FOURTH SECTION

DECISION

Application no. 41518/98 
by J.M. 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 28 September 2000 as a Chamber composed of

Mr G. Ress, President
 Mr A. Pastor Ridruejo
 Mr J. Makarczyk
 Sir Nicolas Bratza, 
 Mr V. Butkevych
 Mr J. Hedigan
 Mr M. Pellonpää, judges, 
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 25 September 1996 and registered on 8 June 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the letter dated 1 March 1999 submitted by the respondent Government informing the Court that they were negotiating a settlement with the applicant and to their subsequent letter of 19 July 2000;

Having regard to the letter dated 27 April 2000 submitted by the applicant’s representatives;

Having regard to the letter dated 18 May 2000 from the applicant’s representatives and to the Government’s letter dated 2 June 2000;

Having deliberated, decides as follows:

 

THE FACTS

The applicant is a British national, born in 1962 and living in County Kerry in Ireland. She is represented before the Court by Ms Ruth Harvey, a lawyer practising at Sheridans, solicitors in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

In December 1995 the applicant was attacked, detained and repeatedly and brutally raped by Mr E. The trial lasted from 2 to 22 August 1996. E. was convicted and sentenced to life imprisonment on 25 September 1996. E. elected to defend himself and questioned the applicant for six days. In preparing his defence, E. had been given access to her medical records and other private information about the applicant. Throughout the trial, E. wore the same clothes he had worn when he raped the applicant. He questioned the applicant not only about the rapes but on her intimate medical history and personal relations. The applicant was physically sick during the cross-examination. The applicant was admitted to hospital following her court ordeal, which she found disturbing and distressing.

B. Relevant domestic law and practice

At the time of the trial in the applicant’s case, a person charged with a criminal offence had an absolute right to conduct his own defence. The court had no power to compel a defendant to accept representation against his will (see R v. Woodward (1944) KB 118). A defendant conducting his own defence also had the right to ask questions in cross examination of any witness called by the prosecution provided the questions are relevant to the matter in issue or calculated to attack the witnesses’ credibility.

Under section 2 of the Sexual Offences (Amendment) Act 1976, a judge could give leave to a defendant charged with rape to cross-examine a complainant about her sexual experience. As a general rule, if the defendant could show that the question was relevant to a matter he has put in issue in the trial, such as consent, the cross examination would be permitted (R v. Brown (Uriah Samuel) 89 Cr. App. p. 92).

In July 1999, the Youth Justice and Criminal Evidence Act 1998 came into force. It inter alia restricted a defendant’s ability to cross-examine a victim of an alleged crime personally.

COMPLAINTS

The applicant alleged, in respect of her cross-examination by E., that English law exposed her to inhuman and/or degrading treatment contrary to Article 3 of the Convention and/or an interference in her private life contrary to Article 8 § 2 of the Convention in that it was disproportionate and unnecessary in a democratic society. The applicant complained that English law failed to provide any remedy in relation to her ordeal contrary to Article 13 of the Convention. Further the applicant alleged discrimination under Article 14 of the Convention because adult sex attack victims are denied protection from cross-examination by their alleged assailants, whereas child victims obtain such protection under English law.

PROCEDURE

On 8 December 1998, the Court invited the Government to make written observations on the application.

Following the Government’s letter of 1 March 1999 informing the Court that they were negotiating a settlement with the applicant, the President granted an adjournment.

On 19 July 1999, the Government informed that Court that the applicant had accepted an offer in settlement of her application, namely, payment of 6,000 pounds sterling (GBP) and reasonable legal costs.

Following negotiations between the parties, the Government on 13 March 2000 informed the Court that it considered the applicant’s claimed legal fees to be excessively high and that it had offered GBP 7,000 as a reasonable sum. They enclosed their letter of 16 December 1999 to the applicant’s solicitors, setting out their detailed objections to the claim of GBP 12,880.50. This figure did not include VAT or counsel’s fees. Nor did it make allowance for legal aid granted by the Court of 2,800 French francs (GBP 270.53). These included objections to a substantial part of the bill relating to research and drawing up a conditional fee agreement with counsel, work done liasing with the media and the inclusion of work done, inter alia, replying to a letter from a student and over-employment of fee earners e.g. engaging two senior counsel and one junior counsel to prepare a nine page application and supporting document.

By letter of 27 April 2000, the applicant’s solicitors informed the Court that they were still negotiating.

On 18 May 2000, having failed to reach agreement with the Government, the applicant’s solicitors submitted to the Court their revised claims for legal costs, assessed at 31 January 2000, at GBP 16,813. This figure now included VAT, counsel’s fees and an allowance for legal aid. It also took account of certain objections by the Government.

By letter dated 2 June 2000, the Government maintained their objections as set out in their letter of 16 December 1999 and stated that a sum of GBP 7,000 was reasonable.

THE LAW

1. The Court notes that the applicant has agreed to settle her claims on the basis of an ex gratia payment of GBP 6,000 and payment of reasonable legal costs. In these circumstances, it finds that it is no longer justified to continue the examination of the application under Article 37 § 1 (c) of the Convention. It notes that legislation has been introduced to limit the circumstances in which a defendant may personally cross-examine a victim of a rape. It is satisfied that respect for human rights does not require the continued examination of the application (Article 37 § 1 in fine of the Convention).

Accordingly, the case should be struck out of the list.

2. The Court further notes that the parties have been unable to reach agreement as to the amount of reasonable legal costs to be paid as part of the settlement.

The Court has had regard to the fact that the application did not reach beyond the stage of communication to the respondent Government and that most of the work in the file before the Court involved initial correspondence and the preparation and presentation of a nine-page application, with a limited number of supporting documents. It is therefore not satisfied that the fees claimed of GBP 16,813 may be regarded as necessarily incurred in relation to the application or as being reasonable as to quantum. The Court has given regard also to the amounts of fees claimed and awarded in other United Kingdom cases before the Court which reached the stage of a final judgment on the merits, after an oral hearing (see, for example, the Khan v. the United Kingdom judgment of 12 May 2000, to be published in Reports 2000-..., where GPB 11,500 were awarded for legal costs).

Consequently, making an assessment on an equitable basis pursuant to Rule 44 § 3 of the Rules of Court, the Court awards GBP 8,000 by way of legal fees and expenses, inclusive of VAT.

For these reasons, the Court, unanimously,

DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES;

DECIDES TO AWARD 8,000 (EIGHT THOUSAND) POUNDS STERLING INCLUSIVE OF VAT TO THE APPLICANT FOR LEGAL FEES AND EXPENSES.

Vincent Berger Georg Ress 
 Registrar President

41518/98 - -


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