FIRST SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 45738/99 by John BULLIVANT against the United Kingdom

The European Court of Human Rights ( First Section ), sitting on 28 March 2000 as a Chamber composed of

Mrs E. Palm, President , Mr J. Casadevall, Sir Nicolas Bratza,

Mr Gaukur Jörundsson, Mr R. Türmen, Mrs W. Thomassen, Mr R. Maruste, judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 29 July 1998 and registered on 28 January 1999,

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 deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1946 and detained in HM Prison Long Lartin , Evesham, Worcestershire. He is represented before the Court by Mrs Mary O’Neill, a business analyst, of Selly Park, Birmingham.

A. Particular circumstances of the case

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

The court proceedings

On 3 December 1996, the applicant was convicted of robbing a Brinks Mat van of £498,000 and possession of firearms. On 4 December 1996, he was sentenced to 15 years’ imprisonment for the robbery with 3 consecutive years for possession of firearms, a total of 18 years’ imprisonment. He was represented under legal aid by solicitors and Counsel.

During the trial, the applicant’s counsel was denied sight of two intelligence reports from the police and MI5 which were presented to the judge by the prosecution. Counsel for the applicant applied for sight of the reports. This was denied by the trial judge who stated that the named informants were contained therein and invoked Public Interest Immunity. During the jury deliberations, following consultation with defence counsel who proposed amendments to the written direction, the judge directed the jury that on the evidence it was possible to find that the applicant was the driver of the getaway car, rather than as originally submitted by the prosecution, driver of the car used in the robbery. Counsel did not apply for the introduction of a lesser charge of accessory after the fact. The jury convicted the applicant, rejecting his defence of duress which was raised at trial.

The applicant appealed against conviction with leave from a single judge of the Court of Appeal. He claimed, firstly, that the judge introduced a new basis for convicting him (that he was driving a getaway car rather than the vehicle used in the robbery) at a late stage, namely during jury deliberations, which his counsel did not have a chance to address. Secondly, the judge’s directions as to knowledge and participation in the robbery were muddled and inadequate in that the directions may have left the jury with the impression that it was open to convict the applicant as a principal even if all he did was to assist those who had committed a robbery to avoid apprehension and had no part in the planning and execution of the robbery.

On 6 February 1998, the Court of Appeal rejected the applicant’s appeal. The Court of Appeal noted that the applicant did not mention any compulsion or duress during his interviews with the police. In respect of the first ground of appeal, the Court of Appeal stated that experienced counsel for the defence made no objection to the judge’s direction to the jury on the basis for conviction at the time and there was no significant prejudice to the applicant in respect thereof. The defence had made a tactical decision not to raise the issue themselves, an issue which seemed so obvious to the Court of Appeal that the defence could not then complain that they were prejudiced. As to the second ground of appeal, the Court of Appeal did not find the judge’s directions inadequate and found the evidence against the applicant overwhelming. The Court of Appeal stated that the judge gave very explicit directions from which it was clear that the jury must have been sure that the applicant was a participant in a common plan and not a mere accessory after the fact. There was no basis for finding that the conviction was in any way unsafe. The Court of Appeal further rejected leave to appeal against sentence, finding that the sentence was not excessive in the circumstances of the case.

In July 1998, the applicant made an out of time application to the Court of Appeal for leave to appeal. In December 1998, the Court of Appeal refused leave to appeal to the House of Lords. The applicant states he did not receive confirmation in writing of this decision until 14 May 1999.

Conditions of imprisonment

The applicant was held on remand for one year and moved to five prisons and for some months he was held in a segregation unit. He allegedly suffered a mental breakdown and received anti-depressant drugs. As a Category A prisoner, he states that he has no right to home leave, open prison or parole, he is checked every hour by a prison officer through the night shining a light into his cell and disturbing his sleep and prospective visitors are vetted by the Home Office. According to him, Category A prisoners would also be executed in the event of a nuclear strike on the United Kingdom.

He complains that he received delayed medical treatment for a suspected heart condition. He was taken to a local hospital for an appointment but because the consultant was not there he was taken back to prison without seeing him due to the potential security risk. The visit was rescheduled and took place 5 months later. No heart problem was found. The applicant was advised by his solicitor that there was no prospect of obtaining legal aid to pursue a case relating to the delay in seeing a cardiologist.

The applicant was transported to the Court of Appeal in February 1998 in an unheated van, locked in a metal cell in the rear of the van, wearing thin clothing with no food, water or toilet breaks for 8 hours. In October 1998, his complaint to the Prison Ombudsman was upheld who recommended the setting up of guidelines for the transfer of Category A prisoners. No proceedings were issued by the applicant against the Prison Service.

The applicant states that the security classification of Category A prisoners should be reviewed annually. He has only had one review of his Category A status in April 1997 some 18 months since he was first held on remand and four months after his conviction. He has had no review since. The result of the review security category status was sent to the prison governor in a letter dated 30 June 1997 but the applicant says it was not communicated to him in writing until November 1997. It was decided that he should remain a Category A prisoner. On 8 January 1999, the applicant wrote to ask why he had only had one review and when his next review would take place but has not received a response nor pursued the matter further.

B. Relevant domestic law and practice

Disclosure of evidence to the Defence

R. v. Ward [1993] 1 WLR 619 . This case dealt with the question of what duties the prosecution has to disclose evidence to the defence. It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity. The Court of Appeal held that it was the court, and not the prosecution, who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure.

R v. Trevor Douglas K (1993) 97 Cr. App.R . 342 . The Court of Appeal stated that that balancing exercise could only be performed by the trial judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind.

COMPLAINTS

The applicant complains under Articles 2, 3, 6 and 13 of the Convention.

The hearings

The applicant alleges that his trial and appeal violated Article 6 in particular:

- his right to a fair trial was violated because the judge’s summing up was not fair or accurate;

- the judge changed the nature of the case without changing the indictment in breach of Article 6 § (3) (a) of the Convention;

- the trial judge admitted evidence (namely two intelligence reports) which the applicant did not see contrary to Article 6 §§ 1, 3 (b) and 3 (d) of the Convention;

- the Court of Appeal was biased, ignoring strong grounds for appeal, including arguments which became apparent on appeal, and there were contradictions in its judgment;

- his counsel failed to pursue the non-direction of the jury as to accessory after the fact and the introduction of the public interest immunity evidence; his counsel provided by legal aid was incompetent at trial and appeal contrary to Article 6 §§ 1 and 3(c)of the Convention;

- the trial judge was biased in sentencing the applicant more severely than his co-defendant and the Court of Appeal was wrong as it did not find the sentence excessive and was unfair and unjust in breach of Article 6 §§ 1 and 2 of the Convention;

- he cannot appeal to the House of Lords because there is no question of law of public importance and he cannot pursue his appeal against sentence either. No reasons for refusal of leave were given by the Court of Appeal contrary to Article 6 and 13 of the Convention. The composition of the Court of Appeal who heard his application for leave to appeal was the same as that which heard his appeal and was not therefore independent or impartial. The applicant seeks a retrial or a rehearing of his appeal.

Conditions and Treatment relating to Imprisonment

The applicant complains about his conditions of imprisonment and his Category A status, in particular:

- He alleges under Article 3 of the Convention, inter alia , that his 18 year prison sentence at the age of 50 is degrading in that it arouses a fear and anguish capable of humiliating the applicant and that its intention is to break his moral and physical resistance.

- He complains that his treatment as a Category A prisoner makes him feel an outcast, it is humiliating and damages his health. The conditions of his transport to court amounted to physical ill-treatment; the constant sleep disruption amounts to torture and the vetting of visitors is punitive and arbitrary and discourages them.

- He refers to his possible execution as a Category A prisoner in the event of nuclear strike on the British mainland as a breach of Article 2 of the Convention and mental torture under Article 3 of the Convention. He states he has not been sentenced to death by any court for a crime for which the death penalty is provided by law.

- He complains of the delay in communicating the result of his Category A review, the arbitrariness and inhumanity of the reasons given, and seeks a review of Category A conditions and more stringent safeguards for fair and timely reviews of Category A prisoners. He invokes Article 6 § 2 of the Convention in respect of the lack of pre-release schemes.

THE LAW

The hearings

The applicant complains that his right to a fair trial under Article 6 of the Convention was breached. He complains, inter alia , that the trial judge’s summing up was not fair and accurate and that he changed the nature of the case in breach of Article 6 § 3 (a) of the Convention. The Court of Appeal was biased and it was unfair that the Court of Appeal did not find his sentence excessive and thereby the court breached Article 6 §§ 1 and 2 of the Convention. He complains that his counsel was incompetent. He alleges the trial judge was biased in sentencing him and the Court of Appeal was wrong in not finding the sentence unfair in breach of Article 6 §§ 1 and 2 of the Convention. The trial judge was also wrong to admit in evidence reports which the applicant did not see and this was contrary to Article 6 §§ 1, 3 (b) and 3 (d) of the Convention. He complains that his rights under Articles 6 and 13 of the Convention were violated by the Court of Appeal in rejecting his application for leave to appeal without giving a reasoned judgment. He complains that he cannot appeal to the House of Lords and that the Court of Appeal judges that heard his application for leave to appeal were the same as heard his appeal and therefore were not independent or impartial. He seeks a retrial or rehearing of his appeal.

Article 6 of the Convention provides so far as is relevant:

“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 ...

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

…

(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; …”

Article 13 of the Convention provides:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

In respect of the complaints relating to the decisions of the courts, this Court is not a court of appeal from domestic courts and cannot intervene to investigate allegations that the domestic courts reached the wrong decision. As regards the applicant’s complaint that the judge changed the nature of the case contrary to Article 6 § (3) (a) of the Convention, the Court recalls that the Court of Appeal considered the points raised by the applicant as to the alleged unfairness of the judge’s invitation to the jury to consider a different basis for convicting him. It found that the basis relied on by the judge had been obvious and known to the defence counsel who had chosen not to address it and made no objections to the judge when it was raised. In the light of the reasoned findings that the applicant suffered no significant prejudice, the Court finds that there has not been a violation of Article 6 of the Convention in this regard.

In considering the applicant’s complaint relating to the introduction of evidence, the Court recalls that the question of admissibility of evidence is primarily a factor for regulation under domestic law. It is for the national courts to assess the evidence before them as well as the relevance of the evidence (see Barberà , Messegué and Jabardo v. Spain, judgment of 6 December 1988, Series A no. 146, p. 31, § 68). An accused’s entitlement to disclosure of relevant evidence is also not an absolute right. Where however it is necessary in any criminal proceedings to withhold material from the defence in order to safeguard national security or the need to protect witnesses at risk of reprisals or keep secret police methods of investigation of crime (see, for example, the Doorson v. the Netherlands judgment of 26 March 1996, Reports of Judgments and Decisions 1996-II, § 70), any difficulties caused to the defence by a limitation on its rights must be sufficiently counterbalanced by the procedures followed by the judicial authorities (see the above-mentioned Doorson judgment, § 72 and the Van Mechelen and Others v. Netherlands judgment of 23 April 1997, Reports 1997-III, § 54). In the present case, the material which was not disclosed in the present case formed no part of the prosecution case and was never put to the jury. The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important, safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld. He was fully versed in all the evidence and issues in the case and in a position to monitor the relevance to the defence of the withheld information both before and during the trial (see Jasper v. the United Kingdom and Fitt v. the United Kingdom judgments of 16 February 2000, to be reported in Reports 2000-..., §§ 52-58 and §§ 44-50 respectively). It may be noted that the applicant did not challenge this aspect of the judge’s handling of the trial in his appeal. In respect of that aspect therefore, there is no appearance of a breach of Article 6 of the Convention in this case.

The applicant’s complaints in respect of his counsel are inadmissible ratione personae as there is no indication in this case of State responsibility being engaged by the conduct of the defence.

As far as the allegations of bias are concerned, the Court recalls that personal impartiality of judges is to be presumed unless there is proof to the contrary (see Le Compte , Van Leuven et De Meyere v. Belgium judgment of 23 June 1981, Series A, no. 43, p. 25, § 58). There is nothing to suggest in this case that the trial judge or the members of the Court of Appeal were biased in any way in their consideration of the case, the sentence or the application for leave to appeal. There is accordingly no appearance of any violation of any provisions in the Convention.

In respect of the applicant’s complaints about the right of appeal, the Court notes there is no right of appeal or to a rehearing under Article 6 of the Convention. Consequently, the applicant cannot claim any right under Articles 6 and 13 of the Convention to obtain an appeal before the House of Lords where his case discloses no point of law of general public importance. The applicant did receive a reasoned judgment from the Court of Appeal in respect of his appeal against conviction and sentence which the Court finds satisfies the requirements of Articles 6 and 13 of the Convention in this regard.

The Court has examined the remainder of the applicant’s complaints concerning the proceedings and finds that they are unsubstantiated. It follows that this part of the application is inadmissible as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

Conditions and Treatment relating to Imprisonment

The applicant complains that there has been a breach of Article 2 of the Convention as he would be executed in the event of a nuclear strike on the British mainland because he is a Category A prisoner. He alleges this threat also amounts to mental torture and therefore a breach of Article 3 of the Convention too. He complains of further breaches of Article 3 of the Convention in respect of the 18 year sentence passed on him when he was 50 years old which aroused fear and anguish. His treatment as a Category A prisoner made him feel an outcast and damaged his health. The conditions of his transport to court amounted to physical ill-treatment, the disruption of his sleep amounted to torture and the vetting of his visitors was punitive and arbitrary.

The applicant complains of the delay in communicating the result of his Category A review, the arbitrariness of the reasons given. He seeks a review of Category A conditions and more stringent safeguards for fair and timely reviews. He invokes Article 6 § 2 of the Convention in respect of lack of pre-release schemes.

Article 2 § 1 of the Convention provides:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Article 3 of the Convention provides:

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

The Court finds that the applicant’s allegations concerning the threat to his life are unsubstantiated and hypothetical. As concerns his complaints under Article 3 of the Convention, it recalls that ill treatment must attain a minimum level of severity if it is to fall within the scope of that Article (see Ireland v. the United Kingdom judgment of 18 January 1978 Series A, no. 25, p. 65, § 162). The Court has examined the matters raised by the applicant in relation to Category A conditions of detention but does not find that they reach the threshold prohibited by Article 3. Similarly, insofar as the applicant experienced delay in receiving a medical examination, it is not apparent that this had any serious prejudicial repercussions on his health. Further, the imposition of a long sentence of imprisonment is generally not sufficient in itself to raise issues under this provision. Though the applicant refers to his age, the Court does not find that this constitutes a factor which renders the sentence imposed in this case either inhuman or degrading within the meaning of Article 3 of the Convention.

As regards the alleged ill-treatment of the applicant while in transit, the Court finds that the applicant has not exhausted domestic remedies in this regard. The applicant did not pursue either matter through civil proceedings, seeking compensation for any physical or mental damage or distress suffered through the negligence of the authorities. He has therefore failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. While the applicant submits that his solicitor considered that he would be unlikely to obtain legal aid for such proceedings and that in any event he is not interested in compensation, this does not in the circumstances constitute a ground for exemption from the general rule of exhaustion of the normal domestic remedies available in respect of a complaint alleging a violation of the Convention.

In relation to the allegations about the applicant’s Category A status and circumstances surrounding any review, the Court notes that the Convention does not create any particular right to a certain type of security classification nor to a pre-release scheme. The classification and restrictions of Category A prisoners has not previously been found by the Commission to attract the protection of Article 6 of the Convention (see X. v. UK 8575/79, Comm. Report 14.12.79, D.R. 20, p. 202,) and the Court perceives no basis on which to differ from this conclusion.

It follows that this part of the application is inadmissible, respectively, as being manifestly ill-founded, for failure to exhaust domestic remedies and as being incompatible ratione materiae pursuant to Article 35 §§ 1, 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Elisabeth Palm

Registrar President