THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 53429/99 by Rodney Walter LEE against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 16 May 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr L. Loucaides, Sir Nicolas Bratza, Mrs H.S. Greve, Mr K. Traja, Mr M. Ugrekhelidze, judges , and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced on 7 September 1999 and registered on 15 December 1999,

Having deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1949 and living in Pensby , England.

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

On 10 March 1997 the applicant, at the time a police sergeant, was suspended from duty for four months on account of his failure to co-operate in an internal investigation into allegations that a police officer had been illegally supplying steroids. The Discipline Officer of the Police Complaints and Discipline Department alleged that the applicant had attempted to pervert the course of justice and had deliberately withheld information. Another police officer received a similar suspension.

According to the applicant, pressure was brought to bear on him to lie in order to incriminate the police officer. Although questioned under caution, he was not allowed to see a solicitor. Criminal charges were not brought against the applicant on the advice of the Crown Prosecution Service (“CPS”). According to the CPS, there was insufficient evidence to charge the applicant.

The applicant’s suspension was lifted in July 1997 and he returned to duty. The applicant continued to complain about the way he had been treated by the Discipline Officer and his investigating team.

The applicant was due to retire on grounds of ill-health on 30 March 1998. On 10 March 1998 he was informed that he faced disciplinary proceedings for having failed to provide a statement for the purposes of the investigation into the above-mentioned drug allegations. The charge was that of neglect of duty.

The disciplinary hearing, chaired by the Chief Constable of Merseyside Police, took place over four days in September 1998. The applicant was legally represented. On 16 September 1998 the applicant was found guilty of neglect of duty and received a reprimand. In the conclusion of the Chairman:

“A police officer has a duty to make statements, he/she has a duty to clarify and remove ambiguities if asked, and should get on with it. ... An investigating officer does not and should not have to negotiate over statements from a police officer. There should not be any delays or arguments about what officers may wish to say or what they feel is appropriate to say. Police officers have to tell what they know and get on with it.”

On 19 March 1999 the Secretary of State dismissed the applicant’s appeal under section 37 of the Police Act 1964 as amended. The Secretary of State approved the Chairman’s conclusion and further added that he believed that the applicant was aware that there was more information that he could have provided and which was wanted, and that he should have co-operated. The Secretary of State also found that the Chairman had taken sufficient account of the applicant’s submissions that he was the victim of an abuse of process as well as of his assertion that a statement produced during the disciplinary hearing had been forged.

COMPLAINTS

The applicant alleges that he was denied legal assistance when charged with attempting to pervert the course of justice. He further alleges that the disciplinary proceedings were unfair and were a disguised attempt to resurrect the criminal charge.

THE LAW

The Court will consider the applicant’s complaint from the standpoint of Article 6 of the Convention, in particular the applicability of that provision to the facts and allegations relied on. Article 6 provides to the extent relevant:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ...hearing by an independent and impartial tribunal established by law.

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

(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;”

The Court observes at the outset that the applicant never stood trial on a charge of attempting to pervert the course of justice. It appears from the information submitted that the Crown Prosecution Service advised that there was insufficient evidence to secure his conviction. It is not open to the applicant to complain under Article 6 § 3 (c) that he was denied the right to consult a solicitor when first confronted with the charge by the Discipline Officer. The Court observes in this connection that Article 6 § 3 (c) does not in principle guarantee a free-standing right to an accused to have immediate access to a lawyer when questioned, even under caution, about criminal charges which are not pursued.

The Court does not accept the applicant’s contention that the disciplinary proceedings taken against him involved in reality the determination of a “criminal charge” within the meaning of Article 6 § 1 of the Convention. The Court recalls that the notion of “criminal charge” is an autonomous concept (see the Engel and Others judgment of 8 June 1976, Series A no. 22, pp. 33-35, §§ 80-82). It further recalls the criteria which it has established in this connection: the classification of the offence under national law, the nature of the offence and the nature and severity of the penalty which the applicant risked incurring, ( ibid .). In the instant case, the Court considers decisive for its determination the fact that the applicant, if found guilty, risked dismissal from the police service, a typical sanction for a disciplinary offence in the police service. At no stage did he risk any form of deprivation of liberty or fine. In the event, he received a reprimand.

The Court concludes accordingly that the impugned proceedings were of an internal disciplinary nature seen against the background of the relevant police disciplinary regulations and sanctions. The applicant’s complaints about the fairness of the proceedings are therefore incompatible ratione materiae with the provisions of the Convention and inadmissible in application of Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa Registrar President