THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44958/98

by George ANDERSON

against the United Kingdom

The European Court of Human Rights ( Third Section ) sitting on 5 October 1999 as a Chamber composed of

Mr J.-P. Costa, President , Mr L. Loucaides, Mr P. KÅ«ris, Mrs F. Tulkens, Mrs H.S. Greve, Mr K. Traja, Mr M. Ugrekhelidze, Judges ,

with Mrs S. Dollé , Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 September 1998 by George Anderson against the United Kingdom and registered on 15 December 1998 under file no. 44958/98;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is Scottish and a British national, born in 1938 and living in Scotland .

A. Particular circumstances of the case

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

The applicant lives on the Isle of Skye an island situated on the north-west coast of Scotland . This island was linked to the mainland by ferry until 1995 when a bridge was built. The bridge is controlled by a private company and provides the only year round access and is subject to a toll. Refusal to pay the toll is a criminal offence.

The applicant was charged in the Sheriff Court at Dingwall on a summary complaint containing five charges. The court was 130 miles away from the applicant’s home although there is a court at Portree on the island of Skye . The first offence was committed on 17 October 1995. Each charge involved a contravention of section 38(1) of the New Roads and Street Works Act 1991 (“the 1991 Act”). The charges were that on the Skye Bridge crossing near the toll-booth, the applicant, being liable to pay a toll by virtue of the Invergarry -Kyle of Lockalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order 1992, without reasonable excuse refused to pay the toll.

There were about 150 other people charged at the same time as the applicant, but most people have had the charges against them dropped. The applicant did get legal aid in the form of emergency cover in the Sheriff Court .

When the applicant appeared in answer to the complaint, pleas as to competency and relevancy were put forward on 1 March 1996 but rejected by the Sheriff on 8 March 1996, and he adjourned the diet for trial, which took place on 11 April 1996. The applicant complained that on each occasion he had a reasonable excuse why he should not pay the toll. The sheriff found that the applicant’s arguments did not amount to an objective reason or reasonable excuse of any kind. All of the applicant’s reasons were subjective. The sheriff found the applicant guilty of all five charges; he imposed fines on each of the charges and ordered recovery of the fines by civil diligence.

In this case the Concession Agreement was entered into by the Secretary of State and Skye Bridge Tolls Limited on 16 December 1991. In that agreement the Secretary of State assigned the right under and in terms of the Toll Order to charge and collect tolls during the concession period, which was stated to commence on the date of issue of the Permit to Use for the crossing. On the same date those parties signed a Development Agreement which provided that on the completion of the crossing the developer would be granted the right to collect and retain tolls and operate and maintain the crossing. The agreement also provided that, following an inspection of the bridge on completion, the Secretary of State, if satisfied all was in order, would issue a Permit to Use.

The Invergarry -Kyle of Lockalsh Trunk Road (A87) Extension (Skye Bridge Crossing) Toll Order 1992 (“the Toll Order”) was made on 23 June 1992 and came into force on 26 June 1992. The Permit to Use was signed on 16 October 1995.

The applicant appealed against both conviction and sentence but subsequently only proceeded with the former appeal. On the day before the hearing the applicant was informed that he was to be granted legal aid.

The first ground of appeal was that the proceedings were incompetent since Skye Bridge Tolls Limited (who subsequently changed their name to Skye Bridge Limited) had no proper assignation of the right to collect tolls. In the Concession Agreement the Secretary of State had purported to assign the right to charge and collect tolls to Skye Bridge Tolls Limited as the Concessionaire but that purported assignation was void as the Secretary of State did not have the power to grant an assignation at that time (it was prior to the existence of the Toll Order).

On 12 November 1996 the Edinburgh Appeal Court found that there was nothing in the 1991 Act to prohibit an assignation of this type being made before execution of the Toll Order and rejected this ground of appeal. They felt it was clear from section 27(7) of the 1991 Act that it was envisaged that the contract with the developer would pre-date the Toll Order. The Court found that in effect the terms of the Concession Agreement were that there would be no transfer of the Secretary of State’s right to charge tolls until the Toll Order was made. Further at common law it was possible to grant an assignation of a right in anticipation of it coming into existence.

The second ground of appeal was that the copies of the Concession Agreement and Development Agreement provided were incomplete and this was unfair to the applicant. The Appeal Court rejected this ground on the basis that it lacked substance. There was no reason to think that there was anything in any other part of the documents which was relevant to the circumstances of the case. The information had been held back on the grounds of commercial confidentiality and counsel for the applicant had been offered the opportunity of examining the documents (on the condition that he did not disclose the missing parts of the documents to the applicant) but did not avail himself of this opportunity. If he had done and had found the documents relevant he could have made applications to the court in respect thereof.

The third ground of appeal was that it had not been established that the collection of the tolls was made by a person duly authorised by the concessionaire (the Skye Bridge Tolls Limited). The Court rejected this saying that it was reasonable to infer that the men in the toll booths had authority to collect tolls, and that by driving into the lane which was not appropriate for the toll barrier the applicant was seeking to by-pass the toll barrier and was thus refusing to pay the toll. In the circumstances the toll collectors were acting with ostensible authority and must be presumed to have been duly authorised. In any event on four occasions the bridge manager himself and on one occasion the bridge supervisor personally asked the applicant to pay and he refused.

During 1996 and 1997 the applicant was called to Dingwall court at least 14 times and went to the appeal court once. He was charged with non-payment on each occasion he refused to pay the fine during this period. On 4 December 1996 the applicant failed to appear at one of the intermediate hearing diets because he never received notification of the hearing. He was as a result arrested and held overnight in the cells. Subsequent to this in 1998 the Government enacted retrospective legislation to prevent the use of multiple intermediate diets to continue a case. He was in fact detained overnight in police cells three times and in prison for 11 days. The appeal was therefore dismissed.

On his arrest the applicant was driven 70 miles to the police station at speed and suffered pain from an old back injury and on one occasion on arrival sought pain killers from the police doctor. He had to give up his property, and was placed in a cell with a thin mattress and non-flushable toilet. He was given water and no other drink on the day of arrest. The next morning he ate his breakfast standing by the open toilet and was only allowed to wash in a sink under guard.

On 14 January 1998 the applicant wrote to the Secretary of State for Scotland seeking a review of his case because in other identical cases the prosecution submitted in evidence sections of the documents deemed to be irrelevant in his case. The Secretary of State replied on 5 August 1998 having investigated the allegations made. He concluded that the applicant was mistaken in that the documents produced by the Crown in the other cases were exactly the same as in the applicant’s case. Any additional material had been introduced by the defendants. There was nothing to suggest a miscarriage of justice.

On 16 and 19 February 1998 the applicant was charged and on 25 March 1998 the applicant was found guilty of a road traffic offence following his stopping at the toll barrier and refusing to pay the toll. The police charged him with obstruction as they had been told not to charge anyone under the Toll Order any longer. The applicant was legally represented and submitted a writ of suspension and appeal.

On 15 April 1998 the applicant also wrote to a Member of Parliament complaining about the number of people imprisoned for refusing to pay tolls, the number of intermediate diets which were fixed against him, and the lack of legal aid. The Lord Advocate replied confirming that the applicant was remanded in custody because of his repeated failure to appear in court. He was not sentenced to imprisonment as punishment on conviction for an offence. The law in respect of intermediate diets was amended in 1998. In respect of the lack of legal aid it was pointed out that he was convicted after trial on four separate occasions and his first two appeals went to a full hearing. At one of those the applicant was represented by counsel.

On 11 March 1999 the applicant did not attend court in Dingwall because he refused to pay the toll on the Skye Bridge . On 18 March 1999 the applicant wrote to the Secretary of Scotland complaining about this event. There was a further trial on this charge on 1 April 1999 relating to another charge of obstruction.

B. Relevant domestic law and practice

A summary of the relevant provisions of section 27, 28 and 38 New Roads and Street Works Act 1991 is as follows:

Section 27

(1) and (2) This empowers the Secretary of State to make a toll order relating to a special road to be provided by the Secretary of State (such as the Skye Bridge ). The power is exercisable by statutory instrument and there is no requirement for Parliamentary approval.

(5) This provides that the toll order and the special road scheme are to proceed in tandem.

(7) This envisages that the Secretary of State (where he is the roads authority) may enter a contract for the design or construction of a road which both parties intend will be subject to a toll order.

Section 28

(1) This states that the toll order may authorise the Secretary of State to assign his right to charge and collect tolls.

Section 38

It is an offence, without reasonable excuse, to refuse, fail to pay or evade a toll which a person is liable to pay by virtue of a toll order.

COMPLAINTS

The applicant complains as follows:

1. The treatment he received under police arrest was inhuman and degrading and a violation of Article 3 of the Convention, in particular having regard to his age and state of health.

2. There has been a violation of Article 5 of the Convention as he was arrested on three occasions and held overnight. On two occasions he was released without explanation as to why he had been arrested 130 miles from his home, and on the third occasion he was taken before a court for an intermediate diet which he says was itself unlawful.

3. The hearings were not independent or impartial and in violation of Article 6 of the Convention.

a) He says that his alleged offence was only criminal because it was designated as such by an act of Parliament and that, through the prosecution, the Government took an active part in the procedures against him.

b) It was wrong to deny him access to certain documents which he says would have assisted his defence.

c) The Crown chose to conduct the hearings in a court which was 130 miles away from the applicant’s home, which involved crossing the bridge and incurring a fine on each of the numerous occasions he attended court. The applicant complains this was not fair and the court appearances were a form of harassment. Further, the gap in the hearings in between March and November 1997 around the time of a general election was evidence that the judiciary was being influenced by political considerations.

4. He was not given facilities for the preparation of his defence in breach of Article 6 § 3 (c) of the Convention. Other defendants were refused legal aid on the ground that ‘it would not be in the interests of justice.’ The applicant only received legal aid at his initial hearing and only the day before the appeal was due to be heard, which gave him insufficient time to prepare.

5. There has been a violation of Article 7 of the Convention because the Secretary of State ignored a legal precedent which applied in this case and because he was informed that subsequent legislation in relation to intermediate diets could be applied retrospectively in his case.

6. The establishment of a toll barrier across the only entrance to his island home, and the refusal to allow passage for those who challenge the toll, is a violation of his rights under Article 8 of the Convention. The applicant’s four children do not live on the island and the removal of the ferry service and introduction of the new bridge have barred him from visiting his family as he is not prepared to pay the toll until he believes that the private contractor has the right to collect it.

7. The refusal to allow him to leave his island home to attend trade union, political, religious and social activities taking place on the mainland amounts to a violation of Article 11 of the Convention.

8. As the legislation relates solely to the Skye toll bridge, it discriminates against people who live in Skye or the Western Isles. These people speak the Gaelic language and with their Gaelic culture constitute a national minority as set out in Article 14 of the Convention.

The applicant complains that the courts have refused to accept that that the toll is a tax. The applicant wishes to stop the violations against him so he can exercise his rights. He also wishes to claim compensation for the cost, trauma and hardship which he has endured.

THE LAW

1. Article 3 of the Convention

The applicant alleges that the conditions of his detention by the police amounted to inhuman and degrading treatment under Article 3 of the Convention having regard to his age and health.

Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The applicant is aged 61 and does not provide any medical evidence in support of his complaint that he suffers from ill-health. The Court notes that the treatment suffered by the applicant does not appear to reach the minimum level required by the case law (Ireland v. United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162, and Tyrer v. United Kingdom judgment of 25 April 1978, Series A no. 26, pp. 14-15 §§ 29 and 30). Moreover, the applicant has not raised any allegations of ill-treatment with the authorities in the United Kingdom and this complaint could also, therefore, be declared inadmissible because of a failure to exhaust domestic remedies.

However, overall, the Court finds that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention

2. Article 5 of the Convention

The applicant complains there is a violation of Article 5 of the Convention as he was arrested on three occasions and held overnight. On two occasions he was released, without explanation as to why he had been arrested, 130 miles from his home, and on the third occasion he was taken before a court for an intermediate diet. The law in respect of intermediate diets has been changed as the old system was found to be unlawful.

Article 5 of the Convention provides so far as is relevant as follows:

“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: ...

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;

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; .....

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. .....

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

The Court notes that the applicant’s lawyer did not raise the issue of lack of explanation for arrest at the trials. In respect of the reasons for arrest, the Court recalls the surrounding circumstances of the arrest may be sufficient for the person to deduce the reasons (Fox, Campbell and Hartley v. the United Kingdom, judgment of 30 August 1992, Series A no. 182, p. 19, § 41). In this case the applicant had continually refused to pay the toll on the Isle of Skye bridge on numerous occasions and the Court notes that it must have been clear to the applicant that his arrest related in some way to his persistent contravention of the law.

The alleged abuse of the use of intermediate diets is unsubstantiated and there is no evidence submitted to confirm whether the applicant’s case fell within the ambit of the new law. In respect of the applicant’s detention this would appear to be lawful within Article 5 § 1 (b) of the Convention as it was pursuant to an obligation to attend court which was prescribed by law. In any event the Court notes that the applicant has not taken any proceedings for damages for wrongful arrest or imprisonment or in respect of the alleged wrongful use of intermediate diets. In that respect the applicant has not exhausted domestic remedies.

Again, overall the Court finds that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention

3. Article 6 of the Convention

The applicant complains that he has not received a fair hearing before an independent or impartial tribunal under Article 6 of the Convention. Firstly, he states that his alleged offence was only made criminal by Parliament and that the Government were actively involved in the proceedings against him. Secondly, the court was wrong to deny him access to certain documents which would have assisted his defence. Thirdly, it was not fair that the hearings were held so far away and their number amounted to harassment. The gap in hearings around the election was evidence that the judiciary had been influenced by political considerations.

Fourthly the applicant complains that there has been a breach of Article 6 § 3 (c) of the Convention in that other defendants and himself were denied legal aid, as a grant of legal aid would not have been in the interests of justice. The applicant complains that he himself only received legal aid at his initial court hearing and was granted legal aid only the day before his appeal court hearing.

Article 6 of the Convention provides so far as is relevant as follows:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law......

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

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; ...”

In respect of the first complaint the Court notes that the offence of which the applicant was convicted has been created by statute and therefore the applicant was charged in accordance with domestic law, falling therefore within the margin of appreciation of the State. The Court sees no reason why it should interfere in the domestic affairs of the State and finds the allegations of government involvement in the prosecution unsubstantiated.

In relation to the second complaint this Court is not a court of fourth instance and will not intervene generally on the basis that a domestic court has come to a wrong decision. The domestic court heard all the evidence against the applicant and were therefore in the best position to rule on the admissibility of evidence. There would not appear, therefore, to be any indication of a breach of Article 6 of the Convention.

The third complaint alleged that the hearings were held too far away from the applicant’s home and that there were too many. The Court does not find any arbitrariness in respect of the location for the trial, as it seems that all the other defendants also had hearings in the same place. As regards the number of hearings, it would appear that to a certain extent these were brought on the applicant by himself due to his continued breach of the law. The Court finds the applicant’s claims about the gap in the hearings because of the elections and the lack of impartiality and independence of the judiciary are unsubstantiated.

Regarding the fourth complaint, the Court notes that the offence with which the applicant was originally charged was punishable by a fine on conviction. In those circumstances it finds that the interests of justice did not require legal aid to be granted. However, in any event, the applicant did receive some legal aid assistance following charges and on appeal. His lawyer could have sought an adjournment of the appeal if he had not felt he had had sufficient time to prepare in order to adequately represent the applicant.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

4. Article 7 of the Convention

The applicant complains that there has been a breach of Article 7 of the Convention firstly because the Secretary of State for Scotland ignored legal precedent. The applicant contests the fact that in subsequent cases of an identical nature the prosecution submitted in evidence sections of documents which were deemed to be irrelevant in the applicant’s case. Secondly the applicant complains that subsequent legislation in respect of intermediate diets was applied retrospectively in his case.

The relevant part of Article 7 of the Convention provides as follows:

“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. ...”

The first allegation is in fact the same allegation as the applicant advanced under Article 6 of the Convention and is inadmissible for the reasons set out above, because the European Court of Human Rights is not a court of fourth instance. The second allegation is unsubstantiated and it would appear that the applicant’s complaint under this aspect is in fact more a question of Article 5 § 1 (b) of the Convention and also inadmissible for the reasons set out above.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention

5. Article 8 of the Convention

The applicant complains that the establishment of a toll barrier across the only access to his island home and the refusal to allow passage for him to challenge the toll amounts to an interference with his right to respect for private and family life in breach of Article 8 of the Convention. The applicant states that his four children and his grandchildren live on the mainland and the toll bridge has put an obstacle between himself and his family. The applicant will not pay the toll until he is shown that the private collector has the right to collect it, and he says that as that authority is not forthcoming for 6 months of the year he is barred from visiting his family .

The relevant part of Article 8 of the Convention provides as follows:

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

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 .... the economic well-being of the country, ... for the protection of the rights and freedoms of others.”

The Court notes that the building of the toll bridge could be said to have interfered with the right to respect to family life of the applicant in that he is now obliged to pay a toll if he wishes to visit his family and is no longer able to go so easily by ferry. However the Court finds that the applicant would have had to take a ferry in the past which would have also subjected him to expense and some inconvenience. In that sense the interference has been created by the applicant refusing to pay the toll. The applicant has not substantiated his allegation that the authority for the collection of the toll is not forthcoming for 6 months of the year. It implies that for 6 months of the year he does indeed travel to and from the island and pays the toll. The Court finds that, even if there was an interference with the applicant’s rights under Article 8 § 1 of the Convention, such interference would be justified under Article 8 § 2. The toll is levied in accordance with the law of the United Kingdom . On balance, the Court finds that, having taken into account the margin of appreciation applicable to Contracting Parties, the obligation to pay a toll may be justified for the economic well being of the country and the protection of the rights of others. The toll finances the building of the road link which would otherwise have been funded by taxpayers. The toll bridge is also likely to have improved and facilitated access to the island for those inhabitants and visitors who pay the toll. Accordingly the Court does not find a violation of Article 8 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention

6. Article 11 of the Convention

The applicant complains that he has not been allowed to leave his island home to attend trade union, political, religious and social activities taking place on the mainland.

Article 11 of the Convention as far as is relevant provides as follows:

“1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society .... for the protection of the rights and freedoms of others.....”

The Court finds that this allegation is wholly unsubstantiated. The applicant does not give details of any occasion when he has been prevented from leaving the island other than those occasions when he has refused to pay the toll.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

7. Article 14 of the Convention

The applicant complains that as the legislation relates solely to the Skye toll bridge it discriminates against the local people who live in Skye or the Western Isles. He states that the people speak Gaelic and constitute a national minority within Article 14 of the Convention, which provides:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

The Court has examined the documents submitted by the applicant. The documents do not disclose any indication that the applicant has suffered a difference in treatment on any ground such as association with a national minority or that the toll has been applied to him in a manner which might be regarded as discriminating against him in comparison to any other person who wished to travel to and from the Isle of Skye. Accordingly there would not appear to be any violation of Article 14 of the Convention.

It follows that this part of the application must be rejected as manifestly ill-founded within the meaning 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