Lexploria

AS TO THE ADMISSIBILITY

Application No. 12002/86

by Thomas B. GRANT

against the United Kingdom

The European Commission of Human Rights sitting in private on

8 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

J. CAMPINOS

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 17 February

1986 by Thomas B. GRANT against the United Kingdom and registered

on 20 February 1986 under file No. 12002/86;

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 1947 and presently

detained in H.M. Prison Barlinnie, Glasgow. He is represented before

the Commission by Hamilton Burns & Moore, Solicitors of Glasgow. The

facts as agreed by the parties may be summarised as follows:

In 1985 the applicant was charged, together with A., with a

number of offences under the Firearms Act 1981 and the Counterfeiting

Act 1981, namely possession of a firearm and of counterfeit notes.

The applicant submits that he had instructed his counsel, via

his solicitors, that the shotgun in question belonged to his co-accused

A. who had behaved with increasing instability and that A. had also

produced the counterfeit money with which the applicant had admittedly

associated himself. The applicant maintained that he had possession

of the shotgun only on one occasion, when A. had asked him to conceal

the weapon which was in a holdall and which the applicant had arranged

to do by giving the shotgun to a neighbour. The applicant's counsel

took the view that this explanation was not credible and could be

counter-productive; it was, therefore, decided not to plead these

matters before the court.

The applicant appeared before the High Court of Justiciary in

Glasgow on 18 June 1985 and pleaded guilty to two charges on the

indictment, involving the possession of a firearm and counterfeit

notes. The explanation tendered by the applicant in respect of the

firearm was that it was required for his protection as various

threatening calls had been made to the premises occupied by the

applicant and A. A. also pleaded guilty to the charges, but since

another co-accused F. pleaded not guilty, sentence in respect of the

applicant and A. was deferred until the conclusion of F.'s trial.

During F.'s trial both the applicant and A. were called as witnesses

for the defence and F. was acquitted. The trial judge, after a plea

in mitigation by the applicant's counsel, sentenced the applicant to a

total of six years' imprisonment, three years on each of the charges

to run consecutively. A. received a similar sentence.

Shortly after the trial, A.'s condition deteriorated rapidly.

He became phobic about his food, unable to eat and requested to be

removed to Carstairs State Institution for the Criminally Insane.

The applicant considered that this corroborated what he had

said all along about A.'s instability; he claimed that had his counsel

made the trial judge aware of the true condition of A., he would have

been sentenced more leniently and a distinction would have been made

between himself and A. He instructed fresh counsel to appeal against

sentence to the Court of Criminal Appeal in the light of A.'s

deteriorated condition. A. also lodged an appeal.

The appeal first came before the High Court of Appeal in

Edinburgh on 26 September 1985. As the case of A. was not properly

prepared, the hearing of the appeal was postponed to November 1985.

On 22 November the Appeal Court heard the applicant's appeal, having

before it the report of the trial judge on the case and on the grounds

of appeal. No evidence was heard. The prosecution was represented by

the Advocate Depute but, following normal practice, he took no part in

the proceedings. Counsel for the applicant addressed the court in

support of the appeal but, as she sensed from the questions put by the

judges that the court thought that the sentences imposed on the

applicant by the court of first instance were excessively light,

she requested the applicant's instructions in the light of this

development. The applicant, who was present in court, instructed

counsel to seek to abandon the appeal forthwith. The court, however,

refused to permit abandonment of the appeal and the applicant's counsel

completed her submissions. In the exercise of its power under Section

254(3) Criminal Procedure (Scotland) Act 1975 ("the 1975 Act") the

court then quashed the sentence of the lower court, and substituted a

sentence of five years on each of the two charges to run

consecutively, stating in its opinion that the offences were very

serious and that the sentence imposed by the trial judge was in fact

inadequate.

Relevant provisions of national law

Abandonment of appeals

The provisions for abandonment of appeals in Scotland are

covered by Section 244 of the 1975 Act, which reads as follows:

"(1) An appellant may abandon his appeal by lodging with

the Clerk of Justiciary a notice of abandonment in as

nearly as may be the form prescribed by Act of Adjournal

under this Act; and on such notice being lodged the appeal

shall be deemed to have been dismissed by the court.

(2) A person who has appealed against both conviction and

sentence may abandon the appeal in so far as it is against

conviction and may proceed with it against sentence alone."

The court is under no obligation to allow an appeal to be

abandoned once the case has been called on the day of the hearing.

An application for leave to appeal against sentence may be

abandoned under Section 244 at any time before the calling of the case

but once the case is called, it becomes a matter for the discretion of

the court whether any motion for leave to abandon should be granted.

In West v. Her Majesty's Advocate (1955 Scots Law Times

p. 425) the Lord Justice General stated:

"It would be a denial of justice to permit an accused to

lodge an application for leave to appeal against sentence,

to argue his appeal in full and when he realises that he

will or may very probably fail, then to permit him to

withdraw his appeal and take refuge in what the court may

well consider an inappropriate sentence. Accused persons

who choose to exercise their rights to appeal under the

provisions of the 1926 Act must realise that though they

may succeed in securing a reduction of sentence they also

run the risk of a longer sentence being imposed."

Power of the Court of Appeal

Section 254 of the 1975 Act which governs the disposal of

appeals by the High Court of Appeal in Edinburgh reads as follows:

"(1) The High Court may, subject to subsection (4) below,

dispose of an appeal against conviction by

(a) affirming the verdict of the trial court;

(b) setting aside the verdict of the trial court and

either quashing the conviction or substituting

therefor an amended verdict of guilty, provided that

an amended verdict of guilty must be one which could

have been returned on the indictment before the trial

court; or

(c) setting aside the verdict of the trial court and

granting authority to bring a new prosecution in

accordance with Section 255 of this act.

(2) In setting aside, under subsection (1) above, a verdict

the High Court may quash any sentence imposed on the appellant

as respects the indictment, and

(a) in a case where it substitutes an amended verdict

of guilty, whether or not the sentence related to the

verdict set aside, or

(b) in any other case, where the sentence did not

relate, may pass another (but not more severe) sentence

in substitution for the sentence so quashed.

(3) The High Court may, subject to subsection (4) below,

dispose of an appeal against sentence by

(a) affirming such sentence; or

(b) if the court thinks that, having regard to all the

circumstances, including any additional evidence such

as is mentioned in Section 228(2) of this act, a

different sentence should have been passed, quashing

the sentence and passing another sentence whether more

or less severe in substitution therefor.

(4) In relation to any appeal under Section 228(1) of this

act, the High Court shall, where it appears to it that the

appellant committed the act charged against him but that

he was insane when he did so, dispose of the appeal by

(a) setting aside the verdict of the trial court and

substituting therefor a verdict of acquittal on the

ground of insanity; and

(b) quashing any sentence imposed on the appellant as

respects the indictment and ordering that he be

detained in a state hospital or such other hospital

as for special reasons the court may specify.

(5) The provisions of subsection (4) of Section 174 of this

act shall apply to an order under subsection (4)(b) above

as they apply to an order under that section."

Section 262 of the 1975 Act governing the finality of the

proceedings reads as follows:

"Subject to the provisions of the next following section of

this act, all interlocutors and sentences pronounced by the

High Court under this part of this act shall be final and

conclusive and not subject to review by any court whatsoever

and it shall be incompetent to stay or suspend any execution

or diligence issuing from the High Court under this part of

this act."

COMPLAINTS

The applicant complains first that his detention pursuant to

the decision of the High Court of Appeal in Edinburgh is in violation

of Article 5 para. 1 (a) of the Convention. The Court of Appeal

imposed an additional four year sentence without hearing evidence;

this does not constitute a "conviction by a competent court" as

required by Article 5 para. 1 (a). The trial judge was the only judge

to hear the entire evidence, and to assess the witnesses and the

accused. He was the only judge competent to assess the case and make

a proper assessment of an appropriate sentence.

Secondly, the applicant complains that the decision of the

Appeal Court was in violation of Article 6 of the Convention. He was

not given "a fair and public hearing by an independent and impartial

tribunal established by law". The questioning of counsel by the court

made it clear from the outset that the court thought the appeal

unfounded and was therefore not amenable to due and proper

consideration of its merits.

It was not fair to refuse to allow the appeal to be withdrawn,

which is a minimum right under any legal system. It was also not fair

to impose an additional sentence without hearing further evidence.

Thirdly, the applicant submits that Article 7 of the

Convention was breached by the court's decision to impose "a heavier

penalty ... than the one that was applicable at the time the criminal

offence was committed".

Finally, the applicant submits that the imposition of an

additional period of four years' imprisonment after the imposition of

a sentence of six years' imprisonment is, in the circumstances of the

case, inhuman and degrading treatment or punishment in contravention

of Article 3 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 17 February 1986 and

registered on 20 February 1986. On 2 December 1986, the Commission

decided to communicate the application to the respondent Government

pursuant to Rule 42(2)(b) (Art. 44-2-b) of its Rules of Procedure and

to invite them to submit written observations on the admissibility and

merits of the applicant's complaints under Article 6 para. 1 (Art.

6-1) of the Convention.

The respondent Government's observations were submitted on

22 April 1987 and the observations in reply submitted by the applicant

on 30 June 1987.

SUBMISSIONS OF THE PARTIES

A. The respondent Government

Admissibility and merits

It was open to the applicant under Section 244 of the 1975 Act

to abandon his appeal at any time between the lodging of the Note of

Appeal on 24 June 1985 and the eventual hearing of the appeal on

22 November 1985, by lodging with the Clerk of Justiciary a Notice of

Abandonment in the prescribed form. In the event that such a Notice

of Abandonment had been lodged within that period the appeal would

have been deemed to have been dismissed by the court. At the first

calling of the appeal on 26 September 1985, when the applicant was

present with his solicitor and represented by counsel, no motion to

abandon the appeal was made. Such a motion was only made after his

counsel had commenced her submissions to the court in support of the

appeal and after the court had indicated from their questions to

counsel and reaction to her submissions that they might consider the

sentences to have been inadequate. The Government would recall in

this connection the statement of the Lord Justice General in West v.

Her Majesty's Advocate (loc. cit.) and adopt his reasoning (see

Relevant Domestic Law and Practice).

The Appeal Court had before it copies of the indictment, the

applicant's Note of Appeal and the report of the trial judge. The

Court increased the sentence because in its view the offences of which

the applicant was convicted were "very serious offences". The

Government contend that the applicant through his counsel had full

opportunity to put forward his arguments on this question of the

seriousness of the offences. The applicant was present throughout and

able to convey instructions to his legal advisers.

The prosecution took no part in the appeal proceedings and in

practice would only do so, where the court wished the prosecutor to

clarify any matter of fact or to furnish further information.

The Government therefore submit that the application is

manifestly ill-founded or discloses no breach of the Convention.

B. The applicant

Admissibility and merits

The applicant submits that the right to abandon an appeal is

and should be a fundamental right. The increase in sentence exercised

in this case did not conform to the overall concept of fairness as

outlined in the Commission's case-law (see e.g. Nielsen v. Denmark,

Application No. 343/57, Dec. 2.5.59, Yearbook 4 p. 548). There was no

transcript of evidence before the Appeal Court, the Court heard no

evidence nor were depositions or a precis of any sort before them.

The applicant argues that in dismissing his appeal the Court

was exercising its appellate jurisdiction but that in proceeding from

there to increase his sentence, they acted as if they were court of

first instance and therefore in order to conform with Article 6

para. 1 of the Convention they should have examined the evidence de

novo. The Court did not have sufficient material upon which to base

any decision other than to reject the importance of the fresh matters

brought before it.

The Court also took a very short period of time over the

appeal, i.e. from 10.30 am to 11.25 am. The applicant submits that a

decision to impose an additional sentence of four years to an already

substantial sentence of six years should only have been made after

extensive research and argument.

Further, the applicant submits that having indicated from the

outset the probability of an increased sentence, the Court should not

have refused to allow the withdrawal since it had from the moment of

refusal ceased to be a "fair and impartial" body.

The Court gave no explanation as to the facts which made five

years a more appropriate sentence than three years for each charge in

this particular case. The Court's opinion contains only general

propositions as to the offences and not as to the particular offender.

While counsel was able to address the Court on the original sentences

she did not do so on the question of the imposition of an additional

four years to the applicant's sentence.

THE LAW

1. The applicant complains first that he was denied a fair trial

in that the High Court of Appeal increased his sentence and refused to

allow the abandonment of his appeal when the matter was heard on

22 November 1985.

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

follows:

"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 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).

The Commission notes in particular that the applicant was

present in person both at his trial and at the proceedings on appeal

and that he was represented on both occasions by a solicitor and

counsel. In these circumstances there is nothing to show that the

principle of equality of arms contained in the notion of fair trial

was not respected.

The applicant contends that the questioning of counsel by the

Court of Appeal made it clear that from the outset they thought the

appeal unfounded and that they were therefore not amenable to due and

proper consideration of its merits. The Commission however considers

that any allegation of bias on the part of a court must be clearly

distinguished from the circumstances where a court which sits with

notice of the proceedings, and in which the judges have had the

opportunity to prepare themselves by reference to the papers, may

inevitably form an initial inclination or view in respect of the

merits of an appeal, subject to hearing the content of the pleadings

themselves. The Commission finds that beyond the fact that the Court

of Appeal appears to have formed such an initial inclination in

reference to the appeal the applicant has not submitted any evidence

in support of an allegation of actual bias and that there is no

indication on the facts of the case as submitted that the Court of

Appeal failed to fulfil the requirement of impartiality within the

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

The applicant also contends that it was unfair that he was

unable to withdraw the appeal which he had lodged, and which was in

the process of being determined, when he and his counsel concluded

that the appeal would be unsuccessful. The Commission notes in this

respect that Scottish law provides expressly for the possibility of

abandoning an appeal under the terms of Section 244 of the 1975 Act

but that the operation of that section is limited to cases where the

hearing of an appeal has not yet begun. The Commission finds in the

present case that the High Court of Appeal did not compromise the

fairness of the hearing of the appeal by requiring the appeal, which

had not only already been lodged, but in which the hearing was already

underway, to be concluded.

The applicant further complains that the Court of Appeal in

effect imposed a four year sentence on him without hearing any

evidence.

The Commission recalls that as the applicant had pleaded

guilty in the Court below to the two charges to which the appeal

related, no evidence had been adduced there on those offences,

although evidence was given against and for another accused on related

counterfeiting charges, in respect of which he was subsequently found

not guilty. The report of the Court at first instance set out the

facts briefly, the judge commenting that both charges were very

serious. The Court of Appeal did not require a transcript of the

first instance proceedings to be made and produced and there is

therefore no indication that if a transcript had been furnished, it

would have affected their decision on the applicant's appeal which was

against sentence only, and not against conviction.

The Commission notes that the High Court of Appeal is

empowered under the terms of Section 254(3)(b) read in conjunction

with Section 228(2) of the 1975 Act to hear additional evidence. It

appears that in the present case the Court did not find it necessary

to do so in order to determine the gravity of the two offences, and

that neither the applicant nor his counsel made application to the

Court that they should hear additional evidence. However, in reaching

its conclusion, the Court had the benefit of hearing counsel's

submissions on the severity of the applicant's sentence and on the

factors which the applicant felt mitigated in his favour and it also

had before it the note of the first instance judge on the proceedings.

In these circumstances there is nothing to show that the applicant's

appeal was not heard fairly, in conformity with Article 6 para. 1

(Art. 6-1) of the Convention.

It follows that this part of the applicant's complaint is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

2. The applicant also complains that his detention following his

conviction was contrary to Article 5 para. 1 (a) (Art. 5-1-a) of the

Convention since the High Court of Appeal was not a competent court

within the terms of the provision, which states:

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save

in the following cases and in accordance with a procedure

prescribed by law:

(a) the lawful detention of a person after conviction

by a competent court;

..."

However the applicant has not submitted any arguments to

substantiate this complaint, beyond those which have already been

examined by the Commission in relation to his complaint that his

appeal was not fair. That complaint has been rejected as manifestly

ill-founded and the applicant has made no other submissions which

might suggest that the High Court of Appeal 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. It follows that this aspect of the

applicant's complaint is manifestly ill-founded within the meaning of

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

3. The applicant further invokes Article 7 (Art. 7) of the

Convention in relation to the increase of his sentence by the Court of

Appeal. Article 7 para. 1 (Art. 7-1) of the Convention 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."

However the applicant has not submitted, and there is no

evidence to suggest, that the sentences of five years respectively in

respect of each of the charges of which the applicant was convicted

exceeded the statutory maximum sentences which could have been imposed

upon the applicant at his trial at first instance.

It follows that this aspect of the applicant's complaint is

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

4. The applicant invokes Article 3 (Art. 3) of the Convention in

relation to the increase in his sentence. Article 3 (Art. 3) provides:

"No one shall be subjected to torture or to inhuman or

degrading treatment or punishment."

The Commission finds that the imposition of an additional

sentence of the scale which arose in the present case is not treatment

which can be regarded as attaining the degree of seriousness which

might raise an issue under Article 3 (Art. 3) of the Convention. It follows

that this aspect of 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

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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GRANT v. the UNITED KINGDOM

GRANT v. the UNITED KINGDOM

LEXI