AS TO THE ADMISSIBILITY OF
Application no. 59493/00
by David George WITHEY
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 26 August 2003 as a Chamber composed of
Mr M. Pellonpää, President,
Sir Nicolas Bratza,
Mr M. Fischbach,
Mr J. Casadevall,
Mr S. Pavlovschi,
Mr J. Borrego Borrego,
Mrs E. Fura-Sandström, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 6 April 2000,
Having regard to the observations submitted by the respondent Government,
Having deliberated, decides as follows:
The applicant, David George Withey, was a United Kingdom national. He was born in 1959 and he lived in Devon. He died in early 2001. His widow, Susan Withey, continues the application on his behalf.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
Further to a detailed statement given to the police on 4 August 1992 by Ms E, on 6 August 1992 the applicant was arrested on suspicion of indecent assault of two young children, one of whom was his daughter. He denied the offences to the police. He was remanded in custody for four weeks after which he was granted bail. His bail conditions forbade him to contact Ms E or her children. Ms E made a further detailed statement on 28 August 1992.
On 25 November 1992 the applicant sent Ms E a Christmas card which read as follows:
“To [Ms E and her son], God bless you both. May this Christmas be as happy as mine and my wife’s children. May it reflect all the harm you have done to a family that loved one another and still do. Perhaps in the end you will remember all the good that was done for you; for befriending you was the worst thing we have ever done, but thank you, for they know not what they do. I forgive you, and may God have mercy on you for all your days long. May you wake up thinking how you have destroyed a family. May your days be in torment until you say the truth. Rosie, you need God in your life. Don’t doubt, believe; remember everything is possible to those who believe. I forgive you.”
The card was signed “David” and its post-script read “Have a nice Christmas”.
Ms E made a witness statement dated 11 January 1993. She described how she had received the card and, after great consideration, had decided not to give evidence.
The case came on for trial before the Crown Court on 15 January 1993 and the applicant pleaded not guilty. The applicant claims that Ms E did not attend as she knew her statement was untrue.
Ms E made another statement dated 18 January 1993 which read as follows:
“I have previously stated that I had decided that I didn’t want to give evidence against [the applicant]. The reasons for this are that before I received the Christmas card from him, I was prepared to give evidence although I was aware that it would be an unpleasant experience. When I read the Christmas card I felt sick and started to shake. I could not bear to be in the same house, and within half an hour of receiving it, I had posted it to [the Child Protection Team]. I thought he was trying to get round me; one minute he seemed to be pleasant, and then he was sounding terrible. After I sent the card off, I blocked it out of my mind as I had no idea when the court case would be. I had a visit from [a police officer] to see if I was capable of giving evidence ... I am petrified of [the applicant] and very concerned about any reprisals from him. I don’t think I could bear to be in the same room as him. It is for these reasons only that I have decided not to give evidence. Everything I have previously stated to the police regarding [the applicant’s] actions is the truth.”
On 19 January 1993, when the case was re-listed for trial, counsel for the prosecution explained Ms E’s position. The trial judge, without opposition from the applicant’s counsel, ordered as follows:
“David George Withey, I direct that this indictment lie on the file marked in this way: that it not be proceeded with without leave of this court or the Court of Appeal ... Let me warn you in the clearest possible terms that there is every likelihood of this court granting leave to resurrect this case if there is any repetition of the alleged events contained on that indictment. Do you understand?”
The defendant replied that he did and the trial judge went on:
“I direct this file, together with the latest statement of Ms E to be placed before the [prosecutor] for further consideration as to whether or not an offence is disclosed on the face of it, and whether as a consequence, you should be prosecuted therefor.”
In or around April 1993 the applicant wrote to the trial judge asking him to re-open the case. By letter dated 22 April 1993 the chief clerk informed the applicant that the trial judge had decided not to re-open the case. The trial judge had written on the file:
“I regret that I cannot now reconsider the matter. The defendant was fully and well represented at the time and the matter fully canvassed then. Nothing further will be achieved by resurrecting it.”
In June 1995 the applicant lodged appeal papers with the Court of Appeal. On 4 June 1996 the Court of Appeal office declined to consider his application as there had been no conviction and advised him that, if he wished to have his case re-opened, he should apply to the Crown Court.
On 14 November 1997 the applicant instituted proceedings against Ms E for malicious falsehood as regards her statement of August 1992. He claims that those proceedings were successful.
In January 1998 the applicant wrote to the Crown Court again requesting that the matter be re-opened. On 19 January 1998 the court office responded confirming that a “not guilty” verdict had not been entered in January 1993 and that both counts had been ordered to lie on the file in the usual terms.
By letter dated 8 May 1998 the applicant’s solicitors asked the Crown Prosecution Service (“the prosecution”) about its intentions concerning the charges left on the file. By letter of 22 June 1998 the prosecution confirmed:
“... that there is currently no intention to proceed upon the outstanding matter. I cannot envisage any situation in which this matter would now proceed”.
On 27 July 1998 the prosecution indicated to the Crown Court that, given the applicant’s recent request to have the matter re-listed, it had no objection to a formal verdict of “not guilty” being entered under section 17 of the Criminal Justice Act 1967 and, in the circumstances, asked for the matter to be re-listed for that purpose.
The matter was re-listed for 5 August 1998. Each party was represented by counsel. Having summarised the facts of the case so far, the trial judge noted that the situation had been brought about by the applicant himself since he had intimidated Ms E and since his counsel had consented to the course of action taken on 19 January 1993. Given that conduct and his previous convictions, it was understandable that the prosecution did not wish to offer evidence and that the applicant was satisfied to consent to the matter remaining on the file. The trial judge went on:
“I am conscious that in considering this matter, the court has a discretion whether or not to re-open it, and that such a discretion must be exercised judicially. I am satisfied that this case did not proceed, solely as a result of the acts of [the applicant]. On all the facts before me, and in the exercise of my discretion, I do not propose to give leave to [the applicant] to remove the stay on these proceedings...”
On 2 November 1998 the applicant applied for leave to take judicial review proceedings for an order of certiorari to quash the decision of the Crown Court of 5 August 1998 arguing, inter alia, that the order of 19 January 1993 was wrong in law. Leave was granted in January 1999 and, following a hearing on 11 October 1999, the High Court dismissed the application because it did not have jurisdiction to consider it.
The applicant claims that his three children were placed with foster parents in or around early 1998.
B. Relevant domestic law and practice
1. The practice of leaving charges on the file
The Crown Court may leave some or all of the counts in an indictment on the file. Counts which are left on the file are marked: “Not to be proceeded with without the leave of the court or the Court of Appeal”. There is a similar practice in the Magistrates’ Court, where the same effect is achieved by adjourning a case sine die. In R. v. Central Criminal Court ex parte Raymond  83 Cr.App.R. 94, Lord Justice Woolf stated that an order to leave the charges on the file
“... starts off by having the same effect as an order for an adjournment, but an adjournment which it is accepted may never result in a trial ... [the orders] go beyond the ordinary order for an adjournment since they have the effect of not only postponing a trial but, in effect, ordering that there should be no trial without the leave of the court.”
An order that charges be left on the file (“the order”) is often made where an indictment contains several counts and the plea(s) of guilty entered by the defendant to some of these counts are regarded as adequate by the prosecution. The order is made to protect the position of the prosecution in case a defendant convicted in this manner successfully appeals. The intention is that, if there is no successful appeal, the defendant should never stand trial on the counts left on the file. A successful appeal would allow the prosecution to apply to the trial court to pursue the other counts left on the file.
2. Options where the prosecution offer no evidence or there is insufficient evidence for the prosecution to proceed
Section 17 of the Criminal Justice Act 1967 (“1967 Act”) provides that the court may enter a verdict of not guilty without a jury being impanelled:
“Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him, the court before which the defendant is arraigned may, if it thinks fit, order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury, and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury.”
In R. v. Central Criminal Court ex parte Lord Spens (The Times, 31 December 1992), the prosecution indicated that they would offer no evidence against the accused. Counsel for the accused applied to the judge to enter a verdict of not guilty according to section 17 of the 1967 Act. However, the judge instead made an order to stay the prosecution permanently by ordering that the indictment lie on the file marked “not to be proceeded with”. The case came before the High Court on judicial review and, after ruling that it had jurisdiction to consider the matter, the court found that it was not within the trial judge’s power to order that the indictment lie on the file and that the only course open to the judge was to record a verdict of not guilty either by an order under section 17 of the 1967 Act or by impanelling a jury and directing them to acquit the defendant. Lord Justice Glidewell stated that:
“[...] section 17 [of the Criminal Justice Act 1967] is merely a piece of machinery which enables a judge to enter a verdict of not guilty where the prosecution offer no evidence instead of going through the process of impanelling a jury and requiring them to do so. That section gives the judge no discretion to adopt some other and different course however much he may think it right to do so.”
The 1999 edition of Archbold (reference book on criminal practice and procedure, the edition concerning the relevant time) summarises the effect of that case in the following manner (at paragraph 4-191):
“[An order leaving an indictment on the file] should never be made where the defendant pleads not guilty and the prosecution are disinclined to proceed, but unwilling to offer no evidence; in such circumstances, the defendant’s consent is insufficient reason for ordering a whole indictment to lie on the file. ... R. v. Central Criminal Court ex p. Spens, The Times, 31 December 1992.”
It is, however, questionable whether the High Court in fact had jurisdiction in ex parte Spens to review the decision of the Crown Court to stay the prosecution permanently by ordering that the indictment lie on the file. The decision of the High Court that it had such jurisdiction was based, inter alia, on earlier decisions of the High Court in R. v. Central Criminal Court ex parte Randle and R. v. Norwich Crown Court ex parte Belsham. In the subsequent case of Re Ashton (R. v. Manchester Crown Court and others ex parte Director of Public Prosecutions)  AC 9, the House of Lords approved the decision in the case of ex parte Raymond and overruled those in Randle and Belsham. It was further held that, whether or not the result in ex parte Spens could be justified on other grounds, it could not be justified on the basis of the reasoning in Randle and Belsham.
3. Procedure and possibility of challenge
The suggestion that charges should be left on the file typically comes from the prosecution. Only the consent of the trial judge is required for the order to be made but in practice the judge usually requires that the defence also agree. The order, as a decision made in the conduct of a trial on indictment, cannot be challenged on appeal to the Court of Appeal (R. v. Mackell, 74 Cr.App.R. 27 (CA)). According to R. v. Central Criminal Court ex parte Raymond approved in Re Ashton (both cited above), the order cannot be challenged on judicial review.
4. Re-opening of proceedings
The prosecution may apply for leave to proceed upon charges left on the file. The application is made to the Court of Appeal if the reason for re-opening the proceedings is that the counts on which the defendant was convicted have been quashed. In other cases, the application would be made to the court which made the order to leave the charges on the file. Applications to re-open proceedings and orders granting such applications are exceptional.
In considering whether to grant an application to re-open proceedings, the relevant court examines whether the re-opening would be fair and whether it would constitute an abuse of process (for example, on the grounds of excessive delay between the alleged commission of the offence and the new trial or an undertaking of the prosecution to the former defendant that the matter would not be pursued). In this latter respect, the High Court has found that the prosecution of a person who had received a representation or promise that he would not be prosecuted was capable of being an abuse of process of the court notwithstanding the absence of bad faith (R. v. Croydon Justices ex parte Dean ( QB 769 (DC).
In R. v. Central Criminal Court ex parte Raymond (cited above), Lord Justice Woolf commented that:
“... in the majority of cases where such an order is made, there will be no trial and there will certainly come a stage when either the prosecution would not seek a trial or if it did seek a trial, the court would regard it as so oppressive to have a trial that leave to proceed would inevitably be refused.”
The applicant complains under Article 6 § 1 that he has never had a trial on the charges against him, under Article 6 § 2 that he has never been declared innocent and under Article 6 § 3 that he has never been able to cross-examine the prosecution witnesses.
The Court notes that the applicant died in 2001 and that his widow continues the application on his behalf. It considers that the applicant’s wife has a legitimate and sufficient interest to pursue the application (for example, Deweer v. Belgium, judgment of 27 February 1980, Series A no. 35, § 37; X v. France, judgment of 31 March 1992, Series A no. 234-C, §§ 26 and 27). For the reasons of convenience, the present decision will continue to refer to Mr Withey as “the applicant”, although his wife is today to be regarded as having this status (X v. the United Kingdom, judgment of 5 November 1981, Series A no. 46, § 32).
A. Article 6 § 1 of the Convention
The applicant complains under Article 6 § 1 that he has not been tried on the criminal charges against him. Article 6 § 1 provides, as relevant, that:
“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 ...”
1. The parties’ submissions
The Government submit that the applicant was no longer subject to criminal charges after 19 January 1993 when the order for the charges to lie on the file was made or, alternatively, that those charges were effectively determined on 19 January 1993. In support of this submission, the Government claim that there was no realistic prospect of the proceedings being re-opened after that time for several reasons. In the first place, orders to resurrect counts from the file are exceptional. Secondly, the prosecution had stated that it had no intention of seeking to pursue the charges. Thirdly, two Crown Court judges (in January 1993 and August 1998) considered the matter and decided that the charges should not be resurrected. Finally, if the prosecution had applied to re-open the case, the domestic courts would not have permitted this if it would be an abuse of process due to an excessive period of time having passed or because the prosecution had given an undertaking not to pursue the charges.
Alternatively, the Government submit that Article 6 § 1 does not apply. Article 6 § 1 does not guarantee that there will be a determination of a criminal charge but rather that, if there is such a determination, it must take place within a reasonable time.
The Government claim that the practice of permitting counts to remain on the file, in circumstances where they are rarely resurrected and then only with the permission of a court, strikes a fair balance between the rights of the individual and the general interest of the community.
The applicant submits that he has never been given the opportunity of contesting the charges against him and having a trial of the issues in order to clear his name. He states that the charges, which are of a serious nature, hung over his head until 2001 and claims that this led to a prohibition by social services on his having contact with his children, the break-down of two marriages and damage to his health. The applicant claims that he now has evidence which proves that he did not commit the offence, that Ms E was lying and that he won a civil action for malicious falsehood against her. He further submits that the order that the charges lie on the file was wrong in law according to Archbold (on criminal practice and procedure, the applicant referring to the 1998 edition at paragraph 4-191) and the above-cited case of ex parte Spens.
2. The Court’s assessment
The Court recalls that there is no right under Article 6 of the Convention to a particular outcome of criminal proceedings or, therefore, to a formal conviction or acquittal following the laying of criminal charges (the above-cited Deweer v. Belgium judgment, § 49 referring to the Commission’s report of 5 October 1978, Series B no. 33, § 58).
The question remains, however, whether those criminal proceedings can be considered to be still pending against the applicant as he claims and, consequently, whether there has been a violation of his right to a determination of criminal charges within a “reasonable time”. The parties disagree on the question of whether the order of the Crown Court of 19 January 1993 leaving the charges on the file put an end to the criminal proceedings against the applicant.
The Court recalls that one of the purposes of the right to trial within a reasonable period of time is to protect individuals from “remaining too long in a state of uncertainty about their fate” (Stögmüller v. Austria, judgment of 10 November 1969, Series A no. 9, § 5).
Accordingly, criminal proceedings are said to have begun with “the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence”, a definition that also corresponds to the test of whether “the situation of the [suspect] has been substantially affected” (Eckle v. Germany, judgment of 15 July 1982, Series A no. 51, § 73). The Court considers therefore, and indeed it is not disputed, that the criminal proceedings against the applicant began with his arrest on 6 August 1992 by the police since this was his first official notification of an allegation that he had committed a criminal offence.
Conversely, it is also the case that such proceedings would end with an official notification to the accused that he or she was no longer to be pursued on those charges such as would allow a conclusion that the situation of that person could no longer be considered to be substantially affected (X v. the United Kingdom, no. 8233/78, Commission decision of 3 October 1979, §§ 64 and 65, unreported). This end is generally brought about by an acquittal or a conviction (including a conviction upheld on appeal). The Court also recognised, in the above-cited Deweer case by reference to the Commission Report, that proceedings could end through a unilateral decision taken in favour of the accused including when the prosecution formally decided not to prosecute and when the trial judge terminated the proceedings without a ruling. More recently, the Court has found that criminal proceedings ended when the prosecution informed the accused that it had discontinued the proceedings against him (Slezevicius v. Lithuania, no. 55479/00, § 27, 13 November 2001, unreported) and when a domestic court found that an accused was unfit to stand trial by reason of his psychiatric condition (Antoine v. the United Kingdom, (dec.) no. 62960/00, ECHR 2003-...), even though in both cases there remained a theoretical possibility that the accused could one day be proceeded against on the relevant charges.
As to whether the present proceedings can be considered to have ended by a court order leaving charges on the file, the Court recalls that the Commission found that such an order ended criminal proceedings for the purposes of Article 6 § 1 where the prosecution had undertaken not to proceed with the charges or where it was the settled practice of the prosecution authorities not to do so (X v. the United Kingdom, cited above, R.F. and A.F. v. the United Kingdom, no. 3034/67, Commission decision of 19 December 1967, unpublished, and Mackell v. the United Kingdom, no. 9550/81, Commission decision of 1 March 1983, unreported). However, in the first case, the prosecution had undertaken not to proceed with the charges in the future and the latter two cases concerned the more common situation where an accused had been convicted of one offence and it was not intended to pursue the remaining charges which were left on the file unless the conviction was overturned on appeal. Neither situation presented in the instant case.
Turning therefore to the Crown Court order of 19 January 1993 leaving the charges on the file, the Court notes, on the one hand, that there remained a theoretical possibility of the prosecution proceeding on the charges against the applicant in the future. Further, in the light of the trial judge’s comments of 19 January 1993, enabling a prosecution to be brought on the charges in the future could be seen as his reason for making the order he did. Consistently, on that date there was no prosecution undertaking that the charges would not be proceeded with.
On the other hand, according to domestic law and practice, the prosecuting authorities would have had to apply to the Crown Court to resurrect the proceedings and a hearing would have been held during which that court would have been obliged to consider that application according to certain criteria including the fairness of re-opening the case and whether an excessive period had passed since the charges had been ordered to lie on the file. The applicant would have been entitled to be represented at any such hearing and would have been able to make submissions as to why the charges should not be pursued. Thereafter, the Crown Court would have had to decide whether or not to allow the prosecution to resurrect the charges against the applicant. Importantly, it is only in exceptional circumstances that a charge ordered to lie on the file is later pursued and, indeed, the applicant did not refer to one such case in his application.
It is true that the trial judge effectively chose on 19 January 1993 not to enter a verdict of “not guilty” according to section 17 of the 1967 Act but rather to leave the charges to lie on the file and he accompanied this with an express warning that the charges would be resurrected if there was any “repetition of the alleged events contained on the indictment”. However, as a matter of domestic law, any indications so given by the trial judge’s order on 19 January 1993 concerning his view as to a possible future renewal of prosecution on the relevant charges were not determinative of that question: the matter was one for the Crown Court to determine at a future date on the basis of a specific application to it and according to both parties’ submissions and the requirements of fairness. Accordingly, in assessing whether the applicant was “substantively affected” by the proceedings after 19 January 1993, the Court does not consider that the applicant can rely on the course chosen or the comments of the trial judge.
In all of the above these circumstances, the Court considers that the order leaving the charges on the file could be considered to have ended the criminal proceedings against the applicant for the purposes of Article 6, even if there was no undertaking by the prosecution on 19 January 1993 not to pursue the charges later so that there remained a theoretical possibility of their later resurrection. The applicant’s submission that he nevertheless suffered psychological stress after 19 January 1993 cannot mean that he could be reasonably or objectively considered to have been “substantially affected” by those charges when there was no indication after that date from any relevant public authority that the charges would be again resurrected and pursued against him. Any separate issue under Article 6 that a public authority (social services) took action (restricting his contact with his children) in the light of the charges on the file concerning indecent assault of children, is, in any event unsubstantiated: he has not provided any evidence that any action taken by the local authority in respect of his children resulted from the fact that the relevant criminal charges were lying on the file.
Consequently, the Court considers that, for the purposes of Article 6 of the Convention, the criminal proceedings were brought to an end by the order of 19 January 1993.
The subsequent facts of the case support this conclusion: the prosecution confirmed to the applicant on 22 June 1998 that it had no intention of proceeding with the charges and could not envisage any circumstances in which it would do so. The prosecution therefore requested the trial court (on 27 July 1998) to re-list the matter so that a formal “not guilty” verdict could be entered. Domestic law and practice indicates that thereafter it would have been an abuse of process to pursue the charges against him.
Given its conclusion that the proceedings ended on 19 January 1993, the Court consequently finds that the introduction on 6 April 2000 of a complaint about the length of those proceedings was outside the six-month time-limit for which Article 35 § 1 provides. His unsuccessful applications to the prosecution and to the Crown Court to re-open the proceedings cannot constitute effective remedies capable of interrupting the six-month period. In any event, the last decision on those applications was taken by the Crown Court on 5 August 1998 and his subsequent application for leave to apply for judicial review was insufficient to stop time running thereafter: the High Court rejected the application as not being within its jurisdiction, which conclusion was, as noted above, in accordance with the judgment of the House of Lords in the above-cited case of Re Ashton.
Accordingly, any issue of length of proceedings to which the applicant’s complaint under Article 6 § 1 gives rise was introduced in April 2000 and therefore outside the time-limit set by Article 35 § 1 of the Convention.
B. Article 6 §§ 2 and 3 of the Convention
The applicant complains under these Articles that he has never been allowed to prove his innocence at trial including cross-examining witnesses. Article 6 §§ 2 and 3 provide, in so far as relevant, as follows:
“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 Government submit that the presumption of innocence applied at all times and that insofar as there was no realistic prospect of the resurrection of the criminal proceedings, it could be said that the charges were determined in the applicant’s favour.
The Court considers that these complaints amount to a submission that he should have had a trial and a formal verdict (namely, a conviction or acquittal). However, and as noted above, Article 6 does not guarantee a right to a particular outcome of criminal proceedings or, therefore, to a formal conviction or acquittal following the laying of criminal charges. The presumption of innocence is not, therefore, undermined by the fact that the criminal proceedings against him ended without such a formal verdict.
However, the Court has noted that, in ordering the charges to be left to lie on the file on 19 January 1993, the trial judge stated in court that there was “every likelihood of this court granting leave to resurrect the case if there [was] any repetition of the alleged events contained on that indictment”. Insofar as any such statement could give rise to a separate issue under Article 6 § 2, it was introduced in April 2000 and therefore also outside the time-limit set by Article 35 § 1 of the Convention: whether or not the actions undertaken by him and ending in August 1998 could be considered effective remedies in respect of the trial judge’s comments noted above, his subsequent application for leave to apply for judicial review was insufficient to stop time running, involving as it did an application to a court which did not have jurisdiction to consider it (see, the House of Lords judgment in the above-cited case of Re Ashton.).
The applicant’s complaint concerning a right under Article 6 to a particular outcome of criminal proceedings is inadmissible as manifestly ill-founded and should be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. His complaints giving rise to separate issues under Article 6 §§ 1 and 2 concerning the length of criminal proceedings against him and the comments of the trial judge on 19 January 1993 have been introduced outside the time-limit set by Article 35 § 1 of the Convention and should be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O’Boyle Matti Pellonpää
WITHEY v. THE UNITED KINGDOM DECISION
WITHEY v. THE UNITED KINGDOM DECISION