SECOND SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 43694/98 by John Francis DONNELLY against the United Kingdom

The European Court of Human Rights ( Second Section ) sitting on 27 January 2000 as a Chamber composed of

Mr C.L. Rozakis, President , Mr M. Fischbach, Sir Nicolas Bratza

Mr G. Bonello, Mrs V. Strážnická, Mr A.B. Baka, Mr A. Kovler, judges ,

and Mr E. Fribergh , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 12 June 1998 by John Francis Donnelly against the United Kingdom and registered on 1 October 1998 under file no. 43694/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is British citizen, born in 1945 and resident in Alderley Edge, Cheshire . He is represented before the Court by Ms Nicola Finnerty , a solicitor practising in London .

A. Particular circumstances of the case

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

On 10 May 1989, the applicant was arrested for obtaining property by deception in connection with fraudulent claims against the Department of Health and Social Security (DHSS). He was subsequently charged with his wife of two counts:

Count 1: - Obtaining property by deception - dishonestly obtaining £ 32,068.01 in unemployment and supplementary benefits and income support payments from the ... “DHSS” between 1 st February 1984 and 9 th May 1989 by falsely representing that they were unemployed, not in receipt of income and had no capital savings.

Count 2: - Obtaining property by deception - dishonestly obtaining £8,441.30 in housing benefits from Maccesfield Borough Council between 1 st February 1984 and 9 th May 1989 by falsely representing that they were unemployed, not in receipt of income and had no capital savings and fulfilled the requirements for eligibility for unemployment and supplementary benefits and income support payments.

After committal for trial in January 1991, the first pre-trial hearing was held in the Crown Court on 3 March 1991. The applicant and his wife were jointly represented and pleaded not guilty. The applicant received legal aid for representation by solicitor and counsel.

On 27 March 1991, at the second pre-trial hearing, counsel informed the court that he was unable, due to a conflict of interest, to represent both the applicant and his wife and that the applicant would have to instruct fresh lawyers. The judge ordered the defendants to serve their accountant’s report on the prosecution within 28 days. A problem with the payment of the accountant’s fees was drawn to the judge’s attention.

On 10 June 1991, the applicant’s counsel invited the judge at the third pre-trial hearing to express a view as to the necessity for an accountant’s report, with a view to facilitating the request for legal aid for this purpose. The judge declined, expressing the view that the issues in the trial as to whether the applicant had income and if so, was he dishonest in representing to the authorities that he had none, did not require an accountant. The trial was listed to be heard on 4 November 1991.

The Legal Aid Board, on a date unspecified, refused to grant legal aid for an accountant’s report. The applicant has not provided the decision. Correspondence prior to the decision included a warning by the Legal Aid Board that legal aid would be limited to the fees set in the relevant guidelines and that any further amounts would have to be justified on submission of the bill.

On 24 September 1991, the applicant’s counsel applied to the trial judge for an adjournment for four months to permit the applicant to apply for a loan to pay for the report, have the report prepared and served on the prosecution. The application was refused, the judge not being satisfied from counsel’s submissions that there was at least an arguable defence that would be supported by such an accountant’s report.

On 4 November 1991, without warning his lawyers, the applicant did not appear in court. He provided a letter which stated that he could not have a fair trial without an accountant and gave his reasons for that belief. After some deliberation, the judge decided to proceed with the trial in his absence. His counsel continued to represent him.

In summary, the evidence proved that the applicant’s wife had “signed on” every two weeks on the family’s behalf, representing that she and the applicant were unemployed, had no income, capital or savings or property apart from the family home. The prosecution also presented evidence to show that during the relevant period the applicant was working and did have some income, savings and capital.

On 8 November 1991, the applicant and his wife were convicted. Sentence was adjourned until 28 February 1992. On that date, his wife was present and represented. The applicant still did not attend. The applicant was sentenced to four years’ imprisonment and his wife to three months’ imprisonment. Joint and several compensation orders were made for repayment of the benefits, plus interest.

On 7 October 1996, a single judge of the Court of Appeal refused leave to appeal. On 31 January 1997, leave was granted by the full court. The applicant argued that the counts against him were duplicitous as they purported to cover a single “obtaining” of property whereas in reality they covered multiple “ obtainings ”. He also argued that the trial should not have continued in his absence and that he should have been granted an adjournment to obtain an accountant’s report.

On 12 June 1997, the appeal was heard before the Court of Appeal. It dismissed the appeal against conviction but reduced the applicant’s sentence to three years.

In respect of the applicant’s counsel’s arguments that the counts against him were duplicitous, the Court of Appeal held that it was not duplicitous in form. Any duplicity in substance could have been discovered at or before the trial by requiring particulars from the Crown and if duplicity was shown, a motion to quash the indictment could have been moved. No such step had been taken by counsel and it was not being submitted by counsel at the appeal that trial counsel had been flagrantly incompetent in not doing so. The allegation that defence counsel had erred in failing to taking a particular step was not sufficient. It may indeed have been counsel’s view that this method of proceeding was simpler and to the applicant’s advantage.

As regarded the refusal of an adjournment and the applicant’s refusal to attend without an accountant, the Court of Appeal noted that “the trouble was that the fee that the Law Society was prepared to pay to cover the accountant for legal aid was not nearly as much as the accountant wanted and the was reluctant to have any other accountant.” It referred to the views of the judges at the pre-trial hearings that the case did not require an accountant. For the applicant to say that if the court did what he wanted he would come to court but that if it did not he would not was totally unacceptable behaviour. The Court of Appeal found no irregularity in the judge’s refusal to order legal aid for an accountant of the applicant’s choice. The applicant had been “utterly pigheaded” and refused to instruct any other accountant. It was also not apparent, if he could obtain an accountant from his own resources, why he waited until 24 September 1991 to request a four month adjournment for that purpose. Counsel had been unable to point to any steps taken between 24 September and 4 November 1991 to obtain an accountant’s report.

The applicant’s application to appeal to the House of Lords was dismissed on 16 December 1997.

COMPLAINTS

The applicants complain that he has not received a fair trial as required by Article 6 § 1 as the trial proceeded on charges which allowed him to be convicted and sentenced for offences of which he was not found guilty. This resulted from the way the counts covered a series of fraudulent “signings on” over a long period. Even if the jury had found that any number of those acts were not dishonest, they were under instructions to convict if only one of those acts was dishonest.

The applicant complains similarly under Article 6 § 2 that he has been denied his right to presumption of innocence as he has been sentenced on the basis that he is guilty of each and every obtaining ( ie . the compensation orders covered all the benefits obtained during the period).

The applicant complains under Article 6 § 3 (b) of the refusal by the trial judge of an adjournment to allow him to obtain an accountant’s report. This report was necessary for his defence as he wished to show that he was not dishonest as he thought that he was entitled to the benefits claimed eg . his financial affairs were complicated, during the relevant period any money which he had was owed to others, details concerning the nature and amount of his assets. The judge and the prosecution, he states, commented during the trial on the complexity of the financial evidence.

The applicant finally complains under Articles 6 § 3 (c) and (d) that the trial was conducted in his absence. His counsel had no instructions from him to continue at the trial and could not properly represent him, and should not have done so.

THE LAW

The applicant complains that his trial for obtaining benefits fraud was unfair and did not comply with specific guarantees provided under Article 6. He invokes the following provisions of that Article:

“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.

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;

(c) 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;

(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 Court recalls that the guarantees in paragraph 3 of Article 6 of the Convention are specific aspects of the right to a fair trial set forth in paragraph 1 (see eg . T. v. Italy judgment of 12 October 1992, Series A no. 245-C, p. 41, § 25). The Court will therefore consider the applicant’s complaints in the light of these provisions taken together.

In assessing whether defence rights have been secured under Article 6 of the Convention, the Court must consider the proceedings in question as a whole, including the proceedings before the appellate court (see eg . Imbrioscia v. Switzerland judgment of 24 November 1993, Series A no. 275, pp. 13-14, § 18). Moreover, it is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts, and in particular the court of first instance, to assess the evidence before them. The Court shall only ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see eg . Barberà , Messegué and Jabardo v. Spain judgment of 6 December 1988, Series A no. 146, p. 31, § 68; Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, § 33).

Alleged duplicity of the counts charged

The applicant complains that it was unfair, and in breach of the presumption of innocence, for him to be tried, and sentenced, on two counts which each purported to cover one offence whereas they covered a multiple acts over a period of years. This prejudiced him, he alleges, in particular since the compensation order covered all the benefits obtained over the period, whereas a jury might, on individual specific counts, have found no dishonesty for certain acts.

The Court notes that the applicant raised this point on appeal. The Court of Appeal rejected the argument, finding that the counts were not duplicitous in form and that his counsel had taken no steps prior to the trial to establish that they were duplicitous in substance and apply for them to be quashed at the trial. The Court observes that it was not alleged on appeal that trial counsel had been incompetent in failing to object at trial and that it may equally have been considered tactically advantageous to the defence for these counts to be maintained.

In these circumstances, the Court finds that the applicant’s claims that the counts infringed his right to a fair trial and infringed the presumption of innocence were not raised at the appropriate stage and have not been shown to have prejudiced the defence contrary to the provisions invoked.

Refusal of an adjournment for preparation of an accountant’s report

The applicant submits that he required an accountant’s report on his complicated financial affairs in order to receive a fair trial. He complains that the failure to order an adjournment to obtain one deprived him of the adequate time and facilities for his defence contrary to Article 6 § 3 (b) of the Convention.

The Court recalls that the Court of Appeal rejected the applicant’s appeal on this ground, upholding the decisions of the judges at trial that such a report had not been shown to be necessary and noting that the applicant had not taken earlier steps to obtain a report. The Court observes that the applicant had been aware of the charges against him since March 1989 and that there was a lapse of nine months between the committal for trial in January 1991 and the trial on 4 November 1991. It is not satisfied on the materials before it that the applicant was deprived of the opportunity to obtain a report by an accountant as a result of the decision of the trial judge not to order a four month adjournment. His complaint therefore that he did not receive adequate time and facilities for the preparation of his defence is unsubstantiated.

Trial and conviction in absentia

The applicant complains that the trial continued in his absence and that he was thereby deprived of a practical and effective defence. While his counsel continued to represent him, this was without his instructions and was of limited value without the applicant being there to give explanations of his financial dealings and to give evidence of his lack of dishonesty. He invokes Articles 6 § 3 (c) and (d) in this respect.

The Court recalls that it is of fundamental importance that an accused enjoy the right to be present during his trial to hear the evidence against him and, if he wishes, to give evidence on his own behalf (see eg . Poitrimol v. France judgment of 23 November 1993, Series A no. 277-A, § 31). However, it is also established in its case-law that an accused may waive his right to be present, and that no issue may arise where this waiver is established in an unequivocal manner and attended by minimum safeguards commensurate to its importance (see eg . Pfeiffer and Plankl v. Austria judgment of 25 February 1992, Series A no. 227, § 37).

In the present case, the applicant deliberately chose to withdraw from his trial because he alleged that it would be unfair for it to proceed without an accountant’s report. A letter from him to this effect was submitted to the court on the first day of trial. The Court finds that this constitutes an unequivocal waiver of his right to attend. The applicant must be considered wholly responsible for his absence and the judge may be considered as justified in continuing in his absence. The Court notes that the applicant’s counsel continued to represent him during the trial.

The Court concludes that there was no element of unfairness in the proceedings as a result of the applicant’s absence and no basis for finding a violation of the provisions invoked.

Conclusion

The Court finds that taken in their entirety the proceedings afforded the applicant a fair and effective opportunity to present his defence in an adversarial procedure. It therefore rejects his complaints that he did not receive a fair trial as required by Article 6 § 1 of the Convention, taken alone or in conjunction with Article 6 §§ 2, 3 (b) (c) or (d).

The application is accordingly manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Erik Fribergh Christos Rozakis Registrar President