Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 16757/90

by B.S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

10 February 1992, the following members being present:

MM.C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs.G. H. THUNE

SirBasil HALL

MM.F. MARTINEZ RUIZ

C.L. ROZAKIS

Mrs.J. LIDDY

MM.L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 8 January 1990 by

B.S.against the United Kingdom and registered on 20 June 1990 under

file No. 16757/90;

Having regard to:

the report provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 13 July 1990 to bring

the application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits ;

- the observations submitted by the respondent Government on

24 April 1991;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1949, currently

serving a 10 year prison sentence in Long Lartin Prison,

Worcestershire. He is represented before the Commission by Mr. G.

Platt of Overbury, Steward and Eaton, solicitors of Norwich.

The facts of the application as agreed by the parties may be

summarised as follows.

On 8 June 1988 the applicant stood trial at Norwich Crown Court

on seven counts of rape, indecent assault, unlawful sexual intercourse,

kidnapping and threats to kill. He was represented by solicitor and

counsel. During the course of the trial the applicant was placed in

the dock at the front of which was a glass screen. The applicant was

unable to hear the proceedings. He made numerous complaints to his

solicitor, who passed them on to counsel, and to counsel directly

during the course of trial, but they made no application to the judge

to have the applicant moved to a place where he could hear. He also

complained to a dock officer that he could not hear.

On 15 June 1988, the applicant was convicted on four of the

counts and was sentenced to a total of 10 years in prison.

The applicant, unrepresented, applied for leave to appeal

against conviction on the grounds, inter alia, that he could not hear

the proceedings. On 13 September 1988 a single judge refused leave to

appeal to the Court of Appeal against conviction. The applicant's

complaint that he could not hear was not mentioned in the refusal of

leave.

The applicant renewed his application for leave to appeal to

the Court of Appeal on the same grounds as before, including a letter

from Prison Officer Smith, which stated:

"I was in the dock with the [applicant] and on

several occasions during the day, he asked me what was

happening as he could not hear the witnesses' statements.

On at least 3 occasions I called his solicitor and he was

told the problem. On one of these occasions he told the

[applicant] not to worry as his barrister was doing a good

job. I have to say that I could not hear what the witnesses

were saying."

On 6 October 1989 the application was refused by the full court.

In his judgment, Lord Justice Walker said as regards the

applicant's complaint that he did not receive a fair trial on being

unable to hear the proceedings:

"We have seen a letter from a prison officer

relating to this matter. There would appear to be

something in the complaint of the applicant,

namely, that he could not hear properly at all

times what was going on. There is no doubt in

our minds, however, that his solicitor and his

counsel had not the slightest difficulty in

following the proceedings and in representing him

in a way which could not possibly be complained

about."

On 6 November 1989 the applicant wrote to Norwich Crown Court

complaining about the acoustics. He was informed that as a result of

a recent complaint the acoustics of the court were under review.

On 10 November 1989, the applicant was informed by letter from

the Registrar of Criminal Appeals that he could not appeal to the House

of Lords, since he had not had an appeal dismissed by the Court of

Appeal.

A similar complaint concerning acoustics in the courtroom in

which the applicant had been tried was made in another case over a year

later. As a result, a report was commissioned concerning the

acoustics. This report, which was completed in 1990, concluded that,

although the glass screen had the effect of reducing the sound level

in the dock by 2dBA, a person speaking from the Bench was nonetheless

intelligible. It recommended that a sound reflector be installed above

the dock to counteract the effect of the glass screen.

COMPLAINTS

The applicant complains of a violation of Article 6 para. 1 of

the Convention. He alleges that he has been denied a fair trial in

that he could not hear or follow the proceedings which resulted in his

conviction.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 8 January 1990 and registered

on 20 June 1990.

On 13 July 1990 the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the application.

The Government's observations were submitted on 24 April 1991

after one extension in the time-limit. The applicant did not submit any

observations in reply.

On 11 July 1991 the Commission decided to grant legal aid to

the applicant.

THE LAW

The applicant complains that he did not receive a fair trial

since he was unable to hear the witnesses giving evidence against

him as a result of a glass screen in front of the dock. He invokes

Article 6 para. 1 (Art. 6-1) of the Convention, which provides in its

first sentence:

"In the determination of his civil rights and obligations or 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."

The Government submit that, taking the proceedings as a whole,

having regard in particular to the fact that the applicant's legal

representatives were able to follow the proceedings, the applicant had

a fair hearing. The inability of the applicant to follow the

proceedings was not brought to the attention of the trial court and the

Government cannot be held responsible for the failure of

his legal representatives to raise the matter.

Having examined the submissions of the parties, the Commission

considers that the application raises serious issues of law and fact

under the Convention, the determination of which should depend on an

examination of the merits. The application must therefore be declared

admissible, no other ground for declaring it inadmissible having been

established.

For these reasons, the Commission unanimously

DECLARES THE APPLICATION ADMISSIBLE

without prejudging the merits of the case.

Secretary to the Commission President of the Commission

(H. C. KRUGER) (C. A. NORGAARD)

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S. v. THE UNITED KINGDOM

S. v. THE UNITED KINGDOM

LEXI