AS TO THE ADMISSIBILITY OF

                      Application No. 32715/96

                      by K.L.

                      against the United Kingdom

                              __________

      The European Commission of Human Rights (First Chamber) sitting

in private on 22 October 1997, the following members being present:

           Mrs   J. LIDDY, President

           MM    M.P. PELLONPÄÄ

                 E. BUSUTTIL

                 A. WEITZEL

                 C.L. ROZAKIS

                 L. LOUCAIDES

                 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 10 June 1996 by

K.L. against the United Kingdom and registered on 22 August 1996 under

file No. 32715/96;

      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, born in 1953. He is

currently detained in Maidstone Prison in Kent. In the proceedings

before the Commission he is represented by Mr. N. Devine, a solicitor

practising in Leamington Spa.

      The facts of the case, as they have been submitted by the

applicant, may be summarised as follows:

A.    Particular circumstances of the case

      During February and March 1991, the applicant was tried together

with S in the Southwark Crown Court, composed of a judge and a jury,

of being knowingly concerned in the fraudulent evasion of the

prohibition on importation of a controlled drug, heroin, a criminal

offence under section 170 para. 2 of the Customs and Excise Management

Act 1979.

      The prosecution's version of the facts was the following. H, a

Pakistani national and an informer employed by the United States Drugs

Enforcement Agency, met in Pakistan M and A who expressed the idea of

importing heroin into the United Kingdom. Having consulted a British

drugs liaison officer, H suggested to M and A that he knew an airline

pilot who could be used as a courier. Then M and A introduced S to H

and all three, i.e. M, A and S, intimated to H that they would supply

him with drugs for the United Kingdom. A few days later S suggested to

H an export of drugs of his own, independently of M and A. H agreed and

S delivered to him 20 kgs of heroin. The heroin was transported to the

United Kingdom by a British officer of the Customs and Excise. Then H

went to the United Kingdom and was installed in a hotel by Customs and

Excise. His telephone calls were recorded and a video camera was

installed. H tried for weeks to persuade S to come to the United

Kingdom and receive the heroin. When S agreed, a customs officer

procured a visa for him. When S arrived in the United Kingdom a meeting

was arranged between him, the applicant and H in the hotel for the

delivery of the drug. The applicant was arrested together with S while

a customs officer was delivering to S a number of bags which had been

made to resemble the original bags of heroin.

      The applicant submits that the judge of the Southwark Crown Court

did not allow his counsel to submit to the jury that the conduct of the

customs officers did not amount to a fraudulent evasion

      On 7 March 1991 the applicant was found guilty and was sentenced

to 16 years' imprisonment. S was also found guilty. A single judge gave

the applicant and S leave to appeal. On 10 March 1994 the Court of

Appeal rejected their appeal. It also refused them leave to appeal to

the House of Lords. However, it certified that certain questions of law

of public importance arose.

      The applicant and S applied and were given leave to appeal to the

House of Lords by the Appeal Committee thereof.

      The House of Lords pronounced on the applicant's and S's appeal

on 18 January 1996. Lord Steyn, with whom the remaining Law Lords

agreed, considered the following. Lord Steyn first examined S's

argument that it was an abuse of process to institute criminal

proceedings against him in circumstances where an informer and customs

officers had by subterfuge incited him to commit the offence and had

then lured him into the jurisdiction. Lord Steyn noted that counsel for

S had, eventually and in the light of clear precedent, accepted that

there had been nothing oppressive in luring S into the country. He also

noted that S had taken the initiative at the crucial meeting between

himself and H. Moreover, S was 37 years old, he was not a vulnerable

and unwilling person, had been an organiser in the heroin trade and had

made it clear from the start that he was ready and willing to arrange

the export from Pakistan. It was, of course, true that the particular

importation would not have taken place at the time and in the manner

that it did without the assistance of H and the officers of Customs and

Excise and that the latter gave S the opportunity to commit a criminal

offence. Moreover, Lord Steyn accepted that the customs officer who had

brought the heroin to the United Kingdom could be assumed to be guilty

of criminal behaviour. However, this did not dispose of the matter.

Since in the circumstances of the case a fair trial was possible, what

the judge had to determine was whether the public interest in ensuring

that those who were charged with grave crimes should be tried

outweighed the public interest in protecting the integrity of the

criminal justice system from criminal conduct and malpractice by law

enforcement agencies. Lord Steyn considered in this connection that the

conduct of the customs officer was not so unworthy or shameful that it

was an affront to public conscience to allow the prosecution to

proceed. Any criminal behaviour of the customs officer was venial

compared to that of S. As a result, Lord Steyn concluded that the

proceedings against S need not have been stayed.

      Moreover, Lord Steyn, for the same reasons, rejected S's argument

that the evidence of H and the customs officers should have been

excluded from the trial.

      As regards S's third argument that he had not committed the

offence with which he had been charged, Lord Steyn considered that the

Court of Appeal had erred in considering that the offence of evading

the prohibition, as opposed to attempting to evade the prohibition,

could be committed by any conduct which was directed or intended to

lead to the importation of drugs into the United Kingdom. However, Lord

Steyn considered that S had been guilty of attempting to evade the

prohibition because he had intended to commit the offence and his

actions were more than merely preparatory. Under domestic law an

attempted evasion of a prohibition on importation of drugs could occur

even if no importation had taken place. S had already committed the

attempt in Pakistan and nothing that the customs officer subsequently

did could deprive S's conduct of its criminal character. Moreover, S

had committed an attempt at evasion in England.

      Lord Steyn noted that S had been charged with actual rather than

attempted evasion. However, the evidence was the same and S's defence

would not have been conducted differently if the applicant had been

charged with attempt. Moreover, the prosecution had submitted before

the Court of Appeal that S had been at least guilty of an attempt and

the House of Lords had invited oral and written submissions by both

parties on this issue. In any event, section 170 para. 2 of the Customs

and Excise Management Act 1979 created one single offence which could

be committed in two different ways, by evasion or an attempt at

evasion. As a result, Lord Steyn considered that S's appeal should be

rejected.

      Then Lord Steyn turned to the applicant's appeal and noted that

his counsel had adopted the submissions of counsel for S, which had

already been dismissed. The applicant's counsel had also argued that

the applicant's role was insufficient to constitute an offence under

section 170 para. 2 of the Customs and Excise Management Act 1979.

However, Lord Steyn considered that this was not so. As a result, he

considered that the applicant's appeal should also be rejected.

B.    Relevant Domestic Law

      Section 170 para. 2 of the Customs and Excise Management Act 1979

provides as follows:

      "... if any person is, in relation to any goods, in any way

      knowingly concerned in any fraudulent evasion or attempt at

      evasion

      ...

      (b)  of any prohibition or restriction for the time being in

           force with respect to the goods under or by virtue of any

           enactment

      ...

      he shall be guilty of an offence under this section and may be

      detained."

COMPLAINTS

1.    The applicant complains under Article 6 para. 1 of the Convention

that he could not have a fair trial because the customs officers,

first, encouraged and promoted the criminal offences with which he had

been charged and, secondly, imported the drugs into the United Kingdom

and, in this manner, created by their conduct an essential ingredient

of the actus reus, without which no offence would have been committed

by him. He invites the Commission to consider the cumulative effect of

the actions of the customs authorities.

2.    He also complains under Article 6 para. 1 of the Convention that

the trial judge did not allow defence counsel to submit to the jury

that the conduct of the customs officers did not amount to a fraudulent

evasion.

3.    Moreover, he complains under Article 6 para. 1 of the Convention

that the House of Lords, in considering that his conduct amounted to

an attempt at evasion, went beyond the questions which had been

certified by the Court of Appeal.

THE LAW

1.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that he could not have a fair trial because the customs

officers, first, encouraged and promoted the criminal offences with

which he had been charged and, secondly, imported the drugs into the

United Kingdom and, in this manner, created by their conduct an

essential ingredient of the actus reus, without which no offence could

have been committed by him.

      Article 6 para. 1 (Art. 6-1) of the Convention, insofar as

relevant, provides as follows:

      "In the determination ... of any criminal charge against him,

      everyone is entitled to a fair ... hearing ... by (a) tribunal

      established by law."

      The Commission recalls that in order to determine whether the aim

of Article 6 (Art. 6) - a fair trial - has been achieved regard must

be had to the entirety of the domestic proceedings conducted in the

case (Eur. Court HR, Imbroscia v. Switzerland judgment of 24 November

1993, Series A no. 275, p. 14, para. 38; Lüdi v. Switzerland judgment

of 25 June 1992, Series A no. 238, p. 20, para. 43).

      As regards the applicant's submission that the customs agents,

by importing the drugs into the United Kingdom, created an essential

ingredient of the actus reus, without which no offence could have been

committed by him, the Commission notes that the House of Lords

considered that under domestic law an attempted evasion of a

prohibition on importation of drugs could occur even if no importation

had taken place. It was sufficient that the applicant intended to

commit the full offence and was guilty of acts which were more than

merely preparatory to the commission of the full offence. The applicant

obviously disagrees with this interpretation of the House of Lords.

However, the Commission is not competent to examine alleged errors of

fact or law committed by the domestic courts, except where it considers

that such errors might have involved a possible violation of the rights

and freedoms set out in the Convention or the Protocols to the

Convention (No. 12013/86, Dec. 10.3.89, D.R. 59, p. 100). Since in the

circumstances of the present case, the House of Lords' interpretation

of domestic law on the particular point is not arbitrary, the

Commission considers that no appearance of a violation of Article 6

para. 1 (Art. 6-1) is disclosed.

      As regards the applicant's submission that the customs officers

encouraged and promoted the criminal offences with which he had been

charged, the Commission recalls that the conduct of prosecution

authorities in the prevention and investigation of criminal offences

is primarily a matter for regulation by domestic law. In particular,

in the field of dangerous delinquency the prosecuting authorities may

consider it necessary, in some circumstances, to rely on police

informers and undercover agents. In such cases, the Commission has to

determine whether the subsequent criminal proceedings, considered as

a whole, were fair as required by Article 6 para. 1 (Art. 6-1). The

fairness of criminal proceedings may be affected by the fact that an

undercover agent of the police authorities played an important part in

bringing about the offence which is the basis of the criminal charge

(Radermacher and Pferrer v. Germany, Comm. Report 11.10.90, para. 75,

Yearbook 34, p. 274).

      In this respect the Commission notes that, as the House of Lords

observed, undercover agents gave S the opportunity to attempt to commit

the crime of importing heroin into the United Kingdom and that the

particular importation would not have taken place when and how it did

without the assistance of undercover agents. However, the Commission

also notes that, as accepted by the national courts, the undercover

agents did not take the initiative to contact S with a view to

importing heroin into the United Kingdom, but only reacted to an offer

by S. In this respect, the applicant's case is distinguishable from

Teixeira De Castro v. Portugal (Comm. Report 25.2.97, unpublished, case

pending before the Court) where the Commission found a violation of

Article 6 para. 1 (Art. 6-1) of the Convention because of the role

played by "agents provocateurs" in bringing about that applicant's

conviction. As opposed to Teixeira De Castro v. Portugal, in the

present case, it has not been established that the undercover agents

were the real initiators of the offences.

      The Commission also notes that, as opposed to the applicant in

Teixeira De Castro v. Portugal, S had a long-term involvement in the

heroin trade and was ready and willing to commit the crime even without

the involvement of the undercover agents. Moreover, the testimony of

the undercover agents did not form the exclusive basis of the

applicant's conviction, which was also supported by other evidence such

as tape and video recordings. In the light of all the above, the

Commission considers that the role played by undercover agents in

bringing about the applicant's conviction was not such as to disclose

an appearance of a violation of Article 6 para. 1 (Art. 6-1) of the

Convention.

      Nor does the Commission consider that an appearance of a

violation of Article 6 para. 1 (Art. 6-1) of the Convention is

disclosed as a result of the cumulative effect of the various actions

of the undercover agents examined above. It follows that this part of

the application is manifestly ill-founded and that it must be rejected

as inadmissible in accordance with Article 27 para. 2 (Art. 27-2) of

the Convention.

2.    The applicant complains under Article 6 para. 1 (Art. 6-1) of the

Convention that the trial judge did not allow defence counsel to submit

to the jury that the conduct of the customs officers did not amount to

a fraudulent evasion.

      The Commission recalls that under Article 26 (Art. 26) of the

Convention it may only deal with the matter after all domestic remedies

have been exhausted. It notes that the applicant has not raised this

complaint before the Court of Appeal or the House of Lords. It follows

that this part of the application must be rejected in accordance with

Article 27 para. 3 (Art. 27-3) of the Convention.

3.    The applicant complains under Article 6 (Art. 6) of the

Convention that the House of Lords, in considering that his conduct

amounted to an attempt at evasion, went beyond the questions that had

been certified by the Court of Appeal.

      The Commission recalls that Article 6 para. 3 (Art. 6-3) of the

Convention guarantees under (a) and (b) the right of the accused to be

informed of the nature and cause of the accusation against him and the

right to adequate time and facilities for the preparation of his

defence. However, the guarantees in paragraph 3 of Article 6

(Art. 6-3-a) are specific aspects of the right to a fair trial set

forth in general in paragraph 1 (see Eur. Court HR, Foucher v. France

judgment of 18 March 1997, Reports 1997-II, No. 33, para. 30). For this

reason, the Commission considers it appropriate to examine the

applicant's complaints under the two provisions taken together.

      The Commission further notes that, although the applicant had

been originally charged with evading the prohibition of importation of

heroin, the House of Lords eventually considered that the applicant had

been guilty of attempting to evade the prohibition. However, as the

House of Lords considered, section 170 para. 2 of the Customs and

Excise Management Act 1979 creates one single offence which can be

committed in two different ways, by evasion or an attempt at evasion.

Moreover, the House of Lords considered that the prosecution would have

brought the same evidence if the applicant had been charged with

attempt from the outset and that the applicant's defence would not have

been conducted differently. Finally, the Commission notes that the

prosecution had submitted before the Court of Appeal that the applicant

had been at least guilty of an attempt and the House of Lords had

invited oral and written submissions by both parties on this issue. It

follows that the applicant was aware of the possibility that he might

be considered guilty of attempt at evasion and that he had a full

opportunity to be heard in this connection. As a result, no appearance

of a violation of Article 6 para. 1 taken in conjunction with

para. 3 (a) and (b) (Art. 6-1+6-3-a, 6-1+6-3-b) is disclosed.

      The Commission, therefore, considers that this part of the

application is manifestly ill-founded and must be rejected in

accordance with Article 27 para. 2 (Art. 27-2) of the Convention.

      For these reasons, the Commission, by a majority,

      DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY

     Secretary                                    President

to the First Chamber                        of the First Chamber