RECHACHI AND ABDELHAFID v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
The first applicant, Fateh Rechachi, is an Algerian national, born in 1962. The second applicant, Hocine Ben Abdelhafid, is a British national, born in 1964. Both live in London. They are represented before the Court by Birnberg Peirce and Partners, a firm of solicitors practising in London. The facts of the case, as submitted by the parties, may be summarised as follows. The first applicant, a paraplegic, is in a wheelchair. He has a pending asylum application in the United Kingdom. On the morning of 12 May 1998 the police arrested him pursuant to the Prevention of Terrorism (Temporary Provisions) Act 1989 (“PTA”). He was detained in the police station until 16 May 1998 when he was charged under sections 16A (possession of articles for suspected terrorist purposes) and 16B (collection of information likely to be useful for terrorist purposes) of the PTA and remanded in custody by the Magistrates’ Court. He was held in the prison medical wing. Numerous bail applications were refused until he was released on bail on 11 December 1998. He claims that he suffered ill-health during detention, that the facilities in the prison were not adapted for paraplegics and that he developed urinary infections because he was unable to maintain the personal hygiene necessary for the catheter which was in place. The second applicant was also arrested on 12 May 1998 under the PTA. After detention in police custody, he too was charged with offences contrary to sections 16A and 16B of the PTA and remanded in custody by a Magistrates’ Court. He was released on 23 October 1998 when the charges against him were dropped. On 24 May 1999 an article appeared in a legal journal (Criminal Law Week) suggesting that sections 16A and 16B of the PTA had lapsed on 22 March 1998. On 22 June 1999 the criminal proceedings against the first applicant were formally discontinued on the basis that the offences of which he had been charged were no longer part of English law. On 23 June 1999 the Home Secretary made a statement to Parliament confirming that the offences in question had indeed lapsed from English law. He said that this had escaped the notice of the draftsman, Ministers (including himself), Parliament and the legal profession. The matter had come to light because of the relevant legal article published in May 1999 and, as soon as the article had been brought to his attention, he had taken legal advice. Once the status of the sections had been clarified, the police had been advised not to rely on them. Certain persons had been erroneously charged on the basis of those lapsed sections and certain steps had been taken to resolve those cases. He referred to the first applicant’s case (without naming him), noting that the indictment had been quashed. The applicants applied for compensation for the time spent in detention under the ex gratia compensation scheme operated by the Home Office. In a letter of 4 April 2002 the applicants’ representative informed the Court that the Home Secretary had made offers of interim ex gratia payments. The applicants had also made a claim for damages against the Commissioner for the Metropolitan Police for false imprisonment, assault and battery and malicious prosecution. The Commissioner had made a pre-issue offer and the applicants had made a counter-offer which was under consideration by the Commissioner. The applicants were requested by the Court, by letter of 15 April 2002, to confirm whether they were considering a settlement or withdrawal of the application before the Court. No response was received. By letter dated 28 May 2002 the Government noted that it was for the Home Secretary to determine eligibility for the ex gratia compensation scheme and he considered that the applicants qualified. The amounts to be awarded would be determined by an independent assessor. While the final awards had not yet been determined, each applicant had been offered an interim payment of 50,000 pounds sterling (GBP). The first applicant had not yet accepted this interim award whereas the second applicant had. By letter of 16 April 2003 the Court requested the applicants to provide full information to the Court on the current position concerning ex gratia compensation and any civil proceedings. By facsimile dated 23 April 2003 the applicants’ representative confirmed an interim ex gratia payment of GBP 50,000 to the first applicant by the Home Secretary and that his final award was being currently assessed. The Home Secretary had made a final ex gratia award of GBP 75,000 to the second applicant. No admission of liability had been made in either case. The applicants’ representative further confirmed that the applicants had sent a “pre-action” letter to the Commissioner for the Metropolitan Police claiming false imprisonment, assault, battery and malicious prosecution. The threatened civil proceedings had not issued since the Commissioner had paid each applicant GBP 15,000 in settlement. As to the first applicant, the Commissioner acknowledged that he may well have been unable to prove the lawfulness of the arrest and that the detention following his being charged had been on the basis of lapsed legislation. He expressed regret for unlawfully arresting and detaining the first applicant. With respect to the second applicant, the Commissioner contended that he would have been able to prove the lawfulness of the arrest but acknowledged that the detention following his being charged had been on the basis of lapsed legislation and was therefore unlawful. The PTA was first enacted in 1989. It is temporary legislation which lapses after 12 months unless renewed. The procedure for such renewal involves laying before Parliament a statutory instrument which is subject to affirmative resolution of both Houses of Parliament. The PTA had 5 parts (I, II, II IV and V) and section 82 of the Criminal Justice and Public Order Act 1994 inserted a new part (IV.A) which included sections 16A and 16B. Between 1995 and 1997, Part IV.A was continued in force, together with the remaining provisions of the PTA, by statutory instruments coming into force on 22 March of each year. The 1997 Order expired on 22 March 1998. On that date the Prevention of Terrorism (Temporary Provisions) Act 1989 (Partial Continuance) Order came into force. However, Parts II and IV.A had been omitted from that renewal Order and, therefore, lapsed on 22 March 1998. The Home Office operates a discretionary scheme which provides for the ex gratia payment of compensation, upon application, to people who have spent time in custody following a wrongful charge or conviction. The Home Secretary decides whether an individual qualifies for the scheme and an independent assessor calculates the level of ex gratia compensation required.