Lexploria

AS TO THE ADMISSIBILITY

Application No. 12509/86

by Mohamed CHOUDHARY

against the United Kingdom

The European Commission of Human Rights sitting in private on

3 March 1988, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

E. BUSUTTIL

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 9 July 1986

by Mohamed CHOUDHARY against the United Kingdom and registered

on 17 October 1986 under file No. 12509/86;

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 1953 and resident

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

Gartree and is represented by Mr. Brodie, a solicitor.

The facts as submitted by the applicant may be summarised as

follows.

On 19 November 1984, the applicant was arrested at his home

and taken 200 miles to Ipswich. It appears that he was not questioned

but charged immediately. The same day, he appeared before Ipswich

magistrates' court who remanded him in custody for seven days on a

charge concerning the importation of a controlled drug, i.e. 39.94

kilos of diamorphine approximately valued at £5.5 million. He was

thereby joined in the case of four other co-defendants, one of whom

was his brother, who had been detained on remand since June 1984. He

was refused access to a solicitor but was told that his solicitor had

been contacted. While being held on remand, the applicant also wrote

to his wife asking her to contact his solicitor.

On 25 November 1984, after six days in custody, the applicant

briefly saw his solicitor. He saw his solicitor again the next day

before going into court. A bail application was made unsuccessfully

on his behalf and he was again remanded in custody. On 29 November

1984, the applicant saw his solicitor at Ipswich Crown Court for a six

hour conference. On 30 November 1984, he was informed that the trial

would commence in the Crown Court on 3 December 1984. On 21 November

1984, the Court had granted leave for a voluntary bill of indictment

in place of the usual committal proceedings.

The solicitor who represented the applicant represented his

brother too. He visited them both and endeavoured to prepare the

applicant's defence with the assistance of the applicant's wife and an

Enquiry Agent. After the voluntary bill of indictment had been

prepared he applied for an adjournment of the applicant's case, but

was refused in view of the length of time which his co-defendants had

already spent in prison. His solicitor stated that the applicant saw

all the available depositions before his trial though additional

notices of evidence were served later during the trial by the

prosecution. The trial judge also allowed each request by defence

counsel during the trial for time to pursue and take instructions

concerning certain new evidence presented during the trial itself.

Defence counsel (QC and junior) for the first time, and the solicitor

for the second time interviewed the applicant just before the trial

began on 3 December 1984. The interview lasted most of the morning

and the early part of the afternoon. There were further conferences

during the course of the trial.

The trial lasted nearly three weeks, until 21 December 1984,

when the applicant was found guilty of the offence under S. 172 of the

Customs and Excise Management Act and sentenced to thirteen years'

imprisonment.

Counsel and the solicitor advised the applicant that he had no

grounds for an appeal. In particular counsel apparently advised that,

despite the difficulties created for the defence, the short preparation

time prior to the trial was not a basis for an appeal. The applicant

sought legal advice from three other firms of solicitors, not only as

regards an appeal but also as regards alleged incompetence by the

first solicitor. Further counsel's opinion advised that there were no

grounds of appeal against conviction and sentence. Nevertheless, on

22 April 1985, the applicant lodged an application for leave to appeal,

together with two co-defendants, including his brother. The applicant

appears to have received legal advice about his appeal and about a

possible professional negligence claim against his first solicitor

until, at least, March 1986. The applicant claims that legal aid

concerning his appeal was terminated on 22 April 1985.

The applicant's application on 22 April 1985 for leave to

appeal was first refused by a single judge of the Court of Appeal who

took the view that the trial judge's decision to refuse an adjournment

was within his discretion. The applicant renewed his application to

the Full Court of Appeal, who refused leave to appeal on 13 May 1986.

It appears that the matter should have been heard on 11 February 1986,

but the solicitor of the applicant's brother (with whose case there

may have been some confusion on appeal) had obtained an adjournment.

The applicant was not himself represented at the leave to appeal

hearing and was refused legal aid and permission to attend. The

applicant was informed on 21 May 1986 that he had no right of appeal

to the House of Lords.

COMPLAINTS

The applicant complains of violations of Articles 4, 5 and 6

of the Convention, in particular as regards Article 5, in that he has

been deprived of his liberty on the basis of a wrongful conviction.

As regards Article 6 he contends that he did not have adequate

time and facilities for the preparation of his defence and that he did

not have sufficient sight of witness statements before his trial in

order to prepare his defence and obtain the attendance and examination

of witnesses, on his behalf. He further complains of not receiving

legal aid to enable his appeal to be set out correctly and

successfully.

THE LAW

1. The applicant complains that he did not have sufficient sight

of witness statements before his trial in order to prepare his defence

and obtain the attendance and examination of witnesses on his behalf.

He also complains of insufficient time to prepare his defence before

his trial and of not seeing his solicitor until six days after his

arrest.

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

"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..."

Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b-c-d) of the

Convention provide:

"Everyone charged with a criminal offence has the

following minimum rights:

...

(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..."

The applicant contends that he did not have adequate time for

the preparation of his defence and that he was not able to see his

solicitor for six days after his arrest.

The Commission first of all recalls that in Article 6 para. 3

(b) (Art. 6-3-b) of the Convention the words "time" and "facilities"

are qualified by the adjective "adequate". As regards the applicant's

complaint concerning access to his solicitor, the Commission observes

that the Convention does not expressly guarantee the right of an

accused to communicate freely with his defence counsel for the

preparation of his defence, though the fact that this right is not

specifically mentioned does not mean it may not be implicitly inferred

from its provisions, in particular those of Article 6 para. 3 (b) and

(c) (Art. 6-3-b-c). The right for an accused to communicate with his

lawyer has been recognised by the Commission as a fundamental part of

the preparation of his defence. However such a right to have

conversations with one's lawyer and exchange confidential

instructions, as implicitly guaranteed by Article 6 para. 3 (Art. 6-3),

cannot be said to be insusceptible of restriction (see e.g. Can

v. Austria, Application No. 9300/81, Comm. Rep 12.7.84 Eur. Court

H.R., Series A no. 96 p. 17). The Commission must therefore consider

whether or not the particular restriction in the present case was in

conformity with the Convention. The Commission also recalls its

constant case-law to the effect that the specific guarantees laid down

in Article 6 para. 3 (Art. 6-3) cannot be looked at in isolation. In

this regard, the Commission has stated as follows:

"They exemplify the notion of fair trial in respect of

typical procedural situations which arise in criminal

cases, but their intrinsic aim is always to ensure, or

contribute to ensuring, the fairness of the criminal

proceedings as a whole. The guarantees enshrined in

Article 6 para. 3 (Art. 6-3) are therefore not an aim in themselves,

and they must accordingly be interpreted in the light of

the function which they have in the overall context of

the proceedings" (Can v. Austria, Comm. Report 12.7.84,

Eur. Court H.R., Series A No. 96 p. 15).

The Commission must therefore also consider the applicant's

complaints under Article 6 para. 3 (b), (c) and (d) (Art. 6-3-b-c-d)

of the Convention in light of the overriding purpose of fairness laid

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

The Commission notes that the applicant was arrested on

19 November 1984 and his trial began on 3 December 1984. It appears

that the applicant first saw a solicitor on 25 November 1984, only one

week before his trial began and that the applicant's application for

an adjournment, for more time to prepare his defence, was refused on

the ground that his co-accused had already been held on remand for

considerable time.

As regards the applicant's complaint that he was unable to see

his solicitor for six days, an examination of the facts as submitted

by the applicant reveals that the applicant was only refused access to

his solicitor on 19 November 1984 from the time of his arrest to his

appearance before the magistrates' court on the same day to be remanded

in custody. It appears that his solicitor was informed by the police

of his arrest and that the applicant was also able to contact him

through his wife. There is no indication that after this initial

period, the applicant's solicitor was prevented from seeing him by the

authorities. The Commission notes that the proceedings before the

magistrate's court were public and the applicant could have been

assisted by his solicitor or his agent if present or by any other

solicitor present if he had wished. Since it also appears that the

applicant was not questioned by the police during the period

immediately following his arrest when he was refused access to his

solicitor, the Commission finds that the applicant has not established

that this period was in any way of crucial relevance to the

preparation of his defence or that he was prejudiced in any material

way by the refusal of access during this period.

The Commission further recalls, in the context of the

preparation for the applicant's trial that the applicant's solicitor

visited the applicant several times before trial for lengthy

interviews and was aided in his preparations by the applicant's wife

and an enquiry agent. The Commission notes that the applicant's

solicitor was also acting for the applicant's brother, who had been

arrested earlier, and would therefore have already been acquainted with

the facts of the case. It also appears that, while the judge refused

an adjournment, he did grant each application made by the applicant's

counsel for time to take instructions concerning new evidence

presented during the trial. It also appears that the applicant was

able to raise the issue of insufficient time to prepare his defence in

his appeal but that the Court of Appeal found that the judge had acted

within his discretion.

As regards the applicant's complaint concerning the witness

statements, it appears that in fact his solicitor did enable the

applicant to see all witness statements available before his trial. In

these circumstances the Commission finds that the applicant has failed

to substantiate his complaint that he had inadequate time and

facilities to prepare his defence or that he was unable to obtain

attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him. The Commission accordingly finds

no appearance of a violation of Article 6 para. 3 (b), (c) and (d)

(Art. 6-3-b-c-d) of the Convention read in conjunction with Article 6

para. 1 (Art. 6-1) of the Convention in the proceedings conducted at

first instance. It follows that this part of the Convention is

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

27-2) of the Convention.

2. The applicant also complains of being refused legal aid for

his applications for leave to appeal.

The case-law of the Commission and Court establishes that the

guarantees of Article 6, including paragraph 3 (c) (Art. 6-3-c), are

applicable to applications for leave to appeal (see e.g. Eur. Court

H.R., Monnell and Morris judgment of 2 March 1987, Series A No. 115).

The Commission notes first of all that the applicant had had the

benefit of free legal advice regarding his appeal after his conviction

and that he was able to submit written argument to the Court of

Appeal. The Commission also recalls that in the case of Monnell and

Morris (loc. cit.) the European Court of Human Rights came to the

conclusion that the interests of justice and fairness could be met by

the opportunity afforded to an applicant to present relevant

considerations by making written submissions.

The Commission therefore concludes that in the circumstances

of the present case there is no appearance of a violation of Article 6

para. 3 (c) (Art. 6-3-c) of the Convention and 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.

3. The applicant also complains of a violation of Articles 4 and

5 (Art. 4, 5) of the Convention in that he has been deprived of his

liberty on the basis of a wrongful conviction.

The Commission has examined this complaint under Article 5

(Art. 5) of the Convention, which guarantees the right to liberty of

person and which, in Article 5 para. 1 (a) (Art. 5-1-a), authorises

the lawful detention of a person after conviction by a competent

court. It finds no evidence however to support the applicant's

allegation that he has not been detained lawfully following conviction

by a competent court. The Commission therefore finds no appearance of

a violation of Article 5 (Art. 5) of the Convention.

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.

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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CHOUDHARY v. THE UNITED KINGDOM

CHOUDHARY v. THE UNITED KINGDOM

LEXI