AS TO THE ADMISSIBILITY OF
Application No. 30308/96
by Ian FAULKNER
against the United Kingdom
The European Commission of Human Rights (First Chamber) sitting
in private on 21 May 1998, the following members being present:
MM M.P. PELLONPÄÄ, President
N. BRATZA
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
Mrs M.F. BUQUICCHIO, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 6 February 1995
by Ian FAULKNER against the United Kingdom and registered on
27 February 1996 under file No. 30308/96;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
18 July 1997 and the observations in reply submitted by the
applicant on 21 November 1997;
- the further observations submitted by the respondent Government
on 27 February 1998 and the observations in reply submitted by
the applicant on 7 May 1998;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in England in 1944. He
is a writer and resides in Guernsey. In the proceedings before the
Commission he is represented by Messrs Jonathan Cooper, Ben Emmerson
and Helen Mountfield, all three barristers practising in London.
The facts of the case, as they have been submitted by the
parties, may be summarised as follows:
A. Particular circumstances of the case
On 22 June 1989 the Royal Court in Guernsey issued an arrest
warrant against the applicant for an offence under section 18 (1) (b)
of the Theft (Bailiwick of Guernsey) Law 1983. On 23 June 1989 at 20:29
the applicant was arrested by the Surrey Constabulary in Surrey,
England. According to a statement made by the police officer who
carried out the arrest, which is contested by the applicant, the
applicant was informed that he was suspected of deception. The Surrey
police also seized the applicant's car. On 24 June 1989 the applicant's
arrest warrant was backed for execution by a judge in Surrey.
The applicant claims that, during his detention in Surrey, his
repeated requests to have access to a solicitor were refused. He also
claims that he was questioned by a police officer who had come from
Guernsey.
On 25 June 1989 the applicant was escorted by the above-mentioned
police officer to Guernsey. He arrived at the local police station at
17:55. He was examined and at 20:50 he was charged with an offence
under section 18 (1) (b) of the Theft Law. The Guernsey police seized
his watch on the ground that it was property which was likely to be the
subject of a charge. The watch was never returned to the applicant as
it subsequently became the subject of a seizure by H.M. Sheriff in
order to satisfy a civil judgment debt obtained against him in the
Guernsey courts.
On the morning of 26 June 1989 the applicant appeared before a
magistrate in Guernsey. He was represented by a lawyer whom the
applicant met in court that day and who offered his services on a
voluntary basis. The magistrate ordered the applicant's release on
bail, on condition that he report to the police every day, that he post
a surety of £1,000 and he surrender his passport. At about 15:30 on the
same day, a friend of the applicant deposited the amount fixed for bail
at a police station in England. At 17:21 the English authorities
officially informed the Guernsey authorities that the money would be
transferred to them. However, H.M. Greffier decided that the monies
could not be accepted until he had been assured that the applicant's
friend had been advised of the consequences of posting the surety.
On 27 June 1989 at about 11:55 the applicant's friend was advised
by the Guernsey authorities that a faster means of lodging the surety
would be to transfer the monies to a bank in Guernsey in the
applicant's name. The friend did that and the applicant was taken on
foot and hand-cuffed from the prison to a bank in St. Peter's Port
where he collected the monies and then to the Crown Office -the Greffe-
where he deposited the bail. He was released at 14:35 on 27 June 1989.
After his release, the applicant applied to the H.M. Procureur
for legal aid in connection with the criminal proceedings and seven
civil law actions recently brought against him. He was not referred to
an advocate under the voluntary legal aid scheme. However, according
to the Government but contested by the applicant, the applicant was
referred to Ms F who agreed to represent him on a private client basis.
The applicant claims that he was not informed that, in the event of
acquittal, his legal costs would not be recoverable.
On dates which have not been specified, the applicant was charged
with three additional offences under section 18 (1) (b) of the Theft
Law and an offence under section 38 (2) (b) of the Protection of
Investors (Bailiwick of Guernsey) Law 1987. The Government submit that
the applicant effectively consented to being tried by the Magistrate's
Court by not electing for trial before the Royal Court. The applicant,
however, claims that he requested that he should be tried by the Royal
Court, which usually deals with more serious offences, but his request
was denied.
The applicant's bail conditions were altered on two occasions,
on 15 July 1989 when he attended his daughter's wedding in England and
in January 1991 when he went to Oxford to continue his education at
Plater College.
On 18 January 1991 the applicant appeared before the Magistrate's
Court and pleaded not guilty to the charges under the Theft Law. By
letter of 28 January 1991, the applicant's counsel informed the
applicant that an agreement had been reached with H.M. Comptroller that
the charge under the Protection of Investors Law would not be placed
before the Magistrate who would examine the four charges under the
Theft Law.
On 22 April 1991 the applicant was tried by a Magistrate on the
four charges under the Theft Law. On 26 April 1991 he was acquitted and
was remanded on conditional bail on the charge under the Protection of
Investors Law. The bail conditions were that he post a surety of £500
and that he report to the police on a monthly basis.
According to local custom, after the applicant had been
acquitted, his representative decided on the fee that he should be
charged. On 30 July 1991 the applicant was asked to pay his lawyer's
fees.
On 4 November 1991 H.M. Comptroller wrote to applicant's counsel
that no further action would be taken against the applicant regarding
the outstanding charge under the Protection of Investors Law.
On an unspecified date, the applicant applied for legal aid with
a view to instituting proceedings for unlawful imprisonment against the
Surrey Constabulary. His application was refused on the ground that,
on the information available, he had no reasonable prospects of
establishing liability in the proceedings. The applicant appealed on
10 January 1992. On a date which has not been specified, his appeal was
refused.
On 3 April 1992 the outstanding charge against the applicant was
formally dismissed by the Magistrate's Court in Guernsey. On
15 February 1993 the applicant was informed by his lawyer that there
was no procedure by which he could recover costs incurred in criminal
proceedings in Guernsey.
On 12 October 1994 the applicant wrote to H.M. Comptroller to
complain that no lawyer in Guernsey would be prepared to represent him
because of the fees he still owed to the lawyer who represented him in
the criminal proceedings. On 19 October 1994 H.M. Comptroller advised
the applicant that he could not make any constructive comment because
the applicant had not indicated the civil matter he wished to pursue,
the likely cost of pursuing it and his means and earnings. Moreover,
the applicant had not indicated whether he had approached Advocate F
(the lawyer who had represented him in the criminal proceedings), with
a view to Ms F's providing the applicant with a letter to the effect
that she was content if the applicant should approach another Advocate,
and that that Advocate should represent the applicant, notwithstanding
that the applicant had not settled her fee note.
On 28 December 1994 the applicant received the following advice
from H.M. Procureur regarding legal aid in criminal proceedings in
Guernsey: "In the case of (criminal) proceedings in the Magistrate's
Court a person who has very limited assets and income may apply to the
Greffe for an Advocate to be allocated on the voluntary Legal Aid Rota
Scheme. The Scheme is not a free legal aid scheme. It is run for the
benefit of accused persons with very limited assets and means. An
Advocate is entitled to make a charge if it appears after conducting
a more exhaustive investigation of means and income that an applicant
can afford to make payment." Insofar as the applicant considered that
the Crown should pay his fee bill, the Procureur made it clear that
"neither the Crown nor the States provide funding in such a case."
On 8 February 1995 the applicant held a discussion with
H.M. Greffier concerning legal aid. On 9 February 1995 the Greffier
wrote to the applicant that, although he did not know the precise
nature of the matters the applicant wished to pursue, as the applicant
did not wish to divulge them fully to him, he could, nevertheless,
inform the applicant that no legal aid was available for the
institution of civil proceedings in Guernsey.
B. Relevant domestic law and practice
Legal aid and costs in criminal proceedings
Guernsey law does not provide for a legal aid scheme for criminal
proceedings in the Magistrate's Court. However, there exists a scheme
whereby a defendant in such proceedings who has limited assets and
income, or where the interest of justice otherwise require, may apply
to H.M. Greffier for an Advocate to be allocated on the voluntary legal
aid rota scheme. The way in which this scheme works is that, once a
defendant has been allocated an Advocate under the Scheme, he will
receive representation in the criminal proceedings and will not be
billed by the Advocate for legal expenses during the course of the
proceedings. At the end of the proceedings, if, after a more exhaustive
investigation, the Advocate determines that the defendant does, in
fact, have sufficient means, he may make a charge for the work carried
out. However, if the defendant does not have adequate means, he will
not be charged.
No provision is made in Guernsey law for the recovery of the
legal costs of a defendant from the prosecution or central funds in the
event of an acquittal.
Representation and legal aid in civil proceedings
Guernsey law and practice do not provide for a formal civil legal
aid scheme. Proceedings in the Petty Debt Court (for proceedings
started on or after 3 April 1984, £1000 was the maximum claimable; for
proceedings started on or after 2 February 1997, £2500 is the maximum)
can be instituted in person without involving an Advocate. In
proceedings before the Royal Court (there is no limit on the amount
claimable) the Summons must be signed by an Advocate. Thereafter, a
plaintiff may represent himself without the need of an Advocate.
Contingency fees and pro bono representation are not excluded in
Guernsey.
As to the possibility of instructing an Advocate in civil
proceedings when outstanding fees to that or another Advocate have not
been paid, it is normal practice amongst Guernsey Advocates not to
release their files on request from a client until outstanding fees
have been paid. Pursuant to the Guernsey Bar's Rules of Professional
Conduct, an Advocate must refuse to act for a person in relation to a
matter, if that person owes fees to another Advocate in relation to
that or another matter. This rule does not apply, however, where the
client has reached an arrangement with his advocate for payment of fees
and is complying with that arrangement. Nor would it preclude an
Advocate for doing work, such as signing a Royal Court Summons, free
of charge.
The Government claim that the fee for signing a Royal Court
Summons is relatively low, perhaps no more that £50. They also claim
that the informal legal aid assignment scheme run by the Guernsey Bar
may be used exceptionally in civil litigation, and certainly to the
extent of providing assistance for the preparation and service of the
necessary summons.
COMPLAINTS
1. The applicant complains under Article 5 of the Convention that
he was held in custody for three days before being brought before a
judge, something which constituted a breach of national law. He also
complains under Article 5 para. 4 and 5 that there did not exist any
speedy proceedings by which he could challenge the lawfulness of his
detention and seek an order for his release in Guernsey. Moreover, the
applicant had originally complained that he was released two days after
he had been granted bail. However, in his observations in reply, he
accepted that he was released from custody one day after he had been
granted bail.
2. Moreover, the applicant had originally complained under Article 3
of the Convention that on 28 June 1989 he was made to march hand-cuffed
through the crowded streets of St. Peter's Port to collect the bail
money himself. In his observations in reply, the applicant accepted
that this had happened on 27 June 1989.
3. The applicant further complains under Article 6 of the Convention
that, although he has been acquitted, he is still liable under Guernsey
law for his defence costs.
4. Finally, the applicant complains under Articles 6 and 13 of the
Convention that he cannot institute proceedings in connection with the
above-mentioned complaints.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 6 February 1995 and registered
on 27 February 1996.
On 26 February 1997 the Commission decided to communicate to the
respondent Government the applicant's complaints concerning the time
which lapsed between the applicant's arrest and his first appearance
before the magistrate, insofar as the responsibility of the Guernsey
authorities is involved, the applicant's release two days after he was
granted bail, the fact that the applicant was taken on foot and hand-
cuffed from the prison to a bank and then to the Crown Office on
28 June 1989, the applicant's liability for the costs of his defence
and the alleged impossibility of instituting proceedings in Guernsey.
It declared the remainder of the application inadmissible.
The Government's written observations were submitted on
18 July 1997, after an extension of the time-limit fixed for that
purpose. The applicant replied on 21 November 1997, also after an
extension of the time-limit.
On 27 February 1998 the Government submitted further observations
in writing. The applicant replied on 7 May 1998.
THE LAW
1. The applicant complains under Article 5 (Art. 5) of the
Convention that he was held in custody for three days before being
brought before a judge, something which constituted a breach of
national law and that his release from custody was delayed for a
further day after he had been granted bail. He also complains under
Article 5 para. 4 and 5 (Art. 5-4, 5-5) that there did not exist any
speedy proceedings by which he could challenge the lawfulness of his
detention and seek an order for his release in Guernsey. Moreover, the
applicant complains under Article 3 (Art. 3) of the Convention that on
27 January 1991 he was made to march hand-cuffed through the crowded
streets of St. Peter's Port to collect the bail money himself. Finally,
the applicant complains under Article 6 (Art. 6) of the Convention
that, although he has been acquitted, he is still liable under Guernsey
law for his defence costs.
The Government contend that these complaints have not been
submitted within the six-month time-limit of Article 26 (Art. 26) of
the Convention. In his observations in reply the applicant does not
contest this. He also contends that he does not seek to establish these
violations "as individual substantive claims", but as background to the
ongoing violation of his right of access to a civil court in
determination of his rights, contrary to Articles 6 para. 1 and 13
(Art. 6-1, 13) of the Convention.
The Commission notes that the applicant has in essence withdrawn
his complaints taken by themselves concerning the time which lapsed
between his arrest and his first appearance before the magistrate,
insofar as the responsibility of the Guernsey authorities was involved,
the alleged absence of speedy proceedings by which he could challenge
the lawfulness of his detention and seek an order for his release in
Guernsey, the alleged delay in his release after he had been granted
bail, the fact that he was taken on foot and hand-cuffed from the
prison to a bank and then to the Crown Office on 27 June 1989 and his
liability for the costs of his defence (while maintaining that the lack
of criminal legal aid had an intimate causal connection with his
deprivation of access to a civil court contrary to Articles 6 para. 1
and 13 (Art. 6-1, 13) of the Convention). The Commission considers that
respect for Human Rights as defined in the Convention does not require
it to continue the examination of these complaints.
It follows that, insofar as the above complaints are concerned,
the application may be struck off the list of cases pursuant to
Article 30 para. 1 (a) (Art. 30-1-a) of the Convention.
2. Originally the applicant complained under Article 13 (Art. 13)
of the Convention that he did not have a remedy in respect of the above
complaints, including the complaint concerning his liability for the
defence costs.
However, in his observations in reply, the applicant did not
contend that his continued liability for his defence costs amounts to
a violation of Article 6 para. 3 (c) (Art. 6-3-c) of the Convention in
itself.
As a result, the Commission considers that the applicant has in
effect withdrawn his complaint under Article 13 (Art. 13) of the
Convention concerning the absence of a remedy in this connection.
Moreover, the Commission considers that respect for Human Rights as
defined in the Convention does not require it to continue the
examination of this complaint.
It follows that, insofar as this complaint is concerned, the
application may be struck off the list of cases pursuant to Article 30
para. 1 (a) (Art. 30-1-a) of the Convention.
3. The Commission will next examine the applicant's contention that
he did not have an effective remedy under Article 13 (Art. 13) of the
Convention for his complaints concerning the time which lapsed between
his arrest and his first appearance before the magistrate, insofar as
the responsibility of the Guernsey authorities was involved, the
alleged absence of speedy proceedings by which he could challenge the
lawfulness of his detention and seek an order for his release in
Guernsey, the alleged delay in his release after he had been granted
bail and the fact that he was taken on foot and hand-cuffed from the
prison to a bank and then to the Crown Office on 27 June 1989.
Article 13 (Art. 13) of the Convention provides as follows:
"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."
The Government argue that this complaint has not been submitted
within the six-month time-limit, which must be calculated from
26 June 1989 as far as the alleged lack of remedies for the delay in
bringing him before a court is concerned and from 27 June 1989 as far
as the alleged lack of remedies for the complaints of delays in
releasing the applicant and his being handcuffed is concerned. They
also submit that the applicant could have instituted civil proceedings
for wrongful arrest, false imprisonment, malicious prosecution and
battery and obtained a remedy in damages.
In any event, the Government argue that the applicant was brought
promptly before a judge, given that he was arrested in another
jurisdiction on a Friday evening, and that he was released once the
bail monies had been deposited with the Greffe. Handcuffing the
applicant was a reasonable and proportionate step. Moreover, the
applicant could not complain of a breach of Article 5 para. 4
(Art. 5-4) of the Convention after his release. Finally, since there
was no violation of Article 5 paras. 3 and 4 (Art. 5-3, 5-4), the
applicant could not invoke Article 5 para. 5 (Art. 5-5) of the
Convention.
The applicant submits that his arrest, handcuffing and detention
gave rise to an arguable claim for the purposes of Article 13 (Art. 13)
of the Convention. They also gave rise to causes of action in Guernsey
law for false imprisonment, assault and battery. Such actions could
have been brought at the latest on 27 June 1995. The application was
lodged on 6 February 1995, i.e. within the six-month time-limit of
Article 26 (Art. 26) of the Convention.
To substantiate his contention that he has an arguable claim for
the purposes of Article 13 (Art. 13) of the Convention, the applicant
submits that he was not returned to Guernsey with all due expedition.
In view of the fact that there are 16 flights a day from London to
Guernsey, the applicant submits that a delay of nearly 48 hours in
returning him was not reasonable. He also maintains that he should have
been released on 26 June 1989 when his friend deposited the bail
monies. The bank to which the applicant was taken on 27 June 1989 could
be reached by car. As a result, there was no need to march the
applicant handcuffed through the streets of St. Peter's Port.
The Commission considers that it is not necessary to examine
whether this complaint has been raised within the six-month time-limit
of Article 26 (Art. 26) of the Convention. The Commission recalls that
the right to an effective remedy can only be claimed by someone who has
an arguable claim to be a victim of a violation of a right recognised
by the Convention (No. 10427/83, Dec. 12.5.86, D.R. 47, p. 85). The
Commission, having struck off its list the alleged violations of
Articles 3 and 5 (Art. 3, 5) of the Convention, considers that these
complaints do not give rise to "an arguable claim" for the purposes of
Article 13 (Art. 13) of the Convention. It follows that no appearance
of a violation of the above-mentioned provision is disclosed in this
connection.
The Commission, therefore, considers that this part of the
application is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
4. The applicant complains under Articles 6 para. 1 and 13
(Art. 6-1, 13) of the Convention that he cannot institute civil
proceedings against the Guernsey authorities and that he has no remedy
in this connection.
Article 6 para. 1 (Art. 6-1) of the Convention provides as
relevant:
"In the determination of his civil rights and obligations ...
everyone is entitled to a ... hearing ... by a ... tribunal
established by law."
The Government accept that an action for wrongful arrest or false
imprisonment or battery or malicious prosecution would have involved
a determination of civil rights and obligations. Although the
limitation period appears still to be running in connection with such
an action, the Government argue that this complaint has not been
submitted within the six-month time-limit. In this connection they
refer to their arguments concerning the complaint under Article 13
(Art. 13) of the Convention.
In any event, the Government contend that the applicant has not
demonstrated that he had insufficient means to pay for legal services
in connection with possible civil proceedings. Moreover, given the
shortness of the applicant's time in custody and the relatively minor
nature of the alleged wrongful use of handcuffs, the quantum of any
damages claim was likely to have fallen below £1,000. As a result, it
should have been introduced before the Petty Debts Court where
proceedings can be instituted without an Advocate. The facts concerning
the applicant's arrest and release from custody were straightforward
and the applicant was an articulate businessman who was capable of
presenting his case to the court without legal representation.
Moreover, the Government argue that, even if the case had to be
introduced before the Royal Court (where the fee for signing the
Summons is perhaps no more than £50), the applicant has not
demonstrated that he had reasonable prospects of success in any claim
which he might have wished to bring, since the authorities acted
throughout in a lawful and reasonable manner in accordance with the
Convention. In this connection, the Government stress that the
applicant's application for legal aid in England to take proceedings
against the English police was rejected on the ground that the
applicant did not have reasonable prospects of success and that this
decision was upheld on appeal. In any event, although the applicant
owed fees to Ms F and had ceased to pay them by instalments as agreed,
the Guernsey Bar's Rules of Professional Conduct would not preclude an
Advocate from signing a Royal Court Summons free of charge. The
applicant could have prepared such a summons himself. Then he would
have been allowed to represent himself.
The applicant submits that his application has been lodged within
the six-month time-limit of Article 26 (Art. 26) of the Convention. He
refers in this connection to his arguments concerning the complaint
under Article 13 (Art. 13) of the Convention.
The applicant further submits that he wished to introduce an
action for false imprisonment, assault and battery. Had his action
succeeded, the damages he would have recovered would have been
substantially over £1,000. The applicant had a tenable claim with
reasonable prospects of success which had to be brought before the
Royal Court where he could not appear without a legal representative.
However, the criminal proceedings against the applicant have rendered
him impecunious and in Guernsey there is no legal aid system for civil
cases. Moreover, there is no remedy in this respect. In any event, no
Advocate in Guernsey would act for the applicant because of his
outstanding debt to the lawyer who represented him in the criminal
proceedings and the intended action was so complex that the applicant
could not handle it himself. He could not reasonably have discovered
that he could ask an advocate to sign the summons and then represent
himself. In any event, the mater was too complex for such a course to
be followed.
The Commission notes that the application was introduced on
6 February 1995. However, it was on 9 February 1995 that the applicant
was authoritatively informed that he could not obtain legal aid for the
institution of civil proceedings in Guernsey. Both parties accept that,
at that time, it was still possible for the applicant to lodge an
action for false imprisonment, assault and battery. It follows that the
application has been introduced within the six-month period provided
for in Article 26 (Art. 26) of the Convention.
The Commission has had regard to the parties' other arguments.
It considers that this part of the application raises serious questions
of fact and law which are of such complexity that their determination
should depend on an examination of the merits. This part of the
application cannot, therefore, be regarded as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention, and no other ground for declaring it inadmissible has been
established.
For these reasons, the Commission,
unanimously,
DECIDES TO STRIKE THE APPLICATION OUT OF ITS LIST OF CASES
insofar as it concerns the applicant's complaints about the time
which lapsed between his arrest and his first appearance before
the magistrate, insofar as the responsibility of the Guernsey
authorities was involved, the alleged absence of speedy
proceedings by which he could challenge the lawfulness of his
detention and seek an order for his release in Guernsey, the
alleged delay in his release after he had been granted bail, the
fact that he was taken on foot and handcuffed from the prison to
a bank and then to the Crown Office on 27 June 1989 and his
continued liability for his defence costs;
by a majority,
DECIDES TO DECLARE ADMISSIBLE the applicant's complaints that he
could not institute civil proceedings against the Guernsey
authorities for false imprisonment, assault and battery and that
he did not have a remedy in this connection;
unanimously,
DECIDES TO DECLARE INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO M.P. PELLONPÄÄ
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy