CEDH · CASELAW;REPORTS;ENG — 21 octobre 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 }                        EUROPEAN COMMISSION OF HUMAN RIGHTS                          Application No. 16757/90                                     S.                                   against                             the UNITED KINGDOM                          REPORT OF THE COMMISSION                        (adopted on 21 October 1992)                              TABLE OF CONTENTS                                                                    page   I.     INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . 1-2       (paras. 1-15)         A.   The application (paras. 2-4). . . . . . . . . . . . . . . 1         B.   The proceedings (paras. 5-10) . . . . . . . . . . . . . . 1         C.   The present Report (paras. 11-15) . . . . . . . . . . . 1-2   II.    ESTABLISHMENT OF THE FACTS. . . . . . . . . . . . . . . . . 3-6       (paras. 16-32)         A.   Particular circumstances of the case. . . . . . . . . . 3-5           (paras. 16-26)         B.   Relevant domestic law and practice. . . . . . . . . . . 5-6           (paras. 27-32)   III.   OPINION OF THE COMMISSION . . . . . . . . . . . . . . . . . 7-9       (paras. 33-44)         A.   Complaint declared admissible . . . . . . . . . . . . . . 7           (para. 33)         B.   Point at issue (para. 34) . . . . . . . . . . . . . . . . 7         C.   Article 6 of the Convention . . . . . . . . . . . . . . 7-8           (paras. 35-43)         D.   Conclusion (para. 44) . . . . . . . . . . . . . . . . . . 9   Dissenting opinion of Mr. L. Loucaides joined . . . . . . . . . . .10 by MM A.S. Gözübüyük and C.L. Rozakis   Dissenting opinion of Mr. E. Busuttil . . . . . . . . . . . . . . .11   APPENDIX I        History of the proceedings . . . . . . . . . . . .12   APPENDIX II       Decision on the admissibility. . . . . . . . . 13-16                  of the application   I.     INTRODUCTION   1.     The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.   A.     The application   2.     The applicant is a British citizen born in 1955 and currently serving a prison sentence in HM Prison Long Lartin.   3.     The application is directed against the United Kingdom.   The respondent Government are represented by their Agent, Mrs. Audrey Glover of the Foreign and Commonwealth Office.   4.     The case concerns the applicant's complaint that he did not receive a fair trial since he was unable to hear the proceedings during his trial.   It raises issues under Article 6 of the Convention.   B.     The proceedings   5.     The application was introduced on 8 January 1990 and registered on 20 June 1990.   6.     On 13 July 1990, the Commission decided to give notice of the application to the respondent Government and invite them to submit observations on its admissibility and merits.   7.     The Government submitted their written observations on 24 April 1991.   The applicant made no further observations.   8.     On 1O February 1992, the Commission declared the application admissible.   9.     The parties were then invited to submit any additional observations on the merits of the application.   On 19 March 1992, the applicant submitted additional observations. On 22 September 1992, the Government filed additional submissions.   10.    After declaring the case admissible, the Commission, acting in accordance with Article 28 (b) of the Convention, placed itself at the disposal of the parties with a view to securing a friendly settlement of the case.   In the light of the parties' reactions, the Commission now finds that there is no basis on which a friendly settlement can be effected.   C.     The present Report   11.    The present Report has been drawn up by the Commission in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:             MM.     C.A. NØRGAARD                  S. TRECHSEL                  E. BUSUTTIL                  G. JÖRUNDSSON                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  J.-C. SOYER                  H.G. SCHERMERS                  H. DANELIUS            Mrs.   G.H. THUNE            Sir    Basil HALL            MM.    F. MARTINEZ                  C.L. ROZAKIS            Mrs.   J. LIDDY            MM.    L. LOUCAIDES                  J.-C. GEUS                  M.P. PELLONPÄÄ                  B. MARXER   12.    The text of the Report was adopted by the Commission on 21 October 1992 and is now transmitted to the Committee of Ministers in accordance with Article 31 para. 2 of the Convention.   13.    The purpose of the Report, pursuant to Article 31 para. 1 of the Convention, is         1)   to establish the facts, and         2)   to state an opinion as to whether the facts found disclose           a breach by the State concerned of its obligations under           the Convention.   14.    A schedule setting out the history of the proceedings before the Commission is attached hereto as APPENDIX I and the Commission's decision on the admissibility of the application as APPENDIX II.   15.    The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.   II.    ESTABLISHMENT OF THE FACTS   A.     Particular circumstances of the case   16.    On 8 June 1988 the applicant stood trial at Norwich Crown Court on two counts of rape, one count of indecent assault, one count of unlawful sexual intercourse, one count of kidnapping and two counts of making threats to kill.   He was represented by solicitor and counsel.   17.    During the course of the trial the applicant was placed in the dock at the front of which was a glass screen.   It appears from the transcript that the applicant was able to hear the indictment read out at the beginning of the trial and to plead "not guilty" in response. The applicant was unable to hear some of the evidence.   He made complaints to his solicitor, who passed them on to counsel, and to counsel directly during the course of trial, but they made no application to the judge to have the applicant moved to a place where he could hear.   He also complained to the prison officer on duty in the dock that he could not hear.   At the end of each day, the applicant's solicitor and counsel informed him of the substance of what had been said.   18.    During the trial, evidence was given, inter alia, by M., the alleged victim of the offences who was a fifteen year old girl, and her mother and sister. When   M. gave evidence, the judge directed that she be moved nearer to himself and the jury since it was difficult to hear what she was saying.   19.    On 15 June 1988, the applicant was convicted on four of the counts (one count of rape, one of indecent assault , the count of kidnapping and one count of making threats to kill). He was sentenced to a total of 10 years in prison. He was unable to hear the judge when he passed sentence.   20.    The applicant's counsel advised that there were no grounds of appeal against conviction or sentence. The applicant, unrepresented, applied for leave to appeal against conviction on the grounds, inter alia, that he could not hear the proceedings.   On 13 September 1988 a single judge refused leave to appeal to the Court of Appeal against conviction.   The applicant's complaint that he could not hear was not mentioned in the refusal of leave.   21.    The applicant complained to the Solicitors' Complaints Bureau about the handling of his case by his legal representatives.   In a letter dated 19 December 1988 to the Bureau, the applicant's solicitor commented as follows on the applicant's allegations that he had taken no action in respect of the applicant's inability to hear the evidence at his trial.         "[The applicant]'s trial was apparently the first case to be       heard at the new Norwich Crown Court building.   Throughout the       trial [the applicant] sat silently in the dock.   He told me that       he is someone who has a hearing problem.   I assume that his       failure to hear what was said relates mainly to the evidence       given against him by the complainant M.   The prosecution       allegation was that [the applicant] had abused, raped, kidnapped       and threatened to kill M. and that this conduct had been going       on for about two years.   She claimed to have told no one because       of her fear of violence from [the applicant] and because of       threats he allegedly made to harm her and her family.   She spoke       in a soft voice and the Judge directed that she should give her       evidence sitting at a table positioned between Counsel and the       judge.   This meant that she was closer to the jury and her upper       body was therefore visible to the jury rather than obscured by       the witness box.   Notwithstanding this she gave her evidence with       her head bowed answering questions often with one word answers       in a soft voice.   I was nearer to her than the defendant.   I       could hear what she was saying.   It is clear that the jury, the       Judge and Counsel could also hear.   Because of the court layout       it would have been difficult for the defendant to have heard but       not impossible if his hearing had been unimpaired.   I had taken       full instructions from [the applicant] upon the committal papers       in the form of a 22 page statement.   Counsel was in my view very       well acquainted with the detail of that statement and put to the       complainant all matters which should have been put.   I agree that       [the applicant] told me and Counsel that he could not hear       everything that was being said.   Counsel took the view (which I       shared) that as she and the jury could hear and as she would no       doubt have had the opportunity of taking instructions upon any       matters arising which were not contained in her brief, then there       was nothing which needed to be done.   It is my view that if [the       applicant] had been placed close to the complainant and facing       her at the time that she was giving her evidence, then this would       have been viewed by the jury as an indication of the intimidating       behaviour of [the applicant] about which M. was complaining."         The applicant disputes that he told his solicitor that he had a hearing problem and denies that he has any such problem.   22.    The applicant renewed his application for leave to appeal to the Court of Appeal on the same grounds as before, including a letter from Prison Officer Smith, which stated:         "I was in the dock with the [applicant] and on       several occasions during the day, he asked me what was       happening as he could not hear the witnesses' statements.       On at least 3 occasions I called his solicitor and he was       told the problem.   On one of these occasions he told the       [applicant] not to worry as his barrister was doing a good       job.   I have to say that I could not hear what the witnesses       were saying."   23.    On 6 October 1989 the application was refused by the Court of Appeal. In his judgment, Lord Justice Walker said as regards the applicant's complaint that he did not receive a fair trial on being unable to hear the proceedings:         "We have seen a letter from a prison officer       relating to this matter.   There would appear to be       something in the complaint of the applicant,       namely, that he could not hear properly at all       times what was going on.   There is no doubt in       our minds, however, that his solicitor and his       counsel had not the slightest difficulty in       following the proceedings and in representing him       in a way which could not possibly be complained       about."   24.    On 6 November 1989 the applicant wrote to Norwich Crown Court complaining about the acoustics.   He was informed that as a result of a recent complaint the acoustics of the court were under review.   25.    On 10 November 1989, the applicant was informed by letter from the Registrar of Criminal Appeals that he could not appeal to the House of Lords, since he had not had an appeal dismissed by the Court of Appeal.   26.    A similar complaint concerning acoustics in the courtroom in which the applicant had been tried was made in another case over a year later.   As a result, a report was commissioned concerning the acoustics.   This report, which was completed in 1990, concluded that, although the glass screen had the effect of reducing the sound level in the dock by 2dBA, a person speaking from the Bench was nonetheless intelligible.   It recommended that a sound reflector be installed above the dock to counteract the effect of the glass screen.   B.     Relevant domestic law and practice         Presence of the accused   27.    In England and Wales, the right of an accused to be present in court at his trial is a matter of common law and not statute law.   The right of an accused to hear the proceedings is an adjunct of this common law rule.   28.    The general common law rule was stated by Lord Reading CJ in R. v. Lee Kun (1916) 1 KB 337 at 341, (1915) 11 Cr App R 293 at 300, as follows:         "There must be very exceptional circumstances to justify       proceeding with the trial in the absence of the accused.   The       reason why the accused should be present at the trial is that he       may hear the case made against him and have the opportunity ...       of answering it.   The presence of the accused means not only that       he must be physically in attendance, but also that he must be       capable of understanding the nature of the proceedings."   29.    The trial judge may, if he considers that the accused in the dock may intimidate a witness, remove the accused from the presence of the witness, though not out of hearing: see R v. Smellie (1919) 14 Cr App R 128, Court of Criminal Appeal (the appellant was compelled to sit on the stairs leading out of the dock out of sight of a child witness while she was giving her evidence).         Appeal procedure   30.    A person convicted of an offence on indictment in England and Wales may appeal to the Court of Appeal against his conviction: Criminal Appeal Act 1968 (hereinafter referred to as CAA 1968), s.1(1). The appeal may be on any ground which involves a question of law alone and, with the leave of the Court of Appeal, on any ground which involves a question of fact alone, or a question of mixed law and fact, or on any other ground which appears to the Court of Appeal to be a sufficient ground of appeal.   31.    Leave may be granted by the Court of Appeal or by a single judge of the court: CAA 1968, s.1(2)(b), 31(1), (2)(a).   If the single judge refuses an application on the part of an appellant to give leave to appeal, the appellant is entitled to have the application determined by the full Court of Appeal: CAA 1968, s.31(3).   32.    The Court of Appeal must allow an appeal against conviction if it thinks that the conviction should be set aside on the ground that under all the circumstances of the case it is unsafe and unsatisfactory (CAA 1968, s.2(1)(a)), or the judgment of the court of trial should be set aside on the ground of a wrong decision on any question of law (s.2(1)(b)), or that there was a material irregularity in the course of the trial (s.2(1)(c)).   However, notwithstanding that the court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, it may dismiss the appeal if it considers that no miscarriage of justice has actually occurred (s.2(1) proviso).   III.   OPINION OF THE COMMISSION   A.     Complaint declared admissible   33.    The Commission declared admissible the applicant's complaint that he did not receive a fair trial since he could not hear the proceedings which resulted in his conviction.   B.     Point at issue   34.    Accordingly, the issue to be determined is whether there has been a violation of Article 6 para. 1 (Art. 6-1) of the Convention.   C.     Article 6 (Art. 6) of the Convention   35.    Article 6 (Art. 6) of the Convention provides in its first sentence:         "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."   36.    The applicant complains that he did not receive a fair hearing as required by the above provision since he was unable to hear the proceedings at his trial.   37.    While this requirement is not expressly mentioned in Article 6 (Art. 6) of the Convention, the Court has held that the object and purpose of the provision taken as a whole indicated that a person charged with a criminal offence is entitled to take part in the hearing (see Eur. Court H.R., Colozza Judgment of 12 February 1985, Series A. No. 89, p. 14, para. 27).   The Court stated:         "Moreover, sub-paragraphs (c), (d) and (e) of paragraph 3       guarantee to 'everyone charged with a criminal offence' the right       'to defend himself in person', 'to examine or have examined       witnesses' and 'to have the free assistance of an interpreter if       he cannot understand or speak the language used in court', and       it is difficult to see how he could exercise these rights without       being present."   38.    The Colozza case concerned an applicant who had been tried in his absence.   The Commission considers however that the principle of justice illustrated in that case must extend equally to the present case.   An accused person must be assured of the effective exercise of his right to take part in the proceedings.   The presence of an applicant in the court is rendered nugatory if he is unable to hear or to understand the proceedings - cf. Article 6 para. 3 (e) (Art. 6-3-e) of the Convention.   The Commission also notes that common law in England acknowledges the right of an accused "to hear the case made against him" (see para. 27 above).   39.    The Government have submitted that the complaint of the applicant is essentially against his legal representatives who chose not to bring the problem to the attention of the trial judge, who was responsible for the conduct of the trial.   They submit that as a result the matter cannot be held to engage responsibility of the United Kingdom under the Convention.   They also submit that the acoustics report does not support a contention that the acoustics of the courtroom were inadequate.   40.    The Commission recalls that the applicant's complaint that he was unable to hear the evidence, is substantiated by the prison officer who sat beside him and by his solicitor, who acknowledged that the applicant complained of this at the time.   The solicitor however explained in his letter of 19 December 1988 that he and counsel took the decision that nothing should be done, since they had taken full instructions from the applicant on the basis of the committal statements and would have the opportunity of taking further instructions on any new matters arising.   Further, he had taken the view that it would have been undesirable to move the applicant nearer to the witness M., the alleged victim of the offences, as this could conceivably have had an intimidating effect.   41.    In the present case, therefore, the applicant's legal representatives took the decision not to bring the applicant's hearing problem to the attention of the Court.   The Commission recalls that a lawyer cannot in the ordinary course of events be regarded as a State organ and his acts and omissions cannot incur the liability of the High Contracting Party in themselves.   Domestic courts are however under an obligation to ensure an accused's effective defence and, if notified that an officially appointed lawyer is prevented from acting, or is shirking his duties, must replace him or cause him to fulfill his obligation (e.g. Eur. Court H.R., Artico judgment of 13 May 1980, Series A no. 30 pp. 15-16 para. 33).   For example, where an applicant complains that his defence rights under Article 6 para. 3 (Art. 6-3) have not been effectively guaranteed as a result of the conduct of his lawyer appointed under legal aid, this will not generally raise an issue under that provision unless the judicial authorities were aware of the problem and failed to take the appropriate steps to remedy it (see e.g. No. 9022/80, Dec. 13.7.1983, D.R. 33 p. 21).   While the Commission notes that the applicant also mentioned the problem to the prison officer beside him, the prison officer only passed on the information to the applicant's representatives.   As the prison officer was not a court official or officer of the court, the Commission finds that this was not sufficient to be considered as putting the court on notice of the problem.   The Commission finds therefore that the failure to raise the matter or to give the trial court the opportunity to remedy the defect at the relevant time was the responsibility of the applicant's legal representatives.   While the applicant did raise it himself later on appeal, the Court of Appeal found that the applicant had nevertheless received a fair trial since his solicitors and counsel had had no difficulties and had represented him in a way which could not be complained about.   42.    Further, as regards the acoustics of the courtroom, the Commission notes that only one other similar complaint was made over a year later and that the acoustics report found that while the glass screen reduced the sound level in the dock, a person speaking normally from the front of the courtroom was nonetheless intelligible.   The Commission therefore finds no evidence that the respondent Government failed to provide adequate facilities for the conducting of criminal proceedings.   43.    The Commission consequently finds that the facts of the case do not disclose any failure on the part of the United Kingdom in its obligation under Article 6 para 1 (Art. 6-1) to ensure that the applicant received a fair trial in the determination of the criminal charge against him.   D.     Conclusion   44.    The Commission concludes by 11 votes to 7, that there has been no violation of Article 6 para. 1 (Art. 6-1) of the Convention.      Secretary to the Commission         President of the Commission          (H.C. KRÜGER)                        (C.A. NØRGAARD)   Dissenting Opinion of Mr. L. Loucaides joined by MM. A.S. Gözübüyük and                             C. L. Rozakis.         I am unable to agree with the conclusion of the majority that in this case there has been no violation of Article 6 para. 1 of the Convention.         The applicant's complaint is that he did not receive a fair hearing because he was unable to hear all the evidence given by the witnesses during his trial. His complaint is supported by the prison officer who was in the dock with him at the material time.         The applicant did all that he could to bring his complaint to the notice of the trial court but his counsel chose not to make an application for arrangements to be made to enable the applicant to hear all the evidence. In his appeal against his conviction the applicant raised the complaint himself and the Court of Appeal found that the complaint was substantiated. Yet the Court of Appeal which has the power to uphold appeals where there has been a material irregularity in the course of a trial, saw no problem in the case since the applicant's counsel had no difficulties in following the proceedings. The court appears to have given no weight to the importance of the ability of an accused to hear the proceedings which in this case involved seven charges of serious criminal offences and which attracted a conviction and sentence of 10 years' imprisonment. The Court made no mention of any exceptional circumstances which might justify this shortcoming in the trial.         Thus although the Court admitted that the applicant could not hear the proceedings at his trial and therefore could not himself take part in the hearing according to the requirements of Article 6 (1), this departure from the concept of "fair hearing" was in effect endorsed by the court through the dismissal of the relevant appeal of the applicant. The reason given by the Court i.e. that it was sufficient that the applicant's counsel could follow the proceedings discloses a wrong interpretation of the concept of a "fair hearing". An accused's right to understand the proceedings implied from his right to be present cannot be satisfied by the mere fact that his counsel alone could follow the proceedings.         In view of the above, I find that the applicant was deprived of a fair hearing and therefore he was a victim of a violation of Article 6 para. 1 of the Convention.                     Dissenting Opinion of Mr. Busuttil         I find myself in disagreement with the opinion of the majority of the Commission that there has been no violation of Article 6 para. 1 of the Convention in the present case.         The applicant's complaint is that he did not receive a fair hearing in that he was unable to   hear the proceedings at his trial. Such a requirement is not mentioned in so many words in Article 6 but the Court in Colozza (loc. cit) has held that the object and purpose of the Article read as a whole indicates that a person charged with a criminal offence is entitled to take part in the hearing.         The accused is usually entitled to be present in court at the trial of his case, and the right to hear the proceedings is an adjunct of this rule.   Indeed, the presence of the accused in court would be virtually pointless if he were not at the same time able to hear and understand the proceedings.         The applicant in this case was placed in the dock, at the front of which there was a glass screen.   He was unable to hear the proceedings because of this screen.   He did all he possibly could during the trial by complaining to prison officer Smith who was standing beside him in the dock, and then raised it himself on appeal before the Court of Appeal after his counsel had advised him that there were no grounds on which he could appeal.         The Court of Appeal found the complaint to be substantiated but refused the application on the ground that his legal representatives had had no difficulty in following the proceedings.   It attached no importance at all to the inability of the accused himself to hear what was going on.         To my mind, this is an unacceptable proposition since it is not only important that justice be done but that it should be heard - as much as seen - to be done by the person most closely and directly concerned in the proceedings, namely the accused who in this particular case had to answer serious criminal charges attracting a conviction and sentence of ten years' imprisonment.   Where justice is not sufficiently transparent to him, the accused might and, indeed human nature being what it is - would in all probability be left with a gnawing sense of latent injustice.   It was small consolation to him to be told by the Court of Appeal without more, that his legal advisers had heard everything and that therefore he had nothing to complaint about.   It was no answer to an accused who in any event was dissatisfied with the performance of his legal aid   advisers.         A fair hearing does not simply mean that an accused is entitled to be heard;   it also means that he must be able to conduct an effective defence.   In my opinion an accused cannot defend himself effectively if he is unable to hear what the witnesses are saying.   In other words, he must in the first place be able to hear what is going on around him if he is to be heard in a fair and proper manner.         For these reasons   I consider that the accused did not receive a fair trial in this case and that therefore there has been a violation of Article 6 para. 1 of the Convention.                                 Appendix I                         HISTORY OF THE PROCEEDINGS   Date                              Item ________________________________________________________________   08.01.90          Introduction of the application   20.06.90          Registration of the application   Examination of admissibility   13.07.90          Commission's decision to invite the parties to submit                  observations on the admissibility and merits   24.04.91          Government's observations   10.02.92          Commission's decision to declare the application                  admissible   Examination of the merits   10.02.92          Commission's deliberations on the merits   19.03.92          Applicant's observations on the merits   04.07.92          Consideration of the state of proceedings   22.9.92           Government's observations on the merits   13.10.92          Commission's deliberations on the merits and final                  votes   21.10.92          Commission's adoption of the Report