Lexploria

AS TO THE ADMISSIBILITY

Application No. 11821/85

by L.S.

against the United Kingdom

The European Commission of Human Rights sitting in private on

12 December 1987, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

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 27 July 1984

by L.S. against the United Kingdom and registered on

24 October 1985 under file No. 11821/85;

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 1952. When

introducing the application, he was serving a prison sentence on the

Isle of Wight; he has been released in the meanwhile. The applicant

is represented before the Commission by Mr. Peter Ashman, a barrister.

The facts as agreed by the parties may be summarised as follows.

On 15 April 1983 in Chester Crown Court the applicant was

convicted and sentenced to five years' imprisonment for three offences

of burglary, escape from lawful custody and failure to surrender to

bail. He was acquitted of a charge of stealing a car.

There were three others involved in the offences of burglary

and the applicant was originally represented by the same solicitors

and counsel as two of his co-accused. The two co-accused however

decided to plead guilty and as their case conflicted with the

applicant's, his lawyers informed him that they could no longer

represent him. The applicant then decided to defend himself.

At a preliminary hearing on 8 March 1983, the prosecution

indicated to the judge that they did not intend to call the co-accused

as witnesses but would reserve their position. The applicant prepared

his defence on this basis. The applicant received copies of all the

statements in the case, including those of his co-accused.

By letter dated 30 March 1983, the applicant was informed by

the Chief Prosecuting Solicitor that the prosecution would not be

preparing an edited bundle of statements and would not be calling

evidence of interviews with the applicant's co-accused, copies of

which the applicant already had in his possession. By letter dated

7 April, however, the Chief Prosecuting Solicitor informed the

applicant that the prosecution had decided to call two of the

applicant's co-accused and enclosed new witness statements from them.

These statements had been obtained by the police on 14 and 23 March

and had been sent to the prosecuting solicitor on 7 April. This

information reached the applicant on 9 April, four days before his

trial was due to begin on 13 April. On 13 April, the first day of the

trial, the applicant was given an edited bundle of statements. He had

not been consulted about the editing of the statements.

At the beginning of the proceedings, the applicant asked the

judge for an adjournment on the ground that he needed to reorganise

his defence in relation to the prosecution's decision to call his

co-accused as witnesses. After hearing submissions from the applicant

and the prosecution who stated that the written statements had been

served on the applicant as soon as they had been received and that in

any case they could have contained no surprises since in substance

they reproduced the earlier statements, the judge refused an

adjournment. Before proceeding to sentence the defendants following

the jury's verdict, the judge offered the applicant the opportunity of

applying for legal representation to offer a plea in mitigation. The

applicant however refused.

The applicant later applied for leave to appeal against

conviction on grounds inter alia that the judge, by failing to

grant an adjournment, had failed to grant him sufficient time to

prepare his defence and that the judge had failed to exercise his

discretion to order a new trial when one of his co-accused revealed

that the applicant had previously spent time in prison.

A single judge turned down his application for leave to appeal

on 27 July 1983 and the full Court of Appeal dismissed his application

for leave on 31 January 1984 on the ground that it contained no merit.

COMPLAINTS

The applicant complains that the judge's refusal to grant an

adjournment deprived him of adequate time and facilities for the

preparation of his defence. The applicant wished time to prepare

questions to cross-examine his co-accused. He also felt that the

parts of the statements edited out could have been used by him to show

the police and the co-accused had lied. The unedited parts were

allegedly inadequate for this purpose. He alleges that the effect of

the editing of the statements was that he was not allowed by the judge

to ask questions relating to those parts of the statements which had

been edited out and that this affected two thirds of the questions

which he had prepared to ask his co-accused. The applicant

accordingly invokes Article 6 para. 3 (b) of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 July 1984 and registered

on 24 October 1985.

On 11 December 1986, the Commission decided to bring the

application to the notice of the respondent Government, in respect of

the applicant's complaint under Article 6 para. 3 (b) and in respect

of the issue of equality of arms, and to invite them to submit

observations on the admissibility and merits pursuant to Rule 42 2(b)

of the Rules of Procedure.

The Government's observations were submitted on 24 March 1987

and the applicant's observations in reply were submitted on 26 June

1987, after an extension of the time-limit of six weeks.

SUBMISSIONS OF THE PARTIES

A. THE RESPONDENT GOVERNMENT

1. The facts

The Government state that it appears from the transcript of

proceedings that the applicant made no complaint about the editing of

the statements when requesting an adjournment. The Government note

that the applicant had sacked his solicitors and that it is not

suggested that the applicant could not have instructed fresh

solicitors to appear for him or that he could not have obtained legal

aid if he had applied. The judge also offered the applicant the

possibility of instructing solicitors to make a plea in mitigation

when he was convicted. The applicant declined that offer and the

Government state that there can be no doubt that his decision to do so

was freely made as was his decision to conduct his own defence at the

trial.

The Government also state that all the matters of which he

complains in the present application were put before the Court of

Appeal who found no substance in them.

2. Relevant domestic law and practice

The defendant in a trial on indictment is entitled to see all

the statements of witnesses, on whose evidence he has been committed

for trial by the magistrates' court. In addition, the prosecution are

required to provide the defence with statements taken from witnesses

whom it is not proposed to call at the trial.

Witnesses may be cross-examined on any matter that is relevant

to an issue in the case or goes to their credit. Although judges

should normally try to control lengthy or oppressive cross-examination,

the practice is to accord a certain latitude to defendants who are

representing themselves. It is also the practice that defendants who

appear in person are given every assistance by the judge in presenting

their cases.

3. Admissibility and merits

Article 6

The Government submit that the summing-up of the judge at the

end of the trial illustrates the careful way the case was dealt with

by the judge and shows that the applicant's defence was fairly put to

the jury. The applicant's criticisms of the trial, including all

those he raises before the Commission, were put in detail to both the

single judge and the full Court of Appeal. They were carefully

considered but found to be without merit.

The Government also submit that, where the trial judge had

considered the question whether to grant an adjournment, and where

there is no evidence to indicate that he used his discretion wrongly,

the Commission should be slow to substitute its own judgment for that

of the national court. In the Gillow case (Eur. Court H.R., Gillow

judgment of 24 November 1986, Series A no. 109), the Court considered

the question of an adjournment in criminal proceedings. It said:

"The Court considers that the adjournment of a hearing is

a matter which falls in principle within the discretion

of the competent national court" (judgment para. 70).

The applicant's allegation that the trial judge had wrongly

refused an adjournment was considered by the single judge of the Court

of Appeal, who concluded that there was nothing to indicate that the

trial judge's discretion in considering whether to grant an

adjournment had been wrongly exercised.

Article 6 para. 3 (b)

The Government cite the reasoning of the Commission in

Application No. 5523/72 (Dec. 5.10.74, Yearbook 17 p. 314 (334))

where the Commission said:

"The time necessary to prepare a defence must indeed be

estimated on a different basis at the various stages of

the proceedings. When lodging an appeal or a plea of

nullity, a defendant is already familiar with the

contents of the file, and in particular the nature of

the charges and the evidence on which they rely."

In the Government's submission the familiarity of the

applicant with the case against him is also a relevant factor in this

case. The applicant was already aware of the nature of the charges

and evidence against him even before the witness statements were

served upon him. The period between 7 April, when the witness

statements from his co-accused were served on the applicant, and

13 April, when the trial began, must be set in the context that the

applicant had received before 30 March all the evidence in the case,

including records of the interviews with his co-accused. As the judge

remarked, he knew at the outset exactly what was alleged against him.

Although he made a complaint in general terms when applying for an

adjournment, the applicant did not raise any specific difficulty, and

he did not mention the editing of the statements as a matter in

relation to which an adjournment should be granted.

Accordingly, the Government submit that this is not a case in

which new evidence was introduced shortly before the trial. The

applicant knew all along what his co-accused said against him. But

even if their evidence had taken him by surprise, he had, on his own

admission, at least 3 clear days during which to reorganise his

defence. The editing can, in the Government's view, only relate to

the different form in which the evidence of the co-accused was

presented. It cannot have affected the substance of their evidence.

As Prosecuting Counsel said, the statements could have contained no

surprises for the applicant. So far as cross-examination is

concerned, the Government submit that the applicant could not have

been prevented from asking any relevant questions of the witnesses.

If he did not ask many of his prepared questions, that can only be

because they were not relevant to the case against him.

Article 6: equality of arms

The Government submit that, so far as the aspect of whether

the applicant had adequate time and facilities to prepare his case is

concerned, the principle of "equality of arms" adds nothing to the lex

specialis embodied in Article 6 para. 3 (b). So far as the principle

of "equality of arms" may relate to other aspects of the case, the

Government recall that according to the Commission's case-law the

question of whether a trial conforms to the standard laid down by

Article 6 para. 1 must be decided on a consideration of the trial as a

whole and not on one particular aspect. The Government submit that it

was the applicant's own decision to represent himself and that in any

event there is nothing in the transcript to indicate that he was

placed at a disadvantage in representing himself. The Government also

contend that it is the practice to afford defendants in person every

assistance in presenting their cases, and to permit them greater

latitude in court than a professional representative would be

allowed. Moreover, at a trial in the Crown Court the defendant is

entitled to see the statements of prosecution witnesses in advance and

so knows in detail what the prosecution case will be. This facility

is not granted to the prosecution, who are not entitled to know the

defence case in advance.

B. THE APPLICANT

1. The facts

The applicant submits that his defence was prepared on the

basis of the assurance given him in the letter from the Prosecuting

Solicitor that no evidence would be called in respect of his

co-accused. As the prosecution knew that he was defending himself,

they should have given him adequate time to make the necessary changes.

The applicant was entitled to represent himself in the

proceedings and should not have suffered any disabilities because of

this. The Government appear to be suggesting that what happened to

him was somehow his own fault because he exercised his right to defend

himself.

While it is true that the Court of Appeal dismissed the

applicant's application for leave to appeal, they gave no reasons of

substance for their decision. It is not clear from this absence of

reasons whether the Court of Appeal considered the question of the

equality of arms, as guaranteed by Article 6 of the Convention. The

reasoning of Mr. Justice Skinner suggests that the Court was following

its well established doctrine in respect of judicial discretion:

"It is well settled that this court will not interfere with

the exercise of a discretion by the judge unless he has

erred in principle or there is no material on which he could

properly have arrived at his decision" per Devlin J. in R.

v. Cook (1959) Cr. App. R. 138 at 147 (cited with approval

by Viscount Dilhorne in Selvey v. DPP (1968) 52 Cr. App. R.

443 at 469).

2. Admissibility and merits

The refusal of the trial judge to grant an adjournment was

made without reasons being given. The applicant argues that it is

difficult to see how the Court of Appeal dealt with this, because it

too failed to give any reasons for its decision. In these

circumstances, the applicant submits that it is open to the Commission

to look at all the circumstances and make up its own mind as to

whether the judge acted fairly.

The object of procedural safeguards is to ensure that everyone

receives a fair trial, even those persons against whom there is very

strong evidence. The applicant strongly contested the prosecution

case and he was entitled to make use of the safeguards which exist to

ensure a fair trial in order to put his case properly to the jury and

try to persuade them of his innocence.

As the applicant had no say in the editing of the statements,

and relied on the prosecution assurances about the evidence to be

called, he submits that the failure to give him adequate time was

particularly damaging to him.

THE LAW

1. Article 6 para. 3 (b) (Art. 6-3-b) of the Convention

The applicant complains that the failure of the judge to

grant an adjournment in his trial deprived him of adequate time

and facilities for his defence. He alleges that he required an

adjournment in light of the prosecution's decision to call two of his

co-accused as witnesses against him despite their earlier assertion

that they would not do so and also in light of the edited bundle of

statements which was given to him only on the morning of the trial

itself.

Article 6 para. 3 (b) (Art. 6-3) of the Convention provides that:

"Everyone charged with a criminal offence has the following

minimum rights:

...

(b) to have adequate time and facilities for the preparation

of his defence..."

As regards the applicant's complaint concerning his

co-accused, the Commission notes that the prosecution's decision to

call them was communicated to the applicant by letter dated 7 April

and reached him on 9 April 1983. The relevant witness statements were

also forwarded to him at the same time and the applicant therefore

received them four days before the beginning of his trial on 13 April.

The Commission further notes that the prosecution sent the statements

to the applicant immediately on their receipt from the police. It

also does not appear to be contested that the applicant was already

aware, from earlier statements in his possession, of the substance of

the co-accuseds' evidence against him. In view of this and the fact

that the trial of the charges against the applicant did not involve

complex or difficult matters, the Commission finds that the applicant

has not established that he was not allowed sufficient time to prepare

his case.

The applicant also complains that he was given inadequate time

to reorganise his defence in connection with the edited bundle of

statements presented to the court by the prosecution. He alleges that

he had prepared two thirds of his questions for cross-examination on

parts of the statements which had been edited out and that he was thus

prevented from referring to them.

11821/85

The Commission notes however that the applicant made no

complaint of the editing of the statements to the trial judge when

requesting an adjournment. Further, according to domestic law,

witnesses may be cross-examined on any matter that is relevant or

which goes to their credit. The applicant would therefore have been

entitled to put his questions to the prosecution witnesses insofar as

they fell within those criteria. The applicant states that during the

trial the judge prevented him from asking questions relating to the

statements not contained in the edited bundle. However, the

Commission finds that there is nothing to suggest that the judge was

not thereby exercising his discretion to disallow irrelevant or

inadmissible questions. The applicant was also able to raise his

complaints concerning the edited statements and the refusal of the

adjournment in his appeal to the Court of Appeal, which, however,

found no substance in his complaints.

The Commission therefore finds that the applicant has failed

to establish that the use of the edited bundle of statements or the

refusal of the adjournment did in fact deprive him of adequate time or

facilities in the preparation of his defence and that accordingly there is no

appearance of a violation of Article 6 para. 3 (b) (Art. 6-3-b) of the

Convention.

It follows that this part of the application must be dismissed as

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

the Convention.

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

However, although the Commission has failed to discover an

infringement of the minimum rights laid down in Article 6 para. 3 (Art. 6-3) it

has also considered whether there may nevertheless be an appearance of

a violation of the principle of equality of arms, that is, the

procedural equality of the accused with the public prosecution, which

the case-law of the Commission and the Court have established to be an

inherent element of a "fair trial" within the meaning of Article 6

para. 1 (Art. 6-1) of the Convention (see e.g. Eur. Court H.R., Neumeister

judgment of 27 June 1968, Series A no. 7 para. 22).

The applicant has complained that the prosecution served

witness statements of his co-accused only 3 days before his trial and

that the prosecution presented an edited bundle of statements to the

Court on the morning of the trial. As regards the witness statements

of the co-accused, the Commission recalls that the prosecution served

them on the applicant immediately on their receipt from the police and

finds therefore that the prosecution derived no unfair advantage in

this respect. As regards the edited bundle of statements over which

the applicant was not consulted, the Commission first of all recalls

that the applicant in fact made no complaint of this to the judge at

the beginning of the trial. The Commission also notes that the

editing of statements by the prosecution is a routine procedural step

for the orderly presentation of evidence, where a witness has made one

or more written statements. This does not however prevent the defence

from asking witnesses such questions or presenting such other

evidence, which are relevant and admissible. The Commission therefore

finds that the editing of the bundle of statements for the use of the

court in the present case did not subject the applicant to any

procedural inequality contrary to the requirement of a "fair trial"

guaranteed in Article 6 para. 1 (Art. 6-1) of the Convention and the Commission

therefore finds no appearance of a violation of that provision.

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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S. v. THE UNITED KINGDOM

S. v. THE UNITED KINGDOM

LEXI