AS TO THE ADMISSIBILITY OF

                      Application No. 12015/86

                      by Isabel HILTON

                      against the United Kingdom

        The European Commission of Human Rights sitting in private

on 6 July 1988, the following members being present:

              MM. C.A. NØRGAARD, President

                  J.A. FROWEIN

                  S. TRECHSEL

                  E. BUSUTTIL

                  A.S. GÖZÜBÜYÜK

                  A. WEITZEL

                  J.-C. SOYER

                  H.G. SCHERMERS

                  H. DANELIUS

                  G. BATLINER

                  H. VANDENBERGHE

             Mrs.  G.H. THUNE

             Sir  Basil HALL

             MM.  F. MARTINEZ

                  C.L. ROZAKIS

             Mrs.  J. LIDDY

             Mr.  H.C. KRÜGER Secretary to the Commission

        Having regard to Article 25 (Art. 25) of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

        Having regard to the application introduced on 7 February 1986

by Isabel HILTON against the United Kingdom and registered on

26 February 1986 under file No. 12015/86;

        Having regard to the Commission's decision of 18 July 1986 to

communicate the application to the respondent Government under Rule 42

para. 2 (b);

        Having regard to the submissions of the parties;

        Having deliberated;

        Decides as follows:

THE FACTS

        The applicant is a British citizen born in 1947 and resident

in London.  She is represented before the Commission by Ms.  Madeleine

Colvin, Legal Officer of the National Council for Civil Liberties

(N.C.C.L.), London.  The facts, which are not in dispute between

the parties unless indicated otherwise, may be summarised as follows:

        The applicant gained an M.A. Degree in Chinese at Edinburgh

University in 1970 and after conducting research and lecturing, she

was awarded a scholarship to study in China.  From 1973 to 1975 she

studied Chinese literature in Peking and Shanghai.

        The applicant returned to Scotland in July 1975 to resume her

academic studies.  In autumn of that year, the Head of the Chinese

Department at Edinburgh University asked the applicant to act as

Secretary to the Scotland-China Association which was a group under

the patronage of the Department and to which most of the Department's

students belonged.

        In autumn 1976, the applicant was employed as an on-screen

reporter for Scottish Television (an independent company).  She

applied at the same time to the BBC for the job of reporter/

presenter on BBC Scotland's current affairs programme called

"Current Account".  The applicant received an interview but was not

offered the job.  After many weeks, believing she would not receive

the job, she accepted in January 1977 the offer of a job as a

journalist for the Daily Express in London.   The applicant was

subsequently informed by letter from the BBC dated 7 March 1977 that

she had not been selected for the job.

        Before she left Scotland, Mr.  Alastair Hetherington, former

Controller of BBC Scotland, asked the applicant why she had not

taken the job with the BBC.  On being told the job had not been

offered to her, Mr.  Hetherington disclosed that her appointment had

been recommended by the interviewing Board in Scotland.  Afterwards,

the Head of BBC Personnel in Scotland telephoned the applicant to

offer her the job and apologised for the delay.  However, the

applicant by that time had accepted a job in London with the Daily

Express and had to decline.  She duly took the job in London but it

proved unsatisfactory and she left after six months and joined the

Sunday Times.

        In the summer of 1985, the applicant was questioned by

journalists from the Observer concerning her application for the

BBC job in 1976.  On reading an article in the Observer of 18

August 1985 entitled "How MI5 vets BBC staff", she discovered the

details of what had occurred in 1976.  The content of the article has

been confirmed as accurate by Mr.  Alastair Hetherington, now a Research

Professor at the University of Stirling.  He had not informed her

previously because of the Official Secrets Act 1911.

        The applicant alleges that the events surrounding her job

application were as follows.  In late 1976 the interview board had

unanimously decided that the applicant was the best candidate and

should be offered the job.  The decision was referred to London, where

the News and Current Affairs Division had a right of veto and where

applications had to go through a security check.  Mr.  Hetherington,

who has submitted an affidavit which supports in some particulars the

applicant's version of events, but provides no dates of the relevant

events under dispute, states that "although I cannot recall the exact

timing of events in respect of Ms Hilton's application, I have no

reason to believe that there was any unusual delay in referring her

particulars to the Personnel Department in London."  He states that he

was subsequently informed by a senior official of the Personnel

Directorate "approximately a week after the referral had been made

to London" that the appointment of the applicant could not go ahead.

This was confirmed several days later by a security liaison officer -

a BBC employee.  He insisted, however, that the security liaison

officer should explain the reason for this and was finally told three

to four weeks later that the applicant was refused because she had

been the Secretary of a suspect organisation associated with China.

        After enquiries, Mr.  Hetherington was of the opinion that the

security personnel had confused the university organisation with which

the applicant was associated with another association considered

suspect.  He informed the security officer of this serious mistake and

after further delay, he was informed it was permissible to offer the

applicant the job.  However, by that time (January 1977), the applicant

had accepted a job with a London newspaper.  She resigned as Secretary

of the Scotland-China Association in February 1977.

        The applicant states that at no time did any person in

authority inform her that information relevant to security was

obtained, retained and used in relation to her job application and at

no time was she given an opportunity to know the contents of that

information so that its accuracy could be checked.  She believes that

the security procedures applied by the BBC are carried out by, or

at the insistence of, the Security Services of the United Kingdom and

she may in the future wish to apply for a job with the BBC.

        She stresses that while she is uncertain as to the

precise dates of the relevant events, she is certain that she accepted

the offer of the job as a journalist in London in January 1977 because

she knew that she would not be appointed to the BBC Scotland job.

        The respondent Government accept that the applicant was

subject to a security check but state that it was only on 14 February

1977 that the BBC made enquiries of the Security Service in respect of

her candidature by which date the applicant had accepted alternative

employment.  The Security Service, according to the Government,

responded to the BBC's enquiry on 16 March 1977 after the applicant

had accepted alternative employment.  The Government also point out

that the Security Service assessment of the applicant provided to the

BBC was not based upon a confusion between the Scotland-China

Association and any other organisation.  The assessment concluded by

advising against offering the applicant the job unless the BBC were to

decide that there were good reasons for doing otherwise.  They state

that it was at all times exclusively for the BBC to decide what

attitude to take in the light of the Security assessment.  On 21 April

1977 the Security Service advised that since the applicant was no

longer the Secretary of the Scotland-China Association, she should not

be debarred from working for the BBC.

        The Government state that the applicant has been informed

by the BBC in a letter dated 2 December 1985 that no files exist

concerning the events she complains of.  Furthermore, as a result of

discussions with trade union representatives, the BBC agreed to

destroy files and other materials concerning security matters after a

period of two years which might have existed in respect of current and

previous members of staff.  The only file now held by the BBC

referring to the applicant is a programme contracts file which

contains only copies of contributors' contracts.

        The applicant, however, notes that the BBC's letter only

relates to files kept about her by the BBC.  She believes that files

are kept about her by the Security Service and points out that the

BBC's letter did not concern the existence of such files.  She states

that this is a matter of continuing concern to her since as a

freelance journalist who works occasionally for the BBC she may be

subject to prejudice as a result of files relating to her kept by the

Security Service.

COMPLAINTS

        The applicant complains that the obtaining, retention and

application of personal information by the BBC and the Security

Service so as adversely to affect her prospects of being appointed to

a particular post, without any opportunity for her to know or to

comment on the accuracy of the information, constitutes a breach of her

right under Article 8 (Art. 8) of the Convention to respect for her private

life.  She claims that as a result of not being offered the job with the BBC

she suffered personal financial loss and disruption to her personal and

professional life in Scotland.

        She further complains, in the following terms, of the

continuing retention and potential use of such information:

"Ms.  Hilton believes that the BBC continues to

operate security 'procedures' of the sort applied to her

in 1976.  She has, without success, asked the BBC to give

her access to any and all files held concerning her so that

she can check the accuracy of the information.

...

Ms.  Hilton believes that the 'security procedures'

applied by the BBC are carried out by, or at the

insistence of, the Security Service of the

United Kingdom Government."

        She submits that these measures are not "in accordance

with the law" as required by Article 8 para. 2 (Art. 8-2) since the relevant

law (if any) is not adequately accessible or formulated with sufficient

precision.  The applicant also argues that the post in question had no

implications for national security and therefore could not be

justified under this provision as being in the interests of national

security.  Further, there were no safeguards applied to ensure the

"procedures" operated fairly and effectively.

        The applicant also claims that she has no effective remedy

before a national authority in respect of the matters of which she

complains.  She accordingly invokes Article 13 in conjunction with

Article 8 (Art. 13 + Art. 8) of the Convention.

        The applicant, in her observations in reply dated 12 June 1987

and 29 January 1988, further complains under Article 10 (Art. 10) of the

Convention.  She contends that the refusal to appoint her because of

her association with the Scotland-China Association amounts to a

penalty for the expression of her views.  She further submits that the

Security Service interfered with her right to impart information and

ideas to the public by advising that she should not be employed as a

reporter.  Finally, she submits that the continuing situation created

by the practice and procedure of the obtaining, retention and

potential use of information about her private life by the Security

Service constitutes a breach of Article 10 (Art. 10) of the Convention.

OBJECT OF THE APPLICATION

        The applicant's object is:

(1) to obtain a finding by the organs established under

the Convention that she is a victim of a violation of

Articles 8 and 13 (Art. 8, Art. 13) of the Convention;

(2) to obtain confirmation that no data concerning her

private activities are retained by the BBC or, if they are,

to know the contents of such data so that she can check

their accuracy.

PROCEEDINGS BEFORE THE COMMISSION

        The application was introduced on 7 February 1986 and

registered on 26 February 1986.  It was first considered by the

Commission on 18 July 1986 when it was decided that the Government

should be invited to submit written observations on the admissibility

and merits of the application insofar as it raised issues under

Articles 8 and 13 (Art. 8, Art. 13) of the Convention.  These observations were

submitted by the respondent Government on 9 February 1987.  The applicant's

observations in reply were submitted on 12 June 1987.

        By a decision of 28 October 1987 the President of the

Commission granted a request from the respondent Government to submit

further observations  in respect of the issues raised in the

application.  These further observations were submitted on 26 November

1987 and were communicated to the applicant for observations in reply.

The applicant's observations in reply were submitted on 29 January 1988

and a supporting affidavit was further submitted on 19 February 1988.

SUBMISSIONS OF THE PARTIES

        Respondent Government

        As to Fact

        The Government note the applicant's claim that the check by

the Security Service took place prior to the applicant's accepting

alternative employment.  They make the following observations with

reference to the applicant's submissions on this issue:-

- a possible explanation for the BBC's delay in contacting

the Security Service after the applicant had been selected

by the Board in late 1976 may be the fact that, on a

previous application by the applicant for an appointment

with the BBC, the BBC had obtained in December 1975 an

assessment from the Security Service to the effect that

there were no security considerations against offering the

applicant the job.  The fact remains that it was not until

February 1977 that the BBC made enquiries of the Security

Service and the Service responded to the enquiry on

16 March 1977;

- the BBC's letter of 7 March 1977 merely informed the

applicant that she had not been selected for the job and

gave no reason for rejecting her application.  The letter

does not show that the assessment by the Security Service

must have occurred at an earlier date;

- the Government are unable to comment on the recollection

of Mr.  Hetherington or of the applicant as to when either

was told of the reasons for her non-appointment, save to

repeat that it was not until 16 March 1977 that the Security

Service responded to the BBC's request for an assessment;

- the Government do not accept that there is any

inconsistency between the account of the facts given by the

Government and the applicant's claim to have resigned from

the Scotland-China Association in February 1977;

- the first request made by the BBC to the Security Service

in relation to the applicant's job application in 1976 was

made in February 1977.  No prior requests of an oral or

written nature were made and no response to the request,

whether written or oral, was given by the Security

Service prior to 16 March 1977.

        Domestic law and practice

        The BBC is an independent corporate body which was

incorporated by Royal Charter granted in exercise of the Royal

Prerogative on 20 December 1926.  The objects of the BBC include

the provision of radio and television broadcasting services (Article 3

(a)) and, for this purpose, the BBC is empowered to acquire from

the Secretary of State a licence for such period subject to such terms

as he might prescribe.   The conduct of the Corporation's affairs is

the responsibility of the Governors who are, by Article 1 of the

Charter, expressed to be members of the Corporation.

        The status under domestic law of the BBC was fully

considered by the Court of Appeal in the case of British Broadcasting

Corporation v.  Johns [1965] 1 Ch. 32 in which the Court was required

to determine whether the BBC was an instrument of Government which

was entitled to the immunities and privileges of the Crown, in

particular, in relation to taxation.  The Court of Appeal concluded

that the BBC was not a servant or agent of the Crown and did not

enjoy any of the privileges or immunities of the Crown.  The reasons

of the Court can be summarised as follows:

-      neither the Crown nor Parliament had asserted a

monopoly over broadcasting or asserted that it should be

within the province, or a function, of Government;

-      in determining how broadcasting should be regulated,

Parliament had specifically chosen not to make it a function

of Government by, for instance, imposing a duty on a

Government Minister to organise a broadcasting service.

Instead the BBC had been created by Charter and had been

given an independent legal personality which was licensed to

carry out a broadcasting service.  The BBC had been

deliberately incorporated in the form in which it was

created because it was considered to be in the public

interest that broadcasting should not be conducted by a

Government agency;

-      the mere fact that the BBC was created by Charter

does not make the Corporation an agent of the Crown.  There

was nothing in the terms of the BBC's Charter to

constitute the BBC as such an agent.  Equally, the

licence and agreement was drafted so as to make clear that

broadcasting services were to be provided by the BBC as

an independent contractor and not as a Government agent;

-      although the licence and agreement contained

provisions under which the Postmaster-General could exercise

control over the stations and transmissions of the BBC in

their technical aspects, the general conduct and operation

of broadcasting remained free from the control of the

Government.

        The system of carrying out security checks on BBC employees

in respect of employees was introduced in 1937.  Their purpose was to

protect the BBC from penetration by those who might pose a threat

to security and to safeguard official classified information held by

the BBC.  The Security Service provides a service to the BBC in

connection with these checks.

        At the time of the applicant's application for employment the

security vetting procedures were applied to current affairs staff on

the ground of the overriding requirement to preserve the impartiality

and integrity of the BBC's News Service.  However, consistently

with the provisions of the BBC's Charter (Article 12) (Art. 12) it is the

BBC which decides whom to appoint to any post or whether to invoke

a security checks procedure.  Neither the Security Service nor any

other external agency has the right of veto on the appointment or

promotion of any member of staff.  The BBC's security officer, who

implements the procedure and liaises with the Security Service, is a

BBC employee who is responsible only to BBC management.

        In October 1985 the criteria for invoking the checks were

revised to apply only to members of the staff who were necessarily

involved in sensitive areas who required access to official classified

information.  In the domestic services they now apply only to staff

involved in the planning and preparation of the war-time broadcasting

service and who therefore have access to official classified

information.

        The six months rule (Article 26  of the Convention) (Art. 26)

        The Government contend that the applicant raises for the first

time in her reply to the Government's observations the following

complaints:

-      that the role of the Security Service in 1976-1977

in relation to her job application constituted a breach of

Article 8 of the Convention (Art. 8) ;

-      that the Government had failed to fulfil the

positive obligations inherent in effective respect for the

rights guaranteed by Article 8 (Art. 8);

-      that there was a breach of Article 10 (Art. 10) of the

Convention in her case in that she was being penalised for

expressing her views in circumstances which could not be

justified under the second paragraph of this provision.

        The Government submit that, while the six months rule could be

held to be satisfied in relation to the complaint in the original

application which was directed exclusively to the acts of the BBC, it

is not met by the above new complaints.

        Article 8 (Art. 8) of the Convention

        The Government submit that there is no factual basis on which

the applicant can complain that the obtaining, retention or

application of information about her adversely affected her prospects

in her application to the BBC.  They point out that the applicant

had accepted alternative employment before any security checks had

even been initiated by the BBC.  Moreover, there is no factual basis

for the complaint as to the continuing retention of information about

her by the BBC since she has been informed that all of the

information gathered about her has since been destroyed.

        It is further submitted that, in any event, the acts of the

BBC do not engage the responsibility of the United Kingdom

Government under the Convention.  The BBC enjoys a separate legal

personality and autonomy of administration and management and is not a

department of Government.  The Government refer to the analysis of the

status of the BBC by the Court of Appeal in the Johns case (loc.

cit.).

        In particular, the control and management of the BBC is

vested by the Charter in the Governors of the Corporation who are

appointed by the Queen-in-council and do not perform their duties as

servants or agents of the State.  Furthermore, the Governors'

managerial functions are carried out wholly independently of

Government control.

        The respondent Government thus submit that this complaint

should be rejected as incompatible with the Convention ratione

personae or alternatively should be dismissed as manifestly

ill-founded.

        Article 10 (Art. 10) of the Convention

        The Government state that the applicant has at all times been

free to hold and express opinions, whether of a political nature or

otherwise, and has not substantiated her complaint under this

provision.  No evidence has been adduced to show that the provision of

information to the BBC by the Security Service concerning the

applicant's membership of the Scotland-China Association was aimed at

penalising the applicant for exercising her right to express opinions.

        Article 13 (Art. 13) of the Convention

        It is submitted that the applicant's claim of a breach of

Article 8 (Art. 8) in respect of the acts of the BBC is incompatible with the

Convention ratione personae or, alternatively, the claim is manifestly

ill-founded.  It follows that the applicant has no arguable claim to

be a victim of a violation by the Government of this provision.

Accordingly, Article 13 (Art. 13) of the Convention is inapplicable in respect

of this complaint.

        The Applicant

        As to Fact

        The applicant disputes the Government's contention that the

BBC's enquiries to the Security Services were made after the

applicant had accepted alternative employment.  She points out that

-      she was selected by the Board for the job in late 1976 and

there is no explanation for the delay until March 1977;

-      the BBC wrote to the applicant on 7 March 1977 informing

her that she had not been selected for the job.  The relevant letter

shows that the vetting by the Security Services must have occurred at

an earlier date;

-      Mr.  Alastair Hetherington (then Controller of BBC Scotland)

recalls that he was told of the security reasons for her

non-appointment soon after the referral of the interviewing board's

decision for clearance to the Personnel Department in London;

-      the Government fail to provide an explanation why the Security

Service gave further consideration to the matter.  The true reason

lies in Mr.  Hetherington's protests.  Moreover it is possible that

oral requests had been made to the Security Service prior to the first

written request;

-      the reason relied on by the Security Service, namely the

applicant's position in the Scotland-China Association pre-dates March

1977 since she resigned from that Association in February 1977.

        With respect to the Government claim that the Security Service

advised against appointment because of her association with the

Scotland-China Association, the applicant submits that either this

was a perverse decision since there was no reason whatsoever for

suspecting the bona fides of a person because of contact with that

organisation or the Security Service confused that organisation

with another organisation.

        The Scotland-China Association was formed in 1966 and involves

many eminent persons and Chinese scholars.  The Association never

adopted any political position on events in China and did not accept

funds from the Chinese Government.

        Six months rule

        As regards the applicant's complaints of the obtaining,

retention and application of such information by the BBC and the

Security Service in 1976 to 1977 she could not have been aware of the

practice and procedure as applied to her until she read the article in

the Observer of 18 August 1985.  The applicant submits that the time

does not run for the purposes of Article 26 (Art. 26) until the victim of an

alleged violation becomes aware or should reasonably be aware of the taking of

the final decision.  Accordingly, the relevant date for the purposes of Article

26 (Art. 26) is the date of the Observer article, i.e. 18 August 1985.

        As far as the applicant complains of the still continuing

situation created by the practice and procedure of obtaining and

retaining information about her private life by the Security Service

as being contrary to Article 10 (Art. 10), the six months rule is irrelevant.

        Insofar as the applicant complains of the obtaining,

retention and application of information by the BBC and the Security

Service in 1976 to 1977, the applicant accepts that she did not

specifically complain in her original application of a breach of

Article 10 (Art. 10).  However, she does not seek to rely on any additional

facts.  She maintains that the same facts constitute a violation of

Article 8 (Art. 8) as well as Article 10 (Art. 10).  Moreover, it was not until

she became aware of the contents of the Government's observations that she knew

that the reason for the adverse reports upon her by the Security Service was

alleged to be to satisfy "the overriding requirement to preserve the

impartiality and integrity of the BBC's News Service". The applicant was

entitled to complain of a breach of Article 10 (Art. 10) based partly on

information disclosed for the first time in the Government's observations.

        Article 8 (Art. 8) of the Convention

        To the extent that the substance of the applicant's complaint

relates to the actions of the BBC it is submitted that such actions

engage the responsibility of the Government by virtue of the positive

obligations inherent in an effective respect for private life.  Such

actions also engage the responsibility of the United Kingdom for the

following reasons:

(1) the practice of carrying out security checks on BBC employees, and

the procedures relating thereto, have been agreed at a senior level in

the Home Office, the Security Service and the BBC so as to give effect

to the "overriding requirement to preserve the impartiality and

integrity of the BBC's News Service";

(2) the relevant practice and procedures applied to the BBC as one of

the country's most important public institutions in relation to the

provision in the public interest of public service broadcasting;

(3) although the BBC enjoys a separate legal personality and an

autonomy of administration, it has been entrusted by the Secretary of

State with the performance of public functions, subject to conditions

prescribed by the Secretary of State, on behalf of the United Kingdom;

(4) the character of the BBC as a public authority is further

evidenced by a clause 13.7 of the current BBC licence which contains

the following proviso:

"The Corporation shall at all times refrain from sending any

broadcasting matter expressing the opinion of the Corporation on

current affairs or matters of public policy"

and by the fact that a resolution by the Board of Governors of the

BBC, annexed to the licence, reaffirms the Board's objectives "to

treat controversial subjects with due impartiality and they intend to

continue this policy both in the Corporation's News Service and in the

more general field of programmes dealing with matters of public

policy";

(5) the duties imposed upon the BBC by these provisions are similar to

the duties imposed upon the other main broadcasting body of the

United Kingdom - the Independent Broadcasting Authority (IBA) which is

obliged by Section 4(1) of the Broadcasting Act 1981 to comply with

the requirement that a sufficient amount of time in the programmes is

given to news and news features and that all news given in the

programmes is presented with due accuracy and impartiality.  Moreover,

the fact that the BBC's public duties are prescribed by the Secretary

of State, whereas the IBA's public duties are prescribed by Parliament

does not affect the "public" character of the BBC for the purposes of

the United Kingdom's obligations under the Convention;

(6) the public character of both the BBC and the IBA is further

evidenced by the fact that each is a "broadcasting body" as defined by

Section 54(3) of the Broadcasting Act 1981 complaints about whose

allegedly unjust or unfair treatment or unwarranted infringements of

privacy in sound or television broadcasts are considered and

adjudicated upon by the Broadcasting Complaints Commission under Section

54 of that Act;

(7) the courts of the United Kingdom have decided that, in determining

whether the decisions of a particular body were subject to judicial

review, the court was not confined to considering the source of that

body's powers and duties but could also look at their nature.

Accordingly, if a duty imposed on a body, whether expressly or by

implication, was a public duty, the body was exercising public law

functions and a court had jurisdiction to entertain an application for

judicial review. (See R. v.  Broadcasting Complaints Commission, ex

parte Owen [1985] 2 All ER 522 (Divisional Court) and R. v.  Panel

on Take-overs and Mergers, ex parte Datafin [1987] 1 All ER 564 (Court

of Appeal);

(8) the case of British Broadcasting Corporation v.  Johns [1965]

the Crown and does not enjoy the privileges and immunities of the

Crown.  The Johns case did not decide that the BBC was immune to

judicial review as a public law body, still less that it is not a

public authority;

(9) the Court of Justice of the European Communities has recently

examined whether the Chief Constable of the Royal Ulster Constabulary

was a public authority so as to be bound by the principle of equal

treatment for men and women guaranteed by Council Directive No.

76/207/EEC of 9 February 1976.  The Government had argued that the

Chief Constable is constitutionally independent of the State and that

in the particular case he was involved only as an employer.  The Court

of Justice found that whatever the relationship of the Chief Constable

might be with other organs of the State "such a pubic authority,

charged by the State with the maintenance of public order and safety,

does not act as a private individual.  It may not take advantage of

the failure of the State, of which it is an emanation, to comply with

community law."

        The applicant contends that this principle applies mutatis

mutandis in relation to compliance with the law of the Convention by

the BBC.  The BBC is a public authority charged by the Secretary of

State with the performance of public service broadcasting functions.

The applicant's complaints are directed against the BBC in its

capacity as a public authority and not as a private employer

performing exclusively private functions.

        The applicant recalls that, to the extent that the Security

Service was responsible for the matters she complains of, her

complaint is directed to the acts of the Security Service for which

the Government are clearly responsible.  She submits that the

obtaining, retention and use of personal information about her without

having an opportunity to refute it amounts to an interference with her

right to respect for private life as guaranteed by Article 8 para. 1

(Art. 8-1) of the Convention (Eur.  Court H.R., Leander judgment of 26 March

1987, Series A no. 116, p. 22 para. 48).  She further claims that the

obtaining, retaining and use of such information did adversely affect her

prospects of obtaining employment because they resulted in a negative

assessment by the Security Service and a long delay after she had been

interviewed by the BBC Scotland.  The applicant would have preferred to work

for the BBC in Scotland both because of the nature of the work and because she

wished to remain in Scotland.

        She further submits that obtaining and continuing retention of

such personal information about her is not "in accordance with the

law" as required by Article 8 para. 2 (Art. 8-2) of the Convention (see p. 23

para. 51 of the Leander case, loc. cit.).  She also contends that the

interference with her respect for private life was not necessary in a

democratic society in the interests of national security and that it did not

correspond to a pressing social need and was not proportionate to any

legitimate aim pursued.  Moreover, there exist no adequate and effective

safeguards against abuse under the law of the United Kingdom.  She maintains

that these submissions have not been addressed by the respondent Government in

their observations and that the Government's submissions are silent as to

whether such a file of personal information is held by the Security Service.

        Article 10 (Art. 10) of the Convention

        It is submitted that the Security Service interferes with the

applicant's right to impart information and ideas to the public by

advising that she should not be employed as a reporter/presenter in

current affairs programmes.  The BBC further interfered with her right

to impart information and ideas to the public by accepting the advice

of the Security Service.  Unlike the position in the Leander case, the

practices and procedures complained of were concerned with the content

of the information and ideas imparted by the BBC to the public and the

Security Service's view that someone like the applicant should not be

concerned with such communication.  Accordingly, an interference with

the exercise of freedom of expression by journalists rather than

access to the public service is at the heart of this issue.

        Article 13 (Art. 13) of the Convention

        It is submitted that the applicant's claims of breaches of

Articles 8 and 10 (Art. 8, Art. 10) are arguable and give rise to prima facie

issues under the Convention.  The absence of effective remedies before a

national authority is a central element in the applicant's complaint to the

Commission.

THE LAW

1.      The applicant complains of the obtaining and application of

personal information about her by the BBC and the Security Service.

She further complains of the continued retention of such information.

In particular, she complains that the information on file about her

personal background was used to deny her a job as a reporter with the

BBC in Scotland in 1977.  She invokes Articles 8, 10 and 13 (Art. 8,

Art. 10, Art. 13) of the Convention.

        Six months rule (Article 26 of the Convention) (Art. 26)

        The respondent Government first submit that the applicant

raised the following aspects of her complaint for the first time in

her reply dated 12 June 1987 to the Government's observations and that

they should be rejected on the basis of the six month rule having

regard to the date of the introduction of the application (7 February

1986):

        1.  that the role of the Security Service in

            carrying out the Security check in 1976-1977

            constituted a breach of Article 8 (Art. 8);

        2.  that the Government had failed to fulfil the

            positive obligation inherent in Article 8 (Art. 8);

        3.  that she was, in effect, penalised for the

            'expression' of her views in breach of Article 10

            (Art. 10).

        The Government note that the 'final decision', for the purposes

of Article 26 (Art. 26), is the obtaining from the Security Service and alleged

use by the BBC of personal information concerning the applicant in relation to

her application for employment by the BBC in 1976-1977. The above submissions

are made on the assumption that Article 26 (Art. 26) could be held to be

satisfied, having regard to the fact that the applicant claims to have

discovered the facts relating to the security check on her background in the

article in the Observer newspaper of 18 August 1985.

        Article 26 (Art. 26) of the Convention reads as follows:

"The Commission may only deal with the matter after all

domestic remedies have been exhausted, according to the generally

recognised rules of international law, and within a period of six

months from the date on which the final decision was taken."

        The Commission notes that in accordance with constant case-law

the 'final decision' for purposes of the six months rule must

normally be regarded as the date of the acts or decisions complained

of where there exists no domestic remedy in respect of the complaint

(see No. 8206/78, Dec. 10.7.81, D.R. 25 p. 147).  The Commission

further recalls that the six months rule contained in this provision

does not apply to a complaint which concerns a continuing situation

(see No. 6852/76, Dec. 5.12.78, D.R. 15 p. 5).  Finally, the

Commission observes that the running of the six months period might

be interrupted or suspended by the existence of special circumstances

and, in any event, can only begin to run from the moment the

applicant learns of the act or decision of the public authority of

which he complains (see No. 9991/82, Dec. 12.7.84, D.R. 39 p. 147).

        In the present case, it is not disputed by the respondent

Government that there is no remedy under the law of the United Kingdom

in respect of the matters complained of.  It follows, therefore, that

the final decision for purposes of Article 26 (Art. 26) in respect of the

applicant's complaint concerning the compilation and use of personal

information about her in 1976-1977 must relate back to the acts of the

BBC and the Security Service in 1977.  However, the Commission notes

that it is not disputed by the Government that the applicant first

learned that a security check had been carried out in respect of her

candidature for a post in the BBC in an article in the Observer

newspaper on 18 August 1985.  In these circumstances, the Commission

considers that the absence of knowledge on the applicant's part of the

matters which form the subject of the complaint constitute special

circumstances which interrupt the running of the six months period.

        The Commission further observes that the six months rule does

not apply to that part of the applicant's complaint under Articles 8

and 10 (Art. 8, Art. 10) of the Convention which relates to the continued

retention of personal information about the applicant since such a complaint

concerns a continuing situation.

        The Commission accordingly finds that the six months period,

where it applies, begins to run from 18 August 1985.  It must now turn

to the Government's specific objections under this head as formulated

above.

        As regards the first aspect mentioned by the Government, the

Commission notes that the relevant part of the applicant's original

memorial to the Commission reads as follows:

"(19) Ms.  Hilton believes that the security 'procedures'

applied by the BBC are carried out by, or at the insistence

of, the security services of the United Kingdom Government."

        The Commission is therefore satisfied that the applicant had

raised this complaint concerning the role of the Security Service at

the outset of her application.

        As regards the second aspect, the Commission considers that

this constitutes a legal submission in respect of the applicant's main

complaint under Article 8 (Art. 8) of the Convention as opposed to the

introduction of a new factual element in the case or a new head of

complaint.

        Finally, as regards the third aspect, the Commission notes

that the applicant's complaint under Article 10 (Art. 10) of the Convention was

raised for the first time in her observations in reply dated 12 June 1987.

However, the Commission observes that this complaint was based on the facts of

the case as set out in the original memorial to the Commission.  It is not

based on additional factual material introduced for the first time in the

applicant's observations in reply.

        The Commission recalls, in this context, that "Article 25

(Art. 25) requires that individual applicants should claim to be the victim 'of

a violation of the rights set forth in the Convention';  it does not oblige

them to specify which Article, paragraph or sub-paragraph or even which right

they are praying in aid" (see Eur.  Court H.R., Guzzardi judgment of 6 November

1980, Series A no. 39, p. 22 para. 61). Moreover, the Commission and Court

possess an inherent power to decide upon the characterisation in law to be

given to a matter (loc. cit., at p. 23 para. 63).

        It follows, therefore, that it is open to an applicant to make

new complaints based on the essential facts as originally presented, at

a subsequent stage of the procedure, and that the six months rule is

not opposable to such new complaints.

        The Commission concludes that the application, as a whole,

satisfies the six months requirement in Article 26 (Art. 26) of the Convention.

2.      Article 8 (Art. 8) of the Convention

        The Commission notes that the applicant's complaints under

this head fall into two parts.  First, she complains that as a result

of a security check carried out by the BBC and the Security Service

based on personal information which had been compiled and retained

about her and which she had no opportunity to refute she was denied a

job with the BBC in 1977.   Second, she complains of the compilation,

continued retention and potential use of personal information about

her.

        The applicant submits that the compilation and use of

information in 1977 and the continued retention of such information

constitutes an interference with her right to respect for private life

which is not "in accordance with the law" or justified under paragraph

2 of Article 8 (Art. 8).

        The Government do not contest that the applicant can claim to

be a victim of a breach of this provision.  However, they contend that

the applicant could not have been prejudiced by the security check

which was carried out since she had accepted alternative employment in

January 1977 before the BBC had requested a security check on 14

February 1977.

        They further submit that, in any event, the acts of the BBC do

not engage the responsibility of the United Kingdom since it is not a

department of Government.  Finally, they point out that there is no

factual basis for her complaint as to the continuing retention of

information by the BBC since she had been informed that the BBC has

destroyed all of the information gathered about her.  In their

submissions the Government do not address that aspect of the

applicant's complaint relating to the continuing retention of

information about her by the Security Service.

        The applicant maintains that the security check was carried

out before February 1977 and that the reason she accepted the job in

London was because she had been informed that her candidature with the

BBC had been turned down.  She further submits that the BBC is a

public authority for which there is state responsibility and that in

any event the acts of the Security Service engage the responsibility

of the respondent State.

        Article 8 (Art. 8) of the Convention 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."

A.      As regards the applicant's first complaint, the Commission

notes that there is substantial disagreement between the parties as to

when the request for a security check was actually made by the BBC.

The applicant contends that she accepted the offer of the job as a

journalist in London in January 1977 because she knew by that time

that she was not successful in her job application to the BBC.  She

admits, however, that she is uncertain as to the precise dates of the

relevant events.  In support of her account of the facts she submits

an affidavit sworn on 15 February 1988 by Mr.  Alastair Hetherington

who was Controller of BBC Scotland during the relevant time.

        Mr.  Hetherington states in his affidavit that he has no reason

to believe that there was any unusual delay in referring the

applicant's "particulars" to the Personnel Department in London after

the Interview Board's recommendation and that he was notified of the

negative report and outcome within a week after the referral had

been made to London.  On the other hand, he concedes that he cannot

recall the exact timing of events and his affidavit mentions few dates

in support of his recollection of the relevant events.

        The Government maintain that the enquiry of the security

service by the BBC concerning the applicant was not made until

14 February 1977 by which date the applicant had accepted alternative

employment.  They, therefore, contest that the applicant suffered any

prejudice as a result of the Security Service check.

        The applicant points to a number of circumstantial elements

which, she claims, support her contention.  She submits that the BBC

letter of 7 March 1977 informing her that she had not been selected

for the job shows that the Security Service check must have occurred

at an earlier date.  However, this letter, which has been submitted to

the Commission, merely informed the applicant that she had not been

selected for the job and provides no indication of when a check

occurred.

        She further suggests that the security check must have

occurred at an earlier date since the reason relied on by the Security

Services - the fact that she was Secretary to the Scotland-China

Association - predates March 1977.  She had, in fact, resigned from

the Association, in February 1977.  The Commission, however, agrees

with the Government, that this is not inconsistent with the

Government's claim that the request for a security check was made on

14 February 1977.

        The applicant further points out that she was recommended for

the post in late 1976 but there is no explanation for the delay in

contacting the Security Service and notifying her of the outcome until

March 1977.  The Government provide the tentative explanation that the

delay in contacting the Security Service may be explained by the fact

that on a previous job application by the applicant the Security

Service had advised that there were no security considerations against

offering the applicant the job.  In any event the Commission cannot

draw any firm conclusions from this delay as to the date of the

request by the BBC to the Security Service.

        Finally, the applicant suggests that a previous oral request

for security clearance may have been made prior to the written

request.  She adds that the Government offer no explanation as to why

the Security Service gave further consideration to the matter,

submitting that the true reason lies in the protests by

Mr.  Hetherington on behalf of the applicant.  The Government deny that

any prior written or oral requests were made and explain that the

reason for the further consideration of the matter lay in the fact

that the applicant had resigned as Secretary of the Scotland-China

Association.  In the light of her resignation, the BBC was advised on

26 April 1977 that the applicant should not necessarily be debarred

from employment with the BBC.

        The Commission again sees no inconsistency between the

Government's version of events and the further consideration of the

applicant's position in the light of her resignation from the

secretaryship of the Association.

        The Commission has had regard to the fact that the above

factual dispute relates to events which occurred more than eleven

years ago.  It is therefore not surprising that the recollection of the

exact pattern of events is difficult.  Nevertheless against the above

background, in particular, the admitted difficulty that the applicant

and Mr.  Hetherington have of recalling the timing of events, the

Commission finds that the applicant has not substantiated her claim

that the security check took place before February 1977.  The

Commission accepts, therefore, the Government's statement that the

check was requested by the BBC on 14 February 1977 after the applicant

had decided to accept an offer of employment with a newspaper in London.

        In the light of this finding the Commission considers that it

is unnecessary to express a view on whether the acts of the BBC give

rise to the responsibility of the United Kingdom under the Convention.

        It follows that the applicant's first complaint under this

head that information concerning her personal background was used by

the BBC and the Security Service to her detriment must be rejected as

manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2)

of the Convention.

B.      It remains to examine the applicant's more general complaint

under this provision relating to her allegation concerning the

compilation and continued retention of personal information about her

by both the BBC and the Security Service

        The Commission does not consider that a security check per se

constitutes an interference with the right to respect for private life

guaranteed by this provision.  An interference with the right to

respect for private life only occurs when security checks are based on

information about a person's private affairs.  Moreover it is not

necessary that the person actually show that such information has been

used to his detriment (See Eur.  Court H.R., Leander judgment of

26 March 1987, Series A no. 116, p. 22 para. 48).

        In the present case the question arises whether the applicant

has sufficiently proved the compilation and retention of such a

dossier.

        As regards the BBC the Commission considers that there is no

indication from the case-file that the information compiled by the BBC

in respect of the applicant's job application in 1977 contained any

material other than information contained in documents relating to her

application for employment.  Moreover, it notes that the applicant has

been informed by the BBC in a letter dated 2 December 1985 that no

files exist in respect of her job application in 1977.

        In these circumstances the Commission does not consider that

the applicant has substantiated her complaint under this provision in

so far as it relates to the compilation and continued retention of

personal information by the BBC.

        It follows that it is again not incumbent on the Commission to

express a view on whether the acts of the BBC give rise to the

responsibility of the United Kingdom under the Convention.

        With regard to the alleged continued retention of personal

information by the Security Service, the Commission notes that this

complaint has not been made expressis verbis by the applicant

until her supplementary observations in reply dated 29 January 1988.

The Government, in their submissions, have interpreted this complaint

as relating to the continued retention of information by the BBC

alone.  The Commission, nevertheless, considers that this complaint

can be reasonably inferred from the applicant's general complaint

relating to the continued retention of information made in her

original application.

        In this connection the Commission considers that the applicant

has not substantiated her allegation that the Security Service

compiled and continue to maintain a file of personal information about

her.

        However, the Commission recalls that "an individual may, under

certain conditions, claim to be the victim of a violation occasioned

by the mere existence of secret measures ... without having to allege

that such measures were in fact applied to him" (Eur.  Court H.R.,

Klass judgment of 6 September 1978, Series A no. 28, p. 18, para. 34).

        The Court in the Klass case added that the relevant conditions

were "to be determined in each case according to the Convention right

or right alleged to have been infringed, the secret character of the

measures objected to, and the connection between the applicant and

those measures" (ibid.).

        This approach was followed by the Commission in a similar case

against Luxembourg (See Nos. 10439-41/83, 10452/83, 10512-13/83, Dec.

10.5.85, to be published in D.R.).

        The Commission does not consider that this passage can be

interpreted so broadly as to encompass every person in the United

Kingdom who considers that the Security Service may have compiled

information about them.

        The Commission considers that the Klass case falls to be

distinguished from the present case in that there existed a

legislative framework in that case which governed the use of secret

measures and that this legislation potentially affected all users

of postal and telecommunications services.  In the present case the

category of persons likely to be affected by the measures in question

is significantly narrower.

        On the other hand, the Commission considers that it should be

possible in certain cases to raise a complaint such as is made by the

applicant without the necessity of proving the existence of a file of

personal information.  To fall into the latter category the Commission

is of the opinion that applicants must be able to show that there is,

at least, a reasonable likelihood that the Security Service has

compiled and continues to retain personal information about them.

        In the present case the Commission recalls that the security

check which is at the basis of the applicant's complaint occurred in

1977.  It is apparent that the Security Service recommended that the

applicant not be eligible for appointment to the BBC because of her

secretaryship of the Scotland-China Association.  Once the applicant

ceased to be the Secretary to this Association the Security Service

recommended that there were no further obstacles to her appointment.

There is no indication that the Security Service then had or have

retained any information of a personal character relating to the

applicant.  The evidence is only to the effect that it was known that

she was Secretary of the Scotland-China Association.  The Commission

has not been apprised of any reason since that date as to why the

Security Service should continue to show further interest in the

applicant.  Nor is there any indication that the applicant, as a

journalist, or in any other capacity, belongs to a category of persons

that might be the subject of such interest.  The Commission recalls

that the only reason for her present fears lies in the Observer

Newspaper report of 18 August 1985 which informed her for the first

time of the security check in 1977.  The Commission is therefore of

the opinion that the applicant has not shown that there is at least a

reasonable likelihood that the Secret Service has compiled and

continues to retain personal information about her.

        The Commission concludes that there has been no interference

with the applicant's right to respect for private life since she has

not substantiated her allegation.  It follows that that the above

complaint must also be rejected as manifestly ill-founded within the

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

3.      Article 10 (Art. 10) of the Convention

        The applicant complains under this provision that the refusal

to appoint her to the BBC job constitutes, in effect, a penalty for

the expression of her views.  She further complains that by advising

that she should not be employed as a reporter, the Security Service

interfered with her right to impart information and ideas to the

public.  She has also suggested, in her submissions, that a further

Article 10 (Art. 10) issue arises in respect of the continuing situation

created by the practice and procedure of the obtaining, retention and potential

use of information about her private life by the Security Service. She has not

elaborated her complaint in this respect.

        Article 10 (Art. 10) of the Convention provides as follows:

"1.   Everyone has the right to freedom of expression.  This

right shall include freedom to hold opinions and to receive

and impart information and ideas without interference by

public authority and regardless of frontiers.

...

2.  The exercise of these freedoms, since it carries with it

duties and responsibiities, may be subject to such

formalities, conditions, restrictions or penalties as are

prescribed by law and are necessary in a democratic society,

in the interests of national security, territorial integrity

or public safety, for the prevention of disorder or crime,

for the protection of health or morals, for the protection

of the reputation or rights of others, for preventing the

disclosure of information received in confidence, or for

maintaining the authority and impartiality of the judiciary."

        The Commission recalls that it has rejected as inadmissible

for non-substantiation, the applicant's complaint that she failed to

secure the BBC job because of the negative report from the Security

Service as well as her allegations concerning the continuing retention

and potential use of personal information by the Security Service.  It

follows that the above complaints which are founded on the same

allegation must also be dismissed on the same basis.  These complaints

must therefore be rejected as manifestly ill-founded within the

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

4.      Article 13 (Art. 13) of the Convention

        The applicant complains under this provision that she lacks

an effective remedy under the law of the United Kingdom in respect of

her complaints.  This provision states 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 Commission recalls that for Article 13 (Art. 13) to apply the claim

that a provision of the Convention has been breached must be an 'arguable' one.

        The Commission notes that it has rejected the applicant's

complaints under Articles 8 and 10 (Art. 8, Art. 10) of the Convention on the

basis that she has not substantiated her allegations of an interference with

these rights.  In such circumstances the Commission does not consider that the

applicant's claims can be described as 'arguable' (see, in this context, Eur.

Court H.R., Boyle and Rice judgment of 27 April 1980, paras. 51 - 86;  and

Plattform "Ärzte für das Leben" judgment of 21 June 1988, paras. 24 - 39).

        It follows that this complaint must be rejected as manifestly

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

Convention.

        For these reasons, the Commission

        DECLARES THE APPLICATION INADMISSIBLE.

  Secretary to the Commission          President of the Commission

         (H.C. KRÜGER)                       (C.A. NØRGAARD)