CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 1995

.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. 24725/94                       by Adrian FOSTER                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 11 January 1995, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    F. ERMACORA                  E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS              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 15 March 1994 by Mr. Adrian Foster against the United Kingdom and registered on 28 July 1994 under file No. 24725/94;         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 United Kingdom citizen, born in 1957. The facts of the case, as submitted by the applicant, may be summarised as follows.         In August 1992, the applicant set fire to a house occupied by his sister and her husband in which the applicant's wife and children were staying. He was charged with alternative counts of arson with intent to endanger life, arson being reckless as to whether life was endangered and simple arson.         The applicant, who admitted that he had started a fire at his sister's house and that he had used a petrol can in the attack, argued that he had neither deliberately nor recklessly endangered life and was therefore guilty only of simple arson if at all. During the investigation it was suggested that a neighbour may have witnessed the attack and spoken to the applicant's sister immediately afterwards. No details of any such witness were made available by the prosecution.         At his trial, the applicant sought to submit two psychiatric reports as to his mental state at the time of the attack. The judge ruled the reports inadmissible but indicated that the applicant could, if he wished, call the authors of the reports to give oral evidence as to the question of recklessness.         The applicant had legal aid up to and including trial at Stoke- on-Trent Crown Court. He was represented by counsel on the first day of his trial, 22 March 1993. He then dispensed with counsel's services and acted in person for the second and third days of the trial when, inter alia, he presented a defence of automatism. He re-engaged counsel for the remainder of the trial. The judge declined to leave the defence of automatism to the jury.         On 26 March 1993, the applicant was found guilty of arson with intent to endanger life. Following counsel's plea in mitigation, the applicant was sentenced to 12 years' imprisonment.         The applicant's trial legal aid covered counsel's advice on appeal. Counsel advised that there were no arguable grounds for an appeal against conviction. However, he considered the sentence excessive and provided the applicant with draft grounds of appeal against sentence.         The applicant rejected counsel's advice and made an application to the Court of Appeal for leave to appeal against conviction and sentence and for legal aid to pursue the appeal. He submitted his own grounds of appeal, alleging inter alia defects in the judge's directions to the jury and in the treatment of evidence at trial. The applicant sought assistance from a solicitor not previously involved in the case. The solicitor submitted to the Court of Appeal the grounds of appeal against sentence originally drafted by counsel. The court rejected these, the applicant already having submitted his own grounds. The applicant's trial legal aid did not cover further legal assistance on appeal and he therefore continued to act in person.         On 26 August 1993 the single judge refused leave and legal aid. On 21 December 1993, the Full Court confirmed the refusal.   COMPLAINTS   1.     The applicant complains that his trial failed to meet the requirements of Article 6 para. 1 and 3(d) of the Convention. He points to the judge's refusal to admit psychiatric reports and the failure of the prosecution to supply details of the unidentified witness. He complains that the judge failed to leave the defence of automatism to the jury and misdirected the jury as to the elements of "intention" and "recklessness" in the offences charged. The applicant also alleges that his counsel took a mistaken view of the defences of automatism and insanity, further contributing to the unfairness of the trial.         The applicant complains of the absence of legal aid to pursue his appeal against conviction as well as sentence.   2.     The applicant asserts that his mental state at the time of the attack was such that he could not have been guilty of the offence for which he was convicted. He complains that he was consequently penalised for conduct which did not constitute an offence under national law at the time when it was committed, in violation of Article 7 of the Convention, and that his imprisonment violates Article 5 para. 1 of the Convention because it is not "lawful detention after conviction by a competent court" within the meaning of sub-paragraph (a) of that provision.   3.     The applicant also invokes Article 13 of the Convention.   THE LAW   1.     The applicant complains that he did not receive a fair trial as required by Article 6 paragraph 1 (Art. 6-1) of the Convention and that the defence rights guaranteed by Article 6 para. 3 (d) (Art. 6-3-d), were not respected. Insofar as the complaints relate to the absence of legal aid on appeal, the Commission has also examined them under paragraph 3 (c) of Article 6 (Art. 6-3-d).         Article 6 (Art. 6) of the Convention, so far as relevant, provides:         "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:       ...            c.     to defend himself in person or through legal       assistance of his own choosing or, if he has not sufficient means       to pay for legal assistance, to be given it free when the       interests of justice so require;              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 specific guarantees provided by Article 6 para. 3 (Art. 6-3) must be interpreted in the light of the general principle of fairness laid down in Article 6 para. 1 (Art. 6-1) of the Convention. The Commission is required to consider whether the proceedings as a whole were conducted in conformity with these provisions of the Convention (see, for example, Can v. Austria, Comm Report 12.7.84, Eur. Court H.R., Series A no. 96).         With regard to the judicial decisions in the case, 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 errors of law or fact on the part of 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 established case-law (e.g. No. 12505/86, Dec. 11.10.88, D.R. 58 pp. 106, 110 with further references).         The Commission further recalls that the admissibility of evidence is primarily a matter for regulation by domestic law, and as a rule it is for the national courts to assess the evidence before them (cf. Eur. Court H.R., Windisch judgment of 27 September 1990, Series A no. 186, p. 10, para. 25).         In the present case, the applicant admitted having started a fire at his sister's house and having used a petrol can in the attack. The central dispute at trial concerned whether, given the manner of the attack and the applicant's degree of awareness of the risk to life, the ingredients of the offences charged - in particular the requisite elements of "intention" or "recklessness" - were established.         It appears to the Commission that there was substantial material before the jury, including the applicant's own admissions as to the nature and purpose of the attack, on which the applicant's mental state could be evaluated. Notwithstanding the judge's exclusion of written psychiatric reports, the applicant was not prevented from calling oral expert evidence to support his contentions as to his mental health and his capacity to appreciate risks at the time of the attack. The applicant has produced no evidence to suggest that the identity of the neighbour who supposedly witnessed the attack was deliberately withheld from the defence by the prosecution, nor does he show why the defence could not have made its own enquiries as to this person's identity.         The applicant had ample opportunity to make legal submissions in his defence, including those as to automatism and insanity. The Commission recalls that the applicant re-engaged counsel to address the jury at the end of the trial. The Court of Appeal found that there was no reason to doubt the fairness or accuracy of the judge's summing-up.         As to the proceedings before the Court of Appeal, the applicant has not contended that in refusing legal aid, the court failed properly to consider whether the interests of justice required that legal aid should be granted. The single judge had before him the applicant's grounds of appeal, in which the applicant made essentially the same complaints about his trial (supported by citation of domestic case-law) as he now puts to the Commission, as well as a transcript of the trial judge's summing-up.         In his written reasons for refusing leave and legal aid, the single judge expressed the view that the applicant had no reasonable prospect of persuading the Full Court to allow an appeal against conviction. As to sentence, the single judge noted that the trial judge had "considered all possible mitigation" and did not find the sentence "manifestly excessive". The Full Court evidently took a similarly unfavourable view of the applicant's prospects of success.         The Commission observes that trial legal aid covered counsel's advice on the merits of an appeal as well as preparation of grounds of appeal against sentence. The Commission finds no indication that the applicant was unable to put to the Court of Appeal all the matters he considered relevant to the application which he made, contrary to counsel's advice, for leave to appeal against both conviction and sentence. Since leave was refused for lack of merit, the interests of justice cannot be said to require that the applicant receive further financial assistance to pursue his case.         The Commission concludes that applicant's complaints in relation to the proceedings disclose no appearance of a violation of Article 6 (Art. 6) of the Convention.         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.     Insofar as the applicant's complaints relate to the quality of services provided by counsel, the Commission recalls that under Article 25 para. 1 (Art. 25-1) of the Convention it may only consider applications where the applicant alleges a violation by one of the Contracting Parties of the rights and freedoms set out in the Convention and where that Party has recognised the competence of the Commission. The Commission may not receive applications directed against private individuals. It follows that the application is, to this extent, incompatible ratione personae with the provisions of the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   3.     The applicant complains that his conviction for arson with intent to endanger life and the sentence of imprisonment imposed on him violate Article 7 and Article 5 para. 1 (Art. 7, 5-1) of the Convention.         Article 7 para. 1 (Art. 7-1) of the Convention, so far as relevant, provides:         "1.   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..."         Article 5 para. 1 (Art. 5-1) of the Convention, so far as relevant, provides:         "1.   Everyone has the right to liberty and security of the       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 notes that the present forms of simple and aggravated arson have been criminal offences in English law since enactment of the Criminal Damage Act 1971.         It cannot be said, therefore, that the applicant was convicted of an offence unknown to law at the time of its commission. The applicant's objections to the particular manner in which the relevant law was applied at his trial, objections which were in any event rejected by the Court of Appeal, cannot support a complaint under Article 7 (Art. 7) of the Convention.         The same reasoning applies mutatis mutandis to the applicant's complaint that his detention was not "lawful" within the meaning of Article 5 para. 1 (a) (Art. 5-1-a) of the Convention. The Crown Court is moreover the competent court to try the offences with which the applicant was charged.         It follows that this part 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.   4.     Having rejected the applicant's substantive claims as being manifestly ill-founded or incompatible ratione personae with the provisions of the Convention, the Commission also finds that they must be regarded as not "arguable" in accordance with the jurisprudence of the Convention organs as to the scope and applicability of Article 13 (Art. 13) (e.g. Eur. Court H.R., Boyle and Rice judgment of 27 April 1988, Series A no. 131, pp. 22-23, paras. 52-57).         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, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the First Chamber         President of the First Chamber        (M.F. BUQUICCHIO)                        (C.L. ROZAKIS)