CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 7 mai 1987

.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 }  AS TO THE ADMISSIBILITY   Application No. 11816/85 by Paul McWILLIAM against the United Kingdom             The European Commission of Human Rights sitting in private on 7 May 1987, the following members being present:                       MM. G. SPERDUTI, Acting President                         J.A. FROWEIN                         F. ERMACORA                         G. JÖRUNDSSON                         G. TENEKIDES                         B. KIERNAN                         A. WEITZEL                         H.G. SCHERMERS                         G. BATLINER                         H. VANDENBERGHE                    Mrs   G.H. THUNE                    Sir   Basil HALL                    Mr.   F. MARTINEZ                      Mr.   K. ROGGE, Head of Division acting as                    Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 9 July 1985 by Paul McWILLIAM against the United Kingdom and registered on 14 October 1985 under file No. 11816/85;           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 which do not appear in dispute between the parties may be summarised as follows.           The applicant is a British citizen born in 1944 and currently serving a prison sentence at Dartmoor.   He is represented by Mr.   Lambert, a solicitor practising in Plymouth.           On 22 March 1984 the applicant was convicted of conspiracy to commit burglary.   He was tried with three others who were convicted of conspiracy and other offences.   The applicant and one co-defendant, who had pleaded guilty, were sentenced to seven years, the other two defendants to four years imprisonment.   The applicant had a record of offences and, on 25 January 1982, he had been released on parole from a twelve year sentence.           The applicant applied for leave to appeal against conviction and sentence before a single judge of the Court of Appeal.           In the first instance the single judge is charged with the duty of considering whether an application for leave to appeal has sufficient merit to justify the matter being argued before the Court of Appeal.   Where he is of that opinion he will grant leave to appeal and will usually also grant legal aid, pursuant to section 28(8) of the Legal Aid Act 1974, to enable counsel, or where necessary counsel and solicitors, to present the appeal to the Court of Appeal by way of oral argument.   If he refuses leave to appeal, an appellant is entitled to have his applicaton for leave to appeal determined by the Court of Appeal.           On 25 and 28 March the applicant's counsel settled provisional grounds of appeal and an advice on appeal in respect of both conviction and sentence for the applicant, who had legal aid for that purpose.   Under cover of a letter dated 5 April 1984, the solicitors then acting for the applicant forwarded those documents to the Registrar of Criminal Appeals together with forms N and G.   In these forms the solicitors also indicated that the applicant applied for legal aid for the purpose of enabling counsel to argue the appeal before the court.           On receipt of the notice and grounds of appeal the Registrar ordered a transcript of proceedings in the Crown Court including the judge's summing up of the case to the jury.   The transcript was received from the firm of shorthand writers concerned on about 5 September 1984.   On that date a copy of the transcript was sent to counsel with a request that he perfect his provisional grounds of appeal.   On 25 September 1984 the Registrar received the perfected grounds of appeal containing, as requested, references to the transcript.           On 28 September 1984 all the papers in the case, including the transcript and counsel's perfected grounds, were submitted by the Registrar to the single judge.   The applicant's applications for leave to appeal against conviction and sentence were refused on 16 October 1984: the single judge considered that the trial judge acted entirely properly in his summing-up to the jury and there were no grounds for quashing the conviction.   As regards sentence, the single judge gave the reasoning that the applicant's previous record and the fact he was on parole at the time of the offence justified a heavier sentence than the other defendants, who had also saved the court's time by pleading guilty.    The single judge also refused his application for legal aid.           The other co-defendant C. who had also received a sentence of seven years had applied for leave to appeal against sentence to the single judge and been granted leave to appeal.   The applicant re-applied for leave to appeal to the full Court of Appeal by notice dated 29 October and on 19 November submitted additional grounds prepared by the applicant himself.   The hearing of C.'s appeal and the applicant's application for leave to appeal took place on the same day on 26 April 1985.           The applicant was neither present nor represented.   His legal aid for the trial, which included drafting grounds of appeal, had expired and though he had applied for legal aid for his appeal this had been refused.   His co-defendant C., who had been granted leave to appeal and legal aid, was represented by counsel.           The Court of Appeal, after considering the grounds of appeal against conviction and sentence submitted by the applicant's counsel in writing, held that the criticisms of the judge's summing-up were unfounded and that the applicant's record justified his heavy sentence.   The court also issued a reprimand against the barrister who had drafted the grounds of appeal.   As regards the applicant's co-defendant however, the court considered that there was a disparity in sentence with the other defendants, in particular since he had pleaded guilty to the same offences, and reduced his sentence to five years.           Under section 29 of the Criminal Appeal Act 1968, the Court also had power to order that part or all of the time spent awaiting the determination of an application for leave to appeal will not count towards the prospective appellant's service of sentence, thereby in effect lengthening the amount of time spent in detention.   Though both the single judge and the full court have power to make orders for loss of time counting against sentence under the Criminal Appeal Act 1968, it appears that in its Practice Direction of 14 February 1980 (70 Cr App Rep 186) the Court made it clear that single judges would not make such orders where grounds in support of an application for leave to appeal had been settled by counsel.   Where however the single judge had refused leave to appeal the Court would not feel constrained from making such orders, the applicant having had the advantage of a judge's opinion on the merits of his case.   No such order was in fact made in the present case.   COMPLAINTS           The applicant complains that he was not present or represented either before the single judge or the full Court of Appeal when they considered his application for leave to appeal.   He also complains that in making his application he was in jeopardy of an order being made for loss of time counting towards sentence (no order was in fact made).           The applicant invokes Article 6 paras. 1 and 3 (c) and Article 5 para. 1 (a) of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 9 July 1985 and registered on 14 October 1985.           The Commission first examined the question of admissibility on 18 July 1986 and decided to invite the respondent Government to submit observations in writing on the admissibility and merits of the application with regard to Article 6 para. 1 and para. 3 (c) of the Convention.   The Government submitted their observations on 20 November 1986 and the applicant submitted his observations in reply on 27 January 1987.     SUBMISSIONS OF THE PARTIES   A.       The Government        a) The facts           On 16 October 1984, the single judge refused all the applicant's applications.   In considering the application, the judge did not hear oral argument from counsel; the arguments were fully set out in the perfected grounds of appeal.   However, had the judge considered oral argument necessary he could, and would, have adjourned consideration of the case and granted legal aid for the purpose of enabling counsel to appear before him.           On 26 April 1985 the applicant's renewed applications were considered by the court comprising the Lord Chief Justice and Mr. Justice Farquharson.   The court had before it all the papers in the case including the transcript and counsel's perfected grounds of appeal.   As appears from the transcript of the judgment, the matter was carefully considered but all the applications were refused.   The court felt that it would not have been assisted by oral argument. However, had the court, presided over as it was by the Lord Chief Justice, considered such argument necessary it could and would have adjourned consideration of the case and granted legal aid for the purpose of allowing counsel to appear before it.   The granting of such a facility would not have depended upon the applicant being given leave to appeal.        b) Admissibility and merits        i. Article 6 para. 1 of the Convention           Following the Report of the Commission in Applications Nos. 9562/81 and 9818/82 Monnell and Morris v. the United Kingdom, adopted on 11 March 1985, and the Delcourt judgment of the Court (Series A No. 11) the Government accept that the guarantees provided by Article 6 apply to applications for leave to appeal to the Court of Appeal Criminal Division.   In Application No. 7413/76 X v. the United Kingdom (Dec. 16.5.77, D.R. 9 p. 100) the Commission were concerned with the procedure for granting leave to appeal.   They noted:           "In respect of such proceedings it is not unusual for a         prospective appellant to be present or to be legally         represented.   Witnesses are not called at such a hearing.         The Commission, in examining such proceedings, has regard,         however, to their fairness as a whole.   In doing so, and in         accordance with its constant jurisprudence, the Commission         considers that the fair hearing granted to an accused person         within the meaning of Article 6 para. 1 requires respect for         the principle 'equality of arms' as between the prosecution         and the defence...   In the present case it does not appear         that the prosecution was present at the leave to appeal         hearing nor was it legally represented and it did not call         witnesses.   There is accordingly no appearance of a violation         of the principle of the equality of arms."             In the present case it is clear that the prosecution were not represented either before the single judge or before the full court when the applicant's applications for leave to appeal were considered. There can, therefore, have been no violation of the principle of equality of arms.   Indeed, whereas the prosecution made no representations as to the merits of the applicant's proposed appeal, the applicant's grounds of appeal, supported by an opinion from his counsel, together with a transcript of the judge's summing up, were carefully considered by both the single judge and the full court.           The applicant has, it is further submitted, not suggested that there were further grounds of appeal which did not appear in the documents that were before the single judge and the full court. Neither has it been suggested that his arguments in support of his application for leave to appeal could have been more effectively put at an oral hearing.   The judgment of the Court of Appeal indicates that everything that could have been said on his behalf was said in the written grounds and supporting documents.   As indicated before if either the single judge or the court had felt that they would have been assisted by oral representations, they could and would have directed an oral hearing and granted legal aid for the purpose.           The sole issue before the single judge and the full court was whether the applicant's grounds of appeal were arguable.   In these circumstances the Government submit that, having regard to the proceedings as a whole, there was no requirement in Article 6 that the issue be determined at an oral hearing.       ii. Article 6 para. 3 (c)           The Government repeat their submission that in this case Article 6 did not guarantee the applicant a right to an oral hearing.           As regards those proceedings which did take place in this case the preparation of written material was prepared by the applicant's counsel.   The applicant was therefore able to defend himself through legal assistance of his own choosing.   In these circumstances the requirements of Article 6 para. 3 (c) are satisfied.           The Government also refer to the consistent jurisprudence of the Commission in which it has held that where the appellant is assisted by counsel he does not have the additional right to be present to defend himself.   The Government refer in particular to X v.   Norway (Application No. 5923/72, Dec. 30.5.75, D.R. 3 p. 43), where the Commission held:           "...   Article 6 para. 3 (c) guarantees that proceedings         against the accused will not take place without an adequate         representation for the defence, but does not give the accused         the right to decide himself in what manner his defence should         be assured.   The decision as to which of the two alternatives         mentioned in the provision should be chosen, namely the         applicant's right to defend himself in person or to be         represented by a lawyer of his own choosing, or in certain         circumstances one appointed by the court, depends upon the         applicable legislation or rules of court."             The Government submit that in the circumstances of the present case, where the applicant was assisted in the preparation of his written grounds by counsel, Article 6 para. 3 (c) did not require that he should have an additional right to defend himself in person. Representation by counsel was, in this context, sufficient.     B.       The applicant        a) The facts           In form N apart from applying for leave to appeal against conviction, leave to appeal against sentence and legal aid, the applicant also applied for leave to be present at the hearing. Although no form P appears to have been submitted on 3 April 1984 note 8 on the reverse side of form N indicates that such an appliation can be made subsequently.   Although the applicant had indicated he wished to have leave to be present at the hearing, it does not appear that he was sent form P or reminded of his entitlement to submit form P.   His application for permission to be present was not considered by the single judge.   The note on the reverse side of form SJ states that "applications refused by a judge may be renewed for consideration by the full court..." but since his application for leave to be present was not refused by the single judge (not having been considered) his renewal did not apply to the application for permission to be present.           The applicant does not agree with the Government's submission that his appeal was carefully considered in so far as it concerned leave to appeal against sentence.   This application was peremptorily dismissed, the court's decision on this point only taking four and half lines of text.        b) Admissibility and merits           The applicant relies on the Report of the Commission of 11 March 1985 in MONNELL and MORRIS v. the United Kingdom (Applications Nos. 9562/81 and 9818/82) and adopts the substance of the arguments presented on behalf of the applicants Monnell and Morris in support of his argument that the absence of the applicant and his lack of representation at the hearings of his applications for leave to appeal against sentence and conviction before the single judge and full Court of Appeal both which had the power to make orders for loss of time counting towards sentence deprived him of a fair trial within the meaning of Article 6 para. 1 of the Convention and/or deprived him of his rights under Article 6 para. 3 (c).           The applicant does not accept the Government's contention that the applicant's arguments could not have been put more effectively at an oral hearing.   He submits that the grounds of appeal which are presented to the court take the form of dry pleadings without elaboration and without the recital of legal authorities for any propositions which may be put forward.   There is more substance in counsel's advice on appeal against conviction and his separate advice on appeal against sentence, but those documents do not represent an adequate substitute for representation at a hearing, may not be before the single judge or full court and are not designed to answer or preempt any features of a case which the court may wish to be assisted upon, and cannot of necessity allow for developments in law or practice between the date that they are written and the later date of hearings before the single judge and still later the full court.   The applicant does not accept that "everything that could have been said on his behalf was said in the written grounds and supporting documents" as alleged in the Government's observations.           The applicant also submits that there was inequality of arms in the following respects:           (a) because the court of its own motion may discuss and adopt or reject submissions relating to the applicant's case without him having any opportunity to respond unless the court again of its own motion decides to adjourn the proceedings and           (b) in this particular instance the appeal of the co-accused from the same count on the indictment was determined by the court at the same sitting, and the co-accused was represented by counsel.   It must follow that justice was not "seen to be done" and there was not a "fair trial" and the applicant was deprived of his right to defend himself or receive assistance, given that submissions on behalf of C. of necessity distinguished C.'s plea of guilty from the case of the applicant "who insisted on a plea of not guilty".   Again, the applicant's application for leave to appeal against sentence was dismissed inter alia "in the light of this man's record", although only one count of this indictment affected the applicant.   C.'s appeal concerned some 19 offences before the trial court, apart from convictions prior to that.   It is noted that in the transcript, mention is made of counsel for the co-accused C. speaking to counsel for the prosecution on matters relating to sentence and the distinction between co-accused, whereas the applicant was not present, was not represented, nor did his representative have an opportunity to consult counsel who had appeared for the prosecution in the court below in the rather exceptional circumstances which existed i.e. where the learned trial judge had passed away.   In this sense, the inequality of arms was exacerbated.   C.'s case was presented with the help of his own counsel and with the views of prosecution for the Crown made known to the court, whilst the applicant was given no opportunity to present his case adequately.   Adopting the words of the Court of Appeal referring to C., it is the applicant's submission that the applicant's case is also "an example par excellence of disparity between sentences passed upon two men which if allowed to stand would for once genuinely raise a grievance and a justifiable grievance in the mind of the man who received the more severe sentence".           The applicant accordingly argues in relation to Article 6 that the issue before the appeal court required an oral hearing, having regard to the proceedings as a whole, and in relation to Article 6 para. 3 (c) that the limited assistance of counsel in drafting form G was not in any way sufficient.   THE LAW        1. Article 5 para. 1 (a) (Art. 5-1-a) of the Convention           The applicant complains of a violation of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention in that he was in jeopardy of an order for loss of time during the proceedings.           Article 5 para. 1 (a) (Art. 5-1-a) of the Convention provides as follows:           "1.   Everyone has the right to liberty and security of         person.   No one shall be deprived of his liberty save in         the following cases and in accordance with a procedure         prescribed by law:           a)   the lawful detention of a person after conviction by a         competent court; ..."           The Commission notes however that no order for loss of time was in fact made by the Court of Appeal and that the period of detention after the applicant's conviction until the determination of his application for leave to appeal did not cease to be counted as part of the sentence imposed by the judge after his conviction.   In these circumstances, the Commission finds no appearance of a violation of Article 5 para. 1 (Art. 5-1-a) of the Convention, the applicant's detention clearly falling within the exception set out para. (a).           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        2. Article 6 para. 1 and para. 3 (c) (Art. 6-1, 6-3-c) of the Convention           The applicant complains that he was not present or represented before the single judge or the full Court of Appeal when they decided his application for leave to appeal, although in making such application, he was at risk of an order being made for loss of time counting towards sentence.   He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.           The Commission must first consider whether Article 6 (Art. 6) of the Convention was applicable to the applicant's hearings of his applications for leave to appeal by the full Court of Appeal. Article 6 para. 1 (Art. 6-1) of the Convention provides:           "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."           Article 6 para. 3 (c) (Art. 6-3-c) further provides:           "Everyone charged with a criminal offence has the following         minimum rights:           ...           (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."           In the Delcourt case, the European Court of Human Rights pointed out that Article 6 para. 1 (Art. 6-1) of the Convention does not compel the Contracting States to set up courts of appeal or of cassation but that, nevertheless, a State which does institute such courts is required to ensure that persons amenable to the law shall enjoy before these courts the fundamental guarantees contained in Article 6 (Art. 6) (Eur. Court H.R., Delcourt judgment of 17 January 1970, Series A No. 11 pp. 13-15).           Thus, the Commission considers that, although Article 6 (Art. 6) does not guarantee an appeal in criminal proceedings, where the opportunity to lodge an appeal in regard to the determination of a criminal charge is provided under domestic law, the guarantees of Article 6 (Art. 6) continue to apply to the appeal proceedings, since those proceedings form part of the whole proceedings which determine the criminal charge at issue (No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96, and Monnell and Morris v. the United Kingdom, Nos. 9562/81 and 9818/82, Comm.   Rep. 11.3.85).           In the present case, the proceedings before the Court of Appeal related to the examination of applications for leave to appeal against conviction and sentence.   These proceedings were closely related to the appeal proceedings as such and the Court of Appeal had the competence not only to accept or reject the application for leave to appeal, but also to prolong the appellant's sentence by ordering "loss of time".   In these circumstances, the Commission considers that the guarantees of Article 6 (Art. 6) were applicable to the applications for leave to appeal which were made by the applicant to the Court of Appeal.           The Commission must therefore consider whether, in the circumstances of the present case, the guarantees of Article 6 paras. 1 and 3 (c) (Art. 6-1, 6-3-c) required that the applicant be present or be represented during the determination of his applications for leave to appeal.           The Commission would first of all note that the principle of equality of arms, inherent in the notion of fairness under Article 6 para. 1 (Art. 6-1) of the Convention was respected, in that the prosecution was not represented before either the single judge or the full Court of Appeal (see e.g.   No. 5871/72, Dec. 30.9.74, D.R. 1 p. 54 and Eur. Court H.R., Monnell and Morris judgment of 2 March 1987, Series A No. 115).           The principle of equality of arms is, however, only one feature of the wider concept of fair trial in criminal proceedings; in particular, "even in the absence of a prosecuting party, a trial would not be fair if it took place in such conditions as to put the accused unfairly at a disadvantage" (Eur. Court H.R., Delcourt judgment of 17 January 1970, Series A No. 11 pp. 15 and 18).           The Commission notes in this regard that the applicant had the benefit of free legal advice on appeal and that his counsel drafted grounds of appeal on his behalf which were submitted to the single judge and full Court of Appeal.   The Commission further recalls that in the case of Monnell and Morris (loc. cit.) the European Court of Human Rights came to the conclusion that the interests of justice and fairness could in such circumstances be met by the opportunity afforded to an applicant to present relevant considerations by making written submissions.   The Court also found that there was no reason why such written submissions should not have included considerations relevant to the Court of Appeal's exercise of the power to direct loss of time.           In the present case, the applicant had this opportunity and unlike the applicants in Monnell and Morris (loc. cit.) was not in fact subject of a loss of time order.   The Commission accordingly concludes that he was not deprived of a fair procedure as guaranteed under Article 6 para. 1 and para. 3 (c) (Art. 6-1, 6-3-c) of the Convention. It follows that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE.           Head of Division acting as              Acting President         Secretary to the Commission            of the Commission                     (K. ROGGE)                        (G. SPERDUTI)