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GILLIES v. THE UNITED KINGDOM

Doc ref: 14099/88 • ECHR ID: 001-1109

Document date: April 14, 1989

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Cited paragraphs: 0
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GILLIES v. THE UNITED KINGDOM

Doc ref: 14099/88 • ECHR ID: 001-1109

Document date: April 14, 1989

Cited paragraphs only

AS TO THE ADMISSIBILITY OF

Application No. 14099/88

by Robert GILLIES

against the United Kingdom

The European Commission of Human Rights sitting in private on

14 April 1989, the following members being present:

MM. S. TRECHSEL, Acting President

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. J. RAYMOND, Deputy 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 19 February

1988 by Robert GILLIES against the United Kingdom and registered on

5 August 1988 under file No. 14099/88;

Having regard to the report provided for in Rule 40 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 resident

in Fife. He is currently serving a prison sentence in H.M. Prison

Saughton, Edinburgh. The facts as submitted by the applicant may be

summarised as follows.

The applicant was tried before the Sheriff Court at Dunfermline

on a charge of wilful fire-raising in relation to the burning of a barn

causing £12,000 damage. It appears that he was represented at his

trial on 9 and 10 December 1987. The applicant was found guilty on

10 December 1988 and was remanded in custody for three weeks pending

reports relevant to sentencing. The applicant appeared before the

Court on 31 December 1987 but the Sheriff who had conducted his trial

was absent and the applicant was remanded in custody for another week.

On 7 January 1988, the applicant appeared before the Sheriff

and was sentenced to three years imprisonment. Prior to 1 January

1988, the maximum sentence which could be imposed by a Sheriff Court

was a sentence of two years imprisonment although the Sheriff had

the power to remit a case to the High Court for sentencing if he

considered his powers were insufficient. On 1 January 1988, the

Criminal Justice (Scotland) Act 1987 came into force and increased the

power of the Sheriff to pass a term of imprisonment of up to three

years.

The applicant appealed against his sentence on the grounds

that the sentence was too severe and that he was sentenced to three

years imprisonment although on the date of his conviction the maximum

term possible was two years. He also applied for legal aid for his

appeal but was refused by the Scottish Legal Aid Board on the basis

that there were no substantial grounds for appeal and that the

sentence did not appear excessive.

The applicant's appeal was heard on 16 June 1988 by the High

Court of Justiciary. The applicant was present in person. No

representative of the Crown was present for the prosecution. The

Court, in dismissing his appeal, held that the sentence was not too

severe and that the only date relevant in determining whether a

sentence was competent was the date upon which the sentence was

imposed, in this case the 7 January 1988, when a three years sentence

was within the competence of the Sheriff.

COMPLAINTS

The applicant complains of the deferral of his sentencing

until 7 January 1988, by which time new legislative provisions had

increased the sentencing power of the Sheriff from two years to three

years. The applicant complains that he was accordingly sentenced to a

term of imprisonment which was not applicable at the time the offence

was committed. He invokes Article 7 of the Convention.

The applicant also complains of an inequality of arms contrary

to Article 6 para. 1 of the Convention.

THE LAW

1. The applicant has complained that he received a three years

sentence of imprisonment whereas prior to 1 January 1988 a two years

sentence would have been the maximum imposable by the Sheriff. He

invokes Article 7 para. 1 (Art. 7-1) which 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."

The Commission notes that the maximum penalty applicable for

the criminal offence of wilful fire-raising at the time that the

offence was committed was life imprisonment, whereas the applicant was

sentenced to three years. It is true that before 1 January 1988, the

Sheriff only had the power to give a maximum sentence of two years

imprisonment to persons convicted before him. However, even where a

person is tried before the Sheriff, it is open to the Sheriff Court,

where it considers its powers of sentencing to be insufficient, to

remit the person for sentencing to the High Court, which has full

sentencing powers. This applied also before 1 January 1988.

In these circumstances, the Commission finds that the change

in the sentencing powers of the Sheriff Court between the commission

of the offence and the sentencing of the applicant does not constitute

the imposition of a heavier penalty than that applicable at the time

the criminal offence was committed.

The Commission therefore finds that the applicant's complaint fails to

disclose a violation of Article 7 para. 1 (Art. 7-1) of the Convention.

It follows that this complaint is manifestly ill-founded within the

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

2. The applicant has also complained of inequality of arms contrary to

Article 6 para. 1 (Art. 6-1) of the Convention.

The Commission recalls that the applicant was represented at his trial

and that on appeal, while he was refused legal aid and appeared to present his

own case, the prosecution was not in fact present at all. In these

circumstances, the Commission finds that the applicant has not substantiated

his complaint, which fails therefore to disclose any appearance of a violation

of Article 6 para. 1 (Art. 6-1) of the Convention.

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

DECLARES THE APPLICATION INADMISSIBLE.

Deputy Secretary to the Commission Acting President of the Commission

(J. RAYMOND) (S. TRECHSEL)

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