CASE OF HOWARTH v. THE UNITED KINGDOM
Violation of Art. 6-1;No violation of Art. 3;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
Georg Ress;Nicolas Bratza
7. The applicant is a British citizen, born in 1945. 8. On 17 March 1993 the applicant was interviewed by officers of the Serious Fraud Office in connection with allegations of market rigging, theft and false accounting, alleged to have taken place in the course of the takeover of one company by the company in which the applicant, a chartered accountant, was involved. The alleged offences took place during the period 1990 to 1991. 9. The applicant was further interviewed on 27 April 1993 and 21 June 1993, and was formally charged on 30 July 1993. 10. The applicant’s trial began in October 1994 and on 10 February 1995, after a trial lasting 63 days, the applicant was convicted of conspiracy to defraud and four counts of theft. The proceedings were adjourned for pre-sentence reports, and on 10 March 1995 the applicant was ordered to perform 220 hours community service. He was also ordered to pay compensation of GBP 151,042.36 within two years, with 12 months' imprisonment in default, and was further ordered to pay GBP 20,000.00 towards prosecution costs. 11. The applicant lodged a notice of appeal against conviction on 11 March 1995, and on 5 April 1995, the Attorney General made a reference to the Court of Appeal for a review of the applicant’s sentence under Section 36 of the Criminal Justice Act 1988. In May 1995, the applicant was refused legal aid on financial grounds. 12. On 20 September 1995 the applicant, privately represented, submitted perfected grounds of appeal and his response to the Attorney General’s reference. Leave to appeal against conviction was granted on 20 December 1995. A request for the legal aid position to be reconsidered was refused by a single judge in March 1996. 13. In October 1996, after a summary of the case had been prepared by the Criminal Appeal Office, the case was sent to the Listing Office, and on 20 January 1997 the hearing dates were fixed with counsel’s clerks. 14. On 29 January 1997 the Attorney General served an amended Section 36 reference. 15. The applicant's appeal against conviction was dismissed by the Court of Appeal on 20 March 1997, and on 21 March, the Attorney General's reference was heard by the Court of Appeal. The Court of Appeal found as follows: “We grant leave in respect of each of these applications, as we consider the sentence imposed by Judge Mota Singh in respect of each of the defendants was unduly lenient. (…) Much has been said about the delay in this case. It does indeed seem a very long time. But it has to be borne in mind that much of the delay in the hearing of these applications has resulted from the fact that two of the defendants chose, as was their right, to appeal against conviction. We regard conduct of the sort involved here, that is to say working to create a false market in shares in companies involved in a City takeover, and in order to influence the fate of that takeover, as a very serious matter. Not only may it lead to a fraud on shareholders, but it causes considerable damage to the reputation of the City of London, which is very important to the whole country; and damage to the confidence of the public in its institutions. We consider it very unlikely, therefore, that when such conduct comes before the courts for sentence that a Community Service Order could ever be sufficient punishment. We have no hesitation in concluding that it was inappropriate, that is to say too lenient, in respect of the conduct in this case. True no actual false market was created, but it was not for want of trying.(…) Dealing first with [Mr X]. We view him as the instigator and leader of the operation. In our judgment, the right sentence which should have been passed on him by a trial judge upon conviction, additional to compensation and the costs order, was 3 years’ imprisonment. We now start by taking into account that he did serve the period of community service that he was called upon to serve, and served it well apparently. Next we deduct from the sentence what has come to be known as the ‘discount for double jeopardy’. After those deductions, we arrive at a sentence, to run from today, of 2 years’ imprisonment. We further disqualify him from holding a directorship of a public company for a period of 7 years from today. Turning to [the applicant]. He was an active and powerful second in command. The right sentence in his case, we believe, would have been 30 months’ imprisonment. Again we do the discounting that we did in the case of [Mr X]; and we arrive at a sentence of 20 months’ imprisonment, starting from today. We disqualify him from holding a directorship in a public company for 5 years.” 16. The compensation and costs orders remained. The applicant had already completed the community service to which he had originally been sentenced. 17. In addition to the general regime of appeals against decisions of the Crown Court, the Attorney General may, in certain circumstances and where it appears to him that a sentence of the Crown Court has been unduly lenient, apply to the Court of Appeal for leave to refer the case to it to review the sentence. The principal relevant provisions are to be found in Section 36 of the Criminal Justice Act 1988. An application for leave must be made within 28 days of the sentence. Where the Court of Appeal grants leave, it will consider a sentence “unduly lenient” where “it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate” (Attorney General’s Reference No. 4 of 1989, Cr. App. R(S) 517). The Court of Appeal has also commented that “before this Court granted an application of this sort, it must be shown that there was some error in principle in the judge’s sentence ... that in the absence of a sentence being altered by this Court, public confidence would be damaged ... the Court should only grant leave in exceptional circumstances, and not in the borderline type of case” (Attorney General’s Reference No. 5 of 1989 11 Cr. App. R(S) 489). 18. Where a person’s sentence is increased, an allowance is made to reflect the additional period of anxiety imposed on an offender awaiting a second sentencing hearing.