THE FACTS

The facts of the case, as submitted by the applicant, may be summarised

as follows:

The applicant is a citizen of the United Kingdom. He was born in 1934

in India and is at present serving a 7-year sentence in W. Prison.

On .. July 1970 the applicant was charged by the police with having

conspired with 7 other named men and with other persons unknown to

evade the control of immigration of Commonwealth citizens into the

United Kingdom. More specifically, the applicant was accused of being

the  chief organiser of a conspiracy to bring illegally into the United

Kingdom 40 Indian immigrants. These Indians had left Delhi on .. April

1970 and were discovered by the Police in a cellar in B. on .. July

1970.The trial of the applicant and the 7 other co-accused started at Leeds

Assize on .. November 1970. On .. November 1970 the applicant was

convicted of the charge as laid against him and sentenced to 7 years'

imprisonment.

The applicant applied for leave to appeal against conviction and

sentence and this was eventually granted to him on .. November 1971.

In his grounds of appeal the applicant made several complaints about

the trial proceedings, and in particular the following. He complained:

i.   that the police had planted in his diary the telephone number of

a co-accused and that, although it was proved at the trial that the

handwriting of the number was not the applicant's, the police were not

called upon to produce evidence to show in whose handwriting it was.

The applicant submitted that the judge should not have allowed the

prosecution to adduce this evidence;

ii.  that the Crown withheld statements made by prosecution witnesses

which they had been in possession of for several months and did not

serve them until a few days before the trial, but that nevertheless the

evidence of these witnesses was admitted by the court;

iii. that, after the defence case was closed, the judge allowed the

prosecution to call a witness to rebut evidence given by a prosecution

witness in cross-examination. The applicant argued that the testimony

of this witness should not have been admitted since all the evidence

for both Crown and defence had already been completed.

In its judgment of .. March 1972 the Court of Appeal summarised the

facts which gave rise to the charge against the applicant, as they had

emerged during the course of the trial before the Leeds Assize. The

Court went on to state that the evidence against the applicant had

consisted of general evidence as to the existence and nature of the

conspiracy and in particular of 3 incidents. First, there had been the

evidence as to a visit paid by the applicant and his uncle to Bremen

in Germany in April 1970. Secondly, there had been the evidence of the

applicant and a co-accused trying to recruit a boatman in A. in May of

1970 and, thirdly, there had been the evidence as to a meeting on ..

June when final arrangements for the importation of the immigrants had

been made. The Court stated that by far the most important of those

three matters was the first, namely the visit to Bremen.

The Court of Appeal then dealt at length with the applicant's complaint

that the trial court had allowed the Crown to call a witness after both

the Crown case and the defence had been closed. The Court described the

exceptional circumstances in which this had occurred and, in

particular, that it would have been quite impossible for the witness

to be called any earlier. The Court stated further that after trial

judge had considered the matter, which had been expanded very fully in

the lower court, he had come to the conclusion that in the

circumstances of the case he had a discretion to give leave to the

Crown to call the evidence they required. The Court of Appeal

considered that the exercise of such a discretion in favour of the

Crown must be the rare exception rather than the common rule, but that,

for the reasons which it had given, in the present case the trial judge

had exercised his discretion in a manner which was beyond criticism.

In dismissing the applicant's appeal against conviction, the Court

expressed  its view that the trial was in every way beyond criticism

and that the applicant had been convicted of the charge against him on

an abundance of evidence. Finally, the Court considered and rejected

the applicant's appeal against sentence.

Complaints

The applicant alleges that he did not have a fair trial and in this

respect repeats to the Commission the above complaints i. - iii. which

he made to the Court of Appeal.

The applicant also complains that the sentence of 7 years' imprisonment

imposed on him was unlawful. He alleges that the substantive offence

of which he was convicted was an offence under the Commonwealth

Immigrants Acts 1962 to 1968 for which a fine not exceeding £100 or

imprisonment not exceeding 6 months, or both, is provided. The

applicant states that it was only after the Immigration Act 1971 had

been passed that a penalty of imprisonment of up to 7 years for

assisting illegal entry of immigrants could be imposed, and this Act

came into force several months after the date when the facts relied

upon in the indictment against him took place.

The applicant alleges the violation of Article 6 (1), Article 6 (3) (d)

and Article 7 (1) of the Convention.

THE LAW

1.   The applicant has complained of a violation of Article 6 (1) and

(3) (d) (Art. 6-1, 6-3-d) of the Convention in that he did not have a

fair trial before the Leeds Assize. He alleges in particular that the

police planted the telephone number of a co-accused in his diary; that

the Crown withheld statements made by prosecution witnesses until a few

days before the trial but that the evidence of these witnesses was

nevertheless admitted by the court; also that the judge presiding over

the trial allowed a prosecution witness to be called after the evidence

for both Crown and defence had been completed.

The Commission first finds that none of these complaints relates to the

provisions of Article 6 (3) (d) (Art. 6-3-d) of the Convention which

secures to everyone charged with a criminal offence the right to

examine, or have examined, witnesses against him and to obtain the

attendance and examination of witnesses on his behalf under the same

conditions as witnesses against him.

The Commission has then considered these allegations in the light of

Article 6 (1) (Art. 6-1) of the Convention which provides that, in the

determination of any criminal charge against him, "everyone is entitled

to a fair and public hearing ... by an independent and impartial

tribunal".

With regard to the allegation that the police planted a telephone

number in the applicant's diary, the Commission notes that, from the

documents submitted by the applicant and in particular from the

judgement of the Court of Appeal, it is apparent that during the trial

there had been a substantial amount of evidence against the applicant,

both of a general character and of specific incidents. It appears that

the telephone number was only one element in this evidence and the

Commission is satisfied that, even if the number was planted, as

alleged, this could not have influenced the case against the applicant

to such an extent that it prejudiced his right to a fair hearing within

the meaning of Article 6 (1) (Art. 6-1).

With regard to the complaint that the court admitted the evidence of

certain witnesses, whose statements had only been served a few days

before the trial, the Commission again does not find any indication

that the admission of this evidence made the proceedings inequitable

or in any way prejudiced the applicant's right to a fair hearing.

With regard to the complaint that the trial judge allowed the

prosecution to call a witness after the case for both Crown and defence

was closed, the Commission finds first that it is generally within the

discretion of the competent domestic court to admit a witness if the

court considers that the evidence he will give would be relevant to the

matters in issue. The Commission notes that in the present case the

witness was allowed to give evidence at a stage in the proceedings when

normally no further witnesses could be called. The Commission  notes

also that, as stated by the Court of Appeal, the admission of evidence

at this late stage of the proceedings must be regarded as a rare

exception. The Commission further finds that there were exceptional

circumstances which occurred during the trial and which were described

by the Court of Appeal in its judgment and that the applicant has not

shown that in these circumstances the trial judge should not have

exercised his discretion in favour of the Crown. The Commission is

therefore satisfied that in this respect also the applicant was not

denied the right to a fair hearing.

It follows that this part of the application is manifestly ill-founded

within the meaning of Article 27, paragraph (2) (Art. 27-2), of the

Convention.

2.   The Commission has examined in the light of Article 7 (Art. 7)

of the Convention the applicant's complaint that he was wrongly

convicted and sentenced for conspiracy, whereas the offense which he

had committed, if any, was one which fell under the Commonwealth

Immigrants Acts 1962-1968. Article 7 (1) (Art. 7-1) of the Convention

provides that "No one shall be held guilty of any criminal offence on

account of any act or omission which did not constitute an criminal

offense under national or international law at the time when it was

committed. Nor shall a heavier penalty be imposed than the one that was

applicable at the time the criminal offence was committed". In this

respect the Commission recalls its case-law according to Article 7 (1)

(Art. 7-1) "does not merely prohibit - except as provided in paragraph

(2) (Art. 7-2)- retroactive application of the criminal law to the

detriment of the accused; it also confirms, in a more general way, the

principle of the statutory nature of offenses and punishment ('nullum

crimen, nulla poena sine lege'); and prohibits, in particular,

extension of the application of criminal law  'in malam partem' by

analogy.

Although it is normally for the Commission to ascertain the proper

interpretation of municipal law by national courts, the case is

otherwise in matters where the Convention expressly refers to municipal

law, as it does in Article 7 (Art. 7). Under Article 7 (Art. 7) the

application of the provision of municipal penal law to an act not

covered by the provision in question directly results in a conflict

with the Convention, so that the Commission can and must take

cognisance of allegations of such false interpretation of municipal

law."  (Application No. 1862/63, Yearbook, Vol. 8, pp. 190, 198).

The Commission's supervisory function, therefore, consists in making

sure that, at the moment when the accused person performed the act

which led to his being prosecuted, there was in force a legal provision

which made that act punishable and that the punishment imposed does not

exceed the limits fixed by that provision. In accordance with the

decision quoted above, this supervisory function further consists in

considering whether the national court, in reaching its decision, has

not unreasonably interpreted, and applied to the applicant, the

municipal law concerned.

In the present case it is not disputed that the offence of "conspiracy"

is one that has long existed under common law. Furthermore, the

Commission finds that the United Kingdom court, when convicting and

sentencing the applicant for conspiracy in no way exceeded a reasonable

interpretation of the definition of that crime in holding it applicable

to the facts of the applicant's case.

An examination by the Commission of this particular complaint in the

light of Article 7 (Art. 7) of the Convention does not therefore

disclose any violation of that Article. Nor does the Commission find

that this complaint raises any issue under any other Article of the

Convention. It follows that this part of the application is manifestly

ill-founded within the meaning of Article 27, paragraph (2)

(Art. 27-2), of the Convention.

3.   The same ground of inadmissibility applies to the applicant's

final complaint, that the sentence of 7 years' imprisonment imposed on

him was unlawful and could only lawfully have been imposed on him after

the Immigration Act 1971 had been passed. This complaint also has been

examined by the Commission in the light of Article 7 (Art. 7) of the

Convention. The Commission notes that the applicant does not directly

allege that the provisions of the Immigration Act 1971 were applied by

the court in determining his sentence and that in any event this Act

came into force after the date of his conviction (.. November 1970).

Furthermore, it is clear that the applicant was not convicted of an

offence under the earlier Commonwealth Immigrants Acts but, as he

himself admits, of the crime of conspiracy, for which the penalty of

7 years' imprisonment is permissible under English law.

An examination by the Commission of this complaint as it has been

submitted, including an examination made ex officio, does not therefore

disclose any appearance of a violation of the rights and freedoms set

forth in the Convention and in particular in the above Article.

For these reasons, the Commission DECLARES THIS APPLICATION

INADMISSIBLE