FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 515/02 by Frank HENWORTH against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 14 January 2003 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , judges , Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 15 December 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Frank Henworth, is a United Kingdom national, who is currently detained in HM Prison Highdown. He is represented before the Court by Mr C. Clyne, a lawyer practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant unless stated otherwise , may be summarised as follows.

On 15 June 1995, Patrick “ Nobby ” Clarke was murdered in the flat he had shared with the applicant for the preceding eighteen months. He had been clubbed over the head with what was probably a hammerhead in a sock and possibly another weapon. The applicant said he had been in the flat on the evening of the killing, but at a time when Clarke was not there. He claimed that two armed intruders had broken in after he left at 9.45 p.m. and they must have been responsible for the murder. He returned to the flat at about midnight and found the body of the deceased, whereupon he alerted the police. There was conflicting evidence about the existence and extent of any ill-feeling between the applicant and the deceased, both in the preceding months and on the day of the murder.

In February 1996, the applicant was tried for the murder of Mr Clarke, the issue for the jury being whether it was the applicant who was responsible for the murder. He was convicted and appealed against the conviction. In May 1998 the conviction was quashed by the Court of Appeal on the basis that the judge had misdirected the jury and a retrial was ordered. The retrial took place in July 1998, when the jury was unable to reach a verdict and was discharged.

The Crown elected to proceed with a second retrial which took place in July 1999. Counsel unsuccessfully submitted that it was oppressive and an abuse of process to try the applicant again, after two unsuccessful trials. At some point during the trial, the applicant dispensed with the services of his counsel and solicitor. He instructed a new solicitor, but defended himself at the trial. There came a point where he no longer felt able to do so and requested an adjournment. The jury was duly discharged, but a further retrial was ordered and took place in September 1999. The applicant did not give evidence at that trial. On 21 September he was convicted, by a majority of 10 to 2, and was sentenced to life imprisonment.

At each of the trials the Crown’s case was essentially the same, except that a witness called Crittenden , to whom the applicant allegedly made a confession whilst they shared a prison cell, was not relied upon after the first trial, the Crown being of the view that they were not able to present him as a witness of truth.

The applicant appealed against the conviction and his appeal was heard on 19 January 2001. He argued inter alia that the second retrial (in July 1999) was an abuse of process, in that it flouted the convention in English law that if the prosecution has failed to secure a conviction on two occasions it does not then seek a further trial. Although the circumstances were different from those usually relied upon, it was argued on the applicant’s behalf that the first conviction was found not to be safe and so could not be relied upon and on the second occasion the jury could not agree. Upon the third discharge of the jury that should have been the end of the matter.

The Court of Appeal found that there was no reason to conclude that the practice should apply in the particular circumstances of the applicant’s case. It noted case-law to the effect that there was a practice but not a rule of law for the prosecution not to offer evidence where two juries have disagreed and found no general principle existed barring further retrial where the prosecution had failed twice to secure a conviction:

“25. ... Where a serious crime has been committed and it is shown that there is a case to answer as far as a defendant is concerned, there is a clear public interest in having a jury decide positively one way or another, whether that case is established.

26. Having said that, we recognise the possibility that in any given case a time may come when it would be an abuse of process for the prosecution to try again. Whether that situation arises must depend on the facts of the case which include, first, the overall period of delay and the reasons for the delay; second, the results of previous trials; thirdly, the seriousness of the offence or offences under consideration; and fourthly, possibly, the extent to which the case now to be met has changed from that which was considered in previous trials.

27. Here the prosecution case did change in that reliance ceased to be placed on the evidence of a man called Crittenden , a prisoner who had given evidence in the first trial as to what had allegedly been said by the [applicant]. But the changes in the prosecution case cannot, in our judgment , have rendered it impossible for the [applicant] to have a fair trial. The reality was he no longer had to face evidence which was adduced in the previous trial as to what he himself had said when attempting to deal with the evidence of Crittenden . ...

29. ... For the reasons we have given we are satisfied that the abuse of process argument was rightly rejected here.”

The court refused leave to appeal to the House of Lords, but certified two questions of law of general public importance, namely,

“1. Whether a defendant having been tried twice without a safe verdict being returned it is oppressive to try him a third time and hence an abuse of the court’s process.

2. Whether it is oppressive for the Crown to depart from its established practice of not trying a defendant for a third time, absent compelling fresh evidence or conduct by the defendant causing the retrials.”

On 17 June 2001 the House of Lords refused the petition for leave.

B. Relevant domestic law and practice

Section 7 (1) of the Criminal Appeal Act 1968 provides:

“Where the Court of Appeal allow an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried.”

The court has regard to, inter alia , the seriousness of the offence, the length of time which has elapsed since the offence and any unfairness which may be caused to the appellant by a further prosecution.

If a jury is discharged from giving a verdict, the defendant may be, and generally is, tried upon the indictment by a second jury; in the event of the second jury disagreeing, it is common practice for the prosecution formally to offer no evidence.

In the Privy Council case, Charles v The State [2000] 1 WLR 384, the appellant had been convicted of murder and the conviction quashed on appeal. He was retried and the jury was unable to agree on a verdict. He was convicted at a second retrial, some nine years after being charged with the offence. Lord Slynn observed obiter that:

“It may be contrary to due process and unacceptable as a separate ground from delay that the prosecution having failed twice should continue to try and secure a conviction.”

COMPLAINTS

The applicant complains that the decision to continue to prosecute him over a period of four years was a denial of his right to trial within a reasonable time under Article 6 § 1 of the Convention. He also relies on Article 5 § 3 for the same reason. He complains that the delay resulted in real prejudice to him which in itself made the final trial unfair.

He further complains that it was oppressive and degrading to try him four times in as many years and that such was in breach of Articles 3 and 6.

THE LAW

1. The applicant invokes Article 3 of the Convention which provides,

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court recalls that to find a State in violation of Article 3 is particularly serious and that a minimum level of severity of punishment is required for a complaint to fall within the scope of Article 3. The Court recalls that it is degrading treatment or punishment which grossly humiliates a person before others or drives him to act against his will or conscience, which may found a complaint under this Article (see, for example, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25).

The applicant does not substantiate his claim by reference to the effect of the delay on his physical and/or mental health and the Court considers that without substantiation, such treatment cannot in itself be regarded as reaching the threshold required under Article 3 and his complaints must be rejected as manifestly ill-founded pursuant to Article 35 §§ 1 and 3.

2. The applicant complains that the length of the proceedings was such as to breach Article 5 § 3. Article 5, provides, so far as is relevant,

“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The applicant provides no information about applications for bail made throughout the proceedings and has not shown that he exhausted the appropriate domestic remedies to found a complaint of this nature. In any event, his period of pre-trial detention ended at the date of his final trial in September 1999 while his complaints were not introduced until 15 December 2001. On that basis, the applicant has failed to submit the application within the six-months time limit imposed by Article 35 § 1 of the Convention and the complaint must therefore be rejected pursuant to Article 35 § 4.

3. The applicant complains of the way in which he was repeatedly tried and the length of the proceedings, invoking Article 6, which provides so far as is relevant,

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time by [a] ... tribunal...”

The Court finds that issues arise meriting communication to the respondent Government. It therefore adjourns this part of the application.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaints concerning the fairness and length of proceedings;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President