FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53741/00 by Stephen Alexander CROWTHER against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 27 August 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 9 February 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant,  Stephen Alexander Crowther, is a United Kingdom national, who was born in 1946 and lives in East Sussex, England. He is represented before the Court by Mr P.A. Kealey, a lawyer practising in Londonderry.

The circumstances of the case

The facts of the case, as submitted by the applicant , may be summarised as follows.

In December 1990 the applicant was convicted in Northampton Crown Court of a drug offence and on 21 March 1991 he was sentenced to six years’ imprisonment. On the same date, a confiscation order in the sum of GBP 22,000 was imposed, with a term of 18 months’ imprisonment to be served consecutive to his main sentence if he failed to make the payment by 21 March 1992.

The confiscation order was lodged with the magistrates’ court for enforcement. Between March and October 1992 correspondence was exchanged between the magistrates and Customs and Excise, which terminated when Customs and Excise confirmed that the order had not been paid, but that they had not applied to the High Court to appoint a receiver in the attempt to identify any realisable assets held by the applicant and that they were awaiting further instructions from their Asset Forfeiture Unit.

The applicant was released from prison in May 1994. He had not paid the money due under the confiscation order, but the order had not been enforced. In January 1996 Customs and Excise contacted the applicant’s solicitors to inform them that they were still interested in enforcing payment of the order. In December 1996 the Magistrates’ Court issued enforcement proceedings and on 3 June 1998 the applicant was committed to prison for 15 months for non-payment of the sum outstanding (he had managed to pay GBP 2,600).

On 7 August 1998 the applicant was granted leave by the High Court to apply for judicial review of the magistrates’ decision. On 14 October 1998 the High Court refused his application for judicial review, holding that there was no reason to construe the word “consecutive” in the confiscation order in such a strict manner as to mean “in unbroken succession to the time served under the original order”. Lord Justice Brooke in the High Court described the delay on the part of the enforcement authorities between October 1992 and January 1996 in enforcing the order as “wholly unexplained”, and Mr Justice Sedley observed that the “Customs and Excise’s inertia between March 1992 and January 1996 was both inexcusable and, given that somebody’s liberty was involved, unconscionable”. However, the High Court held that, as a matter of English law, once the confiscation order had been made the onus was on the applicant to pay, and “any continuing lapse of time is then in the eye of the law a product of the failure to pay, not of the failure to enforce”. On 19 October 1998 the High Court refused leave to appeal to the House of Lords.

COMPLAINTS

The applicant complains under Articles 5, 6 and 8 of the Convention about the delay in the enforcement of the confiscation order.

THE LAW

1. The applicant complains that his imprisonment in default of payment of the confiscation order was not “in accordance with a procedure prescribed by law”, in breach of Article 5 of the Convention, which provides:

“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:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ...”

The applicant submits that according to the terms of the order made by the Crown he should serve the sentence of imprisonment in default of payment of the order “consecutive” to the sentence imposed for the drugs offence. He contends that, in order to comply with the order, he should have been required to serve the extra fifteen months’ imprisonment immediately following the expiry of his six year sentence. The interpretation taken by the High Court of the word “consecutive” was too uncertain, since it meant that the default sentence could start at any time after the completion of the substantive sentence.

The Court recalls its finding in Phillips v. the United Kingdom , no. 41087/98, § 34, ECHR 2001-VII), that the fixing of the amount of a confiscation order and of the sentence to be served in default of payment is analogous to the determination by a court of the amount of a fine or the length of a period of imprisonment to impose upon a properly convicted offender. It considers that the default sentence of detention imposed on the applicant in the present case falls most appropriately within subparagraph (a) of Article 5 § 1.

Where the “lawfulness” of detention is in issue, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see Stafford v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002-...).

In the Weeks v. the United Kingdom judgment of 2 March 1987, Series A no. 114, § 42, cited in the Stafford judgment, § 64, the Court held that the lawfulness required by the Convention presupposes not only conformity with domestic law but also, as confirmed by Article 18, conformity with the purposes of the deprivation of liberty, in that case, under sub-paragraph (a) of Article 5 § 1. Furthermore, it held that the word “after” in sub-paragraph (a) does not simply mean that the detention must follow the “conviction” in point of time: in addition, the “detention” must result from, “follow and depend upon” or occur “by virtue” of the “conviction”. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue.

It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see the Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-I, § 41). In the present case the Court notes that, in the judicial review proceedings brought by the applicant, the High Court found that the detention ordered by the magistrates was lawful. In these circumstances, it is not for the Court of Human Rights to substitute an alternative interpretation of the word “consecutive” as used in the confiscation order, an interpretation which the Court does not find to be arbitrary.

Furthermore, the Court finds that under the terms of the confiscation order it was clear to the applicant that he would be required to serve the fixed sentence of imprisonment in the event that he failed to pay the amount ordered within the time given. It considers that the legal position was certain enough for the purposes of the Convention and that the fifteen month sentence of detention had a sufficient causal connection with the original conviction and confiscation order.

It follows that this complaint is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant also complains of a violation of Article 6 § 1 of the Convention, which states:

“In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”

The applicant submits that the sentence against him was not finally determined until the magistrates made the order for committal to prison on 3 June 1998 and that, whether the starting point is taken as the date on which the confiscation order was made (21 March 1991) or the date on which he became liable to imprisonment for non-payment (22 March 1992), the proceedings were unreasonably long.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this part of the application and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of the Court, to give notice of this complaint to the respondent Government.

3. Finally, the applicant complains under Article 8 that his return to prison after a period of four years at liberty constituted an unjustified interference with his private and family life. Article 8 provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Court refers to its above findings that the sentence of imprisonment in default of payment served by the applicant was “lawful” within the meaning of the Convention and foreseeable by the applicant. It recalls that the detention was imposed as part of the sentence following the applicant’s conviction for a drugs offence. It considers that the applicant’s complaints about the additional stress and disruption caused by the delay in the enforcement of the order fall more appropriately to be considered under Article 6 § 1, and it finds that the complaint under Article 8 is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant’s complaint concerning the length of the proceedings;

Declares inadmissible the remainder of the application.

Michael O’Boyle Matti Pellonpää Registrar President