AS TO THE ADMISSIBILITY OF
Application No. 25901/94
by Andrew Graham RUSSELL
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 28 February 1996, the following members being present:
Mr. C.L. ROZAKIS, President
Mrs. J. LIDDY
MM. E. BUSUTTIL
A.S. GÖZÜBÜYÜK
A. WEITZEL
M.P. PELLONPÄÄ
B. MARXER
N. BRATZA
I. BÉKÉS
E. KONSTANTINOV
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 12 October 1994
by Andrew Graham RUSSELL against the United Kingdom and registered on
9 December 1994 under file No. 25901/94;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1962. He is serving
a prison sentence. The facts of the case, as submitted by the
applicant, may be summarised as follows.
The applicant was arrested on 31 January 1988 and questioned in
connection with an escape from Gartree prison, Leicestershire, in
December 1987. On 3 February 1988 he was again questioned, in the
presence of his solicitor, in connection with the escape, and also in
connection with his responsibility for a robbery which had taken place
in London on 13 January 1988.
The proceedings relating to the escape continued, but the
applicant heard nothing more about the robbery. On 15 November 1988
the applicant's solicitors asked the Crown Prosecution Service (CPS)
whether any steps were to be taken in connection with the robbery. The
CPS replied on 5 December that the prosecutor had "decided that there
[was] insufficient evidence against [the applicant] to justify
prosecution, but in relation to [the co-accused as regards the escape]
I have recommended to the police that he be charged with attempted
murder and robbery".
On 25 July 1989 the CPS wrote to the applicant's solicitors that
they had now decided to prosecute the applicant in respect of the
robbery. They said that "[no] steps [were] taken in this matter
earlier to avoid publicity while your client's trial in respect of the
... escape was being held ...".
On the following day the CPS applied to a High Court judge ex
parte and without giving notice to the applicant's solicitors for the
issue of a voluntary bill of indictment. In the supporting affidavit
no reference was made to the letter of 5 December 1988. The
application was granted and a voluntary bill of indictment was issued
charging the applicant with (inter alia) robbery.
The case was listed for trial on 30 May 1990. The applicant
submitted to the trial judge that the prosecution was an abuse of
process on the basis of delay coupled with the prejudice caused by the
reversal of the CPS's decision not to prosecute. The submission was
rejected and the proceedings were adjourned to enable the applicant to
apply for judicial review of the trial judge's decision not to stay the
proceedings.
Leave to apply for judicial review was granted on 7 June 1990,
and the proceedings were adjourned to await the outcome of a related
case which was pending before the Divisional Court. The Divisional
Court ruled on 7 November 1991 that there had been no abuse of
process. It noted that the judge had not been informed of the CPS's
letter of 5 December 1988 when he granted a voluntary bill of
indictment, but considered that the strength of the case would have led
to the grant of a bill, even if the judge had been aware of that
letter.
The Divisional Court found no prejudice to the applicant flowing
from the decision to prosecute which could amount to an abuse of
process. It noted that the applicant had been aware all along of the
nature of the Crown's case against him, and continued that the only
real complaint was that a friend, who had been with the applicant on
the day of the robbery, on learning that the applicant was not to be
charged with the robbery, had disposed of a note-book in which he had
kept details of his whereabouts on that day. The Court noted that the
alibi evidence had been raised very late, but also noted that the book
would in any event only have been used as an aide memoire for the alibi
evidence: the evidence could still be given. As regards the letter of
5 December 1988, the Court found that it was "reprehensible", but "I
cannot see how it can operate so as not to allow [the applicant] to
have a fair trial and in any way to inhibit him from presenting what
defence he has".
The case was listed for mention on 14 February 1992, when the
trial judge fixed the trial for 16 March 1992. An application for the
venue of the trial to be moved, from Leicester to London, was refused
on 13 March 1992.
On 16 March the applicant was not represented, but addressed the
court himself. His solicitor, who was also present, also addressed the
court. As to the alibi witness, the applicant's solicitor informed the
court that he had been in contact with the witness, and that he had a
letter from him that he was going to Australia for a period of between
six and twelve weeks. The letter did not contain an address or contact
number and was not dated. It had been posted in England. The
solicitor received it between 4 and 6 March. The judge declined to
adjourn the trial on the ground that the alibi witness could not be
found, and considered that, in the circumstances, the evidence could
be admitted. As to representation, the judge noted that the applicant
had chosen not to be represented by counsel, and indeed had instructed
his solicitors not to instruct counsel. At the end of the hearing on
16 March, the solicitor informed the court that the applicant had
agreed that it was right that he should be represented by counsel. The
trial was adjourned, on the application and with the consent of the
applicant's solicitor, until 19 March 1992, in order to give time for
counsel to be instructed. The applicant was given the possibility of
applying for a further adjournment if necessary.
On 19 March, the applicant was represented by leading and junior
counsel. A submission that there was insufficient evidence to put to
the jury was rejected, and the alibi witness's statement was read out.
In his summing up, the judge inter alia referred to the alibi witness
statement, and said "You have not seen [the alibi witness] so you have
not had the opportunity to assess him as a witness by hearing him give
evidence, seeing him give evidence and in particular, perhaps hearing
him cross-examined. That is a disadvantage that you suffer from, but
you will take his evidence into account, bearing in mind those
limitations on it."
The applicant was convicted inter alia of robbery on
25 March 1992. Leave to appeal against conviction was refused by the
single judge, and then by the Court of Appeal on 13 May 1994.
The Court of Appeal, agreeing with the single judge, considered
that there was ample evidence to put before the jury, and found no
material irregularity in the case, either as to the alibi evidence or
as to the venue of the trial or the prosecution's change of mind.
COMPLAINTS
The applicant alleges violations of Articles 5 and 6 of the
Convention.
In connection with Article 5, the applicant considers that the
delay in the bringing of his case breached Article 5 paras. 2 and 3 of
the Convention. Under Article 6 of the Convention, the applicant
considers:
- that the fairness of the hearing was undermined by the venue of
the trial and the high profile security;
- that he was given insufficient time to prepare his defence from
14 February 1992 until 16 March 1992;
- that no allowances were made as to the fact that the applicant
was not able to have his initial counsel at trial;
- that the trial judge refused to adjourn the case for the
applicant's alibi witness to give live evidence, with the result
that the applicant was unable to deal with matters which
unexpectedly arose in the course of the trial, such as the fact
that he also used the name Richard Smith, and that the applicant
appeared to have been in Regent Street (where the robbery took
place) on one of the days on which the alibi witness said that
the applicant was in his company.
THE LAW
1. The applicant complains of the length of the proceedings. He
refers in this connection to Article 5 paras. 2 and 3 (Art. 5-2, 5-3)
of the Convention. There is, however, no indication in the applicant's
submissions that he was detained in connection with the robbery of
which he eventually convicted. The Commission will therefore consider
the question of the length of the proceedings under Article 6 (Art. 6)
of the Convention.
The Commission notes that the applicant was initially questioned
in respect of the robbery on 3 February 1988. He was under the
impression that he would not be charged with the robbery from
5 December 1988 until the end of July 1989, when his solicitors were
informed that the CPS were seeking a voluntary bill of indictment. The
proceedings ended on 13 May 1994.
The Commission considers that it cannot, on the basis of the
file, determine whether there has been a violation of Article 6
(Art. 6) of the Convention as regards the length of the proceedings
without the observations of both parties.
The Commission therefore adjourns this part of the application.
2. The applicant also alleges a violation of Article 6 (Art. 6) of
the Convention in several respects. He alleges:
- that the fairness of the hearing was undermined by the venue of
the trial and the high profile security;
- that he was given insufficient time to prepare his defence from
14 February 1992 until 16 March 1992;
- that no allowances were made as to the fact that the applicant
was not able to have his initial counsel at trial;
- that the trial judge refused to adjourn the case for the
applicant's alibi witness to give live evidence, with the result
that the applicant was unable to deal with matters which
unexpectedly arose in the course of the trial, such as the fact
that he also used the name Richard Smith, and that the applicant
appeared to have been in Regent Street (where the robbery took
place) on one of the days on which the alibi witness said that
the applicant was in his company.
Article 6 (Art. 6) of the Convention provides, so far as
relevant, as follows:
"1. In the determination 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. ...
3. Everyone charged with a criminal offence has the following
minimum rights:
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; ..."
In connection with the venue of the applicant's trial for
robbery, the applicant suggests that his trial was unfair because the
trial was held in Leicester, where he and his co-defendant were held
in connection with the escape, rather than in London, where the robbery
took place and where the witnesses were. He sees the unfairness in the
fact that the circumstances of the escape from prison in December 1987
were well known in Leicester, and that the high security precautions
were more noticeable in Leicester than they would have been in London.
The Commission recalls that the question of the venue for the
applicant's trial was raised before the trial judge and the Court of
Appeal judges, none of whom saw any need to transfer the trial to
London. The Commission considers that the implementation of necessary
security arrangements at a criminal trial cannot in itself be regarded
as rendering the proceedings unfair. The applicant does not suggest
that the security arrangements were unnecessary, but rather that they
would have been less noticeable in London. There is no indication that
the security arrangements in the case were deliberately stage-managed
to prejudice the applicant. The Commission sees no indication in the
present case that the trial venue of Leicester rather than London in
any way affected the fairness of the proceedings.
The applicant complains of the limited time for preparation of
his defence in that on 14 February 1992 the trial date was fixed for
16 March 1992. He also complains that the judge made no allowances for
the fact that the applicant's original counsel was not present.
The Commission first notes that the original trial date of
16 March 1992 was fixed one month before, on 14 February. At the
hearing on 16 March the trial judge observed that the applicant had
chosen not to be represented by counsel and had indeed instructed his
solicitors not to instruct counsel for trial. He was however
represented by his solicitor who addressed the court on his behalf and,
at the end of the hearing, informed the court that the applicant now
agreed that it was right that he should be represented by counsel at
the trial. The applicant's solicitor accordingly applied for an
adjournment of the trial on his behalf so as to allow sufficient time
to enable counsel to be instructed. The application was granted and
the trial judge, with the agreement of the applicant's solicitor,
adjourned the case until 19 March 1992, with liberty to apply for a
further adjournment. No such application was made and, at the trial
which began on 19 March, the applicant was represented by counsel. No
complaint was made at this trial or on the applicant's appeal that
insufficient time had been allowed to enable those representing the
applicant to prepare an effective defence on the applicant's behalf,
or that his representation at the trial was inadequate.
In these circumstances, the Commission finds no grounds on which
to conclude that the limited time allowed for preparation of the
defence resulted in any unfairness in the criminal proceedings against
him.
Finally, the applicant complains of the failure of the trial
judge to adjourn the case for the applicant's alibi witness to give
live evidence.
The Commission again notes that the trial date was fixed on
14 February 1992 at which time the applicant's alibi witness was still
in the United Kingdom. It appears from the record of the proceedings
of 16 March that the applicant's solicitor contacted the alibi witness
to inform him of the date of the trial and was told that the witness
was planning to leave for Australia. It further appears that in an
undated latter received by the applicant's solicitors between 4 and
6 March 1992 the alibi witness stated that he intended to travel to
Australia on 7 March and would anticipate staying there for some six
to twelve weeks. The letter contained no address or indication where
the witness could be contacted. On the basis of these facts the trial
judge declined further to adjourn the trial but admitted in evidence
the alibi statement applied by the witness and, in his summing up to
the jury, drew specific and detailed attention to the contents of the
statement. The Commission further notes that, having reviewed the
case, the Court of Appeal found that the trial judge's approach had
been free from criticism and resulted in no unfairness such as to
render the applicant's conviction unsatisfactory.
In these circumstances, the Commission finds no reason to
conclude that the inability for the applicant to call his alibi witness
to give oral evidence at his trial resulted in any unfairness for the
purposes of Article 6 para. 1 (Art. 6-1) or Article 6 para. 3 (d)
(Art. 6-3-d) 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, unanimously,
DECIDES TO ADJOURN its examination of the complaint as to the
length of the proceedings;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the First Chamber President of the First Chamber
(M.F. BUQUICCHIO) (C.L. ROZAKIS)
Full & Egal Universal Law Academy