CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 21 mai 1998

.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 21 May 1998, the following members being present:             MM    M.P. PELLONPÄÄ, President                N. BRATZA                E. BUSUTTIL                A. WEITZEL                C.L. ROZAKIS           Mrs   J. LIDDY           MM    L. LOUCAIDES                B. MARXER                B. CONFORTI                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 February 1996 under file No. 30308/96;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      18 July 1997 and the observations in reply submitted by the      applicant on 21 November 1997;   -     the further observations submitted by the respondent Government      on 27 February 1998 and the observations in reply submitted by      the applicant on 7 May 1998;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a British citizen, born in England in 1944. He is a writer and resides in Guernsey. In the proceedings before the Commission he is represented by Messrs Jonathan Cooper, Ben Emmerson and Helen Mountfield, all three barristers practising in London.        The facts of the case, as they have been submitted by the parties, may be summarised as follows:   A.    Particular circumstances of the case        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 at 20:29 the applicant was arrested by the Surrey Constabulary in Surrey, England. According to a statement made by the police officer who carried out the arrest, which is contested by the applicant, the applicant was informed that he was suspected of deception. The Surrey police also seized the applicant's car. 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. He arrived at the local police station at 17:55. He was examined and at 20:50 he was charged with an offence under section 18 (1) (b) of the Theft Law. The Guernsey police seized his watch on the ground that it was property which was likely to be the subject of a charge. The watch was never returned to the applicant as it subsequently became the subject of a seizure by H.M. Sheriff in order to satisfy a civil judgment debt obtained against him in the Guernsey courts.        On the morning of 26 June 1989 the applicant appeared before a magistrate in Guernsey. He was represented by a lawyer whom the applicant met in court that day and who offered his services on a voluntary basis. The magistrate ordered the applicant's 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 about 15:30 on the same day, a friend of the applicant deposited the amount fixed for bail at a police station in England. At 17:21 the English authorities officially informed the Guernsey authorities that the money would be transferred to them. However, H.M. Greffier decided that the monies could not be accepted until he had been assured that the applicant's friend had been advised of the consequences of posting the surety.        On 27 June 1989 at about 11:55 the applicant's friend was advised by the Guernsey authorities that a faster means of lodging the surety would be to transfer the monies to a bank in Guernsey in the applicant's name. The friend did that and 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 at 14:35 on 27 June 1989.        After his release, the applicant applied to the H.M. Procureur for legal aid in connection with the criminal proceedings and seven civil law actions recently brought against him. He was not referred to an advocate under the voluntary legal aid scheme. However, according to the Government but contested by the applicant, the applicant was referred to Ms F who agreed to represent him on a private client basis. The applicant claims that he was not informed that, in the event of acquittal, his legal costs would not be recoverable.        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 Government submit that the applicant effectively consented to being tried by the Magistrate's Court by not electing for trial before the Royal Court. The applicant, however, claims that he requested that he should be tried by the Royal Court, which usually deals with more serious offences, but his request was denied.        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, the applicant's counsel informed the applicant that an agreement had been reached with H.M. 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 H.M. 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 H.M. 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 H.M. 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 Ms 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 H.M. 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 H.M. 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.   B.    Relevant domestic law and practice        Legal aid and costs in criminal proceedings        Guernsey law does not provide for a legal aid scheme for criminal proceedings in the Magistrate's Court. However, there exists a scheme whereby a defendant in such proceedings who has limited assets and income, or where the interest of justice otherwise require, may apply to H.M. Greffier for an Advocate to be allocated on the voluntary legal aid rota scheme. The way in which this scheme works is that, once a defendant has been allocated an Advocate under the Scheme, he will receive representation in the criminal proceedings and will not be billed by the Advocate for legal expenses during the course of the proceedings. At the end of the proceedings, if, after a more exhaustive investigation, the Advocate determines that the defendant does, in fact, have sufficient means, he may make a charge for the work carried out. However, if the defendant does not have adequate means, he will not be charged.        No provision is made in Guernsey law for the recovery of the legal costs of a defendant from the prosecution or central funds in the event of an acquittal.        Representation and legal aid in civil proceedings        Guernsey law and practice do not provide for a formal civil legal aid scheme. Proceedings in the Petty Debt Court (for proceedings started on or after 3 April 1984, £1000 was the maximum claimable; for proceedings started on or after 2 February 1997, £2500 is the maximum) can be instituted in person without involving an Advocate. In proceedings before the Royal Court (there is no limit on the amount claimable) the Summons must be signed by an Advocate. Thereafter, a plaintiff may represent himself without the need of an Advocate. Contingency fees and pro bono representation are not excluded in Guernsey.        As to the possibility of instructing an Advocate in civil proceedings when outstanding fees to that or another Advocate have not been paid, it is normal practice amongst Guernsey Advocates not to release their files on request from a client until outstanding fees have been paid. Pursuant to the Guernsey Bar's Rules of Professional Conduct, an Advocate must refuse to act for a person in relation to a matter, if that person owes fees to another Advocate in relation to that or another matter. This rule does not apply, however, where the client has reached an arrangement with his advocate for payment of fees and is complying with that arrangement. Nor would it preclude an Advocate for doing work, such as signing a Royal Court Summons, free of charge.        The Government claim that the fee for signing a Royal Court Summons is relatively low, perhaps no more that £50. They also claim that the informal legal aid assignment scheme run by the Guernsey Bar may be used exceptionally in civil litigation, and certainly to the extent of providing assistance for the preparation and service of the necessary summons.     COMPLAINTS   1.    The applicant complains under Article 5 of the Convention that he was held in custody for three days before being brought before a judge, something which constituted a breach of national law. He also complains under Article 5 para. 4 and 5 that there did not exist any speedy proceedings by which he could challenge the lawfulness of his detention and seek an order for his release in Guernsey.   Moreover, the applicant had originally complained that he was released two days after he had been granted bail. However, in his observations in reply, he accepted that he was released from custody one day after he had been granted bail.   2.    Moreover, the applicant had originally complained under Article 3 of the Convention that on 28 June 1989 he was made to march hand-cuffed through the crowded streets of St. Peter's Port to collect the bail money himself. In his observations in reply, the applicant accepted that this had happened on 27 June 1989.   3.    The applicant further complains under Article 6 of the Convention that, although he has been acquitted, he is still liable under Guernsey law for his defence costs.   4.    Finally, the applicant complains under Articles 6 and 13 of the Convention that he cannot institute proceedings in connection with the above-mentioned complaints.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 6 February 1995 and registered on 27 February 1996.        On   26 February 1997 the Commission decided to communicate to the respondent Government the applicant's 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. It declared the remainder of the application inadmissible.        The Government's written observations were submitted on 18 July 1997, after an extension of the time-limit fixed for that purpose. The applicant replied on 21 November 1997, also after an extension of the time-limit.        On 27 February 1998 the Government submitted further observations in writing. The applicant replied on 7 May 1998.     THE LAW   1.    The applicant complains under Article 5 (Art. 5) of the Convention that he was held in custody for three days before being brought before a judge, something which constituted a breach of national law and that his release from custody was delayed for a further day after he had been granted bail. He also complains under Article 5 para. 4 and 5 (Art. 5-4, 5-5) that there did not exist any speedy proceedings by which he could challenge the lawfulness of his detention and seek an order for his release in Guernsey. Moreover, the applicant complains under Article 3 (Art. 3) of the Convention that on 27 January 1991 he was made to march hand-cuffed through the crowded streets of St. Peter's Port to collect the bail money himself. Finally, 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 his defence costs.        The Government contend that these complaints have not been submitted within the six-month time-limit of Article 26 (Art. 26) of the Convention. In his observations in reply the applicant does not contest this. He also contends that he does not seek to establish these violations "as individual substantive claims", but as background to the ongoing violation of his right of access to a civil court in determination of his rights, contrary to Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention.        The Commission notes that the applicant has in essence withdrawn his complaints taken by themselves concerning the time which lapsed between his arrest and his first appearance before the magistrate, insofar as the responsibility of the Guernsey authorities was involved, the alleged absence of speedy proceedings by which he could challenge the lawfulness of his detention and seek an order for his release in Guernsey, the alleged delay in his release after he had been granted bail, the fact that he was taken on foot and hand-cuffed from the prison to a bank and then to the Crown Office on 27 June 1989 and his liability for the costs of his defence (while maintaining that the lack of criminal legal aid had an intimate causal connection with his deprivation of access to a civil court contrary to Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention). The Commission considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of these complaints.        It follows that, insofar as the above complaints are concerned, the application may be struck off the list of cases pursuant to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention.   2.    Originally the applicant complained under Article 13 (Art. 13) of the Convention that he did not have a remedy in respect of the above complaints, including the complaint concerning his liability for the defence costs.        However, in his observations in reply, the applicant did not contend that his continued liability for his defence costs amounts to a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention in itself.        As a result, the Commission considers that the applicant has in effect withdrawn his complaint under Article 13 (Art. 13) of the Convention concerning the absence of a remedy in this connection. Moreover, the Commission considers that respect for Human Rights as defined in the Convention does not require it to continue the examination of this complaint.        It follows that, insofar as this complaint is concerned, the application may be struck off the list of cases pursuant to Article 30 para. 1 (a) (Art. 30-1-a) of the Convention.   3.    The Commission will next examine the applicant's contention that he did not have an effective remedy under Article 13 (Art. 13) of the Convention for his complaints concerning the time which lapsed between his arrest and his first appearance before the magistrate, insofar as the responsibility of the Guernsey authorities was involved, the alleged absence of speedy proceedings by which he could challenge the lawfulness of his detention and seek an order for his release in Guernsey, the alleged delay in his release after he had been granted bail and the fact that he was taken on foot and hand-cuffed from the prison to a bank and then to the Crown Office on 27 June 1989.        Article 13 (Art. 13) of the Convention provides as follows:        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Government argue that this complaint has not   been submitted within the six-month time-limit, which must be calculated from 26 June 1989 as far as the alleged lack of remedies for the delay in bringing him before a court is concerned and from 27 June 1989 as far as the alleged lack of remedies for the complaints of delays in releasing the applicant and his being handcuffed is concerned. They also submit that the applicant could have instituted civil proceedings for wrongful arrest, false imprisonment, malicious prosecution and battery and obtained a remedy in damages.        In any event, the Government argue that the applicant was brought promptly before a judge, given that he was arrested in another jurisdiction on a Friday evening, and that he was released once the bail monies had been deposited with the Greffe. Handcuffing the applicant was a reasonable and proportionate step. Moreover, the applicant could not complain of a breach of Article 5 para. 4 (Art.   5-4) of the Convention after his release. Finally, since there was no violation of Article 5 paras. 3 and 4 (Art. 5-3, 5-4), the applicant could not invoke Article 5 para. 5 (Art. 5-5) of the Convention.        The applicant submits that his arrest, handcuffing and detention gave rise to an arguable claim for the purposes of Article 13 (Art. 13) of the Convention. They also gave rise to causes of action in Guernsey law for false imprisonment, assault and battery. Such actions could have been brought at the latest on 27 June 1995. The application was lodged on 6 February 1995, i.e. within the six-month time-limit of Article 26 (Art. 26) of the Convention.        To substantiate his contention that he has an arguable claim for the purposes of Article 13 (Art. 13) of the Convention, the applicant submits that he was not returned to Guernsey with all due expedition. In view of the fact that there are 16 flights a day from London to Guernsey, the applicant submits that a delay of nearly 48 hours in returning him was not reasonable. He also maintains that he should have been released on 26 June 1989 when his friend deposited the bail monies. The bank to which the applicant was taken on 27 June 1989 could be reached by car. As a result, there was no need to march the applicant handcuffed through the streets of St. Peter's Port.        The Commission considers that it is not necessary to examine whether this complaint has been raised within the six-month time-limit of Article 26 (Art. 26) of the Convention. The Commission recalls that the right to an effective remedy can only be claimed by someone who has an arguable claim to be a victim of a violation of a right recognised by the Convention (No. 10427/83, Dec. 12.5.86, D.R. 47, p. 85). The Commission, having struck off its list the alleged violations of Articles 3 and 5 (Art. 3, 5) of the Convention, considers that these complaints do not give rise to "an arguable claim" for the purposes of Article 13 (Art. 13) of the Convention. It follows that no appearance of a violation of the above-mentioned provision is disclosed in this connection.        The Commission, therefore, considers that this part of the application is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   4.    The applicant complains under Articles 6 para. 1 and 13 (Art. 6-1, 13) of the Convention that he cannot institute civil proceedings against the Guernsey authorities and that he has no remedy in this connection.        Article 6 para. 1 (Art. 6-1) of the Convention provides as relevant:        "In the determination of his civil rights and obligations ...      everyone is entitled to a ... hearing ... by a ... tribunal      established by law."        The Government accept that an action for wrongful arrest or false imprisonment or battery or malicious prosecution would have involved a determination of civil rights and obligations. Although the limitation period appears still to be running in connection with such an action, the Government argue that this complaint has not been submitted within the six-month time-limit. In this connection they refer to their arguments concerning the complaint under Article 13 (Art. 13) of the Convention.        In any event, the Government contend that the applicant has not demonstrated that he had insufficient means to pay for legal services in connection with possible civil proceedings. Moreover, given the shortness of the applicant's time in custody and the relatively minor nature of the alleged wrongful use of handcuffs, the quantum of any damages claim was likely to have fallen below £1,000. As a result, it should have been introduced before the Petty Debts Court where proceedings can be instituted without an Advocate. The facts concerning the applicant's arrest and release from custody were straightforward and the applicant was an articulate businessman who was capable of presenting his case to the court without legal representation.        Moreover, the Government argue that, even if the case had to be introduced before the Royal Court (where the fee for signing the Summons is perhaps no more than £50), the applicant has not demonstrated that he had reasonable prospects of success in any claim which he might have wished to bring, since the authorities acted throughout in a lawful and reasonable manner in accordance with the Convention. In this connection, the Government stress that the applicant's application for legal aid in England to take proceedings against the English police was rejected on the ground that the applicant did not have reasonable prospects of success and that this decision was upheld on appeal. In any event, although the applicant owed fees to Ms F and had ceased to pay them by instalments as agreed, the Guernsey Bar's Rules of Professional Conduct would not preclude an Advocate from signing a Royal Court Summons free of charge. The applicant could have prepared such a summons himself. Then he would have been allowed to represent himself.        The applicant submits that his application has been lodged within the six-month time-limit of Article 26 (Art. 26) of the Convention. He refers in this connection to his arguments concerning the complaint under Article 13 (Art. 13) of the Convention.        The applicant further submits that he wished to introduce an action for false imprisonment, assault and battery. Had his action succeeded, the damages he would have recovered would have been substantially over £1,000. The applicant had a tenable claim with reasonable prospects of success which had to be brought before the Royal Court where he could not appear without a legal representative. However, the criminal proceedings against the applicant have rendered him impecunious and in Guernsey there is no legal aid system for civil cases. Moreover, there is no remedy in this respect. In any event, no Advocate in Guernsey would act for the applicant because of his outstanding debt to the lawyer who represented him in the criminal proceedings and the intended action was so complex that the applicant could not handle it himself. He could not reasonably have discovered that he could ask an advocate to sign the summons and then represent himself. In any event, the mater was too complex for such a course to be followed.        The Commission notes that the application was introduced on 6 February 1995. However, it was on 9 February 1995 that the applicant was authoritatively informed that he could not obtain legal aid for the institution of civil proceedings in Guernsey. Both parties accept that, at that time, it was still possible for the applicant to lodge an action for false imprisonment, assault and battery. It follows that the application has been introduced within the six-month period provided for in Article 26 (Art. 26) of the Convention.        The Commission has had regard to the parties' other arguments. It considers that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as being manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention, and no other ground for declaring it inadmissible has been established.      For these reasons, the Commission,        unanimously,      DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES      insofar as it concerns the applicant's complaints about the time      which lapsed between his arrest and his first appearance before      the magistrate, insofar as the responsibility of the Guernsey      authorities was involved, the alleged absence of speedy      proceedings by which he could challenge the lawfulness of his      detention and seek an order for his release in Guernsey, the      alleged delay in his release after he had been granted bail, the      fact that he was taken on foot and handcuffed from the prison to      a bank and then to the Crown Office on 27 June 1989 and his      continued liability for his defence costs;        by a majority,      DECIDES TO DECLARE ADMISSIBLE the applicant's complaints that he      could not institute civil proceedings against the Guernsey      authorities for false imprisonment, assault and battery and that      he did not have a remedy in this connection;        unanimously,      DECIDES TO DECLARE INADMISSIBLE the remainder of the application.          M.F. BUQUICCHIO                        M.P. PELLONPÄÄ         Secretary                             President    to the First Chamber                  of the First Chamber