FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 16743/03
by Lancelot Scott BEALE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 12 October 2004 as a Chamber composed of:
MrM. Pellonpää, President,
SirNicolas Bratza,
MrL. Garlicki,
MrJ. Borrego Borrego,
MrsE. Fura-Sandström,
MsL. Mijović,
MrD. Spielmann, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 20 May 2003,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Lancelot Scott Beale, is a United Kingdom national, who was born in 1950 and lives in Bromham. He is represented before the Court by Messrs Clarke Willmott & Clarke, a firm of lawyers practising in Taunton.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was a sheep farmer who was under investigation by the local trading standards officers for the way in which he kept his sheep. He voluntarily attended two interviews, on 30 November 2000 and on 19 February 2001. The interviews were set up six and ten days respectively in advance. On each occasion, the applicant was cautioned, told that he was free to leave, that he could obtain legal advice, and that he could have a solicitor present at the interview. At the first interview, the applicant answered all questions. At the second, he stated at one point that he would have been happier if he had been accompanied by a solicitor.
In the proceedings, the applicant contended that the transcripts of both interviews should not be admissible as evidence. The magistrates excluded the transcript of the second interview, but admitted that of the first. On 16 May 2002, the applicant was convicted on 23 counts of causing unnecessary suffering to sheep, of failing to dispose of animal by-products, and of failing to keep proper records.
The applicant appealed, contending that the transcript of the interview of 30 November 2000 should also have been excluded from the case on the ground that the applicant had not been informed that free legal advice was available. On 11 December 2002 the High Court (Rose LJ and Fulford J) dismissed the application. It found under that domestic law, there was a right to free legal aid (from the duty solicitor) where a person was questioned at a police station, but not in circumstances where, as here, a person is questioned voluntarily in other premises and no constable is present. As free “police station” legal aid was not relevant, it could not be expected of a trading standards officer to give the applicant information as to means-tested legal advice. The High Court also considered that Article 6 § 3 (c) did not extend to requiring free legal advice to be given for initial, voluntary questioning, and that accordingly there could be no requirement to give information as to such advice. Leave to appeal was refused, regardless of whether the matter was civil (in which case the appeal would have been, with leave, to the Court of Appeal) or criminal (in which case it would have been, with a certificate that the case raise a point of law of general public importance and leave, to the House of Lords).Relevant domestic law
Section 58 of the Police and Criminal Evidence Act 1984 (PACE) grants a person arrested and “held in custody in a police station or other premises” the right to consult a solicitor “if he so requests”. The obligation to inform a person of his rights to legal advice is restricted to persons under arrest and at a police station or elsewhere in the charge of a constable (Section 118(2) PACE). Code of Practice C under PACE provides at C:3.1 that where a person is brought to a police station under arrest, or is arrested at the police station after having attended voluntarily, the custody officer must inform him of the right to consult privately with a solicitor and the fact that independent legal advice is available free of charge.
Under Code C:6.1, subject to certain provisos, all persons in police detention must be informed that they may at any time consult and communicate privately with a solicitor, and that independent legal advice is available free of charge from the duty solicitor.
Under Regulation 6 of the Legal Advice and Assistance Regulations 1989, advice given to persons interviewed at a police station (including volunteers who attend voluntarily at a police station or other place where a constable is present) is free in that it is available without reference to the person's financial resources.
A separate scheme exists whereby freestanding advice and assistance is available for those who contact a solicitor, and the solicitor determines whether the individual is eligible for the means-tested advice.
COMPLAINTS
The applicant contends that Article 6 § 3 (c) of the Convention includes the right to be told of a right to free legal assistance, and that he was denied that right. He also alleges a violation of Article 14 of the Convention as, if he had been interviewed by the police at a police station, he would have had both a right to non-means-tested free legal advice at the interview, and also a right to be told about that right.
THE LAW
The applicant alleges violation of Articles 6 § 3 (c) and 14 of the Convention, which provide as follows:
Article 6 § 3 (c):
“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...”
Article 14:
“The enjoyment of the rights and freedoms set forth in [the] 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 recalls its finding in Imbrioscia v. Switzerland that Article 6 - especially paragraph 3 - may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions (see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). As it pointed out in that judgment, the manner in which Article 6 § 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case (loc. cit., p. 14, § 38). In John Murray, the Court found a violation of Article 6 § 3 (c) and Article 6 § 1 in circumstances where the applicant was detained and denied access to a solicitor for a period of 48 hours, during which time he was interviewed on 12 occasions. As a result of his refusal to make any statements in that period, adverse inferences were drawn at his subsequent trial (see John Murray v. the United Kingdom, judgment of 8 February 1996 Reports of Judgments and Decisions1996-I, § 62).
In the present case, it was open to the applicant to consult a solicitor before attending the interviews concerned, and means-tested legal advice would have been available (if the applicant had met the relevant criteria) for such a consultation. Further, he was told at the beginning of the interview that he was free to leave at any point, and that he had a right both to obtain legal advice, and to have a solicitor present. The Court notes that when the magistrates subsequently dealt with the case, they excluded evidence based on the second interview, at which the applicant had mentioned that he would have been happier if a solicitor had been present.
In terms of Article 6 § 3 (c) of the Convention, it thus appears that the applicant had a right under domestic law to “legal assistance” in that a solicitor could have attended the interview if the applicant had wanted. In addition, he had a right to “be given it free”, even at the early stage of the proceedings, in that it would have open to him to apply for freestanding advice and assistance before the interview. If the applicant had been eligible for advice and assistance under that scheme, the solicitor could have advised the applicant as to how to approach – or indeed, whether to attend - the interview. The Court has not been made aware of any circumstances which could indicate that the “interests of justice” required the applicant actually to be represented at that early interview. There is no suggestion that the application was under any particular pressure at the first interview, and the transcript of the second interview, during which he stated that he would have been happier if his solicitor had been present, was excluded from his subsequent trial.
In view of these considerations, the Court does not accept the applicant's claim that Article 6 § 3 (c) required more legal assistance than was available to him in the present case.
As to the applicant's contention that his circumstances disclose a violation of Article 14 of the Convention by virtue of the difference between the treatment afforded to him and the position if he had been detained by the police, the Court recalls that for the purposes of Article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (for example, Pretty v. United Kingdom, no. 2346/02, ECHR 2002-III, § 88). Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi v. the Netherlands, no. 28369/95, ECHR 2000-X, § 37).
The applicant's claim is that the relevant provisions of the Police and Criminal Evidence Act 1984 (PACE) should have applied because there was no difference between the position of the trading standards officer and a policeman, the more so as the free “police station” advice available under Regulation 6 of the Legal Advice and Assistance Regulations 1989 applied to volunteers who were interviewed at any premises where a constable was present.
The Court first notes that the applicant did not raise the question of Article 14 before the High Court. It is therefore not clear whether he has exhausted domestic remedies in this respect, as required by Article 35 § 1 of the Convention.
In any event, the roles of the police and the civilian trading standards are fundamentally different. Where the police have specific powers of arrest over and above the powers of the ordinary population, trading standards officers investigate non-arrestable offences (such as those in the present case), and, whilst they have certain powers in connection with searches, they have no particular power to arrest. There is therefore no question of immediate loss of liberty where trading standards officers investigate offences, and correspondingly no need for the protection provided by PACE.
Accordingly, the situation where trading standards officers investigate offences is not “relevantly similar” to that of the police, such that different treatment of the two situations is not “discriminatory”.
Further, the difference in treatment is not based on “sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”, as referred to in Article 14 of the Convention. On the contrary, the difference is based on the different positions and roles of the police on the one hand, and investigators such as trading standards inspectors on the other.
It follows that the application is manifestly ill-founded within the meaning of Article 35 § 3, and must be rejected pursuant to Article 35 § 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'BoyleMatti Pellonpää
RegistrarPresident
Full & Egal Universal Law Academy