FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 3414/05
by David HENDERSON
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 6 February 2007 as a Chamber composed of:
MrJ. Casadevall, President,
SirNicolas Bratza,
MrS. Pavlovschi,
MrL. Garlicki,
MsL. Mijović,
MrJ. Šikuta,
MrsP. Hirvelä, judges,
and Mr T.L. Early, Section Registrar,
Having regard to the above application lodged on 19 January 2005,
Having regard to the decision to apply Article 29 § 3 of the Convention and examine the admissibility and merits of the case together.
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr David Henderson, is a British national who was born in 1970 and lives in Glasgow. He is represented before the Court by Mr J. Carroll, a lawyer practising in Glasgow.
The United Kingdom Government (“the Government”) were represented by their Agent, Mr Derek Walton of the Foreign and Commonwealth Office, London.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 22 June 2000, the applicant was questioned by the police and charged with various offences. He and two other men were later tried in the High Court at Inverness on twenty-one charges, predominantly of assault and drugs offences. The trial lasted from 25 September 2000 to 3 November 2000. The Crown withdrew a number of charges at the close of the prosecution case, such that the applicant was ultimately convicted of two charges of assault and robbery and one of assault causing injury to a Mr Denny. He was sentenced on 3 November 2000 to 6 years’ imprisonment. The trial had been recorded by mechanical means.
On or about 1 January 2001, the applicant lodged an appeal against both conviction and sentence. Leave to appeal was refused by a single judge on 14 March 2001. By letter dated 4 April 2001, the applicant’s representatives applied for review of that refusal.
On 4 May 2001, the applicant was granted leave to appeal against sentence and limited leave to appeal against conviction on the charge of assault and robbery, identified for purposes of the proceedings as “Charge 7.” Charge 7 read in material part as follows:
“[the applicant did] repeatedly punch and kick David Charles Denny on the head, repeatedly threaten to slash and stab him, present a knife to him, attempt to cut off his finger with a knife or similar instrument, all to his injury.”
By letter dated 14 May 2001, it was indicated that leave had been granted to appeal against conviction on Charge 7 on the basis that “there might be an arguable point as to the need for corroboration on the use of a knife.”
The applicant obtained legal aid for the instruction of senior and junior counsel on 15 June 2001. He thereafter sought to substantiate the factual basis of the appeal against conviction on Charge 7. He sought authority (in general terms) to have transcribed the recording of counsel’s submissions in support of the contention that there was no case to answer. He was granted legal aid to this effect on 20 August 2001 and court authorisation on 21 August 2001; he received the transcript on 27 December 2001. He obtained counsel’s advice in June 2002 and, as a consequence, amended his Note of Appeal. The revised Note of Appeal lodged on 22 July 2002 expanded his initial ground of appeal against conviction on Charge 7 as follows:
“That specifically in relation to charge seven, the trial judge misdirected himself in law and fact when he rejected the submission by counsel that there was insufficient corroboration to allow the jury to find the appellant guilty of attempting to cut off Crown witness Denny’s finger. Esto there was sufficient evidence for the jury to convict, they should have been directed that before they could do so in relation to the attempted cutting off of the Crown witness Denny’s finger they must find corroboration in the evidence before they could convict of this element of the charge.”
Further, the applicant sought transcripts of the evidence of certain witnesses to seek support for the revised grounds of appeal. This was because it appeared to the applicant and his representatives that the trial judge’s record of the evidence was different to that of his agents. On 31 July 2002 sanction was granted by the court for the funding of the transcription of the evidence of the relevant witnesses. At a hearing on 15 August 2002, the court allowed the revised grounds of appeal, ordered a supplementary report from the trial judge, and took note of the position on transcripts.
The trial judge provided a supplementary report on 15 September 2002. The judge noted the attack on the element of charge 7 relating to the “attempt to cut off [Denny’s] finger with a knife or similar instrument,” and continued:
“There is no suggestion now, nor was there then, that there was insufficient evidence for the remainder of [charge 7] (of which whole charge the applicant was found unanimously guilty) including in particular the allegation that the appellant, acting along with two others, repeatedly threatened to slash and stab the complainer and presented a knife at him. This has significance... for the question of corroboration.”
The trial judge noted the evidence of a Sergeant Scott to the effect that:
“the complainer sought to speak to him two days later on 29 March and then told him informally what had happened, although apparently too scared to give a formal statement. At that stage the witness saw not only the injuries to the complainer’s forehead and face, apparently consistent with the punching and kicking attack spoken to by the complainer, but also a cut to the complainer’s pinkie.
Standing the evidence of Sergeant Scott there was, it seemed to me, arguably enough evidence of the part of the assault in question. Further I took the view that if the jury believed the complainer as to the detailed account he gave (including threats and the presentation of the knife) there was no need for specific corroboration of the matter.
...
[i]n this case, in circumstances in which it was accepted that there was sufficient evidence for the allegation of repeated threats to slash and stab the complainer and of presentation of the knife at him, and where the complainer accepted that the apparent attempt to cut off his finger was not carried through to any great extent, I did not think, leaving aside for the moment the evidence of Sergeant Scott, that any specific corroboration was needed.”
The trial judge also noted that, even if the appeal on this point was allowed, and a question was raised as to its effect upon the applicant’s evidence, it would have made no difference to the sentence he imposed.
The Justiciary Office wrote to the applicant’s representatives on 23 September 2002 to ask whether the appeal was ready to proceed; the applicant’s representatives responded that they were unable to do so until they received the transcripts. On 23 October 2002, they were received. By letter dated 24 October 2002, the applicant’s representatives wrote to the company contracted to provide the transcription requesting the evidence of a Mr O’Reilly. By letter dated 28 October 2002 the transcribers advised the Clerk of the Justiciary that it had proved impossible to transcribe his evidence due to his diction and the quality of the recording. This letter was passed to the applicant’s representatives, who, on 8 November 2002, replied that counsel’s view was that the lack of this transcript would put the appeal in severe difficulties and requesting to have the tape cleaned up.
Technical attempts were made by specialists to recover the evidence of Mr O’Reilly. The applicant’s representatives wrote to the transcribers on 31 March, 23 June and 14 August, 30 September and 27 October 2003. In the last letter they stated that the transcript was of "critical importance to the appeal".
On 28 October 2003, the transcribers finally advised that the defects could not be resolved, and that the transcript of Mr O’Reilly’s evidence could not be provided.
At a procedural hearing on 31 March 2004, fixed by the Clerk, the court directed that the applicant had three weeks to confirm if the appeal was to proceed.
On 20 April 2004, the applicant tendered a new and additional ground of appeal, namely that there had been a failure by the court to conclude the appeal within a reasonable time in breach of the applicant’s Article 6 rights. This ground was supported by a chronology, in which it was recorded that “On 13 November 2002, copy transcripts of the evidence were lodged with Justiciary Office and the appellant’s agents awaited notification of a hearing on the appeal.” The applicant accepted that the time taken to 13 November 2002 was reasonable. However, he contended that, upon lodging the transcripts with the Judiciary Office, “it should have been clear to the authorities that this case was now pressing and that urgent steps should have been taken to secure a hearing at a time which would have accorded with a reasonable and proportionate time in which to conclude such a case.”
On 14 May 2004, at a procedural hearing, the court granted leave to appeal on this further ground.
On 2 June 2004, the court directed that a hearing be assigned during the sitting of the appeal court on 22 June 2004.
On 10 June 2004, the applicant abandoned his appeal against conviction, stating that it was counsel’s view that without the transcription of Mr O’Reilly’s evidence the appeal against Charge 7 in relation to the use of the knife on Mr Denny’s little finger could not be sustained. As the sitting on 22 June 2004 concerned appeals against conviction, not sentence only appeals, no date was assigned on that occasion. A date was later fixed for 19 November 2004.
On that date, the Appeal Court of the High Court of Justiciary heard the Article 6 challenge and the appeal against sentence in November 2004, and dismissed them both on 17 December 2004.
The Appeal Court noted that the report of the trial judge showed that Mr O’Reilly’s evidence was not relied upon to provide corroboration of the single feature of Charge 7 that was the subject of challenge. Further, the Appeal Court considered that the chronology supplied on 20 April 2004 by the applicant’s representatives in support of the Article 6 challenge was:
“neither comprehensive nor entirely accurate. In particular, the suggestion that as from 22 November 2002 the appellant’s agents were simply awaiting notification of an appeal diet cannot be reconciled with the position presented in the later case and argument that appeal could not proceed without the transcripts, nor with the efforts made to recover O’Reilly’s evidence until October 2003.”
The Appeal Court considered that the issue relating to corroboration had been “fully ventilated” by September 2002, and that:
“[t]hereafter time was taken up by the fruitless search for support from some unspecified deficiency in the evidence. It is important to note that there is no suggestion that the transcribed evidence of the witnesses, on whom the trial judge’s analysis of the assault on Denny’s little finger depended, failed in any way whatsoever to bear out the analysis in his reports. Delay in this case was due to the intransigent insistence of the appellant and his advisers in pursuit of the irrelevant.... ”
The Appeal Court then considered the question of length by specific reference to Article 6 and, in particular, the case of Majarič v. Slovenia (no. 28400/95, 8 February 2000). It considered that:
“at each stage in the prosecution of this appeal the appellant had the benefit of a prompt response from the Court to applications made to it. The simple explanation of the major part of the time that has elapsed between conviction and the disposal of the appeal against sentence is the insistence of the appellant in an appeal against conviction that had to be abandoned as having no foundation. [The applicant’s representative’s] assertion that there was some absolute duty on the Court to procure a speedy disposal of the appeal, whatever the position of the appellant, is clearly not supported by the European jurisprudence. The conduct of the appellant is a factor. Had the Court intervened to require the appeal to be disposed of while the appellant continued to pursue his quest for transcripts, we have no doubt that that would have been the focus for complaint. Time passed in this appeal because the court allowed the appellant the time he sought to pursue these matters.”
As regards the appeal against sentence, the Appeal Court found no basis to interfere with the trial judge’s determination of the relative criminality of the applicant and Mr Byrne, the central ground upon which the applicant maintained that the sentence imposed him had been excessive.
In the meantime, the applicant had been released on parole licence on 30 June 2004, having served two-thirds of his sentence.
COMPLAINT
The applicant complained under Article 6 § 1 of the Convention that he has been denied his right to have the charges against him determined within a reasonable period of time. He accepted (as he did before the domestic courts) that the time taken until 13 November 2002 was reasonable; he complained, however, about the length of the period from that date to the final determination of his appeal on 17 December 2004.
THE LAW
The applicant complained of the length of proceedings, in particular the period on appeal from 13 November 2002 until the final determination on 17 December 2004. He invokes Article 6 § 1 of the Convention which provides as relevant:
“In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time ...”
A. The parties’ submissions
The Government submitted that the applicant’s appeal was conducted within the reasonable time requirement and that any delay was attributable to his insistence on pursuing a transcript of O’Reilly’s evidence. Relying on the opinion of the Appeal Court, they argued that this had been unnecessary and irrelevant to the conduct of the appeal against conviction. He had taken no steps to progress the hearing of his appeal pending his attempts to obtain the transcript of the evidence. That failure had not been the result of a failure of a fault in the equipment which could have been foreseen or prevented, it only preventing the transcription of one witness. The applicant’s representatives had also known that it was their responsibility for making any enquiries as to the availability of the transcripts with the technicians. It would not have been reasonable in their view for the courts to have progressed the appeal while the applicant was taking steps to obtain the transcript.
The applicant submitted that following his trial his very experienced counsel had advised of the necessity of obtaining the transcript and he had followed their advice throughout, pointing out that he had been granted leave to appeal on the point by the court. While they agreed that the court had told them to communicate on the matter of transcripts with the court themselves, this did not stop the court progressing matters or allocating a hearing. They had contacted the transcribers regularly themselves and there was no explanation from the Government as to why it took so long to determine finally that the tape was beyond recovery. He submitted that he should not be held to blame for the time taken to determine that no resolution to the problem could be found. In his view it was the failure of the state to provide adequate technical facilities and properly communicate those deficiencies to the applicant’s solicitors that resulted in more time than was reasonable being expended.
B. The Court’s assessment
The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).
The period to be taken into consideration began on 22 June 2000 when the applicant was first charged with criminal offences and ended on 17 December 2004 when the appeal judgment was given. It thus lasted over four years five months, of which the appeal stage took almost three years.
The Court notes that the applicant makes complaint only of the length of the appeal proceedings. It observes that the early stages of the appeal progressed smartly, through the granting of leave and preparation, including the obtaining of transcripts of submissions and evidence. By 23 September 2002 when the Clerk asked the applicant whether the hearing could be listed, it appeared that the case was ready. That no hearing was fixed at that stage flowed from the applicant’s position that it was crucial for his appeal to obtain the transcript of the evidence of one witness Mr O’Reilly and his request, on 28 October 2002, that special efforts be made to clean up the tape of which the transcribers had been unable to make any sense due to an apparent combination of bad diction and poor quality. It was not until a year later that the applicant was informed that this had not proved possible. The parties have disputed the responsibility for this lapse of one year. The Court does not consider that the appeal court can be blamed for not fixing the hearing during this period, given the fact that the applicant was continuing to maintain the vital significance of this evidence for his appeal.
The Court further notes that, despite the continued insistence of the applicant’s representatives throughout the period that the transcript of the evidence of Mr O’Reilly was of critical importance to his appeal relating to the lack of corroboration of the attempt to cut off the complainer’s finger, there was, as noted by the Appeal Court, nothing in the trial judge’s supplementary report of 15 November 2002 to suggest that Mr O’Reilly’s evidence had been relied on as providing any such corroboration. In these circumstances, the applicant’s representatives must bear a substantial part of the responsibility for the delay in pursuing the transcription of evidence of doubtful relevance, even after being told that this had proved technically impossible. The Court observes, finally, that it does not appear that the applicant’s representatives made any complaint to the domestic courts drawing to their attention the problems in obtaining the transcript; had the lapse of time been a matter of serious concern, it would not have been unreasonable to expect his representatives to return to the court to seek further procedural directions.
As concerns the period of time that elapsed after the applicants were informed that the tape could not be cleaned up, the Court notes that there was a series of procedural steps and hearings which clarified the scope of the appeal and no period of significant inactivity.
It follows that there has been no failure to comply with the reasonable time requirement in the present case and that the application must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 3 of the Convention and to declare the application inadmissible.
T.L. EarlyJosep Casadevall
RegistrarPresident
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