AS TO THE ADMISSIBILITY

Application No. 11821/85
by L.S.
against the United Kingdom


        The European Commission of Human Rights sitting in private on
12 December 1987, the following members being present:

                MM.  C.A. NØRGAARD, President
                     J.A. FROWEIN
                     S. TRECHSEL
                     F. ERMACORA
                     G. SPERDUTI
                     E. BUSUTTIL
                     G. JÖRUNDSSON
                     A.S. GÖZÜBÜYÜK
                     A. WEITZEL
                     J.C. SOYER
                     H.G. SCHERMERS
                     H. DANELIUS
                     J. CAMPINOS
                     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 27 July 1984
by L.S. against the United Kingdom and registered on
24 October 1985 under file No. 11821/85;

        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 1952.  When
introducing the application, he was serving a prison sentence on the
Isle of Wight; he has been released in the meanwhile.  The applicant
is represented before the Commission by Mr.  Peter Ashman, a barrister.
The facts as agreed by the parties may be summarised as follows.

        On 15 April 1983 in Chester Crown Court the applicant was
convicted and sentenced to five years' imprisonment for three offences
of burglary, escape from lawful custody and failure to surrender to
bail.  He was acquitted of a charge of stealing a car.

        There were three others involved in the offences of burglary
and the applicant was originally represented by the same solicitors
and counsel as two of his co-accused.  The two co-accused however
decided to plead guilty and as their case conflicted with the
applicant's, his lawyers informed him that they could no longer
represent him.  The applicant then decided to defend himself.

        At a preliminary hearing on 8 March 1983, the prosecution
indicated to the judge that they did not intend to call the co-accused
as witnesses but would reserve their position.  The applicant prepared
his defence on this basis.  The applicant received copies of all the
statements in the case, including those of his co-accused.

        By letter dated 30 March 1983, the applicant was informed by
the Chief Prosecuting Solicitor that the prosecution would not be
preparing an edited bundle of statements and would not be calling
evidence of interviews with the applicant's co-accused, copies of
which the applicant already had in his possession.  By letter dated
7 April, however, the Chief Prosecuting Solicitor informed the
applicant that the prosecution had decided to call two of the
applicant's co-accused and enclosed new witness statements from them.
These statements had been obtained by the police on 14 and 23 March
and had been sent to the prosecuting solicitor on 7 April.  This
information reached the applicant on 9 April, four days before his
trial was due to begin on 13 April.  On 13 April, the first day of the
trial, the applicant was given an edited bundle of statements.  He had
not been consulted about the editing of the statements.

        At the beginning of the proceedings, the applicant asked the
judge for an adjournment on the ground that he needed to reorganise
his defence in relation to the prosecution's decision to call his
co-accused as witnesses.  After hearing submissions from the applicant
and the prosecution who stated that the written statements had been
served on the applicant as soon as they had been received and that in
any case they could have contained no surprises since in substance
they reproduced the earlier statements, the judge refused an
adjournment.  Before proceeding to sentence the defendants following
the jury's verdict, the judge offered the applicant the opportunity of
applying for legal representation to offer a plea in mitigation.  The
applicant however refused.

        The applicant later applied for leave to appeal against
conviction on grounds inter alia that the judge, by failing to
grant an adjournment, had failed to grant him sufficient time to
prepare his defence and that the judge had failed to exercise his
discretion to order a new trial when one of his co-accused revealed
that the applicant had previously spent time in prison.

        A single judge turned down his application for leave to appeal
on 27 July 1983 and the full Court of Appeal dismissed his application
for leave on 31 January 1984 on the ground that it contained no merit.


COMPLAINTS

        The applicant complains that the judge's refusal to grant an
adjournment deprived him of adequate time and facilities for the
preparation of his defence.  The applicant wished time to prepare
questions to cross-examine his co-accused.  He also felt that the
parts of the statements edited out could have been used by him to show
the police and the co-accused had lied.  The unedited parts were
allegedly inadequate for this purpose.  He alleges that the effect of
the editing of the statements was that he was not allowed by the judge
to ask questions relating to those parts of the statements which had
been edited out and that this affected two thirds of the questions
which he had prepared to ask his co-accused.  The applicant
accordingly invokes Article 6 para. 3 (b) of the Convention.


PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 27 July 1984 and registered
on 24 October 1985.

        On 11 December 1986, the Commission decided to bring the
application to the notice of the respondent Government, in respect of
the applicant's complaint under Article 6 para. 3 (b) and in respect
of the issue of equality of arms, and to invite them to submit
observations on the admissibility and merits pursuant to Rule 42 2(b)
of the Rules of Procedure.

        The Government's observations were submitted on 24 March 1987
and the applicant's observations in reply were submitted on 26 June
1987, after an extension of the time-limit of six weeks.


SUBMISSIONS OF THE PARTIES


        A. THE RESPONDENT GOVERNMENT

        1. The facts

        The Government state that it appears from the transcript of
proceedings that the applicant made no complaint about the editing of
the statements when requesting an adjournment.  The Government note
that the applicant had sacked his solicitors and that it is not
suggested that the applicant could not have instructed fresh
solicitors to appear for him or that he could not have obtained legal
aid if he had applied.  The judge also offered the applicant the
possibility of instructing solicitors to make a plea in mitigation
when he was convicted.  The applicant declined that offer and the
Government state that there can be no doubt that his decision to do so
was freely made as was his decision to conduct his own defence at the
trial.

        The Government also state that all the matters of which he
complains in the present application were put before the Court of
Appeal who found no substance in them.

        2. Relevant domestic law and practice

        The defendant in a trial on indictment is entitled to see all
the statements of witnesses, on whose evidence he has been committed
for trial by the magistrates' court.  In addition, the prosecution are
required to provide the defence with statements taken from witnesses
whom it is not proposed to call at the trial.

        Witnesses may be cross-examined on any matter that is relevant
to an issue in the case or goes to their credit.  Although judges
should normally try to control lengthy or oppressive cross-examination,
the practice is to accord a certain latitude to defendants who are
representing themselves.  It is also the practice that defendants who
appear in person are given every assistance by the judge in presenting
their cases.

        3. Admissibility and merits

        Article 6

        The Government submit that the summing-up of the judge at the
end of the trial illustrates the careful way the case was dealt with
by the judge and shows that the applicant's defence was fairly put to
the jury.  The applicant's criticisms of the trial, including all
those he raises before the Commission, were put in detail to both the
single judge and the full Court of Appeal.  They were carefully
considered but found to be without merit.

        The Government also submit that, where the trial judge had
considered the question whether to grant an adjournment, and where
there is no evidence to indicate that he used his discretion wrongly,
the Commission should be slow to substitute its own judgment for that
of the national court.  In the Gillow case (Eur.  Court H.R., Gillow
judgment of 24 November 1986, Series A no. 109), the Court considered
the question of an adjournment in criminal proceedings.  It said:

        "The Court considers that the adjournment of a hearing is
        a matter which falls in principle within the discretion
        of the competent national court" (judgment para. 70).

        The applicant's allegation that the trial judge had wrongly
refused an adjournment was considered by the single judge of the Court
of Appeal, who concluded that there was nothing to indicate that the
trial judge's discretion in considering whether to grant an
adjournment had been wrongly exercised.

        Article 6 para. 3 (b)

        The Government cite the reasoning of the Commission in
Application No. 5523/72 (Dec. 5.10.74, Yearbook 17 p. 314 (334))
where the Commission said:

        "The time necessary to prepare a defence must indeed be
        estimated on a different basis at the various stages of
        the proceedings.  When lodging an appeal or a plea of
        nullity, a defendant is already familiar with the
        contents of the file, and in particular the nature of
        the charges and the evidence on which they rely."

        In the Government's submission the familiarity of the
applicant with the case against him is also a relevant factor in this
case.  The applicant was already aware of the nature of the charges
and evidence against him even before the witness statements were
served upon him.  The period between 7 April, when the witness
statements from his co-accused were served on the applicant, and
13 April, when the trial began, must be set in the context that the
applicant had received before 30 March all the evidence in the case,
including records of the interviews with his co-accused.  As the judge
remarked, he knew at the outset exactly what was alleged against him.
Although he made a complaint in general terms when applying for an
adjournment, the applicant did not raise any specific difficulty, and
he did not mention the editing of the statements as a matter in
relation to which an adjournment should be granted.

        Accordingly, the Government submit that this is not a case in
which new evidence was introduced shortly before the trial.  The
applicant knew all along what his co-accused said against him.  But
even if their evidence had taken him by surprise, he had, on his own
admission, at least 3 clear days during which to reorganise his
defence.  The editing can, in the Government's view, only relate to
the different form in which the evidence of the co-accused was
presented.  It cannot have affected the substance of their evidence.
As Prosecuting Counsel said, the statements could have contained no
surprises for the applicant.  So far as cross-examination is
concerned, the Government submit that the applicant could not have
been prevented from asking any relevant questions of the witnesses.
If he did not ask many of his prepared questions, that can only be
because they were not relevant to the case against him.

        Article 6: equality of arms

        The Government submit that, so far as the aspect of whether
the applicant had adequate time and facilities to prepare his case is
concerned, the principle of "equality of arms" adds nothing to the lex
specialis embodied in Article 6 para. 3 (b).  So far as the principle
of "equality of arms" may relate to other aspects of the case, the
Government recall that according to the Commission's case-law the
question of whether a trial conforms to the standard laid down by
Article 6 para. 1 must be decided on a consideration of the trial as a
whole and not on one particular aspect.  The Government submit that it
was the applicant's own decision to represent himself and that in any
event there is nothing in the transcript to indicate that he was
placed at a disadvantage in representing himself.  The Government also
contend that it is the practice to afford defendants in person every
assistance in presenting their cases, and to permit them greater
latitude in court than a professional representative would be
allowed.  Moreover, at a trial in the Crown Court the defendant is
entitled to see the statements of prosecution witnesses in advance and
so knows in detail what the prosecution case will be.  This facility
is not granted to the prosecution, who are not entitled to know the
defence case in advance.


        B. THE APPLICANT

        1. The facts

        The applicant submits that his defence was prepared on the
basis of the assurance given him in the letter from the Prosecuting
Solicitor that no evidence would be called in respect of his
co-accused.  As the prosecution knew that he was defending himself,
they should have given him adequate time to make the necessary changes.

        The applicant was entitled to represent himself in the
proceedings and should not have suffered any disabilities because of
this.  The Government appear to be suggesting that what happened to
him was somehow his own fault because he exercised his right to defend
himself.

        While it is true that the Court of Appeal dismissed the
applicant's application for leave to appeal, they gave no reasons of
substance for their decision.  It is not clear from this absence of
reasons whether the Court of Appeal considered the question of the
equality of arms, as guaranteed by Article 6 of the Convention.  The
reasoning of Mr.  Justice Skinner suggests that the Court was following
its well established doctrine in respect of judicial discretion:

        "It is well settled that this court will not interfere with
        the exercise of a discretion by the judge unless he has
        erred in principle or there is no material on which he could
        properly have arrived at his decision" per Devlin J. in R.
        v.  Cook (1959) Cr.  App.  R. 138 at 147 (cited with approval
        by Viscount Dilhorne in Selvey v.  DPP (1968) 52 Cr.  App.  R.
        443 at 469).

        2. Admissibility and merits

        The refusal of the trial judge to grant an adjournment was
made without reasons being given.  The applicant argues that it is
difficult to see how the Court of Appeal dealt with this, because it
too failed to give any reasons for its decision.  In these
circumstances, the applicant submits that it is open to the Commission
to look at all the circumstances and make up its own mind as to
whether the judge acted fairly.

        The object of procedural safeguards is to ensure that everyone
receives a fair trial, even those persons against whom there is very
strong evidence.  The applicant strongly contested the prosecution
case and he was entitled to make use of the safeguards which exist to
ensure a fair trial in order to put his case properly to the jury and
try to persuade them of his innocence.

        As the applicant had no say in the editing of the statements,
and relied on the prosecution assurances about the evidence to be
called, he submits that the failure to give him adequate time was
particularly damaging to him.


THE LAW

        1. Article 6 para. 3 (b) (Art. 6-3-b) of the Convention

        The applicant complains that the failure of the judge to
grant an adjournment in his trial deprived him of adequate time
and facilities for his defence.  He alleges that he required an
adjournment in light of the prosecution's decision to call two of his
co-accused as witnesses against him despite their earlier assertion
that they would not do so and also in light of the edited bundle of
statements which was given to him only on the morning of the trial
itself.

        Article 6 para. 3 (b) (Art. 6-3) of the Convention provides that:

        "Everyone charged with a criminal offence has the following
        minimum rights:

        ...

        (b) to have adequate time and facilities for the preparation
        of his defence..."

        As regards the applicant's complaint concerning his
co-accused, the Commission notes that the prosecution's decision to
call them was communicated to the applicant by letter dated 7 April
and reached him on 9 April 1983.  The relevant witness statements were
also forwarded to him at the same time and the applicant therefore
received them four days before the beginning of his trial on 13 April.
The Commission further notes that the prosecution sent the statements
to the applicant immediately on their receipt from the police.  It
also does not appear to be contested that the applicant was already
aware, from earlier statements in his possession, of the substance of
the co-accuseds' evidence against him.  In view of this and the fact
that the trial of the charges against the applicant did not involve
complex or difficult matters, the Commission finds that the applicant
has not established that he was not allowed sufficient time to prepare
his case.

        The applicant also complains that he was given inadequate time
to reorganise his defence in connection with the edited bundle of
statements presented to the court by the prosecution.  He alleges that
he had prepared two thirds of his questions for cross-examination on
parts of the statements which had been edited out and that he was thus
prevented from referring to them.
11821/85

        The Commission notes however that the applicant made no
complaint of the editing of the statements to the trial judge when
requesting an adjournment.  Further, according to domestic law,
witnesses may be cross-examined on any matter that is relevant or
which goes to their credit.  The applicant would therefore have been
entitled to put his questions to the prosecution witnesses insofar as
they fell within those criteria.  The applicant states that during the
trial the judge prevented him from asking questions relating to the
statements not contained in the edited bundle.  However, the
Commission finds that there is nothing to suggest that the judge was
not thereby exercising his discretion to disallow irrelevant or
inadmissible questions.  The applicant was also able to raise his
complaints concerning the edited statements and the refusal of the
adjournment in his appeal to the Court of Appeal, which, however,
found no substance in his complaints.

        The Commission therefore finds that the applicant has failed
to establish that the use of the edited bundle of statements or the
refusal of the adjournment did in fact deprive him of adequate time or
facilities in the preparation of his defence and that accordingly there is no
appearance of a violation of Article 6 para. 3 (b) (Art. 6-3-b) of the
Convention.

        It follows that this part of the application must be dismissed as
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of
the Convention.

        2. Article 6 para. 1 (Art. 6-1) of the Convention

        However, although the Commission has failed to discover an
infringement of the minimum rights laid down in Article 6 para. 3 (Art. 6-3) it
has also considered whether there may nevertheless be an appearance of
a violation of the principle of equality of arms, that is, the
procedural equality of the accused with the public prosecution, which
the case-law of the Commission and the Court have established to be an
inherent element of a "fair trial" within the meaning of Article 6
para. 1 (Art. 6-1) of the Convention (see e.g.  Eur.  Court H.R., Neumeister
judgment of 27 June 1968, Series A no. 7 para. 22).

        The applicant has complained that the prosecution served
witness statements of his co-accused only 3 days before his trial and
that the prosecution presented an edited bundle of statements to the
Court on the morning of the trial.  As regards the witness statements
of the co-accused, the Commission recalls that the prosecution served
them on the applicant immediately on their receipt from the police and
finds therefore that the prosecution derived no unfair advantage in
this respect.  As regards the edited bundle of statements over which
the applicant was not consulted, the Commission first of all recalls
that the applicant in fact made no complaint of this to the judge at
the beginning of the trial.  The Commission also notes that the
editing of statements by the prosecution is a routine procedural step
for the orderly presentation of evidence, where a witness has made one
or more written statements.  This does not however prevent the defence
from asking witnesses such questions or presenting such other
evidence, which are relevant and admissible.  The Commission therefore
finds that the editing of the bundle of statements for the use of the
court in the present case did not subject the applicant to any
procedural inequality contrary to the requirement of a "fair trial"
guaranteed in Article 6 para. 1 (Art. 6-1) of the Convention and the Commission
therefore finds no appearance of a violation of that provision.

        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

        DECLARES THE APPLICATION INADMISSIBLE.


    Secretary to the Commission         President of the Commission



           (H.C. KRÜGER)                       (C.A. NØRGAARD)