CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 28 février 1996

.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. 25901/94                       by Andrew Graham RUSSELL                       against the United Kingdom         The European Commission of Human Rights (First Chamber) sitting in private on 28 February 1996, the following members being present:              Mr.    C.L. ROZAKIS, President            Mrs.   J. LIDDY            MM.    E. BUSUTTIL                  A.S. GÖZÜBÜYÜK                  A. WEITZEL                  M.P. PELLONPÄÄ                  B. MARXER                  N. BRATZA                  I. BÉKÉS                  E. KONSTANTINOV                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL              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 12 October 1994 by Andrew Graham RUSSELL against the United Kingdom and registered on 9 December 1994 under file No. 25901/94;         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 British citizen, born in 1962.   He is serving a prison sentence.   The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant was arrested on 31 January 1988 and questioned in connection with an escape from Gartree prison, Leicestershire, in December 1987.   On 3 February 1988 he was again questioned, in the presence of his solicitor, in connection with the escape, and also in connection with his responsibility for a robbery which had taken place in London on 13 January 1988.         The proceedings relating to the escape continued, but the applicant heard nothing more about the robbery.   On 15 November 1988 the applicant's solicitors asked the Crown Prosecution Service (CPS) whether any steps were to be taken in connection with the robbery.   The CPS replied on 5 December that the prosecutor had "decided that there [was] insufficient evidence against [the applicant] to justify prosecution, but in relation to [the co-accused as regards the escape] I have recommended to the police that he be charged with attempted murder and robbery".         On 25 July 1989 the CPS wrote to the applicant's solicitors that they had now decided to prosecute the applicant in respect of the robbery.   They said that "[no] steps [were] taken in this matter earlier to avoid publicity while your client's trial in respect of the ... escape was being held ...".         On the following day the CPS applied to a High Court judge ex parte and without giving notice to the applicant's solicitors for the issue of a voluntary bill of indictment.   In the supporting affidavit no reference was made to the letter of 5 December 1988.   The application was granted and a voluntary bill of indictment was issued charging the applicant with (inter alia) robbery.         The case was listed for trial on 30 May 1990.   The applicant submitted to the trial judge that the prosecution was an abuse of process on the basis of delay coupled with the prejudice caused by the reversal of the CPS's decision not to prosecute.   The submission was rejected and the proceedings were adjourned to enable the applicant to apply for judicial review of the trial judge's decision not to stay the proceedings.         Leave to apply for judicial review was granted on 7 June 1990, and the proceedings were adjourned to await the outcome of a related case which was pending before the Divisional Court.   The Divisional Court ruled on 7 November 1991 that there had been no abuse   of process.   It noted that the judge had not been informed of the CPS's letter of 5 December 1988 when he granted a voluntary bill of indictment, but considered that the strength of the case would have led to the grant of a bill, even if the judge had been aware of that letter.         The Divisional Court found no prejudice to the applicant flowing from the decision to prosecute which could amount to an abuse of process.   It noted that the applicant had been aware all along of the nature of the Crown's case against him, and continued that the only real complaint was that a friend, who had been with the applicant on the day of the robbery, on learning that the applicant was not to be charged with the robbery, had disposed of a note-book in which he had kept details of his whereabouts on that day.   The Court noted that the alibi evidence had been raised very late, but also noted that the book would in any event only have been used as an aide memoire for the alibi evidence: the evidence could still be given.   As regards the letter of 5 December 1988, the Court found that it was "reprehensible", but "I cannot see how it can operate so as not to allow [the applicant] to have a fair trial and in any way to inhibit him from presenting what defence he has".         The case was listed for mention on 14 February 1992, when the trial judge fixed the trial for 16 March 1992.   An application for the venue of the trial to be moved, from Leicester to London, was refused on 13 March 1992.         On 16 March the applicant was not represented, but addressed the court himself.   His solicitor, who was also present, also addressed the court.   As to the alibi witness, the applicant's solicitor informed the court that he had been in contact with the witness, and that he had a letter from him that he was going to Australia for a period of between six and twelve weeks.   The letter did not contain an address or contact number and was not dated.   It had been posted in England.   The solicitor received it between 4 and 6 March.   The judge declined to adjourn the trial on the ground that the alibi witness could not be found, and considered that, in the circumstances, the evidence could be admitted.   As to representation, the judge noted that the applicant had chosen not to be represented by counsel, and indeed had instructed his solicitors not to instruct counsel.   At the end of the hearing on 16 March, the solicitor informed the court that the applicant had agreed that it was right that he should be represented by counsel.   The trial was adjourned, on the application and with the consent of the applicant's solicitor, until 19 March 1992, in order to give time for counsel to be instructed.   The applicant was given the possibility of applying for a further adjournment if necessary.         On 19 March, the applicant was represented by leading and junior counsel.   A submission that there was insufficient evidence to put to the jury was rejected, and the alibi witness's statement was read out. In his summing up, the judge inter alia referred to the alibi witness statement, and said "You have not seen [the alibi witness] so you have not had the opportunity to assess him as a witness by hearing him give evidence, seeing him give evidence and in particular, perhaps hearing him cross-examined.   That is a disadvantage that you suffer from, but you will take his evidence into account, bearing in mind those limitations on it."         The applicant was convicted inter alia of robbery on 25 March 1992.   Leave to appeal against conviction was refused by the single judge, and then by the Court of Appeal on 13 May 1994.         The Court of Appeal, agreeing with the single judge, considered that there was ample evidence to put before the jury, and found no material irregularity in the case, either as to the alibi evidence or as to the venue of the trial or the prosecution's change of mind.   COMPLAINTS         The applicant alleges violations of Articles 5 and 6 of the Convention.         In connection with Article 5, the applicant considers that the delay in the bringing of his case breached Article 5 paras. 2 and 3 of the Convention.   Under Article 6 of the Convention, the applicant considers:   -      that the fairness of the hearing was undermined by the venue of       the trial and the high profile security;   -      that he was given insufficient time to prepare his defence from       14 February 1992 until 16 March 1992;   -      that no allowances were made as to the fact that the applicant       was not able to have his initial counsel at trial;   -      that the trial judge refused to adjourn the case for the       applicant's alibi witness to give live evidence, with the result       that the applicant was unable to deal with matters which       unexpectedly arose in the course of the trial, such as the fact       that he also used the name Richard Smith, and that the applicant       appeared to have been in Regent Street (where the robbery took       place) on one of the days on which the alibi witness said that       the applicant was in his company.   THE LAW   1.     The applicant complains of the length of the proceedings.   He refers in this connection to Article 5 paras. 2 and 3 (Art. 5-2, 5-3) of the Convention.   There is, however, no indication in the applicant's submissions that he was detained in connection with the robbery of which he eventually convicted.   The Commission will therefore consider the question of the length of the proceedings under Article 6 (Art. 6) of the Convention.         The Commission notes that the applicant was initially questioned in respect of the robbery on 3 February 1988.   He was under the impression that he would not be charged with the robbery from 5 December 1988 until the end of July 1989, when his solicitors were informed that the CPS were seeking a voluntary bill of indictment.   The proceedings ended on 13 May 1994.         The Commission considers that it cannot, on the basis of the file, determine whether there has been a violation of Article 6 (Art. 6) of the Convention as regards the length of the proceedings without the observations of both parties.         The Commission therefore adjourns this part of the application.   2.     The applicant also alleges a violation of Article 6 (Art. 6) of the Convention in several respects.   He alleges:   -      that the fairness of the hearing was undermined by the venue of       the trial and the high profile security;   -      that he was given insufficient time to prepare his defence from       14 February 1992 until 16 March 1992;   -      that no allowances were made as to the fact that the applicant       was not able to have his initial counsel at trial;   -      that the trial judge refused to adjourn the case for the       applicant's alibi witness to give live evidence, with the result       that the applicant was unable to deal with matters which       unexpectedly arose in the course of the trial, such as the fact       that he also used the name Richard Smith, and that the applicant       appeared to have been in Regent Street (where the robbery took       place) on one of the days on which the alibi witness said that       the applicant was in his company.         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 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:              b.     to have adequate time and facilities for the       preparation of his defence;              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; ..."         In connection with the venue of the applicant's trial for robbery, the applicant suggests that his trial was unfair because the trial was held in Leicester, where he and his co-defendant were held in connection with the escape, rather than in London, where the robbery took place and where the witnesses were.   He sees the unfairness in the fact that the circumstances of the escape from prison in December 1987 were well known in Leicester, and that the high security precautions were more noticeable in Leicester than they would have been in London.         The Commission recalls that the question of the venue for the applicant's trial was raised before the trial judge and the Court of Appeal judges, none of whom saw any need to transfer the trial to London.   The Commission considers that the implementation of necessary security arrangements at a criminal trial cannot in itself be regarded as rendering the proceedings unfair.   The applicant does not suggest that the security arrangements were unnecessary, but rather that they would have been less noticeable in London.   There is no indication that the security arrangements in the case were deliberately stage-managed to prejudice the applicant.   The Commission sees no indication in the present case that the trial venue of Leicester rather than London in any way affected the fairness of the proceedings.         The applicant complains of the limited time for preparation of his defence in that on 14 February 1992 the trial date was fixed for 16 March 1992.   He also complains that the judge made no allowances for the fact that the applicant's original counsel was not present.         The Commission first notes that the original trial date of 16 March 1992 was fixed one month before, on 14 February.   At the hearing on 16 March the trial judge observed that the applicant had chosen not to be represented by counsel and had indeed instructed his solicitors not to instruct counsel for trial.   He was however represented by his solicitor who addressed the court on his behalf and, at the end of the hearing, informed the court that the applicant now agreed that it was right that he should be represented by counsel at the trial. The applicant's solicitor accordingly applied for an adjournment of the trial on his behalf so as to allow sufficient time to enable counsel to be instructed.   The application was granted and the trial judge, with the agreement of the applicant's solicitor, adjourned the case until 19 March 1992, with liberty to apply for a further adjournment.   No such application was made and, at the trial which began on 19 March, the applicant was represented by counsel.   No complaint was made at this trial or on the applicant's appeal that insufficient time had been allowed to enable those representing the applicant to prepare an effective defence on the applicant's behalf, or that his representation at the trial was inadequate.         In these circumstances, the Commission finds no grounds on which to conclude that the limited time allowed for preparation of the defence resulted in any unfairness in the criminal proceedings against him.         Finally, the applicant complains of the failure of the trial judge to adjourn the case for the applicant's alibi witness to give live evidence.         The Commission again notes that the trial date was fixed on 14 February 1992 at which time the applicant's alibi witness was still in the United Kingdom.   It appears from the record of the proceedings of 16 March that the applicant's solicitor contacted the alibi witness to inform him of the date of the trial and was told that the witness was planning to leave for Australia.   It further appears that in an undated latter received by the applicant's solicitors between 4 and 6 March 1992 the alibi witness stated that he intended to travel to Australia on 7 March and would anticipate staying there for some six to twelve weeks.   The letter contained no address or indication where the witness could be contacted.   On the basis of these facts the trial judge declined further to adjourn the trial but admitted in evidence the alibi statement applied by the witness and, in his summing up to the jury, drew specific and detailed attention to the contents of the statement.   The Commission further notes that, having reviewed the case, the Court of Appeal found that the trial judge's approach had been free from criticism and resulted in no unfairness such as to render the applicant's conviction unsatisfactory.         In these circumstances, the Commission finds no reason to conclude that the inability for the applicant to call his alibi witness to give oral evidence at his trial resulted in any unfairness for the purposes of Article 6 para. 1 (Art. 6-1) or Article 6 para. 3 (d) (Art. 6-3-d) 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.         For these reasons, the Commission, unanimously,         DECIDES TO ADJOURN its examination of the complaint as to the       length of the proceedings;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the First Chamber        President of the First Chamber         (M.F. BUQUICCHIO)                       (C.L. ROZAKIS)