AS TO THE ADMISSIBILITY OF
Application No. 12834/87
by John BOYLE
against the United Kingdom
The European Commission of Human Rights sitting in private
on 3 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 February 1987
by John BOYLE against the United Kingdom and registered on 3 April
1987 under file N° 12834/87;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen born in 1955 and is, at
present, detained in Barlinnie Prison, Scotland. He is represented
in the proceedings before the Commission by Messrs. Carroll & Co.,
Solicitors, Glasgow. The facts presented by the applicant may be
summarised as follows:
The applicant, together with another person, was charged on
indictment with four offences against the Misuse of Drugs Act 1971
(Scotland). At a sitting of the High Court of Justiciary which
commenced 19 May 1986, he was convicted of three of those charges and
sentenced to a total of six years imprisonment (four of which were
concurrent).
During the course of the summing up to the jury on the
question of the proper burden of proof in criminal cases, the trial
judge is recorded in the transcript as having made the following remarks:
"As I have said, there is no obligation on any
accused to prove anything let alone prove it by corroborated
evidence. If an accused gives evidence, as both accused
have in the present case, and if that evidence tends to
exculpate that accused and if you accept it then, of course,
the result is you acquit the accused. If you believe what
either of the two accused said in the witness box then
either or both must, of course, be acquitted. That is
common sense. If, however, you don't fully believe them but
their evidence is sufficient as to raise in your mind a
reasonable doubt as to whether the police have been
lying and committing perjury you are not entitled to
give the benefit of that doubt to the accused because
(emphasis added) the case has to be proved beyond reasonable
doubt and even, ladies and gentlemen, if you wholly reject
the evidence of both accused it doesn't prove the contrary:
because you reject perhaps what Mr. Kyle or Mr. Boyle has
said the contrary of what they have said is not thereby
proved. You still have to accept the evidence given by the
Crown as indicating that the accused are guilty according to
the standards which I have pointed out."
It appears that the above underlined statement was not
challenged by the applicant's counsel at the trial.
The applicant together with the co-accused appealed against
his conviction to the High Court of Justiciary (Appeal Division) on
five grounds - the first of which dealt with the incorrect statement of
the law referred to above. At this stage counsel advised that he
supported only grounds two and four but not the first ground. Legal
aid to pursue the appeal was subsequently granted following advice
from Queen's Counsel who supported the first ground of appeal and
recommended that legal aid be sought to employ Queen's Counsel for the
appeal.
The Queen's Counsel who had indicated support for the first
ground was not available to argue the appeal and another Queen's
Counsel was retained. The applicant's solicitor states that it is the
practice in the Scots legal profession to brief counsel in criminal
appeal work "quite close" to the date of the hearing. In this case
Queen's Counsel was briefed and received the papers on 7 January 1987.
The appeal was set down for hearing on 9 January 1987.
On the evening of 8 January 1987 the Queen's Counsel who was
briefed in the case indicated to the applicant's solicitor that he was
not happy with grounds 1 and 5 but that he would ponder the matter
over night and discuss it further the next morning before the appeal
came on for hearing.
The applicant had been informed of the differences of view as
to the first ground of appeal between legal counsel but learned only
on the morning of the trial that the Queen's Counsel briefed to argue
his appeal had decided that he was not prepared to argue the first
ground of appeal and, in fact, was prepared to argue only ground five.
The applicant was advised that if he was not satisfied with this advice,
Queen's Counsel would seek the leave of the Court to withdraw from the
case. The applicant then instructed Queen's Counsel to proceed
with all five grounds of appeal. Queen's Counsel then sought and
obtained the leave of the Court to withdraw from the case leaving the
applicant to present his own case, solicitors not having a right of
audience before the High Court of Justiciary.
Before Queen's Counsel withdrew from the case he advised
the applicant that he could move for an adjournment to enable him to
seek another Queen's Counsel to argue his appeal. The applicant was
further advised that he was unlikely to be allowed bail pending any
further hearing and that the Court would not look sympathetically on
such a motion to adjourn where Queen's Counsel withdrew because the
applicant did not accept his advice.
The applicant did not, in fact, seek an adjournment nor did he
seek to present his case orally. Instead he placed a memorandum of
appeal before the Court which then adjourned over a lengthy lunch
period to allow the Lord Advocate to make submissions in reply.
According to the applicant's solicitor it is not the usual
practice in Scotland for memoranda of appeal to be placed before the
courts in this way. They are prepared not as court documents but as
an aide memoire for counsel presenting appeals.
The Court took time for consideration of this appeal and on 6
February 1987 the Lord Justice-Clerk, with whom two other Lord
Justices of the High Court of Justiciary (Appeal Division) agreed, gave
judgment and held with regard to the trial judge's statement
concerning the burden of proof that there was no miscarriage of
justice. In particular he stated as follows:
"In my opinion it is inconceivable that any judge would
deliberately give the direction: 'you are not entitled to
give the benefit of the doubt to the accused because the
case has to be proved beyond reasonable doubt'. As the trial
judge points out in his Report, if such a direction had been
given to the jury this is something which would have been
noted at the time by those present. He tells us that the
Clerk of Court whom he has consulted did not notice any such
error. Likewise the Lord Advocate informed us that the
Advocate Depute who took the trial had also been consulted
and that in the course of listening to the charge being
delivered he was not conscious of any such error. In my
opinion the most likely explanation for what appears in the
transcript is that three words have been omitted from the
passage in question. In my opinion, the probability is that
what the trial judge said was: 'you are not entitled to
convict but must give the benefit of the doubt to the
accused because the case has to be proved beyond reasonable
doubt'. Alternatively, as the trial judge himself suggests
in his Report, he may have started to say : 'you are not
entitled to convict' and then corrected that to saying that
the benefit of the doubt must be given to the accused.
Whatever the true explanation may be, I find it very hard to
believe that the trial judge in fact gave the direction
which is the subject of this ground of appeal. However that
may be, and whether there was an error in the transcription
of the shorthand notes or a slip of the tongue by the trial
judge, I am satisfied that there was not any miscarriage of
justice in this respect. In a number of passages in his
charge both before and after the passage in question, the
trial judge emphasised to the jury that before they could
convict they required to be satisfied of the guilt of the
accused beyond reasonable doubt. Accordingly the jury can
have been left in no doubt as to the burden of proof and the
standard of proof; in particular they can have been left in
no doubt that the accused required to be given the benefit
of any reasonable doubt."
The applicant succeeded on ground five of his appeal with the
result that conviction on one of the charges was quashed. However his
appeal against conviction on the other charges was dismissed.
COMPLAINTS
The applicant complains that he has had an unfair hearing
within the meaning of Article 6 para. 1 of the Convention because the
trial judge made an error of law when charging the jury on the burden
of proof which the prosecution had to discharge before an accused
person could be convicted of an offence under Scots law.
The applicant also complains that he has not had a fair
hearing of his appeal within the meaning of Article 6 para. 1 of the
Convention because his Queen's Counsel withdrew from the case on the
very morning of the appeal leaving him to represent himself.
THE LAW
1. The applicant first complains that he was denied a fair
hearing contrary to Article 6 para. 1 (Art. 6-1) of the Convention
because the trial judge incorrectly charged the jury as to the burden
of proof which has to be discharged by the prosecution before an
accused person can be convicted under Scots law.
The relevant part of Article 6 para. 1 (Art. 6-1) of the Convention
states:
"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....".
The Commission examined a similar complaint concerning an
alleged error in a judge's summing-up in Application No. 10361/83
(Lynch v. Ireland, Dec. 9.5.84 to be published in D.R.). In this
application it held as follows:
"The Commission recalls its function in examining
whether or not a trial has been fair within the meaning of
Article 6 para. 1 (Art. 6-1) of the Convention. It is not
called upon to decide whether the domestic courts have correctly
assessed the evidence before them, but only 'whether
evidence for and against the accused has been presented in
such a way, that he has had a fair trial'.....
In addition, as the Commission stated in the Nielsen
case, the question whether the proceedings have been unfair
must be decided
'on the basis of a consideration of the trial as a whole and
not on the basis of an isolated consideration of one
particular incident. Admittedly, one particular incident or
one particular aspect .... may have been so prominent or may
have been of such importance as to be decisive for the
general evaluation of the trial as a whole. Nevertheless,
even in this contingency, it is on the basis of an
evaluation of the trial in its entirety that the answer must
be given to the question whether or not there has been a
fair trial'.....".
In the present case the High Court of Justiciary (Appeal
Division) held that whether there was an error in transcription or a
slip of the tongue no miscarriage of justice had occurred. The appeal
court further observed that neither the Clerk of Court nor the
Advocate Depute had noticed any error in the summing up and that in
other parts of the judge's summing up the references to the
appropriate burden of proof were correct. The court concluded that
the jury can have been left in no doubt as to the burden of proof and
the rule that the accused was to be given the benefit of any
reasonable doubt.
In such circumstances the Commission considers that even if it
could be established that the trial judge had by accident made the
remarks imputed to him by the transcript the applicant has not
substantiated his claim that he received an unfair trial and that,
accordingly, this part of his complaint must be rejected.
2. The applicant further complains that he was denied a fair
hearing of his appeal because of the late withdrawal of counsel.
The Commission considers that in certain circumstances the
withdrawal of counsel from a case leaving an accused to present his
own case may give rise to an issue under Article 6 para. 1 (Art. 6-1)
of the Convention. In the present case, however, the Commission notes
that the applicant could have sought an adjournment of the appeal in
order to secure the services of counsel who would have been prepared
to argue all the grounds of appeal. He chose, however, to pursue his
appeal without the assistance of counsel. In addition it is
established that the Court was in possession of a detailed memorandum
of appeal which sets out in some detail the grounds to be argued and
the cases to be relied on. Finally it is evident from the decision of
the appeal court that the applicant's arguments on all five grounds of
appeal were fully considered by the Court and that the applicant
succeeded on one of his grounds of appeal. Against this background
the Commission finds no indication that the appeal proceedings in the
present case were unfair within the meaning of Article 6 para. 1 (Art.6-1)
of the Convention.
It follows that the applicant's complaints under this
provision must be rejected as manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE
Secretary to the Commission President of the Commission
H. C. KRÜGER C. A. NØRGAARD