Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21266/93

by K.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 30 June 1993, the following members being present:

MM. F. ERMACORA, Acting President of the First Chamber

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 2 June 1992 by K.

against the United Kingdom and registered on 21 January 1993 under file

No. 21266/93;

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 1964 and currently

serving a prison sentence in Glenochil prison.

The facts as submitted by the applicant may be summarised as

follows.

The applicant was tried before the High Court of Justiciary

between 10 and 16 March 1989 on 13 charges of mobbing and rioting

arising out of disturbances in Perth prison. He had been granted legal

aid and was represented by solicitor and counsel.

The indictment stated that the applicant

"did on 1 and 2 May 1988, in 'C' Hall, Prison of Perth,

form part of a mob of evilly disposed persons which acting

of a common purpose did conduct itself in a violent

riotous and tumultuous manner, to the great terror and

alarm of the lieges and in breach of the peace and did,

with faces masked.

(a) brandish knives, sticks, metal bars, wooden and metal

batons and other similar instruments, shout, swear,

threaten violence to officers and prisoners there and place

them in a state of fear and alarm for their safety;"

followed by (b) to (m) which listed other acts of violence.

The applicant was found guilty of 7 of the charges. In

convicting the applicant, the jury deleted the words "acting of a

common purpose" from the preamble. He was sentenced on 16 March 1989

to 7 years' imprisonment, to be served consecutively to the term of 13

years' imprisonment which he was already serving.

The applicant's solicitor and counsel advised the applicant to

appeal, considering an important and complex principle of law arose

concerning the definition of mobbing and rioting as a result of the

jury's deletion. The grounds of the appeal were that the deletion

of the words meant that the jury had concluded that there was no mob

in existence, and that therefore there was no evidence to convict, on

six of the items in particular. An application was made for legal aid,

submitted with a note by the applicant's solicitor and senior counsel

supporting the appeal.

The Scottish Legal Aid Board refused legal aid on 1 November

1989. A renewed application was refused on 9 November 1989.

As a result, the applicant presented his appeal in person before

the High Court. On 10 November 1989, the High Court, sitting as an

appeal court, dismissed the appeal, but reduced the sentence to 5

years' imprisonment.

The Court concluded that the jury's deletion did not mean that

there was no mob in existence. The matter was however reconsidered by

the applicant's legal advisers and in early 1991 Senior Counsel gave

advice first that it would have been impossible on the evidence to have

convicted the applicant on at least some of the heads as actor, and

that the deletion of the words "acting of common purpose" meant that

he could not be convicted as a member of a mob with a common purpose.

A petition was addressed to the Secretary of State.

Following the applicant's petition, the Secretary of State

decided to exercise his power under Section 263 (1) of the Criminal

Procedure (Scotland) Act 1975 and referred the case to the High Court

for a fresh appeal to be considered.

The applicant was granted legal aid on 15 March 1991 and was

represented by counsel at the hearing which took place on 1 November

1991. The applicant's grounds of appeal included:

a) the question of law as to whether an accused person charged

with mobbing only and not with any crime committed in an individual

capacity can be convicted if the mob of which he is said to have been

a part is held by the jury to have had no common purpose;

b) that there was insufficient evidence to convict the applicant

as an individual (as opposed to member of a mob) of the relevant sub-

heads of the charges.

The High Court found that there was substance in the first ground

and commented that the Solicitor General for the Crown had conceded

that a charge of mobbing and rioting could not stand if there was no

finding of a common purpose to commit the criminal acts libelled. The

Court held that the applicant's convictions on the general charge of

robbery and violence could not be allowed to stand. The question

however remained whether the jury's verdicts on the individual acts

libelled in the separately lettered paragraphs in the indictment should

also be quashed. The Court held that the applicant had not been charged

with mobbing alone but that the structure of the indictment was such

that it was open to the jury to convict the accused on the basis that

he had participated in and was guilty of the specific riotous acts as

an individual. The trial judge in his summing-up had directed the jury

as to this alternative course and drawn their attention to the need to

consider whether an accused was guilty either because he committed the

acts himself or was part of a gang which did and which was acting with

a common purpose. The Court then adjourned for a further report from

the trial judge on whether there was sufficient evidence as affected

the question of whether the applicant was guilty of any of the crimes

as an individual.

The High Court resumed the appeal at a hearing on 6 March 1992

at which the applicant was represented. It rejected the appeal.

It found that there was sufficient evidence to entitle the jury to

convict the applicant in an individual capacity of 5 of the charges

(one of which they amended) which included assaults on prison officers

and the threat of assault to other prisoners. The convictions on two

of the charges were quashed for insufficiency of evidence but it did

not reduce sentence in light of the gravity of the charges which

remained.

COMPLAINTS

The applicant submits that his convictions constitute a breach

of Article 7 of the Convention. He states that he was charged with

mobbing which includes a requirement of establishing a "common

purpose". Since the jury deleted the words "acting of a common purpose"

from the indictment, the applicant could not under Scottish law be

convicted of acting as part of a mob and consequently was found guilty

under an indictment which did not disclose an offence which existed

under Scottish law.

THE LAW

The applicant complains that he has been convicted on an

indictment which did not disclose a crime under Scottish law.

He invokes Article 7 (Art. 7) of the Convention which in its first

paragraph provides:

"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. Nor shall a heavier penalty be

imposed than the one that was applicable at the time the

criminal offence was committed."

Article 7 (Art. 7) prohibits the retrospective application of the

criminal law to the detriment of the accused and enshrines the

principle of legality of criminal offences. While the interpretation

and application of law can be the subject of development by the courts

as in the common law system, this law-making function must remain

within reasonable limits. In particular acts not previously punishable

should not be held by the courts to entail criminal liability nor

should existing offences be extended to cover facts which previously

clearly did not constitute a criminal offence (see eg. No. 8710/79,

Dec. 7.5.82,D.R. 28 p. 77).

In the present case, the applicant alleges that he was convicted

on an indictment which accused him of mobbing whereas the jury had

deleted from it an essential requirement of "acting of a common

purpose." The Commission notes however that the High Court on appeal

found that this ground of appeal was substantiated and that a person

could not be convicted of mobbing if he did not act with the common

purpose of the mob. It upheld 5 of the convictions on the basis that

the applicant had been found guilty by the jury on the alternative

basis of having participated in the crimes charged in an individual

capacity and that there was sufficient evidence to uphold these

convictions which included, inter alia, two charges of assault.

In light of the above, the Commission finds that the acts for

which the applicant was convicted did entail criminal liability and

that the offence of mobbing was not in fact extended to facts which

previously did not constitute criminal offences. It concludes therefore

that there is no indication of a violation of Article 7 para.1

(Art. 7-1) of the Convention.

It follows that this application must be declared 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 Acting President

of the First Chamber

(M.F. BUQUICCHIO) (F. ERMACORA)

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K. v. THE UNITED KINGDOM

K. v. THE UNITED KINGDOM

LEXI