AS TO THE ADMISSIBILITY OF

                      Application No. 34225/96

                      by Mohammed Halid SHAHZAD

                      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 1 February 1996

by Mohammed Halid SHAHZAD against the United Kingdom and registered on

18 December 1996 under file No. 34225/96;

      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 Pakistani national, born in 1958. He is

currently detained in Albany Prison, Newport, Isle of Wight. In the

proceedings before the Commission he is represented by

Mr. D.J. Killeen, a solicitor practising in Birmingham.

      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 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 the

applicant to H and all three, i.e. M, A and the applicant, intimated

to H that they would supply him with drugs for the United Kingdom. A

few days later the applicant suggested to H an export of drugs of his

own, independently of M and A. H agreed and the applicant 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 the applicant to come to the United Kingdom and

receive the heroin. When the applicant agreed, a customs officer

procured a visa for him. When the applicant arrived in the United

Kingdom a meeting was arranged between him and H in the hotel for the

delivery of the drug. The applicant was arrested while a customs

officer was delivering to him 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 20 years' imprisonment. A single judge gave the applicant leave to

appeal. On 10 March 1994 the Court of Appeal rejected his appeal. It

also refused the applicant leave to appeal to the House of Lords.

However, it certified that certain questions of law of public

importance arose.

      The applicant applied and was given leave to appeal to the House

of Lords by the Appeal Committee thereof.

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

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

considered the following. Lord Steyn first examined the applicant'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

the applicant had, eventually and in the light of clear precedent,

accepted that there had been nothing oppressive in luring the applicant

into the country. He also noted that the applicant had taken the

initiative at the crucial meeting between himself and H. Moreover, the

applicant 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 the applicant 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 the applicant. As a result, Lord Steyn concluded that the

proceedings against the applicant need not have been stayed.

      Moreover, Lord Steyn, for the same reasons, rejected the

applicant's argument that the evidence of H and the customs officers

should have been excluded from the trial.

      As regards the applicant'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 the applicant 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. The applicant had already committed the attempt in Pakistan and

nothing that the customs officer subsequently did could deprive the

applicant's conduct of its criminal character. Moreover, the applicant

had committed an attempt at evasion in England.

      Lord Steyn noted that the applicant had been charged with actual

rather than attempted evasion. However, the evidence was the same and

the applicant'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 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. 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 the applicant's appeal should 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, 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

and, thirdly, tricked him into the jurisdiction. 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.

4.    Finally, the applicant complains under Article 3 of the

Convention that, as a result of all the above, he had been subjected

to degrading treatment.

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, 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 and, thirdly, tricked him into the jurisdiction.

      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. The House of Lords further considered that the

applicant had already committed the attempt in Pakistan and that

nothing that the customs officer subsequently did could deprive the

applicant's conduct of its criminal character. 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 the applicant 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 the applicant

with a view to importing heroin into the United Kingdom, but only

reacted to an offer by the applicant. 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, the applicant in the present case 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.

      As regards the applicant's submission that he was tricked into

the jurisdiction, the Commission observes that his counsel accepted

before the House of Lords that there had been nothing oppressive in

luring the applicant into the United Kingdom. Moreover, although H

appears to have made persistent efforts to persuade the applicant to

go to the United Kingdom and receive the heroin and although a customs

officer procured a visa for the applicant, the applicant decided to

travel to the United Kingdom on his own free will and in full knowledge

of the implications that his actions could have. The Commission,

therefore, considers that no appearance of a violation of Article 6

para. 1 (Art. 6-1) of the Convention is disclosed in this respect

either.

      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-a, 6-3-b)

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) 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.

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

Convention that his prosecution and conviction amounted to degrading

treatment.

      However, the Commission considers that the applicant's complaints

concerning his prosecution and conviction in principle fall to be

examined under Article 6 (Art. 6) of the Convention. The Commission has

found that no appearance of a violation of this provision is disclosed

in the circumstances of the case. The Commission also considers that

no separate issue arises under Article 3 (Art. 3) of the Convention.

      It follows 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