CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 8 novembre 2005

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   M. Pellonpää ,   Mr   R. Maruste ,   Mr   K. Traja ,   Ms   L. Mijović ,   Mr   J. Šikuta, judges , and Mrs F. Elens-Passos , Deputy Section Registrar , Having regard to the above application lodged on 30 March 2004, Having deliberated, decides as follows: THE FACTS The applicants, Mr Raymond Betson (“the first applicant”) and William Cockram (“the second applicant”), are British nationals. The first applicant was born in 1961 and is currently detained in HMP Whitemoor. No details were provided as to the date of birth or current location of the second applicant. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. On 7 November 2000 the applicants and four accomplices attempted to steal the contents of the De Beers Millennium Diamond Exhibition at the Dome in Greenwich by driving a JCB digger into the said exhibition. The value of the gems they were trying to steal was 200 million pounds sterling. The applicants and their accomplices were caught in the act. On 5 November 2001 the applicants stood trial at the Central Criminal Court on charges of conspiracy to steal and conspiracy to rob. They pleaded guilty to conspiracy to steal but not guilty to conspiracy to rob. The only issue at trial was, therefore, whether there was a conspiracy to rob. The trial lasted three months. There were many witnesses, including Police Constable W, who gave evidence about ‘The Play’ (a book that he had written about the attempted theft) and G, a prosecution expert who gave evidence about the configuration of the transceivers used by the applicants. The first applicant, in the course of giving evidence, lied about the presence of another man in his car. The trial judge (“the judge”) warned him about the risk of his being in contempt of court. Later, when summing up, the judge directed the jury that the said lies were irrelevant to the first applicant’s guilt. The judge admitted that he ‘nodded off’ during the closing speeches. A solicitor’s clerk who was present at the trial noted that there were a few occasions towards the end of the trial when the judge slumped in his chair, fell asleep and was awakened by the sound of his own snoring. A journalist who was also present observed the judge fall asleep on about half a dozen occasions. The journalist could not recall when the judge had fallen asleep, other than on one occasion during the early stages of the closing speeches. The applicants’ counsel did not raise any issue at the trial in relation to the judge’s falling asleep. On 18 February 2002 the jury put a complicated question to the judge about the use of force. The applicant did not explain how the judge responded to this question. Later that day, the jury convicted the applicants of conspiracy to rob. The judge sentenced each of them to 18 years’ imprisonment. The applicants appealed. The first applicant, who was represented by junior counsel during his appeal hearing, appealed on the following grounds: in the first place, the judge displayed inadequate vigilance during the trial in falling asleep on a number of occasions; secondly, the judge improperly and inquisitorially interrupted the first applicant’s evidence on a number of occasions; thirdly, bearing in mind that the first applicant had already given evidence of his own record of dishonesty, the judge should not have taken him to task in relation to possible contempt and perjury in declining to name others to whom he had referred in the course of his evidence; fourthly, the judge at times acted like a prosecuting counsel; fifthly, the summing up was unbalanced and prejudicial to the first applicant’s case; sixthly, the judge should not have permitted the prosecution to call evidence from Police Constable W; seventhly, the judge should not have responded in detail to a question put by the jury. The second applicant, who was represented by senior counsel, only relied on the first two of those grounds. The Court of Appeal delivered its judgment on 22 January 2004. It made the following comments in relation to the sixth and seventh grounds of the first applicant’s appeal: “It is to be noted that, until that stage, no defendant had named [W] and if he had not been called, the defence and, in particular, [the first applicant], would have had free rein to implicate him in the conspiracy, without him having the opportunity of denying that that was so. The plot of the book which he had written, whether prejudicial or not, was elicited in cross-examination by leading counsel on behalf of [the first applicant]. In those circumstances, we propose to say no more about [the first applicant’s] sixth and seventh grounds save that, having read the jury’s question and the way in which the judge dealt with it, we are entirely satisfied that both these grounds are devoid of merit.” As to the second, third, and fourth grounds, the Court of Appeal found that, although on occasions the judge’s interventions were excessive, when viewed in the context of the trial as a whole, the said interventions did not render the trial unsafe. In particular it observed that, although in an ideal world the judge might have made fewer references to perjury, it was inescapably obvious that the first applicant was lying and the judge was entitled to warn him about the risk of contempt of court. As to the fifth ground, the Court of Appeal found that, having read with care the criticised passages in the summing up, there was no substance in the complaints. In particular, the direction in relation to perjury was correct. Finally, and as to the first ground, the Court of Appeal opined as follows: “There remains the ground in relation to the judge’s falling asleep. Because the appearance as well as the actuality of justice being done is important, no judge ought, in any circumstances, to fall asleep during any stage of a criminal trial. It is highly regrettable that this judge did so. But because a judge falls asleep or, for any other reason, allows his or her attention to wander, it does not necessarily follow that the trial is unfair, or that any ensuing conviction is unsafe. It is the effect, not the fact, of such inattention which is crucial. This must, in each case, depend on all the circumstances, including the period of inattention, both absolute and as a proportion of the length of the whole trial; the stage of the trial at which the inattention occurs; and, of primary importance, the impact of that inattention, if any, on the course and conduct of the trial. We give two examples by way of illustration. First, if a judge is inattentive, however briefly, during a defendant’s evidence in chief and, in consequence, fails to register and, in due course, sum up to the jury, a piece of evidence crucial to the defence, the conviction may be regarded as unsafe. The unsafety arises not because the judge slept or was otherwise inattentive but because, in consequence, the summing-up was defective in that the defence was not properly put before the jury. Conversely, a conviction is unlikely to be regarded as unsafe if, during a lengthy trial, a judge is inattentive, even for substantial periods, if, in consequence, he missed no significant point meriting inclusion in his summing-up and did not fail properly to control the admissibility of evidence, the conduct of counsel or some other aspect of the proceedings. In the present case, the judge, as he frankly and properly admits, was, for a time, asleep during the speeches of counsel for [the first applicant] and [C]. We are prepared to accept that he was also asleep on a few other occasions, sometimes to the extent that he woke himself by the sound of his snoring. It is however of some significance that, at the trial, no defendant, no counsel in the case, (of whom there were a total of 13), and no juror, was sufficiently concerned to raise the matter with the judge, other counsel, or the court usher. It is of greater significance that, before this Court, it has not been shown that, because he slept, the judge missed and failed to sum up to the jury any significant feature of the evidence or speeches. On the contrary, this summing-up, extending to approximately 250 pages of transcript and delivered, as we have said, over four days, shows every sign of having been carefully prepared. It was comprehensive and balanced, accurate as to the law and detailed as to the evidence. The defence of each defendant was fully put. Had the judge been awake when he was asleep, the appearance of justice would, of course, have been obviously enhanced. But the trial would have followed no different course. Furthermore, regrettable though it is that the judge occasionally slept, no objection having been made at the time, we are unpersuaded that the jury was, even arguably, unfairly prejudiced against any defendant, bearing in mind also the length of trial, the full, fair and accurate summing-up, the lengthy period of retirement, the pertinent question asked by the jury, and the compelling, powerful evidence against the defendants. It was for these reasons that yesterday we refused [the first applicant] and [the second applicant] leave to appeal against conviction.” The Court of Appeal then found the original sentence of 18 years to be excessive and substituted a sentence of 15 years. B.     Relevant domestic law Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal: “(a)     shall allow an appeal against conviction if they think that the conviction is unsafe; and (b)     shall dismiss an appeal in any other case.” The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol.   1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said: “This new provision ... is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.” In R v. Chalkley and Jeffries ([1998] 2 All ER 155, the Court of Appeal observed, however, that it: “...has no power under the substituted section 2(1) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial...” (per Lord Justice Auld at page 172j). Subsequently, the Court of Appeal modified its approach. The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson ([2000] 1 Criminal Appeal Reports 141 [Court of Appeal]), where he stated: “The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done ... If, on consideration of all the facts and circumstances of the case before it, the Court entertains real doubts whether the applicant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.” This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson ([2001] 1 Criminal Appeal Reports 8), where Lord Justice Mantell, delivering the judgment of the court, stated that: “The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read: ‘Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’ That being so there is no tension between s. 2(1)(a) of the Criminal Appeal Act as amended and section 3(1) of the Human Rights Act [requiring legislation to be read and given effect in a way which is compatible with Convention rights].” Later in his judgment, Lord Justice Mantell stated that: “We are satisfied that the two questions [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The [European Court of Human Rights] is charged with inquiring into whether there has been a breach of a Convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6   (1) by the [European Court of Human Rights] leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree. ...” COMPLAINTS The applicants complained under Article 6 that they were denied a fair trial and they made seven submissions: (i) the judge fell asleep on several occasions in full view of the jury during the trial; (ii) the jury had relinquished its fundamental function by asking the judge to determine the ‘issue of force’ in their note on 18 February 2002; (iii) the jury had been allowed to hear prejudicial and fictitious evidence from ‘Play’, Police Constable W’s book; (iv) the judge should not have told the jury in his summing up that the first applicant had committed perjury; (v) the applicants’ representatives failed to produce evidence that ammonia could remove DNA (vi) an allegation in relation to smoke canisters, on which the prosecution later relied, had never been put to them; and (vii) the judge failed to refer in his summing up to the evidence of G. THE LAW A. Article 35 § 1 of the Convention The Court recalls that under Article 35 of the Convention, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The Court observes that the applicants’ fifth, sixth and seventh complaints were not raised before the Court of Appeal. As a result, the applicants have failed to exhaust domestic remedies in respect of these complaints, as required by Article 35 § 1. Accordingly, the said complaints must be rejected pursuant to Article 35 § 4 of the Convention. B. Article 6 of the Convention The applicants invoked Article 6 which provides in so far as relevant: “In the determination of ... a criminal charge against him, everyone is entitled to a fair ... hearing...” 1. The arguments of the applicants The applicants complained, first of all, about the fact that the judge had fallen asleep on several occasions in full view of the jury during the course of the trial. They submitted that justice was not seen to be done. They also submitted that his falling asleep may have led to his failing to mention the evidence of G in his summing up (the sixth complaint). Secondly, they alleged that the jury had relinquished its fundamental function by asking the judge to determine the ‘issue of force’ in their note to the judge on 18 February 2002. Thirdly, they complained that the jury had been allowed to hear prejudicial and fictitious evidence from ‘Play’, a book by Police Constable W about the attempted theft. Fourthly, they argued that the trial judge should not have told the jury in his summing up that the first applicant had committed perjury. Although the first applicant admitted to telling a lie in his evidence, he submitted that the judge should not have mentioned perjury because the lie he had told was not material. 2. The Court’s assessment The Court recalls the general principles set out in Edwards v. the United Kingdom (judgment of 16 December 1992, Series A no. 247 ‑ B, § 34): “[T]he Court must consider the proceedings as a whole including the decision of the appellate court (see, amongst other authorities, the Helmers v. Sweden judgment of 29   October 1991, Series A no. 212, p. 15, para. 31). Moreover it is not within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and, as a general rule, it is for these courts to assess the evidence before them. The Court’s task is to ascertain whether the proceedings in their entirety, including the way in which evidence was taken, were fair (see, inter alia, the Vidal v. Belgium judgment of 22 April 1992, Series A no. 235-B, pp. 32-33, para. 33).” The Court notes that the first complaint, that the trial judge had fallen asleep, was the primary ground of appeal to the Court of Appeal. The Court observes that in the proceedings before the Court of Appeal the applicants were represented by junior and senior counsel respectively who had every opportunity to seek to persuade the court that the conviction was unsafe in view of the judge’s having fallen asleep during the trial. However, the Court of Appeal concluded that the judge’s falling asleep had not had any effect on the course or conduct of the trial. It relied, in particular, on the fact that the judge’s summing up, which extended to 250 pages of transcript and was delivered over 4 days was “comprehensive and balanced, accurate as to the law and detailed as to the evidence.” The Court considers that in these circumstances particular weight should be attached to the assessment of the national appellate court, which because of its knowledge and experience of the conduct of jury trials, is especially well placed to determine whether a trial judge’s handling of a trial resulted in unfairness (see C.G. v. the United Kingdom , no. 43373/98, § 36, 19   December 2001). It is true that the issue before the Court of Appeal was whether or not conviction was “unsafe”. The Court has observed in the past that, in the absence of an inquiry into the issue of fairness, a finding that a conviction was “safe” cannot be assimilated to a conclusion that the rights of the defence under Article 6 of the Convention were secured (see Condron v. the United Kingdom , no. 35718/97, § 65, ECHR 2000 ‑ V). However, it is clear that, in the present case, the Court of Appeal did, in substance, inquire into the fairness of the conviction: it expressly stated that “because a trial judge falls asleep ... it does not follow that the trial is unfair”; it then examined whether the judge’s inattention had had any impact on the conduct of the trial and concluded that it had not; finally it concluded that the jury was not “even arguably, unfairly prejudiced” against the applicants. Furthermore, the Court notes that the applicants were not able to specify any unfairness resulting from the judge’s falling asleep other than his alleged failure to mention the evidence of G. The Court observes that this allegation does not appear to have been raised before the Court of Appeal, despite the fact that the applicants had legal counsel to represent them. In any case, it is unsupported by evidence (no transcript of the summing up having been provided). The remaining complaints are unsubstantiated. The applicants have not explained why the jury-note question of 18 February 2002 was supposed to have resulted in unfairness. Nor did they develop in any way why it was unfair to allow evidence from Police Constable W about his book. They did not indicate why it was unfair of the judge to mention the first applicant’s perjury in his summing up: indeed, the Court notes that the judge appears to have so mentioned the first applicant’s perjury in order to remind the jury that it was not relevant to his guilt. Having regard to the above, the Court concludes that the applicants have not demonstrated that the proceedings as a whole were unfair. As a result, the applicants’ remaining complaints must be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.   For these reasons, the Court unanimously Declares the application inadmissible.   Françoise elens-passos   Josep Casadevall   Deputy Registrar   President