Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 28155/95

by Parmod KUMAR

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 27 November 1996, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

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 28 July 1995 by

Parmod KUMAR against the United Kingdom and registered on 7 August 1995

under file No. 28155/95;

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 an Indian national born in 1945 and residing in

New Delhi. Before the Commission he is represented by Elaine Needham,

a solicitor practising in London.

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

summarised as follows.

Particular circumstances of the case

At the time of the events at issue the applicant resided in the

United Kingdom.

On 26 August 1990 a Ms. B. complained to the police alleging that

on 16 August 1990 she had been raped by the applicant at her home. On

27 August 1990 the applicant was arrested and charged with rape. When

interviewed by a detective inspector he stated that he had had a sexual

relationship with B. for two months, in the course of which consensual

sexual intercourse had taken place many times. The applicant also

indicated the names of persons who knew about his relationship with B.

On 28 August 1990 the applicant was remanded in custody. On the

same day he made an unsuccessful application for bail to the Haringey

Magistrates' Court.

The applicant again applied for bail to the Magistrates' Court

on 4 September and 26 October 1990, but his applications were refused.

No further applications for bail were made until the applicant's

release in March 1991. The applicant did not submit an application for

bail to the High Court under Section 22 of the Criminal Justice Act

1967 (see below Relevant domestic law and practice).

On an unspecified date shortly after the applicant's arrest a

detective inspector approached one of the persons indicated by the

applicant as a witness of his relationship with B. The witness

allegedly told the inspector that he had seen the applicant and B.

kissing, that he had seen B. in the applicant's apartment and that he

had seen them in bed together. However, the inspector allegedly failed

to communicate his findings to the other police officers who were

dealing with the case.

In the first days of March 1991 the applicant's counsel obtained

information about B. They learned inter alia that B. had had a history

of mental illness since 1981 and that on numerous occasions she had

been admitted to hospital under the Mental Health Act 1983.

Furthermore, in 1987 B. had made two complaints of rape, on which no

action had been taken. In February 1988 she alleged that a Mr. H. had

raped her. Mr. H. was arrested and prosecuted on 5 October 1988, and

acquitted. On 20 April 1988 B. alleged that a Mr. M. had indecently

assaulted her. Mr. M. denied the allegation. On 20 September 1990 he

was convicted in a Magistrates' Court and given a suspended sentence.

It later transpired that B. had been raped in 1986 and that her

assailant had pleaded guilty and had been sentenced.

The applicant's counsel informed the Crown Prosecution Service

of the personal history of B.

On 6 March 1991 the applicant attended the Central Criminal Court

where the charge against him was dismissed and he was released.

On 8 October 1991 the applicant instituted proceedings against

the Crown Prosecution Service. He claimed damages for negligence

alleging inter alia that the police officers were under a duty of care

to ascertain whether B. could be a reliable witness when instituting

or continuing the criminal proceedings against him and that the police

had acted negligently by failing to take adequate steps in this respect

and by failing to devise and operate a proper system to ensure that a

prosecution would not commence or continue where it was solely based

on the evidence of an unreliable witness. The applicant claimed

alternatively that he was a victim of malicious prosecution.

The defence stated inter alia that the detective inspector in the

case had had information that B. had been raped in 1986 and that her

assailant had pleaded guilty. The inspector also knew that H. had been

acquitted of raping B. in 1988 and that M. had been convicted of

indecently assaulting B. However, the inspector had no knowledge of

the mental illness of B. and of her false complaint of rape in

September 1987.

On 18 January 1993 the competent court struck out the applicant's

claim in negligence as disclosing no reasonable cause of action. The

applicant's ensuing appeal was dismissed by a Deputy High Court Judge

on 2 February 1993. He was then granted leave to appeal to the Court

of Appeal. On 30 January 1995 the Court of Appeal dismissed the

applicant's appeal.

The Court of Appeal relied on its decision in Elguzouli-Daf v.

Crown Prosecution Service (1994), which it found indistinguishable from

the facts of the applicant's case in any relevant respect.

The Court stated inter alia:

"... the interests of the whole community are better served by

not imposing a duty of care upon the police officers in their

decisions whether or not to place sufficient reliance upon the

account of a complainant to justify the making of a charge

against an accused ... [O]ther protections and remedies are

available when a citizen is aggrieved by the decision of the

police officers in that context. The victim has the private law

remedy of malicious prosecution which has, for very many years,

been regarded as the only remedy at common law available to the

plaintiff who complains that a decision to start or to continue

a prosecution has been made on inadequate evidence ... The

requirement of the proving of malice ... must ... be regarded as

a deliberate limitation on policy grounds on the cause of action

and ... should not be removed by a decision of the courts ...

[A]s to protections and remedies, a victim may make a

complaint against a member of a police force ... Further, there

is the whole system of statutory control of the process of

criminal investigation and detention of suspects, and of those

charged, set out in the provisions of The Police and Criminal

Evidence Act 1984 ...

When a complaint is made, such as of rape of a woman where

there is no independent evidence to corroborate her account, the

duty of the police officer is to investigate as fully and

carefully as he reasonably can and to decide in good faith

whether in all the circumstances known to him there are

reasonable grounds to charge an accused.

The question whether any, and if so what, further

investigations should generally, or in a particular case, be

made or should have been made into the previous history of the

complainant and of her association with other men ... would give

raise to issues ... [concerning] matters of policy and

discretion in the conduct of investigations ...

The apprehension that, if the court should impose a duty

of care upon the police in this case, there would follow a heavy

burden upon the police in the defence of proceedings, seems ...

well founded ..."

The applicant has not pursued his claim for malicious

prosecution. Counsel advised him that on the material known to the

police, there was no serious prospect that the applicant could prove

that the prosecution was brought without reasonable or probable cause.

On 28 July 1995 the applicant faxed and sent by mail his

application to the Commission, in which he raised complaints under

Article 5 of the Convention. On 3 June 1996 the applicant submitted

"amendments to the application" in which he raised, for the first time,

a complaint under Article 6 of the Convention that he had been denied

access to the courts.

Relevant domestic law and practice

Section 22 of the Criminal Justice Act 1967, insofar as relevant,

provides as follows:

"(1) Where a magistrates' court withholds bail in criminal

proceedings or imposes conditions in granting bail in criminal

proceedings, the High Court may grant bail or vary the

conditions.

..."

COMPLAINTS

1. In his application, as submitted on 28 July 1995, the applicant

raises complaints under Article 5 of the Convention.

The applicant complains that he has been denied an enforceable

right to compensation in accordance with Article 5 para. 5 of the

Convention.

He accepts that he may have been lawfully arrested because at the

time of the arrest the police might have had a reasonable suspicion

that he was guilty of raping B. However, he claims that after certain

lapse of certain time, and since no sufficient efforts were made to

verify the reliability of B. as witness, the initial suspicion ceased

and his detention became unlawful. Also, no new grounds justified the

applicant's continuing detention. Moreover, the authorities have

conducted the criminal investigation against the applicant in a manner

which was likely to result in an unreasonable prolongation of his

detention. The applicant claims that as a result there has been a

violation of Article 5 para. 3 of the Convention interpreted in

conjunction with Article 5 para. 1 (c). The applicant relies inter

alia on the Court's case-law according to which the main purpose of

Article 5 para. 3 of the Convention is the prevention of arbitrary

deprivation of liberty (Eur. Court HR, Schiesser v. Switzerland

judgment of 4 December 1979, Series A no. 34, p. 13, para. 30).

2. In his "amendments to the application" submitted on 3 June 1996

the applicant raises a complaint under Article 6 of the Convention.

He claims that the striking out of his claims for damages and the

dismissal of his ensuing appeals amounted to a breach of his right to

access to a court, the very essence of this right being impaired by the

immunity which the prosecution enjoy in respect of civil claims for

negligence.

THE LAW

1. The applicant complains under Article 5 (Art. 5) of the

Convention that his detention on remand was unlawful, unreasonably

lengthy and unnecessary, and that he did not have an enforceable right

to compensation.

Article 5 (Art. 5) of the Convention, insofar as relevant,

provides as follows.

"1. Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following

cases and in accordance with a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the competent legal

authority on reasonable suspicion of having committed an offence

or when it is reasonably considered necessary to prevent his

committing an offence or fleeing after having done so;

...

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall ... be

entitled to trial within a reasonable time or to release pending

trial. Release may be conditioned by guarantees to appear for

trial.

...

5. 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."

2. The Commission has first examined the applicant's complaints

under Article 5 paras. 1 and 3 (Art. 5-1, 5-3) of the Convention.

The Commission recalls the Convention organs' case law according

to which the question whether a period of pre-trial detention can be

considered "reasonable" within the meaning of Article 5 para. 3

(Art. 5-3))must be assessed in each case according to its special

features. It falls in the first place to the national judicial

authorities to examine all the circumstances arguing for and against

the existence of a genuine requirement of a public interest justifying

continued detention. Such circumstances may be, for example, the

existence of a danger of absconding, of collusion, or of repetition of

offences. It is essentially on the basis of the reasons given in the

domestic decisions and of the true facts stated by the applicant in his

appeals that the Convention organs must examine the complaint under

Article 5 para. 3 (Art. 5-3) of the Convention (Eur. Court HR, W. v.

Switzerland judgment of 26 January 1993, Series A no. 254-A, pp. 15-19,

paras. 30-42).

In all circumstances the persistence of reasonable suspicion that

the person arrested has committed an offence is a condition sine qua

non for the validity of the continued detention. The Convention organs

must also establish whether the grounds given by the judicial

authorities continued to justify the deprivation of liberty (cf. also

Eur. Court HR, Van der Tang v. Spain judgment of 13 July 1993, Series A

no. 321, p. 17, para. 55).

The Commission further recalls that a "reasonable suspicion"

within the meaning of Article 5 para. 1 (c) (Art. 5-1-c) presupposes

the existence of facts or information which would satisfy an objective

observer that the person concerned may have committed an offence (see

Eur. Court HR, Fox, Campbell and Hartley v. the United Kingdom judgment

of 30 August 1990, Series A no. 182, pp. 16-18, paras. 32-34; Murray

v. the United Kingdom judgment of 28 October 1994, Series A no. 300-A,

paras. 50-63).

The Commission notes at the outset that the applicant did not

submit an application for bail to the High Court under Section 22 of

the Criminal Justice Act 1967, that his last application for bail was

submitted to the Magistrates' Court on 26 October 1990, and that the

applicant was released on 6 March 1991.

The Commission also notes that in the judicial proceedings ending

with the decision of the Court of Appeal of 30 January 1995 the

applicant claimed damages for negligence and that these proceedings did

not concern directly the alleged unlawfulness and excessive length of

his detention on remand.

Nevertheless the Commission need not decide whether the applicant

has exhausted all domestic remedies in respect of his complaints under

Article 5 (Art. 5) of the Convention and, if so, whether he complied

with the six months' time-limit under Article 26 (Art. 26), as his

complaints are in any event manifestly ill-founded.

The Commission notes that the applicant accepts that when he was

arrested there might have been sufficient facts and information

justifying a reasonable suspicion against him. Furthermore, it is

accepted that until March 1991, when the applicant was released, the

inspector handling his case was unaware of the false complaints of B.

in 1987.

In these circumstances the Commission does not consider that the

failure of the investigating authorities to discover the full personal

history of B. within a certain time after the applicant's arrest can

have the effect of terminating the existing reasonable suspicion

against him and, hence, of rendering his detention unlawful or

incompatible with Article 5 para. 1 (Art. 5-1) of the Convention.

The Commission further notes that there is no assertion on the

part of the applicant that, for example, the authorities kept him in

detention without there being any danger of absconding, or that other

grounds given in the decisions to detain him and to refuse his release

were not plausible. He contends only that the police and the

prosecution authorities should have investigated more diligently the

personal circumstances of B.

However, the Commission notes that certain of the facts

concerning the history of B. had been discovered by the detective

inspector, and that therefore certain efforts to investigate her

reliability had been made.

The Commission also notes that the applicant's detention lasted

for five months and ten days.

In these circumstances the Commission finds that the complaint

of the alleged excessive length of the applicant's detention does not

disclose any appearance of a violation of Article 5 para. 3

(Art. 5-3) of the Convention.

It follows that the applicant's complaints under Article 5

paras. 1 and 3 (Art. 5-1, 5-3) of the Convention are manifestly ill-

founded and have to be rejected under Article 27 para. 2 (Art. 27-2).

3. The applicant also complains under Article 5 para. 5 (Art. 5-5)

of the Convention that he did not receive compensation for his

detention on remand. However, the Commission has just rejected the

allegation that his detention was in contravention of Article 5 paras.

1 and 3 (Art. 5-1, 5-3). Therefore, paragraph 5 of this provision did

not require compensation in the present case (cf. Eur. Court HR, Benham

v. the United Kingdom judgment of 10 June 1996, to be published in

Reports of Judgments and Decisions 1996, para. 50)

It follows that this complaint is also manifestly ill-founded and

has to be rejected under Article 27 para. 2 (Art. 27-2) of the

Convention.

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

lack of access to court in the determination of his civil right to

damages.

The Commission recalls its case-law according to which as regards

complaints not included in the initial application itself, the running

of the six months' time-limit under Article 26 (Art. 26) of the

Convention is not interrupted until the date when the complaint is

first submitted to the Commission (cf. No. 10293/83, Dec. 12.12.85,

D.R. 45 p. 41; No. 10857/84, Dec. 15.7.86, D.R. 48 p. 106).

The Commission notes that in the present case the applicant's

complaint of the alleged lack of access to court was first submitted

on 3 June 1996, that is more than six months after the decision of the

Court of Appeal of 30 January 1995.

It follows that this part of the application has to be rejected

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

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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KUMAR v. THE UNITED KINGDOM

KUMAR v. THE UNITED KINGDOM

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