AS TO THE ADMISSIBILITY OF

Application No. 14330/88
by Joseph HARRISON
against the United Kingdom


        The European Commission of Human Rights sitting in private on
13 April 1989, the following members being present:

                MM.  S. TRECHSEL, Acting President
                     F. ERMACORA
                     G. SPERDUTI
                     E. BUSUTTIL
                     G. JÖRUNDSSON
                     H.G. SCHERMERS
                     H. DANELIUS
                     H. VANDENBERGHE
                Mrs.  G.H. THUNE
                Sir  Basil HALL
                MM.  F. MARTINEZ
                     C.L. ROZAKIS
                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 27 October
1988 by Joseph HARRISON against the United Kingdom and registered on
27 October 1988 under file No. 14330/88;

        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 1946 and
resident in Pulborough, Sussex.

        The facts, as submitted by the applicant and which may be
deduced from documents lodged with the application, may be summarised
as follows:

        The applicant was a horticulturalist and businessman who
became involved in a cooperative which marketed salad products.  The
cooperative met with financial difficulties and the applicant was
arrested and charged with fraud on 20 February 1981.  The applicant
was left with no funds, having spent any money he had on legal advice
at the committal stage.  He, therefore, applied for legal aid for his
trial.  He was informed by the Crown Court that he could have legal
aid on condition that he paid £1500 into court, a sum which he did not
have.  The applicant requested to see the Crown Court Judge, but this
was refused.  No inquiry was made by the Crown Court as to the
applicant's means other than that which appeared in his legal aid
application.  His statement of means indicated his lack of funds, save
for the value of his house, which was subject to a mortgage, and was
not to be taken into account in the means assessment.

        The applicant was obliged to represent himself at his trial,
which ran from 17 September until 14 October 1982.  He remonstrated
with the trial judge who at one point suggested that the applicant had
chosen of his own free will to represent himself.  The applicant was
convicted and sentenced to three years' imprisonment.  On 10 November
1982 the Crown Court granted the applicant legal aid for counsel's
advice as to an appeal.  He was advised to appeal against conviction
and sentence and instructed solicitors accordingly.  However, they
demanded £1000 from the applicant, which he could not and did not
pay.  They only lodged an appeal against sentence, for which the
applicant received legal aid.  His sentence was reduced by the Court
of Appeal on 14 July 1983 to two years' imprisonment.  He was released
from prison on 14 October 1983.

        The applicant lodged an appeal in person against his
conviction.  It was refused by the Single Judge of the Court of Appeal
on 17 November 1983 as being out of time.  However, the Full Court of
Appeal granted leave and quashed the conviction on 5 July 1985.  Lord
Justice Watkins, giving that Court's judgment, condemned what had
happened to the applicant.  He commented that this was a "very
disturbing" case in which the applicant's legal aid application and
his circumstances should have received "careful scrutiny".  As pointed
out by the applicant's counsel, it was "unthinkable that an
unrepresented person" in a trial of the present kind "could do himself
justice", when usually only experienced counsel would have been able
to master the issues.  The applicant was obviously under a "grave
handicap" during the 19 day hearing.  He found no reasonable
explanation for the Crown Court's handling of the applicant's legal
aid request.  It amounted to an "unfortunate catalogue of events",
which, hopefully, would not be repeated.  However, in these
circumstances the conclusion was reached that there had not been a
fair trial in the applicant's case, and his conviction was quashed.

        On 30 July 1985 the applicant applied to the Secretary of
State for compensation for the year of imprisonment he had served and
the negligence/misconduct of the Crown Court officials and Judge in
refusing him legal aid.  On 3 February 1986, confirmed on 25 April
1986, the Home Secretary refused to make an exceptional ex gratia
payment from public funds in this case.  (English law makes no
provision for an enforceable right to compensation for persons
detained in custody in respect of charges on which they are
subsequently acquitted, whether at trial or on appeal.)  The applicant
applied for judicial review of this decision.  It was contended that
the decision was unfair, being without reasons and based on criteria
which were not divulged to the applicant, so he could not make
pertinent representations.

        During the course of these proceedings discovery of documents
was ordered, and the Secretary of State revealed his instructions at
the material time concerning the criteria for making ex gratia
payments: such a payment may be made provided, inter alia, that

        "(a) on a balance of probabilities, the claimant was more
        likely than not to have been innocent; and

        (b) hardship to the claimant has resulted."

        A further criterion, not applicable to the present case,
relating to persons who are convicted but acquitted on an appeal
lodged within time, requires that there has also been some negligence
or default on the part of the police or of some other public
authority.

        The High Court refused judicial review on 20 May 1988.  It
considered that the payment of compensation in question relates to a
sensitive prerogative power of the Crown vested in the Secretary of
State and outside the framework of statutory or common law.  It held
that the very nature of an "ex gratia" payment presupposes that there
is no obligation to make it.  This militates against on open procedure
which, to some extent, would involve a retrial of the issues before
the original trial court.  Confidentiality in the Home Secretary's
decision making process as regards such compensation is, thus,
inevitable.  Accordingly he is not obliged to give reasons for his
decision.  Moreover, the criteria which are applied by the Home
Secretary are not unreasonable and there was no evidence that they
were irrationally or unlawfully applied in the present case.


COMPLAINTS

        The applicant complains of a breach of Article 6 para. 1 of
the Convention in respect of his unfair trial in 1982.  He also
complains of a breach of his defence rights under Article 6 para. 3
(b), (c), (d) and (e) in respect of the refusal of legal aid for the
trial and an absence of interpreters to translate certain Italian
testimony.  A further breach of Article 6 para. 1 is alleged as
regards a purportedly unfair determination of his civil rights by the
Home Secretary in refusing the applicant's compensation claim by way
of a confidential procedure.

        The applicant claims to be a victim of a breach of Article 5
para. 4 of the Convention for the absence of speed in the Court of
Appeal's decision to quash his conviction and the Home Secretary's
determination of his compensation claim.
        Finally, the applicant complains that he has been denied
compensation, contrary to Articles 5 para. 5 and 13 of the Convention,
for his allegedly unlawful detention following an unfair trial.

        The applicant contends that he has respected Article 26 of the
Convention, the final relevant decision in the case being the refusal
of judicial review by the High Court on 20 May 1988.  Until that time
he had been exhausting all possible remedies under English law.


THE LAW

1.      The applicant complains of an unfair criminal trial, a refusal
of legal aid and an absence of interpretation, in breach of his rights under
Article 6 paras. 1 and 3 (b), (c), (d) and (e) (Art. 6-1, 6-3-b, 6-3-c, 6-3-d,
6-3-e) of the Convention.

        However, the Commission is not required to decide whether or
not the facts of the present case disclose any appearance of a violation of
Article 6 (Art. 6), as Article 26 (Art. 26) of the Convention provides that the
Commission "may only deal with the matter ... within a period of six months
from the date on which the final decision was taken".  In the present case the
decision of the Full Court of Appeal on 5 July 1985 was the final decision
regarding these particular complaints, whereas the application was submitted on
27 October 1988, that is, more than six months after the date of this decision.
 Furthermore, an examination of the case does not disclose the existence of any
special circumstances which might have interrupted the running of that period.
It follows that this part of the application has been introduced out of time
and must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

2.      The applicant next complains that he has been denied a speedy
determination of the lawfulness of his detention, contrary to Article 5 para. 4
(Art. 5-4) of the Convention, because of the length of time taken by the Court
of Appeal to quash his conviction in 1985 and by the Secretary of State to
determine his compensation claim in 1986.  In respect of this latter claim it
is also contended that the Secretary of State unfairly determined the
applicant's civil rights, in breach of Article 6 para. 1 (Art. 6-1) of the
Convention.

        However, first, for the same reasons as above, namely, non-observance
of the six months' rule laid down in Article 26 (Art. 26) of the Convention,
the Commission is unable to examine the applicant's complaint concerning the
Court of Appeal.  This aspect of the complaint is therefore rejected under
Article 27 para. 3 (Art. 27-3) of the Convention.

        Secondly, the Home Secretary's decision whether to grant compensation
bears no relation to a court's determination of the lawfulness of the
applicant's detention (from which he had anyway been released more than two
years before).  In these circumstances, Article 5 para. 4 (Art. 5-4) of the
Convention has no application to the compensation proceedings.  Furthermore,
the Home Secretary's refusal of compensation was not a judicial determination
of the applicant's civil rights or obligations (cf.  No. 10406/83, Dec. 6.5.85,
D.R. 42 p. 133). Hence, Article 6 para. 1 (Art. 6-1) of the Convention was also
not applicable to his claim for compensation.  In the light of these
considerations, the Commission concludes that this part of the application is
incompatible ratione materiae with the provisions of the Convention, pursuant
to Article 27 para. 2 (Art. 27-2).

3.      Finally, the applicant complains that he has been denied compensation,
contrary to Article 5 para. 5 (Art. 5-5) of the Convention, for his allegedly
unlawful detention following an unfair trial.  The applicant also invokes
Article 13 (Art. 13) of the Convention, but the Commission does not find it
necessary to examine the complaint under this provision, Article 5 para. 5
(Art. 5-5) being the lex specialis in the matter.  It provides for an
enforceable right to compensation for anyone who has been the victim of arrest
or detention in contravention of the provisions of Article 5 (Art. 5).  In the
present case the relevant provision is Article 5 para. 1 (a) (Art. 5-1-a) which
reads as follows:

        "Everyone has the right to liberty and security of
        person.  No one shall be deprived of his liberty save in
        the following cases and in accordance with a procedure
        prescribed by law:

        (a)     the lawful detention of a person after
        conviction by a competent court ..."

        The first question which the Commission is required to
determine is whether the applicant was unlawfully deprived of his
liberty, contrary to Article 5 para. 1 (Art. 5-1) of the Convention.  The
Commission notes that the applicant was convicted by a Crown Court on
10 November 1982 and sentenced to three years' imprisonment.  He
served one year's imprisonment and had his conviction ultimately
quashed by the Court of Appeal because the trial was found to have
been unfair due to the refusal to grant the applicant legal aid.
However, the Commission finds no evidence in the case-file that the
applicant's imprisonment after 10 November 1982 was not in accordance
with a procedure prescribed by law or was not pursuant to a lawful
conviction by a competent court, within the meaning of Article 5 para. 1 (a)
(Art. 5-1-a) of the Convention.  The fact that the applicant's conviction was
subsequently quashed does not render it unlawful ab initio either under the
relevant domestic law or under the Convention (cf.  No. 9132/80, Dec. 16.12.82,
D.R. 31 p. 173 para. 12).  In these circumstances, in the absence of a finding
of a breach of Article 5 para. 1 (Art. 5-1) of the Convention, the applicant is
not entitled to compensation under Article 5 para. 5 (Art. 5-5).  Accordingly
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)