AS TO THE ADMISSIBILITY OF
Application No. 34225/96
by Mohammed Halid SHAHZAD
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 1 February 1996
by Mohammed Halid SHAHZAD against the United Kingdom and registered on
18 December 1996 under file No. 34225/96;
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 Pakistani national, born in 1958. He is
currently detained in Albany Prison, Newport, Isle of Wight. In the
proceedings before the Commission he is represented by
Mr. D.J. Killeen, a solicitor practising in Birmingham.
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 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 the
applicant to H and all three, i.e. M, A and the applicant, intimated
to H that they would supply him with drugs for the United Kingdom. A
few days later the applicant suggested to H an export of drugs of his
own, independently of M and A. H agreed and the applicant 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 the applicant to come to the United Kingdom and
receive the heroin. When the applicant agreed, a customs officer
procured a visa for him. When the applicant arrived in the United
Kingdom a meeting was arranged between him and H in the hotel for the
delivery of the drug. The applicant was arrested while a customs
officer was delivering to him 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 20 years' imprisonment. A single judge gave the applicant leave to
appeal. On 10 March 1994 the Court of Appeal rejected his appeal. It
also refused the applicant leave to appeal to the House of Lords.
However, it certified that certain questions of law of public
importance arose.
The applicant applied and was given leave to appeal to the House
of Lords by the Appeal Committee thereof.
The House of Lords pronounced on the applicant's appeal on
18 January 1996. Lord Steyn, with whom the remaining Law Lords agreed,
considered the following. Lord Steyn first examined the applicant'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
the applicant had, eventually and in the light of clear precedent,
accepted that there had been nothing oppressive in luring the applicant
into the country. He also noted that the applicant had taken the
initiative at the crucial meeting between himself and H. Moreover, the
applicant 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 the applicant 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 the applicant. As a result, Lord Steyn concluded that the
proceedings against the applicant need not have been stayed.
Moreover, Lord Steyn, for the same reasons, rejected the
applicant's argument that the evidence of H and the customs officers
should have been excluded from the trial.
As regards the applicant'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 the applicant 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. The applicant had already committed the attempt in Pakistan and
nothing that the customs officer subsequently did could deprive the
applicant's conduct of its criminal character. Moreover, the applicant
had committed an attempt at evasion in England.
Lord Steyn noted that the applicant had been charged with actual
rather than attempted evasion. However, the evidence was the same and
the applicant'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 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. 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 the applicant's appeal should 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, 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
and, thirdly, tricked him into the jurisdiction. 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.
4. Finally, the applicant complains under Article 3 of the
Convention that, as a result of all the above, he had been subjected
to degrading treatment.
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, 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 and, thirdly, tricked him into the jurisdiction.
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. The House of Lords further considered that the
applicant had already committed the attempt in Pakistan and that
nothing that the customs officer subsequently did could deprive the
applicant's conduct of its criminal character. 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 the applicant 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 the applicant
with a view to importing heroin into the United Kingdom, but only
reacted to an offer by the applicant. 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, the applicant in the present case 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.
As regards the applicant's submission that he was tricked into
the jurisdiction, the Commission observes that his counsel accepted
before the House of Lords that there had been nothing oppressive in
luring the applicant into the United Kingdom. Moreover, although H
appears to have made persistent efforts to persuade the applicant to
go to the United Kingdom and receive the heroin and although a customs
officer procured a visa for the applicant, the applicant decided to
travel to the United Kingdom on his own free will and in full knowledge
of the implications that his actions could have. The Commission,
therefore, considers that no appearance of a violation of Article 6
para. 1 (Art. 6-1) of the Convention is disclosed in this respect
either.
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-a, 6-3-b)
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) 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.
4. The applicant complains under Article 3 (Art. 3) of the
Convention that his prosecution and conviction amounted to degrading
treatment.
However, the Commission considers that the applicant's complaints
concerning his prosecution and conviction in principle fall to be
examined under Article 6 (Art. 6) of the Convention. The Commission has
found that no appearance of a violation of this provision is disclosed
in the circumstances of the case. The Commission also considers that
no separate issue arises under Article 3 (Art. 3) of the Convention.
It follows 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