AS TO THE ADMISSIBILITY OF

Application No. 14330/88

by Joseph HARRISON

against the United Kingdom

        The European Commission of Human Rights sitting in private on

13 April 1989, the following members being present:

                MM.  S. TRECHSEL, Acting President

                     F. ERMACORA

                     G. SPERDUTI

                     E. BUSUTTIL

                     G. JÖRUNDSSON

                     H.G. SCHERMERS

                     H. DANELIUS

                     H. VANDENBERGHE

                Mrs.  G.H. THUNE

                Sir  Basil HALL

                MM.  F. MARTINEZ

                     C.L. ROZAKIS

                Mrs.  J. LIDDY

                Mr.  L. LOUCAIDES

                Mr.  H.C. KRÜGER, Secretary to the Commission

        Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 27 October

1988 by Joseph HARRISON against the United Kingdom and registered on

27 October 1988 under file No. 14330/88;

        Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a United Kingdom citizen, born in 1946 and

resident in Pulborough, Sussex.

        The facts, as submitted by the applicant and which may be

deduced from documents lodged with the application, may be summarised

as follows:

        The applicant was a horticulturalist and businessman who

became involved in a cooperative which marketed salad products.  The

cooperative met with financial difficulties and the applicant was

arrested and charged with fraud on 20 February 1981.  The applicant

was left with no funds, having spent any money he had on legal advice

at the committal stage.  He, therefore, applied for legal aid for his

trial.  He was informed by the Crown Court that he could have legal

aid on condition that he paid £1500 into court, a sum which he did not

have.  The applicant requested to see the Crown Court Judge, but this

was refused.  No inquiry was made by the Crown Court as to the

applicant's means other than that which appeared in his legal aid

application.  His statement of means indicated his lack of funds, save

for the value of his house, which was subject to a mortgage, and was

not to be taken into account in the means assessment.

        The applicant was obliged to represent himself at his trial,

which ran from 17 September until 14 October 1982.  He remonstrated

with the trial judge who at one point suggested that the applicant had

chosen of his own free will to represent himself.  The applicant was

convicted and sentenced to three years' imprisonment.  On 10 November

1982 the Crown Court granted the applicant legal aid for counsel's

advice as to an appeal.  He was advised to appeal against conviction

and sentence and instructed solicitors accordingly.  However, they

demanded £1000 from the applicant, which he could not and did not

pay.  They only lodged an appeal against sentence, for which the

applicant received legal aid.  His sentence was reduced by the Court

of Appeal on 14 July 1983 to two years' imprisonment.  He was released

from prison on 14 October 1983.

        The applicant lodged an appeal in person against his

conviction.  It was refused by the Single Judge of the Court of Appeal

on 17 November 1983 as being out of time.  However, the Full Court of

Appeal granted leave and quashed the conviction on 5 July 1985.  Lord

Justice Watkins, giving that Court's judgment, condemned what had

happened to the applicant.  He commented that this was a "very

disturbing" case in which the applicant's legal aid application and

his circumstances should have received "careful scrutiny".  As pointed

out by the applicant's counsel, it was "unthinkable that an

unrepresented person" in a trial of the present kind "could do himself

justice", when usually only experienced counsel would have been able

to master the issues.  The applicant was obviously under a "grave

handicap" during the 19 day hearing.  He found no reasonable

explanation for the Crown Court's handling of the applicant's legal

aid request.  It amounted to an "unfortunate catalogue of events",

which, hopefully, would not be repeated.  However, in these

circumstances the conclusion was reached that there had not been a

fair trial in the applicant's case, and his conviction was quashed.

        On 30 July 1985 the applicant applied to the Secretary of

State for compensation for the year of imprisonment he had served and

the negligence/misconduct of the Crown Court officials and Judge in

refusing him legal aid.  On 3 February 1986, confirmed on 25 April

1986, the Home Secretary refused to make an exceptional ex gratia

payment from public funds in this case.  (English law makes no

provision for an enforceable right to compensation for persons

detained in custody in respect of charges on which they are

subsequently acquitted, whether at trial or on appeal.)  The applicant

applied for judicial review of this decision.  It was contended that

the decision was unfair, being without reasons and based on criteria

which were not divulged to the applicant, so he could not make

pertinent representations.

        During the course of these proceedings discovery of documents

was ordered, and the Secretary of State revealed his instructions at

the material time concerning the criteria for making ex gratia

payments: such a payment may be made provided, inter alia, that

        "(a) on a balance of probabilities, the claimant was more

        likely than not to have been innocent; and

        (b) hardship to the claimant has resulted."

        A further criterion, not applicable to the present case,

relating to persons who are convicted but acquitted on an appeal

lodged within time, requires that there has also been some negligence

or default on the part of the police or of some other public

authority.

        The High Court refused judicial review on 20 May 1988.  It

considered that the payment of compensation in question relates to a

sensitive prerogative power of the Crown vested in the Secretary of

State and outside the framework of statutory or common law.  It held

that the very nature of an "ex gratia" payment presupposes that there

is no obligation to make it.  This militates against on open procedure

which, to some extent, would involve a retrial of the issues before

the original trial court.  Confidentiality in the Home Secretary's

decision making process as regards such compensation is, thus,

inevitable.  Accordingly he is not obliged to give reasons for his

decision.  Moreover, the criteria which are applied by the Home

Secretary are not unreasonable and there was no evidence that they

were irrationally or unlawfully applied in the present case.

COMPLAINTS

        The applicant complains of a breach of Article 6 para. 1 of

the Convention in respect of his unfair trial in 1982.  He also

complains of a breach of his defence rights under Article 6 para. 3

(b), (c), (d) and (e) in respect of the refusal of legal aid for the

trial and an absence of interpreters to translate certain Italian

testimony.  A further breach of Article 6 para. 1 is alleged as

regards a purportedly unfair determination of his civil rights by the

Home Secretary in refusing the applicant's compensation claim by way

of a confidential procedure.

        The applicant claims to be a victim of a breach of Article 5

para. 4 of the Convention for the absence of speed in the Court of

Appeal's decision to quash his conviction and the Home Secretary's

determination of his compensation claim.

        Finally, the applicant complains that he has been denied

compensation, contrary to Articles 5 para. 5 and 13 of the Convention,

for his allegedly unlawful detention following an unfair trial.

        The applicant contends that he has respected Article 26 of the

Convention, the final relevant decision in the case being the refusal

of judicial review by the High Court on 20 May 1988.  Until that time

he had been exhausting all possible remedies under English law.

THE LAW

1.      The applicant complains of an unfair criminal trial, a refusal

of legal aid and an absence of interpretation, in breach of his rights under

Article 6 paras. 1 and 3 (b), (c), (d) and (e) (Art. 6-1, 6-3-b, 6-3-c, 6-3-d,

6-3-e) of the Convention.

        However, the Commission is not required to decide whether or

not the facts of the present case disclose any appearance of a violation of

Article 6 (Art. 6), as Article 26 (Art. 26) of the Convention provides that the

Commission "may only deal with the matter ... within a period of six months

from the date on which the final decision was taken".  In the present case the

decision of the Full Court of Appeal on 5 July 1985 was the final decision

regarding these particular complaints, whereas the application was submitted on

27 October 1988, that is, more than six months after the date of this decision.

Furthermore, an examination of the case does not disclose the existence of any

special circumstances which might have interrupted the running of that period.

It follows that this part of the application has been introduced out of time

and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

2.      The applicant next complains that he has been denied a speedy

determination of the lawfulness of his detention, contrary to Article 5 para. 4

(Art. 5-4) of the Convention, because of the length of time taken by the Court

of Appeal to quash his conviction in 1985 and by the Secretary of State to

determine his compensation claim in 1986.  In respect of this latter claim it

is also contended that the Secretary of State unfairly determined the

applicant's civil rights, in breach of Article 6 para. 1 (Art. 6-1) of the

Convention.

        However, first, for the same reasons as above, namely, non-observance

of the six months' rule laid down in Article 26 (Art. 26) of the Convention,

the Commission is unable to examine the applicant's complaint concerning the

Court of Appeal.  This aspect of the complaint is therefore rejected under

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

        Secondly, the Home Secretary's decision whether to grant compensation

bears no relation to a court's determination of the lawfulness of the

applicant's detention (from which he had anyway been released more than two

years before).  In these circumstances, Article 5 para. 4 (Art. 5-4) of the

Convention has no application to the compensation proceedings.  Furthermore,

the Home Secretary's refusal of compensation was not a judicial determination

of the applicant's civil rights or obligations (cf.  No. 10406/83, Dec. 6.5.85,

D.R. 42 p. 133). Hence, Article 6 para. 1 (Art. 6-1) of the Convention was also

not applicable to his claim for compensation.  In the light of these

considerations, the Commission concludes that this part of the application is

incompatible ratione materiae with the provisions of the Convention, pursuant

to Article 27 para. 2 (Art. 27-2).

3.      Finally, the applicant complains that he has been denied compensation,

contrary to Article 5 para. 5 (Art. 5-5) of the Convention, for his allegedly

unlawful detention following an unfair trial.  The applicant also invokes

Article 13 (Art. 13) of the Convention, but the Commission does not find it

necessary to examine the complaint under this provision, Article 5 para. 5

(Art. 5-5) being the lex specialis in the matter.  It provides for an

enforceable right to compensation for anyone who has been the victim of arrest

or detention in contravention of the provisions of Article 5 (Art. 5).  In the

present case the relevant provision is Article 5 para. 1 (a) (Art. 5-1-a) which

reads as follows:

        "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:

        (a)     the lawful detention of a person after

        conviction by a competent court ..."

        The first question which the Commission is required to

determine is whether the applicant was unlawfully deprived of his

liberty, contrary to Article 5 para. 1 (Art. 5-1) of the Convention.  The

Commission notes that the applicant was convicted by a Crown Court on

10 November 1982 and sentenced to three years' imprisonment.  He

served one year's imprisonment and had his conviction ultimately

quashed by the Court of Appeal because the trial was found to have

been unfair due to the refusal to grant the applicant legal aid.

However, the Commission finds no evidence in the case-file that the

applicant's imprisonment after 10 November 1982 was not in accordance

with a procedure prescribed by law or was not pursuant to a lawful

conviction by a competent court, within the meaning of Article 5 para. 1 (a)

(Art. 5-1-a) of the Convention.  The fact that the applicant's conviction was

subsequently quashed does not render it unlawful ab initio either under the

relevant domestic law or under the Convention (cf.  No. 9132/80, Dec. 16.12.82,

D.R. 31 p. 173 para. 12).  In these circumstances, in the absence of a finding

of a breach of Article 5 para. 1 (Art. 5-1) of the Convention, the applicant is

not entitled to compensation under Article 5 para. 5 (Art. 5-5).  Accordingly

this part of the application is manifestly ill-founded within the meaning of

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

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission         Acting President of the Commission

        (H.C. KRÜGER)                         (S. TRECHSEL)