EUROPEAN COMMISSION OF HUMAN RIGHTS

FIRST CHAMBER

Application No. 27237/95

Michael Govell

against

the United Kingdom

REPORT OF THE COMMISSION

(adopted on 14 January 1998)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1-15) 1

A. The application

(paras. 2-4) 1

B. The proceedings

(paras. 5-10) 1

C. The present Report

(paras. 11-15)              2

II. ESTABLISHMENT OF THE FACTS

(paras. 16-52)              3

A. The particular circumstances of the case

(paras. 16-30)              3

B. Relevant domestic law and practice

(paras. 31-52)              6

III. OPINION OF THE COMMISSION

(paras. 53-73)              13

A. Complaints declared admissible

(para. 53) 13

B. Points at issue

(para. 54) 13

C. As regards Article 8 of the Convention

(paras. 55-63)              13

CONCLUSION

(para. 64) 15

D. As regards Article 13 of the Convention

(paras. 65-70)              15

CONCLUSION

(para. 71) 16

E. Recapitulation

(paras. 72-73)              16

APPENDIX: DECISION OF THE COMMISSION AS TO THE

       ADMISSIBILITY OF THE APPLICATION              17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2. The applicant is a British citizen, born in India in 1958 and presently detained in Leeds Prison.  He is represented before the Commission by Mr John Wadham of Liberty.

3. The application is directed against the United Kingdom. The respondent Government were represented by their Agent, Mr Iain Christie of the Foreign and Commonwealth Office, London.

4. The case concerns the surveillance of the applicant by the police, including the use of covert listening devices. The applicant invokes Articles 8 and 13 of the Convention.

B. The proceedings

5. The application was introduced on 26 May 1994 and registered on 3 May 1995.

6. On 12 April 1996 the Commission (First Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7. The Government's observations were submitted on 25 June 1996.  The applicant replied on 6 September 1996 after one extension of the time-limit. On 10 September 1996 the Commission (First Chamber) granted the applicant legal aid for the representation of his case.

8. On 26 February 1997 the Commission (First Chamber) declared the application admissible.

9. The text of the Commission's decision on admissibility was sent to the parties on 12 March 1997. and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 15 April 1997, to which the applicant replied on 17 July 1997.

10. After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C. The present Report

11. The present Report has been drawn up by the Commission (First Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MM M.P. PELLONPÄÄ, President

N. BRATZA

E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

Mrs J. LIDDY

MM L. LOUCAIDES

B. MARXER

B. CONFORTI

G. RESS

A. PERENIČ

C. BÃŽRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs M. HION

Mr R. NICOLINI

12. The text of this Report was adopted on 14 January 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

13. The purpose of the Report, pursuant to Article 31 of the Convention, is:

( i ) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

14. The Commission's decision on the admissibility of the application is annexed hereto.

15. The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

16. In February 1992 the applicant was living in Leeds in a house at 149 Sandringham Drive, together with his wife. He was there subjected to police surveillance.

17. The police drilled a hole into his living room wall from the adjoining house that would have enabled someone to listen from next door or to attach a listening device. The police also installed camera equipment in the next door property and the applicant believes that his flat was entered whilst he and his wife were absent.

18. Prior to the surveillance taking place, an application was made to the Acting Chief Constable who approved the course of action for one month from 13 February 1992 and authorised the use of covert listening equipment, covert recording equipment, camera equipment with an appropriate lens and a night intensifier lens. The applicant became aware of this authority being given only after the disclosure of documents for the purpose of judicial review proceedings in April 1994.

19. By letter dated 8 June 1992, the applicant made a complaint to the Police Complaints Authority ("PCA") through his then solicitors.  He asked for a full investigation into the matter.

20. The PCA transmitted the applicant's complaint to the Chief Constable of the West Yorkshire Police who appointed an investigating officer on 3 July 1992 to carry out a formal investigation into the applicant's complaint. The applicant made a full statement on 7 July 1992. The investigation was completed on 15 October 1992. It concluded that a covert listening device or bug had indeed been placed in the partition wall between the applicant' flat and his neighbour's flat.

21. On 9 December 1992 the report of the investigation was submitted by the Chief Constable to the Director of Public Prosecutions ("DPP") for his advice.  By letter dated 24 March 1993, the Crown Prosecution Service ("CPS") stated that it had:

"reached the conclusion that the evidence is not sufficient to justify a prosecution, and ... informed the Deputy Chief Constable of [its] decision".

22. In the light of that advice, the Assistant Chief Constable of the West Yorkshire Police by letter dated 7 April 1993, wrote to the PCA stating that in his opinion the evidence that was available was not sufficient to justify disciplinary charges parallel to the criminal charges which had already been considered.  The Deputy Chairman of the PCA was personally responsible for reviewing the evidence resulting from the investigation.  In accordance with section 98 of Police and Criminal Evidence Act 1984 ("the 1984 Act") and regulation 8 of the Police (Complaints) (General) Regulations 1985, he reviewed the evidence resulting from the investigation and wrote to the applicant on 10 May 1993 in the following terms:

"Your two specific complaints have been investigated in detail, statements have been taken from police officers and also witnesses from amongst your friends and neighbours .

Your first complaint - that your privacy was invaded without justification - has provided a technical problem in that invasion of privacy, per se, is not a criminal offence in this country, neither does the allegation fit easily into the police discipline code.

I have therefore considered the evidence adduced from the investigation against a possible disciplinary charge of abuse of authority.

It is not denied by any of the officers concerned that investigations were being carried out into areas in which you are alleged to have an interest.  However evidence has been produced from the investigation to show that all investigations and methods of investigation were carried out within the correct procedures and with the necessary authorizations.  To that extent therefore there is no evidence to support a charge under the provisions of Paragraph 8 of Schedule 1 of the Police Discipline Regulations - Abuse of Authority, or indeed any other paragraph of these regulations...

Whilst the Authority might wish to provide you with more detail from the investigation so as to allay any dissatisfaction you may feel, I have to advise you with regret that all statements given in the course of the investigation are covered by public interest immunity and may not be revealed without an appropriate order of the court."

23. On 4 October 1993 the applicant was granted leave to judicially review the decisions of the PCA and the Chief Constable.  He contended, inter alia , that they had erred in law and/or failed in their respective duties to carry out a full and proper investigation having not considered whether the applicant's complaint as a matter of fact was made out, and if so, whether the acts and matters complained of disclosed the commission of the tort of trespass by one or more police officers and/or disclosed breaches of Articles 6, 8, 10 and 13 of the Convention. Additionally, he complained that since the surveillance operations could not have taken place without the authorization of a senior officer, his complaint should have been treated as a complaint against a senior officer (with the consequence that the investigation of the complaint would probably have been carried out by a senior officer from a different police force, rather than by a junior officer within the West Yorkshire Police Force itself.)

24. On 5 November 1993 the applicant was arrested on the way to Glasgow in possession of "Class A" drugs. The police state that associates were arrested in possession of 5 kilos of Class A drugs when attempting to meet the applicant in Glasgow. The associates allegedly admitted that this was their fourth drug run on behalf of the applicant. The applicant was detained in prison on remand in respect of charges relating to the possession and supply of drugs.

25. By affidavit sworn for the purposes of the judicial review proceedings on 3 December 1993, the Superintendent of the West Yorkshire Police stated that the following matters were established in the course of the investigation:

"a) The [applicant], ... was a man who the regional Crime Squad had reasonable cause to suspect was involved in large-scale and serious crime.

b) Proper authority was sought and received to place a listening device in the partition wall between the house occupied by [the applicant] and the adjoining house.

c) That device was removed on or before the expiry of the authorised period and all damage was made good."

26. In March 1994 the applicant requested disclosure of the Investigation Report, the relevant Home Office Guidelines on the authorization of surveillance ("the Home Office Guidelines"), the letter of 9 December 1992 from the Chief Constable to the Director of Public Prosecutions and the letter from the Assistant Chief Constable to the PCA dated 7 April 1993.  Disclosure was refused by the West Yorkshire Police Authority on the basis that the documents were covered by Public Interest Immunity. However, the applicant does not appear to have asked the Court to order disclosure and a copy of the Home Office Guidelines appears to have come into the hands of the applicant's representatives by some other means. The documents seeking authority for the action taken and the documents authorising the action taken were disclosed by the West Yorkshire Police Authority.

27. The application for judicial review was heard in the High Court on 23 May 1994.  Lord Justice Kennedy and Mr. Justice Allot found that the applicant had been subject to surveillance, but that the affidavit evidence disclosed no evidence of damage to property or furniture and only disclosed the drilling of one hole (see judgment of 23 May 1994 in R v (1) the Chief Constable of the West Yorkshire Police and (2) the Police Complaints Authority ex. parte . Govell , p. 2G).  The judges could see no basis for the applicant's claims that the PCA and the Chief Constable had failed to carry out their duties or exercise their discretion correctly and dismissed the application.

28. On 26 May 1994, the applicant applied for legal aid to commence an action for damages against West Yorkshire Police.  In February 1995, that application for legal aid was refused on appeal.

29. On 8 January 1996 the applicant was convicted in Edinburgh High Court of two offences of supplying controlled drugs and two offences of possession of a controlled drug with intent to supply. He was sentenced to seven, ten, five and five years for each offence respectively, to be served concurrently.

30. On 13 March 1996 the applicant lodged an appeal against conviction and sentence.

B. Relevant domestic law and practice

The Home Office Guidelines

31. The surveillance carried out on the applicant was done pursuant to Home Office Guidelines on the use of equipment in police surveillance operations. These are non-statutory guidelines which are  intended to guide police authorities as to the use of surveillance.  They provide as follows:

"II.  COVERT USE OF LISTENING DEVICES

Principles

4. In each case in which the covert use of a listening device is requested the authorising officer should satisfy himself that the following criteria are met:

a) the investigation concerns serious crime;

b) normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried;

c) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;

d) use of equipment must be operationally feasible.

5. In judging how far the seriousness of the crime under investigation justifies the use of particular surveillance techniques, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence.  Where the targets of the surveillance might reasonably assume a high degree of privacy, for instance in their homes, listening devices should be used only for the investigation of major organised conspiracies and of other particularly serious offences, especially crimes of violence.

6. The covert use in operations of listening, recording and transmitting equipment (for example microphones, tape recorders and tracking equipment) requires the personal authority of the chief officer.

...

III. VISUAL SURVEILLANCE

13. Visual surveillance measures are more varied in form and are used in a greater variety of circumstances than listening devices.  In some case controls similar to those relating to listening devices need to be applied.  In other cases different forms of control are more appropriate.  But care nevertheless needs in all cases to be exercised over their authorization and use.

Covert use in investigations

14. Where the target individual is to be observed in a private place..., the same principles and procedures should be observed as those which apply to the use of listening devices.  In particular, the chief officer should be personally responsible for authorising the use of the equipment, and should not delegate that authority except where the equipment is to be :

a) knowingly used by a person other than a police officer who is a party to events which are to be observed or recorded;

b) used by a police officer whose presence is known to at least one of the non-police subjects of the observation or recordings;

c) installed in premises, with the consent of the lawful occupier, to observe or record events in circumstances where at least one of the participants in these events will know of the surveillance.

In these cases authority may be given by an Assistant Chief Constable."

The Police and Criminal Evidence Act 1984

32. Part IX of the Police and Criminal Evidence Act 1984  ("the 1984 Act") governs the investigation into complaints against police officers.  The authority responsible for investigating the complaint is determined according to the status of the individual officer complained about.  Section 84 reads as follows:

"(1) Where a complaint is submitted to the chief officer of police for a police area, it shall be his duty to take any steps that appear to him to be desirable for the purposes of obtaining or preserving evidence relating to the conduct complained of.

(2) After performing the duties imposed on him by subsection (1)              above, the chief officer shall determine whether he is the appropriate authority in relation to the officer against whom the complaint was made."

33. The "appropriate authority is defined in section 84(4) as follows:

"in relation to an officer [of a ] police force [other than the metropolitan police]-

( i ) if he is a senior officer, the police authority for the force's area; and

(ii) if he is not a senior officer, the chief officer of the force."

34. It is therefore for the chief officer to decide which authority is the appropriate authority to carry out the investigation, having regard to the rank of the officer against whom the complaint is made.

35. In circumstances where the officer complained about is below the rank of Chief Superintendent, (as was presumed to be the case here), the standard procedure laid down in section 85 is followed.  That section provides as follows:

"(1) If a chief officer determines that he is the appropriate authority in relation to an officer about whose conduct a complaint has been made and who is not a senior officer, he shall record it.

(2) After doing so he shall consider whether the complaint is suitable for informal resolution and may appoint an officer from his force to assist him.

(3) If it appears to the chief officer that the complaint is not suitable for informal resolution, he shall appoint an officer from his force or some other force to investigate it formally.

(4) If it appears that it is suitable for informal resolution, he shall seek to resolve it informally and may appoint an officer from his force to do so on his behalf.

(5) If it appears to the chief officer after attempts have been made to resolve a complaint informally-

(a) that informal resolution of the complaint is impossible; or

(b) that the complaint is for any other reason not suitable for informal resolution he shall appoint an officer from his force or some other force to investigate it formally.

(6) An officer may not be appointed to investigate a complaint formally if he has previously been appointed to act in relation to it under subsection (4) above.

(7) If a chief officer requests the chief officer of some other force to provide an officer of his force for appointment under subsection (3) or (5) above, that chief officer shall provide an officer to be so appointed.

(8) No officer may be appointed under this section unless he is

(a) of at least the rank of chief inspector; and

(b) of at least the rank of the officer against whom the complaint is made.

(9) Unless the investigation is supervised by the Authority [the PCA] under section 89 below, the investigating officer shall submit his report on the investigation to the chief officer.

(10) A complaint is not suitable for informal resolution unless-

(a) the member of the public concerned gives his consent; and

(b) the chief officer is satisfied that the conduct complained of, even if proved, would not justify a criminal or disciplinary charge."

36. As regards an investigation into police surveillance, Lord Justice Kennedy in R v. (1) the Chief Constable of the West Yorkshire Police and (2) the Police Complaints Authority ex. p. Govell (referred to above), accepted the submissions of the Respondents that it was appropriate in such an investigation to consider first whether the police were involved at all and then, if so, whether the officers who used the listening device had the proper authority.  If they did the investigation could stop at that stage, without it being necessary to go on to consider whether the senior officer, in giving authority, was acting in accordance with the Home Office Guidelines, unless something emerged that indicated that they had been contravened.  Only in that context would it be appropriate for an officer of the rank of Superintendent to have regard to the existence of the guidelines themselves (see pp. 10-11 transcript ibid ).

37. Having carried out an investigation into the conduct of a senior officer, the chief officer must send a copy of the report to the DPP unless he is satisfied that no criminal offence has been committed (s. 90(1) 1984 Act).  If the investigation was concerned with an officer who was not a senior officer, it is for the chief officer to determine whether a criminal offence may have been committed and whether the individual should be charged (s. 90(3) ibid ).  If he considers that to be the case, he must send a copy of the Report to the DPP (s. 90(4) ibid ).  The chief officer must then send a memorandum to the PCA indicating the conclusions reached and the course he intends to adopt (s. 90(5)-90(10) ibid.).  If a chief officer's memorandum states that he proposes to prefer disciplinary charges or has done so, it shall be his duty to prefer and proceed with them (s. 90(10) ibid.).

The Police Complaints Authority ("the PCA")

38. It appears that the PCA supervises investigations in only a limited number of complaints itself. Complaints about conduct which resulted in death or serious injury, and any complaint of a description specified for the purpose by the Secretary of State, must be referred to the PCA (s. 87 ibid ) and investigated by them (s. 89 ibid.) Local police authorities may refer other cases if it appears that the complaint indicates that an officer may have committed a criminal offence or an offence against discipline or by reason of the gravity or circumstances of the complaint (s.88 ibid.). The PCA can oversee the investigation of other complaints if they consider that it is in the public interest for them to do so. The PCA may also require the appropriate authority to refer a complaint to it (s. 87(2) ibid.).

39. The PCA may refer reports to the DPP under s. 92, which provides as follows:

"(1) When a chief officer of police has performed all duties imposed on him by section sections 90 and 91 above in relation to the report of an investigation concerning the conduct of an officer who is not a senior officer, it shall be the duty of the Authority [PCA]

(a) to determine whether the report indicates that a criminal offence may have been committed by that officer; and

(b) if so, to consider whether the offence is such that the officer ought to be charged with it.

(2) If the Authority consider that the officer ought to be charged, it shall be their duty to direct the chief officer to send the Director of Public Prosecutions a copy of the report."

40. The PCA may direct the preferring of disciplinary charges under s. 93 of the 1984 Act, which provides as follows:

"(1) Where a memorandum under section 90 above states that chief officer of police has not preferred disciplinary charges or does not propose to do so, the Authority may recommend him to prefer such disciplinary charges as they may specify.

(2) Subject to subsection (6) below, a chief officer may not withdraw charges which he has preferred in accordance with a recommendation under subsection (1) above.

(3) If after the Authority have made a recommendation under this section and consulted the chief officer he is still unwilling to prefer such charges as the Authority consider appropriate, they may direct him to prefer such charges as they may specify.

...

(5) Subject to subsection (6) below, it shall be the duty of a chief officer to prefer and proceed with charges specified in such a direction.

(6) The Authority may give a chief officer leave-

(a) not to prefer charges which section 90(10) above or subsection (5) above would otherwise oblige him to prefer; or

(b) not to proceed with charges with which section 90(10) above or subsection (2) or (5) above would otherwise oblige him to proceed."

41. In carrying out its functions under s. 93, the PCA must take into account guidance from the Secretary of State (s. 105(4) ibid.) and must report to the Secretary of State should the Secretary of State so request (s.97 ibid.). Strict rules relating to the disclosure of information received by the PCA are laid down in s. 98 ibid.

42. The PCA is composed of a chairman and not less than 8 other members who are appointed by the Secretary of State. The Secretary of State has the power to remove members of the PCA in certain circumstances listed in Schedule 4 Part 1 of the Act. In addition, the Secretary of State may make such payments towards their remuneration, pensions, allowance and gratuities as, with the consent of the Treasury, he may determine.

Domestic case-law

43. In the recent decision of R v Khan [1996] 3 AER 289, page 302, the House of Lords considered the situation as to whether or not incriminating evidence, obtained by attaching a listening device to a private house without the knowledge of the occupants, was admissible in a criminal hearing. They held that the evidence was admissible and that there was no right to privacy in English law. Lord Nolan, who delivered the leading judgment, also commented upon the absence of statutory control of police surveillance as follows:

"The sole cause of this case coming to your Lordships' House is the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seems astonishing, the more so in view of the statutory framework which has governed the use of such devices by the Security Service since 1989, and the interception of communications by the police as well as by other agencies since 1985. I would refrain from further comment because counsel for the respondent was able to inform us, on instructions, that the government proposes to introduce legislation covering the matter in the next session of Parliament."

The Police Act 1997

44. In their most recent observations the Government stated that the Police Act 1997 ("the 1997 Act") had introduced a statutory basis for the authorization of police surveillance operations involving interference with property or wireless telegraphy. However, despite three separate statutory instruments relating to the commencement of the Police Act 1997, it appears that the majority of the sections relating to the authorization of surveillance operations, namely sections 92 to 100 and 102 to 108 inclusive, have not yet come into force.

45. The Act sets out an authorization process whereby certain senior police officers have the power to authorise intrusive surveillance operations involving interference with property or wireless telegraphy. Such authorizations can only be given where the authorizing officer  believes that they are likely to be of substantial value in preventing or detecting serious crime and there is no other means of proceeding.

46. Section 92 of the 1997 Act provides that no entry on or interference with property or with wireless telegraphy shall be unlawful if it is authorised by an authorization under the Act.

47. Section 93 of the 1997 Act specifies that an authorization to take such action in respect of certain property or wireless telegraphy as the authorising officer may specify, may be made when the authorising officer believes that the action is necessary as it is likely to be of substantial value in the prevention or detection of serious crime. Section 93 (4) of the 1997 Act defines a crime as being serious if it involves the use of violence, results in substantial financial gain or is conduct by a large number of person in pursuit of a common purpose or if it would be punished by a sentence of three years imprisonment or more.

48. A list of those who can act as authorising officers is also provided by section 93(5) of the 1997 Act. All are senior police or customs officers. In urgent situations authorizations can be made by less senior officers pursuant to section 94 of the 1997 Act.

49. Section 95 of the 1997 Act provides that authorizations shall be in writing and will cease to have effect three months after they are made, although this period can be extended. In urgent situations, authorizations can be made orally. These will last 72 hours. The section also stipulates that authorizations will be cancelled when the authorising office considers that they are no longer necessary.

50. Under section 96 of the 1997 Act a Commissioner shall be notified in writing of all authorizations. Pursuant to section 97 of the 1997 Act, in certain sensitive situations an authorization will only be effective if it has been approved by a Commissioner. These situations are where the operation would affect residential dwellings, hotel bedrooms, matters relating to legal privilege, confidential personal information or confidential journalistic material. These subject areas are defined more precisely by sections 98 to 100 of the 1997 Act.

51. Sections 102 and 103 of the 1997 Act provide that individuals are entitled to complain to a Commissioner if they believe that something has been done to their property in pursuance of an authorization. If the Commissioner finds in the applicant's favour , s/he will give notice to the applicant and prepare a report for the authorising officer. The Commissioner has the power to quash an authorization and award compensation under Schedule 7 of the 1997 Act. The Commissioner can also destroy records obtained pursuant to an authorization when the authorization is quashed.

52. Section 101 of the 1997 Act, which has come into force, stipulates that the Secretary of State is to draft a code of practice as to the performance of the functions of authorising officers.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

53. The Commission has declared admissible the applicant's complaints in respect of the surveillance carried out upon him by the police.

B. Points at issue

54. Accordingly, the points at issue in the present case are whether or not there has been a violation of:

- Article 8 (Art. 8) of the Convention as regards the applicant's complaint that the surveillance carried out by the police amounted to an unjustifiable interference with his private, life, family life, home and correspondence;

- Article 13 (Art. 13) of the Convention as regards the applicant's complaint that he had no effective remedy in relation to the alleged interference with his private and family life, home and correspondence.

C. As regards Article 8 (Art. 8) of the Convention

55. Article 8 (Art. 8) of the Convention, insofar as relevant, reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

56. The applicant complains that the surveillance carried out by the police went to the heart of his personal and domestic life particularly since it included the use of covert listening devices ("bugging") in his own home.

57. The applicant contends that the surveillance was not "in accordance with law" since the rules whereby the police obtained the power to instal surveillance devices were not set out with precision in accessible legal rules but were contained solely within non-statutory Home Office Guidelines which are not legally binding. He further argues that the wide scope of these Guidelines meant that it was ambiguous as to whether or not the surveillance could be described as having the aim of preventing crime. Additionally, the applicant contended that the covert surveillance could not be considered to be necessary in a democratic society as adequate safeguards against abuse did not exist.

58. The Government have not disputed that the surveillance of the applicant amounted to an interference with his right to respect for his family life. However, they argue that the surveillance was in accordance with the law since it was carried out pursuant to Home Office Guidelines which, the Government claims, were sufficiently accessible. There is no evidence of divergence from these guidelines. Additionally, the Government argues that sufficient safeguards against abuse are provided by the Police Complaints Authority which investigates complaints. The Government further point out that such surveillance operations are necessary for the prevention of crime.

59. In its most recent observations the Government included draft legislation, namely the Police Act 1997, which, would, if it came into force in full, provide a statutory framework for the authorization of intrusive police surveillance. However, the applicant points to continuing difficulties both in its scope and its application and notes that it cannot be applied retrospectively.

60. The Commission notes that it is not disputed that the surveillance carried out by the police amounted to an interference with the applicant's right to respect for his private life, family life, home and correspondence. The Commission therefore finds that such an interference has occurred. The question as to whether or not this interference can be justified, on the basis that it is "in accordance with the law", pursues one of the legitimate aims referred to in Article 8 para. 2 (Art. 8-2) and is necessary in a democratic society, must therefore be addressed.

61. The Commission recalls from its own and Court case-law that the phrase "in accordance with law" requires not only compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law (Eur. Court HR, Halford v. United Kingdom judgment of 25 June 1997, Reports 1997, para. 49). In the context of covert surveillance by public authorities, in this instance the police, domestic law must provide protection against arbitrary interference of individuals' Article 8 (Art. 8) rights. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the condition on which public authorities are entitled to resort to such covert measures (Eur. Court HR, Malone v. United Kingdom judgment of 2 August 1984, Series A no. 82, p. 32, para. 67).

62. The Commission notes that there is no existing statutory system to regulate the use of covert listening devices, although the Police Act 1997 will provide a statutory framework if, and when, the relevant sections of the statute come into force. The Home Office Guidelines at the relevant time were neither legally binding nor were they publicly accessible. The Commission recalls the difficulties experienced by the applicant in obtaining the Guidelines during the course of the judicial review proceedings when the police contended that they were subject to public interest immunity. Further, recalling the dicta of Lord Nolan in R v Khan [1996] 3 AER 289 at page 302, the Commission notes that there is no general right to privacy in English law. There was, therefore, no domestic law regulating the use of covert listening devices at the relevant time.

63. Consequently, the Commission finds that the interference in the present case cannot be considered to be "in accordance with the law" as is required pursuant to Article 8 para. 2 (Art. 8-2) of the Convention. The Commission does not consider it necessary to consider further whether or not the interference was "necessary in a democratic society".

CONCLUSION

64. The Commission concludes, unanimously, that there has been a violation of Article 8 (Art. 8) of the Convention.

D. As regards Article 13 (Art. 13) of the Convention

65. Article 13 (Art. 13) of the Convention, insofar as relevant, reads as follows:

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity"

66. The applicant argues that he was denied an effective remedy in relation to his complaints. The only body to which he could complain about the police surveillance was the Police Complaints Authority (PCA). When the PCA received his complaint they remitted it to the local police authority which itself oversaw the investigation. Thus, in the applicant's case, the Chief Constable of West Yorkshire was effectively asked to investigate whether one of his officers had properly applied to the Acting Chief Constable of West Yorkshire when requesting authorization to carry out the surveillance operation. The applicant argues that the investigation was therefore insufficiently impartial.             

67. The Government contend that the PCA provide a sufficiently independent means of investigation. They note that the PCA has powers to refer charges of criminal offences to the Director of Public Prosecutions and to prefer disciplinary charges.

68. The Commission notes that complaints only have to be referred to the PCA in circumstances where they contain allegations that the relevant conduct resulted in death or serious injury or where the complaint is of a type specified by the Secretary of State. In other circumstances the Chief Constable of the area will decide whether or not he is the appropriate authority to decide the case. If he concludes that he is the correct authority then the standard procedure is to appoint a member of his own force to carry out the investigation. Although the PCA can require that a complaint is submitted to them for consideration under section 87 of the 1984 Act, the extent to which the PCA oversee the decision-making process undertaken by the Chief Constable in determining if he is the appropriate authority is unclear. If the Chief Constable does determine that he is the appropriate authority then the standard procedure is for him to appoint an officer from his own force of from another force, to investigate the complaint.

69. The Commission also notes the important role played by the Secretary of State in appointing, remunerating and, in certain circumstances, dismissing members of the PCA. In particular, the Commission notes that under section 105(4) of the Act the PCA are to have regard to any guidance given to them by the Secretary of State with respect to the withdrawal or preferring of disciplinary charges and criminal proceedings.

70. The Commission finds that the system of investigation of complaints does not meet the requisite standards of independence needed to constitute sufficient protection against the abuse of authority and thus provide an effective remedy within the meaning of Article 13

(Art. 13). The Commission accordingly finds that there has been a violation of Article 13 (Art. 13) of the Convention.

CONCLUSION

71. The Commission concludes, unanimously, that there has been a violation of Article 13 (Art. 13) of the Convention.

E. Recapitulation

72. The Commission concludes, unanimously, that there has been a violation of Article 8 (Art. 8) of the Convention (para. 64).

73. The Commission concludes, unanimously, that there has been a violation of Article 13 (Art. 13) of the Convention (para. 71).

M.F. BUQUICCHIO    M.P. PELLONPÄÄ

   Secretary President

        to the First Chamber of the First Chamber