AS TO THE ADMISSIBILITY OF
Application No. 12950/87
by Gary William TURNER
against the United Kingdom
The European Commission of Human Rights sitting in private on
9 March 1988, the following members being present:
MM. C.A. NØRGAARD, President
J.A. FROWEIN
S. TRECHSEL
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
G. BATLINER
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
Mr. H.C. KRÜGER, 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 12 March 1987
by Gary William TURNER against the United Kingdom and registered
on 3 June 1987 under file No. 12950/87;
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 applicant is a British citizen, born in 1955, and is
resident in Cheltenham. He is represented before the Commission by
Robins and Co., a solicitors firm practising in Cheltenham. The facts
as presented by the applicant may be summarised as follows.
The applicant was charged with assaulting a police officer and
tried in the magistrates court on 17 October 1986, where he was
represented by his solicitor. He was found guilty and fined £80. The
applicant appealed to the Crown Court against conviction only. The
Crown Court heard the appeal on 4 and 5 February 1987, where the
applicant was represented by counsel. The applicant was warned by the
presiding judge that the Court had power under S.9 of the Courts Act
1971 to increase sentence, even though the applicant was not appealing
against sentence, and that the court took the view that offences of
assaulting the police should be dealt with by imprisonment. The
applicant however continued with his appeal. His appeal was dismissed
and, after hearing short submissions as to sentence based on the
mitigating circumstances of the case, the Court increased his sentence
to 6 months imprisonment and also imposed 6 months imprisonment, to
run concurrently, for breach of a conditional discharge imposed on 12
November 1984 for assault occasioning actual bodily harm.
The applicant did not appeal. The applicant was advised by
counsel that though this sentence was probably excessive, the only
possible remedy would be to apply to the Divisional Court by way of
case stated or judicial review. Such applications can only be made on
the ground that the Court is wrong in law or in excess of
jurisdiction. Counsel gave the opinion that, since the sentence was
within the limits permitted by statute and that since the case-law
establishes that it is not enough to establish that the sentence is
unduly severe, an appeal would stand no prospect of success.
COMPLAINTS
The applicant complains that his appeal was against conviction
only and that sentencing had already been dealt with by the lower
court. He submits that the sentence imposed by the Crown Court was
not implicit in the sentence of the lower court. Further he complains
that the procedure for considering sentence after an appeal against
conviction is dismissed is cursory and that, in his case, sentencing
followed immediately upon the refusal of his appeal against conviction
without any consideration of further or up-to-date reports.
The applicant invokes Article 5 para. 1 and Article 6 paras. 1
and 3 of the Convention.
THE LAW
1. The applicant complains of being sentenced to imprisonment by
the Crown Court following their dismissal of his appeal against
conviction.
Article 5 para. 1 (Art. 5-1) of the Convention guarantees to
everyone the right to liberty and stipulates that noone shall be
deprived of his liberty save in the instances specified in
sub-paragraphs (a)-(f) (Art. 5-1-a-f) and save in accordance with a
procedure prescribed by law. The Commission recalls that the
applicant had been convicted and fined by a magistrates court and
that, following his appeal, the Crown Court exercised its powers under
Section 9 of the Courts Act 1971 to increase his sentence from a fine
to a term of imprisonment. The applicant has submitted no evidence
that might suggest that the Crown Court could be regarded as anything
other than a competent court for the purpose of imposing sentence in
relation to the conviction of the applicant following his trial at
first instance. The Commission accordingly finds that there can be no
doubt as to the applicant having been subject to a "conviction by a
competent court" within the meaning of Article 5 para. 1 (a) (Art.
5-1-a) which specifically allows "the lawful detention of a person
after conviction by a competent court".
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.
2. The applicant also complains that the increase of sentence by
the Crown Court when he was appealing against conviction only was
contrary to Article 6 paras. 1 and 3 (Art. 6-1, 6-3) of the
Convention. He complains that the procedure for considering sentence
after the dismissal of his appeal was cursory.
Article 6 para. 1 and para. 3 (a) (Art. 6-1, 6-3-a) of the
Convention provide:
"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 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:
(a) to be informed promptly, in a language which he
understands and in detail, of the nature and cause of
the accusation against him...."
The Commission recalls that, in accordance with its constant
case-law, the fairness of any trial must be examined by reference to
the proceedings as a whole (e.g. Application No. 524/59, Dec. 19.12.60,
Yearbook 3 pp. 323, 353 and Application No. 8289/78, Dec. 5.3.80,
D.R. 18 p. 160).
As regards the applicant' complaint of the increase of
sentence when he was only appealing against conviction, the Commission
notes that the applicant was informed by the Crown Court at the
beginning of his appeal of their powers to increase sentence and of
their view that a sentence of imprisonment was considered more
appropriate in cases concerning the offence of assault of a policeman.
The applicant however chose to continue with his appeal. The
applicant's legal advisers would also have been already aware of the
court's powers in this respect.
The applicant complains in particular, in the context of both
Article 6 para. 1 and para. 3 (a) (Art. 6-1, 6-3-a), that the
procedure for sentencing following dismissal of his appeal was
cursory. The Commission recalls however that the applicant's counsel,
whom the Court had made aware of its views of such offences, was able
to make short submissions to the Court concerning mitigating factors
to be taken into account in sentence. The Commission also recalls
that appeals before the Crown Court proceed by way of rehearing and
not merely on consideration of points of law, and that therefore the
Court would have been aware of the evidence in the case. While the
Commission notes that the applicant complains that there were no
further or up-to-date reports before the Court concerning sentence, it
does not appear that the applicant requested an adjournment for such a
report to be compiled or that there were any further mitigating
factors which his counsel had been unable to draw to the attention of
the Court.
In light of these circumstances, the Commission finds no
appearance of a violation of Article 6 para. 1 or para. 3 (a)
(Art. 6-1, 6-3-a) of the Convention.
It follows that these complaints must also be dismissed as
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.
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (C.A. NØRGAARD)