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AS TO THE ADMISSIBILITY OF

Application No. 12950/87

by Gary William TURNER

against the United Kingdom

The European Commission of Human Rights sitting in private on

9 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

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 12 March 1987

by Gary William TURNER against the United Kingdom and registered

on 3 June 1987 under file No. 12950/87;

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 British citizen, born in 1955, and is

resident in Cheltenham. He is represented before the Commission by

Robins and Co., a solicitors firm practising in Cheltenham. The facts

as presented by the applicant may be summarised as follows.

The applicant was charged with assaulting a police officer and

tried in the magistrates court on 17 October 1986, where he was

represented by his solicitor. He was found guilty and fined £80. The

applicant appealed to the Crown Court against conviction only. The

Crown Court heard the appeal on 4 and 5 February 1987, where the

applicant was represented by counsel. The applicant was warned by the

presiding judge that the Court had power under S.9 of the Courts Act

1971 to increase sentence, even though the applicant was not appealing

against sentence, and that the court took the view that offences of

assaulting the police should be dealt with by imprisonment. The

applicant however continued with his appeal. His appeal was dismissed

and, after hearing short submissions as to sentence based on the

mitigating circumstances of the case, the Court increased his sentence

to 6 months imprisonment and also imposed 6 months imprisonment, to

run concurrently, for breach of a conditional discharge imposed on 12

November 1984 for assault occasioning actual bodily harm.

The applicant did not appeal. The applicant was advised by

counsel that though this sentence was probably excessive, the only

possible remedy would be to apply to the Divisional Court by way of

case stated or judicial review. Such applications can only be made on

the ground that the Court is wrong in law or in excess of

jurisdiction. Counsel gave the opinion that, since the sentence was

within the limits permitted by statute and that since the case-law

establishes that it is not enough to establish that the sentence is

unduly severe, an appeal would stand no prospect of success.

COMPLAINTS

The applicant complains that his appeal was against conviction

only and that sentencing had already been dealt with by the lower

court. He submits that the sentence imposed by the Crown Court was

not implicit in the sentence of the lower court. Further he complains

that the procedure for considering sentence after an appeal against

conviction is dismissed is cursory and that, in his case, sentencing

followed immediately upon the refusal of his appeal against conviction

without any consideration of further or up-to-date reports.

The applicant invokes Article 5 para. 1 and Article 6 paras. 1

and 3 of the Convention.

THE LAW

1. The applicant complains of being sentenced to imprisonment by

the Crown Court following their dismissal of his appeal against

conviction.

Article 5 para. 1 (Art. 5-1) of the Convention guarantees to

everyone the right to liberty and stipulates that noone shall be

deprived of his liberty save in the instances specified in

sub-paragraphs (a)-(f) (Art. 5-1-a-f) and save in accordance with a

procedure prescribed by law. The Commission recalls that the

applicant had been convicted and fined by a magistrates court and

that, following his appeal, the Crown Court exercised its powers under

Section 9 of the Courts Act 1971 to increase his sentence from a fine

to a term of imprisonment. The applicant has submitted no evidence

that might suggest that the Crown Court could be regarded as anything

other than a competent court for the purpose of imposing sentence in

relation to the conviction of the applicant following his trial at

first instance. The Commission accordingly finds that there can be no

doubt as to the applicant having been subject to a "conviction by a

competent court" within the meaning of Article 5 para. 1 (a) (Art.

5-1-a) which specifically allows "the lawful detention of a person

after conviction by a competent court".

It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention.

2. The applicant also complains that the increase of sentence by

the Crown Court when he was appealing against conviction only was

contrary to Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the

Convention. He complains that the procedure for considering sentence

after the dismissal of his appeal was cursory.

Article 6 para. 1 and para. 3 (a) (Art. 6-1, 6-3-a) of the

Convention provide:

"1. 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.

...

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...."

The Commission recalls that, in accordance with its constant

case-law, the fairness of any trial must be examined by reference to

the proceedings as a whole (e.g. Application No. 524/59, Dec. 19.12.60,

Yearbook 3 pp. 323, 353 and Application No. 8289/78, Dec. 5.3.80,

D.R. 18 p. 160).

As regards the applicant' complaint of the increase of

sentence when he was only appealing against conviction, the Commission

notes that the applicant was informed by the Crown Court at the

beginning of his appeal of their powers to increase sentence and of

their view that a sentence of imprisonment was considered more

appropriate in cases concerning the offence of assault of a policeman.

The applicant however chose to continue with his appeal. The

applicant's legal advisers would also have been already aware of the

court's powers in this respect.

The applicant complains in particular, in the context of both

Article 6 para. 1 and para. 3 (a) (Art. 6-1, 6-3-a), that the

procedure for sentencing following dismissal of his appeal was

cursory. The Commission recalls however that the applicant's counsel,

whom the Court had made aware of its views of such offences, was able

to make short submissions to the Court concerning mitigating factors

to be taken into account in sentence. The Commission also recalls

that appeals before the Crown Court proceed by way of rehearing and

not merely on consideration of points of law, and that therefore the

Court would have been aware of the evidence in the case. While the

Commission notes that the applicant complains that there were no

further or up-to-date reports before the Court concerning sentence, it

does not appear that the applicant requested an adjournment for such a

report to be compiled or that there were any further mitigating

factors which his counsel had been unable to draw to the attention of

the Court.

In light of these circumstances, the Commission finds no

appearance of a violation of Article 6 para. 1 or para. 3 (a)

(Art. 6-1, 6-3-a) of the Convention.

It follows that these complaints must also be dismissed as

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.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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TURNER v. the UNITED KINGDOM

TURNER v. the UNITED KINGDOM

LEXI