CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 12 décembre 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. 11821/85 by L.S. against the United Kingdom             The European Commission of Human Rights sitting in private on 12 December 1987, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                   Mr.   H.C. KRÜGER, 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 27 July 1984 by L.S. against the United Kingdom and registered on 24 October 1985 under file No. 11821/85;           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 applicant is a British citizen born in 1952.   When introducing the application, he was serving a prison sentence on the Isle of Wight; he has been released in the meanwhile.   The applicant is represented before the Commission by Mr.   Peter Ashman, a barrister. The facts as agreed by the parties may be summarised as follows.           On 15 April 1983 in Chester Crown Court the applicant was convicted and sentenced to five years' imprisonment for three offences of burglary, escape from lawful custody and failure to surrender to bail.   He was acquitted of a charge of stealing a car.           There were three others involved in the offences of burglary and the applicant was originally represented by the same solicitors and counsel as two of his co-accused.   The two co-accused however decided to plead guilty and as their case conflicted with the applicant's, his lawyers informed him that they could no longer represent him.   The applicant then decided to defend himself.           At a preliminary hearing on 8 March 1983, the prosecution indicated to the judge that they did not intend to call the co-accused as witnesses but would reserve their position.   The applicant prepared his defence on this basis.   The applicant received copies of all the statements in the case, including those of his co-accused.           By letter dated 30 March 1983, the applicant was informed by the Chief Prosecuting Solicitor that the prosecution would not be preparing an edited bundle of statements and would not be calling evidence of interviews with the applicant's co-accused, copies of which the applicant already had in his possession.   By letter dated 7 April, however, the Chief Prosecuting Solicitor informed the applicant that the prosecution had decided to call two of the applicant's co-accused and enclosed new witness statements from them. These statements had been obtained by the police on 14 and 23 March and had been sent to the prosecuting solicitor on 7 April.   This information reached the applicant on 9 April, four days before his trial was due to begin on 13 April.   On 13 April, the first day of the trial, the applicant was given an edited bundle of statements.   He had not been consulted about the editing of the statements.           At the beginning of the proceedings, the applicant asked the judge for an adjournment on the ground that he needed to reorganise his defence in relation to the prosecution's decision to call his co-accused as witnesses.   After hearing submissions from the applicant and the prosecution who stated that the written statements had been served on the applicant as soon as they had been received and that in any case they could have contained no surprises since in substance they reproduced the earlier statements, the judge refused an adjournment.   Before proceeding to sentence the defendants following the jury's verdict, the judge offered the applicant the opportunity of applying for legal representation to offer a plea in mitigation.   The applicant however refused.           The applicant later applied for leave to appeal against conviction on grounds inter alia that the judge, by failing to grant an adjournment, had failed to grant him sufficient time to prepare his defence and that the judge had failed to exercise his discretion to order a new trial when one of his co-accused revealed that the applicant had previously spent time in prison.           A single judge turned down his application for leave to appeal on 27 July 1983 and the full Court of Appeal dismissed his application for leave on 31 January 1984 on the ground that it contained no merit.     COMPLAINTS           The applicant complains that the judge's refusal to grant an adjournment deprived him of adequate time and facilities for the preparation of his defence.   The applicant wished time to prepare questions to cross-examine his co-accused.   He also felt that the parts of the statements edited out could have been used by him to show the police and the co-accused had lied.   The unedited parts were allegedly inadequate for this purpose.   He alleges that the effect of the editing of the statements was that he was not allowed by the judge to ask questions relating to those parts of the statements which had been edited out and that this affected two thirds of the questions which he had prepared to ask his co-accused.   The applicant accordingly invokes Article 6 para. 3 (b) of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 27 July 1984 and registered on 24 October 1985.           On 11 December 1986, the Commission decided to bring the application to the notice of the respondent Government, in respect of the applicant's complaint under Article 6 para. 3 (b) and in respect of the issue of equality of arms, and to invite them to submit observations on the admissibility and merits pursuant to Rule 42 2(b) of the Rules of Procedure.           The Government's observations were submitted on 24 March 1987 and the applicant's observations in reply were submitted on 26 June 1987, after an extension of the time-limit of six weeks.     SUBMISSIONS OF THE PARTIES             A. THE RESPONDENT GOVERNMENT           1. The facts           The Government state that it appears from the transcript of proceedings that the applicant made no complaint about the editing of the statements when requesting an adjournment.   The Government note that the applicant had sacked his solicitors and that it is not suggested that the applicant could not have instructed fresh solicitors to appear for him or that he could not have obtained legal aid if he had applied.   The judge also offered the applicant the possibility of instructing solicitors to make a plea in mitigation when he was convicted.   The applicant declined that offer and the Government state that there can be no doubt that his decision to do so was freely made as was his decision to conduct his own defence at the trial.           The Government also state that all the matters of which he complains in the present application were put before the Court of Appeal who found no substance in them.           2. Relevant domestic law and practice           The defendant in a trial on indictment is entitled to see all the statements of witnesses, on whose evidence he has been committed for trial by the magistrates' court.   In addition, the prosecution are required to provide the defence with statements taken from witnesses whom it is not proposed to call at the trial.           Witnesses may be cross-examined on any matter that is relevant to an issue in the case or goes to their credit.   Although judges should normally try to control lengthy or oppressive cross-examination, the practice is to accord a certain latitude to defendants who are representing themselves.   It is also the practice that defendants who appear in person are given every assistance by the judge in presenting their cases.           3. Admissibility and merits           Article 6           The Government submit that the summing-up of the judge at the end of the trial illustrates the careful way the case was dealt with by the judge and shows that the applicant's defence was fairly put to the jury.   The applicant's criticisms of the trial, including all those he raises before the Commission, were put in detail to both the single judge and the full Court of Appeal.   They were carefully considered but found to be without merit.           The Government also submit that, where the trial judge had considered the question whether to grant an adjournment, and where there is no evidence to indicate that he used his discretion wrongly, the Commission should be slow to substitute its own judgment for that of the national court.   In the Gillow case (Eur.   Court H.R., Gillow judgment of 24 November 1986, Series A no. 109), the Court considered the question of an adjournment in criminal proceedings.   It said:           "The Court considers that the adjournment of a hearing is         a matter which falls in principle within the discretion         of the competent national court" (judgment para. 70).           The applicant's allegation that the trial judge had wrongly refused an adjournment was considered by the single judge of the Court of Appeal, who concluded that there was nothing to indicate that the trial judge's discretion in considering whether to grant an adjournment had been wrongly exercised.           Article 6 para. 3 (b)           The Government cite the reasoning of the Commission in Application No. 5523/72 (Dec. 5.10.74, Yearbook 17 p. 314 (334)) where the Commission said:           "The time necessary to prepare a defence must indeed be         estimated on a different basis at the various stages of         the proceedings.   When lodging an appeal or a plea of         nullity, a defendant is already familiar with the         contents of the file, and in particular the nature of         the charges and the evidence on which they rely."           In the Government's submission the familiarity of the applicant with the case against him is also a relevant factor in this case.   The applicant was already aware of the nature of the charges and evidence against him even before the witness statements were served upon him.   The period between 7 April, when the witness statements from his co-accused were served on the applicant, and 13 April, when the trial began, must be set in the context that the applicant had received before 30 March all the evidence in the case, including records of the interviews with his co-accused.   As the judge remarked, he knew at the outset exactly what was alleged against him. Although he made a complaint in general terms when applying for an adjournment, the applicant did not raise any specific difficulty, and he did not mention the editing of the statements as a matter in relation to which an adjournment should be granted.           Accordingly, the Government submit that this is not a case in which new evidence was introduced shortly before the trial.   The applicant knew all along what his co-accused said against him.   But even if their evidence had taken him by surprise, he had, on his own admission, at least 3 clear days during which to reorganise his defence.   The editing can, in the Government's view, only relate to the different form in which the evidence of the co-accused was presented.   It cannot have affected the substance of their evidence. As Prosecuting Counsel said, the statements could have contained no surprises for the applicant.   So far as cross-examination is concerned, the Government submit that the applicant could not have been prevented from asking any relevant questions of the witnesses. If he did not ask many of his prepared questions, that can only be because they were not relevant to the case against him.           Article 6: equality of arms           The Government submit that, so far as the aspect of whether the applicant had adequate time and facilities to prepare his case is concerned, the principle of "equality of arms" adds nothing to the lex specialis embodied in Article 6 para. 3 (b).   So far as the principle of "equality of arms" may relate to other aspects of the case, the Government recall that according to the Commission's case-law the question of whether a trial conforms to the standard laid down by Article 6 para. 1 must be decided on a consideration of the trial as a whole and not on one particular aspect.   The Government submit that it was the applicant's own decision to represent himself and that in any event there is nothing in the transcript to indicate that he was placed at a disadvantage in representing himself.   The Government also contend that it is the practice to afford defendants in person every assistance in presenting their cases, and to permit them greater latitude in court than a professional representative would be allowed.   Moreover, at a trial in the Crown Court the defendant is entitled to see the statements of prosecution witnesses in advance and so knows in detail what the prosecution case will be.   This facility is not granted to the prosecution, who are not entitled to know the defence case in advance.             B. THE APPLICANT           1. The facts           The applicant submits that his defence was prepared on the basis of the assurance given him in the letter from the Prosecuting Solicitor that no evidence would be called in respect of his co-accused.   As the prosecution knew that he was defending himself, they should have given him adequate time to make the necessary changes.           The applicant was entitled to represent himself in the proceedings and should not have suffered any disabilities because of this.   The Government appear to be suggesting that what happened to him was somehow his own fault because he exercised his right to defend himself.           While it is true that the Court of Appeal dismissed the applicant's application for leave to appeal, they gave no reasons of substance for their decision.   It is not clear from this absence of reasons whether the Court of Appeal considered the question of the equality of arms, as guaranteed by Article 6 of the Convention.   The reasoning of Mr.   Justice Skinner suggests that the Court was following its well established doctrine in respect of judicial discretion:           "It is well settled that this court will not interfere with         the exercise of a discretion by the judge unless he has         erred in principle or there is no material on which he could         properly have arrived at his decision" per Devlin J. in R.         v.   Cook (1959) Cr.   App.   R. 138 at 147 (cited with approval         by Viscount Dilhorne in Selvey v.   DPP (1968) 52 Cr.   App.   R.         443 at 469).           2. Admissibility and merits           The refusal of the trial judge to grant an adjournment was made without reasons being given.   The applicant argues that it is difficult to see how the Court of Appeal dealt with this, because it too failed to give any reasons for its decision.   In these circumstances, the applicant submits that it is open to the Commission to look at all the circumstances and make up its own mind as to whether the judge acted fairly.           The object of procedural safeguards is to ensure that everyone receives a fair trial, even those persons against whom there is very strong evidence.   The applicant strongly contested the prosecution case and he was entitled to make use of the safeguards which exist to ensure a fair trial in order to put his case properly to the jury and try to persuade them of his innocence.           As the applicant had no say in the editing of the statements, and relied on the prosecution assurances about the evidence to be called, he submits that the failure to give him adequate time was particularly damaging to him.     THE LAW           1. Article 6 para. 3 (b) (Art. 6-3-b) of the Convention           The applicant complains that the failure of the judge to grant an adjournment in his trial deprived him of adequate time and facilities for his defence.   He alleges that he required an adjournment in light of the prosecution's decision to call two of his co-accused as witnesses against him despite their earlier assertion that they would not do so and also in light of the edited bundle of statements which was given to him only on the morning of the trial itself.           Article 6 para. 3 (b) (Art. 6-3) of the Convention provides that:           "Everyone charged with a criminal offence has the following         minimum rights:           ...           (b) to have adequate time and facilities for the preparation         of his defence..."           As regards the applicant's complaint concerning his co-accused, the Commission notes that the prosecution's decision to call them was communicated to the applicant by letter dated 7 April and reached him on 9 April 1983.   The relevant witness statements were also forwarded to him at the same time and the applicant therefore received them four days before the beginning of his trial on 13 April. The Commission further notes that the prosecution sent the statements to the applicant immediately on their receipt from the police.   It also does not appear to be contested that the applicant was already aware, from earlier statements in his possession, of the substance of the co-accuseds' evidence against him.   In view of this and the fact that the trial of the charges against the applicant did not involve complex or difficult matters, the Commission finds that the applicant has not established that he was not allowed sufficient time to prepare his case.           The applicant also complains that he was given inadequate time to reorganise his defence in connection with the edited bundle of statements presented to the court by the prosecution.   He alleges that he had prepared two thirds of his questions for cross-examination on parts of the statements which had been edited out and that he was thus prevented from referring to them. 11821/85           The Commission notes however that the applicant made no complaint of the editing of the statements to the trial judge when requesting an adjournment.   Further, according to domestic law, witnesses may be cross-examined on any matter that is relevant or which goes to their credit.   The applicant would therefore have been entitled to put his questions to the prosecution witnesses insofar as they fell within those criteria.   The applicant states that during the trial the judge prevented him from asking questions relating to the statements not contained in the edited bundle.   However, the Commission finds that there is nothing to suggest that the judge was not thereby exercising his discretion to disallow irrelevant or inadmissible questions.   The applicant was also able to raise his complaints concerning the edited statements and the refusal of the adjournment in his appeal to the Court of Appeal, which, however, found no substance in his complaints.           The Commission therefore finds that the applicant has failed to establish that the use of the edited bundle of statements or the refusal of the adjournment did in fact deprive him of adequate time or facilities in the preparation of his defence and that accordingly there is no appearance of a violation of Article 6 para. 3 (b) (Art. 6-3-b) of the Convention.           It follows that this part of the application must be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.           2. Article 6 para. 1 (Art. 6-1) of the Convention           However, although the Commission has failed to discover an infringement of the minimum rights laid down in Article 6 para. 3 (Art. 6-3) it has also considered whether there may nevertheless be an appearance of a violation of the principle of equality of arms, that is, the procedural equality of the accused with the public prosecution, which the case-law of the Commission and the Court have established to be an inherent element of a "fair trial" within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention (see e.g.   Eur.   Court H.R., Neumeister judgment of 27 June 1968, Series A no. 7 para. 22).           The applicant has complained that the prosecution served witness statements of his co-accused only 3 days before his trial and that the prosecution presented an edited bundle of statements to the Court on the morning of the trial.   As regards the witness statements of the co-accused, the Commission recalls that the prosecution served them on the applicant immediately on their receipt from the police and finds therefore that the prosecution derived no unfair advantage in this respect.   As regards the edited bundle of statements over which the applicant was not consulted, the Commission first of all recalls that the applicant in fact made no complaint of this to the judge at the beginning of the trial.   The Commission also notes that the editing of statements by the prosecution is a routine procedural step for the orderly presentation of evidence, where a witness has made one or more written statements.   This does not however prevent the defence from asking witnesses such questions or presenting such other evidence, which are relevant and admissible.   The Commission therefore finds that the editing of the bundle of statements for the use of the court in the present case did not subject the applicant to any procedural inequality contrary to the requirement of a "fair trial" guaranteed in Article 6 para. 1 (Art. 6-1) of the Convention and the Commission therefore finds no appearance of a violation of that provision.           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.         Secretary to the Commission          President of the Commission                  (H.C. KRÜGER)                        (C.A. NØRGAARD)