CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 8 mars 1988

.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. 12002/86 by Thomas B. GRANT against the United Kingdom             The European Commission of Human Rights sitting in private on 8 March 1988, the following members being present:                   MM.   C.A. NØRGAARD, President                      J.A. FROWEIN                      S. TRECHSEL                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      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 17 February 1986 by Thomas B. GRANT against the United Kingdom and registered on 20 February 1986 under file No. 12002/86;           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 1947 and presently detained in H.M. Prison Barlinnie, Glasgow.   He is represented before the Commission by Hamilton Burns & Moore, Solicitors of Glasgow.   The facts as agreed by the parties may be summarised as follows:           In 1985 the applicant was charged, together with A., with a number of offences under the Firearms Act 1981 and the Counterfeiting Act 1981, namely possession of a firearm and of counterfeit notes.           The applicant submits that he had instructed his counsel, via his solicitors, that the shotgun in question belonged to his co-accused A. who had behaved with increasing instability and that A. had also produced the counterfeit money with which the applicant had admittedly associated himself.   The applicant maintained that he had possession of the shotgun only on one occasion, when A. had asked him to conceal the weapon which was in a holdall and which the applicant had arranged to do by giving the shotgun to a neighbour.   The applicant's counsel took the view that this explanation was not credible and could be counter-productive; it was, therefore, decided not to plead these matters before the court.           The applicant appeared before the High Court of Justiciary in Glasgow on 18 June 1985 and pleaded guilty to two charges on the indictment, involving the possession of a firearm and counterfeit notes.   The explanation tendered by the applicant in respect of the firearm was that it was required for his protection as various threatening calls had been made to the premises occupied by the applicant and A.   A. also pleaded guilty to the charges, but since another co-accused F. pleaded not guilty, sentence in respect of the applicant and A. was deferred until the conclusion of F.'s trial. During F.'s trial both the applicant and A. were called as witnesses for the defence and F. was acquitted.   The trial judge, after a plea in mitigation by the applicant's counsel, sentenced the applicant to a total of six years' imprisonment, three years on each of the charges to run consecutively.   A. received a similar sentence.           Shortly after the trial, A.'s condition deteriorated rapidly. He became phobic about his food, unable to eat and requested to be removed to Carstairs State Institution for the Criminally Insane.           The applicant considered that this corroborated what he had said all along about A.'s instability; he claimed that had his counsel made the trial judge aware of the true condition of A., he would have been sentenced more leniently and a distinction would have been made between himself and A.   He instructed fresh counsel to appeal against sentence to the Court of Criminal Appeal in the light of A.'s deteriorated condition.   A. also lodged an appeal.           The appeal first came before the High Court of Appeal in Edinburgh on 26 September 1985.   As the case of A. was not properly prepared, the hearing of the appeal was postponed to November 1985. On 22 November the Appeal Court heard the applicant's appeal, having before it the report of the trial judge on the case and on the grounds of appeal.   No evidence was heard.   The prosecution was represented by the Advocate Depute but, following normal practice, he took no part in the proceedings.   Counsel for the applicant addressed the court in support of the appeal but, as she sensed from the questions put by the judges that the court thought that the sentences imposed on the applicant by the court of first instance were excessively light, she requested the applicant's instructions in the light of this development.   The applicant, who was present in court, instructed counsel to seek to abandon the appeal forthwith.   The court, however, refused to permit abandonment of the appeal and the applicant's counsel completed her submissions.   In the exercise of its power under Section 254(3) Criminal Procedure (Scotland) Act 1975 ("the 1975 Act") the court then quashed the sentence of the lower court, and substituted a sentence of five years on each of the two charges to run consecutively, stating in its opinion that the offences were very serious and that the sentence imposed by the trial judge was in fact inadequate.           Relevant provisions of national law   Abandonment of appeals           The provisions for abandonment of appeals in Scotland are covered by Section 244 of the 1975 Act, which reads as follows:           "(1)   An appellant may abandon his appeal by lodging with         the Clerk of Justiciary a notice of abandonment in as         nearly as may be the form prescribed by Act of Adjournal         under this Act; and on such notice being lodged the appeal         shall be deemed to have been dismissed by the court.           (2)   A person who has appealed against both conviction and         sentence may abandon the appeal in so far as it is against         conviction and may proceed with it against sentence alone."           The court is under no obligation to allow an appeal to be abandoned once the case has been called on the day of the hearing.           An application for leave to appeal against sentence may be abandoned under Section 244 at any time before the calling of the case but once the case is called, it becomes a matter for the discretion of the court whether any motion for leave to abandon should be granted.           In West v.   Her Majesty's Advocate (1955 Scots Law Times p. 425) the Lord Justice General stated:           "It would be a denial of justice to permit an accused to         lodge an application for leave to appeal against sentence,         to argue his appeal in full and when he realises that he         will or may very probably fail, then to permit him to         withdraw his appeal and take refuge in what the court may         well consider an inappropriate sentence.   Accused persons         who choose to exercise their rights to appeal under the         provisions of the 1926 Act must realise that though they         may succeed in securing a reduction of sentence they also         run the risk of a longer sentence being imposed."   Power of the Court of Appeal           Section 254 of the 1975 Act which governs the disposal of appeals by the High Court of Appeal in Edinburgh reads as follows:           "(1)   The High Court may, subject to subsection (4) below,         dispose of an appeal against conviction by                 (a)   affirming the verdict of the trial court;                 (b)   setting aside the verdict of the trial court and               either quashing the conviction or substituting               therefor an amended verdict of guilty, provided that               an amended verdict of guilty must be one which could               have been returned on the indictment before the trial               court; or                 (c)   setting aside the verdict of the trial court and               granting authority to bring a new prosecution in               accordance with Section 255 of this act.           (2)   In setting aside, under subsection (1) above, a verdict         the High Court may quash any sentence imposed on the appellant         as respects the indictment, and                 (a)   in a case where it substitutes an amended verdict               of guilty, whether or not the sentence related to the               verdict set aside, or                 (b)   in any other case, where the sentence did not               relate, may pass another (but not more severe) sentence               in substitution for the sentence so quashed.           (3)   The High Court may, subject to subsection (4) below,         dispose of an appeal against sentence by                 (a)   affirming such sentence; or                 (b)   if the court thinks that, having regard to all the               circumstances, including any additional evidence such               as is mentioned in Section 228(2) of this act, a               different sentence should have been passed, quashing               the sentence and passing another sentence whether more               or less severe in substitution therefor.           (4)   In relation to any appeal under Section 228(1) of this         act, the High Court shall, where it appears to it that the         appellant committed the act charged against him but that         he was insane when he did so, dispose of the appeal by                 (a)   setting aside the verdict of the trial court and               substituting therefor a verdict of acquittal on the               ground of insanity; and                 (b)   quashing any sentence imposed on the appellant as               respects the indictment and ordering that he be               detained in a state hospital or such other hospital               as for special reasons the court may specify.           (5)   The provisions of subsection (4) of Section 174 of this         act shall apply to an order under subsection (4)(b) above         as they apply to an order under that section."           Section 262 of the 1975 Act governing the finality of the proceedings reads as follows:           "Subject to the provisions of the next following section of         this act, all interlocutors and sentences pronounced by the         High Court under this part of this act shall be final and         conclusive and not subject to review by any court whatsoever         and it shall be incompetent to stay or suspend any execution         or diligence issuing from the High Court under this part of         this act."     COMPLAINTS           The applicant complains first that his detention pursuant to the decision of the High Court of Appeal in Edinburgh is in violation of Article 5 para. 1 (a) of the Convention.   The Court of Appeal imposed an additional four year sentence without hearing evidence; this does not constitute a "conviction by a competent court" as required by Article 5 para. 1 (a).   The trial judge was the only judge to hear the entire evidence, and to assess the witnesses and the accused.   He was the only judge competent to assess the case and make a proper assessment of an appropriate sentence.           Secondly, the applicant complains that the decision of the Appeal Court was in violation of Article 6 of the Convention.   He was not given "a fair and public hearing by an independent and impartial tribunal established by law".   The questioning of counsel by the court made it clear from the outset that the court thought the appeal unfounded and was therefore not amenable to due and proper consideration of its merits.           It was not fair to refuse to allow the appeal to be withdrawn, which is a minimum right under any legal system.   It was also not fair to impose an additional sentence without hearing further evidence.           Thirdly, the applicant submits that Article 7 of the Convention was breached by the court's decision to impose "a heavier penalty ... than the one that was applicable at the time the criminal offence was committed".           Finally, the applicant submits that the imposition of an additional period of four years' imprisonment after the imposition of a sentence of six years' imprisonment is, in the circumstances of the case, inhuman and degrading treatment or punishment in contravention of Article 3 of the Convention.     PROCEEDINGS BEFORE THE COMMISSION           The application was introduced on 17 February 1986 and registered on 20 February 1986.   On 2 December 1986, the Commission decided to communicate the application to the respondent Government pursuant to Rule 42(2)(b) (Art. 44-2-b) of its Rules of Procedure and to invite them to submit written observations on the admissibility and merits of the applicant's complaints under Article 6 para. 1 (Art. 6-1) of the Convention.           The respondent Government's observations were submitted on 22 April 1987 and the observations in reply submitted by the applicant on 30 June 1987.     SUBMISSIONS OF THE PARTIES       A.   The respondent Government           Admissibility and merits           It was open to the applicant under Section 244 of the 1975 Act to abandon his appeal at any time between the lodging of the Note of Appeal on 24 June 1985 and the eventual hearing of the appeal on 22 November 1985, by lodging with the Clerk of Justiciary a Notice of Abandonment in the prescribed form.   In the event that such a Notice of Abandonment had been lodged within that period the appeal would have been deemed to have been dismissed by the court.   At the first calling of the appeal on 26 September 1985, when the applicant was present with his solicitor and represented by counsel, no motion to abandon the appeal was made.   Such a motion was only made after his counsel had commenced her submissions to the court in support of the appeal and after the court had indicated from their questions to counsel and reaction to her submissions that they might consider the sentences to have been inadequate.   The Government would recall in this connection the statement of the Lord Justice General in West v. Her Majesty's Advocate (loc. cit.) and adopt his reasoning (see Relevant Domestic Law and Practice).           The Appeal Court had before it copies of the indictment, the applicant's Note of Appeal and the report of the trial judge.   The Court increased the sentence because in its view the offences of which the applicant was convicted were "very serious offences".   The Government contend that the applicant through his counsel had full opportunity to put forward his arguments on this question of the seriousness of the offences.   The applicant was present throughout and able to convey instructions to his legal advisers.           The prosecution took no part in the appeal proceedings and in practice would only do so, where the court wished the prosecutor to clarify any matter of fact or to furnish further information.           The Government therefore submit that the application is manifestly ill-founded or discloses no breach of the Convention.       B.   The applicant           Admissibility and merits           The applicant submits that the right to abandon an appeal is and should be a fundamental right.   The increase in sentence exercised in this case did not conform to the overall concept of fairness as outlined in the Commission's case-law (see e.g.   Nielsen v.   Denmark, Application No. 343/57, Dec. 2.5.59, Yearbook 4 p. 548).   There was no transcript of evidence before the Appeal Court, the Court heard no evidence nor were depositions or a precis of any sort before them.           The applicant argues that in dismissing his appeal the Court was exercising its appellate jurisdiction but that in proceeding from there to increase his sentence, they acted as if they were court of first instance and therefore in order to conform with Article 6 para. 1 of the Convention they should have examined the evidence de novo.   The Court did not have sufficient material upon which to base any decision other than to reject the importance of the fresh matters brought before it.           The Court also took a very short period of time over the appeal, i.e. from 10.30 am to 11.25 am.   The applicant submits that a decision to impose an additional sentence of four years to an already substantial sentence of six years should only have been made after extensive research and argument.           Further, the applicant submits that having indicated from the outset the probability of an increased sentence, the Court should not have refused to allow the withdrawal since it had from the moment of refusal ceased to be a "fair and impartial" body.           The Court gave no explanation as to the facts which made five years a more appropriate sentence than three years for each charge in this particular case.   The Court's opinion contains only general propositions as to the offences and not as to the particular offender. While counsel was able to address the Court on the original sentences she did not do so on the question of the imposition of an additional four years to the applicant's sentence.     THE LAW   1.       The applicant complains first that he was denied a fair trial in that the High Court of Appeal increased his sentence and refused to allow the abandonment of his appeal when the matter was heard on 22 November 1985.           Article 6 para. 1 (Art. 6-1) of the Convention provides as follows:           "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."           The Commission recalls that, in accordance with its constant case-law, the fairness of any trial must be examined by reference to the proceedings as a whole (e.g.   Application No. 524/59, Dec. 19.12.60, Yearbook 3 pp. 323-353 and Application No. 8289/78, Dec. 5.3.80, D.R. 18 p. 160).           The Commission notes in particular that the applicant was present in person both at his trial and at the proceedings on appeal and that he was represented on both occasions by a solicitor and counsel.   In these circumstances there is nothing to show that the principle of equality of arms contained in the notion of fair trial was not respected.           The applicant contends that the questioning of counsel by the Court of Appeal made it clear that from the outset they thought the appeal unfounded and that they were therefore not amenable to due and proper consideration of its merits.   The Commission however considers that any allegation of bias on the part of a court must be clearly distinguished from the circumstances where a court which sits with notice of the proceedings, and in which the judges have had the opportunity to prepare themselves by reference to the papers, may inevitably form an initial inclination or view in respect of the merits of an appeal, subject to hearing the content of the pleadings themselves.   The Commission finds that beyond the fact that the Court of Appeal appears to have formed such an initial inclination in reference to the appeal the applicant has not submitted any evidence in support of an allegation of actual bias and that there is no indication on the facts of the case as submitted that the Court of Appeal failed to fulfil the requirement of impartiality within the meaning of Article 6 para. 1 (Art. 6-1) of the Convention.           The applicant also contends that it was unfair that he was unable to withdraw the appeal which he had lodged, and which was in the process of being determined, when he and his counsel concluded that the appeal would be unsuccessful.   The Commission notes in this respect that Scottish law provides expressly for the possibility of abandoning an appeal under the terms of Section 244 of the 1975 Act but that the operation of that section is limited to cases where the hearing of an appeal has not yet begun.   The Commission finds in the present case that the High Court of Appeal did not compromise the fairness of the hearing of the appeal by requiring the appeal, which had not only already been lodged, but in which the hearing was already underway, to be concluded.           The applicant further complains that the Court of Appeal in effect imposed a four year sentence on him without hearing any evidence.           The Commission recalls that as the applicant had pleaded guilty in the Court below to the two charges to which the appeal related, no evidence had been adduced there on those offences, although evidence was given against and for another accused on related counterfeiting charges, in respect of which he was subsequently found not guilty.   The report of the Court at first instance set out the facts briefly, the judge commenting that both charges were very serious.   The Court of Appeal did not require a transcript of the first instance proceedings to be made and produced and there is therefore no indication that if a transcript had been furnished, it would have affected their decision on the applicant's appeal which was against sentence only, and not against conviction.           The Commission notes that the High Court of Appeal is empowered under the terms of Section 254(3)(b) read in conjunction with Section 228(2) of the 1975 Act to hear additional evidence.   It appears that in the present case the Court did not find it necessary to do so in order to determine the gravity of the two offences, and that neither the applicant nor his counsel made application to the Court that they should hear additional evidence.   However, in reaching its conclusion, the Court had the benefit of hearing counsel's submissions on the severity of the applicant's sentence and on the factors which the applicant felt mitigated in his favour and it also had before it the note of the first instance judge on the proceedings. In these circumstances there is nothing to show that the applicant's appeal was not heard fairly, in conformity with Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the applicant's complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant also complains that his detention following his conviction was contrary to Article 5 para. 1 (a) (Art. 5-1-a) of the Convention since the High Court of Appeal was not a competent court within the terms of the provision, which states:           "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;           ..."           However the applicant has not submitted any arguments to substantiate this complaint, beyond those which have already been examined by the Commission in relation to his complaint that his appeal was not fair.   That complaint has been rejected as manifestly ill-founded and the applicant has made no other submissions which might suggest that the High Court of Appeal could be regarded as anything other than a competent court for the purpose of imposing sentence in relation to the conviction of the applicant following his trial at first instance.   It follows that this aspect of the applicant's complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.       The applicant further invokes Article 7 (Art. 7) of the Convention in relation to the increase of his sentence by the Court of Appeal. Article 7 para. 1 (Art. 7-1) of the Convention provides:           "No one shall be held guilty of any criminal offence on         account of any act or omission which did not constitute         a criminal offence under national or international law         at the time when it was committed.   Nor shall a heavier         penalty be imposed than the one that was applicable at         the time the criminal offence was committed."           However the applicant has not submitted, and there is no evidence to suggest, that the sentences of five years respectively in respect of each of the charges of which the applicant was convicted exceeded the statutory maximum sentences which could have been imposed upon the applicant at his trial at first instance.           It follows that this aspect of the applicant's complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the   Convention.   4.       The applicant invokes Article 3 (Art. 3) of the Convention in relation to the increase in his sentence.   Article 3 (Art. 3) provides:           "No one shall be subjected to torture or to inhuman or         degrading treatment or punishment."           The Commission finds that the imposition of an additional sentence of the scale which arose in the present case is not treatment which can be regarded as attaining the degree of seriousness which might raise an issue under Article 3 (Art. 3) of the Convention.   It follows that this aspect 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)