CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 1997

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 30308/96                       by Ian FAULKNER                       against the United Kingdom           The European Commission of Human Rights (First Chamber) sitting in private on 26 February 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 6 February 1995 by Ian FAULKNER against the United Kingdom and registered on 27 Feburary 1996 under file No. 30308/96;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a British citizen born in 1944. He is a writer and resides in Guernsey. In the proceedings before the Commission he is represented by Mr. Jonathan Cooper, a barrister practising in London.         The facts of the case, as they have been submitted by the applicant, may be summarised as follows:         On 22 June 1989 the Royal Court in Guernsey issued an arrest warrant against the applicant for an offence under section 18 (1) (b) of the Theft (Bailiwick of Guernsey) Law 1983. On 23 June 1989 the applicant was arrested by the Surrey Constabulary in Surrey, England. On 24 June 1989 the applicant's arrest warrant was backed for execution by a judge in Surrey. The applicant claims that, during his detention in Surrey, his repeated requests to have access to a solicitor were refused. He also claims that he was questioned by a police officer who had come from Guernsey.         On 25 June 1989 the applicant was escorted by the above-mentioned police officer to Guernsey where he was detained in the local police station. He was examined and charged with an offence under section 18 (1) (b) of the Theft Law. The applicant claims that the Guernsey police sequestrated his Mercedes car and Blacpain wrist-watch and that these property items have not yet been returned to him.         Upon being charged, the applicant was granted legal representation by the Bailiff - Guernsey's equivalent of Chief Justice. On 26 June 1989 the applicant appeared before a magistrate in Guernsey who ordered his release on bail, on condition that he report to the police every day, that he post a surety of £1,000 and he surrender his passport. At 15.25 on the same day a friend of the applicant deposited the amount fixed for bail at a police station in England.         On 27 June 1989 the applicant's friend was informed by the applicant's daughter that the applicant was still in custody. The applicant's friend contacted the police authorities in Guernsey and was advised that the monies had to be deposited in a bank in Guernsey in the applicant's name. On 28 June 1989 the applicant was taken on foot and hand-cuffed from the prison to a bank in St. Peter's Port where he collected the monies and then to the Crown Office -the Greffe- where he deposited the bail. He was released later on in the evening.         On dates which have not been specified the applicant was charged with three additional offences under section 18 (1) (b) of the Theft Law and an offence   under section 38 (2) (b) of the Protection of Investors (Bailiwick of Guernsey) Law 1987. The applicant requested that he be tried by the Royal Court, which usually deals with the more serious offences, but the prosecution insisted that his trial should take place in a magistrate's court.         The applicant's bail conditions were altered on two occasions, on 15 July 1989 when he attended his daughter's wedding in England and in January 1991 when he went to Oxford to continue his education at Plater College.         On 18 January 1991 the applicant appeared before the Magistrate's Court and pleaded not guilty to the charges under the Theft Law. By letter of 28 January 1991 applicant's counsel informed the applicant that an agreement had been reached with Her Majesty's Comptroller that the charge under the Protection of Investors Law would not be placed before the Magistrate who would examine the four charges under the Theft Law.         On 22 April 1991 the applicant was tried by a Magistrate on the four charges under the Theft Law. On 26 April 1991 he was acquitted and was remanded on conditional bail on the charge under the Protection of Investors Law. The bail conditions were that he post a surety of £500 and that he report to the police on a monthly basis.         According to local custom, after the applicant had been acquitted, his representative decided on the fee that he should be charged. On 30 July 1991 the applicant was asked to pay his lawyer's fees.         On 4 November 1991 Her Majesty's Comptroller wrote to applicant's counsel that no further action would be taken against the applicant regarding the outstanding charge under the Protection of Investors Law.         On an unspecified date, the applicant applied for legal aid with a view to instituting proceedings for unlawful imprisonment against the Surrey Constabulary. His application was refused on the ground that, on the information available, he had no reasonable prospects of establishing liability in the proceedings. The applicant appealed on 10 January 1992. On a date which has not been specified, his appeal was refused.         On 3 April 1992 the outstanding charge against the applicant was formally dismissed by the Magistrate's Court in Guernsey. On 15 February 1993 the applicant was informed by his lawyer that there was no procedure by which he could recover costs incurred in criminal proceedings in Guernsey.         On 12 October 1994 the applicant wrote to Her Majesty's Comptroller to complain that no lawyer in Guernsey would be prepared to represent him because of the fees he still owed to the lawyer who represented him in the criminal proceedings.         On 19 October 1994 Her Majesty's Comptroller advised the applicant that he could not make any constructive comment because the applicant had not indicated the civil matter he wished to pursue, the likely cost of pursuing it and his means and earnings. Moreover, the applicant had not indicated whether he had approached Advocate F (the lawyer who had represented him in the criminal proceedings), with a view to Mrs F's providing the applicant with a letter to the effect that she was   content if the applicant should approach another Advocate, and that that Advocate should represent the applicant, notwithstanding that the applicant had not settled her fee note.         On 28 December 1994 the applicant received the following advice from Her Majesty's Procureur regarding legal aid in criminal proceedings in Guernsey: "In the case of (criminal) proceedings in the Magistrate's Court a person who has very limited assets and income may apply to the Greffe for an Advocate to be allocated on the voluntary Legal Aid Rota Scheme. The Scheme is not a free legal aid scheme. It is run for the benefit of accused persons with very limited assets and means. An Advocate is entitled to make a charge if it appears after conducting a more exhaustive investigation of means and income that an applicant can afford to make payment." Insofar as the applicant considered that the Crown should pay his fee bill, the Procureur made it clear that "neither the Crown nor the States provide funding in such a case."         On 8 February 1995 the applicant held a discussion with Her Majesty's Greffier concerning legal aid. On 9 February 1995 the Greffier wrote to the applicant that, although he did not know the precise nature of the matters the applicant wished to pursue, as the applicant did not wish to divulge them fully to him, he could, nevertheless, inform the applicant that no legal aid was available for the institution of civil proceedings in Guernsey.   COMPLAINTS   1.     The applicant complains that his arrest and detention in Guildford was not in accordance with domestic law, because the warrant for his arrest had not been backed for execution. He also complains that he was not informed by the Surrey Constabulary of the reasons for his arrest. He further complains that he was held in custody for three days before being brought before a judge, something which constituted a breach of national law.   Finally, the applicant complains that, after he had been granted bail, his release from custody was delayed for two days and that on 28 January 1991 he had been made to march hand-cuffed through the crowded streets of St. Peter's Port to collect the bail money himself. He invokes Articles 3 and 5 of the Convention.   2.     The applicant also complains under Article 6 of the Convention that he was refused access to a lawyer while in detention in Guildford, that he was subjected to pressure and duress when examined by a Guernsey police officer in Guildford and in Guernsey, that he was not informed promptly of the nature and cause of the accusation against him, that he did not have adequate time and facilities for the preparation of his defence, that he was not given free legal assistance, since he remains liable for his defence costs, that he could not obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him and that   the criminal proceedings against him were not conducted within a reasonable time.   3.     Finally, the applicant complains under Article 5 paras. 4 and 5 and Articles 6 and 13 of the Convention that he cannot institute proceedings in connection with the above-mentioned complaints. He submits in this connection that his application for legal aid was refused in England. He also submits that no legal aid is available for a civil action for unlawful arrest, imprisonment and malicious prosecution in Guernsey, that there is no police complaints procedure and that judicial review is a remedy unknown to Guernsey law. The applicant further submits that, in any event, no Guernsey lawyer is prepared to act as his representative, because of the fees he still owes the lawyer who represented him in the criminal proceedings. These proceedings "destroyed his livelihood and completely ruined him", given in particular the onerous bail conditions imposed which were not justified by the seriousness of the charges against him and which prevented him from pursuing his career as a company director. Finally, the applicant submits that Guernsey law does not permit a plaintiff to represent himself and that, even if this were not the case, the very complex nature of the complaints he wished to make would require legal advice and support.   THE LAW   1.     The applicant complains about various aspects of his arrest and detention by the Surrey Constabulary and of the impossibility of instituting proceedings in this connection in England. He invokes Articles 5, 6 and 13 (Art. 5, 6, 13) of the Convention.         The Commission recalls that under Article 26 (Art. 26) of the Convention it may only deal with a matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.         The Commission notes that the applicant applied for legal aid in order to institute proceedings for unlawful imprisonment against the Surrey Constabulary and that his application was finally refused early in 1992. However, the applicant did not complain about these matters to the Commission before 6 February 1995. It follows that this part of the application has not been introduced within the six-month period provided in Article 26 (Art. 26) of the Convention and, as a result, it must be rejected as inadmissible in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant complains about various matters allegedly involving the responsibility of the Guernsey police and prison authorities. In particular, he complains under Article 5 (Art. 5) of the Convention that he was held in custody for three days before being brought before a judge and that, after he had been granted bail, his release from custody was delayed for two days. He also complains under Article 3 (Art. 3) of the Convention that on 28 January 1991 he had been made to march hand-cuffed through the crowded streets of St. Peter's Port to collect the bail money himself.         The Commission notes that the applicant claims that, because of the unavailability of legal aid, he cannot institute civil proceedings against the Guersney authorities which could have provided him with redress for at least some of his complaints.         The Commission considers that it cannot, on the basis of the file, determine the admissibility of these complaints and that it is therefore necessary in accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.   3.     The applicant complains under Article 6 (Art. 6) of the Convention about various matters concerning the fairness of the criminal proceedings instituted against him as well as their length.           The Commission notes that the applicant does not claim that there is a remedy to be exhausted for complaints of this nature in Guernsey. The Commission further recalls that the applicant had been charged in Guernsey with four offences under the Theft Law and one offence under the Protection of Investors Law. The applicant was acquitted of the four charges under the theft Law on 26 April 1991. Moreover, the fifth charge under the Protection of Investors Law was finally dismissed on 3 April 1992. However, the applicant did not complain about these matters to the Commission before 6 February 1995.         It follows that this part of the application has not been introduced within the six-month period provided in Article 26 (Art. 26) of the Convention and, as a result, it must be rejected as inadmissible in accordance with Article 27 para. 3 (Art. 27-3) of the Convention.   4.     The applicant complains under Article 6 (Art. 6) of the Convention that, although he has been acquitted, he is still liable under Guernsey law for the cost of defending himself.         The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary in accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.   5.     The applicant complains under Articles 5, 6 and 13 (Art. 5, 6, 13) of the Convention that he cannot institute proceedings against the Guernsey authorities in connection with his arrest, detention and prosecution.         The Commission considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary in accordance with Rule 48 para. 2(b) of the Rules of Procedure, to give notice of this part of the application to the respondent Government.         For these reasons, the Commission,         DECIDES TO ADJOURN the examination of the complaints       concerning the time which lapsed between the applicant's       arrest and his first appearance before the magistrate,       insofar as the responsibility of the Guernsey authorities       is involved, the applicant's release two days after he was       granted bail, the fact that the applicant was taken on foot       and hand-cuffed from the prison to a bank and then to the       Crown Office on 28 June 1989, the applicant's liability for       the costs of his defence and the alleged impossibility of       instituting proceedings in Guernsey.         unanimously,         DECLARES INADMISSIBLE the remainder of the application.      M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                      President to the First Chamber                           of the First Chamber