CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 26 août 2003

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s5BA5B7C7 { margin-top:12pt; margin-bottom:12pt; text-align:center; font-size:14pt } .s662121A1 { margin-top:12pt; margin-bottom:12pt; text-align:center } .sB8987CE9 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .s61ED8A2B { width:14.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .sFEE8C148 { width:13.68pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sBB5E682E { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt } .sF604F523 { margin-top:36pt; margin-bottom:12pt; font-size:14pt } .s147369FC { margin-top:12pt; margin-bottom:18pt; text-indent:14.2pt } .sDEA336FF { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt } .s29100277 { font-family:Arial; font-weight:bold } .sE8EB5753 { margin-top:0pt; margin-bottom:6pt; text-indent:14.2pt } .s8AD34D0 { margin-top:6pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s9671CAED { margin-top:6pt; margin-bottom:6pt; text-indent:14.2pt } .s6BBACBD8 { margin-top:6pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s160BBE39 { margin-top:12pt; margin-left:20.15pt; margin-bottom:6pt; text-indent:8.8pt; font-size:10pt } .s451A1BF5 { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt } .s4B773175 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt } .s21DA24D5 { margin-top:18pt; margin-left:29.2pt; margin-bottom:24pt; text-indent:-17.6pt } .s7BB60D65 { margin-top:24pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sEEE3CE35 { margin-top:12pt; margin-left:20.15pt; margin-bottom:12pt; text-indent:8.8pt; font-size:10pt } .s377C1984 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt } .s9C230781 { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .s31CA8E2D { margin-top:6pt; margin-left:20.15pt; margin-bottom:42pt; text-indent:8.8pt; font-size:10pt } .s292CCFD { margin-top:42pt; margin-bottom:12pt; font-size:14pt } .s145CCEB3 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt } .s812A4BBF { margin-top:36pt; margin-bottom:30pt; font-size:14pt } .s8DED7D6C { margin-top:30pt; margin-left:11.6pt; margin-bottom:12pt } .s9019FD2F { margin-top:12pt; margin-bottom:6pt; text-indent:14.2pt } .s527A9694 { margin-top:6pt; margin-left:20.15pt; margin-bottom:18pt; text-indent:8.8pt; font-size:10pt } .s70114485 { margin-top:18pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt } .sA918FEC8 { margin-top:12pt; margin-bottom:12pt; text-indent:14.4pt } .sBED5F98F { margin-top:12pt; margin-left:14.2pt; margin-bottom:36pt } .sA5C4F8A9 { margin-top:36pt; margin-bottom:0pt; text-align:left; page-break-inside:avoid; page-break-after:avoid } .sF5D7A07A { width:224.68pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .s60570E66 { width:233.81pt; display:inline-block } FOURTH SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 56926/00 by Stephen LEE against the United Kingdom The European Court of Human Rights (Fourth Section), sitting on 26   August 2003 as a Chamber composed of   Mr   M. Pellonpää , President ,   Sir   Nicolas Bratza ,   Mr   M. Fischbach ,   Mr   J. Casadevall ,   Mr   S. Pavlovschi ,   Mr   J. Borrego Borrego ,   Mrs   E. Fura-Sandström, judges , and Mr M. O’Boyle , Section Registrar , Having regard to the above application lodged on 10 February 2000, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows:                 THE FACTS The applicant, Mr Stephen Lee, is a United Kingdom national, who was born in 1970 and he lives in Windsor. He is represented before the Court by Mr J. Mackenzie, a solicitor practising in Henley-on-Thames. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. At the relevant time, the applicant was a Lance Corporal in the British Army. On 31 May 1998 he was arrested by the civilian police who alleged that he had been drunk and disorderly. He was taken by the police to his army barracks and handed over to the military authorities. On 10 June 1998 he appeared before his commanding officer and was charged with drunkenness pursuant to section 43(1) of the Army Act 1955 (an offence which carried a maximum potential sentence of two years’ imprisonment). He subsequently appeared before that officer on 28 and 30 July 1998 and, on the latter date, he elected to be tried by court-martial as opposed to summary trial by his commanding officer. The commanding officer had the power to award a maximum of 28 days’ imprisonment on summary trial, although the Government submit that the commanding officer’s sentence following a conviction for drunkenness would generally have been limited to a fine, a reprimand, “a minor punishment” or a reduction to the ranks. Having opted for trial by court-martial, on 30 July 1998 the applicant’s case was referred to a higher authority and, in turn, on 5 August 1998 to the Army Prosecuting Authority. On 20 August 1998 this authority directed the applicant’s trial by district court-martial. In October 1998 the district court-martial was fixed to begin in January 1999. This trial date was postponed pending the outcome of an application by the applicant for leave to take judicial review proceedings concerning his legal aid. The judicial review application was heard in March 1999 and the court-martial was fixed for 26 July 1999, later moved to 28 July 1999 at the applicant’s request. The court-martial hearing was again re-fixed (to allow a full week for the hearing) for 23 August 1999. The applicant was legally represented. On that date and at the outset of the proceedings, the applicant applied for a stay of the proceedings claiming that the conduct of the prosecuting authorities amounted to an abuse of process. Having heard evidence over 3 days, on 25 August 1999 the Judge Advocate stayed the proceedings as an abuse of process. As to the meaning of abuse of process, he stated that: “It is now clear law that the courts have a power to stay proceedings where the continuance of those proceedings against a defendant constitutes an abuse of the court’s powers... Put shortly, the court has a general and inherent power to protect its process from abuse. This power must include a power to safeguard an accused person from oppression or prejudice ...The power to stay proceedings for an abuse of process has been said to include a power to safeguard an accused person from oppression or prejudice ( Connelly v. DPP ), and has been described as a formidable safeguard, developed by the common law, to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so ( Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, PC). An abuse of process has been defined as “something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all other respects a regular proceeding” ( Hui Chi-Ming v. R. [1992] 1 A.C. 34, PC).” The Judge Advocate found, in the first place, that the failure to disclose to the applicant video evidence of the incident leading to the applicant’s arrest, when he appeared before his commanding officer on 28 July 1999, was a breach of the applicable rules of procedure of such magnitude as to render the proceedings void. Secondly, he found that, on the evidence, the applicant’s election to be tried by court-martial had not been a free and valid one. As regards these two matters the Judge Advocate concluded: “True, there has been no illegality in the sense of a breach of the law, but there has been a very fundamental breach of the principles under which criminal justice is dispensed. True, [the applicant] has not had any other or more serious charge preferred against him, but he has had a long and no doubt anxious wait, undoubted expense and, more significantly, I could not guarantee that the court which has been ordered to try him would not punish him more severely than the [commanding officer] would have done if he was convicted. Furthermore, I cannot ignore the collected impact of the conduct of [the commanding and other officers], wittingly or unwittingly, in pressurising [the applicant] to accept the [commanding officer’s] award and by inference his guilt. For many years now the courts have fought strenuously to safeguard accused persons from being pressurised into pleading guilty and have rigorously excluded evidence obtained as a result of such pressure. These courts should not countenance service personnel being sent for trial as a result of such pressure. To do so would be to allow their process to be abused. It is for these reasons that I hold that the continuance of the proceedings against [the applicant] would be an abuse of process.” Thirdly, the Judge Advocate found, as regards the fact that the prosecution had taken and served on the defence a statement from the applicant’s defending officer: “I accept that ... what happened in this case was no breach of legal privilege, if indeed, legal privilege attaches to a defending officer... I accept that there was no substantial prejudice to the defence case. I accept that no one in the Army Prosecuting Authority proper knew that [he] was the defending officer until much later... I accept that identity would not have been an issue in the case. None of these things can have lessened the perception of [the applicant] as to the chances of justice from the military system when he became aware that his defending officer was to be called as a prosecution witness against him. It was an irregularity of such magnitude that in itself it justifies me in holding that the continuation of these proceedings would be an abuse of the process of this court.” The Judge Advocate went on to recommend that the applicant’s legal aid contributions and any other costs associated with the proceedings should be reimbursed to him. On 13 December 1999 the applicant instituted proceedings claiming damages against the civilian police and the Ministry of Defence for matters arising out of his arrest by the police and the conduct of the proceedings against him by the military authorities. The respective defences were filed in January and February 2000. The proceedings against the police were later settled by the payment to the applicant of GBP 7,500 in damages and costs. The current position as regards the proceedings against the Ministry of Defence is not known. B.     Relevant domestic law and practice 1.     Jurisdiction to stay proceedings on the grounds of abuse of process All criminal courts, including courts-martial, have a wide common law jurisdiction to stay proceedings on the grounds of abuse of process. The application to stay proceedings is in the nature of a “plea in bar”, the more conventional “pleas in bar” being autrefois convict or autrefois acquit . A “plea in bar” operates to prevent a case proceeding to trial and, if raised, is ordinarily dealt with before the accused enters a plea to the charge. The ability of a trial judge to stay a criminal prosecution was first confirmed by the House of Lords in the case of Connelly v. Director of Public Prosecutions [1964] A.C. 1254. Lord Reid acknowledged the ability of a criminal court “to prevent a trial from taking place” in the exercise of its “residual discretion to prevent anything which savours of abuse of process” (at p. 1296). In the case of Director of Public Prosecutions v. Humphreys [1977] A.C. 1, Lord Salmon considered this discretion to be of “great constitutional importance” and a power which “should be jealously preserved”. Lord Woolf defined the discretion to stay proceedings as an abuse of process, in the case of Attorney-General of Trinidad and Tobago v. Phillip [1995] 1 A.C. 396, as: “... a formidable safeguard to protect persons from being prosecuted in circumstances where it would be seriously unjust to do so”. In Hui Chi-Ming v. R [1992] 1 A.C. 34, Lord Lowry described an abuse of process as: “... something so unfair and wrong that the court should not allow a prosecutor to proceed with what is in all respects a regular proceeding”. The broad basis of this jurisdiction was confirmed by the House of Lords in R v. Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 A.C. 42, where it was held that proceedings may be stayed not only where a fair trial is impossible, but also where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place. The case law was summarised by the Court of Appeal in R. v. Beckford [1996] 1 Cr.App.R. 94 (see Lord Justice Neill, at p. 100G-101A): “The jurisdiction to stay can be exercised in many different circumstances. Nevertheless two main strands can be detected in the authorities: (a)     cases where the court concludes that the defendant cannot receive a fair trial; (b)     cases where the court concludes that it would be unfair for the defendant to be tried”. Matters considered to constitute an abuse of process include: –     unjustifiable delay which results in the defendant suffering serious prejudice to the extent that no fair trial can be held; –     the trial of a defendant after extensive and prejudicial pre-trial publicity; –     the trial of a defendant after the loss or destruction of relevant material by the prosecution; –     where it would be contrary to the public interest in the integrity of the criminal justice system that a trial should take place because the prosecution have been guilty of investigative impropriety; and –     where the prosecution have otherwise been guilty of manipulation or misuse of the process of the court.   2.     The effect of a stay of proceedings on the grounds of abuse of process There is no right for the prosecution to appeal against an order for a stay of a Crown Court trial or court-martial proceedings on the ground of abuse of process. The intention behind such a stay is that there should not be a trial in the future. There is no possibility of lifting a stay where the stay has been granted on the grounds that, due to the unconscionable conduct of the prosecuting authorities and even though the accused could receive a fair trial, it would nonetheless be unfair for the accused to be tried. Such a case could not be re-opened since it would always be an abuse of process to try the accused. In principle, it is possible for the prosecution to apply to lift a stay of proceedings granted because the court concluded that the defendant could not, for a particular reason, receive a fair trial. This could occur, for example, where material evidence crucial to the fairness of the proceedings was unavailable to the defence and where the material subsequently became available. In deciding whether to lift the stay the judge would have to consider all the circumstances of the case including any delay, the accused’s right to a fair trial and the extent to which that would be prejudiced by lifting the stay. The applicant does not dispute the Government’s submission that there are no known cases where a stay made on the grounds of abuse of process has been lifted to allow a prosecution to continue or where the prosecution has even applied for such a stay to be lifted. In R. v. Central Criminal Court ex p. Randle [1991] 1 WLR 1087, Lord Justice Watkins commented that a decision on an application to stay on grounds of abuse of process determines: “... whether there ever should be a trial ... [A] stay on grounds of abuse of process contemplates that there never will be a trial ... It matters not that there are circumstances in which a stay on grounds of abuse of process might be revoked or lifted: the crucial point is that such a stay -- a direction that there shall be no trial -- is intended to be final.” COMPLAINTS The applicant complains under Article 6 §§ 1 and 2 of the Convention that the order by which the proceedings against him were stayed as an abuse of process did not determine the criminal charges against him and undermined the presumption of innocence. THE LAW A.     Articles 34 and 35 of the Convention The Court observes that the Government do not suggest that the applicant could have brought domestic proceedings in respect of his complaint under Article 6 §§ 1 and 2 that criminal charges are still pending against him ( Deweer v Belgium , judgment of 27 February 1980, Series A no. 35, § 26, and Foti and Others v. Italy , judgment of 10   December 1982, Series A no.   56, § 48). Even if his proceedings against the Ministry of Defence had ended in his favour, he could still claim to be a victim of the violations of Article 6 about which he complains: the proceedings instituted by him in December 1999 did not concern the question of whether criminal proceedings were still pending against him, but rather the allegedly intimidating nature of the military investigation and consequent court-martial. B.     Applicability of Article 6 of the Convention The Government do not dispute that the proceedings initiated against the applicant were “criminal” within the meaning of Article 6 § 1. Having regard to the concession made by the Government, the Court will, without deciding the point, proceed on the assumption that Article 6 is applicable to the proceedings against the applicant. C.     Compliance with Article 6 § 1 of the Convention The applicant complains under Article 6 § 1 that that the criminal charges against him have not yet been determined. Article 6 § 1, insofar as relevant, provides as follows: “In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...” 1.     The parties’ submissions The Government submit that the criminal proceedings against the applicant were concluded by the order staying the proceedings as an abuse of process. Since the proceedings were stayed on the basis that the applicant could not receive a fair trial due to the unconscionable conduct of the prosecution, the case could not be re-opened in any circumstance since it would always be unfair and an abuse of process to try him. The decision of the Judge Advocate to stay the proceedings was, therefore, final. They point out that the possibility of staying proceedings as an abuse of process is an important safeguard for an accused person and that this was a remedy sought by the applicant. They also submit that domestic law accords with the jurisprudence of the Court since, in the above-cited case of Deweer v. Belgium , the Court recognised that Article 6 § 1 would not be violated where the prosecution withdrew an indictment or abandoned a criminal charge without a ruling of the court, even where the effect was to deprive an accused of a formal acquittal. Accordingly, in the Government’s opinion the proceedings against the applicant came to an end with the Judge Advocate’s order of 25 August 1999. Moreover, the duration of those proceedings, approximately fifteen months, was not unreasonably long. The applicant maintains that he was entitled to a formal ruling either acquitting or convicting him. He further submits that if, as the Government claim, the matter could not be pursued in the future, there is no reason why he should not have the benefit of a definitive decision acquitting him of the charge. The applicant argues that the non-resolution of a criminal charge can cause some difficulties for prospects of promotion in the armed forces and emigration. 2.     The Court’s assessment The Court recalls that there is no right under Article 6 of the Convention to a particular outcome of criminal proceedings or, therefore, to a formal conviction or acquittal following the laying of criminal charges (the above-cited Deweer v. Belgium judgment, § 49 referring to the Commission’s report of 5 October 1978, Series B no. 33, § 58). The question remains, however, whether those criminal proceedings can be considered to be still pending against the applicant as he claims and, consequently, whether there has been a violation of his right to a determination of criminal charges within a “reasonable time”. The parties essentially disagree on whether the order of the Judge Advocate staying the proceedings on grounds of an abuse of process put an end to the proceedings. The Court recalls that the one of the purposes of the right to trial within a reasonable period of time is to protect individuals from “remaining too long in a state of uncertainty about their fate” ( Stögmüller v. Austria , judgment of 10 November 1969, Series A no. 9, § 5). Accordingly, criminal proceedings are said to begin with “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test of whether “the situation of the [suspect] has been substantially affected” ( Eckle v. Germany , judgment of 15 July 1982, Series   A no. 51, § 73). The Court considers therefore, and indeed it is not disputed, that the criminal proceedings against the applicant began with his arrest on 31 May 1998 by the civilian police since this was his first official notification of an allegation that he had committed a criminal offence. Conversely, it is also the case that such proceedings will end with an official notification to the accused that he or she is no longer to be pursued on those charges such as would allow a conclusion that the situation of that person can no longer be considered to be substantially affected ( X v. the United Kingdom, no. 8233/78, Commission decision of 3 October 1979, §§   64 and 65, unreported). This end is generally brought about by an acquittal or a conviction (including a conviction upheld on appeal). The Court also recognised, in the above-cited Deweer case by reference to the Commission Report in that case, that proceedings could end through a unilateral decision taken in favour of the accused including when the prosecution formally decided not to prosecute and when the trial judge terminated the proceedings without a ruling. More recently, the Court has found that criminal proceedings ended when the prosecution informed the accused that it had discontinued the proceedings against him ( Slezevicius v. Lithuania , no. 55479/00, § 27, 13 November 2001, unreported) and when a domestic court found that an accused was unfit to stand trial by reason of his psychiatric condition ( Antoine v. the United Kingdom , (dec.) no.   62960/00, ECHR 2003-...), even though in both cases there remained a theoretical possibility that the charges against the applicant could one day be pursued. The Court notes that as of 25 August 1999 the applicant was aware of the order of the Judge Advocate that the proceedings against him had been stayed on the grounds of abuse of process. In the Court’s opinion, the domestic law and practice concerning the nature of such orders (which is not disputed by the applicant), together with the Convention case-law detailed above, demonstrates that an order to stay proceedings as an abuse of process can be considered to end the relevant criminal proceedings for the purposes of Article 6 even if there remains a theoretical possibility of their later resurrection. The nature of the particular stay ordered by the Judge Advocate in the present case renders the position even clearer: that stay was granted on the grounds that, due to the unconscionable conduct of the prosecuting authorities and even though the accused could receive a fair trial, it would nonetheless be unfair for him to be tried. According to domestic law there was no possibility of lifting that stay in the future: the proceedings against him could not be re-opened since it would always be an abuse of process for the applicant to be tried on those charges. Accordingly, the Court does not consider that, once the Judge Advocate stayed the proceedings on 25 August 1999, it could be reasonably or objectively said that the applicant’s situation remained “substantially affected”. Whether or not his claims about a continuing impact on his promotion and emigration prospects could be relevant in this respect, those claims of the applicant are general and unsubstantiated. Consequently, the Court finds that the criminal proceedings against the applicant ended on 25 August 1999. As to whether therefore the proceedings were concluded within a reasonable period of time within the meaning of Article 6 § 1, the Court notes that the proceedings, beginning as they did on 31 May 1998 and ending on 25 August 1999, lasted for a period of almost fifteen months. Having regard to the criteria set down in the Court’s case-law concerning the length of proceedings (the complexity of the case, the conduct of the parties and what was at stake for the applicant as established in König v. Germany , judgment of 28 June 1978, Series A no. 27, §§ 99 and 111) and to the facts of the present case (the relatively short duration of the proceedings, the fact that the criminal proceedings were postponed for several months pending his application for leave to apply for judicial review and the fact that the stay on proceedings was considered at the beginning of the applicant’s court-martial), the Court does not consider that the proceedings exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention (see, for example, Obasa v. the United Kingdom , no. 50034/99, § 31, 16 January 2003, unreported) Consequently, the Court finds that his complaints under Article 6 § 1 are manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. D.     Complaint under Article 6 § 2 of the Convention The applicant also complains under Article 6 § 2 that the fact that the criminal proceedings against him were stayed as an abuse of process and did not result in a formal acquittal violated his right to be presumed innocent. Article 6 § 2 provides as follows: “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 1.     The parties’ submissions The Government submit that the state authorities did not make any suggestion during the proceedings which could be said to have undermined the presumption of the applicant’s innocence. They note that, contrary to the facts of Minelli v. Switzerland (judgment of 25 March 1983, Series A no.   62), there was no judicial decision which could be said to have reflected an opinion that the applicant was guilty. On the contrary, the Judge Advocate recommended that the applicant’s costs should be reimbursed. The applicant submits that the order staying the proceedings as an abuse of process leaves him under the stigma that he may have committed the offence. 2.     The Court’s assessment As already noted above, there is no right under Article 6 to a particular outcome of criminal proceedings. The fact that the applicant has not been formally acquitted does not, of itself, undermine his presumption of innocence. As to whether the Judge Advocate took a decision or made a statement on 25 August 1999 which undermined that presumption, the Court recalls that, in the above-cited Minelli v. Switzerland judgment, it found that Article 6 § 2 would be violated if, without the accused having been proved guilty, “a judicial decision concerning him reflects an opinion that he is guilty”. In that case, a criminal charge had not been proceeded with but the applicant had been, nevertheless, ordered to pay court costs and compensation to the complainants because, in the opinion of the domestic court, he was probably guilty of the offence. In the present case, the Court considers it clear that, in ordering the stay of the proceedings in August 1999, the Judge Advocate did not expressly or implicitly indicate any continuing suspicion of the applicant’s guilt. On the contrary, it is evident from the comments of the Judge Advocate that his grant of the stay was for the applicant’s benefit following several instances of what the Judge Advocate acknowledged to be serious misconduct on the part of the prosecution. Moreover, having so concluded, the Judge Advocate went on to recommend that the applicant be reimbursed his legal aid contributions and any other costs associated with the proceedings. In such circumstances, neither the fact that the proceedings were stayed nor any judicial remark could be considered to reflect an opinion that the applicant was guilty of the alleged offences. The Court therefore considers that the applicant’s right to be presumed innocent guaranteed by Article 6 § 2 of the Convention has not been violated. It finds therefore that this complaint is also manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Michael O’Boyle   Matti Pellonpää   Registrar   President