about to take place. The consultant also confirmed that he was told by the applicant that the applicant was going to Austria allegedly to obtain vital medical treatment. However the consultant confirmed that the applicant could easily obtain the necessary medical treatment in the United Kingdom. Therefore on that day, since the applicant was still at large, a police search was initiated of all passengers who had left for Austria on 27 November 1991 but in view of the number of departure possibilities and aliases used by the applicant in the past, the police could not establish the whereabouts of the applicant.

The trial judge heard detailed submissions from counsel for the three accused on the question of the adjournment. The trial judge then found that the applicant had lied on some issues, that he had been economical with the truth with the consultant, that he could attend trial if he was fit to travel to Austria as he had indicated, that he had not enquired as to the facilities available to those in a wheelchair in court, that he had given no clue as to his whereabouts at present and that it was unlikely he would be apprehended in the foreseeable future. The trial judge also emphasised the position of the applicant's two co-accused in that considerable delay had already been experienced by them because of the applicant's behaviour to date.

In light of the above the trial judge concluded that the applicant had deliberately absented himself from the trial having fully realised the consequences of such absence and that the trial should proceed.

On 5 December 1991 the applicant's counsel applied, in the absence of the jury, to be allowed to withdraw from the case in view of the nature of his instructions. Counsel was allowed to withdraw and the applicant's solicitors also withdrew on that day from the case.

On 10 December 1991 the applicant was convicted and sentenced to four and half years' imprisonment. In sentencing the applicant the trial judge commented that the applicant was "a dishonest and disreputable person" who had "caused a vast amount of loss to the country and to many citizens in the country". One of the applicant's co-accused was acquitted and the other, who had pleaded guilty, was put on probation for two years.

The applicant submits that he was in hospital in Manchester for the duration of the trial, which hospital was relatively near to the trial court. A letter from the hospital dated 26 August 1992 confirmed that the applicant was in hospital from 3-9 December 1991 and that it would have been unrealistic for the applicant to have been anywhere else during that time.

The applicant submits that he applied to the Court of Appeal for leave to appeal against sentence and conviction on 6 January 1992 in order to ensure his application was within the statutory 28 day period for making such an application. Since the applicant was not in custody despite the conviction and the outstanding arrest warrant, the application for leave to appeal was stayed by the Registrar of the Court of Appeal. The applicant claims that he could not have surrendered to the authorities as he was still not "medically fit to do so".

However, on 28 April 1992 the applicant was arrested at Manchester airport (though in his application form to the Commission the applicant stated that "when I was medically fit, I surrendered back to the court to execute the bench warrant"), at which stage his application for leave to appeal was out of time.

Since he was back in custody the applicant wrote to the Criminal Appeals Office and informed that office that he was now back in custody so his original appeal grounds, together with those he anticipated shortly from counsel, should now be considered.

On 25 May 1992 the applicant submitted amended and considerably amplified grounds, for his application for leave to appeal, which grounds appear to contain information, either additional to or contradicting, information previously before the courts.

This information included submissions that the applicant had left his bail address because he was unable to pay for lodging, that the applicant had traced six witnesses whose evidence could exculpate him and that he had in fact broken his leg and arm when he fell down a loose manhole cover while jogging (in the United Kingdom) and was taken to hospital under a false name. (The applicant did not refer to the names of those witnesses in these grounds for the application for leave to appeal, nor submit copies of relevant witness statements to the Court of Appeal. Some statements, in the applicant's favour , have been submitted to the Commission. All of those witnesses were resident in the United Kingdom, some of the statements were made by his two co-accused and some statements were signed while the applicant was in custody and legally represented.

He also submitted in those extended grounds that he was in hospital in Manchester in October and November 1991 having broken his leg, that his solicitor visited him in hospital and was in regular contact with him, that the applicant was advised on a number of occasions that his trial would not proceed in his absence and that he had medical records to prove his submissions in relation to his injuries and hospital stays (these records have not been copied to the Commission). Finally those grounds also included a submission to the effect that the applicant, pursuant to his doctor's advice, was on his way to take a holiday prior to giving himself up when he was arrested at Manchester airport in April 1992.

In September 1992 the applicant's counsel lodged further amended grounds for the application for leave to appeal (which were considerably reduced from those filed in May 1992 by the applicant).

The application for leave to appeal challenged the decision to proceed with the trial in his absence and the length of his sentence and requested an extension of time. A single judge of the Court of Appeal rejected the application and the Form of Judge's Order recorded that judge's finding as follows:

"the Judge ruled that you were voluntarily absent because you would not provide any name and address where you were so that you could be examined on behalf of the prosecution. He was entirely justified in taking that view. It would be wrong to give you leave to appeal whether or not you need an extension of time. It is certainly wrong to extend time".

In relation to the sentence the single judge said that it was "not manifestly excessive".

The applicant, using newly appointed legal representatives, presented further amended grounds (which were dated 5 October 1993 and similar to those filed in September 1992) for the application for leave to appeal to the full Court of Appeal. On 10 December 1993 the full Court of Appeal rejected the entire application as out of time, finding as follows:

"The single judge considered the matter and came to the conclusion that time should not be extended. ... it seems to us that the decision of the learned single judge in relation to the extension of time is totally unassailable. This man was in this country at the time when his case was tried at Preston, he was within a limited number of miles of the place where that trial was going on. He knew or certainly had the means of knowing that his trial was concluded on the 10 December 1991. If he wished to appeal he had the means of appealing within the time prescribed... He chose not to do so, he chose to remain as he was at the time at liberty, and he knew that there was a bench warrant which required him to be where he was not. In those circumstances it seems to us that there is no possible reason for this court to extend time and we decline to do so."

On 7 March 1994 the High Court quashed the order which had forfeited the surety payments in relation to the applicant in light of his non-attendance at trial. The surety payments were then returned to those persons who had posted bail for the applicant. 

The applicant was released from prison in early 1994.

COMPLAINTS

The applicant complains under Article 6 of the Convention about being tried and convicted largely without counsel or a solicitor and in his absence. He complains that he was therefore denied the possibility of calling defence witnesses, of cross-examining prosecution witnesses, of being represented at his trial and of properly preparing his defence . The applicant complains that in effect he had no trial at all and was denied the right to defend himself.

He also complains, under Article 5 of the Convention, that his appeal should have been heard as he was not out of time and that the failure to hear his appeal denied him the right to be compensated for the term of imprisonment which he served.

THE LAW

The applicant complains under Articles 5 and 6 of the Convention that he was denied the right to defend himself in relation to criminal charges or to receive compensation for his wrongful imprisonment because his trial took place in his absence and, for the most part, without the attendance of his legal representatives and because his applications for leave to appeal were refused by the Court of Appeal.

However, the Commission finds that it is not required to determine whether the these complaints disclose a violation of the Convention as the application is inadmissible for the following reasons.

The Commission recalls that, pursuant to Article 26 of the Convention, it can only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.

In addition, the Commission recalls that domestic remedies have not been exhausted if an appeal is not admitted by the domestic courts because an appellant did not comply with domestic procedural requirements (cf., for example, No. 10636/83, Dec. 1.7.85, D.R. 43 p. 171).

In the present case the Commission notes that while the applicant submits that he filed an application for leave to appeal within the relevant 28 day time-limit, the application was rendered out of time because of the applicant's failure to constitute himself a prisoner as required by domestic law.

Furthermore, an examination of the application by the Commission does not disclose the existence of any special circumstances which might have absolved the applicant, according to the generally recognised rules of international law, from exhausting the domestic remedies at his disposal.

In this regard, and insofar as the applicant argues that he remained at large because he was too seriously injured to surrender to the authorities and to pursue his application from prison, the Commission does not find that the applicant's submissions in relation to the incapacitating nature of his injuries have been substantiated. In particular, the Commission notes that the applicant has not shown that his injuries were of such a nature or degree that they could not be treated while the applicant was in custody. In addition, the applicant does not complain about the quality of the treatment he received after his arrest in April 1992.

Insofar as the applicant argues that he remained at liberty because that was the only way he could locate witnesses to prove his innocence, the Commission notes that while making his submissions to the Court of Appeal as to six witnesses he had located while at large, the applicant did not reveal the names of those witnesses nor provide copies of the relevant witness statements to that court. While the applicant has submitted various witness statements to the Commission, these were all signed by persons resident in the United Kingdom (including two from his co-accused) and some were signed while the applicant was in custody. Thus the Commission finds that the submission of the applicant, that he had to be at liberty to find and examine witnesses, is unsubstantiated.

Therefore the Commission considers that for the above reasons the applicant has failed to exhaust domestic remedies and must, pursuant to Article 27 para. 3 of the Convention, declare the application manifestly ill-founded.     

For these reasons, the Commission unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber        President of the First Chamber

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