FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 65327/01 by Philip HALL against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 19 February 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza ,

Mr A. Pastor Ridruejo , Mrs E. Palm , Mr J. Makarczyk , Mrs V. Strážnická , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 8 August 2000 and registered on 29 January 2001,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Philip Hall, is a United Kingdom national, who was born in 1975 and lives in Warwickshire. He is represented before the Court by Mr Engel, a lawyer practising in Birmingham.

A. The circumstances of the case

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

The applicant was arrested and charged with various offences relating to the supply of heroin to a police officer named “Dave”. On 24 September 1998, in the Magistrates’ Court, the applicant pleaded guilty to the charges, and the case was committed to the Crown Court for sentence.

On 16 October 1998 the applicant’s counsel requested the Crown Court judge to allow the applicant to withdraw his pleas, since, on reading the papers, it appeared to counsel that “Dave” had been acting as an agent provocateur . The pleas were vacated and the matter was remitted to the Magistrates’ Court, which duly committed the applicant for trial in the Crown Court.

The defence requested the disclosure of additional evidence including, inter alia , the names and ranks of “Dave”, the alleged agent provocateur , and another officer, known as “ Jen ”, who had been working undercover with him. On 17 February 1999 the judge gave a written ruling, in which he decided that it was not necessary to hold a hearing on disclosure and refused to order the disclosure requested. He observed, inter alia :

“I have now read the papers, and it is clear that the basis of the Defence submission is that full details of ‘Dave’ and ‘ Jen ’ as mentioned in the papers should be made available. To form a judgment upon the facts before me, I had to review the Prosecution’s case so that I can determine what is to my mind relevant and also to ensure that there is no harm nor prejudice to the Defence.

The Prosecution’s case is that both ‘Dave’ and ‘ Jen ’ were taking part in an undercover operation, which by its very nature would be a dangerous mission and in the course of this approved operation they allege that the offences charged were committed. The Defence argue that the relevance is that they suggest that although the basic facts are not disputed, the actions of ‘Dave’ and ‘ Jen ’ amount to an incitement to the [applicant] to supply drugs or to entrapment. The issue as to whether what happened amounts to the commission of the offence are clearly matters of law and fact, and will be matters for the consideration of the Judge and Jury at the trial if the pleas of ‘not guilty’ are maintained. I do not accept that the information required by the Defence is relevant to the issues in this case. There is no risk of any prejudice to the defendant.

Furthermore, even if it is possible to infer incitement and/or entrapment, if it has any relevance at all, it could only go to sentence.

... It seems that the Defence wish to proceed with an Abuse of Process application on the same point. If this is to proceed, it can be listed on the day before the trial ... .

The Defence should finally be reminded of the terms of section 48 of the Criminal Justice and Public Order Act 1994 [which provides for a reduced sentence following a guilty plea].”

Apparently in the light of the judge’s comments, the applicant did not proceed with an abuse of process application and on 16 April 1999 the he changed his pleas to guilty.

The applicant then sought leave to appeal to the Court of Appeal on various grounds relating to, inter alia , disclosure, abuse of process and exclusion of evidence under section 78 Police and Criminal Evidence Act 1984 (“PACE”). This application was refused on the papers on 26 July 1999. A renewed oral application was rejected on 23 February 2000, the Court of Appeal observing as follows:

“Mr Engel makes a number of points about the ruling [of 17 February 1999] which led to the pleas of guilty being entered, and they form the basis of this application. They can be succinctly stated:

1. The learned judge should not have decided the issue of abuse of process on the basis that Dave acted as an agent provocateur, or that material prosecution evidence was excluded pursuant to section 78 of PACE without hearing defence submissions.

2. That the learned judge was wrong to conclude that incitement and/or entrapment could only be relevant to sentence.

3. That coming to these conclusions without consideration of defence submissions violated the right of the appellant to a fair trial pursuant to Article 6 of the European Convention on Human Rights.

4. That the reference by the learned judge to section 48 of the Criminal Justice and Public Order Act 1994 at the end of his ruling had the effect of asserting unacceptable pressure upon the appellant to change his pleas ... .

... In the judgment of this Court the [Crown Court] judge correctly ruled that the information requested should not be disclosed. There was no prejudice to the applicant in the conduct of his defence in not knowing of that information. The fact that Dave was a police officer was disclosed. The details about him were irrelevant, and disclosure would not have been potentially prejudicial to the defence. Indeed, it would have been potentially harmful and dangerous to the police officers involved in this undercover operation.

Contrary to Mr Engel’s submission, the learned judge did not deal with the abuse of process argument. He indicated that specifically by saying that he anticipated that there would be an abuse of process hearing in the future. ...

His remark that ‘incitement and/or entrapment’ can only go to sentence was no doubt prompted by the fact that neither can amount in law to a defence. He did not go on to say, as is the case, that both might form the basis of an application to exclude evidence under section 78 PACE, but nevertheless that was obvious. The effect of this was that the judge only ruled on disclosure. It is difficult in those circumstances to understand why the applicant felt bound to change his pleas as a result of the judge’s ruling. There remained for hearing an abuse of process application and a section 78 application if the defence considered that they were appropriate. ...”

The Court of Appeal refused to grant legal aid for the appeal proceedings.

B. Relevant domestic law and practice

The term “ agent provocateur ” was defined by the Royal Commission on Police Powers 1928 ( Cmd . 3297) as “a person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds to inform against him in respect of such an offence”.

The fact that the defendant would not have committed the offence were it not for the activity of an agent provocateur is no defence under English law ( R. v. Sang [1980] Appeal Cases p. 402, House of Lords judgment). The trial judge does, however, have a discretion to exclude evidence obtained by an agent provocateur under section 78 of the Police and Criminal Evidence Act 1984 where, inter alia , the defendant would not have committed the offence without the police incitement ( R. v. Smurthwaite ; R. v. Gill (1994) vol. 98 Criminal Appeal Reports p. 437, judgment of the Court of Appeal).

COMPLAINTS

The applicant complains under Article 6 § 1 of the Convention that the police officers incited the commission of the offence and that their actions deprived the applicant, from the outset, of a fair trial. He complains under Article 6 §§ 1 and 3 that the Crown Court judge’s ruling on disclosure was made in private and without having heard submissions from the defence. He submits under Article 6 § 2 that the judge’s reference in his ruling to section 48 of the Criminal Justice and Public Order Act 1994 exerted irresistible pressure on him to enter pleas of guilty and further complains that the judge ruled against him on the questions whether the police action could form the basis of abuse of process/section 78 PACE applications. Finally, he complains under Article 6 § 3(c) that he was refused legal aid for the appeal proceedings.

THE LAW

1. The applicant refers to the Court’s Teixeira de Castro v. Portugal judgment of 9 June 1998, Reports 1998-IV, and submits that, without the incitement of the undercover police offices, he would not have committed the offence. He complains that the police action deprived him of a fair trial, contrary to Article 6 § 1 of the Convention, which provides, as relevant:

“In the determination ... of any criminal charge against him, everyone is entitled to a fair and public hearing ...”

The Court recalls that, in accordance with Article 35 § 1 of the Convention, it may deal with a matter only after all domestic remedies have been exhausted. It notes that, although the fact that a defendant would not have committed an offence were it not for the activity of an agent provocateur is no defence under English law, police incitement can form the basis of an application to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 and it can also be a ground to have a prosecution struck out for abuse of process. Following the Crown Court judge’s ruling on disclosure, the applicant entered a guilty plea to the offences charged, and thus failed to exhaust domestic remedies by pursuing applications under section 78 PACE and/or for abuse of process.

It follows that this complaint must be rejected under Article 3 5 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. In addition, the applicant complains under Article 6 §§ 1 and 3(a),(c) and (d), about the judge’s ruling on disclosure. Article 6 § 3 provides, as relevant:

“3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

The Court recalls that it is a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which relate to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial means, in a criminal case, that both prosecution and defence must be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party. In addition Article 6 § 1 requires, as indeed does English law, that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused (see Fitt v. the United Kingdom [GC], no. 29777/96, § 44, ECHR 2000).

However, the Crown Court judge, who was well versed in the issues and evidence in the case, decided that the evidence which the defence sought the prosecution to disclose was not relevant to the applicant’s case and that there was no risk of prejudice to the applicant because of its non-disclosure. For this reason he decided that it was not necessary to hold a hearing on public interest immunity or to order disclosure. His ruling was upheld by the Court of Appeal. In these circumstances, the Court does not consider that the applicant can complain of being deprived of a fair trial by reason of the ruling on disclosure (see the above-mentioned Fitt judgment, §§ 45-50).

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant also complains that the judge’s reference in his ruling to section 48 of the Criminal Justice and Public Order Act 1994 violated his rights under Article 6 § 2, which provides:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court notes that, at the end of his written ruling on disclosure, the judge commented: “The Defence should finally be reminded of the terms of section 48 of the [Criminal Justice and Public Order Act 1994]”. This section provides for a reduced sentence following a guilty plea.

The Court does not agree with the applicant that this comment by the judge placed irresistible pressure on the accused to plead guilty. Nor does the Court consider that this comment indicated that the judge had failed to have regard to the presumption of innocence. At the most, the comment allowed the applicant to make an informed choice about the options open to him.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

4. The applicant’s second complaint in relation to Article 6 § 2 is that the judge’s statement that “even if it is possible to infer incitement and/or entrapment, if it has any relevance at all, it could only go to sentence”, predetermined the abuse of process argument and thus violated the presumption of innocence.

However, whilst it does appear that the judge’s comment that police incitement or entrapment could be relevant only to the issue of sentence was not a fully accurate statement of English law, the applicant’s argument under Article 6 § 2 regarding this comment is, as the Court of Appeal made clear, based on a fundamental misunderstanding of the judge’s ruling. Far from deciding the abuse of process question, the judge made reference to the listing arrangements for such an application to take place on the day before the trial date. The applicant, however, decided to plead guilty rather than pursue any such application.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

5. Finally, the applicant contends that the failure to award him legal aid for the appeal proceedings breached his rights under Article 6 § 3(c).

The applicant was represented by counsel throughout the appeal proceedings, but that legal aid was not awarded to cover counsel’s costs. The Court notes that the applicant pleaded guilty to the charges against him, and can therefore be presumed to be guilty as charged. In these circumstances, there was no basis for an appeal against conviction, and the interests of justice did not require the grant of legal aid.

It follows that this complaint is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President