AS TO THE ADMISSIBILITY OF
Application no. 35667/02
by Josephine DEVINE
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 1 February 2005 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Ms L. Mijović,
Mr J. Šikuta, judges,
and Mr M. O'Boyle, Section Registrar,
Having regard to the above application lodged on 11 September 2002,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Josephine Devine, is an Irish national, who was born in 1976 and lives in Belfast. She is represented before the Court by Ms A. Ritchie, a lawyer practising in Belfast.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 30 October 1996 the applicant was arrested by the police in connection with allegations that she was involved in financially assisting a terrorist organisation. The allegation was that the applicant's bank account had been used as a means of retaining the proceeds of a robbery carried out by other people in order to finance terrorism.
On 6 December 1996 the police made an ex parte application under the Proceeds of Crime (Northern Ireland) Order 1996 (“the 1996 Order”) for a financial investigator to assist their investigation. The Recorder of Belfast authorised the appointment of an investigator known under a pseudonym to exercise the powers under the 1996 Order.
On 9 December 1996, the financial investigator issued a requirement that the applicant attend an interview on 17 December 1996. The applicant attended the interview with her solicitor but failed to answer all the questions put to her. The applicant was released without charge. As a result of the applicant's failure to answer all questions a summons was issued in accordance with paragraph 5(1) of Schedule 2 of the 1996 order.
On 22 September 1997, the applicant was convicted at Belfast Magistrates Court of an offence contrary to paragraph 5(1). The applicant was fined 750 pounds sterling (GBP). The applicant unsuccessfully appealed against her conviction and the appeal judge substituted a term of one month's imprisonment suspended for 12 months.
On 12 March 1998, the investigator issued a second requirement under the 1996 Order obliging the applicant to attend another interview at a different police station. The applicant attended the police station on 17 April 1998 but refused to be interviewed or answer any questions because of her then pending judicial review application.
On 14 May 1998 the applicant's application to set aside the permission obtained by police on 6 December 1996 was dismissed. The applicant then lodged two sets of judicial review proceedings challenging the initial order obtained by the police, her conviction, the judge's decision dismissing the applicant's appeal against the granting of the order, and the investigator's request that she attend a second interview.
The applicant's application for judicial review was dismissed in a written judgment on 26 March 1999 by the High Court, which held inter alia that there was no prima facie evidence that the investigator had abused his statutory powers and that the decision to appoint an investigator acting under a pseudonym had been taken after a conscientious balancing exercise of the conflicting interests.
The applicant's appeal to the Court of Appeal was heard on 23 June 1999 and was dismissed in an ex tempore judgment. Leave to appeal to the House of Lords was refused by the Court of Appeal on 1 July 1999. On 17 August 2001, the applicant lodged a petition out of time with the House of Lords which refused permission to appeal on 12 March 2002.
B. Relevant domestic law and practice
The Proceeds of Crime (Northern Ireland) Order 1996 inter alia provides for investigatory measures and powers in respect of the tracing and confiscation of proceeds of criminal conduct.
Pursuant to paragraph 5(1) of Schedule 2, it was an offence for a person to fail, without reasonable excuse, to attend to answer questions by a Financial Investigator appointed under the Order. Paragraph 6 restricted the use that could be made of the statements made to three situations: two related to the questioning itself, namely prosecution for perjury or an offence under the order, and the third exception was prosecution for an offence where evidence inconsistent with any such answers or information was relied on by the defence (paragraph 6(b)). On 14 April 2000, paragraph 6(b) was amended by the Youth Justice and Criminal Evidence Act 1999 to cover use of the statements as evidence adduced by the defence only.
The applicant complained under Article 6 § 1 of the Convention that the imposition of a criminal sanction for refusing to answer questions breached her privilege against self-incrimination. She complains that the investigator was appointed and exercised his authority under a false identity and that the statutory scheme in place at the time did not allow vital safeguards to operate. The imposition of the second requirement in April 1998 was neither prompt nor reasonable and also violated Article 6 in her view.
The applicant complained that her privilege against self-incrimination had been infringed by the imposition of a criminal sanction for refusal to answer questions, invoking Article 6 § 1 which provides as relevant:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”
A. The parties' submissions
The Government submitted that the applicant had failed to comply with the six month time-limit imposed by Article 35 § 1 of the Convention. They noted that she had not raised her present complaint with the Court of Appeal in 1999 and that she then did nothing for over two years. When she finally applied to the House of Lords out of time and ten months after the entry into force of the Human Rights Act 1998 it was on the speculative basis that its provisions were retrospective, which domestic case-law has established was not the case. The House of Lords not surprisingly refused leave. As this petition was an application for a discretionary reopening which was refused, there was no scope in this case for any sort of exceptional extension of the six month time-limit and the application was out of time.
The applicant submitted that the refusal of the applicant's petition for leave to appeal to the House of Lords was the final decision in the process of exhaustion of effective domestic remedies. Prior to the incorporation of the 1998 Act the applicant could not rely on Article 6. While as a general rule the 1998 Act was not retrospective at the time it was far from clear and subject to contradictory decisions in the House of Lords itself. On the date that the petition was lodged, the argument that it was retrospective was not without merit. In any event, the applicant contended that the violation is a continuing one, as she had been summoned twice to answer questions by the Financial Investigator and there was nothing to prevent the authorities repeating the process.
B. The Court's assessment
The Court recalls that, pursuant to Article 35 § 1 of the Convention, the Court may only deal with a matter “within a period of six months from the date on which the final decision was taken”. The final decision for this purpose is that taken in the process of exhaustion of effective domestic remedies which exist in respect of the applicant's complaints.
In the present case, the Court observes that following her conviction and the summons to a second interview the applicant lodged judicial review proceedings challenging the initial order obtained by the police, her conviction, the judge's decision dismissing the applicant's appeal against the granting of the order, and the investigator's request that she attend a second interview. That application was dismissed on 26 March 1999 by the High Court, her appeal to the Court of Appeal was rejected on 23 June 1999 and her application for leave to appeal to the House of Lords was dismissed by the Court of Appeal on 1 July 1999. The applicant did not at that stage lodge a petition to the House of Lords. It was not until a considerable time later that she lodged such a petition, on 17 August 2001, well out of time.
While the applicant argued that this procedure should be taken into account as part of the exhaustion of domestic remedies, the Court notes that it was lodged outside the applicable time-limits. Even if it was arguably an exceptional remedy which it was reasonable to attempt after the entry into force of the Human Rights Act 1998 on 2 October 2000, the applicant's petition was not lodged until over ten months after this date, a period of delay for which there is no explanation. In the circumstances, having regard to the spirit and purpose of the six month rule to promote legal certainty and prevent stale claims (see for example, Chalkley v. the United Kingdom, 63831/00, dec. 26.9.2002), the Court considers that the applicant has failed to comply with the requirement of due expedition inherent in Article 35 § 1 of the Convention. It does not accept the applicant's argument that the situation is one of a continuing breach to which time-limits do not apply. The breach alleged arises from the liability to sanction arising from specific requests to attend to answer questions of the financial inspector (see, mutatis mutandis, Dennis and Others v. the United Kingdom, 76573/01, dec. 2.7.2002). Unless and until such requests are made an applicant cannot claim to be a victim of any alleged breach of the privilege against self-incrimination.
It follows that the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Michael O'Boyle Josep Casadevall
DEVINE v. THE UNITED KINGDOM DECISION
DEVINE v. THE UNITED KINGDOM DECISION