CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 3 octobre 1972

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  THE FACTS   The facts presented by the parties and apparently not in dispute between them may be summarised as follows:   The applicant is an Irish citizen, born in Cork in 1939. At the time of introducing his application he was held in H.M. Prison, Wandsworth. He was released on 25 October 1971 and now lives in Poplar, East London.   On 24 June 1970, at the Social Security office in Scarborough Street, London, W.1, the applicant presented a claim form in which he falsely stated that he had last received a benefit on 29 May 1970. He had, in fact, received £3-11-0 on 18 June 1970. Enquiries were made and the applicant was arrested. He appeared before the Thames Magistrates' Court on 25 June and pleaded guilty to attempting to obtain £6-3-0 by deception. The Magistrates then exercised their power to commit the applicant to the Inner London Quarter Sessions for sentence.   The applicant had not applied for legal aid in the proceedings before the Magistrates. He did, however, apply to the Quarter Sessions for a legal aid order to cover the proceedings before that Court. His request was for representation by solicitor and counsel and it was received by the Court on 3 July. It appears that, owing to an administrative delay in processing the papers, the request was not dealt with as expeditiously as would normally be the case. The matter was not considered until Friday, 31 July, when it was too late to instruct a solicitor. The Court, therefore refused the application. The applicant was notified of this decision by a letter dated Monday, 3 August 1970. He received the letter on 5 August, the day after he appeared before the Court.   On 4 August 1970 the applicant appeared before the Inner London Quarter Sessions. Since he was unrepresented by either solicitor or counsel he was offered, and he accepted, the assistance of counsel. A legal aid order was made covering representation by counsel only.   At the hearing, information concerning the applicant's antecedents and previous record were given to the Court. It was stated that the applicant had been unemployed and living on social security for the previous four months. This was not correct, as the applicant had been employed for thirteen days in June. Defence counsel made a speech requesting Leniency but said nothing about the technical nature of the offence to which the applicant had pleaded guilty. He did not explain that a lesser charge, carrying a lower maximum sentence, could have been brought on the facts.   The applicant was sentenced to a total of two years' imprisonment, of which one year was for the offence of attempting to obtain the £6-3-0 by deception and a further year was for breach of a probation order which had been made in November 1969.   On 5 August 1970 the applicant applied to a single judge of the Court of Appeal for leave to appeal against his sentence. His grounds were (inter alia)   (a) that the application form, which he had dishonestly completed, stated that the maximum punishment for such an offense was six months' imprisonment,   (b) that the police witness had given an incorrect account of his antecedent history and   (c) that, having received legal aid only on the day of his trial, he had not chance to explain the mitigating aspects of his case to counsel. The application was refused on 28 January 1971 with the following observations by the judge:   "The Magistrates convicted you of obtaining money by deception and committed you for sentence so that you could in view of your record get up to 5 years. There was a Social Enquiry Report mentioned by your counsel and before the Court and me. It does not help you. There is no reason to alter your sentences."   The applicant renewed his application for leave to appeal, to the full Court of Appeal. On 29 March 1971 he filed additional grounds of appeal in which he pleaded that the offence of which he had been convicted was in essence the same as the offence of making a false declaration on a claim for social security. Had he been convicted of this latter offense, his maximum punishment would have been much less than a year in prison.   His application for leave to appeal was rejected by the full Court of Appeal on 5 April 9171 on the grounds that the sentences were "well deserved". Neither the single judge nor the full Court of Appeal had discussed the fact that the applicant could have been charged on the same facts with a different offence carrying a lower maximum penalty.   COMPLAINTS   The applicant complains that, after he had dishonestly filled in a social security form, he was wrongly convicted and sentenced for a relatively serious offense carrying a maximum penalty of ten years' imprisonment. He had pleaded guilty to the "crime" but had thought that he was pleading guilty to a minor offense carrying a low maximum sentence. It was not until he was sentenced to one year's imprisonment with a further year for breach of probation that he became aware that he had been charged with a more serious offense.   He complains of the fact that he did not obtain full legal aid at Quarter Sessions. He claims that, having obtained legal aid (for counsel) only on the day of his appearance, he had insufficient time to explain the mitigating facts to counsel, who, therefore, was unable to offer a proper defence. The applicant is unable to understand how he can have been sentenced to two years' imprisonment for attempting to commit a crime, when the maximum punishment for the crime, even had it been successfully carried out, should have been less than one year.   From the applicant's original submissions to the Commission it appeared that when he had appealed to the English Court of Appeal he had complained, inter alia, that he had been "browbeaten" by the police into pleading guilty. It was not clear whether he wished to raise this as a complaint before the Commission. He made no clear submissions on it when writing to the Commission.   He alleges the violation of Articles 6 (3), (b) and (c) and 7 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION   The respondent Government   submitted their written observations on admissibility on 6 December 1971 and the applicant submitted his observations in reply on 8 February 1972.   In a partial decision of 29 May 1972 (1), the Commission declared inadmissible the applicant's complaint that he had been "browbeaten" by the police to pleading guilty, as being manifestly ill-founded within the meaning of Article 27, paragraph (2), of the Convention. --------------------- (1)   Not published. --------------------- On 3 and 4 October 1972, the Commission held a hearing of the parties who were represented as follows:   For the applicant:   Mr Conrad Schiemann, Barrister at Law Mr M.D. Pringsheim, of Neilsen & Co., Solicitors.   For the respondent Government:   Mr P. R. N. Fifoot, Legal Counsellor at the Foreign and Commonwealth Office, Agent of the United Kingdom Government Mr Gordon Slynn, Junior Counsel to the Treasury Mr A. H. Hammond, Senior Legal Assistant at the Home Office Mr R. L. Jones, Assistant Secretary at the Home Office and Mr R. J. Clayton, legal Assistant at the Home Office.     SUBMISSIONS OF THE PARTIES   Submissions on question of fact   Only two questions of fact appear to have been in issue in the present case.   1. The applicant stated in his appeal to the Court of Appeal, and again when he presented his case to the Commission, that the social security form, which he had dishonestly completed, bore a warning to the effect that the maximum penalty for failing to fill out the form honestly was six months' imprisonment. The Government maintained that the form contained no such reference to a maximum penalty.   At the hearing before the Commission, counsel for the respondent Government produced a photostat copy of the form which had been completed and signed by J. J. Murphy. It bore no reference to a maximum punishment. Counsel for the applicant did not dispute that this was the form in question and agreed that, on this point of fact, the applicant must have been mistaken.   2. The applicant maintained that on the day of his appearance before Quarter Sessions he was only granted a "dock brief" ten minutes before he was due to appear.   At the hearing counsel for the respondent Government stated that enquiries had been made on this point. Counsel had been assigned to the applicant before the end of the morning hearing on the day in question. His case was not heard until the afternoon. It seemed that counsel had been allotted to the case some two hours before the applicant appeared before the court for sentence. In any case, had counsel for the applicant thought that there was insufficient time to prepare the case, he was fully entitled to request an adjournment. By failing to request and adjournment he had indicated that he had ample time to prepare the case.   The applicant's representative replied that he had been instructed that counsel had been allotted ten minutes before the case came up. As the applicant himself was not present at the hearing before the Commission it was not possible to take the matter further.   Submissions on question of law   Submissions of the respondent Government   In their written observations of 6 December 1971, the Government set out the relevant provisions of English law applicable to a case of this type. It was explained that a person who makes a false statement for the purpose of obtaining a benefit from the Department of Health and Social Security may be dealt with in one of two ways. First, he may be charged with an offence under Section 29 of the Ministry of Social Security Act 1966 which provides that any person who, for the purpose of obtaining benefit or any other payment under the Act, makes any statement or representation which he knows to be false, shall be liable on summary conviction to a maximum of three months' imprisonment and a fine of £1000. Alternatively, he may be charged with the offence of obtaining money by deception under Section 15 of the Theft Act 1968. In this case the maximum punishment is one of ten years' imprisonment.   An attempt to commit a statutory offence is itself a common law offence and will carry the same maximum punishment as the maximum punishment for the substantive statutory offence.   There is no provision in English law which precludes a person from being charged with the more serious offence where the facts are sufficient so support two possible charges of which one is more serious than the other.   The offence under Section 29 of the Ministry of Social Security Act 1966 is a summary offence triable by a Magistrates' Court. The offence under section 15 of the Theft Act 1968 is an indictable offence triable (prima facie) by a Court of Quarter Sessions. However, under Section 19 of the Magistrates' Courts Act 1952, a Magistrates' Court may try an indictable offence summarily if it appears to the Court that the punishment that it has the power to inflict would be adequate and that the circumstances do not require the case to be tried on indictment by a higher court. Before deciding to try such an offence summarily, the Court must obtain the consent of the accused and must also inform him that, after conviction, he may be committed to Quarter Sessions for sentence. He will be so committed if the Court, having obtained information about his character and antecedents, considers that a greater punishment should be inflicted than it has the power to inflict. A Magistrates' Court may on usually impose a sentence of more than six months' imprisonment.   On the facts of the present case it was open to the prosecuting authorities to charge the defendant either with a contravention of Section 29 of the Social Security Act or with the common law offence of attempting to obtain money by deception. The offence of obtaining money by deception is covered by Section 15 of the Theft Act while the attempt to commit this offence is an offence at common law.   During 1970 about 4,000 persons defrauded, or attempted to defraud, the Social Security. In all of these cases it was open to the authorities either to charge the persons involved under the Social Security Act or to charge them under the Theft Act. In fact about 600 prosecutions had been brought under the Theft Act. The prosecuting authorities take note of a number of circumstances when deciding whether to prosecute under the one Act or under the other. One probable reason why the police decided to charge the present applicant with attempting to commit the Theft Act offence, was that this offence was "arrestable". The applicant had no fixed abode. It was necessary, therefore, to charge him with an offence for which he could be held in custody while awaiting trial.   There was also a specific explanation in the present case for the fact that the applicant had been sent to Quarter Sessions for sentence. When he attempted to defraud the Social Security on 24 June 1970, the applicant was in breach of a probation order. This order had been imposed by a court of Quarter Sessions. It was necessary to send him again to Quarter Sessions if the breach of the probation order were to be dealt with. A Magistrates' Court could not have dealt with the breach of probation.   As to legal aid, the Government (Observations, pp. 5 and 6) state that the Criminal Justice Act 1967 provides for legal aid in criminal proceedings. Under Section 74 of the Act, a legal aid order normally authorises representation by both solicitor and counsel. Where a court of Quarter Sessions makes a legal aid order, it may order representation by counsel only, if the case is so urgent that there is no time to instruct a solicitor. In practice it is by no means uncommon for a defendant who is committed for sentence in a simple case to be granted legal aid for counsel only. In 1970, over 2,000 convicted defendants were so represented out of a total of approximately 12,000 committed to a higher court for sentence.   In practice it made no real difference to the applicant that he did not receive legal aid until the day of his appearance at Quarter Sessions. There was ample time for him to present his case to counsel. Had there not been sufficient time, counsel could have requested an adjournment. The points which the applicant needed to discuss with counsel were all relatively straightforward. It was wrong to suggest, as was being suggested on the applicant's behalf during the course of the present case, that counsel should have been granted sufficient time to consider the obscure possibility of raising a specially complicated defence on behalf of the applicant. Counsel had sufficient time to prepare a defence. Had he needed more time in order to cover a specially difficult point, he could have requested it and more time would have been granted.   As to the admissibility of the application the Government therefore submitted as follows:   The applicant did not apply for legal aid when he appeared before the Thames Magistrates' Court on 25 June 1970. His complaint about the inadequacy of legal assistance could not, therefore, relate to those proceedings. He applied for legal aid when he was to appear before the Inner London Quarter Sessions; when he appeared before that Court he was granted representation by counsel who made a speech to the Court in mitigation after first taking the instructions of the applicant. There was no indication that either the applicant, or the counsel, had requested an adjournment. This could have been requested if either felt that there had been insufficient time for the giving of instructions.   All the applicant's complaints were later considered by the Court of Appeal which decided that there was no reason to alter the sentences imposed by Quarter Sessions.   The Government, therefore, submitted that the applicant received adequate legal representation for the purposes of his case and that he did not avail himself of the opportunity of putting before Quarter Sessions, through his counsel, the matters complained of. Furthermore, he did put these matters before the Court of Appeal which decided, after full consideration, that there was no reason to interfere with the sentences. Accordingly, the applicant's complaint that he was not allowed adequate time and facilities for the preparation of his defence and his complaint that he had inadequate legal assistance were both manifestly ill-founded.   Alternatively, and without prejudice to the foregoing, the Government submitted that the applicant's complaints related to matters of English domestic law or to matters which were appropriate to be taken into account in determining the appropriate sentence. The matter had been fully considered by the Court of Appeal and the applicant was therefore inviting the Commission to sit as a tribunal of further instance on matters which had already been determined by that Court. The Government suggested that in this respect the Commission might reject the applicant's complaints as incompatible with the Convention.   Lastly, the Government suggested that there was no evidence of a violation of Article 7 of the Convention. The applicant had not been convicted of an offence on account of an act which did not constitute an offence at the time it was committed. Neither was a heavier penalty imposed than the one that was applicable at the time the offence was committed. Any complaint under Article 7 should be rejected as manifestly ill-founded or, alternatively, as being incompatible with the Convention.   Submissions of the applicant   At the hearing on 3 and 4 October 1972 the representative of the applicant made the following submissions.   First, that there had been a breach of Article 7 of the Convention; secondly, that the English courts had not paid proper attention to this point and, lastly, that the reason why they had not paid proper attention was that there had been inadequate time and facilities for the preparation of the case by counsel at Quarter Sessions. This was, in itself, a breach of Article 6 of the Convention.   The breach of Article 7 of the Convention could be summed up in the maxim "generalia specialibus non derogant". The respondent Government had claimed that the prosecuting authorities were entitled to charge the applicant with an offense under the Social Security Act or with attempting to commit an offense under the Theft Act. This was, in the applicant's submission, incorrect. If a deed could constitute an offence under two enactments, of which one was more widely drawn that the other, then the narrower should be preferred. This was an important question of principle. The purpose of the Convention was to preserve freedom and the rule of law. It was important in this respect that States should not be able to enact vague general provisions providing heavy penalties for ill-defined acts, when the same acts were covered by precise narrow provisions providing lesser penalties. The principle in the present case would be applicable to a case where the State had declared punishable the offence of "acting to the prejudice of the State" and then made use of this notion to cover acts which were already covered by more detailed provisions.   Article 7 (1) of the Convention provided   "... nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed". There had been a violation of this Article. The applicant had been sentenced to one year's imprisonment for an act which, on a proper reading of the law, had been punishable at the time it was committed with a maximum of three months' imprisonment.   There was no indication that the Court of Appeal had considered this question. It had been brought to the attention of the Court of Appeal by the applicant when he filed additional grounds of appeal on 29 March 1971. But, when the full Court rejected the application for leave to appeal on 5 April 1971, there was no indication in the transcript that the matter had been discussed. There was, furthermore, no indication that the Court had considered the question whether the applicant had been validly charged with, and convicted of, the Theft Act offense.   The reason why the point had not been properly taken by the English courts was that adequate time and facilities had not been granted for the preparation of the defence. It was not clear whether the applicant had first been granted counsel ten minutes before his appearance at Quarter Sessions or whether the time had been a little longer. But it was clear that he had needed longer than he was given. There was a complex problem of law in the case and the way in which counsel had been assigned to it had been improper and inadequate in the circumstances. It was true that counsel could have requested an adjournment, but it could only be assumed that he did not do so because he did not know of the existence of the Social Security Act offence at the time when he took the applicant's defence.   Furthermore, the Government's explanation to the effect that the applicant had been prosecuted under the Theft Act because the offence was then "arrestable" was wholly unsatisfactory. It means that the completely fortuitous fact that a defendant had no fixed abode would probably result in his being charged with an offence carrying a maximum punishment of ten years' imprisonment rather than an offence carrying a maximum of three months' imprisonment.   THE LAW   The Commission first recalled its partial decision of 29 May 1972 by which it declared inadmissible the applicant's complaint that he had been "browbeaten" by the police into pleading guilty, as being manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   The Commission then examined in the light of Article 7 (Art. 7) of the Convention his complaint that he was wrongly convicted and sentenced for a relatively serious offense when he thought that he had pleaded guilty to a relatively minor offense. In this respect the Commission recalled its case-law according to which Article 7 (1) (Art. 7-1) "does not merely prohibit - except as provided in paragraph (2) (Art. 7-2)- retroactive application of the criminal law to the detriment of the accused; it also confirms, in a more general way, the principle of the statutory nature of offenses and punishment ('nullum crimen, nulla poena sine lege'); and prohibits, in particular extension of the application of criminal law 'in malam partem' by analogy.   Although it is not normally for the Commission to ascertain the proper interpretation of municipal law by national courts, the case is otherwise in matters where the Convention expressly refers to municipal law, as it does in Article 7 (Art. 7). Under Article 7 (Art. 7) the application of the provision of municipal penal law to an act not covered by the provision in question directly results in a conflict with the Convention, so that the Commission can and must take cognisance of allegations of such false interpretation of municipal law."   (Application No. 1852/63, Yearbook, Vol. 8, pp. 190, 198.)   The Commission's supervisory function, therefore, consists in making sure that, at the moment when the accused person performed the act which led to his being prosecuted, there was in force a legal provision which made that act punishable and that the punishment imposed does not exceed the limits fixed by that provision. In accordance with the decision quoted above, this supervisory function further consists in considering whether the national court, in reaching its decision, has not unreasonably interpreted, and applied to the applicant, the municipal law concerned.   In the present case it is not disputed that Section 15 of the Theft Act 1968 provides that "any person who by any deception dishonestly obtains property belonging to another, with the intention of permanently depriving the other of it, shall on conviction on indictment be liable to imprisonment for a term not exceeding ten years". Nor is it disputed that an attempt to commit this statutory offence is itself an offence at Common Law. Furthermore, the Commission finds that the United Kingdom Court, when convicting and sentencing the applicant for an offence under Section 15 of the Theft Act in no way exceeded an reasonable interpretation of that Act or of its application to the facts of the applicant's case.   An examination by the Commission of this complaint in the light of Article 7 (Art. 7) of the Convention does not therefore disclose any violation of that Article. It follows that insofar as the applicant has alleged a violation of Article 7 (Art. 7) his application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   The Commission has next, ex officio, examined the facts of the case in the light of Article 6 (3) (a) (Art. 6-3-a) of the Convention. This Article grants to everyone charged with a criminal offence the right "to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;". The applicant was charged with the common law offence of attempting to obtain money by deception:   that is to say, with attempting to commit an act which, had he succeeded in committing it, would have been punishable under Section 15 of the Theft Act. The applicant pleaded guilty. He did not request legal aid before he made his plea and, having made it, he was sent to Quarter Sessions for sentence. At Quarter Sessions he was granted legal aid for counsel only. Had he thought that there was insufficient time to instruct counsel, he could have requested an adjournment; this he did not do. Nor when he applied to the Court of Appeal for leave to appeal did he attempt to say that he had not understood the nature and cause of the accusation against him.   It appears from the facts of the case that the applicant was informed of the charge against him in that he was charged with having attempted to commit an offense punishable under the Theft Act rather than under the Social Security Act.   However, the Commission is not required to decide whether or not the facts disclose any appearance of a violation of Article 6 (3) (a) (Art. 6-3-a) of the Convention as, under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law. The mere fact that the applicant has submitted his case to the various competent courts does not of itself constitute compliance with this rule. It is also required that the substance of any complaint put before the Commission should have been raised during the proceedings concerned. In this respect the Commission refers to its constant jurisprudence (see eg decisions on the admissibility of applications No. 263/57, Yearbook, Vol. 1, pp. 146, 147 and No. 1103/61, Yearbook, Vol. 5, pp. 158, 186).   In the present case, the applicant chose to plead guilty to the charge without requesting legal aid and without requesting any further information as to its "nature". It is true that he requested legal aid at Quarter Sessions, but only for the purpose of making a plea in mitigation of sentence. He did not attempt to say that he had not understood the nature of the charge to which he had pleaded guilty. Lastly, when he applied to the Court of Appeal for leave to appeal against his sentence he did not attempt to say that he had not understood the nature of the charge.   It follows that the applicant has not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 (3) (Art. 27-3), of the Convention.   The same ground of inadmissibility applies to the applicant's complaint that the facts of the case constitute a violation of Article 6 (3) (b) (Art. 6-3-b) of the Convention. Article 6 (3) (b) (Art. 6-3-b) grants to everyone charged with a criminal offence the right "to adequate time and facilities for the preparation of his defence".   The applicant has stated that, on the day of his appearance before the Quarter Sessions, counsel was only allocated to his case ten minutes before it was due to be heard. The respondent Government have denied this and have stated that counsel was almost certainly allocated some hours before the case was heard. But the Government have also claimed that had the applicant or his counsel wished for an adjournment of the hearing, then such adjournment could have been requested and would certainly have been granted. The applicant has admitted that no such adjournment was requested.   It follows that the applicant has again not complied with the condition as to the exhaustion of domestic remedies and his application must in this respect be rejected under Article 27 (3) (Art. 27-3), of the Convention.   Lastly, the applicant has complained of a violation of Article 6 (3) (c) (Art. 6-3-c) of the Convention.   This Article secures to everyone the right "to defend himself in person or through legal assistance of his own choosing or, if he has not means to pay for legal assistance, to be given it free when the interests of justice so require".   However, on the facts of the present case there does not appear to be any sign of a violation of this Article. The applicant was granted free legal assistance. It is true that he was refused legal aid for solicitor and counsel, and that he was granted legal aid for counsel only, but there is no indication whatsoever that the applicant needed the help of two lawyers. The requirements of Article 6 (3) (c) (Art. 6-3-c) of the Convention were accordingly met.   It follows that this part of the application is manifestly ill-founded within the meaning of Article 27, paragraph (2) (Art. 27-2), of the Convention.   For these reasons, the Commission DECLARES THIS APPLICATION INADMISSIBLE