HALFORD v. THE UNITED KINGDOM
Doc ref: 20605/92 • ECHR ID: 001-45813
Document date: April 18, 1996
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EUROPEAN COMMISSION OF HUMAN RIGHTS
PLENARY COMMISSION
Application No. 20605/92
Alison Halford
against
the United Kingdom
REPORT OF THE COMMISSION
(adopted on 18 April 1996)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-14). . . . . . . . . . . . . . . . . . . . . .1
A. The application
(paras. 2-4). . . . . . . . . . . . . . . . . . . .1
B. The proceedings
(paras. 5-9). . . . . . . . . . . . . . . . . . . .1
C. The present Report
(paras. 10-14). . . . . . . . . . . . . . . . . . .2
II. ESTABLISHMENT OF THE FACTS
(paras. 15-46) . . . . . . . . . . . . . . . . . . . . .3
A. The particular circumstances of the case
(paras. 15 -25) . . . . . . . . . . . . . . . . . .3
B. Relevant domestic law and practice
(paras. 26-46). . . . . . . . . . . . . . . . . . .5
III. OPINION OF THE COMMISSION
(paras. 47-97) . . . . . . . . . . . . . . . . . . . . 10
A. Complaints declared admissible
(para. 47). . . . . . . . . . . . . . . . . . . . 10
B. Points at issue
(para. 48). . . . . . . . . . . . . . . . . . . . 10
C. As regards Article 8 of the Convention
(paras. 49-67). . . . . . . . . . . . . . . . . . 10
CONCLUSIONS
(paras. 68-69). . . . . . . . . . . . . . . . . . 14
D. As regards Article 10 of the Convention
(paras. 70-75). . . . . . . . . . . . . . . . . . 14
CONCLUSIONS
(paras. 76-77). . . . . . . . . . . . . . . . . . 15
E. As regards Article 13 of the Convention
(paras. 78-83). . . . . . . . . . . . . . . . . . 15
CONCLUSIONS
(paras. 84-85). . . . . . . . . . . . . . . . . . 16
F. As regards Article 14 of the Convention
(paras. 86-89). . . . . . . . . . . . . . . . . . 17
CONCLUSION
(para. 90). . . . . . . . . . . . . . . . . . . . 17
G. Recapitulation
(paras. 91-97). . . . . . . . . . . . . . . . . . 18
DISSENTING OPINION OF MR. H.G. SCHERMERS. . . . . . . . . . 19
APPENDIX : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . 20
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 1940 and resident in
Wirral. She was represented before the Commission by Mr. Robin Makin,
a solicitor practising in Liverpool.
3. The application is directed against the United Kingdom. The
respondent Government were represented by Ms. Susan Dickson, Agent,
Foreign and Commonwealth Office.
4. The case concerns allegations of interceptions of telephone calls
made by the applicant from her office and home telephones. The
applicant invokes Articles 8, 10, 13 and 14 of the Convention.
B. The proceedings
5. The application was introduced on 22 April 1992 and registered
on 10 September 1992.
6. On 11 January 1994 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 the admissibility and
merits of the applicant's complaints under Articles 8, 10 and 13 of the
Convention.
7. The Government's observations were submitted on 17 June 1994
after two extensions of the time-limit fixed for this purpose. The
applicant replied on 9 September 1994 after one extension of the time-
limit.
8. On 2 March 1995 the Commission (Plenary) declared admissible the
applicant's complaints under Articles 8, 10, 13 and 14 of the
Convention. It declared inadmissible the remainder of the application.
8. The text of the Commission's decision on admissibility was sent
to the parties on 9 March 1995 and they were invited to submit such
further information or observations on the merits as they wished. No
such observations have been received.
9. 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
10. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present:
MM. S. TRECHSEL, President
H. DANELIUS
E. BUSUTTIL
C.A. NØRGAARD
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
A. WEITZEL
J.-C. SOYER
H.G. SCHERMERS
Mrs. G.H. THUNE
Mr. F. MARTINEZ
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
B. MARXER
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
G. RESS
A. PERENIC
C. BÎRSAN
11. The text of this Report was adopted on 18 April 1996 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.
12. 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.
13. The Commission's decision on the admissibility of the application
is annexed hereto.
14. 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
15. The applicant was appointed to the rank of Assistant Chief
Constable with the Merseyside Police in May 1983. As such she became
the most senior ranking female police officer in the United Kingdom.
This post involved, at times, 24 hour responsibility.
16. Subsequently, the applicant applied on a number of occasions to
be appointed to a more senior post but these applications were refused.
In or about February 1990 she was informed that she had not been
selected for appointment to Deputy Chief Constable. The applicant
considered that the candidate appointed, a male colleague, had less
experience and was less qualified. On 4 June 1990 she commenced
proceedings in the Industrial Tribunal against, inter alia, the Chief
Constable of Merseyside Police and the Home Secretary on the basis that
she had been discriminated against on the grounds of her sex.
17. At or about the same time, the Police Authority commenced
disciplinary proceedings against the applicant alleging misconduct. On
20 September 1990 the Senior Officers Disciplinary Committee referred
matters to the Police Complaints Authority. On 8 February 1991 that
Committee resolved to press charges.
18. The applicant was suspended from duty on full pay from 12
December 1990. The applicant challenged the decision to institute
disciplinary proceedings in the High Court. The matter was adjourned
by the High Court judge in September 1991 in view of a possible
settlement. The parties failed to reach agreement and the matter came
back before the High Court on 20 December 1991. The High Court judge
found that the Chairman and Vice-Chairman of the Police Authority had
acted ultra vires in the procedure adopted in relation to the applicant
and, without imputing ill-motive to them, held that there was an
element of unfairness. He quashed the relevant decisions.
19. In the proceedings before the Industrial Tribunal, there were 45
days of evidence and submissions. On 14 July 1992 the proceedings were
adjourned pending negotiation between the parties. By decision dated
4 August 1992 the Industrial Tribunal dismissed the application since
the applicant had withdrawn her complaints. The withdrawal was made on
the basis of ex gratia payments to the applicant and on the basis of
an agreement by the Home Office with the Equal Opportunities Commission
to update and review certain appointments procedures and to institute
an award system for a written report by serving police officers on an
equal opportunities project in the police service.
20. The applicant alleges that as a result of her complaints of sex
discrimination she was subjected to, inter alia, interception of her
calls made from her home and her office telephones. She had two
telephones in her office (one telephone for personal calls and one
telephone for police work and the calls from both these telephones were
paid for by the police). The applicant also had a telephone at home.
21. The applicant refers to numerous incidents upon which she relies
as direct and indirect evidence of such interceptions:
(a) In July 1990 while the applicant was out of the office,
persons purporting to be from an outside carpet agency arrived
to stretch her office carpet. The applicant had made no request
for such service and could find no sign of any movement of
furniture or carpet as a result. Having traced the carpet agency,
under the guise of losing a pen, to an almost derelict back
street close to her employer's premises, she saw no sign of life
during a period of observation.
(b) Subsequently, the applicant's personal telephone line began
to emit short rings, which according to a source, indicated that
a monitoring system was in use.
(c) In October 1990 the applicant was visited in her office by
a well placed reliable source who was clearly unwilling to speak
openly in the applicant's office. The applicant took that person
to another room where the applicant was informed that
instructions had been given to another officer not to speak to
the applicant about certain matters.
(d) In December 1990 a source informed the applicant that full
surveillance had been mounted on her by Special Branch with a
view to finding out information to discredit her in the
discrimination proceedings.
(e) Another source revealed that in December 1990 he had been
approached with a view to his making a statement detrimental to
the applicant and that, in the course of this, the Assistant
Chief Constable A. revealed that he had knowledge of a personal
conversation the source had with the applicant in her office.
(f) Also in December 1990 the applicant had conversations with
a Mr. G. on her home and office telephone during which he warned
her about the involvement of the Police Complaints Authority and
her imminent suspension. He was subsequently questioned by the
Chairman of the Police Authority about the contact which he had
had with the applicant and faced proceedings (later discontinued)
for unauthorised disclosure of information. Mr. G. informed a
Home Office official that he believed that the police had
embarked on a telephone tapping exercise.
(g) Other sources revealed to her that efforts were being made
to obtain evidence to use against her. The Equal Opportunities
Commission has confirmed that a member of Special Branch had
taken a statement from a witness who was being prevailed upon to
give evidence against the applicant.
(h) The applicant was informed in March-April 1991 that the
Merseyside police, using specialised equipment called palentype,
took transcripts of the applicant's intercepted private home
telephone communications. This was disclosed to the applicant by
a source who walked into an office where the transcript was being
checked.
(i) Assistant Chief Constable A. was reported to the applicant
as having, at a Christmas social function 1991/1992 in the
presence of other officers, boasted that the applicant's
telephone was being tapped. On 3 April 1992 the applicant had a
telephone conversation with the Chief Constable from which she
alleges that it was tacit that her communications had been and
were continuing to be intercepted.
22. The applicant wished to raise the matter of the alleged
interception of her telephone calls in the proceedings before the
Industrial Tribunal but considered that she was not allowed to do so
in light of section 9 of the Interception of Communications Act 1985
which expressly excluded the calling of evidence relating to such
matters.
23. On 6 December 1991 the applicant complained to the Interception
of Communications Tribunal. By letter dated 21 February 1992 the
Tribunal informed the applicant that their investigation had satisfied
them that there had been no contravention of sections 2 to 5 of the
Interception of Communications Act 1985 in relation to a relevant
warrant or relevant certificate. By letter dated 27 March 1992 the
Tribunal refused to clarify whether interceptions took place or whether
this had been authorised by the Home Secretary.
24. In a letter dated 4 August 1992 the Home Office explained to the
applicant's Member of Parliament that insofar as the applicant had
complained of the interception of her office calls, the eavesdropping
by the Merseyside police on their own telephone system fell outside the
scope of the Act and would not require a warrant.
25. The applicant's home telephone consists of the telephone
apparatus in her home which is connected to the Network Termination
Point ("NTP"). From the NTP the applicant's home telephone is connected
to a public telecommunications network. The applicant's office
telephones were part of the Merseyside Police internal telephone
system, a private telecommunications system.
B. Relevant domestic law and practice
I. Public telecommunications systems.
26. On 10 April 1986 the Interception of Communications Act 1985
("the 1985 Act") came into force in the United Kingdom pursuant to the
judgment of the Court in the Malone case (Eur. Court H.R., Malone
judgment of 2 August 1984, Series A no. 82). Its objective, as outlined
in the Home Office White Paper dated February 1985, is to provide a
clear statutory framework within which the interception of
communications on public systems will be authorised and controlled in
a manner commanding public confidence.
(a) Warrants.
27. Section 1 of the 1985 Act makes it a criminal offence for anyone
to intentionally intercept a communication in the course of its
transmission by means of a public telecommunications system except in
four statutorily defined situations including when that interception
is in obedience of a warrant issued in accordance with sections 2-6 of
the 1985 Act. The prosecution of this offence is a matter for the
police. However, if the Commissioner (see below) comes across a case
of unauthorised interception it is accepted practice that he reports
the matter to the Prime Minister.
28. Section 2 (1) confers on the Secretary of State the power to
issue warrants requiring the interception of communications and the
disclosure of intercepted material in such a manner and to such persons
as are described in the warrant. Section 2 (2) of the 1985 Act provides
that the Secretary of State shall not issue a warrant under this
section unless he considers that a warrant is necessary (i) in the
interests of national security; (ii) for the purpose of preventing or
detecting serious crime; or (iii) for the purpose of safeguarding the
economic well-being of the United Kingdom.
29. Section 3 of the 1985 Act contains a detailed series of
provisions restricting the scope of any warrant issued. Section 4 deals
with the manner in which a warrant may be issued and with the duration
of the warrant. Section 5 deals, inter alia, with the modification of
any such warrant. Under Section 6 the dissemination and retention of
information obtained by interception under warrant are limited and
controlled.
(b) The Interception of Communications Tribunal.
30. Any person can complain to the Interception of Communications
Tribunal ("the Tribunal") in respect of a suspected interception. The
Tribunal consists of five members each of whom must be a lawyer of not
less than 10 years standing and can hold office for five years subject
to re-appointment. Section 7 of and Schedule 1 to the 1985 Act contain
detailed provisions for the investigation of complaints by the
Tribunal. If the application does not appear to the Tribunal to be
frivolous the Tribunal will investigate whether there is or has been
a relevant warrant and, if so, will apply principles of judicial review
in determining whether there has been a breach of sections 2-5 of the
1985 Act.
31. If there has been no such breach the Tribunal will merely confirm
this but will not confirm whether a warrant has been issued or not. If
there has been a breach the Tribunal may notify the applicant of its
conclusion on this point, must report on its findings to the Prime
Minister and to the Commissioner and, if the Tribunal thinks fit, it
can order the quashing of the warrant, destruction of the intercepted
material and payment by the Secretary of State of compensation. The
Tribunal does not give reasons for its decisions and there is no appeal
from a decision of the Tribunal.
(c) Exclusion of evidence.
32. Section 9 of the 1985 Act provides that no evidence shall be
adduced by any party, in any proceedings before a court or tribunal,
which tends to suggest that an unlawful interception has been committed
by, inter alia, a person holding office under the Crown. There are some
clearly defined exceptions to this rule, none of which is relevant to
the present application.
(d) The Commissioner.
33. The Commissioner is appointed by the Prime Minister and must have
held or hold a high judicial office. The Commissioner's role is mainly
a supervisory one. His functions include the following:
(i) to keep under review the carrying out by the Secretary of
State of the functions conferred on him by sections 2-5 of the
1985 Act;
(ii) to keep under review the adequacy of the arrangements under
section 6 of the 1985 Act;
(iii) to assist the Tribunal;
(iv) to report to the Prime Minister if the Commissioner is of
the opinion that there has been a breach of sections 2-5 of the
1985 Act which has not been so reported by the Tribunal or if the
arrangements under section 6 of the 1985 Act are inadequate;
(v) to make an annual report to the Prime Minister on the
exercise of his functions which report must be laid before
Parliament. The Prime Minister has the power to exclude any
matter from the report if publication would be prejudicial to
national security, to the prevention or detection of serious
crime or to the well-being of the United Kingdom. The report must
state if any matter has been excluded.
(e) The Commissioner's Reports (1986-1993).
34. In general the reports of the Commissioner to the Prime Minister
have indicated an increase in new warrants issued, but the Commissioner
has been satisfied that in all cases those new warrants were justified
under section 2 of the 1985 Act.
1986 Report
35. Since this was the first report of the Commissioner (then Lord
Justice Lloyd, a member of the Court of Appeal) it was largely
concerned with explaining how the 1985 Act operated in practice. In
this regard the Commissioner pointed out the following:
" cannot in the nature of things know, nor
could he well find out, whether there has been an unlawful
interception in breach of section 1. That is a job for the
police. By unlawful interception I mean interception without a
warrant and without any of the other defences provided by section
1." (para. 3)
1990 Report
36. The Commissioner noted as follows:
"My task is to ensure that those who issue warrants do not
overstep the mark ... Where possible I see all new warrants
issued since my previous visit. Where the number of new warrants
is too great for this, I select cases at random. ... I am shown
everything I ask to see. Although I cannot claim to have seen
every warrant, I am satisfied that this system works. ... I have
no reason to suppose that any warrants have, as it were, slipped
through the net. I am confident that this has not been the case."
(para. 8)
37. The Commissioner also referred to the common assumption that
members of the public seem to make that their telephones are being
intercepted because they hear a "mysterious clicking noise". He
confirmed that the device used for interception of calls is inaudible
to the subscriber either on connection or in operation. He went on to
describe the device used (by those responsible for running a public
telecommunications system) for metering. A warrant under the 1985 Act
is not required for a metering device as it is used to record the
duration and destination of calls in order to verify a subscriber
account and does not involve listening to the telephone conversation.
38. In relation to the standard form notice issued by the Tribunal
to a complainant confirming that there has been no breach of
sections 2-5 of the 1985 Act (used whether a warrant has been issued
or not), the Commissioner noted the following:
"If he complains to the police he is told that they cannot take
action unless the interception was unauthorised. Since the
subscriber does not know and cannot find out from the tribunal
whether there has been any interception he is said to be without
any effective remedy. There is some force in this argument. ...
If any subscriber could find out whether his telephone was being
intercepted or not, then the secrecy which is essential to the
successful operation of the system would be gone." (para. 19)
1991 Report
39. Since the Commissioner was coming to the end of his second term
his report included a review of the previous six years' operation of
the 1985 Act (1985-1991 inclusive). He commented as follows:
"As part of my duties I make regular visits to HM Customs, the
police and the security and intelligence agencies in England,
Scotland and Northern Ireland. From the start I have been
impressed by the determination of the agencies not only to obey
the letter of the law but also the spirit... I am satisfied that
the system is working as intended by Parliament, and is working
well." (para. 7)
40. In response to allegations made in the Guardian newspaper
implying that there were many unauthorised interceptions, the
Commissioner stated that there was no basis whatsoever for this
speculation.
41. In response to similar allegations made in a television
documentary programme, he noted as follows:
"There is not the slightest truth in the suggestion, repeated in
the Guardian on the 16 July, that the law is being 'bent' by
GCHQ, and that British businessmen are being 'ambushed' as a
matter of routine." (para. 13)
1992 Report
42. In this report the current Commissioner (Sir Thomas Bingham,
Master of the Rolls) outlined four safeguards against "abuse" contained
in the 1985 Act (cf paras. 5-8 of the 1992 Report). He described the
first safeguard as follows:
"It is the professional vigilance, competence and integrity of
those who initiate and prepare warrant applications for
consideration by Secretaries of State. In the first instance
applications for warrants are initiated by police forces ..., HM
Customs and Excise and the intelligence agencies. Such
applications are channelled, as appropriate, through the Home
Office, the Foreign and Commonwealth office, the Scottish office
or the Northern Ireland office. Since 1 April 1992 applications
for warrants relating to serious crime from police forces in
England and Wales have been submitted through the National
Criminal Intelligence Service. Previously the Metropolitan police
had fulfilled this role. Before any application reaches the
Secretary of State it is considered at various levels both within
the initiating body and within the presenting department. ...
Such a process would of course afford little protection if the
officials responsible for handling these cases, in the initiating
bodies or the presenting departments, were unmindful of the
statutory criteria or careless whether they were satisfied or
not. In the course of my investigations ... I have paid attention
to this important aspect. I have been greatly impressed by the
detailed understanding and scrupulous observance of the statutory
criteria by the officials who handle these applications."
43. The Commissioner noted that the second major safeguard against
abuse is the requirement of the Secretary of State to personally sign
or authorise every warrant. In this way "there may be no official
interception save on the personal authority of the Secretary of State."
44. The Commissioner noted that he himself is the third safeguard as
he checks, through visits, discussions, investigations and inspections,
that warrants have not been issued in contravention of the 1985 Act and
that the appropriate procedures have been followed. He pointed out that
he saw no case in which the statutory restrictions were deliberately
evaded or corners knowingly cut. The Tribunal was noted as being the
fourth safeguard and the Commissioner added that in no case which was
investigated by the Tribunal did it find that any contravention of the
1985 Act had occurred.
1993 Report
45. The Commissioner indicated that his "clear impression is that at
every level up to and including Secretaries of State every effort is
made to scrupulously comply with the Act".
II. Private telecommunications systems.
46. The 1985 Act does not apply to private telecommunications systems
and there is no general right to privacy at common law in the United
Kingdom. (cf. Coppinger and Skone-James on Copyright, 13th edition,
paras. 22-57). Therefore there is no criminal or civil action which can
be instituted against a party specifically in respect of interception
on a private telecommunications system.
III. OPINION OF THE COMMISSION
A. Complaints declared admissible
47. The Commission has declared admissible the applicant's complaints
in relation to alleged interferences with telephone calls made on her
office and home telephones.
B. Points at issue
48. Accordingly, the points at issue in the present case are whether
there has been a violation of:
- Article 8 (Art. 8) of the Convention as regards the applicant's
complaint that the alleged interceptions on her office and home
telephones amounted to an unjustifiable interference with her
private life;
- Article 10 (Art. 10) of the Convention as regards the
applicant's complaint that the alleged interceptions on her
office and home telephones amounted to an unjustifiable
interference with her freedom of expression;
- Article 13 (Art. 13) of the Convention as regards the
applicant's complaint that she had no effective domestic remedy
in relation to the alleged interceptions on her office and home
telephones; and
- Article 14 (Art. 14) of the Convention as regards the
applicant's complaint that she was discriminated against on
grounds of her sex and that her attempts to redress this
discrimination have been compounded by the way in which she has
been treated because of her sex for pursuing such a matter.
C. As regards Article 8 (Art. 8) of the Convention
49. Article 8 (Art. 8) of the Convention, insofar as relevant, reads
as follows:
"1. Everyone has the right to respect for his private ... life,
... 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."
50. The applicant complains about interceptions of calls made on her
home and office telephones and submits that the protections of
Article 8 (Art. 8) of the Convention should apply whatever the nature
or source of the telephone conversations. In addition, she argues that
neither the Interception of Communications Tribunal ("the Tribunal")
nor the Commissioner, provided for under the Interception of
Communications Act 1985 ("the 1985 Act"), constitute sufficient
safeguards of the rights outlined in Article 8 (Art. 8) of the
Convention for a number of reasons. In the first place, the 1985 Act
does not apply to private telecommunications systems (her office
telephones). Secondly, the safeguards set down by that Act, which are
applicable to public telecommunications systems (her home telephone),
are insufficient due to the limited functions of the Tribunal and the
Commissioner and due to the particular circumstances of her case
namely, that it is the police force she accuses of intercepting her
telephone conversations.
51. The Government argue that there has been no "interference" with
the applicant's private life within the meaning of Article 8 (Art. 8)
of the Convention. In this respect, the Government accept that, while
the applicant has adduced sufficient evidence to establish a reasonable
likelihood that calls made on her office telephones were intercepted,
she had no reasonable expectation of privacy in relation to calls made
on those telephones. The Government do not accept that the applicant
has established such a reasonable likelihood in respect of her home
telephone. Alternatively, the Government argue that even if there has
been an interference, the aggregate of the protections provided by the
1985 Act are sufficient safeguards for the purposes of Article 8
(Art. 8) of the Convention.
52. The Commission notes that the Government treats the applicant's
allegations of interception of calls made on her home telephone as
relating to a public telecommunications system and her allegations of
interception of calls made on her office telephones as relating to a
private telecommunications system. The applicant does not contest this
approach adopted by the Government and does not make any allegations
of interceptions falling outside of this classification.
1. Office telephones (a private telecommunications system)
(a) Applicability of Article 8 (Art. 8) of the Convention
53. The Commission has first considered whether the applicant can
have recourse to the right to respect for private life contained in
Article 8 (Art. 8) of the Convention in relation to calls (both
personal and business) made on her office telephones.
54. In this respect, the Commission notes that the present case
concerns solely the question of covert interceptions of the content of
telephone calls in circumstances where the applicant had the use, in
an office which she alone occupied, of two telephones one of which was
designated for personal telephone calls. Moreover, there is no evidence
that the applicant had been expressly precluded from receiving or
initiating personal telephone calls on the telephone provided for
police work or that she was precluded from engaging in any personal
conversation in the course of a business telephone call received or
initiated by her.
55. In the first place, the Commission recalls that telephone
conversations are covered by the notion of "private life" - as well as
the notion of "correspondence" - (Eur. Court H.R., Klass judgment of
6 September 1978, Series A no. 28, p. 21, para. 41).
56. Secondly and as to whether the right to respect for private life
can be invoked in relation to telephone calls other than of a personal
nature (namely, business), it is recalled that the Court has found that
there had been an interference with private life even where telephone
tapping covered both business and private calls (Eur. Court H.R., Huvig
judgment of 24 April 1990, Series A no. 176-B, p. 41, para. 8 and
p. 52, para. 25). The Commission also recalls, by way of analogy, the
Court's judgment in the A v. France case (Eur. Court H.R., A v. France
judgment of 23 November 1993, Series A no. 277-B) where the Court, in
confirming that a telephone conversation also fell within the term
"correspondence", did not find that that term admitted of any
distinction as to the nature of that "correspondence".
57. Thirdly and as to whether the right to respect for private life
can be invoked in view of the fact that the actual source of the
telephone calls was the applicant's office, it is recalled that in the
Niemietz judgment (Eur. Court H.R., Niemietz judgment of
16 December 1992, Series A no. 251) the Court rejected an argument that
the right to respect for private life contained in Article 8 (Art. 8)
of the Convention did not afford protection against the search of a
lawyer's office. The Commission notes that the office in the afore-
mentioned Niemietz case was owned by the applicant. However, the
Commission does not consider that the fact that the applicant's office
was provided to her by the police affects the applicability of Article
8 (Art. 8) of the Convention.
58. Accordingly, the Commission considers that the right to respect
for private life contained in Article 8 (Art. 8) of the Convention is
applicable to the applicant's complaints of interceptions on her office
telephones whether the calls in question related to personal matters
or to her work.
(b) Merits
59. The Commission recalls that Article 8 (Art. 8) of the Convention
provides that there shall be no interference with the rights guaranteed
therein unless the interference is "in accordance with the law",
pursues one or more of the legitimate aims referred to in paragraph 2
of Article 8 (Art. 8) and is "necessary in a democratic society" (see,
for example, Eur. Court H.R., Huvig judgment, loc. cit., p. 52,
para. 25).
60. As to whether there has been such an interference, the Commission
notes that the Government accept that the applicant has adduced
sufficient evidence to establish a reasonable likelihood that calls
made on her office telephones were intercepted. The Commission
considers that an examination of the application reveals such a
reasonable likelihood and also notes that it is sufficient, in the area
of secret measures, that the applicant demonstrates the existence of
practices permitting such secret surveillance and of such a reasonable
likelihood without the necessity of proving the existence of a file of
personal information (Nos. 12175/86 and 12327/86, Comm. Reports 9.5.89,
D.R. 67 pp. 88 and 123). Accordingly, the Commission considers that
there has been an interference with the applicant's right to respect
for her private life.
61. As to whether the interference was "in accordance with the law",
the Commission recalls that this phrase has been interpreted by the
Court as requiring that the interference must have some basis in
domestic law and extends further to the quality of the law (see Eur.
Court H.R., Kruslin judgment of 24 April 1990, Series A no. 176-A,
p. 20, paras. 26-27, and Huvig judgment, loc. cit., p. 52,
paras. 54-55). In terms of the quality of the law, the Commission notes
that the law must be compatible with the rule of law in providing a
measure of protection against arbitrary interferences by public
authorities and, in this context, it must be accessible to the person
concerned who must moreover be able to foresee the consequences of the
law for him (Eur. Court H.R., the Sunday Times judgment of
26 April 1979, Series A no. 30, p. 31, para. 49, and the Malone
judgment of 2 August 1984, Series A no. 82, p. 32, para. 67).
62. In the present case, the Commission notes that the 1985 Act does
not apply to a private telecommunications system of which the
applicant's telephones at work were part. Neither is there a general
right to privacy in common law in the United Kingdom. There is,
therefore, no domestic law regulating interceptions of telephone calls
on private telecommunications systems.
63. The Commission therefore finds that, in view of this absence of
domestic law, there is no "basis in domestic law" for the interference
and, accordingly, the interference was not "in accordance with the law"
within the meaning of those terms outlined at paragraph 61 above. In
the circumstances, the Commission does not find it necessary to go on
to consider whether the interference was "necessary in a democratic
society".
2. Home telephone (a public telecommunications system)
64. The applicant maintains that calls made on her home telephone
were also intercepted by the Merseyside police. The Government do not
contest the applicability of Article 8 (Art. 8) of the Convention in
this context but do not accept that the applicant has provided evidence
to establish a reasonable likelihood of such interception.
65. The Commission considers, having reviewed all of the applicant's
submissions in this respect, that the evidence presented does not
indicate a reasonable likelihood that calls made on the applicant's
home telephone were intercepted. The Commission does not consider that
it can be assumed, from the Government's acceptance of a reasonable
likelihood of interception of the applicant's office telephones, that
similar actions were reasonably likely to have taken place as regards
her home telephone.
66. In this regard, the Commission notes that interceptions by the
police of the applicant's calls made from her home telephone for the
purpose of obtaining information to assist with the defence of the
discrimination proceedings would have been clearly unlawful under the
1985 Act. However, it would not have been unlawful to have intercepted
the applicant's office telephone calls. The information given to the
applicant in March/April 1991 about the existence of a transcript was
not sufficiently specific to preclude its referring to office telephone
calls.
67. In such circumstances the Commission does not consider that the
circumstances of the case disclose a violation of Article 8 (Art. 8)
of the Convention as regards the applicant's home telephone.
CONCLUSIONS
68. The Commission concludes, by 26 votes to 1, that in the present
case there has been a violation of Article 8 (Art. 8) of the Convention
in relation to the applicant's office telephones.
69. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 8 (Art. 8) of the Convention in
relation to the applicant's home telephone.
D. As regards Article 10 (Art. 10) of the Convention
70. Article 10 (Art. 10) of the Convention, insofar as relevant,
reads as follows:
"1. Everyone has the right to freedom of expression. This right
shall include freedom to ... receive and impart information and
ideas without interference by public authority ... .
71. The applicant submits that her telephone calls were intercepted
by the Merseyside police because they wished to gain an advantage in
the discrimination proceedings the applicant had issued against them.
The applicant would submit that a separate issue arises under
Article 10 (Art. 10) of the Convention in view of the motivation behind
the interceptions ("litigation espionage"). The Government contend that
there has been no interference with the applicant's freedom of
expression, as guaranteed by Article 10 (Art. 10) of the Convention or,
alternatively, that no separate issue arises under this provision or,
alternatively, refer to their submissions made under Article 8 (Art. 8)
of the Convention.
72. The Commission considers that the complaint under Article 10
(Art. 10) of the Convention is based on the claim, already raised under
Article 8 (Art. 8) of the Convention, that the applicant's calls made
on her home and office telephones were intercepted.
73. As regards the applicant's submission that a separate issue
arises for consideration under Article 10 (Art. 10) of the Convention
as regards her freedom of expression on discrimination issues (in the
context of the proceedings taken by her against the police and in light
of the alleged motivation behind such interceptions) the Commission
recalls the following. The applicant was not prevented from meeting
with or contacting her lawyer in order to pursue the discrimination
matter through litigation and, in the end, the applicant was in a
position to settle the discrimination proceedings, obtaining ex gratia
payments to her and an agreement by the Home Office with the Equal
Opportunities Commission to update and review appointments procedures
and to institute an awards system in relation to equal opportunities
projects in the police service.
74. Accordingly, in the opinion of the Commission it is not necessary
to consider under Article 10 (Art. 10) of the Convention the complaint
of the applicant about interceptions of calls made on her office
telephones in view of the above finding that such activity constituted
a violation of Article 8 (Art. 8) of the Convention.
75. In addition, the Commission does not consider that the
applicant's complaint of interceptions of calls made on her home
telephones demonstrates a violation of Article 10 (Art. 10) of the
Convention. The Commission has already concluded above that the
applicant has failed to establish a reasonable likelihood that any
interceptions of that nature took place (cf. paras. 65 and 66 above).
CONCLUSIONS
76. The Commission concludes, unanimously, that in the present case
it is not necessary to examine separately the applicant's complaint of
a violation of Article 10 (Art. 10) of the Convention as regards her
office telephones.
77. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 10 (Art. 10) of the Convention
as regards the applicant's home telephone.
E. As regards Article 13 (Art. 13) of the Convention
78. 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."
79. The applicant complains that she had no effective remedy as
regards her complaints about interceptions of her telephone calls. She
submits that the safeguards set down by the 1985 Act are insufficient
due to the limited functions of the Tribunal and the Commissioner, due
to the inapplicability of the 1985 Act to private telecommunications
systems and due to the fact that the body accused of the interceptions
is the police. The Government claim that the applicant has no arguable
claim or, in the alternative, that the aggregate of remedies provided
by the Interception of Communications Act 1985 are in conformity with
Article 13 (Art. 13) of the Convention.
80. The Commission recalls the detailed consideration of Article 13
(Art. 13) of the Convention in the case of Silver and others (Eur.
Court H.R., Silver and Others judgment of 25 March 1983, Series A
no. 61, p. 42, para. 113) and the resulting principles stated therein:
(a) Where an individual has an arguable claim to be the victim
of a violation of the Convention, he should have a remedy before
the national authority in order both to have his claim decided
and, if appropriate, to obtain redress;
(b) the authority referred to in Article 13 (Art. 13) of the
Convention must not necessarily be a judicial authority but, if
it is not, its powers and the guarantees which it affords are
relevant in determining whether the remedy before it is
effective;
(c) although no single remedy may itself entirely satisfy the
requirement of Article 13 (Art. 13) of the Convention, the
aggregate of remedies provided for under domestic law may do so;
(d) neither Article 13 (Art. 13) nor the Convention in general
lays down for the Contracting States any given manner for
ensuring within their internal law the effective implementation
of any of the provisions of the Convention, for example, by
incorporating the Convention into domestic law; and
(e) it follows that the application of Article 13 (Art. 13) in
a given case will depend upon the manner in which the Contracting
State concerned has chosen to discharge its obligation under
Article 1 (Art. 1) of the Convention.
81. The Commission considers it appropriate to consider this
complaint of the applicant solely in conjunction with Article 8
(Art. 8) of the Convention.
82. The Commission recalls its conclusion above that there has been a
breach of Article 8 (Art. 8) of the Convention as regards the
applicant's complaint about interceptions of calls made on her office
telephones. The Commission also recalls that the applicant has no
avenue in domestic law to complain about interceptions on private
telecommunications systems, the 1985 Act not being applicable and there
being no right to privacy in common law. The Commission therefore finds
that the applicant does not have an effective remedy in relation to
interceptions of calls made on her office telephones as required by
Article 13 (Art. 13) of the Convention.
83. As regards the applicant's home telephone and in view of the
opinion expressed above as to the lack of a reasonable likelihood of
interception of the applicant's home telephone, the Commission
considers that the applicant does not have an arguable claim of a
violation of the Convention which warrants a remedy under Article 13
(Art. 13) of the Convention.
CONCLUSIONS
84. The Commission concludes, by 26 votes to 1, that in the present
case there has been a violation of Article 13 (Art. 13) taken in
conjunction with Article 8 (Art. 8) of the Convention in relation to
the applicant's office telephones.
85. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 13 (Art. 13) taken in
conjunction with Article 8 (Art. 8) of the Convention in relation to
the applicant's home telephone.
F. As regards Article 14 (Art. 14) of the Convention
86. Article 14 (Art. 14) of the Convention, insofar as is relevant,
reads as follows:
"The enjoyment of the rights and freedoms set forth in this
Convention shall be secured without discrimination on any ground
such as sex, ...".
87. The applicant complains under Article 14 (Art. 14) of the
Convention that she was discriminated against on grounds of sex and
that her attempts to redress this discrimination have been compounded
by the way in which she has been treated because of her sex for
pursuing such a matter.
88. The Commission recalls that this Article protects individuals in
analogous situations from a discriminatory difference in treatment in
the exercise of the rights and freedoms recognised by the Convention
and its Protocols (see, for example, Eur. Court H.R., Darby judgment
of 23 October 1990, Series A no. 187, p. 12, para. 31).
89. Insofar as the applicant complains of discrimination in the
context of promotion at work, the Commission notes that there is no
right to promotion at work guaranteed by the Convention. Insofar as the
treatment the applicant complains about is the alleged interception of
telephone calls made on her home and office telephones (namely, under
Article 14 in conjunction with Article 8 (Art. 14+8) or Article 10
(Art. 14+10) of the Convention), the Commission finds that the
applicant has not demonstrated that any such action taken against her
reveals a difference of treatment on grounds of her sex. The Commission
notes that the applicant in fact submits, in relation to her complaints
under Article 8 (Art. 8) of the Convention, that the reason for the
alleged interceptions was to assist the defendant police force in the
Industrial Tribunal proceedings.
CONCLUSION
90. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 14 of the Convention taken in
conjunction with Article 8 (Art. 14+8) or Article 10 (Art. 14+10) of
the Convention.
G. Recapitulation
91. The Commission concludes, by 26 votes to 1, that in the present
case there has been a violation of Article 8 (Art. 8) of the Convention
in relation to the applicant's office telephones (para. 68).
92. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 8 (Art. 8) of the Convention in
relation to the applicant's home telephone (para. 69).
93. The Commission concludes, unanimously, that in the present case
it is not necessary to examine separately the applicant's complaint of
a violation of Article 10 (Art. 10) of the Convention as regards her
office telephones (para. 76).
94. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 10 (Art. 10) of the Convention
as regards the applicant's home telephone (para. 77).
95. The Commission concludes, by 26 votes to 1, that in the present
case there has been a violation of Article 13 taken in conjunction with
Article 8 (Art. 13+8) of the Convention in relation to the applicant's
office telephones (para. 84).
96. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 13 taken in conjunction with
Article 8 (Art. 13+8) of the Convention in relation to the applicant's
home telephone (para. 85).
97. The Commission concludes, unanimously, that in the present case
there has been no violation of Article 14 of the Convention taken in
conjunction with Article 8 (Art. 14+8) or Article 10 (Art. 14+10) of
the Convention (para. 90).
Secretary to the Commission President of the Commission
(H.C. KRÜGER) (S. TRECHSEL)
(Or. English)
DISSENTING OPINION OF MR. H.G. SCHERMERS
I do not agree with the majority of the Commission's finding that
conversations over a special network of the police by police officers
are to be seen as part of the private life of the officers concerned.
The relevant conversations took place in the offices of the police.
In this respect the case differs from the Niemietz case (Eur. Court
H.R., Niemietz judgment, Series A no. 251-B) where it concerned the
private office of the applicant and also from the Huvig case (Eur.
Court H.R., Huvig judgment Series A no. 176-B) where, as in Niemietz,
the persons responsible for the office had not agreed to any
interceptions of conversations. Furthermore, the fact that the
expenditure of the telephone was borne by the police also indicates a
certain relationship with the service.
Like the majority of the Commission, I am willing to follow the
conclusion of the Court in the A. v. France case (Eur. Court H.R., A
v. France judgment, Series A no. 277-B), referred to in para. 56, that
telephone conversations fall within the term "correspondence". However,
I do not think that this supports the argument that telephone calls in
the office must be kept confidential. Normally, correspondence from a
police office is not the secret of a particular police officer. In many
offices all incoming mail is opened and registered. Copies of both
incoming and outgoing mail may be made and filed. The superior officers
are entitled to look into these files. It would not be unreasonable if,
for the same reasons, transcripts should be kept of telephone
conversations made in the office. If that were done, confidentiality
would also be limited.
A general rule that private telephone conversations in the office
should be confidential would also lead to practical problems in more
open offices and might lead to difficulties in the relationship of
employer and employee or in the hierarchical structure of an
organisation which may control the circumstances in which telephone
calls may be made from office premises.
Of course, it should not be excluded that in some services
private telephone conversations are considered confidential, but I do
not accept that the other opinion infringes fundamental human rights.
The Commission found it not necessary to examine separately the
applicant's complaint of a violation of Article 10 of the Convention
as regards her office telephones. I shared that opinion, though for
different reasons. The Commission saw no need as a violation had
already been found of Article 8. I see no need because, for the same
reasons that I find no violation of Article 8, I find no violation of
Article 10.