Lexploria

The European Commission of Human Rights sitting in private on

3 December 1986, the following members being present:

MM. C.A. NØRGAARD, President

G. JÖRUNDSSON

G. TENEKIDES

S. TRECHSEL

B. KIERNAN

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs G.H. THUNE

Sir Basil HALL

Mr. F. MARTINEZ

Mr. J. RAYMOND, Deputy 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 21 February 1984 by M. P.H.

against the United Kingdom and registered on 27 February 1984 under

file No. 10888/84;

- the report provided for in Rule 40 of the Rules of Procedure

of the Commission;

- the Commission's decision of 9 July 1985 to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits;

- the observations submitted by the respondent Government on

10 December 1985 and the observations in reply submitted by the

applicant on 19 March 1986;

Having deliberated;

Decides as follows:

THE FACTS

The facts of the case as they have been submitted by the parties may

be summarised as follows.

The applicant is a British citizen, born in 1944 and at present

residing at Sutton Coldfield.

In the proceedings before the Commission she is represented by Messrs.

George Jonas & Co., solicitors, Birmingham.

In 1981, the applicant wrote letters to her local newspaper expressing

her feelings on the debate on nuclear weapons.

On the evening of 20 October 1981, whilst the applicant was out, two

men purporting to be police officers called at her house and informed

the baby-sitter they would return to see the applicant at another

time.

The next day, a man, indicating that he was from the Birmingham

Criminal Investigation Department, visited the applicant at her home

and mentioned that his enquiry related to an outstanding sum of £ 20

owed to a mail order company. Although the man presented a form of

identification, the applicant was apparently unable to satisfy herself

as to his identity and, after learning from the mail order company

that the man had not been sent by them, she notified the police.

In December 1981 the police informed the applicant that the men might

have been bogus police officers. The applicant arranged an interview

with her local Member of Parliament and, in October 1982, the Member

of Parliament sent a letter to the Chief Constable of the West

Midlands police force. As a result of inquiries pursuant to this

letter, the applicant was given an assurance that she had not been the

subject of inquiry by the West Midlands police force. However, the

applicant was still not satisfied and in February 1983 the MP sent

further papers to the Chief Constable.

Further enquiries were made and it was then revealed that the two men

who had called on the applicant had in fact been from the Special

Branch of the police.

A senior officer subsequently visited the applicant and apologised for

the embarrassment and inconvenience caused to her by the police's

failure to identify the officers concerned.

At the same time, an inquiry was set up by the Chief Constable which

revealed that the applicant had been visited because certain of her

letters to the local newspaper had been interpreted as indicating that

she might be prepared to support or become involved in public protests

of a nature which could become disorderly or even violent. As a result

of the visit to the applicant in October 1981, the local Special

Branch decided not to pursue the matter.

After a meeting between the applicant's solicitor and a senior officer

of the West Midlands police force, the Chief Constable wrote a letter

to the applicant on 22 September 1983 conveying his personal apologies

for the "inconvenience and distress which you have been caused as a

result of the actions of the West Midlands police force when making

inquiries at your house in October 1981 and of the force's subsequent

failure to quickly discover who those officers were".

The case was considered by the West Midlands Police Committee on the

basis of two reports produced by the Chief Constable who concluded

that the officer involved in the interview on 21 October 1981 had

acted unprofessionally and not in accordance with instructions given

to officers as to the way they should carry out their duties and

discharge their responsibilities. At the conclusion of the public

meeting held on 16 November 1983, the Police Committee passed a

resolution deploring the initiation of investi- gations on the basis

of newspaper reports and the fact that the officers concerned in the

applicant's case had not been disciplined.

Arrangements have now been made to ensure that inquiries of the type

used in the applicant's case may only be authorised by an officer of

the rank of Chief Inspector or above. The officers concerned in the

applicant's case have been advised as to how they should conduct

inquiries and subsequent internal investigations.

COMPLAINTS

The applicant claims that the right under Article 10 (Art. 10) of the

Convention to impart information and ideas without interference by a

public authority must include the right to write to a newspaper on a

matter of current interest without being investigated by the Special

Branch of a police force. She submits that neither national security

nor public safety could possibly have been endangered by the letter

written, and she alleges a violation of Article 10 (Art. 10) of the

Convention.

Moreover, the applicant submits that, as she had an arguable claim

that her Convention rights might be violated, and as she has not had

any court or any other remedy against the police officers concerned,

the case also discloses a violation of Article 13 (Art. 13) of the

Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 21 February 1984 and registered on

27 February 1984. The Commission considered the admissibility of the

application on 9 July 1985 and decided to invite the respondent

Government to submit written observations on the admissibility and

merits of the application. After an extension of the time limit for

submitting observations, the Government submitted its observations on

10 December 1985. The applicant's observations in reply were

submitted on 19 March 1986 after two extensions of the time limit for

their submission. On 16 May 1986 the Commission decided that legal

aid should be granted to the applicant for her repre- sentation before

the Commission.

SUBMISSIONS OF THE PARTIES

A. Respondent Government

a. The facts

The relevant facts submitted by the respondent Government, so far as

they are not in dispute between the parties, have been incorporated

in the "The Facts" section above.

b. Domestic Law and Practice

By virtue of Section 1 of the Police Act 1964 every police force in

England and Wales is maintained by the police authority, or Police

Committee, for that area. The police authority comprises both

councillors appointed by the respective county councils and

magistrates. The police authority has certain supervisory powers in

respect, in particular, of the chief constable, although it has no

operational powers or duties with regard to the force established for

its police area.

Each police force is under the direction and control of the chief

constable, who submits automatic annual reports to the police

authority and also reports on specific matters.

Each police force in England and Wales has its own Special Branch

which is made up of police officers subject to the same disciplinary

code and complaints procedure as other officers in the force. One of

the functions of the Special Branch is to gather information about

threats to public order.

By virtue of certain provisions of the Police Act 1964 and the Police

Act 1976, complaints can be made to a chief constable about a member

of his police force, which could in turn lead to disciplinary charges

brought by the chief constable against the officer concerned following

review by the Police Complaints Board (if allegations of criminal

behaviour were not involved).

c. Admissibility and merits

i. Exhaustion of domestic remedies

The Government note that the applicant did not make a complaint under

Section 49 of the Police Act of 1964, pointing out that the decision

that disciplinary charges should not be brought against the officers

concerned then would have been reviewed by the Police Complaints

Board. The Board could have directed the Chief Constable to take

disciplinary proceedings. Accordingly, the Government submit that the

application is inadmissible for failure to exhaust domestic remedies.

ii. Article 10 (Art. 10)

The Government point out that no public authority exercised control

over the content of the applicant's letters to newspapers, and that

she has at all times been free to hold opinions about the matters

which were the subject to her correspondence.

The Government deny that the visit of the police to the applicant's

home subjected her to any form of compulsion, and the Government

therefore submit that there was no interference with the applicant's

right to freedom of expression as guaranteed by Article 10 (Art. 10)

of the Convention.

The Government do not comment on Article 10 para. 2 (Art. 10-2) of the

Convention in the light of its opinion concerning Article 10

para. 1.(Art. 10-1)

iii. Article 13 (Art. 13)

The Government submit that as, in their opinion, no violation of

Article 10 (Art. 10) has been established, the obligation imposed by

Article 13 (Art. 13) of the Convention to provide an effective remedy

to such violation does not arise in the instant case.

Alternatively the Government submit that the applicant does not have

"an arguable claim to be the victim of the violation of rights set

forth in the Convention" (the Eur. Court HR, judgment of Silver and

others of 25 March 1983, Series A, No. 61, para. 113). Accordingly

the Government maintains that the applicant's complaints under Article

10 (Art. 10) raise no issue under Article 13 (Art. 13). The

Government adds that a domestic remedy was, in any event, available to

the applicant in the form of the complaint/procedure provided for

under Section 49 of the Police Act 1964.

d. Conclusion

The Government concludes that the Commission should declare the

application inadmissible for non-exhaustion of domestic remedies, or

as being incompatible with the provisions of the Convention or

manifestly ill-founded. In the alternative, the Government request

the Commission to find that there has been no breach of Article 10

(Art. 10) or Article 13 (Art. 13) of the Convention.

B. The Applicant

a. The facts

The applicant emphasizes that it was impossible to discern from the

correspondence with the local newspaper that she was the organiser of

an Anti-Nuclear Rally referred to, or that she was prepared to

support, or become involved in, public protests of a nature which

could become disorderly or even violent.

The applicant states that the visit of the police officer to her home

on 21 October was more extensive than is suggested by the Government

and that it was apparent that the police officer was seeking to make

some assessment of the applicant's character and circumstances.

The applicant states that she did in fact complain to the police about

the behaviour of the officers who visited her and, indeed, it was as a

result of these complaints that her suspicions were proved to be

correct.

b. Domestic Law and Practice

The applicant underlines the fact that English law does not contain

any statement of the right to freedom of expression, and further, that

the Police Disciplinary Code contains no reference to actions by

police officers which would have the effect of causing a violation of

Article 10 (Art. 10) of the Convention.

c. Admissibility and merits

i. Exhaustion of domestic remedies

The applicant concludes from the absence of a stated right to freedom

of expression that there were no domestic remedies which she could

exhaust. She denies that the police complaints procedure constitutes

a domestic remedy because it provides no compensation to a

complainant; the complainant is not a party to any proceedings which

may eventually be brought and only disciplinary proceedings against a

police officer can follow from the complaint. In the alternative, the

applicant submits that if the procedure can constitute a domestic

remedy, then in the present case it was not capable of being effective

because no action which could have been taken by the Police Complaints

Board could have dealt with the applicant's principal grievance.

Finally, the applicant states that she did make a complaint to the

police and that Section 49 of the Police Act 1964 does not require a

complainant to refer to that section.

ii. Article 10 (Art. 10)

The applicants submits that the scope of the right to freedom of

expression in a democratic society is more extensive than recognised

by the Government. Becoming the object of surveillance by the

agencies of the state does, in itself, constitute "interference by

public authority".

The applicant contends that the Government's statement that the visits

of the police to her home were "concerned with their duties regarding

the preservation of peace and the maintenance of public order" is a

consideration relevant only under Article 10 para. 2 (Art. 10-2),

which thereby tacitly admits the existence of an interference under

Article 10 para. 1. The applicant notes that the Government does not

purport to make any submissions under Article 10 para. 2 (Art. 10-2)of

the Convention.

iii. Article 13 (Art. 13)

The applicant repeats that the claim is clearly arguable and that she

plainly did not have a remedy before a national authority in order to

obtain redress.

THE LAW

1. The applicant alleges a violation of Article 10 (Art. 10) of

the Convention in that the visit by police officers to her house and

the subsequent denial of any police involvement together constitute an

unjustifiable interference with her right to freedom of expression.

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. This Article shall not prevent States from

requiring the licensing of broadcasting, television or cinema

enterprises.

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

and responsibilities, 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."

However, Article 25 (Art. 25) of the Convention provides that the

Commission may only receive petitions from persons, non-governmental

organisations or groups of individuals "claiming to be the victim of a

violation by one of the High Contracting Parties" of the rights

contained in the Convention, provided that a declaration of

recognition of the competence of the Commission to receive such

petitions has been made. It therefore falls to the Commission to

determine whether, in the present case, the applicant may claim to be

a victim of a violation of her Convention rights within the meaning of

Article 25 (Art. 25).

The Commission notes that the police have accepted that the inquiry of

the applicant should not have been carried out, and in particular, the

Chief Constable of the West Midlands police sent his personal

apologies to the applicant on 22 September 1983.

Further, the Commission notes that in the report presented publicly by

the Chief Constable of the West Midlands police to the Police

Committee of that authority on 16 November 1983, the Chief Constable

concluded that the officer involved in the interview on 21 October

1981 had acted unprofessionally and not in accordance with the

instructions given to officers concerning the way in which they should

carry out their duties. As a result of the Chief Constable's report,

the Police Committee passed a resolution deploring the initiation of

investigations on the basis of newspaper reports and the fact that the

officers concerned in the applicant's case had not been disciplined.

Finally, the Commission notes that arrangements have now been made to

ensure that inquiries of the type used in the applicant's case may

only be authorised by an officer of the rank of Chief Inspector or

above. Moreover, all officers concerned in the applicant's case have

been advised as to the way in which they should conduct inquiries and

subsequent internal investigations.

The Commission considers that, bearing in mind the nature of the

alleged interference in the present case, the measures taken as a

result of the applicant's representations to the Chief Constable

through her Member of Parliament gave her adequate redress for her

grievances. Not only did the applicant receive a personal apology,

but the acts of the police officers concerned were publicly censured

by the Chief Constable and the Police Committee, and measures were

taken to prevent their recurrence.

The Commission concludes therefore that the applicant can no longer

claim to be a victim of the alleged violation of Article 10 (Art. 10)

of the Convention (cf No. 7826/77, Dec. 2.5.78, DR 14 p. 197).

This part of the application is therefore manifestly ill-founded

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

Convention.

2. The applicant also alleges a violation of Article 13

(Art. 13) of the Convention. The Commission notes that it has found

that the applicant may no longer claim to be a victim of a violation

of her substantive rights under the Convention on the ground that she

obtained redress for her grievances as a result of the representations

made by her through her Member of Parliament. It follows that, in the

circumstances of the present case, a remedy was available to the

applicant which gave adequate redress of her complaints under Article

10 (Art. 10) of the Convention.

This part of the application is therefore also 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.

Deputy Secretary to the Commission President of the Commission

(J. RAYMOND) (C.A. NØRGAARD)

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H. v. THE UNITED KINGDOM

H. v. THE UNITED KINGDOM