AS TO THE ADMISSIBILITY OF
Application No. 12656/87
by K.
against the United Kingdom
The European Commission of Human Rights sitting in private on
13 May 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN,
S. TRECHSEL,
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
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 1 August 1986
by K. against the United Kingdom and registered on 19 January 1987
under file No. 12656/87;
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 citizen of France, born in 1949 and an
artist by profession. At the time of lodging his application he was
detained in HM Prison Edinburgh where he was serving a 30 month prison
sentence for assault with intent to rape.
The applicant claims that he is innocent of the offence and
outlines the evidence in his favour. He states that on the day of his
trial, 21 November 1985, the QC (senior counsel) with whom he had
prepared his defence was unable to be present and junior counsel had
allegedly under an hour to prepare the defence file. The applicant
had wanted an adjournment so that the original QC could represent him,
but he was allegedly threatened by the Procurator Fiscal with remand
in custody if such an application were made to the court and accepted,
so the request for an adjournment was not made. Junior counsel
allegedly failed to call essential defence witnesses who were present
in court. The Edinburgh High Court convicted him of the offence.
The Dean of the Faculty of Advocates, in a letter to the
applicant dated 10 July 1987, refuted the applicant's allegations.
Junior counsel had been instructed in good time before the trial and
had adequate time to prepare the brief. His counsel's recollection is
that the applicant was not happy about the unavailability of senior
counsel, but he accepted the explanation given. The Dean considered
that counsel had quite rightly not called certain witnesses whose
evidence was anyway accepted by the prosecution or witnesses who would
have been prejudicial to the defence. The evidence given by the main
prosecution witnesses was strong and there was ample evidence for a
conviction.
On appeal the applicant wished to raise the question of an
inadequate defence because of counsel's alleged inability to prepare
the brief in time. However, the original written grounds of appeal
which were lodged by the applicant's solicitor omitted this point and
relied on an alleged misdirection by the judge. The applicant did not
receive legal aid for representation at the appeal hearing. He was,
however, assisted by his solicitor in the preparation of the appeal.
The solicitor attended the hearing, albeit not as his formal
representative, and subsequently waived his fees. The applicant
represented himself at the appeal hearing and raised the question of
the change of counsel at the trial as a violation of Article 6 para. 3
of the Convention by the trial court. The applicant claims not to
have received the free services of an interpreter before the High
Court of Justiciary on appeal, the interpreter provided by the French
Consul allegedly not being a professional.
The High Court of Justiciary found no misdirection of the case
by the trial judge and considered the applicant's conviction
inevitable and well-founded. It made no comment on the conduct of the
applicant's defence at the trial or the absence of evidence from
certain witnesses. The Court dismissed the applicant's appeal on
25 September 1986.
Finally, the applicant states that the prison authorities
refused him permission to be visited and filmed by a Scottish
Television journalist who was investigating his case. On 5 March 1987
the Scottish Home and Health Department confirmed the refusal because
the exhibition of particular prisoners on television is prohibited by
Prison Standing Orders.
COMPLAINTS
The applicant complains to the Commission of a breach of
Article 6 para. 3 (a), (b), (c) and (d) of the Convention insofar as
he was not represented by the senior counsel of his choice at his
trial, insofar as junior counsel was allegedly ill-prepared to defend
him having been instructed only an hour before the hearing, insofar as
the trial allegedly had to proceed because of the Procurator Fiscal's
threat to imprison him, insofar as junior counsel failed to produce
certain defence witnesses and material, and insofar as the appeal
court did not provide an interpreter and he was not legally
represented at the appeal hearing.
In correspondence with the Commission the applicant also
complained of a breach of Article 10 of the Convention insofar as the
prison authorities refused to allow him to be visited and filmed by a
Scottish Television journalist.
THE LAW
1. The applicant has complained of a breach of his rights of
defence ensured by Article 6 para. 3 (Art. 6-3) of the Convention,
which reads as follows:
"3. Everyone charged with a criminal offence has the
following minimum rights:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of
the accusation against him;
(b) to have adequate time and facilities for the
preparation of his defence;
(c) to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free
when the interests of justice so require;
(d) to examine or have examined witnesses against him
and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses
against him;
(e) to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
However the Commission finds no evidence in the case file to
substantiate the applicant's allegations. There is no evidence
whatsoever that the applicant was not informed promptly or
comprehensively of the charges against him. Nor is there evidence in
the case-file that the Procurator Fiscal threatened the applicant with
remand in custody if he sought an adjournment of his trial.
The Commission considers that the mere fact that senior
counsel of the applicant's choice was unable to represent him at the
trial does not indicate that junior counsel did not have the time,
facilities or ability to represent the applicant adequately. There is
no evidence that junior counsel failed to master the brief or failed
to call essential witnesses or put in essential evidence. The appeal
court made no comment on junior counsel's representation of the
applicant at the trial or on the absence of certain witnesses'
evidence. In this latter connection the Commission notes that Article
6 para. 3 (d) (Art. 6-3-d) of the Convention does not confer on the
accused an absolute right to obtain the appearance of all possible
witnesses in court. The accused must demonstrate that the hearing of
a particular witness "was necessary for ascertaining the truth and
that failure to hear the witness prejudiced the rights of defence"
(No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127). The applicant has not
demonstrated that the evidence of the witnesses which junior counsel
did not call and upon which the appeal court did not apparently see
fit to comment were essential to the truth of his case.
Finally, the Commission notes that the applicant had extensive
free legal assistance for his appeal, albeit not a formally designated
representative, and that he had the free assistance of an interpreter
provided by the French Consul. He has submitted no evidence that the
interpreter was incompetent.
In these circumstances, the Commission concludes that the
applicant's complaints under Article 6 para. 3 (Art. 6-3) of the
Convention are manifestly ill-founded within the meaning of Article 27
para. 2 (Art.27-2) of the Convention.
2. The applicant has also complained of the refusal of the prison
authorities to allow him to be visited and filmed by a Scottish
Television journalist. He invokes Article 10 (Art. 10) of the
Convention the relevant part of which provides as follows:
"1. Everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and
to receive and impart information and ideas without
interference by public authority and regardless of
frontiers....
2. The exercise of these freedoms, since it carries
with it duties and responsibiities, may be subject to
such formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a
democratic society ... for the prevention of disorder
or crime..."
The Commission assumes, for the purposes of the present case,
that the refusal to allow the applicant to give a televised interview
constituted an interference with his freedom to impart information,
ensured by Article 10 para. 1 (Art. 10-1) of the Convention. The
Commission notes the general prohibition in Scottish Prison Standing
Orders on the "exhibition of particular prisoners on television". The
Scottish Prison Rules only authorise prisoners' visits from relatives
and friends, legal advisers, procurator fiscal or police officers.
Permission for all other visits is at the discretion of the Secretary
of State (Rules 74-80 Prison (Scotland) Rules 1952). The Commission
acknowledges that the provision of general facilities for such
interviews would create an unreasonable administrative and security
burden for prison administrations. Thus, the prohibition of visits
for television interviews can be said to be prescribed by law and, in
principle, necessary in a democratic society for the prevention of
disorder, within the meaning of Article 10 para. 2 (Art. 10-2) of the
Convention. The Commission also observes that there is no evidence in
the present case that the applicant was prevented from communicating
with the journalist concerned by correspondence, thus imparting
relevant information about his case. Nor does the application
disclose any exceptional circumstances which might have necessitated
the televising of the applicant.
In the light of these considerations the Commission concludes
that the refusal to allow the applicant to be visited and filmed by a
Scottish Television journalist was prescribed by law and necessary in
a democratic society for the prevention of disorder within the meaning
of Article 10 para. 2 (Art. 10-2) of the Convention.
It follows that this aspect of the case is also manifestly
ill-founded pursuant to 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)