CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 18 juillet 1973

.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   I.    The facts presented by the parties and apparently not in dispute between them may be summarised as follows:   1.    The first applicant, Mr X was born in India in 1932 and, when lodging this application, was detained in prison at Albany, Isle of Wight. His nationality is not stated.   The second applicant, Mrs X is a citizen of the United Kingdom, born in 1916 and resident at M., Cheshire.   Both applicants are represented by Mr I.A. Davies of Messrs. Kingsley, Napley & Co., a firm of solicitors practising in London.   2.    The application concerns the applicants' trial at the Central Criminal Court in London in 1969.   The facts as presented by the prosecution at the trial were, briefly, that in 1965 the applicants formed a company known as T. Limited of which they were both sole shareholders and directors. The business was that of brokers and finance agents mainly concerned with house mortgages. Between June 1967 and March 1969 various clients, who gave evidence at the trial, paid a total of £18,000 by way of deposits on houses which they wanted to buy in the hope that the rest of the money would become available by way of mortgages arranged by the applicants. None of these clients succeeded in getting a house and only about £800 of the money obtained by the applicants by way of deposits was returned.   3.    On .. July 1969 Mr and Mrs X were charged respectively with 28 and 21 offenses of fraudulent conversion and theft. It became apparent a fortnight later that original estimates as to the time needed for the trial were over optimistic and it was anticipated (contrary to what was believed when they started) that the proceedings might last until November. Accordingly the jury was discharged to enable individual members to fulfil commitments they had not anticipated would have been prejudiced by the trial, and also to enable the handwriting of certain documents to be examined, at the request of the defence, by a handwriting expert. No objection was raised to this procedure by the applicants and, pending the holding of a new trial, they were released on bail.   4.    The trial was recommenced on .. September 1969 before a new judge and jury, and on .. November 1969 after a trial lasting 6 weeks (1) Mrs X was convicted on 12 counts of fraudulent conversion and 4 counts of theft (2) and was sentenced to 18 months' imprisonment on each count, and the sentences to run currently; Mr X was convicted on 18 counts of fraudulent conversion and 4 counts of theft (2) and sentenced to 5 years' imprisonment on each count, the sentences to run concurrently. He was subsequently ordered to pay compensation amounting to £5,497. ----------------------------------------- (1)   The "Short Transcript" of the trial (184 pages) has been submitted to the Commission.   (2)   The offenses charged as fraudulent conversion and those charged as theft were essentially of the same nature, the change of nomenclature in the case of the latter reflecting a different formulation in the Theft Act 1968, which had come into operation be the time they were alleged to have been committed. -----------------------------------------   5.    Mr X applied to the Court of Appeal for leave to appeal against conviction and sentence; Mrs X applied for leave to appeal against sentence and for an extension of time in which to apply for leave to appeal against conviction.   The grounds relied upon by the applicants may be summarised briefly as follows. They maintained that the verdicts were against the weight of evidence; that the judge had wrongly refused to allow two defence witnesses to be treated as hostile to the defendants; that the judge had alleged that they were guilty of forgery, although they had not been charged with that offence; and that he had misdirected the jury on the law and facts and approached the trial on the basis that they were guilty, displayed this attitude to the jury and made too many and too intemperate interruptions. Mrs X also alleged that pressure had been brought upon them to plead guilty. Both complained that their sentences were excessive.   All applications were refused by the single judge of the Court of Appeal on .. July 1970, except that he granted an extension of time for Mrs X to appeal against conviction. In his reasons for dismissing the applications the single judge remarked that the evidence against both applicants was overwhelming and that he considered the sentences were right.   6.    The applicants ' renewed applications were examined by the full Court of Appeal on .. October 1970. After considering the "concise grounds of appeal" (in all 102 pages of manuscript) submitted by the applicants and after reviewing the facts of the case the Court of Appeal found that there was no reason to interfere with the convictions and that the sentences were lenient. Accordingly the applications were refused. In the case of Mr X the court ordered that 91 of the days spent in custody awaiting his appeal should not count towards his sentence, because he had persisted in his application despite consideration by the single judge of his very full representation and despite having received the judge's opinion, with the refusal of their applications, that there was no substance in them and that the case against them was overwhelming. A similar order was not made in the case of Mrs X because the court assumed "in charity" that her persistence in the application was the responsibility of Mr X.   II.   Complaints   1.    With regard to their trial at first instance, the applicants complain that they were wrongly convicted and sentenced. They submit in particular that the trial was unfair, in that:   - the judge demonstrated throughout the proceedings that he was biased against them and convinced from the outset of their guilt;   - the judge interrupted defence counsel to such an extent and addressed them in such terms that counsel were unable to conduct the defence properly;   - the judge's summing-up weighed against the applicants;   - when sentencing them, the judge indicated that the sentence might have been reduced had they pleaded guilty.   The applicants also maintain that the evidence against them on each of the counts on which they were convicted was unsatisfactory and that allegations of forgery were irrelevant and untrue.   2.    They further submit that the Court of Appeal could not have examined their case thoroughly in the time in which it dealt with their applications for leave to appeal.   3.    The applicants allege violations of:   - Article 6 (1), (2) and (3) (c); - Article 7 (1); and - Article 14 of the Convention.   III. Proceedings before the Commission   1.    The Commission decided on 11 February 1972 that the United Kingdom Government should be invited to submit its observations on the admissibility of the case, in particular, in respect of the question to what extent the conduct of the trial by the trial judge, especially in the absence of the jury, might have affected the applicants' right under Article 6 (1) of the Convention to a fair trial.   2.    The Government's observations were submitted under cover of a letter of 12 June 1972. The applicants' observations in reply arrived on 28 December 1972.   IV.   Submissions of the parties   1.    The respondent Government submit that the applicants' complaints mentioned under II, 1 above were all raised in their applications for leave to appeal. In examining these applications the Court of Appeal gave full and substantive consideration to the complaints and expressed the following view:   "Having considered all the complaints and contentions and requests put forward by the applicants, this court finds no reason whatever to interfere with the convictions. As the applicants were informed by the single judge (of the Court of Appeal), the case against them was overwhelming. There is no justifiable complaint which can be made of the summing up and the jury, who heard and saw all the witnesses, reached the only conclusion at which a sensible jury could have arrived."   The Court of Appeal recognised that the trial judge did at one point express very strong views both as to the merits and conduct of the defence, but they pointed out that these views were made in the absence of the jury and were wholly unknown to them. Nor did it seem to the Court of Appeal that the trial judge's observations as to the repetitious and irrelevant cross-examination were unjustified. The Government observe in this connection that under English criminal law and procedure a judge has a duty to ensure that inadmissible evidence (including irrelevant evidence) is excluded and that witnesses are not subjected to unfair or oppressive cross-examination.   As regards the trial judge's remarks, when passing sentence, to the effect that, if the applicants had pleaded guilty, their sentences might have been reduced, it is clear that the judge did not for that reason increase their sentences but rather refrained from reducing what he deemed to be the proper sentence. It is, of course, correct that, if the Court of Appeal consider that a trial judge had improperly exercised pressure on a defendant to plead guilty and that such pressure had prejudiced his case, thy may and, indeed, should in an appropriate case allow the appeal but it is clear that in the present proceedings, after a thorough review of the evidence and of the judge's conduct in conducting the trial, the Court considered that the applicants' case had not been prejudiced. They said:   "It is complained that the applicants were subjected to pressure from the (trial) court to plead guilty and that this prevented them from being able to put forward their defence as well as they otherwise would have done. It may be noted that it did not prevent them putting forward their defence in oppressive detail and with sustained energy".   The Government conclude that there has been no violation of the applicants' right under Article 6 (1) of the Convention to a fair trial or to a presumption of innocence laid down in Article 6 (2) of the Convention.   2.    Without prejudice to the above conclusion the Government further submit that, if (which they deny) the conduct of the trial judge was such as to influence the jury against the applicants, this would have been rectified by the decision of the Court of Appeal. In this connection they refer to the Commission's decision on the admissibility of application No. 3860/68 (Collection of Decisions, Vol. 30, pages 70, 74-75).   3.    Accordingly, the Government submit that the complaints relating to the applicants' trial at first instance should be rejected as manifestly ill-founded within the meaning of Article 27, paragraph (2), of the Convention.   4.    In the alternative, the Government argue that these complaints are in substance the very issue which were raised before the Court of Appeal and which were considered by that Court to give the applicants no ground for obtaining leave to appeal against the conviction or sentence. The applicants are, therefore, in effect inviting the Commission to sit, as a tribunal of further instance, on issues that have already been fully considered by the Court of Appeal. While the Government do not seek to contend that the Commission may not, in appropriate cases, examine issues that have already been canvassed before domestic courts or tribunals, nevertheless, having regard to the facts of this particular case, it would be wholly consistent with the settled practice and jurisprudence of the Commission for the latter to decline to exercise its jurisdiction in this way.   Accordingly, the Government submit that the application so far as concerns these issues should, on this ground, be rejected as incompatible with the provisions of the Convention within the meaning of Article 27, paragraph (2), of the Convention.   5.    In respect of the complaint of a breach of Article 6 (2), the Government further observe that no evidence has been submitted which discloses a breach of this provision except for the general allegations of bias on the part of the trial judge as described above. The applicants were presumed innocent until they were found guilty by the jury and the burden of proving guilt remained with the prosecution. Accordingly, it is submitted that, insofar as the above complaint is considered to raise an issue which is separate from those allegations, it should be rejected as being manifestly ill-founded.   6.    With regard to the applicants' complaint that the Court of Appeal inadequately examined their application for leave to appeal the Government refer to the judgement of the Court of Appeal, which they submit. In their opinion, the careful and detailed consideration of the grounds of appeal in that judgment is, by itself, sufficient refutation of the allegation. They conclude that this complaint should be rejected as being manifestly ill-founded.   In the alternative, it is submitted that this complaint should be rejected as incompatible with the Convention. The Government refer in this connection to the Commission's decision on the admissibility of Application No. 2749/66 (Collection of Decisions, Vol. 24, pages 98, 110).   7.    The applicants submit that the right, under Article 6 (1) of the Convention, to a fair trial includes the right to a trial which must be seen to be fair. The Government's observation that the trial of the applicants was reviewed by the Court of Appeal has no relevance to the question of whether the trial was fair or not. Nor would such a review necessarily correct an injustice resulting from an unfair trial, since the Court of Appeal may not necessarily be reviewing the facts which would have emerged had the trial been a fair one.   8.    The applicants consider that their complaints are largely similar to those in the case of B. (55 Criminal Appeal Reports, page ..). The trial judge in that case was Judge Y. who was also the trial judge in the applicants' case.   Parker L.C.J. said in the B. case:   "Complaint is made of what can only be described as an outburst by the trial judge in the absence of the jury halfway through the case for the prosecution to the effect that the appellant was plainly guilty, and that the time of the Court was being wasted."   The opinion of the Court of Appeal in that case was that the trial judge's conduct had been wholly improper for these reasons:   (a)   "It was putting extreme pressure on the appellant to plead guilty, whereas after advice from his counsel the choice of plea was his. Instead, if as a result the appellant had changed his plea, the Court could not have allowed his conviction to stand."   (b)   "It was bound to make the appellant think that the judge had taken so adverse a view of his case that he was unlikely to obtain a fair trial."   (c)   "Without knowing what advice counsel had in fact given to the appellant before arraignment, the judge forcibly conveyed what that advice should have been and should be now, thus an attempt to interfere with the independence of counsel in his duty to give the appellant the best advice he could."   (d)   "Resulted in counsel's feeling that he must excuse himself by revealing what advice he had in fact given, something which should never be revealed; indeed the revelation of this advice and counsel's agreement with the judge's view destroyed the relationship of confidence between client and counsel. Counsel would appear to the appellant to be siding with the judge, and indeed the appellant expressed a view that in all the circumstances he should defend himself, and counsel expressed a view that it would be in the appellant's interest that he should withdraw."   (e)   "It was wholly unreasonable in all the circumstances to refuse the appellant's request that the case be adjourned until the next morning in order that he might be in a position to take over the defence, thus enforcing the appellant to continue with counsel with whom he no longer had full confidence."   9.    The applicants submit that remarks by the trial judge in their case can be compared to those quoted by the Court of Appeal in the B. case. They refer in particular to the following passages in the Short Transcript:   (a)   "JUDGE Y:   I can only judge on the evidence before me thus far, and as I say this evidence strengthens my view, and may I put it this way and as strongly as this, Mr. S., in my view this is an undefended case. I put it as strongly as that."   (b)   "JUDGE Y:   Mr G., now the jury has gone I want to tell you that I see now that we have got another seventeen or eighteen alleged victims coupled with in some cases other witnesses and certainly we have police evidence to come, and I am very, very concerned indeed about the cost of this case to the Legal Aid Fund, and of course the cost of the prosecution in any event. You cannot have failed to have noticed that from time to time today on several occasions the jury have been reduced to laughter and that it is not the first time in the last few days that has been the position, and it cannot have escaped you the moments at which they have laughed, and I think I can put it in no other way than this, and you will understand it:   how much longer is this farce going on ?   As I say every day, as I said the other day, last week, I cannot remember, every day this case goes on the evidence we hear only strengthens the view which I obviously have formed of this case, and it is almost true to say that every document that is put in by the defence in cross-examination strengthens it still further if it needs any further strengthening. How much longer is this farce going on?   MR G: I am not sure how I can answer that question of your Lordship's. The only answer I can give, my Lord, and it is one which of course has crossed your Lordship's mind, presumably until the case is over.   JUDGE Y:   Well, if it must, it must. But I am very disturbed about it. I don't take kindly, nor does any judge, to hopeless cases being contested at length at public expense. If there is even the ghost of a possibility of a defence I am the last to stop it, and I will give every assistance to the defence to clothe the ghost with substance.   MR G:   Your Lordship has said what your Lordship has said. It has been noted, my Lord.   JUDGE Y:   Thank you.   MR G:   I don't think there is anything more I can say to your Lordship.   JUDGE Y:   No. You personally cannot of your own volition, of course, give me an answer direct, obviously, but I think it is right that I should say it and I think it is in your client's interest that I should say it."   (c)   "JUDGE Y:   I would like you to take instructions and to consider the position. I take a very grave view of that document, quite apart from a mass of others, but that one - an extremely grave view and in the light of what I said the other day I would like you to consider the matter with your clients bearing in mind that what I am saying they may not appreciate it but I do think it, what I am saying is in their interests as well, you know.   MR S:   My Lord, may I say this, I was so concerned about what your Lordship quite obviously with our interests at heart told Mr G. that the partner dealing with it and I am not sure is the young man sitting in front of me, Mr G., I and Mr W. came late last night and discussed it with the clients in full, and I tell your Lordship frankly Mr X.'s instructions are that he wants evidence to be called and he wants to deal with each item, and he has explained things which at first light do look very black for him, and all I can say is whatever the reality counsel is always in the invidious position of having to do the best they can with what they have not. I am in that position. It might be that they have heard each time your Lordship has said that, I have impressed on them the seriousness of it, and each time they have given points to their solicitors, to Mr G., which convinced me that at this moment they wish to defend the proceedings, I can only say that."   10.   The applicants submit that the consequences of these exchanges between judge and counsel have been the same as in the B. case, namely:   (a)   extreme pressure was put on the applicants to plead guilty. Indeed the fact that it would be in their best interests to do so was reiterated. If that were so, then the conclusion should have followed in the applicants' case, as it did in the case of B., that, had they changed their plea, then the Court of Appeal would not have allowed the conviction to stand;   (b)   it was bound to make the applicants think the judge had taken so adverse a view of their case that they were unlikely to obtain a fair trial. At the outset the judge was saying that the evidence strengthened the view that he had already formed that the case was not one in which a defence was applicable;   (c)   the judge forcibly conveyed to counsel what their advice to their client should be;   (d)   although it did not result in counsel feeling that they must excuse themselves, it did result in senior counsel saying that he thought his position invidious, and that he was attempting to make do with the material at his disposal;   (e)   the question of an adjournment obviously did not arise in the applicants' case.   The applicants further submit that the only material difference between their case and the B. case is that their counsel did not ask to withdraw whereas in the B. case counsel did make that request. But the different reactions of counsel to remarks by the judge do not affect the issue of whether or not those remarks were proper and, if they were improper, the further issue of whether or not the applicants received a trial that could be described as fair.   11.   The applicants acknowledge that the remarks by the trial judge, concerning the cost of the Legal Aid Fund when hopeless cases were being contested, was made in the absence of the jury. However, the judge was careful to make clear that he intended the remarks to be understood by the applicants, and so the consequences would have been same as in the B. case where also the jury was absent when similar remarks were made.   12.   With regard to the Government's observation that the Court of Appeal in the applicants' case found the evidence against them overwhelming, the applicants point out that the Court of Appeal found B. an "open and shut" case but still quashed the convictions because the trial had not been seen to be fair, regardless of their view as to the strength of the evidence.   13.   Parker L.C.J., in delivering the judgment of the Court of Appeal in the B. case, said that neither the judge's partiality nor the improper pressure brought to bear on the appellant was in itself a reason for saying that the trial was unfair. He then continued:   "However, the matter does not rest there because in the result the appellant was forced to continue with counsel with whom he had lost confidence, and counsel who himself felt that it was in the appellant's best interests that he should no longer continue to act. It was clear that in those circumstances counsel would be gravely handicapped in the defence especially before a judge who had expressed his strong views as to the appellant's guilt, and as to the waste of time involved in fighting the case. To present an improbable defence is difficult enough; but if counsel has to do so in the circumstances outlined above, this task is made almost impossible."   The applicants submit that the obvious partiality shown by the trial judge in their case resulted in an unfair trial. In particular, counsel were handicapped in conducting the defence and made clear what their own view of their position was. A complaint was made during the trial by one of the applicants to the Bar Council about the conduct of Mr. S. and, whatever the grounds given for that complaint, it is a fact that the applicants lost confidence in their counsel.   The Court of Appeal in the applicants case took the view that the defence had been submitted with energy and oppressive detail. However, the applicants consider that insufficient evidence was introduced in their defence:   counsel pointed out at their trial on .. October 1969 that not even one-tenth of the documents bearing on the case had been produced.   14.   The applicants also complain of many hostile interruptions by the trial judge during the cross-examination of witnesses and of his unwillingness to allow the defence case to be put. They submit that these interruptions constitute a further ground for calling their trial unfair and they refer in particular to the following passages of the Short Transcript:   (a)   "JUDGE Y:   I am going to tell you something. I don't want to say this, but you compel me to say it. I have been on the Bench now for something over five years and before that I was a Recorder in various cities for I think ten years, so I have quite considerable duties and experiences. This is, of course, the case because I have no means of estimating it accurately but I would think that if I were to add up all the occasions in all the cases that I have ever tried up to this one, the interruptions which I have found necessary to make would equal in total those which I have found it necessary to make in this case."   (b)   A passage where the question of relevancy was given a very restricted interpretation. Judge Y. said that the issue involved in the case was a very simple one - it was a question of what the applicants had done and accordingly he was reluctant to allow what the prosecution witnesses had done to be examined. However, it was the essence of the defence case that prosecution witnesses were lying and consequently many of the questions put by the defence counsel seem to have been directed at the issue of whether the prosecution witnesses were to be considered truthful people.   (c)   A passage where the question of whether someone in fact possessed money that he was supposed to have given the defendant was queried by defence counsel as was the suspicious way in which it was supposed to have been obtained. But the judge considered the questions to be irrelevant.   (d)   A passage where the judge refused to allow a question by defence counsel but when counsel for the prosecution intervened to say that he would wish to put the matter to the defendant should he go into the witness box the question was then allowed. The judge wondered what was the relevance of the witness having received £2,500 from the defendant which was a greater sum than the defendant was alleged to have taken from the witness.   15.   In connection with their criticism that the judge was, by his interruptions, not allowing the defence to be properly put, the applicants also refer to a passage where the judge interrupted defence counsel to tell him that it might be the case that the witnesses were mistaken and not lying. In his summing-up the judge asked the jury to consider whether a contradiction between two of the prosecution witnesses might result from one of them being mistaken and not from him lying. The applicants submit that, in view of what had already occurred, the jury might have been more willing to accept the possibility put forward by the judge than the suggestion that the prosecution witnesses were lying. The defence case was that the witnesses had, in fact, been told what to say by Detective Sergeant R. but the judge seemed to discount such a suggestion by his reference to that "wicked fellow, Detective Sergeant R."   16.   The applicants submit that the summing-up can be further criticised on the ground that it showed partiality. For example, the judge:   (a)   referred to the applicants as having a "new device adopted to extract money from the victim";   (b)   said that Mr X. had telescoped two meetings that he had with the police officers into one when it was X.'s contention that only one meeting had taken place in which there would be no question of telescoping;   (c)   seemed anxious to separate whatever evidence was favourable to the defence in the case of one of the prosecution witnesses from the evidence given by the other prosecution witnesses, although it had been throughout accepted that all the evidence contained in the prosecution case stood or fell together.   17.   In passing sentence the judge repeated what he had said earlier with regard to time and money being wasted in a case where it was apparent to him, even at the beginning, that there was no defence to the charges:   "This trial has provided a most shocking example of an abuse of the Legal Aid System in that the defence in my judgment had an absolutely hopeless case, but nevertheless in spite of that fact it has been contested right through to the bitter end. It is conduct like that that helps to create the backlog of work, a heavy backlog of work, at this Court, thus causing many people to wait weeks and sometimes months before they can come to trial, sometimes being kept in custody.   Apart from the time taken and the waste of time taken there is, of course, the very important matter of expense. The costs of the prosecution and the burden upon the Legal Aid Fund will be very heavy, and for the most part it has been spent entirely unnecessarily, completely wasted. One might as well have thrown it down the drain. I say that because in my view the evidence against each of you was absolutely overwhelming. There was not even a glimmer of a ghost of a defence, not even at the beginning of the case, and as each day went on so even if there had been a glimmer it diminished more and more as the days went by."   21.   The applicants conclude   that the grounds put forward disclose a case for saying that they received an unfair trial with the result that the rights granted to them by Article 6 (1) of the Convention have been violated. They request the Commission to declare their application admissible.   THE LAW   1.    The applicants complain that their trial at first instance was unfair, in that the trial judge showed bias against them and prevented counsel from conducting their defence properly.   The Commission has examined this complaint under Article 6 (1) (Art. 6-1) of the Convention which provides that, in the determination of any criminal charge against him, everyone is entitled to a fair hearing by an impartial tribunal. It is not the task of the Commission to consider whether the present case is comparable to that of B., which was decided by the Court of Appeal under English law.   The tribunal which tried the applicants at first instance was composed of a judge and a jury. The Commission notes that the applicants' complaints concern only the conduct of the judge and that some of the views expressed by the judge, to which the applicants object, were made in the absence of the jury which had to decide on the applicants' guilt or innocence.   However, it was the judge who conducted the trial and who fixed the applicants' sentences, and the Commission has decided in previous cases that Article 6 (1) (Art. 6-1) applies also to proceedings on sentences. For example, the Commission stated in its final decision on the admissibility of Application 4623/70 (X. v. the United Kingdom, Collection of Decisions, Vol. 39, pages 66-74) at page 74 that :   "the determination of a criminal charge, within the meaning of Article 6 (1) (Art. 6-1) of the Convention, includes not only the determination of the guilt or innocence of the accused, but also in principle the determination of his sentence; and the expression 'everyone charged with a criminal offence' in Article 6 (3) (Art. 6-3) includes persons who, although already convicted, have not been sentenced.   The Commission observes that questions of sentence may be closely related to questions of guilt and innocence, and that in the criminal procedure of many States Parties to the Convention they cannot be separated at this stage of the proceedings.   The Commission has also had regard to its case-law and in particular to its decisions on the admissibility of Applications Nos. 596/59 (Pataki v. Austria), Yearbook, Vol. III, p. 356, and 789/60 (Dunshirn v. Austria), Yearbook, Vol. IV, p. 187. In these two cases the Commission declared admissible, and examined on the merits under Article 6 (Art. 6) of the Convention, complaints which related solely to proceedings on sentence before the Regional Court of Appeal (Oberlandesgericht) in Vienna. The Commission reached the opinion that the proceedings in these cases were not in conformity with the Convention."   It follows from the case-law that the views expressed by the trial judge in the absence of the jury must also be taken into account in the determination of the applicants' complaint under Article 6 (1) (Art. 6-1) of the Convention.   2.    The Commission further observes, however, that the question whether a trial conforms to the standard laid down by Article 6 (1) (Art. 6-1) of the Convention "must be decided on the basis of a consideration of one particular aspect of the trial or one particular incident. Admittedly, one particular incident or one particular aspect, even if not falling within the provisions of paragraphs 2 or 3 (Art. 6-2, 6-3), may have been so prominent or may have been of such importance as to be decisive for the general evaluation of the trial as a whole. Nevertheless, even in this contingency, it is on the basis of an evaluation of the trial in its entirety that the answer must be given to the question whether or not there has been a fair trial." (See the Commission's Report in the Nielsen case, Yearbook of the European Convention on Human Rights, Vol. 4, pages 494 to 588, at pages 548, 550).   The Commission has accordingly evaluated the applicants' trial in its entirety, on the basis of the parties' submissions, and, in particular, the Short Transcript of the trial. It agrees with the finding of the Court of Appeal that the trial judge expressed "some very strong views both as to the merits .... and the conduct of the defence". The Commission finds that the expression of those views was as such objectionable, in that it has raised doubts as to his impartiality.   But the applicants' trial must be considered as a whole in order to see whether there has finally been a fair trial or in fact a denial or miscarriage of justice. The following elements are then also relevant:   (1)   It appears from the Short Transcript of the trial that, as the Court of Appeal subsequently found, observations by the trial judge as to the repetitive and irrelevant cross-examination by defence counsel were essentially justified. In this connection the Commission recognises that a judge has a duty to ensure that inadmissible evidence including irrelevant evidence is excluded and that witnesses are not subjected to unfair or oppressive cross-examination.   (b)   As regards the pressure put on the applicants to plead guilty, it further appears from the course of the trial, as reflected in the Short Transcript, that defence counsel were not in fact intimidated by the trial judge. Nor does it seem that their trial was unfair, in that defence pleas were ignored or excluded. The Commission accepts in this respect the following statement by the Court of Appeal:   "It is complained that the applicants were subjected to pressure from the (trial) court to plead guilty and that this prevented them from being able to put forward their defence as well as they would otherwise have done. It may be noted that it did not prevent their putting forward their defence in oppressive detail and with sustained energy".   (c)   The Commission finds that no justifiable complaint can, under Article 6 (1) (Art. 6-1) of the Convention, be made of bias or inadequacy in the summing-up by the trial judge (Short Transcript, Vol. 2, pages 1 to 88).   (d)   The Commission accepts the finding of the Court of Appeal that the sentences imposed were lenient. It is true that, when sentencing the applicants, the trial judge pointed out that a confession would have constituted a mitigating circumstance. This, however, in no way violated the applicants' right to a fair trial. It is clear from the statements by the trial judge that he did not increase the applicants' sentences on the ground that they had affirmed their innocence throughout the trial but rather refrained from reducing what he deemed to be the proper sentence, having regard to the gravity of the offenses concerned.   Having considered the trial as a whole, the Commission therefore concludes that there was finally no violation of the applicants' right under Article 6 (1) (Art. 6-1) of the Convention, to receive a fair hearing by an impartial tribunal.   3.    In its examination of the applicants' complaint concerning the conduct of the trial judge, the Commission has also had regard to Article 6 (2) (Art. 6-2) of the Convention, which provides that everyone charged with a criminal offense shall be presumed innocent until proved guilty according to law. The Commission, referring to its considerations set out under 2 above, finds that this presumption has been observed at the applicants' trial. In particular, it is clear from the terms of the summing-up by the trial judge that the applicants were presumed innocent until they were found guilty by the jury and that the burden of proving guilty remained with the prosecution throughout the trial.   4.    An examination of the remainder of the application equally does not disclose any appearance of a violation of the rights and freedoms set forth in the Convention.   The Commission therefore concludes that 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.