Přehled
Rozhodnutí
AS TO THE ADMISSIBILITY OF
Application No. 17440/90
by Peter WELCH
against the United Kingdom
The European Commission of Human Rights sitting in private on
12 February 1993, the following members being present:
MM. J.A. FROWEIN, Acting President
S. TRECHSEL
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G. H. THUNE
Sir Basil HALL
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. J.-C. GEUS
B. MARXER
G.B. REFFI
Mr. M. de SALVIA, Deputy 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 22 June 1990 by
Peter Welch against the United Kingdom and registered on
19 November 1990 under file No. 17440/90;
Having regard to
- the report provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on 20
February 1992 and the observations in reply submitted by the
applicant on 28 May 1992;
- the observations submitted by the parties at an oral hearing on
12 February 1993;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1938 and is serving
a prison sentence in HM Prison Long Lartin. He is represented before
the Commission by Atter Mackenzie, a firm of solicitors practising in
Evesham. The facts of the case, as submitted by the parties, may be
summarised as follows:
The applicant was arrested on 3 November 1986 for suspected
drugs offences. He was charged on 4 November 1986 in respect of
offences concerning the importation of cannabis alleged to have
occurred between 1 January 1986 and 3 November 1986. On 24 February
1987, the applicant was charged with intent to supply cocaine and on
5 May 1987 a further charge was brought, relating to possession of
cocaine, alleged to have been committed on 3 November 1986.
The applicant made some thirty appearances before magistrates in
order to be remanded in custody pending trial. He alleges that no
particular security measures were taken.
Between 1 June and 11 August 1987, the applicant's committal
proceedings took place before Haverfordwest Magistrates' Court. The
applicant alleges that the proceedings were attended by a high profile
security operation, including dozens of armed policemen wearing bullet
proof vests in the vicinity of the court and the closing of the roads
into the town. The Government state that between November 1986 and
April 1987 intelligence was received concerning a planned escape
attempt involving the applicant and a number of his co-defendants. The
customs authorities had learned from its sources that a large sum of
money was available overseas to finance this escape and that those
planning the escape had access to firearms and the possible use of a
helicopter.
The Government states that the applicant was classified as a
Category A prisoner on 3 April 1987. The applicant states that the
prison records indicate that he was first reported as a potential
Category A on 18 November 1986 but this was not confirmed when he moved
to Cardiff Prison on 2 December 1986. He was noted as a potential
Category A again on 14 April 1987, which was confirmed on 28 April
1987. He continued to be classified as high risk through his trial and
re-trial.
On 23 February 1988 the applicant and nine co-defendants first
appeared for trial at Swansea Crown Court in South Wales. The applicant
alleges that security at the applicant's trial was intense, involving
armed police and the handcuffing of the applicant and certain other
defendants in the courtroom.
Some six weeks into the trial a juror alleged that he had been
offered money to return a "not guilty" verdict. As a result of this
allegation, the judge discharged the jury and ordered a retrial. There
was a great deal of media interest in and coverage of these events.
At the pre-trial review counsel appearing on the applicant's
behalf submitted that the media coverage was prejudicial to his
client's case and argued that the applicant's trial should not take
place in South Wales. This submission was rejected by the judge
presiding at the review and the applicant's trial was listed to take
place in Cardiff in August 1988 with the same judge presiding.
The re-trial began on 20 June 1988. The applicant alleges th
intense security arrangements were, once again, put into effect,
involving the surrounding of the courtroom by police in bulletproof
vests and armed with shotguns and rifles. There was also a helicopter
in use to survey the area from the air and the applicant alleges that
there was a police marksman with a rifle on the roof who was clearly
visible in silhouette through the glass window in the dome of the
courtroom. The Government state that while the applicant was awaiting
his re-trial, the master-key to part of the prison where the applicant
was being held went missing and that also a number of prison officers'
uniforms were found hidden in the vicinity. As a result, the applicant
and the other co-defendants were moved to another prison. Shortly
after the customs authorities received further intelligence that an
associate of the prisoners had been approached to assist in a planned
escape and had been requested to acquire a rope ladder, two-way radios
and a vehicle. The Government confirms that the applicant was escorted
to the court in a secured van with an armed escort and that a
helicopter was used for surveillance. They submit however that in
public the officers kept their weapons concealed and that the judge
ruled that none of them should be present in the courtroom.
The applicant was handcuffed throughout the proceedings following
an application by the prosecution at the beginning of the trial which
was granted by the judge.
On 24 August 1988 the applicant was found guilty on five counts
and sentenced to 22 years' imprisonment in respect of two offences and
20 years' imprisonment in respect of three offences.
The judge also imposed on the applicant a confiscation order of
£66,914 under the Drug Trafficking Offences Act 1986 ("the 1986 Act")
in default of the payment of which the applicant would be liable to
serve a consecutive 2-year prison sentence.
The applicant applied to a single judge of the Court of Appeal
(Criminal Division) for leave to appeal against conviction and
sentence. He was granted leave to appeal against sentence only. His
application for leave to appeal against conviction was lodged outside
the 28 day time-limit. On appearing before the full Court of Appeal on
11 June 1990 the applicant applied for an extension of time so as to
apply for leave to appeal against conviction.
The applicant's reasons for his failure to apply within the
proper time were that, although he had always been dissatisfied with
his conviction, he did not appreciate, until the time-limit for an
application had expired, that the reasons for his dissatisfaction
constituted proper grounds for applying for leave to appeal.
On 11 June 1990, following a hearing at which the applicant was
represented and present,the Court of Appeal held as follows:
"[The applicant's] contention is that the second trial was
conducted in circumstances of strict and, on his submissions
unnecessarily strict, conditions of security.
Both the original trial at Swansea and the subsequent trial at
Cardiff were undoubtedly surrounded with circumstances of great
precaution. There was a police escort to court. There were
armed police around.There was, as we understand it, a helicopter,
and [the applicant] himself was handcuffed in court as he sat in
the dock. He complains that these matters cast such an aura of
suspicion over the whole trial as to deny him, as he puts it, his
presumption of innocence.
The question of course whether a person shall be handcuffed
during the trial is a matter for the discretion of the Judge, and
that is not a discretion which will be exercised adversely to the
defendant in very many cases. But it sometimes has to be done
and sometimes has to be done even in the Court of Appeal when
hearing appeals there.
So far as the precautions outside the court are concerned, those
are of course the responsibility of other authorities than the
Judge and on those occasions no doubt likewise the matter is very
carefully considered before these very expensive precautions are
put into operation.
To suggest that that sort of precaution renders the trial in any
way unsafe or unsatisfactory seems to us to be a wholly wrong
contention. If it were so, then of course the more dangerous the
offender or the more dangerous the appellant, and the more likely
he might be to escape, the less chance there will be of his being
convicted or his appeal being dismissed. That cannot be right.
We have considered this matter carefully. We have come to the
conclusion that there is nothing in this application, nor is
there anything in the grounds that he puts forward for the
extension of time. Consequently both the applications are
refused."
In respect of the applicant's appeal against sentence, the Court
of Appeal reduced the applicant's overall sentence by 2 years and
reduced the confiscation order by £7,000 to £59,914.
RELEVANT DOMESTIC LAW AND PRACTICE
Security classification
Unconvicted or unsentenced prisoners remain unclassified except
for a minority who are provisionally placed in category A. Prisoners
are categorised according to the likelihood that they will seek to
escape, their ability to do so and the risk that they would pose
should an escape attempt succeed. A category A prisoner is defined as
one whose escape would be highly dangerous to the public, the police
or to the security of the state. The Governor of the prison refers the
names of those prisoners he considers should be so classified to the
category A section of the Prison Service Headquarters, which decides
whether or not the prisoner should be provisionally categorised. Save
for those prisoners who have committed very serious offences (in 1987
drug offences were not included in the list), the Governor has a
discretion as to which prisoners should be referred.
The Drug Trafficking Act 1986
Section 1 of the 1986 Act provides as follows:
"(1) ... where a person appears before the Crown Court to be
sentenced in respect of one or more drug trafficking offences
(and has not previously been sentenced or otherwise dealt with
in respect of his conviction for the offence or, as the case may
be, any of the offences concerned), the court shall act as
follows:
(2) the court shall first determine whether he has benefited from
drug trafficking.
(3) For the purposes of this Act, a person who has at any time
(whether before or after the commencement of this Section)
received any payment or other reward in connection with drug
trafficking carried on by him or another has benefited from drug
trafficking.
(4) If the court determines that he has so benefited, the court
shall, before sentencing ... determine ... the amount to be
recovered in his case by virtue of this Section.
(5) The court shall then in respect of the offence or offences
concerned -
(a) order him to pay that amount..."
The Act received the royal assent on 8 July 1986. Its provisions
were brought into force by various orders of the Secretary of State.
With the exception of Section 1(3) (which entered into force on 30
September 1986) Section 1 entered into force on 12 January 1987.
Section 38(4) of the 1986 Act provides:
"References in this Act to offences include a reference to
offences committed before the commencement of section 1 of this
Act; but nothing in this Act imposes any duty or confers any
power on any court in or in connection with proceedings against
a person for a drug trafficking offence instituted before the
commencement of that section."
Imprisonment in default
After a confiscation order has been made, the Crown Court decides
upon the period of imprisonment which the offender has to serve if he
fails to pay. This will not be activated until after such time within
which the Court has ordered the offender to pay. The maximum periods
of imprisonment are set down in Section 31 of the Powers of Criminal
Courts Act 1973. The maximum period for an order between the sums of
50,000 and 100,000 pounds sterling is 2 years.
COMPLAINTS
The applicant complains that the imposition of the confiscation
order in respect of offences which took place between 1 January 1986
and 3 November 1986 violates Article 7 of the Convention since the
relevant provision of the 1986 Act did not enter into force until 12
January 1987. He further complains that the sentence of impri
in default of payment of the sum concerned by the confiscation order
is contrary to Article 7 of the Convention for the same reasons.
The applicant further complains of the security arrangements
which were put into effect when he appeared in the Crown Court and the
fact that he was handcuffed. In addition, he complains that the venue
chosen for his re-trial was close to the place of the first trial and
in light of the media attention given locally prejudiced him in his
defence. He submits the these matters disclose violations of his right
under Article 6 para. 1 to a fair trial and his right under Article 6
para. 2 to be presumed innocent until proved guilty.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 22 June 1990 and registered on
19 November 1990.
On 7 October 1991, the Commission decided to communicate the
application to the respondent Government and to ask for written
observations on the admissibility and merits of the application.
The Government's observations were submitted on 20 February 1992
and the applicant's observations in reply were submitted on
28 May 1992.
On 10 April 1992, the Commission decided to grant legal aid to
the applicant.
On 31 August 1992, the Commission decided to hold an oral
hearing.
At the oral hearing, which was held on 12 February 1993, the
parties were represented as follows:
For the Government:
Mr. Huw LLEWELLYN Agent
Foreign and Commonwealth Office
Mr. Alan MOSES, Q.C. Counsel
Ms. Melanie CARTER Adviser, Home Office
Mr. Peter VALLANCE Adviser, Home Office
For the applicant:
Mr. Ben EMMERSON Counsel
Mr. Jonathan COOPER Assistant
THE LAW
1. The applicant alleges that his rights under Article 7 (Art. 7)
of the Convention were violated by virtue of the fact that the trial
judge imposed upon him a confiscation order and, in default of
compliance with the same, a prison sentence, under the provisions of
the Drug Trafficking Offence Act 1986.
Article 7 (Art. 7) of the Convention provides as relevant:
"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. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
was committed."
The Commission notes that the applicant was convicted of drugs
offences committed between 1 January 1986 and 3 November 1986 and that
a confiscation order, with a 2 year period of imprisonment in default
of payment, was imposed on the applicant under Section 1 of the Drug
Trafficking Offences Act 1986. That section entered into force on 12
January 1987. The parties are agreed that no provisions were in
existence at the time of the offences which provided for the
confiscation measures.
The Government however submit that neither the confiscation order
nor the order for a period of imprisonment in default of payment are
penalties for the purpose of Article 7 (Art. 7) of the Convention.
They submit that the order was divorced from any measure of culpability
and was not by its true nature or object a punishment. It pursued the
purpose of depriving a drug trafficker of property which he ought never
to have had, and of removing the value of the proceeds from possible
future use in drug trafficking. Since the period of 2 years
imprisonment will only be triggered if the applicant fails to pay, the
Government submit it is not a response to criminal activity in the past
and therefore not a penalty for the purposes of Article 7 (Art. 7) of
the Convention.
The applicant submits that the 1986 Act introduced measures of
acknowledged "draconian" effect. The imposition of a confiscation
order constitutes a penalty or punishment within the meaning of Article
7 (Art. 7) of the Convention since it goes beyond depriving a convicted
offender of alleged ill-gotten gains but provides, punitively, for the
confiscation of all deemed drug-related proceeds that have passed
through his hands. The applicant submits that the domestic courts have
treated the measures as constituting a punishment since they apply the
criminal standard for the burden of proof in the drug trafficking
enquiry after conviction and the matter is dealt with on appeal by the
Court of Appeal, Criminal Division. Further, the confiscation order
is dependent on a criminal conviction and attracts, in default of
payment, a period of imprisonment.
The Commission has taken cognizance of the parties' submissions.
After a preliminary examination of the complaints under Article 7
(Art. 7) of the Convention the Commission finds that they raise complex
issues of fact and law which must be examined on the merits. This part
of the application cannot therefore be rejected as being manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other grounds for inadmissibility have been
established.
2. The applicant also complains that his rights under Article 6
paras. 1 and 2 have been violated as a result of the high visibility
security measures surrounding the applicant's appearance in court,
including the handcuffing of the applicant and the decision of the
judge presiding at the applicant's pre-trial review to hold the
applicant's trial in Cardiff Crown Court notwithstanding the fact that
the applicant's original trial in Swansea had had to be abandoned due
to allegations of bribery.
Article 6 para. 1 (Art. 6-1) provides, so far as is relevant,
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 within a reasonable time by an
independent and impartial tribunal established by law..."
Article 6 para. 2 (Art. 6-2) of the Convention provides:
"2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
With respect to the applicant's complaint that his rights were
violated by the decision of the judge presiding at the applicant's
pre-trial review to order that the applicant's trial be held at Cardiff
Crown Court after his original trial at Swansea Crown Court was
abandoned, the Commission considers that the applicant has not shown
that this decision in any way rendered the trial at Cardiff unfair.
The applicant maintains that adverse publicity in Swansea after the
abandonment of his trial there should have precluded his being tried
in a town near Swansea. The Commission notes that it has taken the
view in the past that in some cases a violent press campaign can
adversely affect the fairness of a trial (cf. Nos. 7572/76 etc, Dec.
8.7.78, D.R. 14 p. 64).
The applicant has not however suggested that he has been the
subject of a violent press campaign. Further, the Commission notes
that the applicant has not provided any evidence as to the nature of
the reporting of events at the trial in Swansea Court. He has at most
alleged that the media coverage related to the security arrangements
and to the reason for a re-trial. In these circumstances, the
Commission finds that the applicant has not substantiated that the
matters raised were such as to deprive him of a fair trial or of the
benefit of the presumption of innocence.
With respect to the complaints concerning the various security
arrangements which were put into effect both in and outside the
courtroom, the Commission recalls that this complaint was raised before
the Court of Appeal, which found that the precautions did not render
the trial in any way unsafe or unsatisfactory. The Commission would
agree that the implementation of necessary security arrangements at a
trial cannot in itself be regarded as rendering the proceedings unfair.
The Commission has found no indication on the facts of the case that
the precautions were deliberately stage-managed in order to prejudice
the applicant.
As regards, in particular, the handcuffing of the applicant, the
Commission recalls that it has in previous cases found this to be an
undesirable practice (eg. No. 12323/86, Dec. 13.7.88, D.R.57 p. 148).
The Commission notes however that the applicant, along with
others, was being tried for a series of serious drugs offences. It
also notes that the original trial at Swansea had to be abandoned due
to an allegation from a juror that there had been an attempt to bribe
him so that he could return a verdict of not guilty. Having taken the
above circumstances into consideration, the Commission takes the view
that although the measures complained of may have led the jury to infer
that the applicant was considered by the police and the judge to be
dangerous, it by no means follows, and the applicant has not
established that his right to be presumed innocent was thereby
violated. The Commission recalls that it has already found that "the
passing of a judgment concerning the dangerous character of a person
does not in itself violate the presumption of innocence" (No. 9167/80,
Dec. 15.10.81, D.R. 26 p. 248).
It follows that these complaints must be rejected as 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 ADMISSIBLE the applicant's complaint under Article 7
of the Convention without prejudging the merits;
unanimously
DECLARES INADMISSIBLE the remainder of the application.
Deputy Secretary Acting President
to the Commission of the Commission
(M. de SALVIA) (J.A. FROWEIN)