FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 6223/04 
by Paul BANFIELD 
against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 18 October 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 6 February 2004,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Paul Banfield, is a United Kingdom national who was born in 1967 and is detained at HM Prison, Wakefield. The respondent Government are represented by their agent, Mr J. Grainger, of the Foreign and Commonwealth Office, London.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

The applicant entered the Metropolitan police force in 1985, and transferred to the Cambridgeshire police in 1989. He was promoted to sergeant in 1998.

On 21 June 2000 the applicant was convicted of sexual offences against women, including rape, and sentenced to a total of 18 years’ imprisonment. Three of the offences were committed whilst the applicant was on duty. His victims were young women in their 20s who had been detained at the Cambridge police station for minor offences. The applicant was the custody sergeant responsible for those women. While on duty at the police station, he sexually assaulted two of the women and raped the other. Two of the offences (burglary with intent to rape and rape) were committed by the applicant after his victim had informed him, when he was on duty in uniform in Cambridge, that she had been burgled some time previously. She gave him her name and address. The applicant subsequently entered the woman’s house in the middle of the night and raped her.

The trial judge described the assaults committed by the applicant whilst on duty as “the most gross breaches of trust and duty”.

On 27 June 2000, the applicant was dismissed from the police force by the Chief Constable. On that date he had 14 years and 40 days of pensionable service.

On 27 September 2001, the Home Secretary on the request of the police authority issued a certificate of forfeiture under Regulation K5 of the Police Pensions Regulations 1987 (“the Regulations”). The letter accompanying the certificate stated:

“The Secretary of State considered whether the offences, which Mr Banfield was convicted of, were liable to lead to a serious loss of confidence in the public service. In reaching his decision he took account of the circumstances leading up to the offences and conviction, the sentences imposed by the court and the media publicity given to the case.

The Secretary of State considers the conviction on the offences of rape, indecent assault and burglary to be very serious; as it clearly constitutes the betrayal of important positions of trust, especially as three of the offences were committed while Mr Banfield was custody sergeant. The gravity of the offences is well illustrated by the judge’s comments.

The Secretary of State also considers that Mr Banfield abused his position as a police officer, especially as the offences clearly constitute the betrayal of an important position of trust for personal satisfaction.

He takes the view that as an officer of fourteen years’ service, Mr Banfield’s actions and conviction and the reporting of these, are liable to lead to a serious loss of confidence in a public service. The Secretary of State has decided therefore to issue a certificate which will allow the authority to forfeit Mr Banfield’s pension. ...”

On 28 February 2002 the Complaints and Custody Visitors Committee of the Cambridgeshire Police Authority heard representations from the applicant as to why he should not forfeit his pension. The applicant was represented at that hearing by a solicitor. At the conclusion of the hearing, the applicant was notified that 75% of his pension would be forfeited; the remaining 25% represented his own contributions.

The applicant appealed to the Crown Court, as provided for by Regulation H5 of the Regulations. A hearing was originally listed for 18 October 2002. However, the applicant was at that time seeking judicial review of the Legal Services Commission’s refusal to grant him civil legal aid for the purposes of the appeal. The hearing was accordingly adjourned pending the determination of the applicant’s claim for judicial review. That claim was dismissed on 6 March 2003 on the ground, inter alia, that it stood no prospects of success.

The applicant’s appeal to the Crown Court was subsequently heard by the Recorder of Leeds on 28 and 29 April 2003, and judgment was given on 4 June 2003. The Recorder held that the forfeiture of the applicant’s pension did not represent a double penalty and did not otherwise unlawfully interfere with the applicant’s Convention rights. In support of the conclusions, he noted, amongst other matters:

“A police officer’s pension is partly contributory but substantially publicly funded. It stands to represent the public’s gratitude for good public service given by the officer during his years of service, and an honourable police officer is entitled to that pension as of right. It must follow that if a police officer becomes a criminal the public must be entitled to say that he should not be rewarded as though he was a responsible and decent officer. If an officer’s criminality is such that it can only be likely to undermine the confidence of the public in the police as a service, then he cannot be rewarded for having produced that situation.

In my judgment it is almost impossible to find circumstances in which public confidence is more likely to be undermined than in the present case. Some of the applicant’s attacks on women took place when they were in his care as custody sergeant at a police station. In addition, he used information coming to him as a police officer to prey on women outside the police station. Such conduct runs the very considerable risk of causing women not to trust their local police.”

The Recorder did, however, request further evidence as to the basis on which it had been calculated that the applicant’s contributions represented only 25% of his pension. As a result of the information provided, the Recorder reduced the amount of the applicant’s pension ordered to be forfeit to 65%.

The Recorder commented at the end of his judgment that, although the applicant had been obliged to present his own case, he had done so admirably and could not have been better represented by a lawyer.

The applicant’s application for permission to apply for judicial review of the Crown Court’s decision was refused by Mr Justice Davis on 3 October 2003 on the following grounds:

“2.1 The applicant’s application for legal aid was refused, for reasons which Collins J. has already decided cannot be attacked. The applicant may have been a litigant in person, but there is no question of inequality of arms or other unfairness: on the contrary, all the points that the applicant (who had ample time to prepare himself) wished to argue were fully debated before the Recorder of Leeds (and indeed the applicant partially succeeded). I note, in passing, that the Recorder observed that the applicant presented his case very ably and that he could not have been better represented by a lawyer.

2.2 There is no infringement of Article 1 [of Protocol No. 1]. The forfeiture of the pension can be justified by reference to the public interest, and a fair balance was struck and proportionality achieved, in the outcome of this case. No lack of proportionality arises from the fact that the applicant had already been sentenced to an 18-year term or other matters now advanced by him. As for Azinas v. Cyprus, that is clearly distinguishable: in that case the relevant statute provided for mandatory forfeiture of accrued pension rights, with no allowance for discretion. That is not this case. ...

2.6 In substance this claim is an appeal challenging the correctness of the Recorder of Leeds’ decision. But in my view the judge’s reasoning was correct in all relevant respects.”

The written notification of the judge’s decision included a note that:

“Where the judge has refused permission a claimant or his solicitor may request the decision to be reconsidered at a hearing by completing and returning form 86B within 7 days of the service upon him of this notice.”

The applicant did not apply for reconsideration of the decision at a hearing.

B.  Relevant domestic law

Regulation K5 of the Police Pensions Regulations 1987 provides, so far as relevant, as follows:

“(4) [A] police authority ... may determine that [a] pension be forfeited, in whole or in part and permanently or temporarily as they may specify, if the grantee has been convicted of an offence committed in connection with his service as a member of a police force which is certified by the Secretary of State either to have been gravely injurious to the interests of the State or to be liable to lead to serious loss of confidence in the public service.

(5) ... the police authority in determining whether a forfeiture should be permanent or temporary and affect a pension in whole or in part, may make different determinations in respect of the secured and unsecured portions of the pension; but the secured portion of such a pension shall not be forfeited permanently and may only be forfeited temporarily for a period expiring before the grantee attains state pensionable age or for which he is imprisoned or otherwise detained in legal custody. ”

Home Office Circular 56/98 gives guidance on forfeiture of police pensions. Annex B sets out the three stages of the procedure. The first stage is for the police authority to identify a case where an officer has committed an offence in connection with his or her service as a member of a police force. The second stage is for the Home Secretary to consider whether the officer’s offence was either gravely injurious to the interests of the State or liable to lead to serious loss of confidence in the public service. The Circular provides:

“A person’s rights to a police pension are part of the remuneration to which his/her service has entitled him/her and it is not axiomatic that a certificate will be issued. Forfeiture is an additional penalty which should not be added automatically to whatever sentence the Court has imposed. In deciding whether to issue a certificate therefore, the Home Secretary attaches a greater weight to the words “serious loss of confidence in the public service” than the harm inevitably caused by any police officer or former police officer who commits a crime. The Home Secretary will take into account:

- The seriousness with which the Court viewed the offence (as demonstrated by the punishment imposed and the sentencing remarks);

- the circumstances surrounding the offence and investigation;

- the seniority of the officer or former officer (the more senior, the greater the loss of credibility and confidence);

- the extent of publicity and media coverage; and

- whether the offence involved:

an organised conspiracy amongst a number of officers, active support for criminals, the perversion of the course of public justice, the betrayal of an important position of trust for personal gain, and/or the corruption or attempted corruption of junior officers.”

The third stage of the procedure is the decision by the police authority whether or not the pension should be forfeited and the determination of the extent of the forfeiture. The Circular states that the courts have ruled that the pension may be forfeited by no more than 75%, the remainder reflecting an officer’s own contributions. It continues “As certificates are likely to be issued only in serious cases, it follows that substantial forfeiture (say, 30-75%) would normally be imposed.”

Factors which might influence the extent of forfeiture include those listed above which reflect the gravity of the officer’s conduct, mitigating factors, illness and assistance given to the police during the investigation or following conviction.

As to the amount of pension which can be forfeited, the Lord Chief Justice (Lord Bingham) explained in the case of Whitchelo v. Secretary of State for the Home Department (11 March 1997):

“Regulation K5(5) draws a distinction between the secured and the unsecured portions of a pension. The secured portion of the pension fund is that which represents the officer’s own contributions. The unsecured portion represents a sum which would in ordinary circumstances be contributed out of public funds. It is understandable that a measure of protection should be guaranteed for the secured part. The unsecured part does not enjoy the same measure of protection. It is nonetheless a very serious step to deprive a former police officer of the unsecured portion of his pension since that represents a part of the reward for his service. It is plain, in my judgment, that an officer or former officer is not to be deprived even of the unsecured portion of his pension unless the condition permitting such forfeiture is clearly shown to be satisfied.”

COMPLAINTS

The applicant complained under Article 1 of Protocol No. 1, Article 4 of Protocol No. 7, and Article 8 of the Convention, taken alone and together with Article 14 of the Convention. He also complained about the procedures applied, under Article 6 of the Convention.

THE LAW

The applicant alleged that the pension forfeiture provisions operated in violation of Article 1 of Protocol No. 1 to the Convention. Article 1 of Protocol No. 1 provides as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

The Government contended that, in not applying for reconsideration at a hearing of the judge’s decision of 3 October 2003, the applicant has not exhausted domestic remedies.

They considered that the application is manifestly ill-founded on a number of grounds. They suggested that the forfeiture of the applicant’s pension did not interfere with his right to peaceful enjoyment of his possessions because his right to a pension was a right to a pension in accordance with the relevant rules: the effect of the forfeiture was to reduce the applicant’s expectation of a pension to one funded by his own contributions, and that pension will be paid.

Alternatively, the Government submitted that the forfeiture was a legitimate control of the use of property for the general interest, as the applicant’s pension entitlement has not been extinguished, but reduced by 65% to reflect the withdrawal of the funding for it out of public monies. They contended that in relation to that part of a police officer’s pension entitlement which is funded out of public monies rather than his own monetary contributions, his claim to receive that part of the pension is weaker and more liable to be defeated by matters relating to countervailing considerations of the public interest than in relation to the part of his entitlement funded by his own contributions. They underlined that the Regulations fulfil two primary functions – first, to set out an individual employee’s entitlement to a pension, and secondly, to control the police authority’s use of public money to “reward” employees for their faithful service. Regulation K5 and the Home Office Circular together make clear that where an employee is convicted of a criminal offence, the police authority must consider whether or not it is “in the public interest” for that employee to receive a publicly-funded pension.

In any event, the Government were of the view that a fair balance was struck between the interests of the general community and the applicant’s individual interest. Given that the aim of a public service pension is to reward faithful service, an individual officer guilty of criminal acts which undermine faithful service cannot complain that any legitimate expectations have been improperly, arbitrarily or unfairly defeated. It is important to avoid the loss of confidence that would ensue if a police officer, or other public servant, who had committed and been convicted of serious criminal offences (which were themselves liable to lead to a serious loss of confidence in the public service), were to be “rewarded” by payment of potentially large sums out of public funds.

The Government noted that the forfeiture was limited to the proportion of the pension that was payable out of public funds, and it was not an inevitable consequence of either his convictions or his dismissal. Rather, it was a decision taken by the police authority and the Secretary of State, and then by the Crown Court, and it was taken in the light of all the circumstances of the case. Those circumstances included the fact that the applicant’s crimes were particularly serious, and were likely to lead to a serious loss of confidence in the police service. Further, the decision-making process included the possibility of an appeal from the decision of the police authority to an independent and impartial tribunal which was able to reconsider the decision in its entirety. As to the “individual and excessive burden” test, the Government contended that the test cannot apply in the present case because it involves a specific decision to forfeit a proportion of his pension as a direct result of his own criminal actions, rather than being a case where an individual contends that a generally applicable scheme has a particularly severe impact on the individual. The Government did not accept that the fact that the applicant was also sentenced to 18 years’ imprisonment is relevant to whether he has had to bear an “excessive and individual burden” – the applicant’s sentence was not imposed to restore public confidence in the police force, but to punish him for his wrongdoing. The sentence did not serve the aim of restoring or (by ensuring that the applicant would not be rewarded with generous pension payments out of the public purse) maintaining public confidence in the police service.

The applicant maintained that the rule on exhaustion of domestic remedies did not require him to request a reconsideration of the judicial review decision at a hearing. He stated that he was given telephone advice by a solicitor that he had no prospect of success at a hearing, and that in any event he was told that he would have been required to bear all the costs of transport, accommodation and security himself because the pension forfeiture challenge was regarded as a civil matter.

On the merits of the case, the applicant contended that the Government’s reference to a lawfully accrued pension as a “reward” is a misrepresentation of the term. A public sector pension is more like a savings plan for the period of life when one will be unable to sustain a stable income. Pension forfeiture regulations are equivalent to a bank withdrawing all accumulated interest from a person’s savings account because the person had become overdrawn on their current account. The full pension – employee’s and employer’s contributions - belongs to the person by right, and benefits fully from the protection of Article 1 of Protocol No. 1.

The applicant claimed that it was clear that he was deprived of his property rather than being subject to a control of use: the Complaints and Custody Visitors Committee transferred ownership of the applicant’s accrued rights away from him and itself assumed the rights of the owner. He further claimed that to deprive of property in advance – 27 years in advance in his case – is manifestly without reasonable foundation. He did not accept that any public interest was met by the imposition of a further sanction over and above that imposed by the criminal court, the more so where the effect of the sanction is to penalise retrospectively in respect of the period (when the pension contributions were being made) during which faithful and loyal service was given.

The applicant did not accept that he was aware that, if convicted of a serious offence, his pension would be liable to be reduced. He claimed that the forfeiture provisions are not applied uniformly, and gave examples of police officers who were convicted of sexual offences and who retained their full pensions.

As to a fair balance between individual and general interests, the applicant noted that he will be in prison for at least 12 years, and during that time will be unable to make provision for his old age. He will therefore be condemned to a future of absolute poverty which will make him reliant on state aids.

For the applicant, consideration of the views of the media, now or in 25 years’ time, is not relevant to the Convention determination of whether his pension should have been forfeited.

As to exhaustion of domestic remedies, the Court recalls that in the case of Azinas (Azinas v. Cyprus [GC], no. 56679/00, § 38, ECHR 2004-...) it held:

“While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been ventilated before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France, [GC], no. 29183/95, § 37, ECHR 1999-I).

  The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudla v. Poland ([GC] no. 30210/96, § 152, ECHR 2000-XI). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be exhausted. If the complaint presented before the Court (for example, unjustified interference with the right of property) has not been put, either explicitly or in substance, to the national courts when it could have been put in the exercise of a remedy available to the applicant, the national legal order has been denied the opportunity to address the Convention issue which the rule on exhaustion of domestic remedies is intended to give it ...”

In the present case, an application for judicial review of the Recorder’s decision of 4 June was clearly the appropriate avenue of challenge. The applicant made such a claim, and it was rejected on 3 October 2003 after consideration by a High Court judge of the papers. As permission to apply had been refused, it was not open to the applicant to make an appeal to the Court of Appeal or any other higher court, but he did have the right to have the decision reconsidered in open court. At a subsequent hearing, he could have addressed the court in person, and could, for example, have underlined the need for the existing authorities to be reviewed in the light of the entry into force of the Human Rights Act in 2000.

The Court considers that, in the normal course of events, it is incumbent on an applicant whose claim for permission to apply for judicial review has been refused, to pursue that claim to a reconsideration, as he thereby uses the procedural means available to him to prevent a breach of the Convention. The applicant claims that he had no prospect of success, and that his imprisonment in Wakefield in any event made an application logistically and financially impossible.

The Court does not consider it necessary to determine whether the applicant in the present case has exhausted domestic remedies, as the application is manifestly ill-founded for the following reasons.

The Court notes that the Government accepted that the applicant’s entitlement to a pension (but not a pension of a specific amount) constituted a “possession” for the purposes of Article 1 of Protocol No. 1, but suggested that, because the amount which would eventually be paid would be calculated in accordance with the relevant rules, there was no interference with the “possession”.

The Court is unable to accept this argument. It finds that in this respect, the position is similar to that in Azinas, in which a Chamber of the Court found an interference where the applicant’s non-contributory Cypriot civil service pension had been forfeited by operation of law when he was dismissed after having been convicted of criminal offences (Azinas v. Cyprus, no. 56679/00, § 43, 20 June 2002). The Grand Chamber (see reference above) has since given judgment in the case, but the Chamber’s judgment remains a source of guidance. The Court considers that where a State occupational pension is reduced, as a disciplinary measure, by 100% (in Azinas) or by 65% (as in the present case), a finding that the reduction operates as an “interference” with the peaceful enjoyment of possessions is inevitable. The question is how the interference should be analysed under Article 1 of Protocol No. 1.

The Court considers, as did the Chamber in Azinas (§ 43) that the reduction of the applicant’s pension was neither a control of use nor a deprivation of property, but that it falls to be considered under the first sentence of the first paragraph of Article 1. It must therefore be determined whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights.

The State’s entitlement to bring forfeiture and disciplinary proceedings against the applicant in addition to the criminal proceedings is not in question: the criminal proceedings related to the breaches of criminal law, and the disciplinary and forfeiture proceedings related specifically to the applicant’s breach of the relationship of trust which must exist between all employees and their employer, but particularly so in the case of the police, who are held out to the public as guarantors of law-enforcement. The latter proceedings also served to allay public concern that members of the police force who break the law or are otherwise guilty of disreputable conduct are dealt with leniently. To respond to such concern is not, as the applicant suggests, to permit the media to determine police pensions, but is rather a necessary part of measures to ensure confidence in a properly functioning police force.

Extensive procedural protection was available to the applicant. The forfeiture procedure could only be commenced once the criminal proceedings had terminated, and involved a three-stage procedure, as set out in the Home Office Circular.

The first stage of the forfeiture was the conviction of an offence in connection with the applicant’s service as a member of a police force. The applicant participated in the criminal proceedings as defendant.

The second stage was the certificate by the Home Secretary that the conviction was either gravely injurious to the interests of the State or liable to lead to a serious loss of confidence in the public service. The applicant was not involved in that stage of the procedure, but it would have been open to him to include a challenge to it in his later application for judicial review.

The third stage of the forfeiture was the determination by the police authority of how much of the pension should be forfeited, and whether that forfeiture should be temporary or permanent. The applicant was invited – before the decision was taken – to make representations as to why he should not forfeit his pension. At the hearing on 28 February 2002, the applicant made representations, and was represented by a solicitor. At the end of the hearing, the authority decided that 75% of the applicant’s pension would be forfeit. An appeal lay open to the applicant to the Crown Court, which he pursued. At the re-hearing before the Crown Court the applicant, unrepresented, was again able to put his views on forfeiture. The applicant was successful to the extent that the Recorder considered that the applicant’s own pension contributions amounted to some 35% of the value of the pension, and he reduced the amount of the pension to be forfeited to 65%. After the re-hearing before the Recorder, it remained open to the applicant to apply for judicial review of the Recorder’s decision, as he also did. Thereafter, the applicant could still have had a hearing of his application for permission to apply for judicial review, in which he could have contended that the decisions were flawed. He did not pursue this avenue.

As to the proportionality of the decision to forfeit the pension, the Court does not accept the applicant’s contention – and there is no support for such a contention in the Chamber’s judgment in Azinas – that his pension was an accrued right which could not in any circumstances be reduced. The regulations on police pensions and the Home Office Circular had made clear for many years that serious criminal conduct could lead to forfeiture of part or all of a pension, and the applicant was, or should have been, aware of those provisions. Having regard to the margin of appreciation allowed to States in making appropriate provision for its civil servants’ pensions, the Court does not consider it inherently unreasonable for provision to be made for reduction or even total forfeiture of pensions in suitable cases: the Home Office circular makes clear that forfeiture is a form of penalty, and to provide that forfeiture measures can only be introduced where criminal proceedings have been taken, far from constituting a double penalty, underlines that forfeiture will only apply in extreme cases.

Of particular relevance to a discussion of the proportionality of the decision to forfeit the applicant’s pension is the discretionary nature of the measure, and it is this aspect more than any other which differentiates the facts of this case from those of Azinas. Where in Azinas the pension was forfeited automatically and by operation of law, in the present case every step of the procedure was the subject of a specific decision, as outlined above. Given that the domestic authorities exercised a discretion to forfeit part of the applicant’s pension, the Court’s role is to ascertain whether in so doing, a fair balance was struck between the demands of the general community and the protection of the individual’s rights.

As the Recorder in the domestic proceedings noted, it must be almost impossible to find a case in which public confidence in the police is more likely to be undermined than the present one: the applicant had attacked women who were in his care as custody sergeant, and he had burgled and raped a woman who had given him her address when she informed him that she had been burgled. On any sliding scale of measures, the applicant was bound to find himself at the more severe end, and the decision to reduce his pension by 65% - that is, the entirety of the pension arising from the State’s contributions - represented that severe measure. At the same time, the domestic authorities regarded the forfeiture as constituting the police authority’s response to the public indignation which might well have followed a decision to continue to pay a full pension out of public funds.

It may well be true, as the applicant states, that as a result of the decision to forfeit his pension, he will be reliant on State assistance in old age, as he will not have time to build up alternative finances on his release from prison. This factor could be of relevance if the police authority had decided that the pension deriving from the applicant’s own contributions should be forfeited, but as regards the non-contributory element of the pension, and given the unambiguous nature of the texts regulating forfeiture, the Court considers it to be of relatively little weight in the overall consideration of the proportionality of the measure.

Given the particularly serious nature of the applicant’s offences, and the exceptional damage which behaviour such as his can be assumed to cause to the reputation of the police, the Court concludes that the decision, taken deliberately and with extensive procedural guarantees, to deprive the applicant of that part of his pension which represented the State’s contributions to his pension cannot be seen as upsetting a fair balance between the applicant’s individual rights and the concerns of his employer and the general public.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and must be rejected pursuant to Article 35 § 4.

2. The applicant also makes a series of other complaints under various provisions of the Convention.

The Court has examined these complaints as they have been submitted. It notes that Protocol no. 7 had not been ratified by the United Kingdom, and that even if it had, the applicant was not subjected to two sets of criminal proceedings, but rather to one set of criminal proceedings and then the disciplinary and forfeiture proceedings which led to his dismissal and the forfeiture of his pension. In connection with Article 6 of the Convention and the absence of legal aid, the Court recalls that it held in the case of Steel and Morris (Steel and Morris v. the United Kingdom, no. 68416/01, § 61, ECHR 2005-) that:

“The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend inter alia upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively.”

Assuming that the forfeiture proceedings determined the applicant’s civil rights, the Court considers that, although what was at stake for the applicant was of major importance to him, there was nothing particularly complex about the law, and it is apparent from the judicial comments in the case – and the outcome of the hearing in the Leeds Crown Court – that the applicant was able to represent himself effectively. Moreover, the refusal of legal aid by the Legal Services Commission had itself been the subject of an application for judicial review, which was refused on 6 March 2003.

The Court thus finds that, to the extent that they are substantiated and fall within the scope of the Convention, the remaining complaints are manifestly ill-founded within the meaning of Article 35 § 3, and must be dismissed pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’Boyle Josep Casadevall 
 Registrar President

BANFIELD v. THE UNITED KINGDOM DECISION


BANFIELD v. THE UNITED KINGDOM DECISION