DECISION OF THE COMMISSION

AS TO THE ADMISSIBILITY OF

            Application No. 20605/92

            by Alison HALFORD

            against the United Kingdom

The European Commission of Human Rights sitting in private on 2 March 1995 , the following members being present:

MM. C. A. NØRGAARD, President

C.L. ROZAKIS

S. TRECHSEL

A.S. GÖZÜBÜYUK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

Mrs. G.H. THUNE

Mr. F. MARTINEZ

Mrs. J. LIDDY

MM. L. LOUCAIDES

M.P. PELLONPÄÄ

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

B. CONFORTI

I. BÉKÉS

J. MUCHA

D. ŠVÁBY

E. KONSTANTINOV

G. RESS

Mr. H.C. KRÃœGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 22 April 1992 by Alison HALFORD against the United Kingdom and registered on 10 September 1992 under file No. 20605/92;

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 17 June 1994 and the observations in reply submitted on behalf of the applicant on 9 September 1994;

Having deliberated;

Decides as follows:

THE FACTS

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

The applicant is a British citizen born in 1940 and resident in the Wirral. The applicant is represented before the Commission by Mr. Robin Makin, a solicitor practising in Liverpool.

A. Particular circumstances of the case

The applicant was appointed to the rank of Assistant Chief Constable with the Merseyside Police in May 1983. As such she was the most senior ranking female police officer in the United Kingdom. This post involved, at times, 24 hour responsibility. She applied on a number of occasions subsequently to be appointed to a more senior post. The applicant’s applications for promotion 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 lesser qualifications. 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.

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 resolved on formal investigation and referred matters to the Police Complaints Authority. On 8 February 1991 , the Committee resolved to press charges.

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 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.

In the proceedings before the Industrial Tribunal, there were 45 days of evidence or 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 agreement by the Home Office with the Equal Opportunities Commission to update and review procedures.

The applicant alleges that as a result of her complaints of sex discrimination, she was subjected to surveillance, including bugging of her office and interception of her calls on her private home telephone and her office telephones. She had two telephones in her office: one telephone with an external number for personal calls and

one telephone for police work. The calls from both these telephones were paid for by the police. She relies, inter alia, on the following to support her allegations of such surveillance and interception:

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. The applicant traced the carpet agency, under the guise of losing a pen, to an almost derelict back street close to her employer’s premises where she saw no sign of life during a period of observation.

Subsequently, the applicant’s private outside telephone line began to emit short rings, which according to a source, is an indication of a monitoring system being in use.

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.

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.

Another source revealed that in December 1990 he had been approached with a view to his making a statement detrimental to the applicant and 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.

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 subsequently was 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.

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.

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.

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.

In the proceedings before the Industrial Tribunal, the applicant wished to raise the matter of the interception of her telephone calls 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.

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 the interception took place or whether it had been authorised by the Home Secretary.

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.

B. Relevant domestic law and practice

I. Public telecommunications systems.

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.

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.

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. 

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 is limited and controlled.

(b) The Tribunal.

Any person can complain to the Interceptions 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 contains 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 the principles of judicial review in determining whether there has been a breach of sections 2-5 of the 1985 Act.

If there has been no such breach the Tribunal will merely confirm this but does not confirm whether a warrant has been issued or not. However if there has been a breach, the Tribunal must notify the applicant of its conclusion on this point, 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.

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 are relevant to the present application.

(d) The Commissioner.

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).

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

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

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).

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.

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

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).

In response to allegations made in the Guardian newspaper implying that there were many unauthorised interceptions, the Commissioner stated that there was no basis whatever for this speculation.

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

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."

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."

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

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.

The 1985 Act does not apply to private telecommunications systems. In addition, 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.  

COMPLAINTS

The applicant alleges that her telephone conversations at home and at work were intercepted in order to undermine her and to collect adverse evidence for use in the sex discrimination proceedings which she had brought against her employer, a police authority.

In this connection the applicant first complains that she did not have a fair hearing, as required by Article 6 of the Convention, since she was not able to adduce evidence in the Industrial Tribunal proceedings concerning the interception of her telephone conversations.

The applicant next complains that the interceptions were in breach of her right to respect for private life and her freedom of expression, ensured respectively by Articles 8 and 10 of the Convention. She submits that the fact that she was pursuing proceedings alleging sexual discrimination could not justify this conduct under the second paragraph of these provisions.

The applicant further complains under Article 14 of the Convention that her rights and freedoms guaranteed by the Convention were violated on the 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.

In addition, the applicant complains that she has no effective remedy in respect of her complaints as required by Article 13 of the Convention.

Finally, the applicant alleges that her office was bugged by the Merseyside Police and that she was the subject of surveillance by the Special Branch. She complains that these actions were in breach of her rights guaranteed by the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 22 April 1992 and was registered on 10 September 1992 .

On 11 January 1994 the Commission decided to communicate the application to the respondent Government and to request them to submit written observations on the admissibility and merits of the applicant’s complaints under Articles 8, 10 and 13 of the Convention.

The Government’s observations were received on 17 June 1994 after two extensions of the time-limit fixed for this purpose. The observations submitted on behalf of the applicant were received on 9 September 1994 after one extension of the time-limit.

THE LAW

1. The applicant alleges that her telephone conversations at home and at work were intercepted in order to undermine her and to collect adverse evidence for use in the sex discrimination proceedings which she had brought against her employer.

In this connection, the applicant first complains under Article 6 of the Convention about her inability to adduce evidence in relation to the alleged interceptions during the discrimination proceedings before the Industrial Tribunal.

Article 6 of the Convention, insofar as is relevant, reads as follows:

"1. In the determination of his civil rights ... , everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal ...".

The Commission considers that, even assuming that the applicant’s claim before the Industrial Tribunal concerned the determination of a civil right, the applicant has not indicated what information in relation to the alleged interceptions she wished to raise before the Industrial Tribunal and in what respect that evidence would have assisted her in her sexual discrimination action against the Merseyside Police.

The Commission therefore finds that this complaint of the applicant is unsubstantiated and fails to disclose a violation of Article 6 of the Convention. It must accordingly be rejected as being manifestly ill-founded pursuant to Article 27 para. 2 of the Convention.

2. The applicant also alleges that her office was bugged by the Merseyside Police and that she was the subject of surveillance by the Special Branch because she had instituted discrimination proceedings against the Merseyside Police and complains that this conduct was in breach of her rights guaranteed by the Convention.

In relation to the bugging allegations, the Commission notes that the applicant has submitted that she was suspicious of the fact that persons arrived unexpectedly in July 1990 to stretch her office carpet and that the applicant had set about investigating the matter soon thereafter. The Commission also notes that in October 1990 the applicant had to bring someone who was a potential source of information to another office as that person was clearly unwilling to speak in the applicant’s office. Moreover, it appears that the applicant became aware in or around December 1990 that the contents of a personal conversation, which took place in the applicant’s office in December 1990, had became known to the Assistant Chief Constable. As regards the surveillance allegations, the Commission also notes that the applicant has submitted that she was also informed by a source in December 1990 of the alleged surveillance by the Special Branch.

In view of the evidence submitted by the applicant and even assuming exhaustion of domestic remedies, the Commission considers that the applicant was in possession of evidence which led her to believe that her office was being bugged and that she was the subject of surveillance by the Special Branch in or around December 1990. However, the applicant did not introduce her application until April 1992 which is more than six months after that time. The Commission therefore concludes that these complaints of the applicant are out of time and must be declared inadmissible pursuant to Article 27 para. 3 of the Convention.  

3. The applicant further complains that the interception of the telephone calls, made on her office and home telephones because she had instituted the discrimination proceedings, was in breach of Articles 8, 10, 13 and 14 of the Convention. These provisions guarantee the right, inter alia, to respect for private life, freedom of expression, effective domestic remedies for breaches of the Convention and the securement of Convention rights and freedoms without discrimination.

As regards Articles 8 and 13 of the Convention, the applicant submits that there should be no distinction between the nature or the source of the telephone conversations to which the rights outlined in Article 8 of the Convention apply and that neither the Interception of Communications Tribunal nor the Commissioner, provided for under the Interception of Communications Act 1985, are effective remedies in her case. She points out that the Act does not apply to private telecommunications systems, such as her office telephones. Moreover, it is submitted that the safeguards set down by that Act, which are applicable to public telecommunications systems, covering her home telephone, were insufficient in her case in view of the fact that it is the police force she accuses of intercepting her telephone conversations.

In addition, the applicant complains under Article 14 of the Convention that her rights and freedoms under the Convention have been violated on grounds of her sex and that her attempts to redress this discrimination have been compounded by the way in which she was treated because of her sex for pursuing such a matter.

As regards the applicant’s complaint under Article 8 of the Convention, the Government accept that the applicant has adduced sufficient evidence to establish a reasonable likelihood that calls made on her office telephones were intercepted, but they submit that the applicant had no reasonable expectation of privacy in relation to those telephones. The Government do not accept that the applicant has established such a reasonable likelihood in respect of her home telephone. They conclude, therefore, that there has been no interference with the applicant’s right to respect for private life.

The Government also contend that there has been no interference with the applicant’s freedom of expression, ensured by Article 10 of the Convention, or that, alternatively, no separate issue arises under this provision.

The Government further submit, in relation to the complaint of the applicant under Article 13 of the Convention, 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 of the Convention.

The Government conclude that the applicant’s complaints should be deemed manifestly ill-founded, or that the case does not disclose any violation of the Convention.

The Commission finds, in the light of the parties’ submissions, that this part of the application raises complex and serious issues under Articles 8, 10, 13 and 14 of the Convention which require determination on their merits. It follows that these complaints of the applicant cannot be dismissed as manifestly ill-founded within the meaning of Article 27 para. 2 of the Convention. No other ground for declaring them inadmissible has been established.

For these reasons, the Commission

by a majority

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaints in relation to the alleged interference with telephone calls made on her office and home telephones;

unanimously

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)