AS TO THE ADMISSIBILITY
Application No. 12002/86
by Thomas B. GRANT
against the United Kingdom
The European Commission of Human Rights sitting in private on
8 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
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 17 February
1986 by Thomas B. GRANT against the United Kingdom and registered
on 20 February 1986 under file No. 12002/86;
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 1947 and presently
detained in H.M. Prison Barlinnie, Glasgow. He is represented before
the Commission by Hamilton Burns & Moore, Solicitors of Glasgow. The
facts as agreed by the parties may be summarised as follows:
In 1985 the applicant was charged, together with A., with a
number of offences under the Firearms Act 1981 and the Counterfeiting
Act 1981, namely possession of a firearm and of counterfeit notes.
The applicant submits that he had instructed his counsel, via
his solicitors, that the shotgun in question belonged to his co-accused
A. who had behaved with increasing instability and that A. had also
produced the counterfeit money with which the applicant had admittedly
associated himself. The applicant maintained that he had possession
of the shotgun only on one occasion, when A. had asked him to conceal
the weapon which was in a holdall and which the applicant had arranged
to do by giving the shotgun to a neighbour. The applicant's counsel
took the view that this explanation was not credible and could be
counter-productive; it was, therefore, decided not to plead these
matters before the court.
The applicant appeared before the High Court of Justiciary in
Glasgow on 18 June 1985 and pleaded guilty to two charges on the
indictment, involving the possession of a firearm and counterfeit
notes. The explanation tendered by the applicant in respect of the
firearm was that it was required for his protection as various
threatening calls had been made to the premises occupied by the
applicant and A. A. also pleaded guilty to the charges, but since
another co-accused F. pleaded not guilty, sentence in respect of the
applicant and A. was deferred until the conclusion of F.'s trial.
During F.'s trial both the applicant and A. were called as witnesses
for the defence and F. was acquitted. The trial judge, after a plea
in mitigation by the applicant's counsel, sentenced the applicant to a
total of six years' imprisonment, three years on each of the charges
to run consecutively. A. received a similar sentence.
Shortly after the trial, A.'s condition deteriorated rapidly.
He became phobic about his food, unable to eat and requested to be
removed to Carstairs State Institution for the Criminally Insane.
The applicant considered that this corroborated what he had
said all along about A.'s instability; he claimed that had his counsel
made the trial judge aware of the true condition of A., he would have
been sentenced more leniently and a distinction would have been made
between himself and A. He instructed fresh counsel to appeal against
sentence to the Court of Criminal Appeal in the light of A.'s
deteriorated condition. A. also lodged an appeal.
The appeal first came before the High Court of Appeal in
Edinburgh on 26 September 1985. As the case of A. was not properly
prepared, the hearing of the appeal was postponed to November 1985.
On 22 November the Appeal Court heard the applicant's appeal, having
before it the report of the trial judge on the case and on the grounds
of appeal. No evidence was heard. The prosecution was represented by
the Advocate Depute but, following normal practice, he took no part in
the proceedings. Counsel for the applicant addressed the court in
support of the appeal but, as she sensed from the questions put by the
judges that the court thought that the sentences imposed on the
applicant by the court of first instance were excessively light,
she requested the applicant's instructions in the light of this
development. The applicant, who was present in court, instructed
counsel to seek to abandon the appeal forthwith. The court, however,
refused to permit abandonment of the appeal and the applicant's counsel
completed her submissions. In the exercise of its power under Section
254(3) Criminal Procedure (Scotland) Act 1975 ("the 1975 Act") the
court then quashed the sentence of the lower court, and substituted a
sentence of five years on each of the two charges to run
consecutively, stating in its opinion that the offences were very
serious and that the sentence imposed by the trial judge was in fact
inadequate.
Relevant provisions of national law
Abandonment of appeals
The provisions for abandonment of appeals in Scotland are
covered by Section 244 of the 1975 Act, which reads as follows:
"(1) An appellant may abandon his appeal by lodging with
the Clerk of Justiciary a notice of abandonment in as
nearly as may be the form prescribed by Act of Adjournal
under this Act; and on such notice being lodged the appeal
shall be deemed to have been dismissed by the court.
(2) A person who has appealed against both conviction and
sentence may abandon the appeal in so far as it is against
conviction and may proceed with it against sentence alone."
The court is under no obligation to allow an appeal to be
abandoned once the case has been called on the day of the hearing.
An application for leave to appeal against sentence may be
abandoned under Section 244 at any time before the calling of the case
but once the case is called, it becomes a matter for the discretion of
the court whether any motion for leave to abandon should be granted.
In West v. Her Majesty's Advocate (1955 Scots Law Times
p. 425) the Lord Justice General stated:
"It would be a denial of justice to permit an accused to
lodge an application for leave to appeal against sentence,
to argue his appeal in full and when he realises that he
will or may very probably fail, then to permit him to
withdraw his appeal and take refuge in what the court may
well consider an inappropriate sentence. Accused persons
who choose to exercise their rights to appeal under the
provisions of the 1926 Act must realise that though they
may succeed in securing a reduction of sentence they also
run the risk of a longer sentence being imposed."
Power of the Court of Appeal
Section 254 of the 1975 Act which governs the disposal of
appeals by the High Court of Appeal in Edinburgh reads as follows:
"(1) The High Court may, subject to subsection (4) below,
dispose of an appeal against conviction by
(a) affirming the verdict of the trial court;
(b) setting aside the verdict of the trial court and
either quashing the conviction or substituting
therefor an amended verdict of guilty, provided that
an amended verdict of guilty must be one which could
have been returned on the indictment before the trial
court; or
(c) setting aside the verdict of the trial court and
granting authority to bring a new prosecution in
accordance with Section 255 of this act.
(2) In setting aside, under subsection (1) above, a verdict
the High Court may quash any sentence imposed on the appellant
as respects the indictment, and
(a) in a case where it substitutes an amended verdict
of guilty, whether or not the sentence related to the
verdict set aside, or
(b) in any other case, where the sentence did not
relate, may pass another (but not more severe) sentence
in substitution for the sentence so quashed.
(3) The High Court may, subject to subsection (4) below,
dispose of an appeal against sentence by
(a) affirming such sentence; or
(b) if the court thinks that, having regard to all the
circumstances, including any additional evidence such
as is mentioned in Section 228(2) of this act, a
different sentence should have been passed, quashing
the sentence and passing another sentence whether more
or less severe in substitution therefor.
(4) In relation to any appeal under Section 228(1) of this
act, the High Court shall, where it appears to it that the
appellant committed the act charged against him but that
he was insane when he did so, dispose of the appeal by
(a) setting aside the verdict of the trial court and
substituting therefor a verdict of acquittal on the
ground of insanity; and
(b) quashing any sentence imposed on the appellant as
respects the indictment and ordering that he be
detained in a state hospital or such other hospital
as for special reasons the court may specify.
(5) The provisions of subsection (4) of Section 174 of this
act shall apply to an order under subsection (4)(b) above
as they apply to an order under that section."
Section 262 of the 1975 Act governing the finality of the
proceedings reads as follows:
"Subject to the provisions of the next following section of
this act, all interlocutors and sentences pronounced by the
High Court under this part of this act shall be final and
conclusive and not subject to review by any court whatsoever
and it shall be incompetent to stay or suspend any execution
or diligence issuing from the High Court under this part of
this act."
COMPLAINTS
The applicant complains first that his detention pursuant to
the decision of the High Court of Appeal in Edinburgh is in violation
of Article 5 para. 1 (a) of the Convention. The Court of Appeal
imposed an additional four year sentence without hearing evidence;
this does not constitute a "conviction by a competent court" as
required by Article 5 para. 1 (a). The trial judge was the only judge
to hear the entire evidence, and to assess the witnesses and the
accused. He was the only judge competent to assess the case and make
a proper assessment of an appropriate sentence.
Secondly, the applicant complains that the decision of the
Appeal Court was in violation of Article 6 of the Convention. He was
not given "a fair and public hearing by an independent and impartial
tribunal established by law". The questioning of counsel by the court
made it clear from the outset that the court thought the appeal
unfounded and was therefore not amenable to due and proper
consideration of its merits.
It was not fair to refuse to allow the appeal to be withdrawn,
which is a minimum right under any legal system. It was also not fair
to impose an additional sentence without hearing further evidence.
Thirdly, the applicant submits that Article 7 of the
Convention was breached by the court's decision to impose "a heavier
penalty ... than the one that was applicable at the time the criminal
offence was committed".
Finally, the applicant submits that the imposition of an
additional period of four years' imprisonment after the imposition of
a sentence of six years' imprisonment is, in the circumstances of the
case, inhuman and degrading treatment or punishment in contravention
of Article 3 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 February 1986 and
registered on 20 February 1986. On 2 December 1986, the Commission
decided to communicate the application to the respondent Government
pursuant to Rule 42(2)(b) (Art. 44-2-b) of its Rules of Procedure and
to invite them to submit written observations on the admissibility and
merits of the applicant's complaints under Article 6 para. 1 (Art.
6-1) of the Convention.
The respondent Government's observations were submitted on
22 April 1987 and the observations in reply submitted by the applicant
on 30 June 1987.
SUBMISSIONS OF THE PARTIES
A. The respondent Government
Admissibility and merits
It was open to the applicant under Section 244 of the 1975 Act
to abandon his appeal at any time between the lodging of the Note of
Appeal on 24 June 1985 and the eventual hearing of the appeal on
22 November 1985, by lodging with the Clerk of Justiciary a Notice of
Abandonment in the prescribed form. In the event that such a Notice
of Abandonment had been lodged within that period the appeal would
have been deemed to have been dismissed by the court. At the first
calling of the appeal on 26 September 1985, when the applicant was
present with his solicitor and represented by counsel, no motion to
abandon the appeal was made. Such a motion was only made after his
counsel had commenced her submissions to the court in support of the
appeal and after the court had indicated from their questions to
counsel and reaction to her submissions that they might consider the
sentences to have been inadequate. The Government would recall in
this connection the statement of the Lord Justice General in West v.
Her Majesty's Advocate (loc. cit.) and adopt his reasoning (see
Relevant Domestic Law and Practice).
The Appeal Court had before it copies of the indictment, the
applicant's Note of Appeal and the report of the trial judge. The
Court increased the sentence because in its view the offences of which
the applicant was convicted were "very serious offences". The
Government contend that the applicant through his counsel had full
opportunity to put forward his arguments on this question of the
seriousness of the offences. The applicant was present throughout and
able to convey instructions to his legal advisers.
The prosecution took no part in the appeal proceedings and in
practice would only do so, where the court wished the prosecutor to
clarify any matter of fact or to furnish further information.
The Government therefore submit that the application is
manifestly ill-founded or discloses no breach of the Convention.
B. The applicant
Admissibility and merits
The applicant submits that the right to abandon an appeal is
and should be a fundamental right. The increase in sentence exercised
in this case did not conform to the overall concept of fairness as
outlined in the Commission's case-law (see e.g. Nielsen v. Denmark,
Application No. 343/57, Dec. 2.5.59, Yearbook 4 p. 548). There was no
transcript of evidence before the Appeal Court, the Court heard no
evidence nor were depositions or a precis of any sort before them.
The applicant argues that in dismissing his appeal the Court
was exercising its appellate jurisdiction but that in proceeding from
there to increase his sentence, they acted as if they were court of
first instance and therefore in order to conform with Article 6
para. 1 of the Convention they should have examined the evidence de
novo. The Court did not have sufficient material upon which to base
any decision other than to reject the importance of the fresh matters
brought before it.
The Court also took a very short period of time over the
appeal, i.e. from 10.30 am to 11.25 am. The applicant submits that a
decision to impose an additional sentence of four years to an already
substantial sentence of six years should only have been made after
extensive research and argument.
Further, the applicant submits that having indicated from the
outset the probability of an increased sentence, the Court should not
have refused to allow the withdrawal since it had from the moment of
refusal ceased to be a "fair and impartial" body.
The Court gave no explanation as to the facts which made five
years a more appropriate sentence than three years for each charge in
this particular case. The Court's opinion contains only general
propositions as to the offences and not as to the particular offender.
While counsel was able to address the Court on the original sentences
she did not do so on the question of the imposition of an additional
four years to the applicant's sentence.
THE LAW
1. The applicant complains first that he was denied a fair trial
in that the High Court of Appeal increased his sentence and refused to
allow the abandonment of his appeal when the matter was heard on
22 November 1985.
Article 6 para. 1 (Art. 6-1) of the Convention provides as
follows:
"In the determination of his civil rights and
obligations or 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 recalls that, in accordance with its constant
case-law, the fairness of any trial must be examined by reference to
the proceedings as a whole (e.g. Application No. 524/59, Dec.
19.12.60, Yearbook 3 pp. 323-353 and Application No. 8289/78, Dec.
5.3.80, D.R. 18 p. 160).
The Commission notes in particular that the applicant was
present in person both at his trial and at the proceedings on appeal
and that he was represented on both occasions by a solicitor and
counsel. In these circumstances there is nothing to show that the
principle of equality of arms contained in the notion of fair trial
was not respected.
The applicant contends that the questioning of counsel by the
Court of Appeal made it clear that from the outset they thought the
appeal unfounded and that they were therefore not amenable to due and
proper consideration of its merits. The Commission however considers
that any allegation of bias on the part of a court must be clearly
distinguished from the circumstances where a court which sits with
notice of the proceedings, and in which the judges have had the
opportunity to prepare themselves by reference to the papers, may
inevitably form an initial inclination or view in respect of the
merits of an appeal, subject to hearing the content of the pleadings
themselves. The Commission finds that beyond the fact that the Court
of Appeal appears to have formed such an initial inclination in
reference to the appeal the applicant has not submitted any evidence
in support of an allegation of actual bias and that there is no
indication on the facts of the case as submitted that the Court of
Appeal failed to fulfil the requirement of impartiality within the
meaning of Article 6 para. 1 (Art. 6-1) of the Convention.
The applicant also contends that it was unfair that he was
unable to withdraw the appeal which he had lodged, and which was in
the process of being determined, when he and his counsel concluded
that the appeal would be unsuccessful. The Commission notes in this
respect that Scottish law provides expressly for the possibility of
abandoning an appeal under the terms of Section 244 of the 1975 Act
but that the operation of that section is limited to cases where the
hearing of an appeal has not yet begun. The Commission finds in the
present case that the High Court of Appeal did not compromise the
fairness of the hearing of the appeal by requiring the appeal, which
had not only already been lodged, but in which the hearing was already
underway, to be concluded.
The applicant further complains that the Court of Appeal in
effect imposed a four year sentence on him without hearing any
evidence.
The Commission recalls that as the applicant had pleaded
guilty in the Court below to the two charges to which the appeal
related, no evidence had been adduced there on those offences,
although evidence was given against and for another accused on related
counterfeiting charges, in respect of which he was subsequently found
not guilty. The report of the Court at first instance set out the
facts briefly, the judge commenting that both charges were very
serious. The Court of Appeal did not require a transcript of the
first instance proceedings to be made and produced and there is
therefore no indication that if a transcript had been furnished, it
would have affected their decision on the applicant's appeal which was
against sentence only, and not against conviction.
The Commission notes that the High Court of Appeal is
empowered under the terms of Section 254(3)(b) read in conjunction
with Section 228(2) of the 1975 Act to hear additional evidence. It
appears that in the present case the Court did not find it necessary
to do so in order to determine the gravity of the two offences, and
that neither the applicant nor his counsel made application to the
Court that they should hear additional evidence. However, in reaching
its conclusion, the Court had the benefit of hearing counsel's
submissions on the severity of the applicant's sentence and on the
factors which the applicant felt mitigated in his favour and it also
had before it the note of the first instance judge on the proceedings.
In these circumstances there is nothing to show that the applicant's
appeal was not heard fairly, in conformity with Article 6 para. 1
(Art. 6-1) of the Convention.
It follows that this part of the applicant's complaint is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
2. The applicant also complains that his detention following his
conviction was contrary to Article 5 para. 1 (a) (Art. 5-1-a) of the
Convention since the High Court of Appeal was not a competent court
within the terms of the provision, which states:
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction
by a competent court;
..."
However the applicant has not submitted any arguments to
substantiate this complaint, beyond those which have already been
examined by the Commission in relation to his complaint that his
appeal was not fair. That complaint has been rejected as manifestly
ill-founded and the applicant has made no other submissions which
might suggest that the High Court of Appeal could be regarded as
anything other than a competent court for the purpose of imposing
sentence in relation to the conviction of the applicant following his
trial at first instance. It follows that this aspect of the
applicant's complaint is manifestly ill-founded within the meaning of
Article 27 para. 2 (Art. 27-2) of the Convention.
3. The applicant further invokes Article 7 (Art. 7) of the
Convention in relation to the increase of his sentence by the Court of
Appeal. Article 7 para. 1 (Art. 7-1) of the Convention 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."
However the applicant has not submitted, and there is no
evidence to suggest, that the sentences of five years respectively in
respect of each of the charges of which the applicant was convicted
exceeded the statutory maximum sentences which could have been imposed
upon the applicant at his trial at first instance.
It follows that this aspect of the applicant's complaint is
manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention.
4. The applicant invokes Article 3 (Art. 3) of the Convention in
relation to the increase in his sentence. Article 3 (Art. 3) provides:
"No one shall be subjected to torture or to inhuman or
degrading treatment or punishment."
The Commission finds that the imposition of an additional
sentence of the scale which arose in the present case is not treatment
which can be regarded as attaining the degree of seriousness which
might raise an issue under Article 3 (Art. 3) of the Convention. It follows
that this aspect of the application is 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)