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You are here: BAILII >> Databases >> European Court of Human Rights >> STANFORD v. THE UNITED KINGDOM - 16757/90 [1994] ECHR 6 (23 February 1994) URL: http://www.bailii.org/eu/cases/ECHR/1994/6.html Cite as: [1994] ECHR 6

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In the case of Stanford v. the United Kingdom*,

The European Court of Human Rights, sitting, in accordance

with Article 43 (art. 43) of the Convention for the Protection of Human

Rights and Fundamental Freedoms ("the Convention") and the relevant

provisions of the Rules of Court, as a Chamber composed of the

following judges:

Mr R. Ryssdal, President,

Mr Thór Vilhjálmsson,

Mr F. Matscher,

Mr L.-E. Pettiti,

Mr J. De Meyer,

Mr R. Pekkanen,

Sir John Freeland,

Mr J. Makarczyk,

Mr D. Gotchev,

and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy

Registrar,

Having deliberated in private on 29 October 1993 and

25 January 1994,

Delivers the following judgment, which was adopted on the

last-mentioned date:

_______________

* Note by the Registrar : The case is numbered 50/1992/395/473. The

first number is the case's position on the list of cases referred to

the Court in the relevant year (second number). The last two numbers

indicate the case's position on the list of cases referred to the Court

since its creation and on the list of the corresponding originating

applications to the Commission.

_______________

PROCEDURE

1. The case was referred to the Court by the European Commission

of Human Rights ("the Commission") on 11 December 1992, within the

three-month period laid down by Article 32 para. 1 and Article 47

(art. 32-1, art. 47) of the Convention. It originated in an

application (no. 16757/90) against the United Kingdom of Great Britain

and Northern Ireland lodged with the Commission under Article 25

(art. 25) on 8 January 1990 by a British citizen, Mr Bryan Stanford.

The Commission's request referred to Articles 44 and 48

(art. 44, art. 48) and to the declaration whereby the United Kingdom

recognised the compulsory jurisdiction of the Court (Article 46)

(art. 46). The object of the request was to obtain a decision as to

whether the facts of the case disclosed a breach by the respondent

State of its obligations under Article 6 para. 1 (art. 6-1) of the

Convention.

2. In response to the enquiry made in accordance with

Rule 33 para. 3 (d) of the Rules of Court, the applicant stated that

he wished to take part in the proceedings and designated the lawyer who

would represent him (Rule 30).

3. The Chamber to be constituted included ex officio

Sir John Freeland, the elected judge of British nationality

(Article 43) (art. 43), and Mr R. Ryssdal, the President of the Court

(Rule 21 para. 3 (b)). On 29 January 1993, in the presence of the

Registrar, the President drew by lot the names of the other seven

members, namely Mr Thór Vilhjálmsson, Mr F. Matscher, Mr L.-E. Pettiti,

Mr J. De Meyer, Mr R. Pekkanen, Mr J. Makarczyk and Mr D. Gotchev

(Article 43 in fine of the Convention and Rule 21 para. 4) (art. 43).

4. As President of the Chamber (Rule 21 para. 5), Mr Ryssdal,

through the Registrar, consulted the Agent of the Government of the

United Kingdom ("the Government"), the applicant's lawyer and the

Delegate of the Commission on the organisation of the proceedings

(Rules 37 para. 1 and 38). In accordance with the order made in

consequence, the Registrar received on 29 June 1993 the Government's

memorial and, on 22 July, the applicant's. On 21 October 1993 the

applicant's submissions on Article 50 (art. 50) were received.

5. In accordance with the President's decision, the hearing took

place in public in the Human Rights Building, Strasbourg, on

27 October 1993. The Court had held a preparatory meeting beforehand.

There appeared before the Court:

(a) for the Government

Mr I. Christie, Foreign and Commonwealth Office, Agent,

Mr P. Havers, Barrister-at-law Counsel,

Mr J. Watherston, Lord Chancellor's Department,

Ms A. Jenkins, Lord Chancellor's Department, Advisers;

(b) for the Commission

Mr F. Martinez, Delegate;

(c) for the applicant

Mr M. Clare, Counsel,

Mr G. Platt, Solicitor.

The Court heard addresses by Mr Martinez, Mr Clare and

Mr Havers as well as replies to its questions.

6. On 3 November 1993 the Government submitted their reply to the

applicant's Article 50 (art. 50) submissions.

AS TO THE FACTS

I. The circumstances of the case

7. On 30 March 1988 the applicant, Mr Bryan Stanford, was

committed for trial by jury at the Crown Court in Norwich on seven

counts arising out of his relationship with a young girl: indecent

assault, two counts of rape, unlawful sexual intercourse, kidnapping

and two counts of making a threat to kill. The trial, before a High

Court judge and a jury, lasted six working days between 8 June and

15 June 1988. Throughout the trial the applicant, who sat in a glass-

fronted dock, was represented by solicitor and counsel. His counsel

had been in practice for thirteen years and specialised in criminal

work.

8. On 15 June 1988, having been found guilty of indecent assault,

one count of rape, kidnapping and one count of making a threat to kill,

the applicant was sentenced to a total of ten years imprisonment. He

is currently serving this sentence in Her Majesty's Prison Long Lartin,

in Worcestershire.

9. During the trial evidence was given by, among others, Miss M.,

the alleged victim of the offences who was then fifteen years of age,

as well as her mother and sister. When M. gave evidence the judge

directed that she be moved nearer to himself and the jury since it was

difficult to hear what she was saying.

10. On 27 July 1988 the applicant sought leave to appeal against

his conviction to a single judge of the Court of Appeal (Criminal

Division) ("the Court of Appeal") on the ground, inter alia, that at

his trial he could not hear the proceedings. This was refused on

13 September 1988 as there was found to be no merit in any of his

proposed grounds.

11. On 6 October 1988 the applicant renewed his application for

leave to appeal to a full court of the Court of Appeal. He claimed,

inter alia, that he had been unable to hear the original proceedings

as the acoustics in the court had been inadequate. He also submitted

a letter in which the prison officer who had guarded him in the dock

during the trial confirmed that the applicant had on a number of

occasions complained to him of his inability to hear the witnesses.

The letter stated inter alia:

"On at least three occasions I called his solicitor and he

was told the problem. On one of these occasions he told the

[applicant] not to worry as his barrister was doing a good

job. I have to say that I could not hear what the witnesses

were saying."

12. It is not disputed that the applicant was unable to hear some

of the evidence nor that this was communicated to his solicitor,

counsel and the prison officer guarding him. The trial transcript

reveals that the applicant was, however, able to hear the indictment

read out at the beginning of the trial and pleaded "not guilty" to each

of the seven counts put to him.

At no time during the trial was any complaint or

representation made to the court or to any of its officials by the

applicant or his lawyers concerning the claim that he could not hear

the proceedings.

13. The applicant complained to the Solicitors' Complaints Bureau

about, inter alia, the solicitor's failure to take action in respect

of his difficulties in hearing the evidence. In a letter dated

19 December 1988 to the Bureau, the applicant's solicitor commented as

follows on the applicant's claims:

"Mr Stanford's trial was apparently the first case to be

heard at the new Norwich Crown Court building. Throughout

the trial Mr Stanford sat silently in the dock. He told me

that he is someone who has a hearing problem. I assume that

his failure to hear what was said relates mainly to the

evidence given against him by the complainant (M.). The

prosecution allegation was that Mr Stanford had abused,

raped, kidnapped and threatened to kill [the complainant] and

that this conduct had been going on for about two years. She

claimed to have told no one because of her fear of violence

from Mr Stanford and because of threats he allegedly made to

harm her and her family. She spoke in a soft voice and the

judge directed that she should give her evidence sitting at

a table positioned between counsel and the judge. This meant

that she was closer to the jury and her upper body was

therefore visible to the jury rather than obscured by the

witness box. Notwithstanding this she gave her evidence with

her head bowed answering questions often with one word

answers in a soft voice. I was nearer to her than the

defendant. I could hear what she was saying. It is clear

that the jury, the judge and counsel could also hear.

Because of the court layout it would have been difficult for

the defendant to have heard but not impossible if his hearing

had been unimpaired. I had taken full instructions from Mr

Stanford upon the committal papers in the form of a 22 page

statement. Counsel was in my view very well acquainted with

the detail of that statement and put to the complainant all

matters which should have been put. I agree that Mr Stanford

told me and counsel that he could not hear everything that

was being said. Counsel took the view (which I shared) that

as she and the jury could hear and as she would no doubt have

had the opportunity of taking instructions upon any matters

arising which were not contained in her brief, then there was

nothing which needed to be done. It is my view that if Mr

Stanford had been placed close to the complainant and facing

her at the time that she was giving her evidence, then this

would have been viewed by the jury as an indication of the

intimidating behaviour of Mr Stanford about which [M.] was

complaining."

14. On 6 October 1989 the full Court of Appeal refused the

applicant's renewed application for leave to appeal against conviction.

It held, inter alia, as follows:

"We have read the grounds of appeal against conviction upon

which he would seek to rely. There is no substance in any

one of them. We make reference specifically to one, however,

because his complaint is that he did not receive a fair trial

on account, so he puts it, of 'poor acoustics' which

prevented him from hearing the proceedings and the failure of

his representative, that is to say his solicitor, to remedy

that. We have seen a letter from a prison officer relating

to this matter. There would appear to be something in the

complaint of the applicant, namely that he could not hear

properly at all times what was going on. There is no doubt

in our minds, however, that his solicitor and his counsel had

not the slightest difficulty in following the proceedings and

in representing him in a way which could not possibly be

complained about."

15. On 10 November 1989, the applicant was informed by the

Registrar of Criminal Appeals that he could not appeal to the House of

Lords, since he had not had a substantive appeal dismissed by the Court

of Appeal.

16. A similar complaint concerning acoustics in the courtroom in

which the applicant had been tried, and which was in constant use from

the time of its opening in 1988, was made in one other case over a year

after the applicant's conviction. As a result, the landlords of the

court building commissioned a report from a company specialising in

acoustics. This report, dated 8 February 1990, noted that in 1988,

before the building came into use as a court, tests showed that

acoustic design targets had been met. It concluded that a person

speaking from the Bench was intelligible in the front seat of the dock

with the glass screen in position. The report also stated that the

effect of the glass screens upon audibility was not considered to

involve a significant drop in sound level.

Notwithstanding these findings, it was subsequently decided

to instal a reflector panel above the dock to overcome the very small

sound loss which was due to the glass screen.

II. Relevant domestic law and practice

17. In England and Wales, the right of an accused to be present

in court at his trial is a matter of common law. The general rule was

stated by Lord Reading CJ in R. v. Lee Kun (1916) 1 Kings Bench Reports

337, at 341, as follows:

"There must be very exceptional circumstances to justify

proceeding with the trial in the absence of the accused. The

reason why the accused should be present at the trial is that

he may hear the case made against him and have the

opportunity ... of answering it. The presence of the accused

means not only that he must be physically in attendance, but

also that he must be capable of understanding the nature of

the proceedings."

18. A trial judge may, if he considers that the accused in the

dock may intimidate a witness, remove the accused from the presence of

the witness, though not out of hearing (R. v. Smellie (1919) 14

Criminal Appeal Reports 128).

PROCEEDINGS BEFORE THE COMMISSION

19. The applicant lodged his application (no. 16757/90) with the

Commission on 8 January 1990. He complained under Article 6 para. 1

(art. 6-1) of the Convention that as he could not hear the proceedings

which resulted in his conviction he did not receive a fair trial.

20. On 10 February 1992 the Commission declared the applicant's

complaint admissible. In its report of 21 October 1992 drawn up under

Article 31 (art. 31), it expressed the opinion that there had been no

violation of Article 6 para. 1 (art. 6-1) (eleven votes to seven). The

full text of the Commission's opinion and of the two dissenting

opinions contained in the report are reproduced as an annex to this

judgment*.

_______________

* Note by the Registrar: for practical reasons this annex will appear

only with the printed version of the judgment (volume 282-A of

Series A of the Publications of the Court), but a copy of the

Commission's report is available from the registry.

_______________

AS TO THE LAW

21. The applicant complained that he did not receive a fair trial

since he was unable to hear the proceedings. He relied on

Article 6 para. 1 (art. 6-1) of the Convention which provides:

"In the determination of ... any criminal charge against him,

everyone is entitled to a fair ... hearing ... by [a] ...

tribunal ..."

22. The applicant stated that as a result of not being able to

hear the proceedings he was not a fully informed party to counsel's

decisions on the conduct of his case and was deprived of the

opportunity of checking for himself which matters of evidence were

consistent or inconsistent with the written statements against him.

By complaining to the prison officer who was guarding him in the dock,

as well as to his lawyers, he had done all that could have been

expected of him to notify the court. He maintained that he did not

agree with the decision of his lawyers not to make a representation to

the trial judge.

He further submitted that the responsibility of the respondent

Government was engaged since it was the poor acoustics of the courtroom

which were the primary cause of his difficulties in hearing the

proceedings. This was borne out by the decision to instal a reflector

panel above the dock to increase audibility (see paragraph 16 above).

23. The Government, on the other hand, pointed out that the

acoustics of the courtroom were tested both before the court was opened

and in 1990, subsequent to the applicant's complaint. On both

occasions they were found to be satisfactory.

In their view, as well as that of the Commission, the

responsibility of the Government was not otherwise engaged since

neither the applicant nor his lawyers complained or made any

representation to the court about the applicant's hearing difficulties.

Moreover, this was a deliberate and tactical decision by counsel with

which the applicant could be taken to have agreed. Nothing therefore

occurred during the course of the trial which would have put the judge

on notice of this problem.

24. The Court must consider the proceedings as a whole including

the decisions of the appellate courts. Its task is to ascertain

whether the proceedings in their entirety, as well as the way in which

evidence was taken, were fair (see, inter alia, the Edwards v. the

United Kingdom judgment of 16 December 1992, Series A no. 247-B,

pp. 34-35, para. 34).

25. It recalls that it is not in dispute between those appearing

before the Court that the applicant had difficulties in hearing some

of the evidence given during the trial.

26. Nor is it in dispute that Article 6 (art. 6), read as a whole,

guarantees the right of an accused to participate effectively in a

criminal trial. In general this includes, inter alia, not only his

right to be present, but also to hear and follow the proceedings. Such

rights are implicit in the very notion of an adversarial procedure and

can also be derived from the guarantees contained in sub-paragraphs

(c), (d) and (e) of paragraph 3 of Article 6 (art. 6-3-c, art. 6-3-d,

art. 6-3-e), - "to defend himself in person", "to examine or have

examined witnesses", and "to have the free assistance of an interpreter

if he cannot understand or speak the language used in court" (see,

inter alia, the Colozza v. Italy judgment of 12 February 1985, Series

A no. 89, p. 14, para. 27, and the Barberà, Messegué and Jabardo v.

Spain judgment of 6 December 1988, Series A no. 146, p. 33, para. 78).

27. In the present case neither the applicant nor the legal

representatives sought to bring his hearing difficulties to the

attention of the trial judge at any stage throughout the six-day

hearing. It is true that the applicant mentioned these problems to a

prison officer and subsequently to his lawyers (see paragraphs 11 and

12 above). However, the officer was neither a court official nor an

officer of the court. Moreover, counsel, who had lengthy experience

in handling criminal cases, chose for tactical reasons to remain silent

about the difficulties (see paragraphs 11 and 13 above) and there was

nothing to indicate that, as subsequently claimed, the applicant

disagreed with this decision.

28. The State cannot normally be held responsible for the actions

or decisions of an accused's lawyer. It follows from the independence

of the legal profession that the conduct of the defence is essentially

a matter between the defendant and his representatives. The

Contracting States are required to intervene only if a failure by

counsel to provide effective representation is manifest or sufficiently

brought to their attention (see, as the most recent authority, mutatis

mutandis, the Imbrioscia v. Switzerland judgment of 24 November 1993,

Series A no. 275, p. 14, para. 41).

This was not, however, the position in the present case (see

paragraph 27 above).

29. The applicant further maintained that the Government bore

responsibility for the poor acoustics of the courtroom. While this is

undoubtedly a matter which could give rise to an issue under Article 6

(art. 6) of the Convention, the expert reports which were carried out

both before and after the applicant's complaint indicated that, apart

from a minimal loss of sound due to the glass screen, the acoustic

levels in the courtroom were satisfactory (see paragraph 16 above).

30. Finally it must be recalled that the applicant was represented

by a solicitor and counsel who had no difficulty in following the

proceedings and who would have had every opportunity to discuss with

the applicant any points that arose out of the evidence which did not

already appear in the witness statements. Moreover a reading of the

transcript of the trial reveals that he was ably defended by his

counsel and that the trial judge's summing up to the jury fairly and

thoroughly reflected the evidence presented to the court.

31. In addition, the Court of Appeal, which had been seised of the

matter (see paragraph 14 above), could not reasonably have been

expected in the circumstances to correct an alleged shortcoming in the

trial proceedings which had not been raised before the trial judge

(see, in this respect, the above-mentioned Edwards judgment, Series A

no. 247-B, p. 35, para. 39, and the authorities cited therein).

32. In light of the above the Court concludes that there had been

no failure by the United Kingdom to ensure that the applicant received

a fair trial. There has thus been no breach of Article 6 para. 1

(art. 6-1).

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 6 (art. 6).

Done in English and in French and delivered at a public

hearing in the Human Rights Building, Strasbourg, on 23 February 1994.

Signed: Rolv RYSSDAL

President

Signed: Marc-André EISSEN

Registrar