CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 13 mai 1992

.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 }                             < FIRST CHAMBER >                         AS TO THE ADMISSIBILITY OF                         Application No. 18542/91                       by G.M.                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 13 May 1992, the following members being present:                MM.   F. ERMACORA, Acting President of the First Chamber                   E. BUSUTTIL                   A.S. GÖZÜBÜYÜK              Sir   Basil HALL              Mr.   C.L. ROZAKIS              Mrs. J. LIDDY              MM.   M. PELLONPÄÄ                   B. MARXER                Mr.   M. de SALVIA, Secretary to the First Chamber           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 July 1991 by G.M. against the United Kingdom and registered on 17 May 1991 under file No. 18542/91;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a citizen of the United Kingdom born in 1960 and detained in HM Prison Parkhurst, Isle of Wight.   He is represented before the Commission by Mmes Deighton and Guedalla, Solicitors, London.         The facts of the present case, as submitted by the applicant and which may be deduced from documents lodged with the application, may be summarised as follows:         The applicant was arrested on 16 August 1986 and charged with conspiracy to cause explosions likely to endanger life or cause serious injury to property in the United Kingdom between January 1983 and January 1984.   Part of the prosecution case was evidence of the applicant's fingerprints on parts of two explosive devices which were found in arms caches in London and on one device which was found in a public garden and safely disposed of before it exploded.   The applicant denied any involvement in the making of these devices.   He explained that he had worked in a factory on the repair and maintenance of gaming machines and C.B. radios and, therefore, he would have been in daily contact with such material.   The owner of the factory had been involved in the Irish National Liberation Army (INLA) activities, but the applicant denied any involvement, support or sympathy for the Irish Republican Army (IRA) himself.         Ten days before the trial the prosecution sought leave to extend the period of time covered in the charge to include a period when an IRA bomb had exploded in Hyde Park, London, using an explosive device comparable with those found.   The Hyde Park bomb had caused appalling carnage.   The applicant's defence lawyers objected to the request in view of the short notice and the great prejudice to the applicant in being tenuously linked to one of the most horrific terrorist outrages. The trial judge was of the view that the defence to the extension could be prepared within a week and granted the prosecution's application. However he left it open to the defence to apply for an adjournment on the first day of the trial if he were wrong.   No such adjournment was requested.         Towards the end of the trial, after the applicant's counsel had made submissions to the jury, the prosecution sought and obtained leave to re-amend the charge from a reference to "the United Kingdom" to a reference to "the United Kingdom and elsewhere".   The trial judge considered that the amendment was of little importance for the conspiracy issue and allowed it, but defence counsel were of the opposite view.   Accordingly the judge permitted defence counsel to address the jury again on the re-amended charge.         The applicant was convicted and sentenced to 25 years' imprisonment.   He appealed to the Court of Appeal on 17 grounds which the Court of Appeal grouped under 4 main heads:         "1.   That the case which the applicant had to meet was unfairly       expanded, in terms of geography and of time, both before and       during the trial.         2.    That there was unfairness during the trial in that       prosecuting counsel and a prosecution witness were allowed       too much latitude, and there were unfair interventions by       the judge.         3.    That there was a lack of fairness in the summing-up.         4.    That as a result of a recent expert examination there was       reason to doubt whether a fingerprint attributed to the applicant       at the trial was in fact his."         On 18 January 1991 the Court of Appeal dismissed the applicant's appeal.   As regards the amended charge, it considered that the applicant had had ample prior warning of the general nature of the evidence upon which the prosecution intended to rely at the trial. Section 5 of the Indictments Act 1915 affords a wide power to grant leave to amend a charge so long as the amendment causes no injustice to the accused.   The Court of Appeal found that the trial judge had correctly assessed the amendment issues.   It noted, inter alia, that the applicant had not requested an adjournment at the beginning of the trial in respect of the first amendment and that defence counsel had been permitted to address the jury again after the second amendment even though, in the Court of Appeal's view, this would not have been necessary given its insignificance.         The Court of Appeal held that the applicant's allegations concerning the unfair conduct of the trial by the judge were wholly unfounded.   It also heard the applicant's fresh evidence concerning fingerprints, but concluded that ultimately the testimony of the applicant's expert witness only served to confirm the prosecution's case against the applicant.     COMPLAINTS         The applicant complained that he had been denied a fair hearing by the trial court, contrary to Article 6 para. 1 of the Convention. He criticised the trial judge's conduct of the case and alleged that he had not been informed promptly of the full charge against him or given adequate time and facilities to prepare his defence, contrary to Article 6 para. 3 (a) and (b) of the Convention.   He also claimed that he had not enjoyed equality of arms with the prosecution over the examination and attendance of witnesses, contrary to Article 6 para. 3 (d) of the Convention.   As a result of these matters and the elasticity and uncertainty of the charge against him, he complained that he had been unlawfully deprived of his liberty, contrary to Article 5 of the Convention.     THE LAW   1.     The applicant complained that he did not receive a fair hearing at first instance and that his defence rights were violated.         The provisions of Article 6 (Art. 6) of the Convention relevant to the present case read as follows:         "1.   In the determination 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;              b. to have adequate time and facilities for the preparation            of his defence; ...              d. to examine or have examined witnesses against him and to            obtain the attendance and examination of witnesses on his            behalf under the same conditions as witnesses against him            ..."         The Commission notes that the trial judge allowed the charge against the applicant to be amended twice.   The first and most important amendment 10 days before the trial extended the time span covered by the charge.   However the applicant did not ask for an adjournment at the beginning of his trial on the basis that he had had insufficient time to prepare an amended defence even though the trial judge had left this possibility open to him when granting the amendment.   The Commission finds, therefore, that in this respect the applicant failed to exhaust domestic remedies, as required by Article 26 (Art. 26) of the Convention, and that this part of the case must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.         The second amendment at the end of the trial, deemed immaterial by the trial and appeal courts to the elements of a charge of conspiracy, extended the geographical span of the charge from the United Kingdom to the United Kingdom and elsewhere.   However the Commission notes that the applicant's defence counsel had a full opportunity to object to this amendment both at the trial and on appeal and that defence counsel were given another opportunity to address the jury on the matter even though the defence case had been closed.   In the absence of any clear arbitrariness, the Commission is not competent to evaluate whether the domestic court's assessment of the importance of this issue was correct.   It suffices for the purposes of Article 6 (Art. 6) of the Convention that the applicant had every opportunity to challenge the amendment.   In the circumstances of the present case the Commission concludes that, in permitting the second amendment to the charge against the applicant, the applicant's rights under Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the Convention were not infringed. It follows that this aspect of the case is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         The Commission notes the applicant's allegations that the trial judge had unfairly conducted the case and that he did not enjoy parity with the prosecution over the examination and attendance of witnesses. In dealing with complaints of the present kind the Commission must have regard to the proceedings as a whole, including appeal proceedings which could rectify alleged deficiencies in the trial.   The Commission observes that the Court of Appeal examined fresh evidence put forward by the applicant and heard an expert witness on his behalf.   It dismissed the applicant's appeal as unfounded.   The Commission finds, after an examination of the case-file as submitted by the applicant, no evidence which might substantiate the applicant's allegations.   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.     Finally the applicant complained that he has been unlawfully deprived of his liberty contrary to Article 5 (Art. 5) of the Convention, the relevant part of para. 1 of which 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 finds, however, no evidence in the case to suggest that the applicant is not lawfully detained after conviction by a competent court pursuant to Article 5 para. 1 (a) (Art. 5-1-a) of the Convention.   It follows that this aspect of the application must also be rejected as being manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission unanimously         DECLARES THE APPLICATION INADMISSIBLE.             Secretary                          Acting President to the First Chamber                   of the First Chamber            (M. de SALVIA)                          (F. ERMACORA)