THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44926/98

by Andrew CHIORI

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 4 May 1999 as a Chamber composed of

Mr J-P. Costa, President ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mr W. Fuhrmann ,

Mr K. Jungwiert ,

Mrs H.S. Greve ,

Mr K. Traja , 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 27 October 1998 by Andrew Chiori against the United Kingdom and registered on 11 December 1998 under file no. 44926/98;

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 a British national, born in 1975 and living in London, England.

He is represented before the Court by Ms Julie Jovvo , a lawyer practising in London, England.

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

On 25 September 1996 the applicant was arrested and charged with the burglary of a house in the London area on 4 March 1995. The arrest followed the discovery of fingerprints at the scene which were later found by the Metropolitan Police Fingerprint Branch at New Scotland Yard to match those of the applicant. The responsible fingerprint officer, Mr S. Harris, concluded that he had no doubt about the fact that the fingerprint evidence provided a correct positive identification of the applicant having regard to the number of concordant ridge characteristics between the applicant’s fingerprints and those found at the scene.

The fingerprint evidence was the only evidence linking the applicant to the burglary. The applicant maintained that he was innocent of the offence.

On 26 September 1996 the applicant was remanded in custody by Bow Street Magistrates Court. He was eventually released on bail on 17 October 1996.

While on bail the applicant’s solicitor commissioned an independent fingerprint expert, Mr R. Cook, to consider the evidence against the applicant and to prepare a report. The expert attended at different police offices to examine various aspects of the fingerprint file in relation to the fingerprint evidence. Mr Cook concluded that he was unable to agree with the findings of Mr Harris. On 24 February 1997 Mr Cook arranged a meeting with Mr Harris and another fingerprint officer from the Metropolitan Police Fingerprint Department. At that meeting the fingerprint officers demonstrated how Mr Harris had reached a positive identification of the applicant by comparing the fingerprints. Being dissatisfied with the explanations Mr Cook sought confirmation of his findings from another independent expert. The latter agreed with Mr Cook’s view that the positive identification was incorrect.

The applicant’s trial was listed for 25 February 1997 despite the concerns being voiced by the applicant’s lawyer about the shortcomings in the fingerprint evidence. The trial was in fact adjourned when the applicant failed to attend court. On 3 March 1997 the prosecution notified the applicant’s lawyer that it would be offering no evidence. On 8 April 1997 before Southwark Crown Court the prosecution formally offered no evidence, explaining that the police fingerprint officer had made an error of judgment when comparing the fingerprints. The charges against the applicant were dropped.

In a further expert report commissioned by the applicant’s lawyer in a letter dated 27 May 1998 and submitted on 28 July 1998, Mr Cook stated that this was the only case known to him where an attempt has been made to produce an erroneous identification to a court as evidence of identification. In his view, it should have been apparent to an experienced fingerprint officer that there could have been no genuine identification of the applicant on the strength of the fingerprint evidence. He concluded that there had been a serious flaw in the checking procedure. Had the procedure been rigourously adhered to, a false identification would have been excluded at an early stage. In his view, there was compelling evidence of gross negligence and incompetence on the part of members of the Metropolitan Police Fingerprint Department. However, from the information available to him he was unable to find anything to suggest that the mistake had been made with any malicious intent towards the applicant.

On 30 September 1998 counsel advised the applicant’s solicitor that an action for false imprisonment would be unlikely to succeed and that the facts did not give rise to a cause of action in negligence under domestic law, either with respect to the police or the fingerprint officer.

The applicant has applied to the Secretary of State for ex gratia payment of compensation for the time spent in custody. There is no information as to whether his request was successful.

COMPLAINTS

The applicant complains that since his arrest was based on grossly negligent fingerprint evidence it must be considered unlawful under Article 5 § 1 (c) of the Convention given that there was no “reasonable suspicion” that he had committed an offence. He further maintained that he had no enforceable right to compensation in respect of his unlawful arrest and detention since the domestic law of the respondent State only provided ex gratia compensation in such circumstances. He invokes Article 5 § 5 in this connection.

The applicant also complains that he had no right under domestic law to sue either the police or the fingerprint officer, Mr Harris, in negligence. In the first place, the police enjoyed an immunity from civil suit in respect of their activities in the investigation and suppression of crime. Secondly, witnesses such as Mr Harris enjoyed an absolute immunity in respect of their evidence and could not be sued in or for negligence. The applicant maintains that these restrictions on his right of access to a court were in breach of Article 6 § 1 of the Convention. He also complains that he had no effective remedy to secure redress in respect of his Convention grievances and invokes Article 13 on that account.

THE LAW

1 . The applicant invoked Article 5 §§ 1 (c) and 5 maintaining that his arrest and detention were unlawful since they were grounded on grossly negligent evidence and that he had no enforceable right to compensation under domestic law in respect of the wrongful deprivation of his liberty. These provisions provide:

“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:

...

(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;

...

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 recalls that Article 35 § 1 of the Convention stipulates that:

“The Court may only deal with a matter after all domestic remedies have been exhausted ... and within a period of six months from the date on which the final decision was taken.”

The Court observes that in its Brogan and Others v. the United Kingdom judgment (judgment of 29 November 1988, Series A no. 145-B) the Court noted that under the common law a person claiming that he has been unlawfully arrested and detained may bring an action seeking damages for false imprisonment (see paragraph 41). The Court considers that it would have been open to the applicant in the instant case to seek this remedy and to claim that a grossly negligent identification could not give rise to reasonable grounds for believing that the applicant had committed the offence. It would observe that where there is doubt as to the prospects of success in a particular case, it should be submitted to the domestic courts for resolution. In a common-law system, where the courts extend and develop principles through case-law, it is generally incumbent on an aggrieved individual to allow the domestic courts the opportunity to develop existing rights through interpretation. In these circumstances it must be concluded that that the applicant has not exhausted domestic remedies available to him and for that reason his complaint under Article 5 § 1 (c) must be considered inadmissible within the meaning of Article 35 §§ 1 and 4 of the Convention. In consequence the applicant’s related complaint under Article 5 § 5 cannot be examined by the Court.

2 . The applicant further complained under Articles 6 § 1 and 13 of the Convention, which provide as relevant:

Article 6 § 1

“In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

Article 13

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

Relying on counsel’s opinion, the applicant averred that he had no cause of action under domestic law since any claim in negligence against the police or any employee of the police involved in the erroneous fingerprint identification would be barred for public policy reasons. Further, an action in negligence against the police fingerprint officer would also be doomed to failure since under the common law there is an absolute immunity from any form of civil action conferred on a witness in criminal proceedings in respect of his or her evidence. In support of his arguments, the applicant relied on the cases of Hill v. Chief Constable of West Yorkshire ([1989] 1 Appeal Cases p. 53) and Evans v. London Hospital Medical College and Others ([1981] 1 All England Reports p. 57).

The applicant maintained that it was only on 28 July and 30 September 1998 when Mr Cook’s second report and counsel’s opinion were respectively delivered that it became apparent that there was no remedy available to him under domestic law. In his submission, the six-month limitation period provided for under Article 35 § 1 of the Convention should not be applied to defeat his application since the lack of an effective remedy against the police or their employees had to be viewed as an ongoing state of affairs.

The Court observes in this respect that the charges against the applicant were dropped on 8 April 1997 and he was formally discharged. The applicant never took any immediate steps to claim compensation in a negligence action against the police or against Mr Harris, the fingerprint officer whose findings led to him being arrested and charged. It was only in May 1998, more than one year after the applicant’s discharge, that his solicitor contacted Mr Cook with a view to exploring the possibility of suing the police in negligence. In a subsequent stage the opinion of counsel was sought on whether the applicant had any cause of action under domestic law. In the light of counsel’s negative opinion submitted in September 1998 the applicant never issued a writ against either the police or Mr Harris. There has accordingly never been a “final decision” by a domestic court on the applicant’s right under domestic law to sue in negligence for compensation on account of his unlawful arrest and detention.

The Court is not persuaded by the applicant’s argument that the calculation of the six-month time-limit should take account of the fact that it only became apparent in September 1998 that he had no cause of action under domestic law. It observes that the domestic case-law relied on by counsel to make his assessment considerably predates the applicant’s discharge. The position under domestic law was accordingly well known by that stage. It may in fact be questioned whether the police enjoy an absolute immunity from civil action in respect of the investigation and suppression of crime, as asserted by the applicant. It is to be noted in this connection that the Court in its Osman v. the United Kingdom judgment (28 October 1998, to be published in Reports of Judgments and Decisions 1998-VIII, §§ 138 ‑ 139) accepted that the common law rule did not automatically exclude a civil action in negligence against the police but allowed a domestic court to make a considered assessment as to whether the rule should be disapplied in a particular case.

Notwithstanding this issue with its implications for the principle of non-exhaustion, even if the applicant were correct in his interpretation of the rule on police and witness immunity, he could still be expected to bring his application within six-months of the date of his discharge when he was formally adjudged to be the victim of mistaken identification, namely on 8 April 1997. It was on that date that the applicant’s belief in his own innocence was confirmed and his cause of complaint arose.

As the application was introduced on 27 October 1998, more than six months after his formal discharge on 8 April 1997, these complaints must be considered out of time and therefore inadmissible under Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa

Registrar President