CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 9 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 OF     Application No. 12950/87 by Gary William TURNER against the United Kingdom             The European Commission of Human Rights sitting in private on 9 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                      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 12 March 1987 by Gary William TURNER against the United Kingdom and registered on 3 June 1987 under file No. 12950/87;           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 1955, and is resident in Cheltenham.   He is represented before the Commission by Robins and Co., a solicitors firm practising in Cheltenham.   The facts as presented by the applicant may be summarised as follows.           The applicant was charged with assaulting a police officer and tried in the magistrates court on 17 October 1986, where he was represented by his solicitor.   He was found guilty and fined £80.   The applicant appealed to the Crown Court against conviction only.   The Crown Court heard the appeal on 4 and 5 February 1987, where the applicant was represented by counsel.   The applicant was warned by the presiding judge that the Court had power under S.9 of the Courts Act 1971 to increase sentence, even though the applicant was not appealing against sentence, and that the court took the view that offences of assaulting the police should be dealt with by imprisonment.   The applicant however continued with his appeal.   His appeal was dismissed and, after hearing short submissions as to sentence based on the mitigating circumstances of the case, the Court increased his sentence to 6 months imprisonment and also imposed 6 months imprisonment, to run concurrently, for breach of a conditional discharge imposed on 12 November 1984 for assault occasioning actual bodily harm.           The applicant did not appeal.   The applicant was advised by counsel that though this sentence was probably excessive, the only possible remedy would be to apply to the Divisional Court by way of case stated or judicial review.   Such applications can only be made on the ground that the Court is wrong in law or in excess of jurisdiction.   Counsel gave the opinion that, since the sentence was within the limits permitted by statute and that since the case-law establishes that it is not enough to establish that the sentence is unduly severe, an appeal would stand no prospect of success.     COMPLAINTS           The applicant complains that his appeal was against conviction only and that sentencing had already been dealt with by the lower court.   He submits that the sentence imposed by the Crown Court was not implicit in the sentence of the lower court.   Further he complains that the procedure for considering sentence after an appeal against conviction is dismissed is cursory and that, in his case, sentencing followed immediately upon the refusal of his appeal against conviction without any consideration of further or up-to-date reports.           The applicant invokes Article 5 para. 1 and Article 6 paras. 1 and 3 of the Convention.     THE LAW   1.       The applicant complains of being sentenced to imprisonment by the Crown Court following their dismissal of his appeal against conviction.           Article 5 para. 1 (Art. 5-1) of the Convention guarantees to everyone the right to liberty and stipulates that noone shall be deprived of his liberty save in the instances specified in sub-paragraphs (a)-(f) (Art. 5-1-a-f) and save in accordance with a procedure prescribed by law.   The Commission recalls that the applicant had been convicted and fined by a magistrates court and that, following his appeal, the Crown Court exercised its powers under Section 9 of the Courts Act 1971 to increase his sentence from a fine to a term of imprisonment.   The applicant has submitted no evidence that might suggest that the Crown Court 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.   The Commission accordingly finds that there can be no doubt as to the applicant having been subject to a "conviction by a competent court" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) which specifically allows "the lawful detention of a person after conviction by a competent court".           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.   2.       The applicant also complains that the increase of sentence by the Crown Court when he was appealing against conviction only was contrary to Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention.   He complains that the procedure for considering sentence after the dismissal of his appeal was cursory.           Article 6 para. 1 and para. 3 (a) (Art. 6-1, 6-3-a) of the Convention provide:           "1.   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.           ...           3.   Everyone charged with a criminal offence has the         following minimum rights:           (a) to be informed promptly, in a language which he         understands and in detail, of the nature and cause of         the accusation against him...."           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).           As regards the applicant' complaint of the increase of sentence when he was only appealing against conviction, the Commission notes that the applicant was informed by the Crown Court at the beginning of his appeal of their powers to increase sentence and of their view that a sentence of imprisonment was considered more appropriate in cases concerning the offence of assault of a policeman. The applicant however chose to continue with his appeal.   The applicant's legal advisers would also have been already aware of the court's powers in this respect.           The applicant complains in particular, in the context of both Article 6 para. 1 and para. 3 (a) (Art. 6-1, 6-3-a), that the procedure for sentencing following dismissal of his appeal was cursory.   The Commission recalls however that the applicant's counsel, whom the Court had made aware of its views of such offences, was able to make short submissions to the Court concerning mitigating factors to be taken into account in sentence.   The Commission also recalls that appeals before the Crown Court proceed by way of rehearing and not merely on consideration of points of law, and that therefore the Court would have been aware of the evidence in the case.   While the Commission notes that the applicant complains that there were no further or up-to-date reports before the Court concerning sentence, it does not appear that the applicant requested an adjournment for such a report to be compiled or that there were any further mitigating factors which his counsel had been unable to draw to the attention of the Court.           In light of these circumstances, the Commission finds no appearance of a violation of Article 6 para. 1 or para. 3 (a) (Art. 6-1, 6-3-a) of the Convention.           It follows that these complaints must also be dismissed as 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)