CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 14 avril 1989

.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. 14099/88 by Robert GILLIES against the United Kingdom             The European Commission of Human Rights sitting in private on 14 April 1989, the following members being present:                   MM.   S. TRECHSEL, Acting President                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   Mr.   J. RAYMOND, Deputy 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 19 February 1988 by Robert GILLIES against the United Kingdom and registered on 5 August 1988 under file No. 14099/88;           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 1964 and resident in Fife.   He is currently serving a prison sentence in H.M. Prison Saughton, Edinburgh.   The facts as submitted by the applicant may be summarised as follows.           The applicant was tried before the Sheriff Court at Dunfermline on a charge of wilful fire-raising in relation to the burning of a barn causing £12,000 damage.   It appears that he was represented at his trial on 9 and 10 December 1987.   The applicant was found guilty on 10 December 1988 and was remanded in custody for three weeks pending reports relevant to sentencing.   The applicant appeared before the Court on 31 December 1987 but the Sheriff who had conducted his trial was absent and the applicant was remanded in custody for another week.           On 7 January 1988, the applicant appeared before the Sheriff and was sentenced to three years imprisonment.   Prior to 1 January 1988, the maximum sentence which could be imposed by a Sheriff Court was a sentence of two years imprisonment although the Sheriff had the power to remit a case to the High Court for sentencing if he considered his powers were insufficient.   On 1 January 1988, the Criminal Justice (Scotland) Act 1987 came into force and increased the power of the Sheriff to pass a term of imprisonment of up to three years.           The applicant appealed against his sentence on the grounds that the sentence was too severe and that he was sentenced to three years imprisonment although on the date of his conviction the maximum term possible was two years.   He also applied for legal aid for his appeal but was refused by the Scottish Legal Aid Board on the basis that there were no substantial grounds for appeal and that the sentence did not appear excessive.           The applicant's appeal was heard on 16 June 1988 by the High Court of Justiciary.   The applicant was present in person.   No representative of the Crown was present for the prosecution.   The Court, in dismissing his appeal, held that the sentence was not too severe and that the only date relevant in determining whether a sentence was competent was the date upon which the sentence was imposed, in this case the 7 January 1988, when a three years sentence was within the competence of the Sheriff.     COMPLAINTS           The applicant complains of the deferral of his sentencing until 7 January 1988, by which time new legislative provisions had increased the sentencing power of the Sheriff from two years to three years.   The applicant complains that he was accordingly sentenced to a term of imprisonment which was not applicable at the time the offence was committed.   He invokes Article 7 of the Convention.           The applicant also complains of an inequality of arms contrary to Article 6 para. 1 of the Convention.     THE LAW   1.       The applicant has complained that he received a three years sentence of imprisonment whereas prior to 1 January 1988 a two years sentence would have been the maximum imposable by the Sheriff.   He invokes Article 7 para. 1 (Art. 7-1) which 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."           The Commission notes that the maximum penalty applicable for the criminal offence of wilful fire-raising at the time that the offence was committed was life imprisonment, whereas the applicant was sentenced to three years.   It is true that before 1 January 1988, the Sheriff only had the power to give a maximum sentence of two years imprisonment to persons convicted before him.   However, even where a person is tried before the Sheriff, it is open to the Sheriff Court, where it considers its powers of sentencing to be insufficient, to remit the person for sentencing to the High Court, which has full sentencing powers.   This applied also before 1 January 1988.           In these circumstances, the Commission finds that the change in the sentencing powers of the Sheriff Court between the commission of the offence and the sentencing of the applicant does not constitute the imposition of a heavier penalty than that applicable at the time the criminal offence was committed.           The Commission therefore finds that the applicant's complaint fails to disclose a violation of Article 7 para. 1 (Art. 7-1) of the Convention.           It follows that this complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.       The applicant has also complained of inequality of arms contrary to Article 6 para. 1 (Art. 6-1) of the Convention.           The Commission recalls that the applicant was represented at his trial and that on appeal, while he was refused legal aid and appeared to present his own case, the prosecution was not in fact present at all.   In these circumstances, the Commission finds that the applicant has not substantiated his complaint, which fails therefore to disclose any appearance of a violation of Article 6 para. 1 (Art. 6-1) of the Convention.           It follows that this part of the application is also 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.     Deputy Secretary to the Commission       Acting President of the Commission                     (J. RAYMOND)                            (S. TRECHSEL)