Lexploria

The European Commission of Human Rights sitting in private on

14 March 1986, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

G. TENEKIDES

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

J. CAMPINOS

Sir Basil HALL

Mr. H. C. KRÜGER, Secretary to the Commission

Having regard to Art. 25 of the Convention for the Protection of Human

Rights and Fundamental Freedoms (art. 25);

Having regard to the application introduced on 14 January 1985 by

P.J.M. against the United Kingdom and registered

on 29 August 1985 under file No. 11739/85;

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 facts as they have been submitted by the applicant, a British

citizen born in 1945 and living in Bath, may be summarised as follows:

On 3, 4 and 7 November 1983 the applicant was tried and convicted in

the Bristol Crown Court for receiving a stolen washing machine

contrary to Section 22 (1) of the Theft Act 1968. He was sentenced to

six months' imprisonment, subsequently reduced to 28 days'

imprisonment on appeal to the Court of Appeal. During the course of

the applicant's trial, two applications were made to the trial judge

to order the prosecution to produce to the defence copies of

statements made to the police by a third person in November 1981,

following investigations of police corruption. The applicant's

counsel wished to use the statements in order to frame questions for

cross-examination, although the statements were not intended to be put

in evidence before the jury.

The prosecution objected to the production of the statements, claiming

that they were privileged and that it would be against public policy

to disclose them. The trial judge refused the first application,

which was for the production of both statements in their entirety.

The applicant made a second request for an order that the prosecution

be compelled to disclose the statements in an edited form, with

reference to allegations of corruption, and such other aspects as

might be considered sensitive by the prosecution, deleted.

In refusing this second application the trial judge made the following

remark:

"These statements are highly prejudicial to your client, he

cannot have it both ways, he cannot edit that stuff out and have

this in, it has nothing to do with the case anyway ... it is one

of my duties to try and protect defendants against themselves ...

I have read that statement and I do not think the content will

assist him."

Previously, in refusing the initial request for the unedited statement

to be made available to the defence the following exchange has taken

place between the trial judge and the applicant's counsel:

Trial judge: "reference to that statement, and knowledge of that

statement of the jury would do enormous harm."

Counsel: "That is a different point and one that the defendant

has been advised about, and I have firm instructions to use that

material in front of the jury despite what damage it may do."

Trial judge: "I am sure you have given advice about that. It would

probably do enormous harm, and one of my duties is to see that he has

a fair trial even if you have instructions that might lead to an

unfair trial ..."

The applicant sought leave to appeal against conviction and sentence

in respect of this conviction, and also in respect of a separate

conviction for a charge of theft, in proceedings where he had been

convicted with his brother.

On 17 January 1984 he was granted bail by the Court of Appeal pending

the outcome of his applications for leave to appeal. On 31 July 1984

both of the applicant's applications for leave to appeal against

conviction were refused by the single judge and the applicant's legal

aid certificate was therefore discharged. Both the applicant and his

brother decided to renew their applications to the Full Court. The

applicant's brother instructed the same lawyers who had represented

both brothers in the theft proceedings. The applicant did not

instruct solicitors himself, and renewed his application for leave to

appeal in person in respect of both the theft charge and the charge of

receiving stolen goods, in respect of which his brother was not

involved.

The applicant filed further amplification of his application for leave

to appeal and was notified to surrender to the custody of the Court of

Appeal on 27 November 1984.

The applicant attended the Court of Appeal on that date. The first

matter which came before the Court of Appeal was the applicant's and

his brother's applications for leave to appeal against conviction in

respect of the theft charge. In that respect the Court of Appeal

heard counsel for the applicant's brother. At the close of the

morning proceedings the presiding judge granted leave to appeal to the

applicant's brother's counsel, and, according to the applicant, turned

to the applicant and said:

"The same applies to you, we cannot give leave to one of you without

the other. That ground of appeal applies equally to you."

The applicant contends that the presiding judge then indicated that

the court would adjourn for lunch, and would hear the remaining

application for leave to appeal after lunch. The applicant states

that this indication was addressed to the applicant's brother's

counsel, who reminded the court that he was not acting for the

applicant.

The court then adjourned for lunch. According to the applicant, on

reconvening after lunch, the presiding judge, immediately, and without

inviting comment from the applicant or anyone else, stated:

"We have considered this application during the lunchbreak and we see

no merit in it at all. We therefore dismiss the application."

This statement was equally directed to the applicant's brother's

counsel, who once again reminded the court that he was not acting for

the applicant. He pointed out that the applicant was present in the

court and would be able to make submissions to the court. According

to the applicant the presiding judge replied to this suggestion with

the words:

"We do not hear from applicants in person, this application is

dismissed".

The applicant contends that the presiding judge went on to pronounce

judgment without giving any indication of having appreciated the

grounds upon which his application for leave to appeal had been made.

The applicant has submitted in support of his application the short

transcript of the proceedings before the Court of Appeal but this

transcript does not deal with the submissions which were made to the

court, or the remarks which the applicant alleges were made prior to

the lunch adjournment, or immediately upon the resumption of

proceedings after lunch. The applicant has also submitted a letter

dated 18 April 1985 written to his brother's former solicitors by

counsel who appeared for his brother in the Court of Appeal, which is

in the following terms:

"Thank you for your letter of 22 March concerning the application by

(the applicant) for leave to appeal from the Full Court

on 27 November last.

On that occasion you will recall that I appeared only on behalf of

(the applicant's brother) in relation to his application for leave to

appeal against conviction. When the Full Court granted that

application and indicated that it would grant (leave to the applicant)

in respect of that indictment alone it is my clear recollection that I

sought to intervene on behalf of (the applicant) to invite the Court

to hear his submission in support of his application for leave to

appeal on the indictment that related to the handling of the washing

machine. Whilst I have no note of the precise words used I was told

by (the presiding judge) that it was not the practice of the Court to

hear applicants in person. It was also made clear that the Court had

considered the perfected grounds submitted by (the applicant) on his

own behalf and it reached the conclusion that it disclosed no arguable

point. There is no doubt therefore that the application of (the

applicant) on that indictment was refused without him being given the

opportunity of addressing the Court.

I do emphasise that my recollection is unaided by note or transcript

but I am in no doubt from the main point from which my confirmation is

sought."

COMPLAINTS

The applicant complains first that his trial before the Bristol Crown

Court on the charge of receiving stolen goods was unfair for the

following reasons:

1. In refusing the applicant's requests for the production of the

statements made by the third party in the corruption investigation the

trial judge prevented the disclosure of information which would have

assisted the applicant in establishing his innocence. These

statements were requested so that the applicant could properly

instruct his solicitor in preparing his defence, and in particular to

demonstrate that the police officers involved in preparing the case

against the applicant were lying.

2. The trial judge failed to appreciate that the request for an

edited version of the statements to be submitted to the defence was in

order to enable the prosecution to edit out such parts of a statement

as they considered necessary, and not in order to exculpate the

applicant.

3. The trial judge misdirected the jury on the test of whether

the person accused of receiving stolen goods knew or believed the

goods to be stolen in failing to stress that the test is a subjective

one, whereas in the applicant's contention the fact that the thief

told the receiver that the goods were stolen is a circumstance from

which a jury may infer that the receiver was aware that the goods were

stolen, but it does not raise an irrebuttable presumption that the

receiver handled the goods knowing them to be stolen.

In view of the above three points, the applicant complains that he was

deprived of a fair and public hearing on the criminal charge against

him.

The applicant further complains that he was denied the right to defend

himself in person, contrary to Art. 6, para. 3, sub-para. c

(art. 6-3-c) and to a fair hearing guaranteed by Art. 6, para. 1 of the

Convention (art. 6-1) by virtue of the refusal of the Court of Appeal

to hear him in person on his application for leave to appeal.

The applicant points out that the policy consideration against hearing

an applicant in person referred to in R v. Daniel ((1977) 64 CR. APP

50 at 53) does not apply to a person not in custody such as himself.

Furthermore the applicant contends that the Registrar of Criminal

Appeals should have notified him before the hearing of the court's

practice of not hearing an applicant in person so that he could have

made arrangements to be represented by a lawyer rather than attempting

to represent himself. The applicant points out the possible anomaly

which could have arisen, had his application for leave to appeal in

relation to the theft charge, in which his brother was also applying

for leave to appeal, and was represented by counsel, not been

presented by counsel in that way.

The applicant seeks to distinguish his case from the Commission's

decision in Application No. 9728/82 X. v. the United Kingdom on the

basis that in that case counsel had advised that applicant that there

were no grounds of appeal against conviction, but only against

severity of sentence. Notwithstanding counsel's advice in that case,

that applicant filed his own grounds of appeal in addition to those

already lodged by counsel but, in view of counsel's advice, there was

no likelihood of an injustice against him being done.

In the present case, however, the applicant's counsel did advise that

his appeal had merit, and would have conducted the application on the

applicant's behalf, had not the single judge refused the applicant's

application for leave to appeal, or alternatively had the applicant

had sufficient sums to be able to pay for representation. Hence the

Full Court's refusal to hear the applicant amounted to an injustice,

which the applicant contends was contrary to the Convention.

THE LAW

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

hearing in accordance with the terms of Art. 6, para. 1 of the

Convention (art. 6-1) by the refusal of the trial judge to permit his

counsel to have sight of two statements made by a third person in the

course of a corruption enquiry into a police officer's conduct not

directly connected with the case against the applicant.

He invokes Art. 6 of the Convention (art. 6), which provides as far as

material, as follows:

"1. In the determination ... 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:

...

(b) to have adequate time and facilities for the

preparation of his defence;

...

(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 it was necessary for the proper

cross-examination of a witness for the prosecution, namely a police

officer, that the statements in question were made available to his

defence counsel.

The Commission recalls its Report in the case of Jespers v. Belgium

(D.R. 27, p. 61) in which the question of the defence's access to

documents held by the prosecution was examined. The Commission

recalled that the guarantees of a fair trial contained in Art. 6,

para. 1 (art. 6-1) and Art. 6, para. 3 of the Convention (art. 6-3)

must be read as a whole, as guaranteeing the rights of the defence

throughout the determination of a criminal charge. In that case the

Commission considered whether the absence of an opportunity for the

defence to consult various documents which were in the prosecution

file prejudiced the applicant's right to a fair hearing. The

Commission examined this question by reference to an interpretation of

the term "adequate facilities" in Art. 6, para. 3, sub-para. b

(art. 6-3-b) and recalled that an aim of this provision was to ensure

equality of arms between the prosecution and the defence in criminal

proceedings.

As the Commission recognised (at para. 57 of its above-mentioned

Report) the English text of this provision makes it clear that the

facilities which must be granted to the accused are restricted to

those which assist, or may assist him, in the preparation of his

defence. In the subsequent paragraph the Commission stated:

"In short, Art. 6, para. 3, sub-para. b (art. 6-3-b) recognises the

right of the accused to have at his disposal, for the purposes of

exonerating himself or of obtaining a reduction in his sentence, all

relevant elements that have been or could be collected by the

competent authorities. The Commission considers that, if the element

in question is a document, access to that document is a necessary

'facility' ('facilité nécessaire') if, as in the present case, it

concerns acts of which the defendent is accused, the credibility of

testimony, etc."

The Commission must therefore examine in the present case whether the

statements which were held by the prosecution fall into this category.

The Commission notes first that the statements in question were not

made by a witness in the proceedings, and that neither the prosecution

nor the applicant sought to have the author of the statements called

as a witness in the proceedings. Nor did the content of the

statements, in as far as this is revealed from the proceedings

relating to their admission in evidence before the trial judge,

concern the offences with which the applicant was connected. This is

illustrated by the remarks of the trial judge, to the effect that the

statements had "nothing to do with the case anyway".

The Commission further notes that the trial judge considered that the

material which the applicant sought to have made available to his

counsel for the purposes of cross-examination was highly prejudicial

to the applicant's case, and would jeopardise his having a fair trial.

The Commission recognises that the trial judge is in an inherently

better position than the Commission itself to evaluate the immediate

effects which certain documents might have on the course of a trial,

if introduced into the proceedings, including the effect which they

may be expected to have on a jury. Furthermore, the applicant's

submissions to the Commission do not suggest that the material which

the applicant sought his counsel to have access to was relevant to the

offences with which the applicant was charged, or otherwise material

towards the applicant's defence viewed as a whole.

In these circumstances, the Commission finds no indication that the

refusal to produce copies of the statements concerned affected the

fairness of the proceedings and the Commission therefore considers

that this part of the application is manifestly ill-founded within the

meaning of Art. 27, para. 2 of the Convention (art. 27-2).

2. The applicant further complains that he was not permitted to

address the Full Court of Appeal in relation to his application for

leave to appeal against his conviction for the offence of receiving

goods contrary to S. 22 (1) of the Theft Act 1968.

He contends that Art. 6, para. 3, sub-para. c (art. 6-3-c) and Art. 6,

para. 1 (art. 6-1) of the Convention were both breached by virtue of

his not being able to be heard by the Full Court. Art. 6, para. 3,

sub-para. c (art. 6-3-c) provides that everyone charged with a

criminal offence shall have the right:

"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."

The Commission recalls that it has previously had to consider the

operation of the leave to appeal procedure before the Full Court of

Appeal in criminal matters and in particular the right for an

applicant for leave to appeal to be present at the hearing of such an

application. The Commission refers in particular to its decision on

the admissibility of Application No. 9728/82, X. v. the United

Kingdom, which concerned the absence of the applicant from proceedings

for leave to appeal before the Full Court of Appeal. The Commission

recognised in that decision that the rights guaranteed by Art. 6,

para. 1 (art. 6-1) and Art. 6, para. 3 of the Convention (art. 6-3)

fall to be considered with the other rights of the defence in the

context of an evaluation of the fairness of the proceedings as a

whole. At the same time, although Art. 6 of the Convention (art. 6)

does not guarantee an appeal in criminal proceedings, where an

opportunity to seek an appeal is provided under domestic law, the

guarantees of Art. 6 (art. 6) continue to apply to the proceedings on

appeal since once an appeal is sought, the subsequent applications

form part of the whole proceedings which "determine" the criminal

charge at issue.

In the present case the Commisison considers that it must examine the

powers which the Court of Appeal could exercise and the form of the

proceedings before the Court of Appeal in order to determine whether

the applicant's rights under Art. 6 of the Convention (art. 6) were

respected by the fact that he was not permitted to address the Court,

although he was permitted to be present at the proceedings.

One of the principal issues which lie at the heart of the requirement

of a fair trial imposed by Art. 6 of the Convention (art. 6) as

interpreted by the Commission is the concept of equality of arms. In

the present case there was no violation of this principle to the

applicant's detriment, since the prosecution were not present in the

proceedings for the application for leave to appeal, although the

applicant was.

As far as the powers of the Court of Appeal are concerned, the

Commission notes that, under the terms of S. 11 (3) of the Criminal

Appeal Act 1968 (as amended by S. 56 and Schedule 8 of the Courts Act

1977 and Schedule 3 of the Criminal Courts Act 1973), the Court of

Appeal shall:

"So exercise their power ... that, taking the case as a whole, the

applicant is no more severely dealt with on appeal than he was dealt

with by the Court below."

Furthermore, where, as here, an applicant is at liberty it would

appear that the Court has no power to order that any period spent

awaiting appeal should not count towards sentence under S. 29 of the

Criminal Appeal Act 1968.

The proceedings on appeal do not therefore constitute a full

re-hearing of the case, and the Full Court's task is to review the

conviction and the sentence imposed by the trial judge. Furthermore,

the sentence must be manifestly excessive before the Full Court would

amend or alter it. In the present case, the proceedings themselves

were initiated by the applicant's application for leave to appeal,

which was renewed following the refusal of his original application by

the single judge. The applicant was able to file written submissions

to the Court in support of his application for leave to appeal and

these were before the Full Court when it heard the applicant's

application, as was also the transcript of the proceedings in the

Court below.

In these circumstances, and in the light of the fact that the severity

of the applicant's sentence could not be increased by the proceedings

before the Full Court of Appeal, and in view of the nature of the

arguments submitted by him and the absence of the prosecution during

these proceedings, the Commission concludes that the fact that the

applicant was apparently unable to address the Full Court in person

did not make the proceedings unfair and did not violate the

applicant's rights of defence within the meaning of Art. 6 of the

Convention (art. 6).

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

ill-founded within the meaning of Art. 27, para. 2 of the Convention

(art. 27-2).

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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M. v. THE UNITED KINGDOM

M. v. THE UNITED KINGDOM

LEXI