AS TO THE ADMISSIBILITY OF
Application No. 36356/97
by James SNOWDON
against the United Kingdom
The European Commission of Human Rights sitting in private on
12 March 1998, the following members being present:
MM S. TRECHSEL, President
J.-C. GEUS
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
C.L. ROZAKIS
L. LOUCAIDES
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
E. BIELIUNAS
E.A. ALKEMA
M. VILA AMIGÓ
Mrs M. HION
MM R. NICOLINI
A. ARABADJIEV
Mr M. de SALVIA, 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 11 March 1997 by
James SNOWDON against the United Kingdom and registered on 6 June 1997
under file No. 36356/97;
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 49 year old British farmer. He lives on
Alderney, in the Channel Islands. The facts of the case, as submitted
by the applicant, may be summarised as follows.
On the night of 12 to 13 February 1995 the applicant had a
quarrel with his tenants. He had been drinking and was apparently given
LSD by the tenants. The police were called. When the police officer
arrived there was an altercation and the applicant kicked him. The
police officer suffered no injuries. The applicant was arrested and
brought before the judge the next morning. The applicant pleaded not
guilty and stated that he had no recollection of the event as he was
heavily drunk and hallucinating. He was released and the trial was set
for 17 February 1995.
On 17 February 1995 the applicant was convicted in the Alderney
Magistrates' Court of assault of a police officer in the execution of
his duty, contrary to Section 1 of the Offence against Police Officers
(Bailiwick of Guernsey) Law 1963. The applicant was sentenced to a fine
of £250.00 and 14 days imprisonment, suspended for 2 years.
The note taken by the clerk as to the plea reads: "The defendant
indicated that he now wished to plead guilty. The charge was formally
put again to the defendant, who pleaded not guilty but with mitigating
circumstances. The clerk pointed out that he could not enter an
equivocal plea. This was explained to him. He then indicated he
understood and an unequivocal guilty plea was entered."
The applicant claims that his change of plea was influenced by
the statement of a doctor who had told him that it was very unlikely
that his allegations about the involuntary intoxication would be
proven. A few days later drugs were found with the tenants, who
admitted having administered them to the applicant.
The applicant applied for leave to appeal. Section 1 (b) of the
Magistrates' Court (Criminal Appeals) (Guernsey) Law 1988 provides that
there is no right of appeal where a person has pleaded guilty subject,
however, to Section 2 (2), according to which "the Royal Court may in
exceptional circumstances grant leave to appeal against conviction
where the applicant pleaded guilty".
On 9 August 1995 the Deputy Bailiff of the Royal Court of
Guernsey heard the applicant and decided that psychiatric evidence
should be provided to show whether "exceptional circumstances" existed
which would require leave to appeal against conviction even though the
applicant had pleaded guilty. The question turned on whether the
applicant had understood the nature of the charge and whether he had
intended to admit he was guilty of it. After hearing the opinions of
two psychiatrists to the effect that it was unlikely that the applicant
would still be suffering from the effect of intoxication when pleading
guilty five days after the event, the Deputy Bailiff dismissed the
application for leave to appeal on 29 February 1996 as he found that
the applicant's plea was valid.
The applicant applied for leave to the Court of Appeal. His
application was referred to the Deputy Bailiff for the granting of a
certificate that sufficient grounds of appeal existed. This was refused
by the Deputy Bailiff on 21 March 1996. In his decision, the Deputy
Bailiff noted that the Royal Court had not dismissed an appeal, but
rather leave to appeal had been refused. However, he considered that
in any event, as there were no "exceptional circumstances" which called
for leave to appeal, there were also no "sufficient grounds" for an
appeal.
A further application, to the Court of Appeal, for leave to
appeal was dismissed first by the Bailiff (as a single judge) on
7 May 1996 and then by the Full Court of Appeal on 22 July 1996 on the
ground that no appeal lay to the Court of Appeal when leave to appeal
had been refused by the Royal Court. The applicant`s petition to the
Privy Council was dismissed on 19 December 1996.
In 1995 the applicant instituted proceedings against the police
and a clerk.
COMPLAINTS
The applicant complains under Article 5 of the Convention that
he was deprived of his liberty without knowing and understanding why
as he was suffering from the effects of drugs.
Under Article 6 paras. 1, 2 and 3 (d) of the Convention the
applicant alleges unfairness and claims that vital evidence was
withheld from him by the police and that witnesses were not called to
testify but only gave their statements to the police. He further claims
that he was not proven guilty according to the law as his guilty plea
was not safe and reliable. He also complains that there were no public
hearings before the Royal Court and the Court of Appeal and that the
proceedings before the Royal Court give rise to a suspicion of
partiality. Also, the Deputy Bailiff of the Royal Court could not be
impartial when deciding on the certificate as he had previously
dismissed his leave to appeal.
Under Article 7 of the Convention the applicant claims that he
was held guilty for of criminal offence in respect of an act which did
not constitute a criminal offence when committed, as it was done in a
state of involuntary intoxication.
The applicant also claims that he has been denied a right to an
effective remedy, within the meaning of Article 13 of the Convention,
as the Court of Appeal failed to grant him leave to appeal.
THE LAW
1. The applicant complains, under Article 5 paras. 1 and 2
(Art. 5-1, 5-2) of the Convention, that he was deprived of his liberty
without knowing and understanding why.
Article 5 (Art. 5) of the Convention, insofar as relevant, reads
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:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent legal
authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having
done so;
...
e. the lawful detention of persons for the prevention of
the spreading of infectious diseases, of persons of unsound
mind, alcoholics or drug addicts or vagrants;
2. Everyone who is arrested shall be informed promptly, in a
language which he understands, of the reasons for his arrest and
of any charge against him."
The Commission first notes that the applicant did not raise
issues concerning the lawfulness or circumstances of his arrest and
detention in the domestic courts and the question therefore arises
whether the applicant has exhausted domestic remedies in accordance
with Article 26 (Art. 26) of the Convention. However, even assuming
that no remedies were available to the applicant, the applicant was
detained only on the night of 12 to 13 February 1995 which was more
than two years before the introduction of the application.
It follows that the applicant has not complied with the six
months rule in Article 26 (Art. 26) of the Convention, and that this
part of the application must be rejected in accordance with Article 27
para. 3 (Art. 27-3) of the Convention.
2. The applicant complains under Article 6 (Art. 6) of the
Convention that he did not receive a fair trial in that vital evidence
was withheld by the prosecution, and that he was not given the
opportunity to call and examine witnesses before the Royal Court with
the result that a proper assessment of the merits could not be made.
He further complains that he was not fit to make a rational
decision when pleading and his plea was not "safe and reliable".
The applicant also complains about the hearings before the Royal
Court and the Court of Appeal which were not public. He further raises
the issue of the impartiality of the Deputy Bailiff of the Royal Court,
on the ground that the Deputy Bailiff first refused the application for
leave to appeal on 29 February 1996 and then, on 21 March 1996, refused
to grant a certificate that there were sufficient grounds of appeal.
The applicant also complains that the Deputy Bailiff knew that the
applicant had instituted proceedings against the police and clerk.
Article 6 (Art. 6) of the Convention, insofar as relevant, reads
as follows:
"1. 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 ... by an ... impartial tribunal ...
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following
minimum rights:
...
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 ..."
The Commission finds that the applicant's allegations under
Article 6 paras. 2 and 3 (Art. 6-2, 6-3) are in fact allegations which
amount to a challenge to the fairness of the proceedings as a whole.
It will accordingly deal with the complaints as a whole under Article
6 para. 1 (Art. 6-1) of the Convention.
The Commission first notes that the applicant`s principal
grievance relates to his conviction as such. It recalls that, in
accordance with Article 19 (Art. 19) of the Convention, its only task
is to ensure the observance of the obligations undertaken by the
Parties in the Convention. In particular, it is not competent to deal
with an application alleging that errors of law or fact have been
committed by domestic courts, except where it considers that such
errors might have involved a possible violation of any of the rights
and freedoms set out in the Convention. The Commission refers, on this
point, to its constant case-law (No. 7987/77, X v. Austria, Dec.
13.12.79, D.R. 18 pp. 31, 45; No. 19890/92, Ziegler v. Switzerland,
Dec. 3.5.93, D.R. 74 p. 234).
The Commission notes that the applicant pleaded guilty to the
charges put to him at his trial on 17 February 1995. It is true that
he subsequently claimed before the domestic courts that his plea should
not be allowed to stand, but in the light of all the circumstances of
the case - the clerk's clear note of the proceedings, and the extensive
examination of the claim that the applicant had not been fit to plead
which involved expert evidence by two psychiatric experts - the
Commission cannot find that the decision of the Deputy Bailiff of
29 February 1996 was either arbitrary or unreasonable.
The Commission recalls that the manner in which Article 6 para. 1
(Art. 6-1) of the Convention applies in relation to appeal proceedings
depends on the special features of the proceedings involved. Account
must be taken of the entirety of the proceedings in the domestic legal
order and the role of the appeal court therein: in the case of leave
to appeal proceedings, the nature of those proceedings and their
significance in the context of the proceedings as a whole must be
considered, together with the powers of the appellate jurisdiction and
the manner in which the proceedings are actually conducted (see for
example Eur. Court HR, Monnell and Morris v. the United Kingdom
judgment of 2 March 1987, Series A no. 115, p. 22, para. 56; Fejde v.
Sweden judgment of 29 October 1991, Series A no. 212-C, p. 67, para.
26).
In the present case, the Commission is faced with an application
for leave to appeal against a conviction which was entered, after a
plea of guilty which was held to be valid. That application for leave
to appeal was dealt with in the decisions of the Deputy Bailiff of
29 February 1996 (the substantive refusal of leave on the ground that
there were no "exceptional circumstances") and of 21 March 1996 (when
the Deputy Bailiff, after expressing doubt as to whether an appeal lay,
found no sufficient grounds for an appeal in any event). Thereafter,
the Bailiff (on 7 May 1996) and the full Court of Appeal (on 22 July
1996) both confirmed that no appeal lay to the Court of Appeal. The
Privy Council's decision of 19 December 1996 gave no reasons for the
dismissal of the applicant's petition to it.
The issues to be determined on the appeal were therefore limited:
the only question was whether leave to appeal should be given in a case
where the applicant had pleaded guilty, and that question turned on the
existence of "exceptional circumstances". The Commission does not
accept that witnesses or evidence should have been called as neither
witnesses nor further evidence would have been relevant to the question
of whether leave to appeal should have been granted.
As to the absence of a public hearing before the Royal Court and
the Court of Appeal, the Commission recalls that in the above-mentioned
Monnell and Morris case, the European Court of Human Rights found that
the absence of an oral hearing in criminal leave to appeal proceedings
was compatible with Article 6 (Art. 6) of the Convention (p. 22, para.
58). The position is the same in the present case: the Deputy Bailiff
in his initial decision was only concerned with whether to grant leave
to appeal because of "exceptional circumstances"; his second decision,
that there were no sufficient grounds of appeal, followed from his
first, and raised the limited question of whether a further appeal
existed; the subsequent proceedings were limited to the question -
unanimously answered in the negative - whether any further appeal lay.
None of those decisions required a public hearing.
Similarly, the Commission is of the opinion that the fact that
the Deputy Bailiff refused leave to appeal twice cannot give rise to
doubts as to his impartiality: the Court of Appeal subsequently
confirmed that no appeal lay against a decision refusing leave to
appeal, so that the Deputy Bailiff could not, in any event, have
granted leave on 21 March 1996. The proceedings on that occasion,
therefore, are not relevant to the determination of the criminal charge
against the applicant.
Finally, the Commission does not accept that, even if the Deputy
Bailiff knew of the private proceedings brought by the applicant
against the police and the clerk, any fears could have been raised as
to the Deputy Bailiff's impartiality on that ground.
It follows that the applicant`s complaints under Article 6
(Art. 6) of the Convention are manifestly ill-founded and have to be
rejected in accordance with Article 27 para. 2 (Art. 27-2) of the
Convention.
3. Under Article 7 (Art. 7) of the Convention the applicant claims
that he was held guilty of a criminal offence in respect of an act
which did not constitute a criminal offence when committed, as it was
done in a state of involuntary intoxication.
Article 7 (Art. 7) of the Convention, insofar as relevant,
provides as follows:
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. ..."
The Commission notes that the applicant's intoxication at the
time of the offence, involuntary or not, is not relevant to issues
under Article 7 (Art. 7) of the Convention. The offence with which the
applicant was charged, under Section 1 of the Offence against Police
Officers (Bailiwick of Guernsey) Law 1963 was in force on the night of
12 to 13 February 1995.
Moreover, the applicant pleaded guilty to the offence as charged.
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.
4. The applicant also claims that he has been denied a right to an
effective remedy, within the meaning of Article 13 (Art. 13) of the
Convention, as the Court of Appeal failed to grant him leave to appeal.
Article 13 (Art. 13) of the Convention reads as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that the guarantees of Article 13
(Art. 13) of the Convention apply only to a grievance which can be
regarded as "arguable" (see Eur. Court HR, Powell and Rayner v. the
United Kingdom judgment of 21 February 1990, Series A no. 172, p. 14,
para. 31). The Commission finds that, in view of the above findings
and to the extent that Article 13 (Art. 13) is applicable, there is no
claim which could be regarded as "arguable" in connection with Article
13 (Art. 13) in the present case.
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, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M. de SALVIA S. TRECHSEL
Secretary President
to the Commission of the Commission
Full & Egal Universal Law Academy