FERNIE v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, Mr D. Fernie, is a United Kingdom national who was born in 1966 and lives in Lincoln. He is represented before the Court by Tuckers Solicitors, practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant was a second-hand car dealer in Lincoln. In 1996 he became a self-employed trade buyer for Deans of Nottingham, a specialist dealer in high performance cars. On 29 September 1997 the applicant was arrested on suspicion of theft of money from Deans of Nottingham and he was later charged with false accounting. The prosecution’s case was that the applicant had created fictitious invoices which showed purchases of non-existent cars for which he paid himself with cheques drawn on Dean’s bank account, and pocketed the proceeds. When the applicant was first arrested, he was bailed but not charged. He had not denied that the invoices were false but claimed that everything had been done with the knowledge of Nigel Dean. On 15 December, the applicant was interviewed again. On 5 April 1998 the applicant was again bailed. On 21 September 1998 he had further interviews with the police but he was still not charged. On 22 March 1999 he was interviewed. On 27 April 1999 the applicant was finally formally charged with fourteen counts of false accounting and one of theft of £370,000. On 8 June 1999 the applicant appeared at the magistrates’ court. The matter was adjourned for the defence to consider advance disclosure. On 14 September 1999, the prosecution applied for a six week adjournment to prepare the committal bundles. On 2 and 30 November 1999, they requested further adjournments. The court directed that the papers should be served by 14 December 1999. They were in fact served at 5 pm the day before a court hearing on 5 January 2000. The defence applied for three weeks to consider the papers. On 27 January 2000, the applicant was committed for trial. On 3 July 2000, the applicant was arrested and charged inter alia with fraudulent dealings with Mr Burton, a local farmer who gave the applicant two cheques to purchase some shares in a named company. On 9 March 2001 the committals were joined. In September 2001, the applicant stood trial charged with 19 offences. At the outset of the trial, the trial judge informed counsel that although he had never met Mr Dean some twenty years before he had been acquainted with a former partner of Mr Dean but had not seen him since. He also informed counsel that he lived in the neighbouring village to Mr Burton; he had not met him or spoken to him but was aware that the farmer had property interests in his own village. Counsel made no objection to his continuing the trial. The trial judge started his summing up late in the afternoon of 1 October 2001. That evening, trial counsel and the judge went out for dinner together. The applicant alleges that they all drank ‘copious amounts of red wine and port’ and as a result in court the next day both the judge and the barristers appeared to be unable to function adequately. The judge made over 30 inaccuracies during his summing up as well as making approximately 30 misnaming errors, where he confused the names of the various witnesses and the defendant. During the same summing up, the applicant’s leading counsel wrote ‘cobblers’ on a piece of paper which he held up to show one of the courtroom ushers, causing her to laugh so uncontrollably that she had to leave the courtroom. This disturbed one member of the jury who during a short adjournment complained about the barrister’s conduct, describing it as a ‘mockery.’ The barrister concerned apologised to the court and jury after the judge drew it to his attention. Later, following the applicant’s complaints about his defence counsel, on 12 January 2004, the Professional Conduct and Complaints Committee of the General Council of the Bar decided to bring charges against leading and junior counsel representing the applicant at trial. On 3 October 2001, the applicant was convicted on all counts (seven counts of false accounting, two counts of theft and one count of obtaining a money transfer by deception) and was sentenced to eight years’ imprisonment. On 17 October 2001, the applicant lodged a preliminary appeal against his conviction inter alia on grounds of the errors, misnaming and misstatements of evidence contained within the summing up. He also appealed against his sentence considering it to be manifestly excessive. The applicant disposed of the services of his defence counsel and submitted the final grounds of appeal himself on 11 January 2002. On 17 April 2002, the single judge gave leave to appeal against sentence but refused leave to appeal against conviction. On 24 August 2002 the applicant submitted new grounds of appeal against his conviction concerning a missing personal organiser and tapes of telephone conversations. On 10 October 2002, the Court of Appeal allowed the applicant’s appeal against sentence, reducing the total prison term to six years as more appropriate to the offences. It referred to the delay of four years between arrest and trial but noted that although some of the delay was not his fault he could have avoided a substantial part by pleading guilty. It did not make any reduction for delay. On 12 December 2002, the Court of Appeal considered the applicant’s renewed application for permission to appeal against conviction. They granted leave to appeal concerning the defects in the summing up and on the unused banking documents and jury bundle. On 24-25 June 2003, the Court of Appeal held a hearing on the above grounds. The applicant appeared in person. In its judgment of 25 June 2003, the court rejected the grounds concerning the jury bundle and unused banking documents. As concerned the defects in the summing, it held: “In a well-prepared and carefully delivered summing up mis-statements of the evidence and mis-naming errors should not occur. We all know, however, particularly those of us who are getting older, how easy it is to transpose names. That said, however, this summing up contained far too many errors. But what we have to consider is whether the cumulative effect of these errors casts doubt on the safety of the appellant’s conviction. The question is: are the errors such as to make it reasonably probable that the jury would not have returned their verdicts of guilty if there had been no errors...So far as mis-statements of the evidence are concerned none of them go to the central issues in the case. Had they done so, we would expect alert defence counsel to have asked the judge to correct them. No such application was made. This was, after all, not a long trial and the issues which the jury had to decide were not complicated. So far as mis-naming is concerned, in almost every case the context makes it clear that the judge has transposed the names. It is not as if this was a case in which there was a cast of thousands. Most of the transpositions are between Mr. Dean and Mr. Fernie who were the two principal witnesses on counts 1 to 5. It cannot be said that the jury were confused. They asked no questions and returned swift verdicts. For these reasons, unfortunate though the judge’s errors were, we do not think that they affected or might have affected the outcome of this trial.” On 1 July 2003, the applicant, acting in person, applied to the Court of Appeal for leave to appeal to the House of Lords. On 30 July 2003 the court refused leave or to certify a point of law of general public importance. A notification was sent to the applicant on 31 July 2003. The applicant then applied to the House of Lords. By letter dated 15 October 2003, the Judicial Clerk to the House of Lords acknowledged receipt of his undated letter and pointed out that as his appeal was a criminal matter and the Court of Appeal had not certified that it raised a point of law of general public importance the House of Lords could not entertain any appeal. The clerk concluded: “In these circumstances there is nothing further you need to do to satisfy the requirement, laid down by Article 26 of the ECHR , that all domestic remedies must be exhausted before an appeal can by made to the ECHR. This letter will be accepted by the Court as establishing your compliance with the domestic remedies rule in respect of the jurisdiction of the House of Lords in this litigation.” In subsequent correspondence with the Department for Constitutional Affairs, the applicant complained that the trial judge had been acquainted with Mr Burton, who was a considerable landowner in the village where the judge lived and that they had both attended certain social functions. He also complained that the judge had been acquainted with another complainant, Mr Dean, as he had shown knowledge of Mr Dean and his partner’s business in Nottingham where he had practised in chambers. He further repeated his allegations concerning the consumption of alcohol by the judge and counsel. An inquiry appears to have been carried out. The trial judge wrote a letter dated 16 August 2003 to the Department setting out his response. He pointed out that through an abundance of caution he himself had drawn attention of counsel to his knowledge of two prosecution witnesses and that they had not made any representations concerning his continued involvement in the case. He also stated that the night before the summing-up he had drunk three glasses of wine during dinner with counsel and retired at about 11.30 p.m. : he denied being the worse for drink then or the next day. By letter dated 30 September 2003, the Department replied to the applicant, inter alia referring to the Court of Appeal’s assessment of the case and noting that the applicant’s counsel had confirmed that the judge had not been under the influence of alcohol. They concluded that there was no issue of the judge’s personal conduct that required further investigation. By letter dated 15 January 2004, the Professional Conduct and Complaints Committee of the Bar Council informed the applicant that it had decided that his complaints about counsels’ conduct at his trial should form the subject of an investigation. After a summary procedure hearing on 9 December 2004, the disciplinary proceedings were dismissed.