AS TO THE ADMISSIBILITY
Application No. 11816/85
by Paul McWILLIAM
against the United Kingdom
The European Commission of Human Rights sitting in private on
7 May 1987, the following members being present:
MM. G. SPERDUTI, Acting President
J.A. FROWEIN
F. ERMACORA
G. JÖRUNDSSON
G. TENEKIDES
B. KIERNAN
A. WEITZEL
H.G. SCHERMERS
G. BATLINER
H. VANDENBERGHE
Mrs G.H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mr. K. ROGGE, Head of Division acting as
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 9 July 1985
by Paul McWILLIAM against the United Kingdom and registered
on 14 October 1985 under file No. 11816/85;
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 facts which do not appear in dispute between the parties
may be summarised as follows.
The applicant is a British citizen born in 1944 and currently
serving a prison sentence at Dartmoor. He is represented by
Mr. Lambert, a solicitor practising in Plymouth.
On 22 March 1984 the applicant was convicted of conspiracy to
commit burglary. He was tried with three others who were convicted of
conspiracy and other offences. The applicant and one co-defendant,
who had pleaded guilty, were sentenced to seven years, the other two
defendants to four years imprisonment. The applicant had a record of
offences and, on 25 January 1982, he had been released on parole from
a twelve year sentence.
The applicant applied for leave to appeal against conviction
and sentence before a single judge of the Court of Appeal.
In the first instance the single judge is charged with the
duty of considering whether an application for leave to appeal has
sufficient merit to justify the matter being argued before the Court
of Appeal. Where he is of that opinion he will grant leave to appeal
and will usually also grant legal aid, pursuant to section 28(8) of
the Legal Aid Act 1974, to enable counsel, or where necessary counsel
and solicitors, to present the appeal to the Court of Appeal by way of
oral argument. If he refuses leave to appeal, an appellant is
entitled to have his applicaton for leave to appeal determined by the
Court of Appeal.
On 25 and 28 March the applicant's counsel settled provisional
grounds of appeal and an advice on appeal in respect of both
conviction and sentence for the applicant, who had legal aid for that
purpose. Under cover of a letter dated 5 April 1984, the solicitors
then acting for the applicant forwarded those documents to the
Registrar of Criminal Appeals together with forms N and G. In these
forms the solicitors also indicated that the applicant applied for
legal aid for the purpose of enabling counsel to argue the appeal
before the court.
On receipt of the notice and grounds of appeal the Registrar
ordered a transcript of proceedings in the Crown Court including the
judge's summing up of the case to the jury. The transcript was
received from the firm of shorthand writers concerned on about
5 September 1984. On that date a copy of the transcript was sent to
counsel with a request that he perfect his provisional grounds of
appeal. On 25 September 1984 the Registrar received the perfected
grounds of appeal containing, as requested, references to the
transcript.
On 28 September 1984 all the papers in the case, including the
transcript and counsel's perfected grounds, were submitted by the
Registrar to the single judge. The applicant's applications for leave
to appeal against conviction and sentence were refused on 16 October
1984: the single judge considered that the trial judge acted entirely
properly in his summing-up to the jury and there were no grounds for
quashing the conviction. As regards sentence, the single judge gave
the reasoning that the applicant's previous record and the fact he was
on parole at the time of the offence justified a heavier sentence than
the other defendants, who had also saved the court's time by pleading
guilty. The single judge also refused his application for legal aid.
The other co-defendant C. who had also received a sentence of
seven years had applied for leave to appeal against sentence to the
single judge and been granted leave to appeal. The applicant
re-applied for leave to appeal to the full Court of Appeal by notice
dated 29 October and on 19 November submitted additional grounds
prepared by the applicant himself. The hearing of C.'s appeal and the
applicant's application for leave to appeal took place on the same day
on 26 April 1985.
The applicant was neither present nor represented. His legal
aid for the trial, which included drafting grounds of appeal, had
expired and though he had applied for legal aid for his appeal this
had been refused. His co-defendant C., who had been granted leave to
appeal and legal aid, was represented by counsel.
The Court of Appeal, after considering the grounds of appeal
against conviction and sentence submitted by the applicant's counsel
in writing, held that the criticisms of the judge's summing-up were
unfounded and that the applicant's record justified his heavy
sentence. The court also issued a reprimand against the barrister who
had drafted the grounds of appeal. As regards the applicant's
co-defendant however, the court considered that there was a disparity
in sentence with the other defendants, in particular since he had
pleaded guilty to the same offences, and reduced his sentence to five
years.
Under section 29 of the Criminal Appeal Act 1968, the Court
also had power to order that part or all of the time spent awaiting
the determination of an application for leave to appeal will not count
towards the prospective appellant's service of sentence, thereby in
effect lengthening the amount of time spent in detention. Though both
the single judge and the full court have power to make orders for loss
of time counting against sentence under the Criminal Appeal Act 1968,
it appears that in its Practice Direction of 14 February 1980 (70
Cr App Rep 186) the Court made it clear that single judges would not
make such orders where grounds in support of an application for leave
to appeal had been settled by counsel. Where however the single judge
had refused leave to appeal the Court would not feel constrained from
making such orders, the applicant having had the advantage of a
judge's opinion on the merits of his case. No such order was in fact
made in the present case.
COMPLAINTS
The applicant complains that he was not present or represented
either before the single judge or the full Court of Appeal when they
considered his application for leave to appeal. He also complains
that in making his application he was in jeopardy of an order being
made for loss of time counting towards sentence (no order was in fact
made).
The applicant invokes Article 6 paras. 1 and 3 (c) and
Article 5 para. 1 (a) of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 9 July 1985 and registered
on 14 October 1985.
The Commission first examined the question of admissibility on
18 July 1986 and decided to invite the respondent Government to submit
observations in writing on the admissibility and merits of the
application with regard to Article 6 para. 1 and para. 3 (c) of the
Convention. The Government submitted their observations on 20
November 1986 and the applicant submitted his observations in reply on
27 January 1987.
SUBMISSIONS OF THE PARTIES
A. The Government
a) The facts
On 16 October 1984, the single judge refused all the
applicant's applications. In considering the application, the judge
did not hear oral argument from counsel; the arguments were fully set
out in the perfected grounds of appeal. However, had the judge
considered oral argument necessary he could, and would, have adjourned
consideration of the case and granted legal aid for the purpose of
enabling counsel to appear before him.
On 26 April 1985 the applicant's renewed applications were
considered by the court comprising the Lord Chief Justice and Mr.
Justice Farquharson. The court had before it all the papers in the
case including the transcript and counsel's perfected grounds of
appeal. As appears from the transcript of the judgment, the matter
was carefully considered but all the applications were refused. The
court felt that it would not have been assisted by oral argument.
However, had the court, presided over as it was by the Lord Chief
Justice, considered such argument necessary it could and would have
adjourned consideration of the case and granted legal aid for the
purpose of allowing counsel to appear before it. The granting of such
a facility would not have depended upon the applicant being given
leave to appeal.
b) Admissibility and merits
i. Article 6 para. 1 of the Convention
Following the Report of the Commission in Applications Nos.
9562/81 and 9818/82 Monnell and Morris v. the United Kingdom,
adopted on 11 March 1985, and the Delcourt judgment of the Court
(Series A No. 11) the Government accept that the guarantees provided
by Article 6 apply to applications for leave to appeal to the Court of
Appeal Criminal Division. In Application No. 7413/76 X v. the
United Kingdom (Dec. 16.5.77, D.R. 9 p. 100) the Commission were
concerned with the procedure for granting leave to appeal. They
noted:
"In respect of such proceedings it is not unusual for a
prospective appellant to be present or to be legally
represented. Witnesses are not called at such a hearing.
The Commission, in examining such proceedings, has regard,
however, to their fairness as a whole. In doing so, and in
accordance with its constant jurisprudence, the Commission
considers that the fair hearing granted to an accused person
within the meaning of Article 6 para. 1 requires respect for
the principle 'equality of arms' as between the prosecution
and the defence... In the present case it does not appear
that the prosecution was present at the leave to appeal
hearing nor was it legally represented and it did not call
witnesses. There is accordingly no appearance of a violation
of the principle of the equality of arms."
In the present case it is clear that the prosecution were not
represented either before the single judge or before the full court
when the applicant's applications for leave to appeal were considered.
There can, therefore, have been no violation of the principle of
equality of arms. Indeed, whereas the prosecution made no
representations as to the merits of the applicant's proposed appeal,
the applicant's grounds of appeal, supported by an opinion from his
counsel, together with a transcript of the judge's summing up, were
carefully considered by both the single judge and the full court.
The applicant has, it is further submitted, not suggested that
there were further grounds of appeal which did not appear in the
documents that were before the single judge and the full court.
Neither has it been suggested that his arguments in support of his
application for leave to appeal could have been more effectively put
at an oral hearing. The judgment of the Court of Appeal indicates
that everything that could have been said on his behalf was said in
the written grounds and supporting documents. As indicated before
if either the single judge or the court had felt that they would have
been assisted by oral representations, they could and would have
directed an oral hearing and granted legal aid for the purpose.
The sole issue before the single judge and the full court was
whether the applicant's grounds of appeal were arguable. In these
circumstances the Government submit that, having regard to the
proceedings as a whole, there was no requirement in Article 6 that the
issue be determined at an oral hearing.
ii. Article 6 para. 3 (c)
The Government repeat their submission that in this case
Article 6 did not guarantee the applicant a right to an oral hearing.
As regards those proceedings which did take place in this case
the preparation of written material was prepared by the applicant's
counsel. The applicant was therefore able to defend himself through
legal assistance of his own choosing. In these circumstances the
requirements of Article 6 para. 3 (c) are satisfied.
The Government also refer to the consistent jurisprudence of
the Commission in which it has held that where the appellant is
assisted by counsel he does not have the additional right to be
present to defend himself. The Government refer in particular to
X v. Norway (Application No. 5923/72, Dec. 30.5.75, D.R. 3 p. 43),
where the Commission held:
"... Article 6 para. 3 (c) guarantees that proceedings
against the accused will not take place without an adequate
representation for the defence, but does not give the accused
the right to decide himself in what manner his defence should
be assured. The decision as to which of the two alternatives
mentioned in the provision should be chosen, namely the
applicant's right to defend himself in person or to be
represented by a lawyer of his own choosing, or in certain
circumstances one appointed by the court, depends upon the
applicable legislation or rules of court."
The Government submit that in the circumstances of the present
case, where the applicant was assisted in the preparation of his
written grounds by counsel, Article 6 para. 3 (c) did not require that
he should have an additional right to defend himself in person.
Representation by counsel was, in this context, sufficient.
B. The applicant
a) The facts
In form N apart from applying for leave to appeal against
conviction, leave to appeal against sentence and legal aid, the
applicant also applied for leave to be present at the hearing.
Although no form P appears to have been submitted on 3 April 1984
note 8 on the reverse side of form N indicates that such an appliation
can be made subsequently. Although the applicant had indicated he
wished to have leave to be present at the hearing, it does not appear
that he was sent form P or reminded of his entitlement to submit form
P. His application for permission to be present was not considered by
the single judge. The note on the reverse side of form SJ states that
"applications refused by a judge may be renewed for consideration by
the full court..." but since his application for leave to be present
was not refused by the single judge (not having been considered) his
renewal did not apply to the application for permission to be present.
The applicant does not agree with the Government's submission
that his appeal was carefully considered in so far as it concerned
leave to appeal against sentence. This application was peremptorily
dismissed, the court's decision on this point only taking four and
half lines of text.
b) Admissibility and merits
The applicant relies on the Report of the Commission of
11 March 1985 in MONNELL and MORRIS v. the United Kingdom
(Applications Nos. 9562/81 and 9818/82) and adopts the substance of
the arguments presented on behalf of the applicants Monnell and Morris
in support of his argument that the absence of the applicant and his
lack of representation at the hearings of his applications for leave
to appeal against sentence and conviction before the single judge and
full Court of Appeal both which had the power to make orders for loss
of time counting towards sentence deprived him of a fair trial within
the meaning of Article 6 para. 1 of the Convention and/or deprived him
of his rights under Article 6 para. 3 (c).
The applicant does not accept the Government's contention that
the applicant's arguments could not have been put more effectively at
an oral hearing. He submits that the grounds of appeal which are
presented to the court take the form of dry pleadings without
elaboration and without the recital of legal authorities for any
propositions which may be put forward. There is more substance in
counsel's advice on appeal against conviction and his separate advice
on appeal against sentence, but those documents do not represent an
adequate substitute for representation at a hearing, may not be before
the single judge or full court and are not designed to answer or
preempt any features of a case which the court may wish to be assisted
upon, and cannot of necessity allow for developments in law or
practice between the date that they are written and the later date of
hearings before the single judge and still later the full court. The
applicant does not accept that "everything that could have been said
on his behalf was said in the written grounds and supporting
documents" as alleged in the Government's observations.
The applicant also submits that there was inequality of arms
in the following respects:
(a) because the court of its own motion may discuss and adopt
or reject submissions relating to the applicant's case without him
having any opportunity to respond unless the court again of its
own motion decides to adjourn the proceedings and
(b) in this particular instance the appeal of the co-accused
from the same count on the indictment was determined by the court at
the same sitting, and the co-accused was represented by counsel. It
must follow that justice was not "seen to be done" and there was not a
"fair trial" and the applicant was deprived of his right to defend
himself or receive assistance, given that submissions on behalf of C.
of necessity distinguished C.'s plea of guilty from the case of the
applicant "who insisted on a plea of not guilty". Again, the
applicant's application for leave to appeal against sentence was
dismissed inter alia "in the light of this man's record", although
only one count of this indictment affected the applicant. C.'s appeal
concerned some 19 offences before the trial court, apart from
convictions prior to that. It is noted that in the transcript,
mention is made of counsel for the co-accused C. speaking to counsel
for the prosecution on matters relating to sentence and the
distinction between co-accused, whereas the applicant was not present,
was not represented, nor did his representative have an opportunity to
consult counsel who had appeared for the prosecution in the court
below in the rather exceptional circumstances which existed i.e. where
the learned trial judge had passed away. In this sense, the
inequality of arms was exacerbated. C.'s case was presented with the
help of his own counsel and with the views of prosecution for the
Crown made known to the court, whilst the applicant was given no
opportunity to present his case adequately. Adopting the words of the
Court of Appeal referring to C., it is the applicant's submission that
the applicant's case is also "an example par excellence of disparity
between sentences passed upon two men which if allowed to stand would
for once genuinely raise a grievance and a justifiable grievance in
the mind of the man who received the more severe sentence".
The applicant accordingly argues in relation to Article 6 that
the issue before the appeal court required an oral hearing, having
regard to the proceedings as a whole, and in relation to Article 6
para. 3 (c) that the limited assistance of counsel in drafting form G
was not in any way sufficient.
THE LAW
1. Article 5 para. 1 (a) (Art. 5-1-a) of the Convention
The applicant complains of a violation of Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention in that he was in jeopardy of an order
for loss of time during the proceedings.
Article 5 para. 1 (a) (Art. 5-1-a) of the Convention provides as
follows:
"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; ..."
The Commission notes however that no order for loss of time
was in fact made by the Court of Appeal and that the period of
detention after the applicant's conviction until the determination of
his application for leave to appeal did not cease to be counted as
part of the sentence imposed by the judge after his conviction. In
these circumstances, the Commission finds no appearance of a violation of
Article 5 para. 1 (Art. 5-1-a) of the Convention, the applicant's detention
clearly falling within the exception set out para. (a).
It follows that this complaint is manifestly ill-founded
within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
2. Article 6 para. 1 and para. 3 (c) (Art. 6-1, 6-3-c) of the Convention
The applicant complains that he was not present or represented
before the single judge or the full Court of Appeal when they decided
his application for leave to appeal, although in making such
application, he was at risk of an order being made for loss of time counting
towards sentence. He invokes Article 6 para. 3 (c) (Art. 6-3-c) of the
Convention.
The Commission must first consider whether Article 6 (Art. 6)
of the Convention was applicable to the applicant's hearings of his
applications for leave to appeal by the full Court of Appeal. Article
6 para. 1 (Art. 6-1) of the Convention provides:
"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."
Article 6 para. 3 (c) (Art. 6-3-c) further provides:
"Everyone charged with a criminal offence has the following
minimum rights:
...
(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."
In the Delcourt case, the European Court of Human Rights pointed out
that Article 6 para. 1 (Art. 6-1) of the Convention does not compel the
Contracting States to set up courts of appeal or of cassation but that,
nevertheless, a State which does institute such courts is required to ensure
that persons amenable to the law shall enjoy before these courts the
fundamental guarantees contained in Article 6 (Art. 6) (Eur. Court H.R.,
Delcourt judgment of 17 January 1970, Series A No. 11 pp. 13-15).
Thus, the Commission considers that, although Article 6 (Art. 6) does
not guarantee an appeal in criminal proceedings, where the opportunity
to lodge an appeal in regard to the determination of a criminal charge
is provided under domestic law, the guarantees of Article 6 (Art. 6) continue
to apply to the appeal proceedings, since those proceedings form part
of the whole proceedings which determine the criminal charge at issue
(No. 9315/81, Dec. 15.7.83, D.R. 34 p. 96, and Monnell and Morris v.
the United Kingdom, Nos. 9562/81 and 9818/82, Comm. Rep. 11.3.85).
In the present case, the proceedings before the Court of
Appeal related to the examination of applications for leave to appeal
against conviction and sentence. These proceedings were closely
related to the appeal proceedings as such and the Court of Appeal had
the competence not only to accept or reject the application for leave
to appeal, but also to prolong the appellant's sentence by ordering
"loss of time". In these circumstances, the Commission considers that
the guarantees of Article 6 (Art. 6) were applicable to the
applications for leave to appeal which were made by the applicant to
the Court of Appeal.
The Commission must therefore consider whether, in the
circumstances of the present case, the guarantees of Article 6 paras. 1
and 3 (c) (Art. 6-1, 6-3-c) required that the applicant be present or
be represented during the determination of his applications for leave
to appeal.
The Commission would first of all note that the principle of
equality of arms, inherent in the notion of fairness under Article 6
para. 1 (Art. 6-1) of the Convention was respected, in that the
prosecution was not represented before either the single judge or the
full Court of Appeal (see e.g. No. 5871/72, Dec. 30.9.74, D.R. 1
p. 54 and Eur. Court H.R., Monnell and Morris judgment of 2 March 1987,
Series A No. 115).
The principle of equality of arms is, however, only one
feature of the wider concept of fair trial in criminal proceedings;
in particular, "even in the absence of a prosecuting party, a trial
would not be fair if it took place in such conditions as to put the
accused unfairly at a disadvantage" (Eur. Court H.R., Delcourt
judgment of 17 January 1970, Series A No. 11 pp. 15 and 18).
The Commission notes in this regard that the applicant had the
benefit of free legal advice on appeal and that his counsel drafted
grounds of appeal on his behalf which were submitted to the single
judge and full Court of Appeal. The Commission further recalls that
in the case of Monnell and Morris (loc. cit.) the European Court of
Human Rights came to the conclusion that the interests of justice and
fairness could in such circumstances be met by the opportunity
afforded to an applicant to present relevant considerations by making
written submissions. The Court also found that there was no reason
why such written submissions should not have included considerations
relevant to the Court of Appeal's exercise of the power to direct loss
of time.
In the present case, the applicant had this opportunity and
unlike the applicants in Monnell and Morris (loc. cit.) was not in
fact subject of a loss of time order. The Commission accordingly
concludes that he was not deprived of a fair procedure as guaranteed under
Article 6 para. 1 and para. 3 (c) (Art. 6-1, 6-3-c) of the Convention.
It follows that this part 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.
Head of Division acting as Acting President
Secretary to the Commission of the Commission
(K. ROGGE) (G. SPERDUTI)