THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43373/98 by C. G. against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 11 April 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 24 July 1998 and registered on 9 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1970 in Tiddington , England. She is represented before the Court by Mr G. Barrett of Blakemores Solicitors, Stratford-upon-Avon, and by Mr A.J. Engel , a barrister practising in Birmingham. The respondent Government are represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

For several years until January 1996 the applicant was employed as an accounts clerk at a fruit and vegetable wholesalers. It was her job to bank cash and cheques. In January 1996 she resigned after telling the company secretary (“S”) that there was a shortfall in the accounts which had been caused by the theft in November 1995 of two bags containing GBP 3,700, which she said had been taken out of her possession at some time between her getting the money ready for banking at her place of work, visiting a local public house at lunchtime, and arriving at the bank. She said that she had not reported the theft earlier because she was afraid she would be held responsible and lose her job, and that she had made efforts to meet the shortfall from her own money, but that the strain had become too much. S subsequently went through the accounts from 1 October 1995 and discovered a shortfall of approximately GBP 2,900. He also discovered that since October 1995 the applicant had been consistently banking the takings late and occasionally failing to bank all the cash received.

The applicant was charged with stealing GBP 2,905.21. She pleaded not guilty and, in April 1997, following a three-day trial in a Crown Court before a judge and jury, she was convicted of theft and sentenced to two years’ probation and one hundred hours’ community service.

The applicant appealed against conviction. Her grounds of appeal were, inter alia, that the judge made frequent interruptions and persistently hectored the defence counsel, thus depriving the applicant of a fair trial. In particular, it was submitted that during the defence counsel’s cross-examination of the main prosecution witness, S, the judge intervened so frequently that the defence counsel was prevented from testing the accuracy of a schedule of banking payments prepared by S which was the basis of the prosecution case, or from developing possible lines of defence, such as that the loss had occurred prior to the commencement of the schedule. In addition, the applicant complained that the judge had constantly interrupted her examination-in-chief, making it impossible for her to give her evidence in a coherent manner, and had hectored her counsel to such an extent that he had felt unable to continue and had curtailed the examination. The grounds of appeal referred to the transcript of the trial which showed interventions by the judge on almost every page of S’s cross-examination on twenty-two of the thirty-one pages dealing with the applicant’s examination-in-chief.

In February 1998 the Court of Appeal dismissed the applicant’s appeal against conviction, finding as follows:

“The principal ground relied upon by Mr Engel, who appeared at trial and also on this appeal before us, was that the trial was unfair (and he does not mince his words) because of the attitude of the learned judge from the moment that he began to cross-examine [S] through to the time when the appellant was giving her evidence in-chief, throughout her cross-examination, and even up to the moment when he was addressing the jury on her behalf at the close of the evidence. He says that there were frequent interruptions and that on balance they were hostile to the defence case being presented. They had the effect of disturbing his concentration and diverting the attention of the jury and also the attention of the appellant who was thereby unable to present a coherent and consecutive account of what had happened.

We find that there is some substance in those criticisms. It appears from a reading of the transcripts that there were frequent interruptions at the start of the appellant’s evidence. In our view those interruptions, though no doubt well intentioned, may well have had the untoward and unfortunate effect of putting the appellant out of her stride and also, as seems to have been the case and as Mr Engels tells us, of disconcerting him. Likewise, so far as the evidence of [S] is concerned, it does appear that, probably through a misunderstanding of the points that Mr Engel was seeking to make, the learned judge did interrupt cross-examination far more often than could be justified on any view. We are not impressed with the complaint which is made about the interruption which occurred during Mr Engel’s speech to the jury. That was simply to clear one matter up; it could have occupied no more than about ten seconds out of a speech lasting 45 minutes or thereabouts, we are told. That complaint is unjustified.

We have to consider that ground and the criticisms which we feel have been made good in the context of the case as a whole. But we turn from that first ground of appeal to the second, which is to the effect that the summing-up was defective . ...

This was a very short summing-up. It might be said that it was somewhat laconic. But we have to consider whether or not there was a sufficient reference to the defence which was being put forward. In essence the learned judge dealt with the defence at pages 9 and 10 of the transcript. He said:

‘... the broad case is the defendant says that the money was taken from her, I think it is fair to say now in October rather than November, as she originally said, and that she believes now it may well have been taken from [her place of employment], and she seeks to support that by saying there have been other small thefts [there], which suggests somebody dishonest was there who might have taken this amount.’

... That was a very short way of putting the defence forward. It does not deal in great detail with the points which Mr Engel had been attempting to advance both in the course of the cross-examination and in his speech. To that extent the criticism is justified.

It is a further criticism that the judge erred in withdrawing from the jury a main line of defence to the effect that the loss may have occurred prior to October 1995, but we find that that ground of appeal is misconceived. The prosecution case was quite simply that the money must have gone after 1 October because it was the reconciliation of the cash received, with the amounts paid into the bank, which produced the deficiency of GBP 2,900. No part of that sum could have been stolen before 1 October.

Further it is said that the judge wrongly directed the jury that there was no evidence of there being a second paying-in book in use at the time, and the complaint is made that the appellant said that there was (in conflict, it has to be said, with the evidence of [S]). This was a mistake on the judge’s part, so it appears, and something which we have to take into account.

It is then said that the judge erroneously implied that defence counsel had failed to suggest to [S] that there was more than one paying-in book, and once again it appears that the judge was in error about that. So far as we have been able to see, he was not corrected subsequently.

Next it is said in further criticism of the summing-up that the judge told the jury that the appellant never made the suggestion that the money might have been stolen before she left her place of work on the day in question. That, too, was an error, but it was corrected by [prosecution counsel] at the close of the summing-up and in itself could not support a basis for quashing the conviction. ...

As we have observed, there are criticisms which can be made of the manner in which this trial was conducted. It does seem to us that on occasions this very experienced and highly regarded circuit judge (now retired) did enter the arena, sometimes for legitimate reasons and at other times perhaps without justification. It does seem to us also that counsel found himself incommoded and disconcerted by those interventions and interruptions. Counsel have to possess (and if they do not have them they have to grow) rather thick skins. There was never an occasion where the learned judge in the course of trial, so it appears to us, made a ruling to the effect that Mr Engel should not continue with the line of defence that he was attempting to develop either in cross-examination or through his own witness. It appears to us that perhaps Mr Engel was on this occasion a trifle oversensitive. That does not, of course, detract from the validity of the criticisms – some well-founded, some not – in the round. In the end we have to ask ourselves whether or not we think this conviction was unsafe. That is the test we have to apply.

The case was a strong one; indeed the evidence was overwhelming. The appellant on her account to the police and to the jury was admitting that a substantial sum of money had gone missing whilst it was in her possession. She had, by means of late banking, taken steps to cover up the deficiency. We have not a moment’s hesitation in saying that, so far as we are concerned, the conviction was entirely safe. Notwithstanding the criticisms which we have found to be made out as to the manner in which the trial was conducted, this appeal will be dismissed.”

B. Relevant domestic law

Section 2(1) of the Criminal Appeal Act 1968, as amended by the Criminal Appeal Act 1995, provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss an appeal in any other case.”

The broad intention behind this provision was summarized by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p.302 [Court of Appeal]), when he said:

“This new provision......is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted  of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.”

COMPLAINT S

The applicant complains that the trial judge’s constant interventions and hectoring of her counsel, together with the Court of Appeal’s decision that the conviction was safe, deprived her of a fair trial by jury, in breach of Article 6 § 1 of the Convention.

In addition, she complains of a violation of her rights under Article 6 § 3(d) of the Convention, in that the defence counsel’s cross-examination of S and examination of the applicant were unfairly negated by the trial judge’s interventions.

THE LAW

The applicant complains that she did not receive a fair hearing, in breach of Article 6 § 1 of the Convention, which states (as relevant):

“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. ...”

In addition, she complains that the judge’s interruptions during her own examination and the cross-examination of S amounted to breaches of her rights under Article 6 § 3(d), which provides:

“Everyone charged with a criminal offence has the following minimum rights: ...

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 Government refute these allegations and argue that the applicant had a fair trial in accordance with Article 6 § 1. They state that judges cannot be prevented from intervening in the conduct of a trial so long as the accused can be said to have had a fair hearing overall. They point out that the applicant’s counsel was never prevented from pursuing whatever line of questioning he wished to pursue with any witness, that the interruptions during cross-examination were in no way malevolent and that the interruptions during the applicant’s examination-in-chief were more frequent at the start of her evidence. They highlight the fact that the Court of Appeal found the applicant’s counsel to have been oversensitive to the interruptions and that the Court of Appeal’s criticisms of the trial judge did not relate to anything that happened while the jury was being addressed. In particular, they argue that the trial judge’s direction to the jury was in no way defective. They also draw attention to the fact that the jury’s verdict was unanimous and that the Court of Appeal found the evidence against the applicant “overwhelming”.

The Government also draw attention to, among other authorities, paragraph 63 of the Court’s Condron v. the United Kingdom judgment of 2 May 2000, where it was confirmed that defects during trial can be remedied by a subsequent procedure before a court of appeal and with reference to the proceedings as a whole.  They contend that the Court of Appeal was entitled to conclude that the applicant’s conviction was safe because, inter alia , unlike in the Condron case, the present case did not involve interference with a right of “fundamental importance” and did not require the Court of Appeal to speculate about the outcome of the trial any more than in the Edwards case ( Edwards v. the United Kingdom judgment of 16 December 1992, Series A no. 247-B).

The applicant alleges that her right to a fair trial was violated by the trial judge’s constant interventions and hectoring of defence counsel. She states that the judge’s interruptions were “very extreme” and had the effect of preventing questions being put by her counsel. She also alleges that there were a number of occasions when the judge, in effect, ruled that her counsel should not continue with a line of defence.

The applicant also argues that her rights under Article 6 § 3 were violated in that her counsel’s cross-examination of S and examination of the applicant were unfairly “negated” by the judge’s interventions. She points to the Court of Appeal’s findings in support of various of her criticisms (see extracts above).

The applicant contends that the unfairness was not cured by the Court of Appeal, which dismissed her appeal in finding the conviction “safe”. She indicates that the court made its decision only on the basis of a partial transcript of the trial and without the benefit of hearing or seeing the witnesses.

The Court considers that the application raises complex issues of law and fact under Article 6 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President