Mr. AND Mrs. X. v. THE UNITED KINGDOM



THE FACTS

 

I.   The facts presented by the parties and apparently not in dispute

between them may be summarised as follows:

 

1.   The first applicant, Mr X was born in India in 1932 and, when

lodging this application, was detained in prison at Albany, Isle of

Wight. His nationality is not stated.

 

The second applicant, Mrs X is a citizen of the United Kingdom, born

in 1916 and resident at M., Cheshire.

 

Both applicants are represented by Mr I.A. Davies of Messrs. Kingsley,

Napley & Co., a firm of solicitors practising in London.

 

2.   The application concerns the applicants' trial at the Central

Criminal Court in London in 1969.

 

The facts as presented by the prosecution at the trial were, briefly,

that in 1965 the applicants formed a company known as T. Limited of

which they were both sole shareholders and directors. The business was

that of brokers and finance agents mainly concerned with house

mortgages. Between June 1967 and March 1969 various clients, who gave

evidence at the trial, paid a total of £18,000 by way of deposits on

houses which they wanted to buy in the hope that the rest of the money

would become available by way of mortgages arranged by the applicants.

None of these clients succeeded in getting a house and only about £800

of the money obtained by the applicants by way of deposits was

returned.

 

3.   On .. July 1969 Mr and Mrs X were charged respectively with 28

and 21 offenses of fraudulent conversion and theft. It became apparent

a fortnight later that original estimates as to the time needed for the

trial were over optimistic and it was anticipated (contrary to what was

believed when they started) that the proceedings might last until

November. Accordingly the jury was discharged to enable individual

members to fulfil commitments they had not anticipated would have been

prejudiced by the trial, and also to enable the handwriting of certain

documents to be examined, at the request of the defence, by a

handwriting expert. No objection was raised to this procedure by the

applicants and, pending the holding of a new trial, they were released

on bail.

 

4.   The trial was recommenced on .. September 1969 before a new judge

and jury, and on .. November 1969 after a trial lasting 6 weeks (1) Mrs

X was convicted on 12 counts of fraudulent conversion and 4 counts of

theft (2) and was sentenced to 18 months' imprisonment on each count,

and the sentences to run currently; Mr X was convicted on 18 counts of

fraudulent conversion and 4 counts of theft (2) and sentenced to 5

years' imprisonment on each count, the sentences to run concurrently.

He was subsequently ordered to pay compensation amounting to £5,497.

-----------------------------------------

(1)  The "Short Transcript" of the trial (184 pages) has been

submitted to the Commission.

 

(2)  The offenses charged as fraudulent conversion and those charged

as theft were essentially of the same nature, the change of

nomenclature in the case of the latter reflecting a different

formulation in the Theft Act 1968, which had come into operation be the

time they were alleged to have been committed.

-----------------------------------------

 

5.   Mr X applied to the Court of Appeal for leave to appeal against

conviction and sentence; Mrs X applied for leave to appeal against

sentence and for an extension of time in which to apply for leave to

appeal against conviction.

 

The grounds relied upon by the applicants may be summarised briefly as

follows. They maintained that the verdicts were against the weight of

evidence; that the judge had wrongly refused to allow two defence

witnesses to be treated as hostile to the defendants; that the judge

had alleged that they were guilty of forgery, although they had not

been charged with that offence; and that he had misdirected the jury

on the law and facts and approached the trial on the basis that they

were guilty, displayed this attitude to the jury and made too many and

too intemperate interruptions. Mrs X also alleged that pressure had

been brought upon them to plead guilty. Both complained that their

sentences were excessive.

 

All applications were refused by the single judge of the Court of

Appeal on .. July 1970, except that he granted an extension of time for

Mrs X to appeal against conviction. In his reasons for dismissing the

applications the single judge remarked that the evidence against both

applicants was overwhelming and that he considered the sentences were

right.

 

6.   The applicants ' renewed applications were examined by the full

Court of Appeal on .. October 1970. After considering the "concise

grounds of appeal" (in all 102 pages of manuscript) submitted by the

applicants and after reviewing the facts of the case the Court of

Appeal found that there was no reason to interfere with the convictions

and that the sentences were lenient. Accordingly the applications were

refused. In the case of Mr X the court ordered that 91 of the days

spent in custody awaiting his appeal should not count towards his

sentence, because he had persisted in his application despite

consideration by the single judge of his very full representation and

despite having received the judge's opinion, with the refusal of their

applications, that there was no substance in them and that the case

against them was overwhelming. A similar order was not made in the case

of Mrs X because the court assumed "in charity" that her persistence

in the application was the responsibility of Mr X.

 

II.  Complaints

 

1.   With regard to their trial at first instance, the applicants

complain that they were wrongly convicted and sentenced. They submit

in particular that the trial was unfair, in that:

 

- the judge demonstrated throughout the proceedings that he was biased

against them and convinced from the outset of their guilt;

 

- the judge interrupted defence counsel to such an extent and addressed

them in such terms that counsel were unable to conduct the defence

properly;

 

- the judge's summing-up weighed against the applicants;

 

- when sentencing them, the judge indicated that the sentence might

have been reduced had they pleaded guilty.

 

The applicants also maintain that the evidence against them on each of

the counts on which they were convicted was unsatisfactory and that

allegations of forgery were irrelevant and untrue.

 

2.   They further submit that the Court of Appeal could not have

examined their case thoroughly in the time in which it dealt with their

applications for leave to appeal.

 

3.   The applicants allege violations of:

 

- Article 6 (1), (2) and (3) (c);

- Article 7 (1); and

- Article 14 of the Convention.

 

III. Proceedings before the Commission

 

1.   The Commission decided on 11 February 1972 that the United

Kingdom Government should be invited to submit its observations on the

admissibility of the case, in particular, in respect of the question

to what extent the conduct of the trial by the trial judge, especially

in the absence of the jury, might have affected the applicants' right

under Article 6 (1) of the Convention to a fair trial.

 

2.   The Government's observations were submitted under cover of a

letter of 12 June 1972. The applicants' observations in reply arrived

on 28 December 1972.

 

IV.  Submissions of the parties

 

1.   The respondent Government submit that the applicants' complaints

mentioned under II, 1 above were all raised in their applications for

leave to appeal. In examining these applications the Court of Appeal

gave full and substantive consideration to the complaints and expressed

the following view:

 

"Having considered all the complaints and contentions and requests put

forward by the applicants, this court finds no reason whatever to

interfere with the convictions. As the applicants were informed by the

single judge (of the Court of Appeal), the case against them was

overwhelming. There is no justifiable complaint which can be made of

the summing up and the jury, who heard and saw all the witnesses,

reached the only conclusion at which a sensible jury could have

arrived."

 

The Court of Appeal recognised that the trial judge did at one point

express very strong views both as to the merits and conduct of the

defence, but they pointed out that these views were made in the absence

of the jury and were wholly unknown to them. Nor did it seem to the

Court of Appeal that the trial judge's observations as to the

repetitious and irrelevant cross-examination were unjustified. The

Government observe in this connection that under English criminal law

and procedure a judge has a duty to ensure that inadmissible evidence

(including irrelevant evidence) is excluded and that witnesses are not

subjected to unfair or oppressive cross-examination.

 

As regards the trial judge's remarks, when passing sentence, to the

effect that, if the applicants had pleaded guilty, their sentences

might have been reduced, it is clear that the judge did not for that

reason increase their sentences but rather refrained from reducing what

he deemed to be the proper sentence. It is, of course, correct that,

if the Court of Appeal consider that a trial judge had improperly

exercised pressure on a defendant to plead guilty and that such

pressure had prejudiced his case, thy may and, indeed, should in an

appropriate case allow the appeal but it is clear that in the present

proceedings, after a thorough review of the evidence and of the judge's

conduct in conducting the trial, the Court considered that the

applicants' case had not been prejudiced. They said:

 

"It is complained that the applicants were subjected to pressure from

the (trial) court to plead guilty and that this prevented them from

being able to put forward their defence as well as they otherwise would

have done. It may be noted that it did not prevent them putting forward

their defence in oppressive detail and with sustained energy".

 

The Government conclude that there has been no violation of the

applicants' right under Article 6 (1) of the Convention to a fair trial

or to a presumption of innocence laid down in Article 6 (2) of the

Convention.

 

2.   Without prejudice to the above conclusion the Government further

submit that, if (which they deny) the conduct of the trial judge was

such as to influence the jury against the applicants, this would have

been rectified by the decision of the Court of Appeal. In this

connection they refer to the Commission's decision on the admissibility

of application No. 3860/68 (Collection of Decisions, Vol. 30, pages 70,

74-75).

 

3.   Accordingly, the Government submit that the complaints relating

to the applicants' trial at first instance should be rejected as

manifestly ill-founded within the meaning of Article 27, paragraph (2),

of the Convention.

 

4.   In the alternative, the Government argue that these complaints

are in substance the very issue which were raised before the Court of

Appeal and which were considered by that Court to give the applicants

no ground for obtaining leave to appeal against the conviction or

sentence. The applicants are, therefore, in effect inviting the

Commission to sit, as a tribunal of further instance, on issues that

have already been fully considered by the Court of Appeal. While the

Government do not seek to contend that the Commission may not, in

appropriate cases, examine issues that have already been canvassed

before domestic courts or tribunals, nevertheless, having regard to the

facts of this particular case, it would be wholly consistent with the

settled practice and jurisprudence of the Commission for the latter to

decline to exercise its jurisdiction in this way.

 

Accordingly, the Government submit that the application so far as

concerns these issues should, on this ground, be rejected as

incompatible with the provisions of the Convention within the meaning

of Article 27, paragraph (2), of the Convention.

 

5.   In respect of the complaint of a breach of Article 6 (2), the

Government further observe that no evidence has been submitted which

discloses a breach of this provision except for the general allegations

of bias on the part of the trial judge as described above. The

applicants were presumed innocent until they were found guilty by the

jury and the burden of proving guilt remained with the prosecution.

Accordingly, it is submitted that, insofar as the above complaint is

considered to raise an issue which is separate from those allegations,

it should be rejected as being manifestly ill-founded.

 

6.   With regard to the applicants' complaint that the Court of Appeal

inadequately examined their application for leave to appeal the

Government refer to the judgement of the Court of Appeal, which they

submit. In their opinion, the careful and detailed consideration of the

grounds of appeal in that judgment is, by itself, sufficient refutation

of the allegation. They conclude that this complaint should be rejected

as being manifestly ill-founded.

 

In the alternative, it is submitted that this complaint should be

rejected as incompatible with the Convention. The Government refer in

this connection to the Commission's decision on the admissibility of

Application No. 2749/66 (Collection of Decisions, Vol. 24, pages 98,

110).

 

7.   The applicants submit that the right, under Article 6 (1) of the

Convention, to a fair trial includes the right to a trial which must

be seen to be fair. The Government's observation that the trial of the

applicants was reviewed by the Court of Appeal has no relevance to the

question of whether the trial was fair or not. Nor would such a review

necessarily correct an injustice resulting from an unfair trial, since

the Court of Appeal may not necessarily be reviewing the facts which

would have emerged had the trial been a fair one.

 

8.   The applicants consider that their complaints are largely similar

to those in the case of B. (55 Criminal Appeal Reports, page ..). The

trial judge in that case was Judge Y. who was also the trial judge in

the applicants' case.

 

Parker L.C.J. said in the B. case:

 

"Complaint is made of what can only be described as an outburst by the

trial judge in the absence of the jury halfway through the case for the

prosecution to the effect that the appellant was plainly guilty, and

that the time of the Court was being wasted."

 

The opinion of the Court of Appeal in that case was that the trial

judge's conduct had been wholly improper for these reasons:

 

(a)  "It was putting extreme pressure on the appellant to plead

guilty, whereas after advice from his counsel the choice of plea was

his. Instead, if as a result the appellant had changed his plea, the

Court could not have allowed his conviction to stand."

 

(b)  "It was bound to make the appellant think that the judge had

taken so adverse a view of his case that he was unlikely to obtain a

fair trial."

 

(c)  "Without knowing what advice counsel had in fact given to the

appellant before arraignment, the judge forcibly conveyed what that

advice should have been and should be now, thus an attempt to interfere

with the independence of counsel in his duty to give the appellant the

best advice he could."

 

(d)  "Resulted in counsel's feeling that he must excuse himself by

revealing what advice he had in fact given, something which should

never be revealed; indeed the revelation of this advice and counsel's

agreement with the judge's view destroyed the relationship of

confidence between client and counsel. Counsel would appear to the

appellant to be siding with the judge, and indeed the appellant

expressed a view that in all the circumstances he should defend

himself, and counsel expressed a view that it would be in the

appellant's interest that he should withdraw."

 

(e)  "It was wholly unreasonable in all the circumstances to refuse

the appellant's request that the case be adjourned until the next

morning in order that he might be in a position to take over the

defence, thus enforcing the appellant to continue with counsel with

whom he no longer had full confidence."

 

9.   The applicants submit that remarks by the trial judge in their

case can be compared to those quoted by the Court of Appeal in the B.

case. They refer in particular to the following passages in the Short

Transcript:

 

(a)  "JUDGE Y:  I can only judge on the evidence before me thus far,

and as I say this evidence strengthens my view, and may I put it this

way and as strongly as this, Mr. S., in my view this is an undefended

case. I put it as strongly as that."

 

(b)  "JUDGE Y:  Mr G., now the jury has gone I want to tell you that

I see now that we have got another seventeen or eighteen alleged

victims coupled with in some cases other witnesses and certainly we

have police evidence to come, and I am very, very concerned indeed

about the cost of this case to the Legal Aid Fund, and of course the

cost of the prosecution in any event. You cannot have failed to have

noticed that from time to time today on several occasions the jury have

been reduced to laughter and that it is not the first time in the last

few days that has been the position, and it cannot have escaped you the

moments at which they have laughed, and I think I can put it in no

other way than this, and you will understand it:  how much longer is

this farce going on ?  As I say every day, as I said the other day,

last week, I cannot remember, every day this case goes on the evidence

we hear only strengthens the view which I obviously have formed of this

case, and it is almost true to say that every document that is put in

by the defence in cross-examination strengthens it still further if it

needs any further strengthening. How much longer is this farce going

on?

 

MR G: I am not sure how I can answer that question of your Lordship's.

The only answer I can give, my Lord, and it is one which of course has

crossed your Lordship's mind, presumably until the case is over.

 

JUDGE Y:  Well, if it must, it must. But I am very disturbed about it.

I don't take kindly, nor does any judge, to hopeless cases being

contested at length at public expense. If there is even the ghost of

a possibility of a defence I am the last to stop it, and I will give

every assistance to the defence to clothe the ghost with substance.

 

MR G:  Your Lordship has said what your Lordship has said. It has been

noted, my Lord.

 

JUDGE Y:  Thank you.

 

MR G:  I don't think there is anything more I can say to your Lordship.

 

JUDGE Y:  No. You personally cannot of your own volition, of course,

give me an answer direct, obviously, but I think it is right that I

should say it and I think it is in your client's interest that I should

say it."

 

(c)  "JUDGE Y:  I would like you to take instructions and to consider

the position. I take a very grave view of that document, quite apart

from a mass of others, but that one - an extremely grave view and in

the light of what I said the other day I would like you to consider the

matter with your clients bearing in mind that what I am saying they may

not appreciate it but I do think it, what I am saying is in their

interests as well, you know.

 

MR S:  My Lord, may I say this, I was so concerned about what your

Lordship quite obviously with our interests at heart told Mr G. that

the partner dealing with it and I am not sure is the young man sitting

in front of me, Mr G., I and Mr W. came late last night and discussed

it with the clients in full, and I tell your Lordship frankly Mr X.'s

instructions are that he wants evidence to be called and he wants to

deal with each item, and he has explained things which at first light

do look very black for him, and all I can say is whatever the reality

counsel is always in the invidious position of having to do the best

they can with what they have not. I am in that position. It might be

that they have heard each time your Lordship has said that, I have

impressed on them the seriousness of it, and each time they have given

points to their solicitors, to Mr G., which convinced me that at this

moment they wish to defend the proceedings, I can only say that."

 

10.  The applicants submit that the consequences of these exchanges

between judge and counsel have been the same as in the B. case, namely:

 

(a)  extreme pressure was put on the applicants to plead guilty.

Indeed the fact that it would be in their best interests to do so was

reiterated. If that were so, then the conclusion should have followed

in the applicants' case, as it did in the case of B., that, had they

changed their plea, then the Court of Appeal would not have allowed the

conviction to stand;

 

(b)  it was bound to make the applicants think the judge had taken so

adverse a view of their case that they were unlikely to obtain a fair

trial. At the outset the judge was saying that the evidence

strengthened the view that he had already formed that the case was not

one in which a defence was applicable;

 

(c)  the judge forcibly conveyed to counsel what their advice to their

client should be;

 

(d)  although it did not result in counsel feeling that they must

excuse themselves, it did result in senior counsel saying that he

thought his position invidious, and that he was attempting to make do

with the material at his disposal;

 

(e)  the question of an adjournment obviously did not arise in the

applicants' case.

 

The applicants further submit that the only material difference between

their case and the B. case is that their counsel did not ask to

withdraw whereas in the B. case counsel did make that request. But the

different reactions of counsel to remarks by the judge do not affect

the issue of whether or not those remarks were proper and, if they were

improper, the further issue of whether or not the applicants received

a trial that could be described as fair.

 

11.  The applicants acknowledge that the remarks by the trial judge,

concerning the cost of the Legal Aid Fund when hopeless cases were

being contested, was made in the absence of the jury. However, the

judge was careful to make clear that he intended the remarks to be

understood by the applicants, and so the consequences would have been

same as in the B. case where also the jury was absent when similar

remarks were made.

 

12.  With regard to the Government's observation that the Court of

Appeal in the applicants' case found the evidence against them

overwhelming, the applicants point out that the Court of Appeal found

B. an "open and shut" case but still quashed the convictions because

the trial had not been seen to be fair, regardless of their view as to

the strength of the evidence.

 

13.  Parker L.C.J., in delivering the judgment of the Court of Appeal

in the B. case, said that neither the judge's partiality nor the

improper pressure brought to bear on the appellant was in itself a

reason for saying that the trial was unfair. He then continued:

 

"However, the matter does not rest there because in the result the

appellant was forced to continue with counsel with whom he had lost

confidence, and counsel who himself felt that it was in the appellant's

best interests that he should no longer continue to act. It was clear

that in those circumstances counsel would be gravely handicapped in the

defence especially before a judge who had expressed his strong views

as to the appellant's guilt, and as to the waste of time involved in

fighting the case. To present an improbable defence is difficult

enough; but if counsel has to do so in the circumstances outlined

above, this task is made almost impossible."

 

The applicants submit that the obvious partiality shown by the trial

judge in their case resulted in an unfair trial. In particular, counsel

were handicapped in conducting the defence and made clear what their

own view of their position was. A complaint was made during the trial

by one of the applicants to the Bar Council about the conduct of Mr.

S. and, whatever the grounds given for that complaint, it is a fact

that the applicants lost confidence in their counsel.

 

The Court of Appeal in the applicants case took the view that the

defence had been submitted with energy and oppressive detail. However,

the applicants consider that insufficient evidence was introduced in

their defence:  counsel pointed out at their trial on .. October 1969

that not even one-tenth of the documents bearing on the case had been

produced.

 

14.  The applicants also complain of many hostile interruptions by the

trial judge during the cross-examination of witnesses and of his

unwillingness to allow the defence case to be put. They submit that

these interruptions constitute a further ground for calling their trial

unfair and they refer in particular to the following passages of the

Short Transcript:

 

(a)  "JUDGE Y:  I am going to tell you something. I don't want to say

this, but you compel me to say it. I have been on the Bench now for

something over five years and before that I was a Recorder in various

cities for I think ten years, so I have quite considerable duties and

experiences. This is, of course, the case because I have no means of

estimating it accurately but I would think that if I were to add up all

the occasions in all the cases that I have ever tried up to this one,

the interruptions which I have found necessary to make would equal in

total those which I have found it necessary to make in this case."

 

(b)  A passage where the question of relevancy was given a very

restricted interpretation. Judge Y. said that the issue involved in the

case was a very simple one - it was a question of what the applicants

had done and accordingly he was reluctant to allow what the prosecution

witnesses had done to be examined. However, it was the essence of the

defence case that prosecution witnesses were lying and consequently

many of the questions put by the defence counsel seem to have been

directed at the issue of whether the prosecution witnesses were to be

considered truthful people.

 

(c)  A passage where the question of whether someone in fact possessed

money that he was supposed to have given the defendant was queried by

defence counsel as was the suspicious way in which it was supposed to

have been obtained. But the judge considered the questions to be

irrelevant.

 

(d)  A passage where the judge refused to allow a question by defence

counsel but when counsel for the prosecution intervened to say that he

would wish to put the matter to the defendant should he go into the

witness box the question was then allowed. The judge wondered what was

the relevance of the witness having received £2,500 from the defendant

which was a greater sum than the defendant was alleged to have taken

from the witness.

 

15.  In connection with their criticism that the judge was, by his

interruptions, not allowing the defence to be properly put, the

applicants also refer to a passage where the judge interrupted defence

counsel to tell him that it might be the case that the witnesses were

mistaken and not lying. In his summing-up the judge asked the jury to

consider whether a contradiction between two of the prosecution

witnesses might result from one of them being mistaken and not from him

lying. The applicants submit that, in view of what had already

occurred, the jury might have been more willing to accept the

possibility put forward by the judge than the suggestion that the

prosecution witnesses were lying. The defence case was that the

witnesses had, in fact, been told what to say by Detective Sergeant R.

but the judge seemed to discount such a suggestion by his reference to

that "wicked fellow, Detective Sergeant R."

 

16.  The applicants submit that the summing-up can be further

criticised on the ground that it showed partiality. For example, the

judge:

 

(a)  referred to the applicants as having a "new device adopted to

extract money from the victim";

 

(b)  said that Mr X. had telescoped two meetings that he had with the

police officers into one when it was X.'s contention that only one

meeting had taken place in which there would be no question of

telescoping;

 

(c)  seemed anxious to separate whatever evidence was favourable to

the defence in the case of one of the prosecution witnesses from the

evidence given by the other prosecution witnesses, although it had been

throughout accepted that all the evidence contained in the prosecution

case stood or fell together.

 

17.  In passing sentence the judge repeated what he had said earlier

with regard to time and money being wasted in a case where it was

apparent to him, even at the beginning, that there was no defence to

the charges:

 

"This trial has provided a most shocking example of an abuse of the

Legal Aid System in that the defence in my judgment had an absolutely

hopeless case, but nevertheless in spite of that fact it has been

contested right through to the bitter end. It is conduct like that that

helps to create the backlog of work, a heavy backlog of work, at this

Court, thus causing many people to wait weeks and sometimes months

before they can come to trial, sometimes being kept in custody.

 

Apart from the time taken and the waste of time taken there is, of

course, the very important matter of expense. The costs of the

prosecution and the burden upon the Legal Aid Fund will be very heavy,

and for the most part it has been spent entirely unnecessarily,

completely wasted. One might as well have thrown it down the drain. I

say that because in my view the evidence against each of you was

absolutely overwhelming. There was not even a glimmer of a ghost of a

defence, not even at the beginning of the case, and as each day went

on so even if there had been a glimmer it diminished more and more as

the days went by."

 

21.  The applicants conclude  that the grounds put forward disclose

a case for saying that they received an unfair trial with the result

that the rights granted to them by Article 6 (1) of the Convention have

been violated. They request the Commission to declare their application

admissible.

 

THE LAW

 

1.   The applicants complain that their trial at first instance was

unfair, in that the trial judge showed bias against them and prevented

counsel from conducting their defence properly.

 

The Commission has examined this complaint under Article 6 (1)

(Art. 6-1) of the Convention which provides that, in the determination

of any criminal charge against him, everyone is entitled to a fair

hearing by an impartial tribunal. It is not the task of the Commission

to consider whether the present case is comparable to that of B., which

was decided by the Court of Appeal under English law.

 

The tribunal which tried the applicants at first instance was composed

of a judge and a jury. The Commission notes that the applicants'

complaints concern only the conduct of the judge and that some of the

views expressed by the judge, to which the applicants object, were made

in the absence of the jury which had to decide on the applicants' guilt

or innocence.

 

However, it was the judge who conducted the trial and who fixed the

applicants' sentences, and the Commission has decided in previous cases

that Article 6 (1) (Art. 6-1) applies also to proceedings on sentences.

For example, the Commission stated in its final decision on the

admissibility of Application 4623/70 (X. v. the United Kingdom,

Collection of Decisions, Vol. 39, pages 66-74) at page 74 that :

 

"the determination of a criminal charge, within the meaning of Article

6 (1) (Art. 6-1) of the Convention, includes not only the determination

of the guilt or innocence of the accused, but also in principle the

determination of his sentence; and the expression 'everyone charged

with a criminal offence' in Article 6 (3) (Art. 6-3) includes persons

who, although already convicted, have not been sentenced.

 

The Commission observes that questions of sentence may be closely

related to questions of guilt and innocence, and that in the criminal

procedure of many States Parties to the Convention they cannot be

separated at this stage of the proceedings.

 

The Commission has also had regard to its case-law and in particular

to its decisions on the admissibility of Applications Nos. 596/59

(Pataki v. Austria), Yearbook, Vol. III, p. 356, and 789/60 (Dunshirn

v. Austria), Yearbook, Vol. IV, p. 187. In these two cases the

Commission declared admissible, and examined on the merits under

Article 6 (Art. 6) of the Convention, complaints which related solely

to proceedings on sentence before the Regional Court of Appeal

(Oberlandesgericht) in Vienna. The Commission reached the opinion that

the proceedings in these cases were not in conformity with the

Convention."

 

It follows from the case-law that the views expressed by the trial

judge in the absence of the jury must also be taken into account in the

determination of the applicants' complaint under Article 6 (1)

(Art. 6-1) of the Convention.

 

2.   The Commission further observes, however, that the question

whether a trial conforms to the standard laid down by Article 6 (1)

(Art. 6-1) of the Convention "must be decided on the basis of a

consideration of one particular aspect of the trial or one particular

incident. Admittedly, one particular incident or one particular aspect,

even if not falling within the provisions of paragraphs 2 or 3 (Art.

6-2, 6-3), may have been so prominent or may have been of such

importance as to be decisive for the general evaluation of the trial

as a whole. Nevertheless, even in this contingency, it is on the basis

of an evaluation of the trial in its entirety that the answer must be

given to the question whether or not there has been a fair trial."

(See the Commission's Report in the Nielsen case, Yearbook of the

European Convention on Human Rights, Vol. 4, pages 494 to 588, at pages

548, 550).

 

The Commission has accordingly evaluated the applicants' trial in its

entirety, on the basis of the parties' submissions, and, in particular,

the Short Transcript of the trial. It agrees with the finding of the

Court of Appeal that the trial judge expressed "some very strong views

both as to the merits .... and the conduct of the defence". The

Commission finds that the expression of those views was as such

objectionable, in that it has raised doubts as to his impartiality.

 

But the applicants' trial must be considered as a whole in order to see

whether there has finally been a fair trial or in fact a denial or

miscarriage of justice. The following elements are then also relevant:

 

(1)  It appears from the Short Transcript of the trial that, as the

Court of Appeal subsequently found, observations by the trial judge as

to the repetitive and irrelevant cross-examination by defence counsel

were essentially justified. In this connection the Commission

recognises that a judge has a duty to ensure that inadmissible evidence

including irrelevant evidence is excluded and that witnesses are not

subjected to unfair or oppressive cross-examination.

 

(b)  As regards the pressure put on the applicants to plead guilty,

it further appears from the course of the trial, as reflected in the

Short Transcript, that defence counsel were not in fact intimidated by

the trial judge. Nor does it seem that their trial was unfair, in that

defence pleas were ignored or excluded. The Commission accepts in this

respect the following statement by the Court of Appeal:  "It is

complained that the applicants were subjected to pressure from the

(trial) court to plead guilty and that this prevented them from being

able to put forward their defence as well as they would otherwise have

done. It may be noted that it did not prevent their putting forward

their defence in oppressive detail and with sustained energy".

 

(c)  The Commission finds that no justifiable complaint can, under

Article 6 (1) (Art. 6-1) of the Convention, be made of bias or

inadequacy in the summing-up by the trial judge (Short Transcript, Vol.

2, pages 1 to 88).

 

(d)  The Commission accepts the finding of the Court of Appeal that

the sentences imposed were lenient. It is true that, when sentencing

the applicants, the trial judge pointed out that a confession would

have constituted a mitigating circumstance. This, however, in no way

violated the applicants' right to a fair trial. It is clear from the

statements by the trial judge that he did not increase the applicants'

sentences on the ground that they had affirmed their innocence

throughout the trial but rather refrained from reducing what he deemed

to be the proper sentence, having regard to the gravity of the offenses

concerned.

 

Having considered the trial as a whole, the Commission therefore

concludes that there was finally no violation of the applicants' right

under Article 6 (1) (Art. 6-1) of the Convention, to receive a fair

hearing by an impartial tribunal.

 

3.   In its examination of the applicants' complaint concerning the

conduct of the trial judge, the Commission has also had regard to

Article 6 (2) (Art. 6-2) of the Convention, which provides that

everyone charged with a criminal offense shall be presumed innocent

until proved guilty according to law. The Commission, referring to its

considerations set out under 2 above, finds that this presumption has

been observed at the applicants' trial. In particular, it is clear from

the terms of the summing-up by the trial judge that the applicants were

presumed innocent until they were found guilty by the jury and that the

burden of proving guilty remained with the prosecution throughout the

trial.

 

4.   An examination of the remainder of the application equally does

not disclose any appearance of a violation of the rights and freedoms

set forth in the Convention.

 

The Commission therefore concludes that the application is manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

 

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE.

 

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