PROCEDURE

The case originated in an application (no. 38081/97) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Jeremy Howarth (“the applicant”), on 17 September 1997.

The applicant was represented by Mr B. Spiro, a solicitor practising in London. The British Government (“the Government”) were represented by their Agent, Mr H. Llewellyn.

The applicant alleged that the delay of two years between his original sentence which was non-custodial and his subsequent custodial sentence, following the Attorney General’s reference of his case to the Court of Appeal for a review of his sentence, amounted to a breach of the “reasonable time requirement” under Article 6 of the Convention and a breach of Article 3.

The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).

The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.

By a decision of 14 September 1999 the Chamber declared the application admissible.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

The applicant is a British citizen, born in 1945.

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.

The applicant was further interviewed on 27 April 1993 and 21 June 1993, and was formally charged on 30 July 1993.

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.

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.

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.

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.

On 29 January 1997 the Attorney General served an amended Section 36 reference.

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.”

The compensation and costs orders remained. The applicant had already completed the community service to which he had originally been sentenced.