AS TO THE ADMISSIBILITY OF
Application No. 32715/96
by K.L.
against the United Kingdom
__________
The European Commission of Human Rights (First Chamber) sitting
in private on 22 October 1997, the following members being present:
Mrs J. LIDDY, President
MM M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
L. LOUCAIDES
B. MARXER
B. CONFORTI
N. BRATZA
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 10 June 1996 by
K.L. against the United Kingdom and registered on 22 August 1996 under
file No. 32715/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British national, born in 1953. He is
currently detained in Maidstone Prison in Kent. In the proceedings
before the Commission he is represented by Mr. N. Devine, a solicitor
practising in Leamington Spa.
The facts of the case, as they have been submitted by the
applicant, may be summarised as follows:
A. Particular circumstances of the case
During February and March 1991, the applicant was tried together
with S in the Southwark Crown Court, composed of a judge and a jury,
of being knowingly concerned in the fraudulent evasion of the
prohibition on importation of a controlled drug, heroin, a criminal
offence under section 170 para. 2 of the Customs and Excise Management
Act 1979.
The prosecution's version of the facts was the following. H, a
Pakistani national and an informer employed by the United States Drugs
Enforcement Agency, met in Pakistan M and A who expressed the idea of
importing heroin into the United Kingdom. Having consulted a British
drugs liaison officer, H suggested to M and A that he knew an airline
pilot who could be used as a courier. Then M and A introduced S to H
and all three, i.e. M, A and S, intimated to H that they would supply
him with drugs for the United Kingdom. A few days later S suggested to
H an export of drugs of his own, independently of M and A. H agreed and
S delivered to him 20 kgs of heroin. The heroin was transported to the
United Kingdom by a British officer of the Customs and Excise. Then H
went to the United Kingdom and was installed in a hotel by Customs and
Excise. His telephone calls were recorded and a video camera was
installed. H tried for weeks to persuade S to come to the United
Kingdom and receive the heroin. When S agreed, a customs officer
procured a visa for him. When S arrived in the United Kingdom a meeting
was arranged between him, the applicant and H in the hotel for the
delivery of the drug. The applicant was arrested together with S while
a customs officer was delivering to S a number of bags which had been
made to resemble the original bags of heroin.
The applicant submits that the judge of the Southwark Crown Court
did not allow his counsel to submit to the jury that the conduct of the
customs officers did not amount to a fraudulent evasion
On 7 March 1991 the applicant was found guilty and was sentenced
to 16 years' imprisonment. S was also found guilty. A single judge gave
the applicant and S leave to appeal. On 10 March 1994 the Court of
Appeal rejected their appeal. It also refused them leave to appeal to
the House of Lords. However, it certified that certain questions of law
of public importance arose.
The applicant and S applied and were given leave to appeal to the
House of Lords by the Appeal Committee thereof.
The House of Lords pronounced on the applicant's and S's appeal
on 18 January 1996. Lord Steyn, with whom the remaining Law Lords
agreed, considered the following. Lord Steyn first examined S's
argument that it was an abuse of process to institute criminal
proceedings against him in circumstances where an informer and customs
officers had by subterfuge incited him to commit the offence and had
then lured him into the jurisdiction. Lord Steyn noted that counsel for
S had, eventually and in the light of clear precedent, accepted that
there had been nothing oppressive in luring S into the country. He also
noted that S had taken the initiative at the crucial meeting between
himself and H. Moreover, S was 37 years old, he was not a vulnerable
and unwilling person, had been an organiser in the heroin trade and had
made it clear from the start that he was ready and willing to arrange
the export from Pakistan. It was, of course, true that the particular
importation would not have taken place at the time and in the manner
that it did without the assistance of H and the officers of Customs and
Excise and that the latter gave S the opportunity to commit a criminal
offence. Moreover, Lord Steyn accepted that the customs officer who had
brought the heroin to the United Kingdom could be assumed to be guilty
of criminal behaviour. However, this did not dispose of the matter.
Since in the circumstances of the case a fair trial was possible, what
the judge had to determine was whether the public interest in ensuring
that those who were charged with grave crimes should be tried
outweighed the public interest in protecting the integrity of the
criminal justice system from criminal conduct and malpractice by law
enforcement agencies. Lord Steyn considered in this connection that the
conduct of the customs officer was not so unworthy or shameful that it
was an affront to public conscience to allow the prosecution to
proceed. Any criminal behaviour of the customs officer was venial
compared to that of S. As a result, Lord Steyn concluded that the
proceedings against S need not have been stayed.
Moreover, Lord Steyn, for the same reasons, rejected S's argument
that the evidence of H and the customs officers should have been
excluded from the trial.
As regards S's third argument that he had not committed the
offence with which he had been charged, Lord Steyn considered that the
Court of Appeal had erred in considering that the offence of evading
the prohibition, as opposed to attempting to evade the prohibition,
could be committed by any conduct which was directed or intended to
lead to the importation of drugs into the United Kingdom. However, Lord
Steyn considered that S had been guilty of attempting to evade the
prohibition because he had intended to commit the offence and his
actions were more than merely preparatory. Under domestic law an
attempted evasion of a prohibition on importation of drugs could occur
even if no importation had taken place. S had already committed the
attempt in Pakistan and nothing that the customs officer subsequently
did could deprive S's conduct of its criminal character. Moreover, S
had committed an attempt at evasion in England.
Lord Steyn noted that S had been charged with actual rather than
attempted evasion. However, the evidence was the same and S's defence
would not have been conducted differently if the applicant had been
charged with attempt. Moreover, the prosecution had submitted before
the Court of Appeal that S had been at least guilty of an attempt and
the House of Lords had invited oral and written submissions by both
parties on this issue. In any event, section 170 para. 2 of the Customs
and Excise Management Act 1979 created one single offence which could
be committed in two different ways, by evasion or an attempt at
evasion. As a result, Lord Steyn considered that S's appeal should be
rejected.
Then Lord Steyn turned to the applicant's appeal and noted that
his counsel had adopted the submissions of counsel for S, which had
already been dismissed. The applicant's counsel had also argued that
the applicant's role was insufficient to constitute an offence under
section 170 para. 2 of the Customs and Excise Management Act 1979.
However, Lord Steyn considered that this was not so. As a result, he
considered that the applicant's appeal should also be rejected.
B. Relevant Domestic Law
Section 170 para. 2 of the Customs and Excise Management Act 1979
provides as follows:
"... if any person is, in relation to any goods, in any way
knowingly concerned in any fraudulent evasion or attempt at
evasion
...
(b) of any prohibition or restriction for the time being in
force with respect to the goods under or by virtue of any
enactment
...
he shall be guilty of an offence under this section and may be
detained."
COMPLAINTS
1. The applicant complains under Article 6 para. 1 of the Convention
that he could not have a fair trial because the customs officers,
first, encouraged and promoted the criminal offences with which he had
been charged and, secondly, imported the drugs into the United Kingdom
and, in this manner, created by their conduct an essential ingredient
of the actus reus, without which no offence would have been committed
by him. He invites the Commission to consider the cumulative effect of
the actions of the customs authorities.
2. He also complains under Article 6 para. 1 of the Convention that
the trial judge did not allow defence counsel to submit to the jury
that the conduct of the customs officers did not amount to a fraudulent
evasion.
3. Moreover, he complains under Article 6 para. 1 of the Convention
that the House of Lords, in considering that his conduct amounted to
an attempt at evasion, went beyond the questions which had been
certified by the Court of Appeal.
THE LAW
1. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that he could not have a fair trial because the customs
officers, first, encouraged and promoted the criminal offences with
which he had been charged and, secondly, imported the drugs into the
United Kingdom and, in this manner, created by their conduct an
essential ingredient of the actus reus, without which no offence could
have been committed by him.
Article 6 para. 1 (Art. 6-1) of the Convention, insofar as
relevant, provides as follows:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair ... hearing ... by (a) tribunal
established by law."
The Commission recalls that in order to determine whether the aim
of Article 6 (Art. 6) - a fair trial - has been achieved regard must
be had to the entirety of the domestic proceedings conducted in the
case (Eur. Court HR, Imbroscia v. Switzerland judgment of 24 November
1993, Series A no. 275, p. 14, para. 38; Lüdi v. Switzerland judgment
of 25 June 1992, Series A no. 238, p. 20, para. 43).
As regards the applicant's submission that the customs agents,
by importing the drugs into the United Kingdom, created an essential
ingredient of the actus reus, without which no offence could have been
committed by him, the Commission notes that the House of Lords
considered that under domestic law an attempted evasion of a
prohibition on importation of drugs could occur even if no importation
had taken place. It was sufficient that the applicant intended to
commit the full offence and was guilty of acts which were more than
merely preparatory to the commission of the full offence. The applicant
obviously disagrees with this interpretation of the House of Lords.
However, the Commission is not competent to examine alleged errors of
fact or law committed by the domestic courts, except where it considers
that such errors might have involved a possible violation of the rights
and freedoms set out in the Convention or the Protocols to the
Convention (No. 12013/86, Dec. 10.3.89, D.R. 59, p. 100). Since in the
circumstances of the present case, the House of Lords' interpretation
of domestic law on the particular point is not arbitrary, the
Commission considers that no appearance of a violation of Article 6
para. 1 (Art. 6-1) is disclosed.
As regards the applicant's submission that the customs officers
encouraged and promoted the criminal offences with which he had been
charged, the Commission recalls that the conduct of prosecution
authorities in the prevention and investigation of criminal offences
is primarily a matter for regulation by domestic law. In particular,
in the field of dangerous delinquency the prosecuting authorities may
consider it necessary, in some circumstances, to rely on police
informers and undercover agents. In such cases, the Commission has to
determine whether the subsequent criminal proceedings, considered as
a whole, were fair as required by Article 6 para. 1 (Art. 6-1). The
fairness of criminal proceedings may be affected by the fact that an
undercover agent of the police authorities played an important part in
bringing about the offence which is the basis of the criminal charge
(Radermacher and Pferrer v. Germany, Comm. Report 11.10.90, para. 75,
Yearbook 34, p. 274).
In this respect the Commission notes that, as the House of Lords
observed, undercover agents gave S the opportunity to attempt to commit
the crime of importing heroin into the United Kingdom and that the
particular importation would not have taken place when and how it did
without the assistance of undercover agents. However, the Commission
also notes that, as accepted by the national courts, the undercover
agents did not take the initiative to contact S with a view to
importing heroin into the United Kingdom, but only reacted to an offer
by S. In this respect, the applicant's case is distinguishable from
Teixeira De Castro v. Portugal (Comm. Report 25.2.97, unpublished, case
pending before the Court) where the Commission found a violation of
Article 6 para. 1 (Art. 6-1) of the Convention because of the role
played by "agents provocateurs" in bringing about that applicant's
conviction. As opposed to Teixeira De Castro v. Portugal, in the
present case, it has not been established that the undercover agents
were the real initiators of the offences.
The Commission also notes that, as opposed to the applicant in
Teixeira De Castro v. Portugal, S had a long-term involvement in the
heroin trade and was ready and willing to commit the crime even without
the involvement of the undercover agents. Moreover, the testimony of
the undercover agents did not form the exclusive basis of the
applicant's conviction, which was also supported by other evidence such
as tape and video recordings. In the light of all the above, the
Commission considers that the role played by undercover agents in
bringing about the applicant's conviction was not such as to disclose
an appearance of a violation of Article 6 para. 1 (Art. 6-1) of the
Convention.
Nor does the Commission consider that an appearance of a
violation of Article 6 para. 1 (Art. 6-1) of the Convention is
disclosed as a result of the cumulative effect of the various actions
of the undercover agents examined above. It follows that this part of
the application is manifestly ill-founded and that it must be rejected
as inadmissible in accordance with Article 27 para. 2 (Art. 27-2) of
the Convention.
2. The applicant complains under Article 6 para. 1 (Art. 6-1) of the
Convention that the trial judge did not allow defence counsel to submit
to the jury that the conduct of the customs officers did not amount to
a fraudulent evasion.
The Commission recalls that under Article 26 (Art. 26) of the
Convention it may only deal with the matter after all domestic remedies
have been exhausted. It notes that the applicant has not raised this
complaint before the Court of Appeal or the House of Lords. It follows
that this part of the application must be rejected in accordance with
Article 27 para. 3 (Art. 27-3) of the Convention.
3. The applicant complains under Article 6 (Art. 6) of the
Convention that the House of Lords, in considering that his conduct
amounted to an attempt at evasion, went beyond the questions that had
been certified by the Court of Appeal.
The Commission recalls that Article 6 para. 3 (Art. 6-3) of the
Convention guarantees under (a) and (b) the right of the accused to be
informed of the nature and cause of the accusation against him and the
right to adequate time and facilities for the preparation of his
defence. However, the guarantees in paragraph 3 of Article 6
(Art. 6-3-a) are specific aspects of the right to a fair trial set
forth in general in paragraph 1 (see Eur. Court HR, Foucher v. France
judgment of 18 March 1997, Reports 1997-II, No. 33, para. 30). For this
reason, the Commission considers it appropriate to examine the
applicant's complaints under the two provisions taken together.
The Commission further notes that, although the applicant had
been originally charged with evading the prohibition of importation of
heroin, the House of Lords eventually considered that the applicant had
been guilty of attempting to evade the prohibition. However, as the
House of Lords considered, section 170 para. 2 of the Customs and
Excise Management Act 1979 creates one single offence which can be
committed in two different ways, by evasion or an attempt at evasion.
Moreover, the House of Lords considered that the prosecution would have
brought the same evidence if the applicant had been charged with
attempt from the outset and that the applicant's defence would not have
been conducted differently. Finally, the Commission notes that the
prosecution had submitted before the Court of Appeal that the applicant
had been at least guilty of an attempt and the House of Lords had
invited oral and written submissions by both parties on this issue. It
follows that the applicant was aware of the possibility that he might
be considered guilty of attempt at evasion and that he had a full
opportunity to be heard in this connection. As a result, no appearance
of a violation of Article 6 para. 1 taken in conjunction with
para. 3 (a) and (b) (Art. 6-1+6-3-a, 6-1+6-3-b) is disclosed.
The Commission, therefore, considers that this part of the
application is manifestly ill-founded and must be rejected in
accordance with Article 27 para. 2 (Art. 27-2) of the Convention.
For these reasons, the Commission, by a majority,
DECLARES THE APPLICATION INADMISSIBLE.
M.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy