CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 mars 1986

.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 European Commission of Human Rights sitting in private on 14 March 1986, the following members being present:                        MM.   C. A. NØRGAARD, President                           G. SPERDUTI                           E. BUSUTTIL                           G. JÖRUNDSSON                           G. TENEKIDES                           B. KIERNAN                           A. S. GÖZÜBÜYÜK                           A. WEITZEL                           J. C. SOYER                           H. G. SCHERMERS                           J. CAMPINOS                       Sir Basil HALL                         Mr.   H. C. KRÜGER, Secretary to the Commission   Having regard to Art. 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (art. 25);   Having regard to the application introduced on 14 January 1985 by P.J.M. against the United Kingdom and registered on 29 August 1985 under file No. 11739/85;   Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;   Having deliberated;   Decides as follows:   THE FACTS   The facts as they have been submitted by the applicant, a British citizen born in 1945 and living in Bath, may be summarised as follows:   On 3, 4 and 7 November 1983 the applicant was tried and convicted in the Bristol Crown Court for receiving a stolen washing machine contrary to Section 22 (1) of the Theft Act 1968.   He was sentenced to six months' imprisonment, subsequently reduced to 28 days' imprisonment on appeal to the Court of Appeal.   During the course of the applicant's trial, two applications were made to the trial judge to order the prosecution to produce to the defence copies of statements made to the police by a third person in November 1981, following investigations of police corruption.   The applicant's counsel wished to use the statements in order to frame questions for cross-examination, although the statements were not intended to be put in evidence before the jury.   The prosecution objected to the production of the statements, claiming that they were privileged and that it would be against public policy to disclose them.   The trial judge refused the first application, which was for the production of both statements in their entirety.   The applicant made a second request for an order that the prosecution be compelled to disclose the statements in an edited form, with reference to allegations of corruption, and such other aspects as might be considered sensitive by the prosecution, deleted.   In refusing this second application the trial judge made the following remark:   "These statements are highly prejudicial to your client, he cannot have it both ways, he cannot edit that stuff out and have this in, it has nothing to do with the case anyway ... it is one of my duties to try and protect defendants against themselves ...   I have read that statement and I do not think the content will assist him."     Previously, in refusing the initial request for the unedited statement to be made available to the defence the following exchange has taken place between the trial judge and the applicant's counsel:   Trial judge:     "reference to that statement, and knowledge of that statement of the jury would do enormous harm."   Counsel:         "That is a different point and one that the defendant has been advised about, and I have firm instructions to use that material in front of the jury despite what damage it may do."   Trial judge:     "I am sure you have given advice about that.   It would probably do enormous harm, and one of my duties is to see that he has a fair trial even if you have instructions that might lead to an unfair trial ..."   The applicant sought leave to appeal against conviction and sentence in respect of this conviction, and also in respect of a separate conviction for a charge of theft, in proceedings where he had been convicted with his brother.   On 17 January 1984 he was granted bail by the Court of Appeal pending the outcome of his applications for leave to appeal.   On 31 July 1984 both of the applicant's applications for leave to appeal against conviction were refused by the single judge and the applicant's legal aid certificate was therefore discharged.   Both the applicant and his brother decided to renew their applications to the Full Court.   The applicant's brother instructed the same lawyers who had represented both brothers in the theft proceedings.   The applicant did not instruct solicitors himself, and renewed his application for leave to appeal in person in respect of both the theft charge and the charge of receiving stolen goods, in respect of which his brother was not involved.   The applicant filed further amplification of his application for leave to appeal and was notified to surrender to the custody of the Court of Appeal on 27 November 1984.   The applicant attended the Court of Appeal on that date.   The first matter which came before the Court of Appeal was the applicant's and his brother's applications for leave to appeal against conviction in respect of the theft charge.   In that respect the Court of Appeal heard counsel for the applicant's brother.   At the close of the morning proceedings the presiding judge granted leave to appeal to the applicant's brother's counsel, and, according to the applicant, turned to the applicant and said:   "The same applies to you, we cannot give leave to one of you without the other.   That ground of appeal applies equally to you."   The applicant contends that the presiding judge then indicated that the court would adjourn for lunch, and would hear the remaining application for leave to appeal after lunch.   The applicant states that this indication was addressed to the applicant's brother's counsel, who reminded the court that he was not acting for the applicant.   The court then adjourned for lunch.   According to the applicant, on reconvening after lunch, the presiding judge, immediately, and without inviting comment from the applicant or anyone else, stated:   "We have considered this application during the lunchbreak and we see no merit in it at all.   We therefore dismiss the application."   This statement was equally directed to the applicant's brother's counsel, who once again reminded the court that he was not acting for the applicant.   He pointed out that the applicant was present in the court and would be able to make submissions to the court.   According to the applicant the presiding judge replied to this suggestion with the words:   "We do not hear from applicants in person, this application is dismissed".   The applicant contends that the presiding judge went on to pronounce judgment without giving any indication of having appreciated the grounds upon which his application for leave to appeal had been made.   The applicant has submitted in support of his application the short transcript of the proceedings before the Court of Appeal but this transcript does not deal with the submissions which were made to the court, or the remarks which the applicant alleges were made prior to the lunch adjournment, or immediately upon the resumption of proceedings after lunch.   The applicant has also submitted a letter dated 18 April 1985 written to his brother's former solicitors by counsel who appeared for his brother in the Court of Appeal, which is in the following terms:   "Thank you for your letter of 22 March concerning the application by (the applicant) for leave to appeal from the Full Court on 27 November last.   On that occasion you will recall that I appeared only on behalf of (the applicant's brother) in relation to his application for leave to appeal against conviction.   When the Full Court granted that application and indicated that it would grant (leave to the applicant) in respect of that indictment alone it is my clear recollection that I sought to intervene on behalf of (the applicant) to invite the Court to hear his submission in support of his application for leave to appeal on the indictment that related to the handling of the washing machine.   Whilst I have no note of the precise words used I was told by (the presiding judge) that it was not the practice of the Court to hear applicants in person.   It was also made clear that the Court had considered the perfected grounds submitted by (the applicant) on his own behalf and it reached the conclusion that it disclosed no arguable point.   There is no doubt therefore that the application of (the applicant) on that indictment was refused without him being given the opportunity of addressing the Court.   I do emphasise that my recollection is unaided by note or transcript but I am in no doubt from the main point from which my confirmation is sought."   COMPLAINTS   The applicant complains first that his trial before the Bristol Crown Court on the charge of receiving stolen goods was unfair for the following reasons:   1.       In refusing the applicant's requests for the production of the statements made by the third party in the corruption investigation the trial judge prevented the disclosure of information which would have assisted the applicant in establishing his innocence.   These statements were requested so that the applicant could properly instruct his solicitor in preparing his defence, and in particular to demonstrate that the police officers involved in preparing the case against the applicant were lying.   2.       The trial judge failed to appreciate that the request for an edited version of the statements to be submitted to the defence was in order to enable the prosecution to edit out such parts of a statement as they considered necessary, and not in order to exculpate the applicant.   3.       The trial judge misdirected the jury on the test of whether the person accused of receiving stolen goods knew or believed the goods to be stolen in failing to stress that the test is a subjective one, whereas in the applicant's contention the fact that the thief told the receiver that the goods were stolen is a circumstance from which a jury may infer that the receiver was aware that the goods were stolen, but it does not raise an irrebuttable presumption that the receiver handled the goods knowing them to be stolen.   In view of the above three points, the applicant complains that he was deprived of a fair and public hearing on the criminal charge against him.   The applicant further complains that he was denied the right to defend himself in person, contrary to Art. 6, para. 3, sub-para. c (art. 6-3-c) and to a fair hearing guaranteed by Art. 6, para. 1 of the Convention (art. 6-1) by virtue of the refusal of the Court of Appeal to hear him in person on his application for leave to appeal.   The applicant points out that the policy consideration against hearing an applicant in person referred to in R v. Daniel ((1977) 64 CR. APP 50 at 53) does not apply to a person not in custody such as himself. Furthermore the applicant contends that the Registrar of Criminal Appeals should have notified him before the hearing of the court's practice of not hearing an applicant in person so that he could have made arrangements to be represented by a lawyer rather than attempting to represent himself.   The applicant points out the possible anomaly which could have arisen, had his application for leave to appeal in relation to the theft charge, in which his brother was also applying for leave to appeal, and was represented by counsel, not been presented by counsel in that way.   The applicant seeks to distinguish his case from the Commission's decision in Application No. 9728/82 X. v. the United Kingdom on the basis that in that case counsel had advised that applicant that there were no grounds of appeal against conviction, but only against severity of sentence.   Notwithstanding counsel's advice in that case, that applicant filed his own grounds of appeal in addition to those already lodged by counsel but, in view of counsel's advice, there was no likelihood of an injustice against him being done.   In the present case, however, the applicant's counsel did advise that his appeal had merit, and would have conducted the application on the applicant's behalf, had not the single judge refused the applicant's application for leave to appeal, or alternatively had the applicant had sufficient sums to be able to pay for representation.   Hence the Full Court's refusal to hear the applicant amounted to an injustice, which the applicant contends was contrary to the Convention.   THE LAW   1.       The applicant complains first that he was denied a fair hearing in accordance with the terms of Art. 6, para. 1 of the Convention (art. 6-1) by the refusal of the trial judge to permit his counsel to have sight of two statements made by a third person in the course of a corruption enquiry into a police officer's conduct not directly connected with the case against the applicant.   He invokes Art. 6 of the Convention (art. 6), which provides as far as material, as follows:   "1.       In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law ...   ...   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;   ...   (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 applicant contends that it was necessary for the proper cross-examination of a witness for the prosecution, namely a police officer, that the statements in question were made available to his defence counsel.   The Commission recalls its Report in the case of Jespers v. Belgium (D.R. 27, p. 61) in which the question of the defence's access to documents held by the prosecution was examined.   The Commission recalled that the guarantees of a fair trial contained in Art. 6, para. 1 (art. 6-1) and Art. 6, para. 3 of the Convention (art. 6-3) must be read as a whole, as guaranteeing the rights of the defence throughout the determination of a criminal charge.   In that case the Commission considered whether the absence of an opportunity for the defence to consult various documents which were in the prosecution file prejudiced the applicant's right to a fair hearing.   The Commission examined this question by reference to an interpretation of the term "adequate facilities" in Art. 6, para. 3, sub-para. b (art. 6-3-b) and recalled that an aim of this provision was to ensure equality of arms between the prosecution and the defence in criminal proceedings.   As the Commission recognised (at para. 57 of its above-mentioned Report) the English text of this provision makes it clear that the facilities which must be granted to the accused are restricted to those which assist, or may assist him, in the preparation of his defence.   In the subsequent paragraph the Commission stated:   "In short, Art. 6, para. 3, sub-para. b (art. 6-3-b) recognises the right of the accused to have at his disposal, for the purposes of exonerating himself or of obtaining a reduction in his sentence, all relevant elements that have been or could be collected by the competent authorities.   The Commission considers that, if the element in question is a document, access to that document is a necessary 'facility' ('facilité nécessaire') if, as in the present case, it concerns acts of which the defendent is accused, the credibility of testimony, etc."   The Commission must therefore examine in the present case whether the statements which were held by the prosecution fall into this category. The Commission notes first that the statements in question were not made by a witness in the proceedings, and that neither the prosecution nor the applicant sought to have the author of the statements called as a witness in the proceedings.   Nor did the content of the statements, in as far as this is revealed from the proceedings relating to their admission in evidence before the trial judge, concern the offences with which the applicant was connected. This is illustrated by the remarks of the trial judge, to the effect that the statements had "nothing to do with the case anyway".   The Commission further notes that the trial judge considered that the material which the applicant sought to have made available to his counsel for the purposes of cross-examination was highly prejudicial to the applicant's case, and would jeopardise his having a fair trial. The Commission recognises that the trial judge is in an inherently better position than the Commission itself to evaluate the immediate effects which certain documents might have on the course of a trial, if introduced into the proceedings, including the effect which they may be expected to have on a jury.   Furthermore, the applicant's submissions to the Commission do not suggest that the material which the applicant sought his counsel to have access to was relevant to the offences with which the applicant was charged, or otherwise material towards the applicant's defence viewed as a whole.   In these circumstances, the Commission finds no indication that the refusal to produce copies of the statements concerned affected the fairness of the proceedings and the Commission therefore considers that this part of the application is manifestly ill-founded within the meaning of Art. 27, para. 2 of the Convention (art. 27-2).   2.       The applicant further complains that he was not permitted to address the Full Court of Appeal in relation to his application for leave to appeal against his conviction for the offence of receiving goods contrary to S. 22 (1) of the Theft Act 1968.   He contends that Art. 6, para. 3, sub-para. c (art. 6-3-c) and Art. 6, para. 1 (art. 6-1) of the Convention were both breached by virtue of his not being able to be heard by the Full Court.   Art. 6, para. 3, sub-para. c (art. 6-3-c) provides that everyone charged with a criminal offence shall have the right:   "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."   The Commission recalls that it has previously had to consider the operation of the leave to appeal procedure before the Full Court of Appeal in criminal matters and in particular the right for an applicant for leave to appeal to be present at the hearing of such an application.   The Commission refers in particular to its decision on the admissibility of Application No. 9728/82, X. v. the United Kingdom, which concerned the absence of the applicant from proceedings for leave to appeal before the Full Court of Appeal.   The Commission recognised in that decision that the rights guaranteed by Art. 6, para. 1 (art. 6-1) and Art. 6, para. 3 of the Convention (art. 6-3) fall to be considered with the other rights of the defence in the context of an evaluation of the fairness of the proceedings as a whole.   At the same time, although Art. 6 of the Convention (art. 6) does not guarantee an appeal in criminal proceedings, where an opportunity to seek an appeal is provided under domestic law, the guarantees of Art. 6 (art. 6) continue to apply to the proceedings on appeal since once an appeal is sought, the subsequent applications form part of the whole proceedings which "determine" the criminal charge at issue.   In the present case the Commisison considers that it must examine the powers which the Court of Appeal could exercise and the form of the proceedings before the Court of Appeal in order to determine whether the applicant's rights under Art. 6 of the Convention (art. 6) were respected by the fact that he was not permitted to address the Court, although he was permitted to be present at the proceedings.   One of the principal issues which lie at the heart of the requirement of a fair trial imposed by Art. 6 of the Convention (art. 6) as interpreted by the Commission is the concept of equality of arms.   In the present case there was no violation of this principle to the applicant's detriment, since the prosecution were not present in the proceedings for the application for leave to appeal, although the applicant was.   As far as the powers of the Court of Appeal are concerned, the Commission notes that, under the terms of S. 11 (3) of the Criminal Appeal Act 1968 (as amended by S. 56 and Schedule 8 of the Courts Act 1977 and Schedule 3 of the Criminal Courts Act 1973), the Court of Appeal shall:   "So exercise their power ... that, taking the case as a whole, the applicant is no more severely dealt with on appeal than he was dealt with by the Court below."   Furthermore, where, as here, an applicant is at liberty it would appear that the Court has no power to order that any period spent awaiting appeal should not count towards sentence under S. 29 of the Criminal Appeal Act 1968.   The proceedings on appeal do not therefore constitute a full re-hearing of the case, and the Full Court's task is to review the conviction and the sentence imposed by the trial judge.   Furthermore, the sentence must be manifestly excessive before the Full Court would amend or alter it.   In the present case, the proceedings themselves were initiated by the applicant's application for leave to appeal, which was renewed following the refusal of his original application by the single judge.   The applicant was able to file written submissions to the Court in support of his application for leave to appeal and these were before the Full Court when it heard the applicant's application, as was also the transcript of the proceedings in the Court below.   In these circumstances, and in the light of the fact that the severity of the applicant's sentence could not be increased by the proceedings before the Full Court of Appeal, and in view of the nature of the arguments submitted by him and the absence of the prosecution during these proceedings, the Commission concludes that the fact that the applicant was apparently unable to address the Full Court in person did not make the proceedings unfair and did not violate the applicant's rights of defence within the meaning of Art. 6 of the Convention (art. 6).   It follows that this aspect of the applicant's complaint is manifestly ill-founded within the meaning of Art. 27, para. 2 of the Convention (art. 27-2).   For these reasons, the Commission   DECLARES THE APPLICATION INADMISSIBLE   Secretary to the Commission                  President of the Commission   (H.C. KRÜGER)                                 (C.A. NØRGAARD)