AS TO THE ADMISSIBILITY OF
Application No. 16006/90
by F.L.
against the United Kingdom
The European Commission of Human Rights sitting in private on
17 May 1990, the following members being present:
MM. S. TRECHSEL, Acting President
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.C. SOYER
H.G. SCHERMERS
H. DANELIUS
J. CAMPINOS
H. VANDENBERGHE
Mrs. G.H. THUNE
Sir Basil HALL
Mrs. J. LIDDY
Mr. L. LOUCAIDES
Mr. H.C. KRÜGER, Secretary to the Commission
Having regard to Article 25 of the Convention for the
Protection of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 16 June 1989
by F.L. against the United Kingdom and registered on 18 January 1990
under file No. 16006/90;
Having regard to the report provided for in Rule 40 of the
Rules of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a United Kingdom citizen, born in 1942 and
presently detained in Broadmoor Hospital, Crowthorne, Berkshire.
The applicant was convicted and sentenced to three and a half
years' imprisonment in 1986 for indecent assault committed between
1983 and 1985. When he was due to be released he was further charged
with six counts of incest and indecent assault of his children around
February 1985. On 15 August 1988 he pleaded guilty to the offence of
indecent assault as a specimen count. The trial court ordered that
the applicant be committed to a special mental hospital for treatment
of his psychopathic disorder. It also ordered that the remaining five
charges "lie on the file".
It is established practice in English law that where a
defendant is convicted of a serious offence the trial court may order
that other outstanding charges "lie on the file" with the proviso that
they should not be proceeded with without the opinion of the trial
court or the Court of Appeal first being sought so long as the
conviction in respect of the serious charge remains in force. If, on
appeal, the conviction for the serious offence is quashed, it is open
to the prosecution to apply to the trial court or the Court of Appeal
for leave to proceed with the charges left on the file. Such
indictments left on the file are never proceeded with so long as the
conviction on the first indictment remains undisturbed.
The applicant was refused leave to appeal by a single judge on
2 May 1989. He does not appear to have appealed to the Full Court of
Appeal. The orders of the trial court were thereby upheld and the
other charges were therefore not prosecuted.
COMPLAINTS
The applicant complains that he was not charged with all the
offences at the outset in 1986 and that leaving charges on the file
constitutes a breach of Article 5 para. 3 of the Convention. He
wishes to be tried on these charges and be given an opportunity to
prove his innocence.
THE LAW
1. The applicant first complains that all the charges against him
were not preferred at the outset in 1986. He invokes the time
requirements of Article 5 para. 3 (Art. 5-3) of the Convention,
the relevant part of which provides that everyone arrested on
suspicion of having committed an offence "shall be brought promptly
before a judge ... and shall be entitled to trial within a reasonable
time ...".
However, the Commission is unable to deal with this complaint
because the applicant has failed to observe the six months' rule laid
down in Article 26 (Art. 26) of the Convention. He was brought to trial by
15 August 1988, but he did not lodge his complaint with the Commission
until 16 June 1989. This aspect of the case must, therefore, be
rejected under Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant next complains that the procedure whereby five
charges against him have been ordered to "lie upon the file" also
constitutes a breach of the time requirements of Article 5 para. 3
(Art. 5-3) of the Convention.
However, the Commission refers to its previous case-law, in
the context of the complementary time requirement of Article 6 para. 1
(Art. 6-1) of the Convention, that the established practice in
English law of not proceeding with other charges so long as the first
conviction remains undisturbed, coupled with the judicial control
over any further proceedings, means that in fact the accused is no
longer faced with any criminal charges which require determination
(No. 3034/67, Roy and Alice Fletcher v. the United Kingdom, Dec.
19.12.67, Collection 25 p. 76). Similar considerations apply to the
applicant's claim under Article 5 para. 3 (Art. 5-3) of the
Convention in the present case. The Commission finds that the
applicant no longer in fact risks prosecution for the alleged offences
in 1985 and that, accordingly, the question of any trial within a
reasonable time after his arrest on those charges can no longer arise
in this case.
It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Commission Acting President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
Full & Egal Universal Law Academy