THE FACTS

The facts of the case, as submitted by the applicant, may be summarised
as follows:

The applicant is a citizen of the United Kingdom. He was born in 1934
in India and is at present serving a 7-year sentence in W. Prison.

On .. July 1970 the applicant was charged by the police with having
conspired with 7 other named men and with other persons unknown to
evade the control of immigration of Commonwealth citizens into the
United Kingdom. More specifically, the applicant was accused of being
the  chief organiser of a conspiracy to bring illegally into the United
Kingdom 40 Indian immigrants. These Indians had left Delhi on .. April
1970 and were discovered by the Police in a cellar in B. on .. July
1970.

The trial of the applicant and the 7 other co-accused started at Leeds
Assize on .. November 1970. On .. November 1970 the applicant was
convicted of the charge as laid against him and sentenced to 7 years'
imprisonment.

The applicant applied for leave to appeal against conviction and
sentence and this was eventually granted to him on .. November 1971.
In his grounds of appeal the applicant made several complaints about
the trial proceedings, and in particular the following. He complained:

i.   that the police had planted in his diary the telephone number of
a co-accused and that, although it was proved at the trial that the
handwriting of the number was not the applicant's, the police were not
called upon to produce evidence to show in whose handwriting it was.
The applicant submitted that the judge should not have allowed the
prosecution to adduce this evidence;

ii.  that the Crown withheld statements made by prosecution witnesses
which they had been in possession of for several months and did not
serve them until a few days before the trial, but that nevertheless the
evidence of these witnesses was admitted by the court;

iii. that, after the defence case was closed, the judge allowed the
prosecution to call a witness to rebut evidence given by a prosecution
witness in cross-examination. The applicant argued that the testimony
of this witness should not have been admitted since all the evidence
for both Crown and defence had already been completed.

In its judgment of .. March 1972 the Court of Appeal summarised the
facts which gave rise to the charge against the applicant, as they had
emerged during the course of the trial before the Leeds Assize. The
Court went on to state that the evidence against the applicant had
consisted of general evidence as to the existence and nature of the
conspiracy and in particular of 3 incidents. First, there had been the
evidence as to a visit paid by the applicant and his uncle to Bremen
in Germany in April 1970. Secondly, there had been the evidence of the
applicant and a co-accused trying to recruit a boatman in A. in May of
1970 and, thirdly, there had been the evidence as to a meeting on ..
June when final arrangements for the importation of the immigrants had
been made. The Court stated that by far the most important of those
three matters was the first, namely the visit to Bremen.

The Court of Appeal then dealt at length with the applicant's complaint
that the trial court had allowed the Crown to call a witness after both
the Crown case and the defence had been closed. The Court described the
exceptional circumstances in which this had occurred and, in
particular, that it would have been quite impossible for the witness
to be called any earlier. The Court stated further that after trial
judge had considered the matter, which had been expanded very fully in
the lower court, he had come to the conclusion that in the
circumstances of the case he had a discretion to give leave to the
Crown to call the evidence they required. The Court of Appeal
considered that the exercise of such a discretion in favour of the
Crown must be the rare exception rather than the common rule, but that,
for the reasons which it had given, in the present case the trial judge
had exercised his discretion in a manner which was beyond criticism.

In dismissing the applicant's appeal against conviction, the Court
expressed  its view that the trial was in every way beyond criticism
and that the applicant had been convicted of the charge against him on
an abundance of evidence. Finally, the Court considered and rejected
the applicant's appeal against sentence.


Complaints

The applicant alleges that he did not have a fair trial and in this
respect repeats to the Commission the above complaints i. - iii. which
he made to the Court of Appeal.

The applicant also complains that the sentence of 7 years' imprisonment
imposed on him was unlawful. He alleges that the substantive offence
of which he was convicted was an offence under the Commonwealth
Immigrants Acts 1962 to 1968 for which a fine not exceeding £100 or
imprisonment not exceeding 6 months, or both, is provided. The
applicant states that it was only after the Immigration Act 1971 had
been passed that a penalty of imprisonment of up to 7 years for
assisting illegal entry of immigrants could be imposed, and this Act
came into force several months after the date when the facts relied
upon in the indictment against him took place.

The applicant alleges the violation of Article 6 (1), Article 6 (3) (d)
and Article 7 (1) of the Convention.

THE LAW

1.   The applicant has complained of a violation of Article 6 (1) and
(3) (d) (Art. 6-1, 6-3-d) of the Convention in that he did not have a
fair trial before the Leeds Assize. He alleges in particular that the
police planted the telephone number of a co-accused in his diary; that
the Crown withheld statements made by prosecution witnesses until a few
days before the trial but that the evidence of these witnesses was
nevertheless admitted by the court; also that the judge presiding over
the trial allowed a prosecution witness to be called after the evidence
for both Crown and defence had been completed.

The Commission first finds that none of these complaints relates to the
provisions of Article 6 (3) (d) (Art. 6-3-d) of the Convention which
secures to everyone charged with a criminal offence the right to
examine, or have examined, witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him.

The Commission has then considered these allegations in the light of
Article 6 (1) (Art. 6-1) of the Convention which provides that, in the
determination of any criminal charge against him, "everyone is entitled
to a fair and public hearing ... by an independent and impartial
tribunal".

With regard to the allegation that the police planted a telephone
number in the applicant's diary, the Commission notes that, from the
documents submitted by the applicant and in particular from the
judgement of the Court of Appeal, it is apparent that during the trial
there had been a substantial amount of evidence against the applicant,
both of a general character and of specific incidents. It appears that
the telephone number was only one element in this evidence and the
Commission is satisfied that, even if the number was planted, as
alleged, this could not have influenced the case against the applicant
to such an extent that it prejudiced his right to a fair hearing within
the meaning of Article 6 (1) (Art. 6-1).

With regard to the complaint that the court admitted the evidence of
certain witnesses, whose statements had only been served a few days
before the trial, the Commission again does not find any indication
that the admission of this evidence made the proceedings inequitable
or in any way prejudiced the applicant's right to a fair hearing.

With regard to the complaint that the trial judge allowed the
prosecution to call a witness after the case for both Crown and defence
was closed, the Commission finds first that it is generally within the
discretion of the competent domestic court to admit a witness if the
court considers that the evidence he will give would be relevant to the
matters in issue. The Commission notes that in the present case the
witness was allowed to give evidence at a stage in the proceedings when
normally no further witnesses could be called. The Commission  notes
also that, as stated by the Court of Appeal, the admission of evidence
at this late stage of the proceedings must be regarded as a rare
exception. The Commission further finds that there were exceptional
circumstances which occurred during the trial and which were described
by the Court of Appeal in its judgment and that the applicant has not
shown that in these circumstances the trial judge should not have
exercised his discretion in favour of the Crown. The Commission is
therefore satisfied that in this respect also the applicant was not
denied the right to a fair hearing.

It follows that this part of the application is manifestly ill-founded
within the meaning of Article 27, paragraph (2) (Art. 27-2), of the
Convention.

2.   The Commission has examined in the light of Article 7 (Art. 7)
of the Convention the applicant's complaint that he was wrongly
convicted and sentenced for conspiracy, whereas the offense which he
had committed, if any, was one which fell under the Commonwealth
Immigrants Acts 1962-1968. Article 7 (1) (Art. 7-1) of the Convention
provides that "No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute an criminal
offense under national or international law at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was
applicable at the time the criminal offence was committed". In this
respect the Commission recalls its case-law according to Article 7 (1)
(Art. 7-1) "does not merely prohibit - except as provided in paragraph
(2) (Art. 7-2)- retroactive application of the criminal law to the
detriment of the accused; it also confirms, in a more general way, the
principle of the statutory nature of offenses and punishment ('nullum
crimen, nulla poena sine lege'); and prohibits, in particular,
extension of the application of criminal law  'in malam partem' by
analogy.

Although it is normally for the Commission to ascertain the proper
interpretation of municipal law by national courts, the case is
otherwise in matters where the Convention expressly refers to municipal
law, as it does in Article 7 (Art. 7). Under Article 7 (Art. 7) the
application of the provision of municipal penal law to an act not
covered by the provision in question directly results in a conflict
with the Convention, so that the Commission can and must take
cognisance of allegations of such false interpretation of municipal
law."  (Application No. 1862/63, Yearbook, Vol. 8, pp. 190, 198).

The Commission's supervisory function, therefore, consists in making
sure that, at the moment when the accused person performed the act
which led to his being prosecuted, there was in force a legal provision
which made that act punishable and that the punishment imposed does not
exceed the limits fixed by that provision. In accordance with the
decision quoted above, this supervisory function further consists in
considering whether the national court, in reaching its decision, has
not unreasonably interpreted, and applied to the applicant, the
municipal law concerned.

In the present case it is not disputed that the offence of "conspiracy"
is one that has long existed under common law. Furthermore, the
Commission finds that the United Kingdom court, when convicting and
sentencing the applicant for conspiracy in no way exceeded a reasonable
interpretation of the definition of that crime in holding it applicable
to the facts of the applicant's case.

An examination by the Commission of this particular complaint in the
light of Article 7 (Art. 7) of the Convention does not therefore
disclose any violation of that Article. Nor does the Commission find
that this complaint raises any issue under any other Article of the
Convention. It follows that this part of the application is manifestly
ill-founded within the meaning of Article 27, paragraph (2)
(Art. 27-2), of the Convention.

3.   The same ground of inadmissibility applies to the applicant's
final complaint, that the sentence of 7 years' imprisonment imposed on
him was unlawful and could only lawfully have been imposed on him after
the Immigration Act 1971 had been passed. This complaint also has been
examined by the Commission in the light of Article 7 (Art. 7) of the
Convention. The Commission notes that the applicant does not directly
allege that the provisions of the Immigration Act 1971 were applied by
the court in determining his sentence and that in any event this Act
came into force after the date of his conviction (.. November 1970).
Furthermore, it is clear that the applicant was not convicted of an
offence under the earlier Commonwealth Immigrants Acts but, as he
himself admits, of the crime of conspiracy, for which the penalty of
7 years' imprisonment is permissible under English law.

An examination by the Commission of this complaint as it has been
submitted, including an examination made ex officio, does not therefore
disclose any appearance of a violation of the rights and freedoms set
forth in the Convention and in particular in the above Article.

For these reasons, the Commission DECLARES THIS APPLICATION
INADMISSIBLE