CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 mai 1994

.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. 23094/93                       by R. O.                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 11 May 1994, the following members being present:              MM.    A. WEITZEL, President                  C.L. ROZAKIS                  A.S. GÖZÜBÜYÜK            Mrs.   J. LIDDY            MM.    M.P. PELLONPÄÄ                  G.B. REFFI                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV              Mrs.   M.F. BUQUICCHIO, Secretary to the 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 5 October 1994 by R. O. against the United Kingdom and registered on 15 December 1993 under file No. 23094/93;         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 British citizen born in 1952.   He is detained at Wormwood Scrubs prison and is represented before the Commission by Mr. I.H. Pearson, solicitor, of Messrs. Tanner and Taylor, Aldershot.   The facts of the application, as submitted by the applicant's representative and apparent from the documents submitted, may be summarised as follows.         The applicant pleaded guilty to two counts at Portsmouth Crown Court on 4 January 1991.   The first count was of wounding with intent to cause grievous bodily harm, the second was of having an offensive weapon and related to a separate incident.   After detention for the preparation of psychiatric reports, on 19 April 1991 an interim Hospital Order was made for the applicant's treatment at Broadmoor Hospital.         On 18 October 1991 the applicant applied to withdraw his pleas of guilty.   Following argument and further proceedings on 9 and 15 April 1992, the trial judge ruled that the applicant would not be allowed to change his plea.   The applicant was convicted and sentenced to eight years' imprisonment on 24 September 1992.         On 8 June 1993 two applications were heard by the Court of Appeal.         The first application was the applicant's renewed application for leave to appeal against conviction.   The Court of Appeal found as follows:         "The sole ground of appeal is that the learned judge was wrong in       refusing to allow the applicant to change his plea.       ...       The prosecution case was that at about 6.45 p.m. on 20 March 1989       the applicant stabbed an 18 year-old girl, a total stranger to him,       in an unprovoked attack.   He struck several blows.   Fortunately the       victim was saved from more serious injury by the leather coat she       was wearing.   However, she did suffer a one-and-a-half inch wound       to her right shoulder which required seven stitches.   A long-bladed       carving knife was found at the scene.         The applicant was arrested eighteen months later in the early hours       of 6 September 1990 in Portsmouth.   He was in possession of two       knives on that occasion. ...       ...         Some nine months had passed between the applicant's plea of guilty       and his application to withdraw it on 18 October 1991.   In short the       chronology of events after his apprehension was as follows.   He was       arrested on 6 September 1990.   On 8 September he had the informal       chat with the police officer and asked to see   his solicitor.   He       was then interviewed in the presence of his solicitor and admitted       the offence in count 1.   After that he made a statement to his       solicitor in which he agreed that he had admitted the offence to the       police.       ...         On 3 January 1991, there was a conference with his then counsel and       a Mrs. Ellam, who was a legal executive from his then solicitors.       At that conference the applicant raised the question of his pleading       not guilty.   But in the result on 4 January, the next day, he       pleaded guilty to both charges.         Both the applicant and Mrs. Ellam were called to give evidence       before the judge on the application to withdraw the plea of guilty.       They were in complete disagreement.   The applicant said that he       admitted the wounding to the police because the officers told him       that it would be better for him and for his mother's health.   He       told his solicitor that he would be pleading guilty, but not the       reason.   He could not remember much about the statement he made to       the solicitor which itself amounted to an admission.   He said that       Mrs Ellam told him that as he had admitted the attack, if he wanted       to plead not guilty he would have to change his legal       representatives;   that a guilty plea would result in the case being       over more quickly; and that he might receive a suspended sentence.       He subsequently changed solicitors, he said, because he wanted to       plead not guilty.         When cross-examined, the applicant said that the interview with the       police in which he admitted his guilt was in the presence of his       solicitor and he agreed that he had not been pressurised to make the       admission.   Counsel had warned him that although he might get a       suspended sentence, he could receive a sentence for life       imprisonment.       ...         On 9 April, Mrs. Ellam told the court that at the conference on 3       January 1991 she went through the evidence with the applicant.   He       said that the instructions that he gave the solicitor (Mrs. Ellam's       principal) to the effect that he wanted to plead guilty were       correct.   She denied discussing sentence with the applicant, or       telling him that the case would be over more quickly if he pleaded       guilty.   He did not tell her that he had admitted the offence       because of police pressure.   It was put to her in cross-examination       that she had advised the applicant to plead guilty.   She denied       that.   She said that she asked him whether he would be entering a       guilty plea.   He said yes, because, he said, he did it.         Before the learned judge there were a number of medical reports.       Whilst it is true that the applicant told a number of doctors that       he was not guilty of the stabbing, he also told two doctors in       February and March 1991 that he was guilty, giving some description       of the circumstances of the offence.         There was also a statement, unchallenged by the defence, from       counsel who had appeared for the applicant.   He said that the       applicant had freely and voluntarily admitted his guilt in       conference, having discussed the case with Mrs. Ellam.       ...         It was common ground that the learned judge had a discretion to       allow a change of plea at any time before sentence. ...   However,       in a careful ruling in which he reviewed and evaluated the evidence       he had heard, he held that Mrs. Ellam's account was correct and the       applicant's account was rejected.   The learned judge was satisfied       that the applicant had pleaded guilty voluntarily and acknowledged       that he had in fact committed the stabbing and also that he was       guilty of the offence charged on the second count.       ...         The learned judge exercised his discretion, bearing [all the       appropriate] principles in mind, not to allow a change of plea.       ...         ... The Court [in R. v. Cantor (1991) CLR 481] did not lay down any       specific practice to be followed in any specific circumstances but       ruled that it must be left to the trial judge to decide what he will       do, if anything, beyond listening to counsel in order to satisfy       himself that he has sufficient material before him to deal properly       with an application to change the plea.   That, in our judgment, is       what the learned judge did here.       ...         [The judge] had the duty of satisfying himself that he had       sufficient material upon which to decide the application.   He       clearly did satisfy himself that he was so and we cannot fault the       way in which the learned judge proceeded.   Indeed we consider,       having read the extensive transcript of the proceedings on the       application, that the learned judge handled the matter admirably.       In the circumstances this application is refused."         The second application was a reference by the Attorney General under Section 36 of the Criminal Justice Act 1988 for a review of the sentence on the ground that it was unduly lenient.   The Court of Appeal, having particular regard to the unanimous opinion of the doctors that the applicant "represents a high risk to women and one which is not at present treatable and one which therefore is likely to persist for an indefinite period", considered that "the only sentence which could properly be imposed here, having regard to the need to protect the public, was an indeterminate sentence".   It ordered a life sentence in substitution for the trial judge's sentence of eight years' imprisonment.   COMPLAINTS         The applicant alleges a violation of Article 6 of the Convention in the following respects:   (a)    he was denied trial by jury;   (b)    the question of his guilt was determined not by reference to       evidence as to whether he had committed the offence, but by       reference to the events surrounding his initial guilty plea;   (c)    the evidence concerning the applicant's instructions was privileged,       and he should not have been required and/or encouraged to waive that       privilege;   (d)    he was convicted on the basis of a confession whose validity he was       not permitted to challenge, but was sentenced on the premise that       he had denied committing the offence to the doctors who examined       him;   (e)    he was sentenced to life imprisonment without the possibility of       review;   (f)    he was convicted on the basis of an equivocal guilty plea and so the       case was not proved against him (Article 6 para. 2);   (g)    he was unable to defend himself against the charge by reason of the       refusal to let him change his plea (Article 6 para. 3(a));   (h)    he was unable to examine witnesses against him because of the       refusal to let him change his plea (Article 6 para. 3(d).   THE LAW         The applicant alleges a violation of Article 6 (Art. 6) of the Convention in several respects.         With regard to the judicial decisions of which the applicant complains, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. The Commission refers, on this point, to its constant case-law (see e.g. No. 458/59, Dec. 29.3.60, Yearbook 3 pp. 222, 236; No. 5258/71, Dec. 8.2.73, Collection 43 pp. 71, 77; No. 7987/77, Dec. 13.12.79, D.R. 18 pp. 31, 45).         Article 6 (Art. 6) of the Convention provides, so far as relevant, as follows:         "1.   In the determination ... of any criminal charge against him,       everyone is entitled to a fair and public hearing ... by an       independent and impartial tribunal established by law ...         2.    Everyone charged with a criminal offence shall be presumed       innocent until proved guilty according to 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;         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 recalls that the guarantees in paragraphs 2 and 3 of Article 6 (Art. 6-2, 6-3) of the Convention are specific aspects of the general concept of a fair trial contained in paragraph 1 (Art. 6-1)(cf., for example, Eur. Court H.R., Unterpertinger judgment of 24 November 1986, Series A no. 110, p. 14, para. 29).   It is in the first place for the domestic authorities to determine rules regulating procedural aspects of criminal proceedings, subject to the supervisory jurisdiction of the Convention organs in considering the fairness of proceedings (cf. the Commission's approach in No. 12002/86, Dec. 8.3.88, D.R. 55 p. 218).         The Commission considers that a rule which militates against changes of pleas which are unequivocal and voluntary cannot be said to compromise the fairness of proceedings as such.   The Commission will therefore consider the impact of the refusal to permit the applicant to change his plea on the proceedings as a whole.         In the present case the applicant was fully represented up until his guilty plea on 4 January 1991, and only applied for leave to change his plea (after he had changed representation) on 18 October 1991.   The trial judge considered the question of the events leading up to the applicant's guilty plea in some depth, as is apparent from the Court of Appeal judgment, and found that the plea was unequivocal and voluntary.   He therefore did not permit the change of plea.   The Court of Appeal scrutinised the way in which the trial judge approached the issue, recalled that he had a discretion to permit the change of plea but had preferred the evidence given by the applicant's former representatives to the applicant's own evidence.   The Court of Appeal accepted that the judge had heard all the material necessary to decide the case, and considered that he had "handled the matter admirably".         In these circumstances, the Commission finds that the fairness of the proceedings against the applicant was not impaired by the refusal to permit him to change his plea, and that in the light of this finding the Commission is not required to consider separately the applicant's other complaints.         It follows that the application is manifestly ill-founded as a whole 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 to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (A. WEITZEL)