Lexploria

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 26 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

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 6 February 1995

by Ian FAULKNER against the United Kingdom and registered on

27 Feburary 1996 under file No. 30308/96;

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 citizen born in 1944. He is a writer

and resides in Guernsey. In the proceedings before the Commission he

is represented by Mr. Jonathan Cooper, a barrister practising in

London.

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

applicant, may be summarised as follows:

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 the

applicant was arrested by the Surrey Constabulary in Surrey, England.

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 where he was detained in the local police

station. He was examined and charged with an offence under

section 18 (1) (b) of the Theft Law. The applicant claims that the

Guernsey police sequestrated his Mercedes car and Blacpain wrist-watch

and that these property items have not yet been returned to him.

Upon being charged, the applicant was granted legal

representation by the Bailiff - Guernsey's equivalent of Chief Justice.

On 26 June 1989 the applicant appeared before a magistrate in Guernsey

who ordered his 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 15.25 on the same day a friend of the applicant deposited

the amount fixed for bail at a police station in England.

On 27 June 1989 the applicant's friend was informed by the

applicant's daughter that the applicant was still in custody. The

applicant's friend contacted the police authorities in Guernsey and was

advised that the monies had to be deposited in a bank in Guernsey in

the applicant's name. On 28 June 1989 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 later on in the evening.

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 applicant requested

that he be tried by the Royal Court, which usually deals with the more

serious offences, but the prosecution insisted that his trial should

take place in a magistrate's court.

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 applicant's counsel informed the applicant

that an agreement had been reached with Her Majesty's 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 Her Majesty's 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 Her Majesty's

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 Her Majesty's 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 Mrs 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 Her Majesty's 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 Her

Majesty's 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.

COMPLAINTS

1. The applicant complains that his arrest and detention in

Guildford was not in accordance with domestic law, because the warrant

for his arrest had not been backed for execution. He also complains

that he was not informed by the Surrey Constabulary of the reasons for

his arrest. He further complains that he was held in custody for three

days before being brought before a judge, something which constituted

a breach of national law. Finally, the applicant complains that, after

he had been granted bail, his release from custody was delayed for two

days and that on 28 January 1991 he had been made to march hand-cuffed

through the crowded streets of St. Peter's Port to collect the bail

money himself. He invokes Articles 3 and 5 of the Convention.

2. The applicant also complains under Article 6 of the Convention

that he was refused access to a lawyer while in detention in Guildford,

that he was subjected to pressure and duress when examined by a

Guernsey police officer in Guildford and in Guernsey, that he was not

informed promptly of the nature and cause of the accusation against

him, that he did not have adequate time and facilities for the

preparation of his defence, that he was not given free legal

assistance, since he remains liable for his defence costs, that he

could not obtain the attendance and examination of witnesses on his

behalf under the same conditions as witnesses against him and that the

criminal proceedings against him were not conducted within a reasonable

time.

3. Finally, the applicant complains under Article 5 paras. 4 and 5

and Articles 6 and 13 of the Convention that he cannot institute

proceedings in connection with the above-mentioned complaints. He

submits in this connection that his application for legal aid was

refused in England. He also submits that no legal aid is available for

a civil action for unlawful arrest, imprisonment and malicious

prosecution in Guernsey, that there is no police complaints procedure

and that judicial review is a remedy unknown to Guernsey law. The

applicant further submits that, in any event, no Guernsey lawyer is

prepared to act as his representative, because of the fees he still

owes the lawyer who represented him in the criminal proceedings. These

proceedings "destroyed his livelihood and completely ruined him", given

in particular the onerous bail conditions imposed which were not

justified by the seriousness of the charges against him and which

prevented him from pursuing his career as a company director. Finally,

the applicant submits that Guernsey law does not permit a plaintiff to

represent himself and that, even if this were not the case, the very

complex nature of the complaints he wished to make would require legal

advice and support.

THE LAW

1. The applicant complains about various aspects of his arrest and

detention by the Surrey Constabulary and of the impossibility of

instituting proceedings in this connection in England. He invokes

Articles 5, 6 and 13 (Art. 5, 6, 13) of the Convention.

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

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

have been exhausted, according to the generally recognised rules of

international law, and within a period of six months from the date on

which the final decision was taken.

The Commission notes that the applicant applied for legal aid in

order to institute proceedings for unlawful imprisonment against the

Surrey Constabulary and that his application was finally refused early

in 1992. However, the applicant did not complain about these matters

to the Commission before 6 February 1995. It follows that this part of

the application has not been introduced within the six-month period

provided in Article 26 (Art. 26) of the Convention and, as a result,

it must be rejected as inadmissible in accordance with Article 27 para.

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

2. The applicant complains about various matters allegedly involving

the responsibility of the Guernsey police and prison authorities. In

particular, he complains under Article 5 (Art. 5) of the Convention

that he was held in custody for three days before being brought before

a judge and that, after he had been granted bail, his release from

custody was delayed for two days. He also complains under Article 3

(Art. 3) of the Convention that on 28 January 1991 he had been made to

march hand-cuffed through the crowded streets of St. Peter's Port to

collect the bail money himself.

The Commission notes that the applicant claims that, because of

the unavailability of legal aid, he cannot institute civil proceedings

against the Guersney authorities which could have provided him with

redress for at least some of his complaints.

The Commission considers that it cannot, on the basis of the

file, determine the admissibility of these complaints and that it is

therefore necessary in accordance with Rule 48 para. 2(b) of the Rules

of Procedure, to give notice of this part of the application to the

respondent Government.

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

Convention about various matters concerning the fairness of the

criminal proceedings instituted against him as well as their length.

The Commission notes that the applicant does not claim that there

is a remedy to be exhausted for complaints of this nature in Guernsey.

The Commission further recalls that the applicant had been charged in

Guernsey with four offences under the Theft Law and one offence under

the Protection of Investors Law. The applicant was acquitted of the

four charges under the theft Law on 26 April 1991. Moreover, the fifth

charge under the Protection of Investors Law was finally dismissed on

3 April 1992. However, the applicant did not complain about these

matters to the Commission before 6 February 1995.

It follows that this part of the application has not been

introduced within the six-month period provided in Article 26 (Art. 26)

of the Convention and, as a result, it must be rejected as inadmissible

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

4. 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 the cost of defending himself.

The Commission considers that it cannot, on the basis of the

file, 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 give notice of this part of the application to the

respondent Government.

5. The applicant complains under Articles 5, 6 and 13

(Art. 5, 6, 13) of the Convention that he cannot institute proceedings

against the Guernsey authorities in connection with his arrest,

detention and prosecution.

The Commission considers that it cannot, on the basis of the

file, 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 give notice of this part of the application to the

respondent Government.

For these reasons, the Commission,

DECIDES TO ADJOURN the examination of the 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.

unanimously,

DECLARES INADMISSIBLE the remainder of the application.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

Menu

FAULKNER v. THE UNITED KINGDOM

FAULKNER v. THE UNITED KINGDOM

LEXI