CASE OF S.C. v. THE UNITED KINGDOM
Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
Matti Pellonpää;Nicolas Bratza
7. The applicant was born in 1988 and lives in Merseyside. 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. In June 1999 the applicant, who had just turned 11, and a 14-year-old boy called “L.A.”, approached an 87-year-old woman in the street. The applicant attempted to take the woman's bag, causing her to fall to the ground and fracture her left arm. The applicant ran away and L.A. stayed with the victim. The applicant was charged with attempted robbery. His defence was that he had acted under duress, having been threatened by L.A. 10. In July 1999, in connection with other offences, he was given a two-year supervision order and was remanded to the care of the local authority and placed with foster parents. 11. In August 1999 the Youth Court, looking at the applicant's offending history, which included offences of robbery, burglary, theft and arson, considered that it might be appropriate to impose a custodial sentence if he were convicted of the attempted robbery, and committed him for trial in the Crown Court. After committal, the applicant's legal representatives obtained two expert reports. The first report was prepared by Dr Ronan Brennan, an adolescent forensic psychiatrist, who was able to talk to the applicant for twenty minutes in September 1999 before the latter terminated the interview. The applicant was also seen by Diane Baines, a consultant clinical psychologist, on 11 October 1999. 12. In his report Dr Brennan observed, inter alia: “Mental state examination [The applicant] sat motionless in the chair throughout my brief interview. He appeared distracted and frequently asked me to repeat my questioning claiming that he could not understand me. He appeared defensive when questioned regarding family circumstances and was vague about his past schooling. He appeared reluctant to discuss his offending behaviour, asking me what point was there discussing it with me. Ultimately, after repeating the statement that he was bored and wanted to eat he informed me that he would not answer any more questions and wanted to leave. Since it was clear that he was resistant to further questioning or probing I consented to his wish. Impression It has been extremely difficult to form a detailed impression of this young man's problems and needs by virtue of his unwillingness to enter into the assessment process and a failure to obtain collateral information regarding his personal development and family background. It is evident from the limited information available that [the applicant] has exhibited a behaviour disturbance from an early age which has resulted in restricted academic progress and alienation from his peers. ... [The applicant's] persistent pattern of disruptive and socially inappropriate behaviour would be consistent with a diagnosis of conduct disorder of the unsocialised type. It would appear from Diane Baines's psychological report ... that [the applicant] has a significant degree of learning difficulties. He has a full scale IQ of 56 (0.2nd centile), a verbal IQ of 63 (1st centile) and a performance IQ of 55 (0.1st centile). These scores would be consistent with his academic underachievement and could be viewed as a consequence of his disrupted schooling. Diane Baines notes that with [the applicant's] cognitive abilities being more consistent with a child of 8 rather than 11, his 'ability to reason is noticeably restricted'. ... It is clear that [the applicant] has complex needs which should ideally be addressed under the provisions of a care order for the foreseeable future. ... It is conceivable that, if a coordinated package of care fails to meet [the applicant's] complex educational and emotional needs, he will potentially pose a high risk of reoffending. At this time however I believe that a long term care order, with a stable foster placement and an appropriate educational package should be considered if an alternative to a custodial sentence were felt viable. Recommendations 1. It is difficult to assess issues concerning [the applicant's] fitness to plead since his discussion of the offence with me was limited. However, based on the information available to me and the findings of the psychological testing I would conclude that [the applicant] on balance was aware of his actions and that they were wrong. His understanding of their consequences however may have been adversely affected by his learning difficulties and impaired reasoning skills. Overall I would consider that [the applicant] is sufficiently capable of entering a plea though obviously the court process would have to be explained carefully in a manner commensurate with his learning difficulties. 2. [The applicant] should be placed on a Supervision Order for as long as possible with a plan to address his emotional and educational needs and reduce his offending behaviour. 3. Long-term foster care should in my opinion be considered in preference to a custodial sentence if this were deemed possible. 4. A copy of Diane Baines's report should be forwarded, with her consent, to [the applicant's] school in order to devise an appropriate educational package to meet his complex needs.” 13. Diane Baines's report, dated 18 October 1999, states as follows: “[The applicant] was seen in the company of his Youth Justice Worker in the outpatient department. He was friendly and cooperative with a reasonable attention span in the individual setting. He generally understood what was required of him although some explanations required repetition and he occasionally needed encouragement to persevere. ... [The applicant] was given the WISC-III [Wechsler Intelligence Scale for Children - 3rd edition), which looks at the development of reasoning skills as applied to both verbal and non verbal problem solving. ... [O]verall, [the applicant] is presenting with a significant degree of learning delay. His Verbal IQ is slightly higher than his Performance IQ, but both fall at or below the first percentile. On the Verbal Scale, [the applicant] gained a score that was only just outside the average range on Digit Span, indicating reasonably good rote memory skills. Consistent with this was his ability to carry out the mental calculations for Arithmetic. His scores on the remaining subtests were more significantly below average, reflecting poorly developed verbal reasoning skills. He found it particularly difficult to define words for Vocabulary, which he did to the level expected of most children aged about 6 years old. In general, [the applicant] experienced more difficulty with the Performance Scale subtests than with those that were language based. His age equivalents on this Scale ranged from below 6 years 2 months at the lowest to 6 years 6 months at the highest. His approach to tasks that were reliant on the appreciation of visuo-spatial relationships was noticeably immature and he did not always attend to the relevant features. [The applicant's] attainments in literacy were looked at using the WORD [Wechsler Objective Reading Dimensions] and it was found that his ability to read and spell individual words out of context were both at levels that would be predicted from his general intelligence. He coped less well than expected with the Reading Comprehension section but this should be interpreted in the context of his disrupted educational career. Summary [The applicant] is currently presenting with a significant degree of learning difficulty that is most apparent in his ability to carry out visually based tasks. ... If looked at in terms of age equivalents, [the applicant's] cognitive abilities cover a range from below 6 years 2 months up to 8 years 2 months, which will mean that his ability to reason is noticeably restricted. ...” 14. There was a pre-trial hearing in December 1999. The applicant's counsel relied on Articles 3 and 6 of the Convention and argued that the trial should be stayed as an abuse of process because of the applicant's low attention span and educational age, which meant that he would be unable fully to understand and participate in the trial. This submission was rejected by the judge, who ruled, inter alia: “I do not accept that placing [the applicant] on trial in the Crown Court amounts to inhuman or degrading treatment or will be unfair. Following the procedures now habitually adopted in Crown Courts when trying children, the trial before the jury will be conducted in as informal a manner as is consistent with the requirements of a fair trial. Legal wigs and robes will not be worn. The issue before the jury will be a simple one. There is no reason to think that [the applicant] will be any less able to give his evidence to the jury than to the Youth Court. On the material before me he appears to be a 'streetwise' child, whose intellectual impairment is largely the result of spending two of his critical formative years outside the education system. I questioned whether there is felt to be a public interest in proceeding with the prosecution, having regard to the fact that [the applicant] is already subject to a two-year supervision order for offences including robberies. I was told that since that order was made on 1 July 1999 (at which time [the applicant] was also taken into local authority care), he has committed (and admitted) a number of other offences. He was placed with foster parents, who in September felt (according to Dr Brennan's report) that he was making some progress. Now, they are unwilling to keep him, finding him uncontrollable. In these circumstances it is entirely understandable that the Crown wish to proceed with the prosecution. Mr Gow also wished to take the point at trial that [the applicant] is unfit to plead. This argument is not supported by Dr Brennan's written report, but I was told that in a subsequent conference with counsel Dr Brennan was equivocal on this point and his oral evidence might support it, although he has not seen [the applicant] since September (when the boy was uncooperative anyway). No supplementary written report has been served. Mr Gow has overlooked the fact that the evidence of two medical practitioners would be needed before a jury could be invited to find his client unfit to plead; also that Mrs Baines is not a medical practitioner. He asked me to vacate [the] trial date to give the defence time to engage a second doctor. I refused this application also, inviting Mr Gow to reflect on whether this point can really be pursued in the light of Dr Brennan's conclusions. If the boy is unfit to plead, then he would presumably have been unfit to plead in the Youth Court, yet the point has apparently never been suggested on his various appearances there. Since this afternoon's hearing I understand from Mr Gow that he has duly reflected and discussed the matter with his instructing solicitors, and does not now intend to pursue the issue of fitness to plead. The trial will therefore proceed on the merits, the issue being duress. ...” 15. At the hearing in December 1999, which lasted one day, the applicant was accompanied by his social worker. He was not required to sit in the dock and the court took frequent breaks and dispensed with the formality of wearing wigs and gowns. The Crown case consisted of two written statements (by the victim of the alleged crime and the arresting police officer) and the oral testimony of two eyewitnesses. The applicant gave evidence that he had committed the offence under duress, and Diane Baines also gave evidence consistent with her report. 16. The applicant was convicted and sentenced to two and a half years' detention. 17. He appealed to the Court of Appeal, inter alia, on the grounds that he had been deprived of a fair trial in view of his age and impaired intellectual capacity. The applicant advanced new evidence before the Court of Appeal, including a statement by the applicant's supervising social worker, who had been with him in the Crown Court, and who said, inter alia: “To address [the applicant's] first appearance [in the] Crown Court, the court was attired in full regalia and [the applicant] was totally perplexed at the rigid formality and surroundings of the Crown Court, and it is my opinion that he did not fully understand the situation. ... [A]t his trial I was pleased to see that the Court was dressed in mufti. Whilst the jury was being sworn in [the applicant] asked me who they all were. I explained in as simple language [sic] a boy of 11 years should understand, that they were members of the public who would have the duty of finding [the applicant] not guilty or guilty. He then said if they were the public why could not his mother sit there to help him. [The applicant] did not have a member of his family in attendance despite efforts made by myself. Whilst the trial was taking place [the applicant] kept turning around to talk to myself asking what was happening. [The applicant] has an extremely short attention span and it is my opinion that his lack of understanding of the formalities of the Crown Court led to the jury observing what could have been misinterpreted as bad behaviour and a 'could not care less' attitude. I believe this also antagonised some jury members when [sic] I observed watching [the applicant] closely. Even when the sentence was passed [the applicant] again did not understand what had been passed or where he was being placed. [The applicant] was under the impression that he would be returning to his foster/remand placement with [his foster father], who was present at Crown Court. Despite my efforts to explain the situation to him [the applicant] did not comprehend the situation he was in. When he was taken to the holding cells awaiting escorts I took time to try again to explain the consequences of his trial and sentence but he was still confused.” 18. On 19 June 2000 the applicant's appeal was dismissed by the Court of Appeal, which refused leave to argue the abuse of process/unfair trial ground, holding that it was clear that the first-instance judge, in exercising his discretion to allow the trial to proceed, had taken account of the applicant's age, level of maturity and intellectual and emotional capacities, and that steps had been taken to promote the applicant's ability to understand and participate in the proceedings. The Court of Appeal also rejected the application for leave to appeal against the sentence imposed. It noted, from a comprehensive report prepared by the unit where the applicant was detained, that there had been great improvements in both the applicant's behaviour and his work and considered that, given the long period of instability in the applicant's life, a settled period of support and education of the kind he was now receiving must be in his best interests. 19. Under section 50 of the Children and Young Persons Act 1933 as amended by section 16(1) of the Children and Young Persons Act 1963 (“the 1933 Act”), the age of criminal responsibility in England and Wales is 10 years, below which no child can be found guilty of a criminal offence. 20. Pursuant to section 24 of the Magistrates' Courts Act 1980, children and young persons under 18 must be tried summarily in the Magistrates' Court, where the trial usually takes place in the specialist Youth Court, which has an informal procedure and from which the general public are excluded. The exceptions are children and young persons charged with murder, manslaughter or an offence punishable if committed by an adult with fourteen or more years' imprisonment, who are tried in the Crown Court before a judge and jury. 21. Under section 44 of the 1933 Act, every court dealing with a child (under 14) or young person (under 18), whether as an offender or otherwise, must have regard to his or her welfare. 22. On 16 February 2000, following the Court's judgments in T. v. the United Kingdom ([GC], no. 24724/94, 16 December 1999) and V. v. the United Kingdom ([GC], no. 24888/94, ECHR 1999-IX), the Lord Chief Justice issued a practice direction concerning the trial of children and young persons in the Crown Court. This practice direction, which was not, however, in force at the time of the applicant's trial, states as follows: “1. This practice direction applies to trials of children and young persons in the Crown Court. Effect should be given to it forthwith. In it children and young persons are together called 'young defendants'. The singular includes the plural and the masculine includes the feminine. 2. The overriding principle 3. Some young defendants accused of committing serious crimes may be very young and very immature when standing trial in the Crown Court. The purpose of such trial is to determine guilt (if that is an issue) and decide the appropriate sentence if the young defendant pleads guilty or is convicted. The trial process should not itself expose the young defendant to avoidable intimidation, humiliation or distress. All possible steps should be taken to assist the young defendant to understand and participate in the proceedings. The ordinary trial process should so far as necessary be adapted to meet those ends. Regard should be had to the welfare of the young defendant as required by section 44 of the Children and Young Persons Act 1933. Before trial 4. If a young defendant is indicted jointly with an adult defendant, the court should consider at the plea and directions hearing whether the young defendant should be tried on his own and should ordinarily so order unless of the opinion that a joint trial would be in the interests of justice and would not be unduly prejudicial to the welfare of the young defendant. If a young defendant is tried jointly with an adult the ordinary procedures will apply subject to such modifications (if any) as the court may see fit to order. 5. At the plea and directions hearing before trial of a young defendant, the court should consider and so far as practicable give directions on the matters covered in paragraphs 9 to 15 below inclusive. 6. It may be appropriate to arrange that a young defendant should visit, out of court hours and before trial, the courtroom in which the trial is to be held so that he can familiarise himself with it. 7. If any case against a young defendant has attracted or may attract widespread public or media interest, the assistance of the police should be enlisted to try to ensure that a young defendant is not, when attending for the trial, exposed to intimidation, vilification or abuse. 8. The court should be ready at this stage (if it has not already done so) to give a direction under section 39 of the Children and Young Persons Act 1933 or, as the case may be, section 45 of the Youth Justice and Criminal Evidence Act 1999. Any such order, once made, should be reduced to writing and copies should on request be made available to anyone affected or potentially affected by it. The trial 9. The trial should, if practicable, be held in a courtroom in which all the participants are on the same or almost the same level. 10. A young defendant should normally, if he wishes, be free to sit with members of his family or others in a like relationship and in a place which permits easy, informal communication with his legal representatives and others with whom he wants or needs communication. 11. The court should explain the course of proceedings to a young defendant in terms he can understand, should remind those representing a young defendant of their continuing duty to explain each step of the trial to him and should ensure, so far as practicable, that the trial is conducted in language which the young defendant can understand. 12. The trial should be conducted according to a timetable which takes full account of a young defendant's inability to concentrate for long periods. Frequent and regular breaks will often be appropriate. 13. Robes and wigs should not be worn unless the young defendant asks that they should or the court for good reason orders that they should. Any person responsible for the security of a young defendant who is in custody should not be in uniform. There should be no recognisable police presence in the courtroom save for good reason. 14. The court should be prepared to restrict attendance at the trial to a small number, perhaps limited to some of those with an immediate and direct interest in the outcome of the trial. The court should rule on any challenged claim to attend. 15. Facilities for reporting the trial (subject to any direction given under section 39 of the Act of 1933 or section 45 of the Act of 1999) must be provided. But the court may restrict the number of those attending in the courtroom to report the trial to such a number as is judged practicable and desirable. In ruling on any challenged claim to attend the courtroom for the purpose of reporting the trial the court should be mindful of the public's general right to be informed about the administration of justice in the Crown Court. Where access to the courtroom by reporters is restricted, arrangements should be made for the proceedings to be relayed, audibly and, if possible, visually, to another room in the same court complex to which the media have free access if it appears that there will be a need for such additional facilities. 16. Where the court is called upon to exercise its discretion in relation to any procedural matter falling within the scope of this practice direction but not the subject of any specific reference, such discretion should be exercised having regard to the principles in paragraph 3 above. Appeal and committals for sentence 17. This practice direction does not in terms apply to appeals and committals for sentence, but regard should be paid to the effect of it if the arrangements for hearing any appeal or committal might otherwise be prejudicial to the welfare of a young defendant.” 23. An accused is “unfit to plead” if by reason of a disability, such as mental illness, he has “insufficient intellect to instruct his solicitors and counsel, to plead to the indictment, to challenge jurors, to understand the evidence, and to give evidence” (R. v. Robertson 52 Criminal Appeal Reports 690). The question whether or not a defendant is fit to plead must be decided by a jury upon the written or oral evidence of at least two medical experts. Where a jury has found the defendant unfit to plead, either the same or another jury may be required to proceed with the trial and decide whether the accused did the act or made the omission charged against him as the offence, in which case the court may make a hospital order against him (Criminal Procedure (Insanity) Act 1964, sections 4, 4A and 5). Alternatively, the trial may be postponed indefinitely until the accused is fit to plead.