AS TO THE ADMISSIBILITY OF
Application No. 14099/88
by Robert GILLIES
against the United Kingdom
The European Commission of Human Rights sitting in private on
14 April 1989, the following members being present:
MM. S. TRECHSEL, Acting President
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. J. RAYMOND, Deputy 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 19 February
1988 by Robert GILLIES against the United Kingdom and registered on
5 August 1988 under file No. 14099/88;
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 1964 and resident
in Fife. He is currently serving a prison sentence in H.M. Prison
Saughton, Edinburgh. The facts as submitted by the applicant may be
summarised as follows.
The applicant was tried before the Sheriff Court at Dunfermline
on a charge of wilful fire-raising in relation to the burning of a barn
causing £12,000 damage. It appears that he was represented at his
trial on 9 and 10 December 1987. The applicant was found guilty on
10 December 1988 and was remanded in custody for three weeks pending
reports relevant to sentencing. The applicant appeared before the
Court on 31 December 1987 but the Sheriff who had conducted his trial
was absent and the applicant was remanded in custody for another week.
On 7 January 1988, the applicant appeared before the Sheriff
and was sentenced to three years imprisonment. Prior to 1 January
1988, the maximum sentence which could be imposed by a Sheriff Court
was a sentence of two years imprisonment although the Sheriff had
the power to remit a case to the High Court for sentencing if he
considered his powers were insufficient. On 1 January 1988, the
Criminal Justice (Scotland) Act 1987 came into force and increased the
power of the Sheriff to pass a term of imprisonment of up to three
years.
The applicant appealed against his sentence on the grounds
that the sentence was too severe and that he was sentenced to three
years imprisonment although on the date of his conviction the maximum
term possible was two years. He also applied for legal aid for his
appeal but was refused by the Scottish Legal Aid Board on the basis
that there were no substantial grounds for appeal and that the
sentence did not appear excessive.
The applicant's appeal was heard on 16 June 1988 by the High
Court of Justiciary. The applicant was present in person. No
representative of the Crown was present for the prosecution. The
Court, in dismissing his appeal, held that the sentence was not too
severe and that the only date relevant in determining whether a
sentence was competent was the date upon which the sentence was
imposed, in this case the 7 January 1988, when a three years sentence
was within the competence of the Sheriff.
COMPLAINTS
The applicant complains of the deferral of his sentencing
until 7 January 1988, by which time new legislative provisions had
increased the sentencing power of the Sheriff from two years to three
years. The applicant complains that he was accordingly sentenced to a
term of imprisonment which was not applicable at the time the offence
was committed. He invokes Article 7 of the Convention.
The applicant also complains of an inequality of arms contrary
to Article 6 para. 1 of the Convention.
THE LAW
1. The applicant has complained that he received a three years
sentence of imprisonment whereas prior to 1 January 1988 a two years
sentence would have been the maximum imposable by the Sheriff. He
invokes Article 7 para. 1 (Art. 7-1) which provides:
"No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at
the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time the
criminal offence was committed."
The Commission notes that the maximum penalty applicable for
the criminal offence of wilful fire-raising at the time that the
offence was committed was life imprisonment, whereas the applicant was
sentenced to three years. It is true that before 1 January 1988, the
Sheriff only had the power to give a maximum sentence of two years
imprisonment to persons convicted before him. However, even where a
person is tried before the Sheriff, it is open to the Sheriff Court,
where it considers its powers of sentencing to be insufficient, to
remit the person for sentencing to the High Court, which has full
sentencing powers. This applied also before 1 January 1988.
In these circumstances, the Commission finds that the change
in the sentencing powers of the Sheriff Court between the commission
of the offence and the sentencing of the applicant does not constitute
the imposition of a heavier penalty than that applicable at the time
the criminal offence was committed.
The Commission therefore finds that the applicant's complaint fails to
disclose a violation of Article 7 para. 1 (Art. 7-1) of the Convention.
It follows that this complaint is manifestly ill-founded within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. The applicant has also complained of inequality of arms contrary to
Article 6 para. 1 (Art. 6-1) of the Convention.
The Commission recalls that the applicant was represented at his trial
and that on appeal, while he was refused legal aid and appeared to present his
own case, the prosecution was not in fact present at all. In these
circumstances, the Commission finds that the applicant has not substantiated
his complaint, which fails therefore to disclose any appearance of a violation
of Article 6 para. 1 (Art. 6-1) of the Convention.
It follows that this part of the application is also 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.
Deputy Secretary to the Commission Acting President of the Commission
(J. RAYMOND) (S. TRECHSEL)