Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 19804/92

by T.G.H.

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 2 December 1992, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mr. M. de SALVIA, 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 31 January 1992

by T.G.H. against the United Kingdom and registered on 7 April 1992

under file No. 19804/92;

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 national, born in 1942. He is

represented in the proceedings before the Commission by Mr. Alexander

Cameron, a barrister practising in London.

The facts, as submitted by the applicant and which may be deduced

from the documents lodged with the application, may be summarised as

follows.

The applicant was involved in making and supplying illegal drugs.

As a result, from October 1987, he was kept under continuous

observation by the police until January 1988 when he was arrested.

The applicant was arrested together with other people at the

premises where the drugs were being manufactured. He unsuccessfully

tried escaping in his car, in which was found a bag containing

12.1 kilos of amphetamine sulphate.

The applicant appears to have a serious previous criminal record

and has been an escape risk. Whilst on remand for the drugs offence,

he was tried and convicted for an offence of armed robbery, for which

he was sentenced to 18 years' imprisonment.

He suffered considerable anxiety as a result of these two sets

of proceedings and received treatment for a stomach ulcer. According

to defence counsel, this anxiety impaired his ability to give adequate

instructions.

On 17 April 1989 his Crown Court trial on the drugs charges

began. It involved several other defendants.

The trial precipitated an apparent worsening of the applicant's

state of anxiety and on 24 April 1988 defence counsel raised the

problem of the applicant's mental state with the trial judge.

By 27 April 1989, at the judge's request, reports were prepared

by the prison medical authorities. They confirmed that the applicant

was suffering from stress and anxiety but did not support the

suggestion that the trial should not continue. Defence counsel then

successfully applied for the applicant to be seen by an independent

psychiatrist. His report concluded that the applicant was suffering

from paranoid psychosis. The applicant's interpretation of reality was

said to be grossly distorted. On the basis of this report, defence

counsel applied to discharge the jury and adjourn the trial. It was

not contended by the defence that the applicant was not fit to plead

or that he was insane. The judge directed that the prison doctors

should prepare further reports after having seen that of the defence.

After the first few days of his trial the applicant voluntarily

decided not to attend court or give evidence, saying that "it was too

much for him".

In a separate hearing before the judge on 8 June 1989 all the

three medical experts were heard. On the one hand, the defence doctor,

who had examined the applicant for a little more than one hour, stated,

inter alia, that the applicant was suffering from serious paranoid

psychosis which could be characterised by delusions. These delusions

of persecution led the applicant to suppose that he was under permanent

police surveillance and that there was a conspiracy against him.

Accordingly this doctor was of the opinion that there was considerable

doubt whether the applicant was capable of conducting his defence.

However, the defence doctor also pointed out that this abnormal state

may have started in 1987, from when the applicant was in fact under

police surveillance. The applicant had no previous history of mental

illness or treatment.

On the other hand, a psychiatrist of H.M. Prison Wandsworth, who

had met the applicant several times, considered that the applicant was

indeed anxious, but not such as to amount to abnormal beliefs or

paranoid delusions. He found that the applicant did not suffer from

any serious mental illness and was fit to plead and instruct counsel.

The Senior Medical Officer of the prison also stated that during their

several hours of talks he found no sign to support the suggestion that

the applicant was not sane.

On 9 June 1989 the trial judge held as follows:

"Both doctors from Wandsworth agree that, with his long history

of peptic ulcers, (the applicant) is an anxious man, and always

has been. Both of them have considerable experience of the

strains and stress that facing extremely serious charges may have

on a prisoner.

In (the applicant's) case, that strain and stress has been

magnified by the fact that he is facing very serious drug charges

in this case, having less than six months ago received a sentence

of 18 years' imprisonment.

I think that he may well be suffering from paranoid psychosis,

although the belief that the Police have been looking for him,

and then watching him, is more of a reality than a delusion....

It is submitted that, although (the applicant) was fit to plead,

his condition has deteriorated during the course of the trial -

although this is rather contrary to what the psychiatrist said,

that he found him rather calmer in June than in April - and I

should, nevertheless, discharge the Jury from returning a verdict

in (the applicant's) case... . (The defence psychiatrist)

thought that he would have difficulty in instructing Counsel, and

on concentrating on the course of the trial, and conducting

himself appropriately in the witness-box. (The defence

psychiatrist) said that (the applicant) can talk rationally for

quite a while, and then he goes back to the view that he is being

persecuted. Notwithstanding all this, he knew where he was, what

he is accused of and he could recall events chronologically....

In my judgment, the occasions when a Judge should discharge a

Jury from returning a verdict on an accused person, who was

admittedly fit to plead, and who has not deteriorated in the

course of the trial, and who declines to have the issue of his

sanity determined by the Jury who is trying him, must be very

rare... .

I am left with the clear belief that (the applicant) is of

sufficient intellect to comprehend the course of the proceedings

of the trial, and to make a proper Defence, and to understand the

details of the evidence.

Therefore, I would not discharge the Jury from returning a

verdict."

The judge also refused a defence application on 13 June 1989 to

call the defence doctor to explain his opinion to the jury and the

reason why the applicant had not given evidence and had been absent

from the dock.

On 11 July 1989 the Crown Court convicted the applicant and he

was sentenced to 13 years' imprisonment.

On 7 August 1991 the Court of Appeal dismissed the appeal,

finding that the Crown Court judge had not wrongly assessed the medical

evidence or improperly exercised his discretion.

COMPLAINTS

The applicant complains under Article 6 para. 3 (b), (c) and (d)

of the Convention that due to his mental ill health his rights to

adequate time and facilities to prepare his defence, to defend himself

through legal assistance, and to have witnesses against him examined

were denied him.

He contends that the domestic law on fitness to plead is too

narrow and itself in breach of the Convention. The fact that he had

had a full opportunity to put forward his mental state to the courts

through his legal representatives is not enough to satisfy the fair

trial guarantees of Article 6.

THE LAW

The applicant complains of a breach of his defence rights.

He invokes Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b,

6-3-c, 6-3-d) which provide as follows:

"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; ..."

The Commission has had regard to the facts of the present case

and notes that there was no suggestion before the trial that the

applicant had been unable to instruct defence counsel adequately or

that he needed more time or facilities to prepare his case. No

adjournment of the trial date was requested by the applicant. It seems

that the start of the trial itself aggravated the applicant's state of

anxiety.

The trial judge immediately ordered medical reports when the

matter was raised by the applicant's representatives. He was then

faced with conflicting medical opinions, which both the prosecution and

defence had the opportunity of examining and cross-examining. There

is no evidence in the case-file that the applicant was unable to defend

his standpoint properly through competent legal representatives of his

own choosing. The Commission finds nothing arbitrary in the decision

of the trial judge that the applicant was of sufficient intellect to

have understood what was going on at his trial and to defend himself

properly. It also finds nothing arbitrary in the English law standards

concerning the fitness of the individual to plead his case.

There is no evidence that the handling of the rest of the case

by the applicant's representatives was deficient or that the principle

of equality of arms concerning the attendance and examination of

witnesses was in any way infringed.

In these circumstances, the Commission concludes that the present

case does not disclose any appearance of a violation of the Convention,

in particular of Article 6 para. 3 (b), (c) or (d) (Art. 6-3-b, 6-3-c

6-3-d).

It follows that 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber a.i. President of the First Chamber

(M. de SALVIA) (J.A. FROWEIN)

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T.G.H. v. THE UNITED KINGDOM

T.G.H. v. THE UNITED KINGDOM

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