Lexploria

AS TO THE ADMISSIBILITY OF

Applications Nos. 11745/85 and 13595/88

by the CAMPAIGN FOR NUCLEAR DISARMAMENT and Others

against the United Kingdom

The European Commission of Human Rights sitting in private on

10 March 1989, the following members being present:

MM. J.A. FROWEIN, Acting President

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

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;

- ii -

Having regard to:

- the application introduced on 30 July 1985 by the CAMPAIGN FOR

NUCLEAR DISARMAMENT and Others against the United Kingdom and

registered on 11 September 1985 under file No. 11745/85;

- the application introduced on 9 January 1988 by the CAMPAIGN

FOR NUCLEAR DISARMAMENT and Others against the United Kingdom and

registered on 8 February 1988 under file No. 13595/88;

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

The first applicant, the Campaign For Nuclear Disarmament,

is an unincorporated association founded in 1958. The aim of the

association popularly referred to as "CND" is to oppose the

manufacture and use of nuclear weapons and to establish unilateral

disarmament in the United Kingdom. The first applicant has no

affiliation to any particular political group. It has 110,000

national members and 350,000 local group members, drawn from all

shades of political opinion.

The second applicant, Joan Mary Ruddock, is a British citizen

born in Pontypool, Wales in 1943. She is currently Chairwoman of the

first applicant.

The third applicant, John Idris Cox, is a British citizen born

in Cardiff in 1935. He is currently Vice-President of the first

applicant. He has been a member of the Communist Party of Great

Britain since 1958 and has held office twice in the Executive

Committee of the Communist Party of Great Britain.

The fourth applicant, David Bruce Kent, is a British citizen

born in London in 1929 and is the General Secretary of the first

applicant.

The applicants are represented by Mr. Stephen Grosz, a

solicitor, practising in London.

The applicants allege a series of incidents illustrating that

members and officials of the first applicant are the subject of

interference with mail and telephone services, surveillance and the

collection, retention and dissemination of personal information. These

activities are carried out by or on behalf of the British security

services, MI5 and Special Branch.

Telephone tapping

The applicants alleged a history of systematic interference

with the telephones of members of the first applicant.

In her affidavit dated 12 July 1985, Ms. Catherine Massiter

deposed to the fact that the telephone communications of the third

applicant had been intercepted by the security services from about

August 1983. She also deposed to the fact that this interception was

undertaken primarily not for reasons of national security, but in

order to be able to listen to the conversations which the second and

fourth applicants had with the first applicant on the telephone. This

was done so that the security services might obtain information about

the activities of the first applicant and its principal officers. The

second, third and fourth applicants applied to the High Court for

leave to apply for judicial review, seeking to quash the warrant

issued in respect of the third applicant and to prohibit the

interception of their telephones.

In his judgment given on 2 September 1986, the Honourable Mr.

Justice Taylor accepted Ms. Massiter's evidence and found as a fact

that the telephone conversations of the third applicant had been

intercepted, though he went on to dismiss the applicants' application

for judicial review on other grounds.

The second, third and fourth applicants continue to take part

in the activities of the first applicant and contend that they are

members of a class whose telephone communications are likely to be

intercepted.

On 20 August 1987, the second, third and fourth applicants

submitted applications to the Interception of Communications Tribunal

established under the Interception of Communications Act 1985, in

order to establish whether their telephone communications were subject

to interference.

On 20 October 1987, the Interception of Communications

Tribunal replied that it could find no contravention of the Act in

relation to a relevant warrant.

Interception of mail

The applicants also complain of interception of postal

communications. Members of CND have repeatedly complained of

receiving their mail torn, unsealed or otherwise tampered with, to

an extent far greater than experienced by the general public.

For example, a CND member, Mrs. Lewton, has received 16

damaged letters between 17 September 1984 and 12 January 1985, and

further damaged mail since. On complaint to the Post Office, who

carried out an investigation into the matter, she was told that the

damage would seem to have been caused by a combination of machine

damage and poor enveloping. She also complained to the Home Secretary

through her M.P. By letter dated 4 February 1985, the Home Secretary

refused to confirm or deny that interception had taken place or been

authorised.

Mail sent to and from CND offices has been received damaged

and after unusual delay. The Post Office again attributed damage to

franking machines and faulty packing, although post office officials

had previously examined CND packaging procedures and had found no

fault.

In one incident on 14 February 1985, 14 letters arrived open

at CND offices, Finsbury Park, London. An employee of the local

sorting office allegedly told a CND member that this and other

tampering and delays are the result of systematic periodic

interception of CND's postal communications.

Following the publicity surrounding the T.V. programme "MI5's

Official Secrets", the Prime Minister appointed Lord Bridge to

investigate allegations of improperly authorised interceptions of

communications at or about the end of February 1985. Lord Bridge

found that no warrant had been issued in contravention of the relevant

criteria.

Surveillance and personal files

The applicants further complain of other measures taken by MI5

and Special Branch to gain information.

In 1982, according to Ms. Massiter's affidavit, an

intelligence officer of MI5, a Mr. Harry Newton, was infiltrated into

CND headquarters under the guise of being a volunteer. He supplied

MI5 with information concerning CND activities and particulars of CND

officials. This information was recorded on MI5 files and was made

available to the Ministry of Defence and to the Secretary of State for

Defence for, inter alia, the purpose of political propaganda. This

included the agent's opinion that the fourth applicant is a

crypto-communist.

In March 1983, Mr. Stanley Bonnett, former editor of the CND

magazine "Sanity", was persuaded by Special Branch officers to pass on

details of the private lives and political activities of CND

officials.

The applicants allege that MI5 keep personal files on active

members of CND containing information gained from the above-mentioned

surveillance techniques. These files include inaccurate information,

for example:

i) the fourth applicant and Mrs. Barbara Eggleston, Christian CND

organiser, are recorded as communist sympathisers;

ii) the second applicant is recorded as being a contact of a

hostile intelligence service; and

iii) Ms. Cathy Ashton, former member of the CND executive committee

is recorded as being a communist sympathiser because she

shared accommodation with a member of the Communist Party ;

iv) Roger Spiller, a vice-chairman of the first applicant, was

wrongly recorded as having been a member of the Young

Communist League.

The applicants also complain that the information in MI5 files

was made available for political propaganda purposes. In March 1983,

the Secretary of State for Defence set up a special unit DS19 whose

task was to combat CND propaganda on unilateral nuclear disarmament.

This unit requested information from MI5 on the leading members of CND

and according to Ms. Massiter non-classified information was provided.

The applicants also state that information held on files may be made

available to the police or to other ministers and could be used when a

subject applies for Government employment.

The fourth applicant in a letter dated 25 February 1983

contacted the Home Secretary and requested the opportunity to check

the file allegedly held on him and to correct any mistakes which it

contained. The Home Secretary following a standard policy refused the

request and would neither confirm nor deny the allegations.

On 23 November 1988, the Government introduced the Security

Service Bill before Parliament, draft legislation which it has been

announced will place the security service on a statutory basis.

RELEVANT DOMESTIC LAW AND PRACTICE

Prior to 1985, the criteria governing the propriety of, or

authorising interceptions directed against, subversive activity and

the considerations to be taken into account in applying these criteria

were to be found in the following public documents:

(1) Sir David Maxwell-Fyfe's Directive to the Director-General

of the Security Service in September 1952, paras. 2-5

(published in Command 2151);

(2) the Birkett Report of October 1957 (Command 283), paras. 67,

68, 113 and 141;

(3) the definition of "subversive activities" given by the

Minister of State of Greenwich on 26 February 1975: House of

Lords Debates, Col. 947;

(4) the White Paper on Interceptions of April 1980 (Command 7837),

para. 6;

(5) Lord Diplock's Report of March 1981 (Command 8191), the

conditions numbered (1) to (3) on page 4.

Interception of Communications Act 1985

In 1985, the Interception of Communications Act was passed and

this Act came into force on 10 April 1986.

Section 1(1) of the Act provides that a person who

intentionally intercepts a communication in the course of its

transmission by post or by means of a public telecommunication system

is guilty of an offence. Proceedings in respect of an alleged offence

can be brought only with the consent of the Director of Public

Prosecutions.

Section 1(2)(a) of the Act provides that interception shall

not be an offence if it is done pursuant to a warrant issued by the

Secretary of State under the Act.

Section 2 of the Act empowers the Secretary of State, or in

certain urgent cases one of his senior officials, to issue a warrant

requiring the addressee to intercept such communications as are

described in the warrant. The warrant may also give directions as to

the disclosure of such material.

A warrant may not be issued unless the Secretary of State

considers that it is necessary:

a. in the interests of national security; or

b. for the purposes of preventing or detecting

serious crime; or

c. for the purpose of safeguarding the economic

well-being of the United Kingdom.

In considering whether a warrant is necessary, the Secretary

of State must take into account whether the information which it is

considered necessary to acquire could reasonably be acquired by other

means (Section 2(3)).

The Act also sets up a Tribunal, comprising five members, each

of whom must be a barrister, advocate or solicitor of not less than

ten years' standing. Members are appointed by Her Majesty the Queen

by Letters Patent (upon the recommendation of Ministers). The present

chairman is a member of the Court of Appeal.

Any person who believes that communications sent to or by him

may have been intercepted in the course of their transmission by post

or by means of a public telecommunications system may apply to the

Tribunal. Unless the application appears to it to be frivolous or

vexatious the Tribunal must investigate:

a. whether there has been a relevant warrant; and

b. if so, whether the provisions of the Act relating

to issue, scope, duration and modification have

been complied with.

In reaching their conclusions on these matters, the Tribunal

must apply the principles applicable by a court on an application for

judicial review.

If the Tribunal conclude that there has been a contravention

of the Act, they must notify the applicant, make a report of their

findings to the Prime Minister and send a copy to the Commissioner

established under the Act. They may also quash the warrant, direct

the destruction of copies of intercepted material and direct the

Secretary of State to pay the applicant such compensation as they may

specify. If the Tribunal do not conclude that the provisions relating

to warrants (Sections 2 to 5 of the Act) have been contravened, they

must notify the applicant that "there has been no contravention of

Sections 2 to 5 in relation to a relevant warrant...":

Section 7(7).

Decisions of the Tribunal, including decisions as to their

jurisdiction, are not subject to appeal or liable to be questioned in

any court.

The Act also requires the Prime Minister to appoint as

Commissioner a person who holds or has held high judicial office

a. to keep under review the Secretary of State's

performance of his functions relating to warrants

and to the disclosure of intercepted material; and

b. to give the Tribunal all such assistance as they

may require to carry out their functions.

The Commissioner acts of his own motion. If it appears to him

that the provisions relating to warrants have been contravened without

the Tribunal having reported to the Prime Minister or that the

safeguards relating to the disclosure of intercepted material have

proved inadequate he must report to the Prime Minister. He must also

report annually to the Prime Minister with respect to the carrying out

of his functions generally and his annual report is to be laid before

Parliament, although the Prime Minister may exclude certain parts of

the report before so laying it. The present Commissioner is Lord

Bridge of Harwich, a Lord of Appeal in Ordinary.

The Act also provides that no evidence may be adduced or

question asked in evidence in any legal proceedings which tends to

suggest:

a. that a person holding office under the Crown,

the Post Office or public telecommunications

business has committed or is to commit an

offence of unlawful interception; or

b. that a warrant has been or is to be issued

to such a person.

COMPLAINTS

The applicants claim that they are victims of practices of

interferences with their right, under Article 8 of the Convention, to

respect for their private life and correspondence. They complain that

their postal communications have been intercepted and that they have

been subjected to other forms of surveillance and information

gathering. The information collected has been kept in personal files

compiled by MI5 and has been made available to the Government for the

purposes of political propaganda. The applicants also complain that

some of the information recorded is inaccurate and they are refused

the opportunity to verify or correct the contents of their files.

This situation is alleged to have led members of the first applicant

to resign and the applicants contend that further members are likely

to resign as a result of the threat of surveillance and that other

people will be discouraged from joining.

The applicants submit that the said practices are not "in

accordance with the law" and are not necessary for any of the purposes

listed in Article 8 para. 2. They refer in this respect to a

statement by the Home Secretary in the House of Commons in which he

accepted that the first applicant was not a subversive organisation in

the sense that it intends to undermine or overthrow Parliamentary

democracy. They also contend that the interferences were effected at

least in part for an interior purpose, namely party political

propaganda, and therefore could not be justified in accordance with

Article 18 of the Convention. They also claim that there are no or no

sufficient legal limits on the circumstances in which and the manner

in which such interferences can be effected and no safeguards against

abuse. They contend that the activities of MI5 and Special Branch are

subject to no legal constraints but governed only by informal and

unenforceable guidelines promulgated from time to time by the relevant

ministers.

The applicants further claim that there are no or no effective

remedies before a national authority in respect of their complaints

contrary to Article 13 of the Convention. They argue in particular

that the Interception of Communications Act 1985 does not provide

adequate safeguards against abuse or an effective remedy for their

complaints.

To the extent that the applicants are unable to point to

specific measures of intervention taken against them, they submit

that:

a) they are victims of violations occasioned by the existence of

a legislative situation permitting secret measures of

surveillance to be taken against them; and

b) they are members of a class of person - members of a peace

movement - against whom such measures are likely to be

employed.

PROCEEDINGS BEFORE THE COMMISSION

These applications were introduced on 30 July 1985 and

9 January 1988 and registered on 11 September 1985 and 8 February 1988

respectively. On 14 March 1986 the Commission decided to adjourn the

first of these cases pending the outcome of the judicial review

proceedings.

On 15 April 1988, the Commission decided to join the

applications and to bring them to the notice of the respondent

Government and invite them to submit written observations on

admissibility and merits.

On 29 September 1988, the United Kingdom Government submitted

its written observations following one eight week extension in the

time limit and a further six week extension. By a letter dated

28 November 1988, the applicants' solicitor informed the Secretariat

that having had an opportunity to consider the Government's response

and to take instructions from the applicants, he was now instructed to

withdraw both applications in their entirety.

REASONS FOR THE DECISION

The Commission notes that the applicants wish to withdraw both

applications in their entirety. The Commission considers that there

are no reasons of a general character affecting the observance of the

Convention which necessitate a further examination of the case.

For these reasons, the Commission

DECIDES TO STRIKE THE APPLICATIONS OFF ITS LIST OF CASES.

Secretary to the Commission Acting President of the Commission

(H.C. KRÜGER) (J.A. FROWEIN)

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CAMPAIGN FOR NUCLEAR DISARMAMENT ; AND OTHERS v. THE UNITED KINGDOM

CAMPAIGN FOR NUCLEAR DISARMAMENT ; AND OTHERS v. THE UNITED KINGDOM

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