Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27237/95

by Michael GOVELL

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 26 February 1997, the following members being present:

Mrs. J. LIDDY, President

MM. E. BUSUTTIL

A. WEITZEL

C.L. ROZAKIS

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mr. R. NICOLINI

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 26 May 1994 by

Michael GOVELL against the United Kingdom and registered on

3 April 1995 under file No. 27237/95;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

25 June 1996 and the observations in reply submitted by the

applicant on 6 September 1996;

Having deliberated;

Decides as follows:

THE FACTS

a. Circumstances of the case.

The applicant is a British citizen, born in India in 1958 and

presently detained in Leeds Prison, Leeds. He is represented by

Mr. John Wadham of Liberty.

In February 1992 the applicant was living in Leeds in a house at

149 Sandringham Drive, together with his wife. He was subjected to

police surveillance: 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 installed

camera equipment in the next door property, and the applicant believes

that his flat was entered when he and his wife were out.

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.

On 3 July 1992, an investigating officer was appointed by the

chief officer to carry out a formal investigation into the applicant's

complaint. The investigation was completed on 15 October 1992.

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".

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 authorisations. 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."

On 4 October 1993 the applicant was granted leave to judicially

review the decisions of the PCA and the Chief Constable. He contended

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.

By affidavit sworn for the purposes of the judicial review

proceedings, 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."

The applicant requested disclosure of the Investigation Report,

the relevant Home Office Guidelines on the authorisation 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.

The application for judicial review was heard in the High Court

on 23 May 1994. Lord Justice Kennedy and Mr. Justice Alliot 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.

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.

The applicant was detained in prison on remand in respect of

charges relating to the possession of drugs.

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.

On 13 March 1996 the applicant lodged an appeal against

conviction and sentence.

b. Relevant domestic law and practice.

The Home Office Guidelines

The Guidelines on the use of equipment in police surveillance

operations ("the Home Office Guidelines") are non-statutory guidelines

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 authorisation 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

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."

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."

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.

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."

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).

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")

The PCA supervises investigations referred to it under s. 88 of

the 1984 Act by the appropriate authorities (s.89(2) ibid.) or when the

complaint alleges that the conduct of the relevant officer resulted in

serious injury or death (s. 89(1) ibid.). It may also require the

appropriate authority to refer a complaint to it (s. 87(2) ibid.). It

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."

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."

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.

COMPLAINTS

1. The applicant complains that the surveillance by the police

constituted a violation of his right to respect for his private and

family life, home and correspondence as guaranteed under Article 8 of

the Convention. In particular, he submits that the interference with

these rights was not "in accordance with law" within the meaning of the

second paragraph of Article 8. The use of listening devices has no

basis in domestic law and the power to engage in secret surveillance

is not laid down with precision in accessible legal rules which

sufficiently indicate the scope and manner of the exercise of the

discretion conferred on the relevant authorities. In addition, there

are no adequate safeguards against abuse in existence and any

interference accordingly cannot be regarded as "necessary in a

democratic society". The applicant further contends that he is subject

to an ongoing violation of Article 8, since there is a reasonable

likelihood that he has been subject to further surveillance since the

events described in the application, and risks becoming the subject of

further surveillance in the future.

2. The applicant also contends that he had no effective domestic

remedy for his complaints in violation of Article 13 of the Convention.

He considers that he is also subject to an ongoing violation of

Article 13 for the same reasons as in respect of Article 8, set out

above.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 26 May 1994 and was registered

on 3 April 1995.

On 12 April 1996 the Commission decided to communicate the

application and to ask the respondent Government for written

observations on its admissibility and merits.

The Governments' observations were submitted on 25 June 1996 and

the applicant's observations in reply were submitted by letter dated

6 September 1996, after one extension in the time-limit for the

purpose.

THE LAW

1. The applicant complains that he has been subject to surveillance

by the police amounting to an interference in his right to respect for

his private and family life as guaranteed by Article 8 (Art. 8) of the

Convention. That provision provides 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."

The Government do not comment on whether or not they consider

there to have been an interference in the applicant's right to respect

for his family and private life. They claim however that the

surveillance activities were in accordance with the law, the Home

Office Guidelines having been publicly announced and being accessible,

despite their not having statutory force. They state that the Home

Office will disclose the guidelines on application to that department.

Further, they submit that the guidelines confine the use of

surveillance to activities intended to prevent and detect crime, and

provide rules which, unless disobeyed, ensure that surveillance is not

carried out where other methods of investigation are practicable or

when it is no longer necessary for the relevant purpose to continue

with the surveillance.

They further submit that guarantees against abuse are afforded

by the PCA, an independent body that has power to sanction any breach

of the rules through the use of disciplinary proceedings or, in the

case of a potentially criminal offence, by referring the matter to the

DPP.

As to whether the measures are necessary for the prevention of

crime, the Government submit that the facts of this case demonstrate

how important secret surveillance was in investigating the applicant.

Reference is made to intelligence sources that the Government claim

reveal that the applicant was a leading criminal in West Yorkshire,

selling counterfeit goods and using the profit to obtain and distribute

Class A drugs of high value. They state that, as a result of

intelligence, the applicant was arrested in a car on his way to Glasgow

in possession of Class A drugs and that his associates were arrested

in Glasgow while attempting to meet him, also in possession of Class

A drugs. They submit that there is no material to suggest that the use

of the techniques in this case was disproportionate. Consequently they

claim that the interference in the applicant's private life was

justified within the meaning of Article 8 para. 2 (Art. 8-2) of the

Convention.

The applicant submits that the actions of the West Yorkshire

Police went to the heart of the notion of "private and family life"

within the meaning of Article 8 (Art. 8) of the Convention since they

included listening to the applicant's conversations and discussions in

his home, including conversations with his wife, giving rise to an

infringement of Article 8 para. 1 (Art. 8-1).

The applicant submits that the interference was not in accordance

with the law; the power to engage in secret surveillance, in

particular, the power to install bugging devices, not being laid down

with precision in accessible rules that sufficiently indicate the scope

and manner of exercise of the discretion conferred on the relevant

authorities. The applicant emphasises the lack of legislative basis

for the use of listening devices or bugs, the fact that breach of the

Home Office Guidelines does not render the installation and use of

listening devices illegal and the internal nature of the Home Office

Guidelines, that he claims are not available to the public.

The applicant submits that in accordance with the Court's

reasoning in Klass v. Germany, (Eur. Court HR judgment of

6 September 1978, Series A no. 28) and Malone v. United Kingdom (Eur.

Court HR, judgment of 2 August 1984, Series A no. 82), the installation

of secret surveillance equipment and bugging devices can only be

considered to be necessary in a democratic society, where there exist

adequate safeguards against abuse, and that no such safeguards exist

in this case. Unlike the case of the Commissioners and Tribunals

established under the Security Services Act 1989 and the Intelligence

Services Act 1994, which are independent of MI5, MI6 and GCHQ,

investigations by the PCA are carried out by the police themselves.

In this case the Chief Constable for the West Yorkshire Police was, in

effect, asked to investigate whether his officers had properly applied

to his assistant, the Deputy Chief Constable, for authorisation to

install and use a listening device or bug in the applicant's home. The

applicant states that he has no faith in such an investigation and

considers that the intrusive nature of such surveillance requires more

stringent protections against abuse. In the circumstances, he claims

the requirement that any interference in his rights safeguarded under

Article 8 para. 1 (Art. 8-1) is "necessary in a democratic society"

within the meaning of Article 8 para. 2 (Art. 8-2) cannot be said to

have been met.

2. The applicant also contends that he had no effective domestic

remedy for his complaints in violation of Article 13 (Art. 13) of the

Convention, which provides 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."

The Government submit that Article 13 (Art. 13) only applies in

cases where there is an arguable claim that there has been a violation

of the Convention. Insofar as the matters raised under Article 13

(Art. 13) again raise the issue of whether there was an effective

guarantee against abuse, the Government repeat their submissions made

in relation to the PCA, and add that the High Court has a supervisory

jurisdiction over the authority should it breach its rules of procedure

or act irrationally.

The applicant submits that a complaint to the PCA does not

provide adequate protection from abuse since the Home Office Guidelines

are not legally binding in any sense and breach of the guidelines thus

has no effect in law. He further submits that since the Home Office

Guidelines are not in the public domain, citizens and their lawyers

cannot make meaningful complaints as to suspected violations thereof.

In any event, the PCA can only consider whether any given conduct

amounts to a breach of police disciplinary regulations or a criminal

offence. In certain circumstances a breach of the Home Office

Guidelines will not amount to a breach of disciplinary regulations or

a criminal offence such that there will be no sanction for that failure

to comply with the guidelines.

3. The Commission considers, in the light of the parties'

submissions, that the above complaints raise complex issues of law and

fact under the Convention, the determination of which should depend on

an examination of the merits of the application as a whole. The

Commission concludes, therefore, that these complaints are not

manifestly ill-founded, within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention. No other grounds for declaring them

inadmissible have been established.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION ADMISSIBLE, without prejudging the

merits.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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GOVELL v. THE UNITED KINGDOM

GOVELL v. THE UNITED KINGDOM