EUROPEAN COMMISSION OF HUMAN RIGHTS
FIRST CHAMBER
Application No. 25901/94
Andrew Graham Russell
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 3 December 1997)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-8) . . . . . . . . . . . . . . . . . . . . . .1
II. ESTABLISHMENT OF THE FACTS
(paras. 9-22). . . . . . . . . . . . . . . . . . . . . .2
III. OPINION OF THE COMMISSION
(paras. 23-36) . . . . . . . . . . . . . . . . . . . . .4
A. Complaint declared admissible
(para. 23). . . . . . . . . . . . . . . . . . . . .4
B. Point at issue
(para. 24). . . . . . . . . . . . . . . . . . . . .4
C. As regards Article 6 para. 1 of the Convention
(paras. 25-36). . . . . . . . . . . . . . . . . . .4
CONCLUSION
(para. 36). . . . . . . . . . . . . . . . . . . . .5
APPENDIX I : PARTIAL DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY OF THE APPLICATION . .6
APPENDIX II : FINAL DECISION OF THE COMMISSION
AS TO THE ADMISSIBILITY OF THE APPLICATION . 12
I. INTRODUCTION
1. The present Report concerns Application No. 25901/94 introduced
on 12 October 1994 against the United Kingdom and registered on
9 December 1994.
2. The applicant is a British citizen, born in 1962 and currently
serving a prison sentence in the United Kingdom.
3. The applicant is represented before the Commission by
Messrs. B. M. Birnberg & Co., solicitors practising in London.
4. The respondent Government are represented by Mr. I. Christie,
Agent of the Government of the United Kingdom.
5. The application was declared partly inadmissible on
28 February 1996. On the same date, the Commission decided to
communicate the complaint concerning the length of the proceedings to
the Government. Following an exchange of written observations, the
complaint relating to the length of proceedings (Article 6 para. 1 of
the Convention) was declared admissible on 9 April 1997. The decisions
on admissibility are appended to this Report. The Government submitted
further observations on the merits of the case on 19 June 1997.
6. Having noted that there is no basis upon which a friendly
settlement within the meaning of Article 28 para. 1 (b) of the
Convention can be secured, the Commission (First Chamber), after
deliberating, adopted this Report on 3 December 1997 in accordance with
Article 31 para. 1 of the Convention, the following members being
present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs. M. HION
Mr. R. NICOLINI
7. In this Report the Commission states its opinion as to whether
the facts found disclose a violation of the Convention by the United
Kingdom.
8. The text of the Report is now transmitted to the Committee of
Ministers of the Council of Europe, in accordance with Article 31
para. 2 of the Convention.
II. ESTABLISHMENT OF THE FACTS
9. 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.
10. 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 1988 that the prosecutor had "decided that
there is insufficient evidence against [the applicant] to justify
prosecution".
11. On 19 June 1989 the applicant was convicted of offences relating
to the escape from Gartree prison.
12. 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 ...".
13. On the following day, 26 July 1989, 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.
14. The case was initially listed for trial on 18 April 1990. After
an unsuccessful application by the applicant to change the trial venue,
the fixture was moved to 30 May 1990. At the commencement of the trial
the applicant sought to stay the proceedings and 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. This submission was rejected by the trial
judge on 1 June 1990.
15. On 6 June the applicant sought leave from the Divisional Court
to apply for judicial review, in respect of the trial judge's refusal
to stay the proceedings. The Divisional Court adjourned the
application, to await the outcome of a related case concerning the
jurisdiction of the Divisional Court in this area. It was held on
15 November 1990, in this related case, that the Divisional Court did
have jurisdiction over such matters. On 11 July 1991 the application
to the Divisional Court, for leave to apply for judicial review, was
heard and leave was granted.
16. On 7 November 1991 the Divisional Court heard the substantive
judicial review application and ruled that there had been no abuse of
process.
17. The case was listed for mention on 14 February 1992, when the
trial judge fixed the trial for 16 March 1992.
18. On 16 March 1992 the applicant's trial commenced, but the trial
was adjourned to 19 March 1992 for the applicant to instruct counsel
(the applicant had until that point chosen not to be represented by
counsel).
19. On 19 March 1992, the applicant's trial resumed and he was
represented by leading and junior counsel.
20. The applicant was convicted, inter alia, of robbery on
25 March 1992.
21. The applicant applied for leave to appeal against conviction and
sentence on 1 May 1992. The applicant made two requests
(4 November 1992 and 18 January 1993) for the consideration of the
appeal to be delayed. On 28 February 1993 leave to appeal against
conviction and sentence was refused by a single judge. On
25 March 1993 the applicant gave notice that he wished to renew his
application before the full court. In June 1993 and on 23 August 1993
the applicant's solicitors sought extensions of time, on the grounds
of lack of funds. On 10 October 1993 the applicant requested a further
deferral in order to instruct counsel. The application was listed to
be heard on 19 April 1994 although, subsequent to counsel's written
request, the case was relisted for 13 May 1994.
22. On 13 May 1994 the applicant was represented by counsel. His
application for leave was refused by the full Court of Appeal. 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.
III. OPINION OF THE COMMISSION
A. Complaint declared admissible
23. The Commission has declared admissible the applicant's complaint
that his case was not heard within a reasonable time.
B. Point at issue
24. The only point at issue is whether the length of the proceedings
complained of exceeded the "reasonable time" requirement referred to
in Article 6 para. 1 (Art. 6-1) of the Convention.
C. As regards Article 6 para. 1 (Art. 6-1) of the Convention
25. The relevant part of Article 6 para. 1 (Art. 6-1) of the
Convention provides as follows :
"In the determination of ... any criminal charge against him,
everyone is entitled to a ... hearing within a reasonable time
by [a] ... tribunal ..."
26. The proceedings in question concerned the criminal charge of
robbery and related offences brought against the applicant and they
accordingly fall within the scope of Article 6 para. 1 (Art. 6-1) of
the Convention.
27. The Commission recalls that the reasonableness of the length of
the proceedings must be assessed in the light of the particular
circumstances of the case and with the help of the following criteria:
the complexity of the case, the conduct of the parties and the conduct
of the authorities dealing with the case (see Eur. Court HR, Kemmache
v. France judgment of 27 November 1991, Series A no. 218, p. 27,
para. 60).
28. According to the respondent Government, the length of the period
in question is due to the complexity of the preliminary issue in the
case concerning the question whether the applicant's trial should
proceed despite the initial indication by the Crown Prosecution Service
in 1988 that there would be no prosecution. The Government also
consider that the applicant's conduct contributed to the length of the
proceedings. The Government further argue that the proceedings began
for the purposes of Article 6 para. 1 (Art. 6-1) only when he was
charged on 26 July 1989. The applicant contests the Government's
submissions.
29. The Commission considers that the proceedings began on
3 February 1988 when the applicant was first questioned about the
robbery. That date is the date on which the applicant's situation was
substantially affected by the proceedings against him (Eur. Court HR,
Deweer v. Belgium judgment of 27 February 1980, Series A no. 35, p. 24,
para. 46 and Eckle v. the Federal Republic of Germany judgment of
15 July 1982, Series A no. 51, p. 33, para. 73). The proceedings ended
on 13 May 1994 when the applicant was denied leave to appeal by the
full Court of Appeal (see above mentioned Eckle v. Germany judgment,
p. 34, para. 76). They thus lasted a total of just over six years and
three months.
30. The Commission considers that the present case in itself had no
special complexity. However, the applicant's interlocutory application
to stay the proceedings as an abuse of process, and the subsequent
judicial review of the judges' rejection of this application, did
lengthen the proceedings considerably.
31. The Commission considers that the delay prior to the initial
listing of the trial in April 1990 is attributable to the competent
judicial authorities, even though it is not clear that proceedings were
pending between 5 December 1988 and 25 July 1989.
32. The interlocutory proceedings which the applicant brought impeded
the progress of the case, as these proceedings were being dealt with
from 30 May 1990 (when the application was first made) to
7 November 1991 (when the Divisional Court ruled that there had been
no abuse of process). In that period, the trial judge refused the
applicant's submission, the Divisional Court dealt with a related case,
leave to apply for judicial review was granted and the application was
refused. Although the Government remain responsible for the length of
these proceedings, the Commission considers that it cannot be said that
they lasted unreasonably long, given that the applicant had initiated
them and that the interlocutory proceedings had to be adjourned for
six months pending the outcome of a related case.
33. The period between the dismissal of the "abuse of proceedings
application" on 7 November 1991 and the conclusion of the applicant's
trial was less than five months which the Commission considers to be
reasonable.
34. The applicant was convicted on 25 March 1992 and applied for
leave to appeal against conviction and sentence on 1 May 1992. There
was a two year delay before the application was refused by the full
Court of Appeal on 13 May 1994. The Commission notes that this period
can be split into two parts, the period from 1 May 1992 to
23 February 1993 when leave was refused by a single judge, and the
period from 25 March 1993, when the applicant appealed to the full
court, to the final decision on 13 May 1994. During the first period
(11 months) the applicant made two requests that the consideration of
the appeal be delayed (4 November 1992 and 18 January 1993). In the
subsequent period (approximately 14 months), the applicant's solicitors
sought three time extensions (in June 1993, 23 August 1993 and
10 October 1993) and the applicant's counsel sought a further deferral
on 19 April 1994. In the circumstances the Commission considers that
this two year delay, between the application to appeal against
conviction and sentence, and the final refusal of this application by
the Court of Appeal, was largely attributable to the applicant's own
conduct of the case.
35. Having regard to all the circumstances, and to the fact that in
a period of something over six years the courts dealt with the
substantive proceedings at three levels - the first instance, the leave
to appeal proceedings and then the substantive appeal - and the
interlocutory question of whether the proceedings constituted an abuse
of process was also determined by the Divisional Court, the Commission
concludes that the proceedings as a whole cannot be said to have
exceeded the "reasonable time" requirement.
CONCLUSION
36. The Commission concludes, by 9 votes to 8, that there has been
no violation of Article 6 para. 1 (Art. 6-1) of the Convention.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy