AS TO THE ADMISSIBILITY OF

Application No. 33221/96

by Michael REID

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting in private on

9 September 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. BÃŽRSAN

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 29 May 1996 by Michael REID against the United Kingdom and registered on 27 September 1996 under file No. 33221/96;

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 national. He was born in 1969 and lives in Romford , Essex. He is represented by Mr S. Marine, solicitor, of Offenbach & Company, London. The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant was arrested and charged on 17 February 1988 of robbing a Mr R. of his gold chain. On 18 February he was remanded in custody. He had allegedly been identified by Mr R. as a person who stole a gold chain.

On 29 March 1988 the committal proceedings took place before the Ilford Magistrates Court. Mr R. gave evidence and described the person who robbed him as being black, pretty tall and having flat-top hair cut. The charges were read and explained to the applicant, who was represented. The applicant was asked whether he wished to say anything in answer to the charge, to which he made no reply. The applicant was also given an opportunity to give evidence and to call witnesses. The applicant was nonetheless committed for trial.

On 4 July 1988 at the trial at Snaresbrook Crown Court, prosecuting counsel recognised the manifest difficulties in the identification evidence, no evidence was offered and the applicant was released.

On 6 June 1994 the applicant issued proceedings against the prosecution claiming damages for negligence. He alleged that the prosecution had failed to take reasonable care in assessing whether there was, at the committal proceedings on 29 March 1988, sufficient evidence against the applicant.

On 3 January 1995 the prosecution issued an application to strike out the applicant`s claim on the ground that it disclosed no reasonable cause of action.

On 9 June 1995 a Deputy High Court Judge struck out the applicant`s statement of claim as disclosing no reasonable cause of action, following the Court of Appeal`s case-law to the effect that there was no general duty of care owed by the Crown Prosecution Service in relation to its prosecutions. The judge was of the opinion that the applicant`s case did involve "a point of law of general importance" and issued a certificate, pursuant to Section 12(3)(b) of the Administration of Justice Act 1969 entitling the applicant to "leapfrog", ie . to directly petition the House of Lords.

On 24 July 1995 the applicant petitioned the House of Lords for leave to appeal. Leave to appeal was refused on 30 November 1996.

COMPLAINTS

The applicant complains, under Article 5 para . 1 (c), that he was unlawfully detained after reasonable suspicion of having committed an offence had ceased (after 29 March 1988). He claims that although he may have been lawfully arrested as the police may have had, at the time of arrest, a reasonable suspicion that he was guilty of theft, the reasonable suspicion clearly ceased when Mr R. gave evidence at the committal proceedings on 29 March 1988.

The applicant further complains under Article 5 para . 3 of the Convention, that his right to a trial within a reasonable time or be released pending trial was violated, and that he has been denied a right to compensation under Article 5 para . 5 of the Convention.

The applicant also contends that he has been denied access to courts, in contravention of Articles 6 para . 1 and contends that the limitation imposed by the immunity does not achieve a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 29 May 1996 and registered on 27 September 1996.

On 17 November 1997 the Rapporteur , pursuant to Rule 47 para . 2 of the Commission's Rules of Procedure, requested information from the respondent Government.

The Government's information was submitted on 19 December 1997, after an extension of the time-limit fixed for that purpose.  The applicant commented on

2 February 1998.

THE LAW

1. The applicant alleges a violation of Article 5 para . 1 (c) and para . 5 of the Convention.  He claims that at the committal proceedings on 29 March 1988 there was no "reasonable suspicion" that he committed robbery, and that no right to compensation existed in respect of the alleged violation of Article 5 para . 1 (c). He also complains under Article 6 of the Convention that he has been denied access to courts, as his action for negligence against the prosecution had been struck out.

The Commission considers that it cannot, on the basis of the applicant`s submissions, 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 communicate this part of the application to the respondent Government.

2. The applicant further complains under Article 5 para . 3 of the Convention that his right to trial within a reasonable time or be released was violated.

Article 5 para . 3 of the Convention reads as follows:

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial.  Release may be conditioned by guarantees to appear for trial."

The Commission notes that the applicant was released, and the criminal proceedings ended, on 4 July 1988.  Whatever the position is in respect of the complaint under Article 5 para . 3, there can be no doubt that the action for negligence was wholly unrelated to the complaint that the applicant was detained before trial for an unreasonable time.

The six months period referred to in Article 26 of the Convention therefore began to run on 4 July 1988, whereas the application was only introduced on 29 May 1996.

It follows that this part of the application must be declared inadmissible for non-compliance with the six months rule, in accordance with Article 27 para . 3 of the Convention.

3. The applicant further complains that he has been denied a right to compensation under Article 5 para . 5 of the Convention in connection with Article 5 para . 3.

Article 5 para . 5 of the Convention reads as follows:

"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."

The Commission recalls that the right to compensation presupposes that a violation of one of the other paragraphs of this Article has been established, either by a domestic organ or by the Convention organs. In connection with the Article 5 para . 3 complaint, no such violation has been established. Consequently, Article 5 para . 5 of the Convention is not applicable to this part of the application.

This part of the application must therefore be rejected as incompatible ratione materiae in accordance with Article 27 para . 2 of the Convention.

For these reasons, the Commission

DECIDES TO ADJOURN the examination of the applicant's complaints that he was deprived of access to court in relation to his claim for damages for negligence by the prosecution, that his detention was unlawful, and that he had no right to compensation in respect thereof;

by a majority,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO   M.P. PELLONPÄÄ

   Secretary               President

           to the First Chamber                 of the First Chamber