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