Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12656/87

by K.

against the United Kingdom

The European Commission of Human Rights sitting in private on

13 May 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN,

S. TRECHSEL,

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. H.C. KRÜGER, 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 1 August 1986

by K. against the United Kingdom and registered on 19 January 1987

under file No. 12656/87;

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 citizen of France, born in 1949 and an

artist by profession. At the time of lodging his application he was

detained in HM Prison Edinburgh where he was serving a 30 month prison

sentence for assault with intent to rape.

The applicant claims that he is innocent of the offence and

outlines the evidence in his favour. He states that on the day of his

trial, 21 November 1985, the QC (senior counsel) with whom he had

prepared his defence was unable to be present and junior counsel had

allegedly under an hour to prepare the defence file. The applicant

had wanted an adjournment so that the original QC could represent him,

but he was allegedly threatened by the Procurator Fiscal with remand

in custody if such an application were made to the court and accepted,

so the request for an adjournment was not made. Junior counsel

allegedly failed to call essential defence witnesses who were present

in court. The Edinburgh High Court convicted him of the offence.

The Dean of the Faculty of Advocates, in a letter to the

applicant dated 10 July 1987, refuted the applicant's allegations.

Junior counsel had been instructed in good time before the trial and

had adequate time to prepare the brief. His counsel's recollection is

that the applicant was not happy about the unavailability of senior

counsel, but he accepted the explanation given. The Dean considered

that counsel had quite rightly not called certain witnesses whose

evidence was anyway accepted by the prosecution or witnesses who would

have been prejudicial to the defence. The evidence given by the main

prosecution witnesses was strong and there was ample evidence for a

conviction.

On appeal the applicant wished to raise the question of an

inadequate defence because of counsel's alleged inability to prepare

the brief in time. However, the original written grounds of appeal

which were lodged by the applicant's solicitor omitted this point and

relied on an alleged misdirection by the judge. The applicant did not

receive legal aid for representation at the appeal hearing. He was,

however, assisted by his solicitor in the preparation of the appeal.

The solicitor attended the hearing, albeit not as his formal

representative, and subsequently waived his fees. The applicant

represented himself at the appeal hearing and raised the question of

the change of counsel at the trial as a violation of Article 6 para. 3

of the Convention by the trial court. The applicant claims not to

have received the free services of an interpreter before the High

Court of Justiciary on appeal, the interpreter provided by the French

Consul allegedly not being a professional.

The High Court of Justiciary found no misdirection of the case

by the trial judge and considered the applicant's conviction

inevitable and well-founded. It made no comment on the conduct of the

applicant's defence at the trial or the absence of evidence from

certain witnesses. The Court dismissed the applicant's appeal on

25 September 1986.

Finally, the applicant states that the prison authorities

refused him permission to be visited and filmed by a Scottish

Television journalist who was investigating his case. On 5 March 1987

the Scottish Home and Health Department confirmed the refusal because

the exhibition of particular prisoners on television is prohibited by

Prison Standing Orders.

COMPLAINTS

The applicant complains to the Commission of a breach of

Article 6 para. 3 (a), (b), (c) and (d) of the Convention insofar as

he was not represented by the senior counsel of his choice at his

trial, insofar as junior counsel was allegedly ill-prepared to defend

him having been instructed only an hour before the hearing, insofar as

the trial allegedly had to proceed because of the Procurator Fiscal's

threat to imprison him, insofar as junior counsel failed to produce

certain defence witnesses and material, and insofar as the appeal

court did not provide an interpreter and he was not legally

represented at the appeal hearing.

In correspondence with the Commission the applicant also

complained of a breach of Article 10 of the Convention insofar as the

prison authorities refused to allow him to be visited and filmed by a

Scottish Television journalist.

THE LAW

1. The applicant has complained of a breach of his rights of

defence ensured by Article 6 para. 3 (Art. 6-3) of the Convention,

which reads as follows:

"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;

(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;

(e) to have the free assistance of an interpreter if he

cannot understand or speak the language used in court."

However the Commission finds no evidence in the case file to

substantiate the applicant's allegations. There is no evidence

whatsoever that the applicant was not informed promptly or

comprehensively of the charges against him. Nor is there evidence in

the case-file that the Procurator Fiscal threatened the applicant with

remand in custody if he sought an adjournment of his trial.

The Commission considers that the mere fact that senior

counsel of the applicant's choice was unable to represent him at the

trial does not indicate that junior counsel did not have the time,

facilities or ability to represent the applicant adequately. There is

no evidence that junior counsel failed to master the brief or failed

to call essential witnesses or put in essential evidence. The appeal

court made no comment on junior counsel's representation of the

applicant at the trial or on the absence of certain witnesses'

evidence. In this latter connection the Commission notes that Article

6 para. 3 (d) (Art. 6-3-d) of the Convention does not confer on the

accused an absolute right to obtain the appearance of all possible

witnesses in court. The accused must demonstrate that the hearing of

a particular witness "was necessary for ascertaining the truth and

that failure to hear the witness prejudiced the rights of defence"

(No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127). The applicant has not

demonstrated that the evidence of the witnesses which junior counsel

did not call and upon which the appeal court did not apparently see

fit to comment were essential to the truth of his case.

Finally, the Commission notes that the applicant had extensive

free legal assistance for his appeal, albeit not a formally designated

representative, and that he had the free assistance of an interpreter

provided by the French Consul. He has submitted no evidence that the

interpreter was incompetent.

In these circumstances, the Commission concludes that the

applicant's complaints under Article 6 para. 3 (Art. 6-3) of the

Convention are manifestly ill-founded within the meaning of Article 27

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

2. The applicant has also complained of the refusal of the prison

authorities to allow him to be visited and filmed by a Scottish

Television journalist. He invokes Article 10 (Art. 10) of the

Convention the relevant part of which provides as follows:

"1. Everyone has the right to freedom of expression.

This right shall include freedom to hold opinions and

to receive and impart information and ideas without

interference by public authority and regardless of

frontiers....

2. The exercise of these freedoms, since it carries

with it duties and responsibiities, may be subject to

such formalities, conditions, restrictions or penalties

as are prescribed by law and are necessary in a

democratic society ... for the prevention of disorder

or crime..."

The Commission assumes, for the purposes of the present case,

that the refusal to allow the applicant to give a televised interview

constituted an interference with his freedom to impart information,

ensured by Article 10 para. 1 (Art. 10-1) of the Convention. The

Commission notes the general prohibition in Scottish Prison Standing

Orders on the "exhibition of particular prisoners on television". The

Scottish Prison Rules only authorise prisoners' visits from relatives

and friends, legal advisers, procurator fiscal or police officers.

Permission for all other visits is at the discretion of the Secretary

of State (Rules 74-80 Prison (Scotland) Rules 1952). The Commission

acknowledges that the provision of general facilities for such

interviews would create an unreasonable administrative and security

burden for prison administrations. Thus, the prohibition of visits

for television interviews can be said to be prescribed by law and, in

principle, necessary in a democratic society for the prevention of

disorder, within the meaning of Article 10 para. 2 (Art. 10-2) of the

Convention. The Commission also observes that there is no evidence in

the present case that the applicant was prevented from communicating

with the journalist concerned by correspondence, thus imparting

relevant information about his case. Nor does the application

disclose any exceptional circumstances which might have necessitated

the televising of the applicant.

In the light of these considerations the Commission concludes

that the refusal to allow the applicant to be visited and filmed by a

Scottish Television journalist was prescribed by law and necessary in

a democratic society for the prevention of disorder within the meaning

of Article 10 para. 2 (Art. 10-2) of the Convention.

It follows that this aspect of the case is also manifestly

ill-founded pursuant to Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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K. v. THE UNITED KINGDOM

K. v. THE UNITED KINGDOM

LEXI