Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 13736/88

by Kevin and Beryl TAYLOR

against the United Kingdom

The European Commission of Human Rights sitting in private

on 10 November 1989, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

G. BATLINER

J. CAMPINOS

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, 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 12 January 1988

by Kevin and Beryl TAYLOR against the United Kingdom and registered

on 7 April 1988 under file No. 13736/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicants, Kevin and Beryl Taylor, who are husband and

wife, are citizens of the United Kingdom born in 1932 and 1938

respectively. They are resident in Manchester, where together they own

and manage a group of property development companies. The facts of

the case, as submitted by the applicants, may be summarised as follows:

On 12 March 1986, orders of access to the bank accounts of

the applicants and of their businesses were granted by the Recorder of

Manchester under Section 9 of the Police and Criminal Evidence Act

1984 (the 1984 Act) upon application inter alia by A. T. and S.,

senior officers of the Greater Manchester Police, for the expressed

purpose of investigating a suspected bank fraud. On 9 May 1986,

search warrants were issued for the same purpose by a stipendiary

Magistrate under Section 8 of the 1984 Act, inter alia against the

business premises of the applicants and of their solicitors and

against their home. The search of the applicants' home was conducted

on the same day by a detective Inspector of the Greater Manchester

Police Special Branch who was, at that time, liaison officer with MI5,

the British Internal Security Service. During the course of this

search, certain of the applicants' property was seized, including

family photograph albums.

The applicants consider that the real purpose for which the

above orders and warrants were sought was not for the expressed

intention of investigating a bank fraud, but for the concealed purpose

of discrediting Mr. John Stalker, the then Deputy Chief Constable of

the Greater Manchester Police and a friend of the applicants, with a

view to removing him from his enquiry into allegations of a "shoot to

kill" policy on the part of the Royal Ulster Constabulary in Northern

Ireland. That this was the dominant concern of the police officers

investigating the applicants' activities is, in their view, confirmed

by the evidence in fact obtained, namely details of the first

applicant's financial transactions at the time he was in the company

of Mr. Stalker together with personal photographs depicting

Mr. Stalker in the company of the applicants and their friends, some of

whom had previous minor convictions.

This evidence formed the basis of a subsequent decision by

senior police officers to remove Mr. Stalker from the enquiry into the

Royal Ulster Constabulary and to commence an investigation into the

possiblity of misconduct on his part in the exercise of his duties. He

was later cleared of the allegations of misconduct.

Section 16 (8) of the 1984 Act provides as follows:

"A search under a warrant may only be a search to the extent

required for the purpose for which the warrant was issued."

Sections 19 to 21 of the 1984 Act provide for the power of

seizure by any constable lawfully on any premises. Section 19 (3)

provides as follows:

"(3) The constable may seize anything which is on the

premises if he has reasonable grounds for believing -

a) that it is evidence in relation to an offence

which he is investigating or any other offence;

and

b) that it is necessary to seize it in order to

prevent the evidence being concealed, lost,

altered or destroyed."

These provisions are reflected in the codes of practice issued by the

Secretary of State in connection with the search of premises and the

seizure of property. Under Section 67 of the 1984 Act, a police

officer is liable to disciplinary proceedings for a failure to comply

with any provision of this code, though such failure does not of

itself render him liable to any criminal or civil proceedings.

The applicants were subsequently advised by counsel that

before pursuing the available remedies in law for the unlawful

granting or use of search warrants, namely trespass to property and to

goods, wrongful detention of goods and abuse of power, the proper

course of action was to apply for discovery of relevant documents

pursuant to Order 29 Rule 7A of the Rules of the Supreme Court as

provided for by Section 33 of the Supreme Court Act 1981.

On 23 September 1986, the first applicant issued an

originating summons in the Chancery Division of the High Court against

A. and the Greater Manchester Police Authority for an order that they

should disclose all the documents which supported the granting of the

search warrants obtained on 9 May 1986. On 15 October 1986,

Mr. Justice Scott dismissed the suit on the grounds that public

immunity privilege attached to the police enquiries at that time.

After noting that a decision as to whether there would be a

prosecution appeared imminent, he held as follows:

"If it turns out that a prosecution for the offence referred

to in the search warrants is not to be instituted, then I

think there would be no continuing argument that public

interest immunity attached to the information or

informations. If there is a prosecution and it fails, the

same will apply. It would apply, for that matter, if a

prosecution were instituted and succeeded, but it might then

no longer be a practical question.

...[Counsel for the applicant] addressed me on the footing that

without discovery of the sort that he seeks, proceedings by

his client against the first defendant, based upon the

improper obtaining of the search warrant, and, I suppose, on

the excessive execution of the search warrant, could not be

commenced.

... Of course, until it is known whether or not there is going

to be a prosecution for conspiracy to defraud there is

perhaps not much point in commencing a civil action; if

there were a prosecution the civil action would simply have

to be stayed until the prosecution had run its course. But

subject to that I find myself unpersuaded that there are ...

difficulties in the way of commencement of proceedings ..."

The applicants also initiated a private prosecution at the

suit of one of their companies against A, T and S at this time.

On 14 October 1986, a Magistrate in Bury issued summonses against A,

T and S, requiring them to answer the applicants' allegation that

between 12 March and 9 May 1986 they had conspired together to obtain

by false evidence the above orders and warrants in that the conditions

for the granting of these orders and warrants were sworn to have

existed when in truth such conditions were and could not be fulfilled

and that they were sought with the main purpose of discrediting

Mr. Stalker.

Leave was subsequently granted to A, T and S to take

proceedings for judicial review of the decision to issue the

summonses. On 13 July 1987, the High Court granted relief to the

applicants in those proceedings and the summonses were quashed on the

grounds that the manner in which they had been obtained was an abuse

of process in that the Magistrate had not been informed of the civil

action for disclosure of documents then pending before the Chancery

Division. The court further refused to certify a point of law of

public importance to the House of Lords concerning the relevance of

the finding in those civil proceedings to the criminal prosecution

against A, T and S.

On 30 September 1987, the first applicant was charged with

conspiracy to obtain pecuniary advantages under Section 15 of the

Theft Act 1968. The applicants consider that these proceedings,

which are also still pending, form part of a "trawling" investigation

in a continuing campaign to denigrate and discredit the first

applicant in order to justify the actions taken against Mr. Stalker in

1986. On 9 February 1988, the High Court dismissed a further and

separate action brought by the applicants for leave to challenge the

original decision of 12 March 1986 to issue the access orders to the

applicants' bank accounts, although on this occasion it did certify a

point of law of public importance and an application for leave to

appeal to the House of Lords is still pending.

COMPLAINTS

1. The applicants complain that the search warrants issued in

respect of their home and business premises were used for the improper

purpose of discrediting a senior police officer in the lawful exercise

of his duties. Tbey complain in particular of the taking of family

photographs from their home on 9 May 1986. They invoke Article 8 of

the Convention and Article 1 of Protocol No. 1 in this connection.

2. The applicants complain further that they are precluded from

testing their allegations of perjury and conspiracy against the

police officers concerned as a result of the High Court decision of

13 July 1987 quashing the summonses issued against those officers and

refusing to allow the question to be considered further by the House

of Lords. They invoke Articles 6 and 13 of the Convention in this

connection.

THE LAW

1. The applicants first complain that the search warrants

authorising a search of their home and business premises were used for

an improper purpose, namely to discredit a senior police officer.

They further complain that certain family items were taken from their

home in the course of the search. They allege a breach of Article 8

(Art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1).

However, the Commission is not required to decide whether or

not the facts alleged by the applicants disclose any appearance of a

violation of this provision as, under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic

remedies have been exhausted according to the generally recognised

rules of international law.

In the present case it is clear from the judgment of Mr.

Justice Scott in the abortive discovery proceedings that actions in

tort against the police would lie in respect of the search and the

seizure of documents and property. In the course of such proceedings

the applicants could have argued that the search warrants were

improperly obtained and executed. It is true that any proceedings

instituted may have had to be stayed pending the criminal proceedings

which were ultimately set in motion by the charge of 30 September 1987.

As Mr. Justice Scott found, however, a request for discovery in civil

proceedings in tort could not, after the criminal proceedings, be met

by a defence of public interest imunity. The applicants' claims could

therefore be considered at that stage.

It follows that the applicants have not complied with the

condition as to the exhaustion of domestic remedies and this complaint

must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicants also complain under Articles 6 and 13

(Art. 6, 13) of the Convention that, as a result of the High Court

decision of 13 July 1987, they are prevented from bringing criminal

proceedings against the police officers concerned.

In this respect the Commission recalls that Article 6 para. 1

(Art. 6-1) of the Convention guarantees a right of access to court in

respect of disputes concerning civil rights and obligations.

However, it does not guarantee the right to bring criminal proceedings

(see e.g., No. 7116/75, Dec. 4.10.76, D.R. 7 p. 91). It follows that

the applicants' complaint under Article 6 para. 1 (Art. 6-1) of the

Convention is incompatible ratione materiae with the provisions of the

Convention within the meaning of Article 27 para. 2 (Art. 27-2) of

the Convention. Similarly, since Article 13 (Art. 13) can only be

invoked in connection with a right guaranteed by the Convention, this

complaint falls to be rejected on the same grounds.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the Commission President of the Commission

(H. C. KRÜGER) (C. A. NØRGAARD)

Menu

TAYLOR v. THE UNITED KINGDOM

TAYLOR v. THE UNITED KINGDOM

LEXI