Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 23094/93

by R. O.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting in

private on 11 May 1994, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

A.S. GÖZÜBÜYÜK

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

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 5 October 1994 by R.

O. against the United Kingdom and registered on 15 December 1993 under

file No. 23094/93;

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 1952. He is detained at

Wormwood Scrubs prison and is represented before the Commission by Mr.

I.H. Pearson, solicitor, of Messrs. Tanner and Taylor, Aldershot. The

facts of the application, as submitted by the applicant's representative

and apparent from the documents submitted, may be summarised as follows.

The applicant pleaded guilty to two counts at Portsmouth Crown Court

on 4 January 1991. The first count was of wounding with intent to cause

grievous bodily harm, the second was of having an offensive weapon and

related to a separate incident. After detention for the preparation of

psychiatric reports, on 19 April 1991 an interim Hospital Order was made

for the applicant's treatment at Broadmoor Hospital.

On 18 October 1991 the applicant applied to withdraw his pleas of

guilty. Following argument and further proceedings on 9 and

15 April 1992, the trial judge ruled that the applicant would not be

allowed to change his plea. The applicant was convicted and sentenced

to eight years' imprisonment on 24 September 1992.

On 8 June 1993 two applications were heard by the Court of Appeal.

The first application was the applicant's renewed application for

leave to appeal against conviction. The Court of Appeal found as

follows:

"The sole ground of appeal is that the learned judge was wrong in

refusing to allow the applicant to change his plea.

...

The prosecution case was that at about 6.45 p.m. on 20 March 1989

the applicant stabbed an 18 year-old girl, a total stranger to him,

in an unprovoked attack. He struck several blows. Fortunately the

victim was saved from more serious injury by the leather coat she

was wearing. However, she did suffer a one-and-a-half inch wound

to her right shoulder which required seven stitches. A long-bladed

carving knife was found at the scene.

The applicant was arrested eighteen months later in the early hours

of 6 September 1990 in Portsmouth. He was in possession of two

knives on that occasion. ...

...

Some nine months had passed between the applicant's plea of guilty

and his application to withdraw it on 18 October 1991. In short the

chronology of events after his apprehension was as follows. He was

arrested on 6 September 1990. On 8 September he had the informal

chat with the police officer and asked to see his solicitor. He

was then interviewed in the presence of his solicitor and admitted

the offence in count 1. After that he made a statement to his

solicitor in which he agreed that he had admitted the offence to the

police.

...

On 3 January 1991, there was a conference with his then counsel and

a Mrs. Ellam, who was a legal executive from his then solicitors.

At that conference the applicant raised the question of his pleading

not guilty. But in the result on 4 January, the next day, he

pleaded guilty to both charges.

Both the applicant and Mrs. Ellam were called to give evidence

before the judge on the application to withdraw the plea of guilty.

They were in complete disagreement. The applicant said that he

admitted the wounding to the police because the officers told him

that it would be better for him and for his mother's health. He

told his solicitor that he would be pleading guilty, but not the

reason. He could not remember much about the statement he made to

the solicitor which itself amounted to an admission. He said that

Mrs Ellam told him that as he had admitted the attack, if he wanted

to plead not guilty he would have to change his legal

representatives; that a guilty plea would result in the case being

over more quickly; and that he might receive a suspended sentence.

He subsequently changed solicitors, he said, because he wanted to

plead not guilty.

When cross-examined, the applicant said that the interview with the

police in which he admitted his guilt was in the presence of his

solicitor and he agreed that he had not been pressurised to make the

admission. Counsel had warned him that although he might get a

suspended sentence, he could receive a sentence for life

imprisonment.

...

On 9 April, Mrs. Ellam told the court that at the conference on 3

January 1991 she went through the evidence with the applicant. He

said that the instructions that he gave the solicitor (Mrs. Ellam's

principal) to the effect that he wanted to plead guilty were

correct. She denied discussing sentence with the applicant, or

telling him that the case would be over more quickly if he pleaded

guilty. He did not tell her that he had admitted the offence

because of police pressure. It was put to her in cross-examination

that she had advised the applicant to plead guilty. She denied

that. She said that she asked him whether he would be entering a

guilty plea. He said yes, because, he said, he did it.

Before the learned judge there were a number of medical reports.

Whilst it is true that the applicant told a number of doctors that

he was not guilty of the stabbing, he also told two doctors in

February and March 1991 that he was guilty, giving some description

of the circumstances of the offence.

There was also a statement, unchallenged by the defence, from

counsel who had appeared for the applicant. He said that the

applicant had freely and voluntarily admitted his guilt in

conference, having discussed the case with Mrs. Ellam.

...

It was common ground that the learned judge had a discretion to

allow a change of plea at any time before sentence. ... However,

in a careful ruling in which he reviewed and evaluated the evidence

he had heard, he held that Mrs. Ellam's account was correct and the

applicant's account was rejected. The learned judge was satisfied

that the applicant had pleaded guilty voluntarily and acknowledged

that he had in fact committed the stabbing and also that he was

guilty of the offence charged on the second count.

...

The learned judge exercised his discretion, bearing [all the

appropriate] principles in mind, not to allow a change of plea.

...

... The Court [in R. v. Cantor (1991) CLR 481] did not lay down any

specific practice to be followed in any specific circumstances but

ruled that it must be left to the trial judge to decide what he will

do, if anything, beyond listening to counsel in order to satisfy

himself that he has sufficient material before him to deal properly

with an application to change the plea. That, in our judgment, is

what the learned judge did here.

...

[The judge] had the duty of satisfying himself that he had

sufficient material upon which to decide the application. He

clearly did satisfy himself that he was so and we cannot fault the

way in which the learned judge proceeded. Indeed we consider,

having read the extensive transcript of the proceedings on the

application, that the learned judge handled the matter admirably.

In the circumstances this application is refused."

The second application was a reference by the Attorney General under

Section 36 of the Criminal Justice Act 1988 for a review of the sentence

on the ground that it was unduly lenient. The Court of Appeal, having

particular regard to the unanimous opinion of the doctors that the

applicant "represents a high risk to women and one which is not at

present treatable and one which therefore is likely to persist for an

indefinite period", considered that "the only sentence which could

properly be imposed here, having regard to the need to protect the

public, was an indeterminate sentence". It ordered a life sentence in

substitution for the trial judge's sentence of eight years' imprisonment.

COMPLAINTS

The applicant alleges a violation of Article 6 of the Convention in

the following respects:

(a) he was denied trial by jury;

(b) the question of his guilt was determined not by reference to

evidence as to whether he had committed the offence, but by

reference to the events surrounding his initial guilty plea;

(c) the evidence concerning the applicant's instructions was privileged,

and he should not have been required and/or encouraged to waive that

privilege;

(d) he was convicted on the basis of a confession whose validity he was

not permitted to challenge, but was sentenced on the premise that

he had denied committing the offence to the doctors who examined

him;

(e) he was sentenced to life imprisonment without the possibility of

review;

(f) he was convicted on the basis of an equivocal guilty plea and so the

case was not proved against him (Article 6 para. 2);

(g) he was unable to defend himself against the charge by reason of the

refusal to let him change his plea (Article 6 para. 3(a));

(h) he was unable to examine witnesses against him because of the

refusal to let him change his plea (Article 6 para. 3(d).

THE LAW

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

Convention in several respects.

With regard to the judicial decisions of which the applicant

complains, 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 that

errors of law or fact have been committed by 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 constant case-law (see e.g.

No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec.

8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp.

31, 45).

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 ... by an

independent and impartial tribunal established by law ...

2. Everyone charged with a criminal offence shall be presumed

innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following

minimum rights:

a. to be informed promptly, in a language which he understands

and in detail, of the nature and cause of the accusation against

him;

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 guarantees in paragraphs 2 and 3 of

Article 6 (Art. 6-2, 6-3) of the Convention are specific aspects of the

general concept of a fair trial contained in paragraph 1 (Art. 6-1)(cf.,

for example, Eur. Court H.R., Unterpertinger judgment of

24 November 1986, Series A no. 110, p. 14, para. 29). It is in the first

place for the domestic authorities to determine rules regulating

procedural aspects of criminal proceedings, subject to the supervisory

jurisdiction of the Convention organs in considering the fairness of

proceedings (cf. the Commission's approach in No. 12002/86, Dec. 8.3.88,

D.R. 55 p. 218).

The Commission considers that a rule which militates against changes

of pleas which are unequivocal and voluntary cannot be said to compromise

the fairness of proceedings as such. The Commission will therefore

consider the impact of the refusal to permit the applicant to change his

plea on the proceedings as a whole.

In the present case the applicant was fully represented up until his

guilty plea on 4 January 1991, and only applied for leave to change his

plea (after he had changed representation) on 18 October 1991. The trial

judge considered the question of the events leading up to the applicant's

guilty plea in some depth, as is apparent from the Court of Appeal

judgment, and found that the plea was unequivocal and voluntary. He

therefore did not permit the change of plea. The Court of Appeal

scrutinised the way in which the trial judge approached the issue,

recalled that he had a discretion to permit the change of plea but had

preferred the evidence given by the applicant's former representatives

to the applicant's own evidence. The Court of Appeal accepted that the

judge had heard all the material necessary to decide the case, and

considered that he had "handled the matter admirably".

In these circumstances, the Commission finds that the fairness of

the proceedings against the applicant was not impaired by the refusal to

permit him to change his plea, and that in the light of this finding the

Commission is not required to consider separately the applicant's other

complaints.

It follows that the application is manifestly ill-founded as a whole

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) (A. WEITZEL)

Menu

R.O. v. THE UNITED KINGDOM

R.O. v. THE UNITED KINGDOM

LEXI