Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 24725/94

by Adrian FOSTER

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 11 January 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. F. ERMACORA

E. BUSUTTIL

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 15 March 1994 by

Mr. Adrian Foster against the United Kingdom and registered on

28 July 1994 under file No. 24725/94;

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 United Kingdom citizen, born in 1957. The

facts of the case, as submitted by the applicant, may be summarised as

follows.

In August 1992, the applicant set fire to a house occupied by his

sister and her husband in which the applicant's wife and children were

staying. He was charged with alternative counts of arson with intent

to endanger life, arson being reckless as to whether life was

endangered and simple arson.

The applicant, who admitted that he had started a fire at his

sister's house and that he had used a petrol can in the attack, argued

that he had neither deliberately nor recklessly endangered life and was

therefore guilty only of simple arson if at all. During the

investigation it was suggested that a neighbour may have witnessed the

attack and spoken to the applicant's sister immediately afterwards. No

details of any such witness were made available by the prosecution.

At his trial, the applicant sought to submit two psychiatric

reports as to his mental state at the time of the attack. The judge

ruled the reports inadmissible but indicated that the applicant could,

if he wished, call the authors of the reports to give oral evidence as

to the question of recklessness.

The applicant had legal aid up to and including trial at Stoke-

on-Trent Crown Court. He was represented by counsel on the first day

of his trial, 22 March 1993. He then dispensed with counsel's services

and acted in person for the second and third days of the trial when,

inter alia, he presented a defence of automatism. He re-engaged counsel

for the remainder of the trial. The judge declined to leave the defence

of automatism to the jury.

On 26 March 1993, the applicant was found guilty of arson with

intent to endanger life. Following counsel's plea in mitigation, the

applicant was sentenced to 12 years' imprisonment.

The applicant's trial legal aid covered counsel's advice on

appeal. Counsel advised that there were no arguable grounds for an

appeal against conviction. However, he considered the sentence

excessive and provided the applicant with draft grounds of appeal

against sentence.

The applicant rejected counsel's advice and made an application

to the Court of Appeal for leave to appeal against conviction and

sentence and for legal aid to pursue the appeal. He submitted his own

grounds of appeal, alleging inter alia defects in the judge's

directions to the jury and in the treatment of evidence at trial. The

applicant sought assistance from a solicitor not previously involved

in the case. The solicitor submitted to the Court of Appeal the grounds

of appeal against sentence originally drafted by counsel. The court

rejected these, the applicant already having submitted his own grounds.

The applicant's trial legal aid did not cover further legal assistance

on appeal and he therefore continued to act in person.

On 26 August 1993 the single judge refused leave and legal aid.

On 21 December 1993, the Full Court confirmed the refusal.

COMPLAINTS

1. The applicant complains that his trial failed to meet the

requirements of Article 6 para. 1 and 3(d) of the Convention. He points

to the judge's refusal to admit psychiatric reports and the failure of

the prosecution to supply details of the unidentified witness. He

complains that the judge failed to leave the defence of automatism to

the jury and misdirected the jury as to the elements of "intention" and

"recklessness" in the offences charged. The applicant also alleges that

his counsel took a mistaken view of the defences of automatism and

insanity, further contributing to the unfairness of the trial.

The applicant complains of the absence of legal aid to pursue his

appeal against conviction as well as sentence.

2. The applicant asserts that his mental state at the time of the

attack was such that he could not have been guilty of the offence for

which he was convicted. He complains that he was consequently penalised

for conduct which did not constitute an offence under national law at

the time when it was committed, in violation of Article 7 of the

Convention, and that his imprisonment violates Article 5 para. 1 of the

Convention because it is not "lawful detention after conviction by a

competent court" within the meaning of sub-paragraph (a) of that

provision.

3. The applicant also invokes Article 13 of the Convention.

THE LAW

1. The applicant complains that he did not receive a fair trial as

required by Article 6 paragraph 1 (Art. 6-1) of the Convention and that

the defence rights guaranteed by Article 6 para. 3 (d) (Art. 6-3-d),

were not respected. Insofar as the complaints relate to the absence of

legal aid on appeal, the Commission has also examined them under

paragraph 3 (c) of Article 6 (Art. 6-3-d).

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

provides:

"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:

...

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..."

The Commission recalls that the specific guarantees provided by

Article 6 para. 3 (Art. 6-3) must be interpreted in the light of the

general principle of fairness laid down in Article 6 para. 1 (Art. 6-1)

of the Convention. The Commission is required to consider whether the

proceedings as a whole were conducted in conformity with these

provisions of the Convention (see, for example, Can v. Austria, Comm

Report 12.7.84, Eur. Court H.R., Series A no. 96).

With regard to the judicial decisions in the case, the Commission

recalls that, in accordance with Article 19 (Art. 19) of the

Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention. In particular,

it is not competent to deal with an application alleging errors of law

or fact on the part of domestic courts, except where it considers that

such errors might have involved a possible violation of any of the

rights and freedoms set out in the Convention. The Commission refers,

on this point, to its established case-law (e.g. No. 12505/86, Dec.

11.10.88, D.R. 58 pp. 106, 110 with further references).

The Commission further recalls that the admissibility of evidence

is primarily a matter for regulation by domestic law, and as a rule it

is for the national courts to assess the evidence before them (cf. Eur.

Court H.R., Windisch judgment of 27 September 1990, Series A no. 186,

p. 10, para. 25).

In the present case, the applicant admitted having started a fire

at his sister's house and having used a petrol can in the attack. The

central dispute at trial concerned whether, given the manner of the

attack and the applicant's degree of awareness of the risk to life, the

ingredients of the offences charged - in particular the requisite

elements of "intention" or "recklessness" - were established.

It appears to the Commission that there was substantial material

before the jury, including the applicant's own admissions as to the

nature and purpose of the attack, on which the applicant's mental state

could be evaluated. Notwithstanding the judge's exclusion of written

psychiatric reports, the applicant was not prevented from calling oral

expert evidence to support his contentions as to his mental health and

his capacity to appreciate risks at the time of the attack. The

applicant has produced no evidence to suggest that the identity of the

neighbour who supposedly witnessed the attack was deliberately withheld

from the defence by the prosecution, nor does he show why the defence

could not have made its own enquiries as to this person's identity.

The applicant had ample opportunity to make legal submissions in

his defence, including those as to automatism and insanity. The

Commission recalls that the applicant re-engaged counsel to address the

jury at the end of the trial. The Court of Appeal found that there was

no reason to doubt the fairness or accuracy of the judge's summing-up.

As to the proceedings before the Court of Appeal, the applicant

has not contended that in refusing legal aid, the court failed properly

to consider whether the interests of justice required that legal aid

should be granted. The single judge had before him the applicant's

grounds of appeal, in which the applicant made essentially the same

complaints about his trial (supported by citation of domestic case-law)

as he now puts to the Commission, as well as a transcript of the trial

judge's summing-up.

In his written reasons for refusing leave and legal aid, the

single judge expressed the view that the applicant had no reasonable

prospect of persuading the Full Court to allow an appeal against

conviction. As to sentence, the single judge noted that the trial judge

had "considered all possible mitigation" and did not find the sentence

"manifestly excessive". The Full Court evidently took a similarly

unfavourable view of the applicant's prospects of success.

The Commission observes that trial legal aid covered counsel's

advice on the merits of an appeal as well as preparation of grounds of

appeal against sentence. The Commission finds no indication that the

applicant was unable to put to the Court of Appeal all the matters he

considered relevant to the application which he made, contrary to

counsel's advice, for leave to appeal against both conviction and

sentence. Since leave was refused for lack of merit, the interests of

justice cannot be said to require that the applicant receive further

financial assistance to pursue his case.

The Commission concludes that applicant's complaints in relation

to the proceedings disclose no appearance of a violation of Article 6

(Art. 6) 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.

2. Insofar as the applicant's complaints relate to the quality of

services provided by counsel, the Commission recalls that under Article

25 para. 1 (Art. 25-1) of the Convention it may only consider

applications where the applicant alleges a violation by one of the

Contracting Parties of the rights and freedoms set out in the

Convention and where that Party has recognised the competence of the

Commission. The Commission may not receive applications directed

against private individuals. It follows that the application is, to

this extent, incompatible ratione personae with the provisions of the

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

Convention.

3. The applicant complains that his conviction for arson with intent

to endanger life and the sentence of imprisonment imposed on him

violate Article 7 and Article 5 para. 1 (Art. 7, 5-1) of the

Convention.

Article 7 para. 1 (Art. 7-1) of the Convention, so far as

relevant, provides:

"1. No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute a

criminal offence under national or international law at the time

when it was committed..."

Article 5 para. 1 (Art. 5-1) of the Convention, so far as

relevant, provides:

"1. Everyone has the right to liberty and security of the

person. No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure prescribed by

law:

a. the lawful detention of a person after conviction by

a competent court..."

The Commission notes that the present forms of simple and

aggravated arson have been criminal offences in English law since

enactment of the Criminal Damage Act 1971.

It cannot be said, therefore, that the applicant was convicted

of an offence unknown to law at the time of its commission. The

applicant's objections to the particular manner in which the relevant

law was applied at his trial, objections which were in any event

rejected by the Court of Appeal, cannot support a complaint under

Article 7 (Art. 7) of the Convention.

The same reasoning applies mutatis mutandis to the applicant's

complaint that his detention was not "lawful" within the meaning of

Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. The Crown Court

is moreover the competent court to try the offences with which the

applicant was charged.

It follows that this part of the application must also be

rejected as being manifestly ill-founded within the meaning of Article

27 para. 2 (Art. 27-2) of the Convention.

4. Having rejected the applicant's substantive claims as being

manifestly ill-founded or incompatible ratione personae with the

provisions of the Convention, the Commission also finds that they must

be regarded as not "arguable" in accordance with the jurisprudence of

the Convention organs as to the scope and applicability of Article 13

(Art. 13) (e.g. Eur. Court H.R., Boyle and Rice judgment of 27 April

1988, Series A no. 131, pp. 22-23, paras. 52-57).

It follows that this part of the application is also manifestly

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

Convention.

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)

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FOSTER v. THE UNITED KINGDOM

FOSTER v. THE UNITED KINGDOM