CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 30 septembre 2003

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Strážnická , 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 9 July 2000 and registered on 18 September 2000, Having deliberated, decides as follows: THE FACTS The applicant is a United Kingdom national, who was born in June 1988. He is represented before the Court by Mr   M. Hayes and Mr H.   Gow, lawyers practising in Liverpool. The respondent Government are represented by Ms H. Mulvein, Foreign and Commonwealth Office. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. In June 1999 the applicant, who had just turned 11, and a 14 year-old boy called “L.A.”, approached an 87 year-old woman in the street. The applicant attempted to take the woman’s bag, causing her to fall to the ground and fracture her left arm. The applicant ran away and L.A. stayed with the victim. The applicant was charged with attempted robbery. His defence was that he had acted under duress, having been threatened by L.A. In July 1999, in connection with other offences, he was given a two-year supervision order and was remanded to the care of the local authority and placed with foster parents. In August 1999, the Youth Court, looking at the applicant’s offending history, which included offences of robbery, burglary, theft and arson, considered that it might be appropriate to impose a custodial sentence if he were convicted of the attempted robbery, and committed him for trial to the Crown Court. After committal the applicant’s legal representatives obtained two psychiatric reports. The first report was prepared by Dr Ronan Brennan, an adolescent forensic psychiatrist, who was able to talk to the applicant for twenty minutes in September 1999 before he (the applicant) terminated the interview. The applicant was also seen by Diane Baines, a consultant clinical psychologist, in 11 October 1999. In his report Dr Brennan observed, inter alia : “Mental state examination [The applicant] sat motionless in the chair throughout my brief interview. He appeared distracted and frequently asked me to repeat my questioning claiming that he could not understand me. He appeared defensive when questioned regarding family circumstances and was vague about his past schooling. He appeared reluctant to discuss his offending behaviour, asking me what point was there discussing it with me.   Ultimately, after repeating the statement that he was bored and wanted to eat he informed me that he would not answer any more questions and wanted to leave. Since it was clear that he was resistant to further questioning or probing I consented to his wish.   Impression   It has been extremely difficult to form a detailed impression of this young man’s problems and needs by virtue of his unwillingness to enter into the assessment process and a failure to obtain collateral information regarding his personal development and family background.   It is evident from the limited information available that [the applicant] has exhibited a behaviour disturbance from an early age which has resulted in restricted academic progress and alienation from his peers. ... [The applicant’s] persistent pattern of disruptive and socially inappropriate behaviour would be consistent with a diagnosis of conduct disorder of the unsocialised type.   It would appear from Diane Baines’ psychological report ... that [the applicant] has a significant degree of learning difficulties. He has a full scale IQ of 56 (0.2 nd centile), a verbal IQ of 63 (1 st centile) and a performance IQ of 55 (0.1 st centile). These scores would be consistent with his academic underachievement and could be viewed as a consequence of his disrupted schooling. Diane Baines notes that with [the applicant’s] cognitive abilities being more consistent with a child of 8   rather than 11, his ‘ability to reason is noticeably restricted’. ...   It is clear that [the applicant] has complex needs which should ideally be addressed under the provisions of a care order for the foreseeable future. ...   It is conceivable that, if a co-ordinated package of care fails to meet [the applicant’s] complex educational and emotional needs, he will potentially pose a high risk of re-offending. At this time however I believe that a long term care order, with a stable foster placement and an appropriate educational package should be considered if an alternative to custodial sentence were felt viable.   Recommendations   1.   It is difficult to assess issues concerning [the applicant’s] fitness to plead since his discussion of the offence with me was limited. However, based on the information available to me and the findings of the psychological testing I would conclude that [the applicant] on balance was aware of his actions and that they were wrong. His understanding of their consequences however may have been adversely affected by his learning difficulties and impaired reasoning skills. Overall I would consider that [the applicant] is sufficiently capable of entering a plea though obviously the court process would have to be explained carefully in a manner commensurate with his learning difficulties.   2.   [The applicant] should be placed on a Supervision Order for as long as possible with a plan to address his emotional and educational needs and reduce his offending behaviour.   3.   Long term foster care should in my opinion be considered in preference to a custodial sentence if this were deemed possible.   4.   A copy of Diane Baines’ report should be forwarded, with her consent, to [the applicant’s] school in order to devise an appropriate educational package to meet his complex needs.”   Diane Baines’ report, dated 18 October 1999, states as follows: “[The applicant] was seen in the company of his Youth Justice Worker in the outpatient department. He was friendly and co-operative with a reasonable attention span in the individual setting. He generally understood what was required of him although some explanations required repetition and he occasionally needed encouragement to persevere. ... [The applicant] was given the WISC-III [Wechsler Intelligence Scale for Children - 3 rd edition), which looks at the development of reasoning skills as applied to both verbal and non verbal problem solving. ... [O]verall, [the applicant] is presenting with a significant degree of learning delay. His Verbal IQ is slightly higher than his Performance IQ, but both fall at or below the first percentile. On the Verbal Scale, [the applicant] gained a score that was only just outside the average range on Digit Span, indicating reasonably good rote memory skills. Consistent with this was his ability to carry out the mental calculations for Arithmetic. His scores on the remaining subtests were more significantly below average, reflecting poorly developed verbal reasoning skills. He found it particularly difficult to define words for Vocabulary, which he did to the level expected of most children aged about 6 years old. In general, [the applicant] experienced more difficulty with the Performance Scale subtests than with those that were language based. His age equivalents on this Scale ranged from below 6 years 2 months at the lowest to 6 years 6 months at the highest. His approach to tasks that were reliant on the appreciation of visuo-spatial relationships was noticeably immature and he did not always attend to the relevant features. [The applicant’s] attainments in literacy were looked at using the WORD [Wechsler Objective Reading Dimensions] and it was found that his ability to read and spell individual words out of context were both at levels that would be predicted from his general intelligence. He coped less well than expected with the Reading Comprehension section but this should be interpreted in the context of his disrupted educational career. Summary [The applicant] is currently presenting with a significant degree of learning difficulty that is most apparent in his ability to carry out visually based tasks. ... If looked at in terms of age-equivalents, [the applicant’s] cognitive abilities cover a range from below 6 years 2 months up to 8 years 2 months, which will mean that his ability to reason is noticeably restricted. ...” There was a pre-trial hearing in December 1999. The applicant’s counsel invoked Articles 3 and 6 of the Convention and argued that the trial should be stayed as an abuse of process because of the applicant’s low attention span and educational age, which meant that he would be unable fully to understand and participate in the trial. This submission was rejected by the judge, who ruled, inter alia : “I do not accept that placing [the applicant] on trial in the Crown Court amounts to inhuman or degrading treatment or will be unfair. Following the procedures now habitually adopted in Crown Courts when trying children, the trial before the jury will be conducted in as informal a manner as is consistent with the requirements of a fair trial. Legal wigs and robes will not be worn. The issue before the jury will be a simple one. There is no reason to think that [the applicant] will be any less able to give his evidence to the jury than to the Youth Court. On the material before me he appears to be a ‘streetwise’ child, whose intellectual impairment is largely the result of spending two of his critical formative years outside the education system. I questioned whether there is felt to be a public interest in proceeding with the prosecution, having regard to the fact that [the applicant] is already subject to a 2-year supervision order for offences including robberies. I was told that since that order was made on 1 July 1999 (at which time [the applicant] was also taken into local authority care), he has committed (and admitted) a number of other offences. He was placed with foster-parents, who in September felt (according to Dr Brennan’s report) that he was making some progress. Now, they are unwilling to keep him, finding him uncontrollable. In these circumstances it is entirely understandable that the Crown wish to proceed with the prosecution. Mr Gow also wished to take the point at trial that [the applicant] is unfit to plead. This argument is not supported by Dr Brennan’s written report, but I was told that in a subsequent conference with counsel Dr Brennan was equivocal on this point and his oral evidence might support it, although he has not seen [the applicant] since September (when the boy was uncooperative anyway). No supplementary written report has been served. Mr Gow has overlooked the fact that the evidence of two medical practitioners would be needed before a jury could be invited to find his client unfit to plead; also that Mrs Baines is not a medical practitioner. He asked me to vacate [the] trial date to give the defence time to engage a second doctor. I refused this application also, inviting Mr Gow to reflect on whether this point can really be pursued in the light of Dr Brennan’s conclusions. If the boy is unfit to plead, then he would presumably have been unfit to plead in the youth court, yet the point has apparently never been suggested on his various appearances there. Since this afternoon’s hearing I understand from Mr Gow that he has duly reflected and discussed the matter with his instructing solicitors, and does not now intend to pursue the issue of fitness to plead. The trial will therefore proceed on the merits, the issue being duress. ...” At the hearing in December 1999, which lasted one and a half days, the applicant was accompanied by his social worker. He was not required to sit in the dock and the court took frequent breaks and dispensed with the formality of wearing wigs and gowns. The applicant gave evidence that he had committed the offence as the result of duress, but he was convicted and sentenced to two and a half years’ detention. He appealed to the Court of Appeal, inter alia, on the grounds that he had been deprived of a fair trial in view of his age and impaired intellectual capacity. The applicant advanced new evidence before the Court of Appeal, including a statement by the applicant’s supervising social worker, who had been with him in the Crown Court, and who said, inter alia : “To address [the applicant’s] first appearance [in the] Crown Court, the Court was attired in full regalia and [the applicant] was totally perplexed at the rigid formality and surroundings of Crown Court, and it is my opinion that he did not fully understand the situation. ... [A]t his trial I was pleased to see that the Court was dressed in mufti. Whilst the jury was being sworn in [the applicant] asked me who they all were. I explained in as simple language [sic] a boy of 11 years should understand, that they were members of the public who would have the duty of finding [the applicant] not guilty or guilty. He then said if they were the public why could not his mother sit there to help him. [The applicant] did not have a member of his family in attendance despite efforts made by myself. Whilst the trial was taking place [the applicant] kept turning around to talk to myself asking what was happening. [The applicant] has an extremely short attention span and it is my opinion that his lack of understanding of the formalities of the Crown Court led to the jury observing what could have been misinterpreted as bad behaviour and a ‘could not care less’ attitude. I believe this also antagonised some jury members when [sic] I observed watching [the applicant] closely. Even when the sentence was passed [the applicant] again did not understand what had been passed or where he was being placed. [The applicant] was under the impression that he would be returning to his Foster/Remand placement with [his foster father], who was present at Crown Court. Despite my efforts to explain the situation to him [the applicant] did not comprehend the situation he was in. When he was taken to the holding cells awaiting escorts I took time to try again to explain the consequences of his trial and sentence but he was still confused.” On 19 June 2000, the applicant’s appeal was rejected by the Court of Appeal, which refused leave to argue the abuse of process/unfair trial ground, holding that it was clear that the first instance judge, in exercising his discretion to allow the trial to proceed, had taken account of the applicant’s age, level of maturity and intellectual and emotional capacities, and that steps had been taken to promote the applicant’s ability to understand and participate in the proceedings. The Court of Appeal also rejected the application for leave to appeal against the sentence imposed. It noted, from a comprehensive report prepared by the Unit where the applicant was detained, that there had been great improvements in both the applicant’s behaviour and his work and considered that, given the long period of instability in the applicant’s life, a settled period of support and education of the kind he was now receiving must be in his best interests. B.     Relevant domestic law 1. Age of criminal responsibility Pursuant to section 50 of the Children and Young Persons Act 1933 as amended by section 16(1) of the Children and Young Persons Act 1963 (“the 1933 Act”), the age of criminal responsibility in England and Wales is ten years, below which no child can be found guilty of a criminal offence. 2. Procedures for   child defendants Pursuant to section 24 of the Magistrates’ Courts Act 1980, children and young persons under eighteen years must be tried summarily in the Magistrates’ Court, where the trial usually takes place in the specialist Youth Court, which has an informal procedure and from which the general public are excluded. The exceptions are children and young persons charged with murder, manslaughter or an offence punishable if committed by an adult with fourteen or more years’ imprisonment, who are tried in the Crown Court before a judge and jury. Under section 44 of the Children and Young Persons Act 1933, every court dealing with a child (under 14) or young person (under 18), whether as an offender or otherwise, must have regard to his or her welfare. On 16 February 2000, following the Court’s judgments in T. v. the United Kingdom [GC], no.   24724/94 and V. v. the United Kingdom [GC], no.   24888/94, ECHR 1999-IX, the Lord Chief Justice issued a Practice Direction concerning the trial of children and young persons in the Crown Court. This Practice Direction was not, however, in force at the time of the applicant’s trial. 3. Fitness to plead An accused is “unfit to plead” if by reason of a disability, such as mental illness, he has “insufficient intellect to instruct his solicitors and counsel, to plead to the indictment, to challenge jurors, to understand the evidence, and to give evidence” ( R. v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of at least two medical experts. Where a jury has found the defendant unfit to plead, either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence, in which case the court may make a hospital order against him (Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5). Alternatively, the trial may be postponed indefinitely until the accused is fit to plead. COMPLAINT The applicant complains under Article 6 § 1 of the Convention that he was denied a fair trial because, by virtue of his age and intellectual ability, he was unable to participate effectively in the criminal proceedings against him. THE LAW The applicant complains of a breach of Article 6 § 1, which states: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” The Government submit that the application should be declared manifestly ill-founded. They accept that an accused has the right to participate effectively in his criminal trial, but dispute that, in the case of a child, this entails that he should be able to understand every point of law or evidential detail. Although the Practice Direction concerning child defendants was not in force at the time of the applicant’s trial, the procedure adopted in his case complied with it: the applicant was accompanied at all times by his supervising social worker, the formality of wigs and gowns was abandoned and the court took frequent breaks. His case involved no publicity and was not the object of public anger. There was no evidence that the applicant was traumatised by the trial or that, at the time of the hearing, his psychological condition prevented him from understanding the nature of the wrongdoing of which he was accused or from instructing and consulting with his legal representatives. No mention was made at trial of any difficulties said to have been encountered by the applicant. Moreover, the applicant and his supervising social worker conferred frequently in order for the latter to explain what was happening. It had not been suggested that the applicant did not understand those explanations or that he was unable to apply himself to the events around him to the extent that he could not effectively participate in the proceedings. The applicant was indeed able to give evidence in his own defence. It is contended on behalf of the applicant that he came from an appalling family background and was intellectually impaired as a result. An eleven year old child such as the applicant, with the mental age of, at best, an eight year old and at worst a six year old, who was so intellectually backward as to fall within the lowest 1% of children in his age group, should not have been tried by a judge and jury, in a court open to the public and with free access to the press. Instead, the applicant should have been tried in the privacy of a specialist Youth Court with proper sentencing powers. It was clear to any trained observer, including the applicant’s social worker, that the applicant was unable fully to comprehend or participate in the trial process and could not adequately give instructions. He was awed by the jury and the formalities of the Crown Court, despite the adapted procedure, and his short attention span antagonised the jury. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established. For these reasons, the Court unanimously Declares the application admissible.   Michael O’Boyle   Viera Strážnická   Registrar   President