THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48539/99 by Richard Roy ALLAN against the United Kingdom

The European Court of Human Rights, sitting on 28 August 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr P. KÅ«ris , Mrs F. Tulkens , Mr K. Jungwiert , Sir Nicolas Bratza , Mr K. Traja , judges , and Mr T.L. Early , Deputy Section Registrar ,

Having regard to the above application introduced on 13 May 1999 and registered on 3 June 1999,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Richard Roy Allan, is a United Kingdom [Note1] national , born in 1965 and detained in HM Prison Long Lartin . H e is represented before the Court by Mr Turnberg, a lawyer practising in Manchester.

A. The circumstances of the case

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

On 3 February 1995, Mr David Beesley, store manager, was shot dead in the manager’s office of a Kwik-Save supermarket in Greater Manchester.

On 18 February 1995, the applicant and another man, by the name of Leroy Grant, were arrested on suspicion of having committed a late-evening robbery at the “Late Saver” shop, Cheadle. At the time, they were in possession of an 8mm Beretta replica handgun. Charged in connection with this offence, Mr Grant admitted to the offence and several other late night shop robberies. The applicant denied involvement in any of the offences. On or about 20 February 1995, an anonymous informant told the police that the applicant had been involved in the murder of David Beesley.

On 20 February 1995, the applicant and Mr Grant appeared in custody at the Stockport Magistrates’ Court and were further remanded in custody to re-appear on 23 February 1995. On 20 February 1995, Detective Chief Inspector Dunn requested permission for the cell and the visiting areas used by the applicant and Mr Grant to be bugged with audio and video technology, alleging that all regular methods of investigation to identify David Beesley’s murderer had failed. The Chief Constable of the Greater Manchester Police granted authority on the same day for an unlimited period for both the police stations at Stockport and Cheadle Hulme. On 13 March 1995, similar authority was sought and obtained for such equipment to be placed in Stretford Police Station, where the applicant was then held.

During this time, visits to the applicant by his female friend, J.N.S, were recorded by audiotape and on video in the prison visiting area between 12 to 28 March 1995. The applicant and Mr Grant were held for long periods in the same cell and recordings taken of their conversations from 20 February to 12 March 1995.

On 23 March 1995, H. was brought to Stretford Police Station. H. was a long-standing police informant with a criminal record who was arrested on 21 March 1995 for unrelated offences. He was placed in the applicant’s cell for the purpose of eliciting information from the applicant. As asserted by the applicant, H. had every incentive to inform on him. Telephone conversations between H. and the police included comments by the police instructing H. to “push him for what you can” and disclosed evidence of asserted police coaching. After 20 April 1995, he associated regularly with the applicant who was remanded at Strangeways prison.

On 28 June 1995, the applicant was taken away from the prison to be interviewed by the police concerning the Kwik-Save robbery. He was attended and advised by his solicitor. During the course of the interview, the applicant was invited to comment on the recordings made in February and March 1995. He made no comment to any question. According to the applicant, he was interrogated at length by the police in an attempt to “rattle” him, such that he would be more talkative and vulnerable to H. upon his return to the prison. H. had been fitted with recording devices. The recording thereby obtained was adduced in evidence at the applicant’s trial.

The applicant was interviewed again with his solicitor present on 29 June and 26 July 1995 and remained silent to the allegations.

On 25 July 1995, H. made a 59 page witness statement, detailing his conversations with the applicant and was released on bail on 4 August 1995. His sentence was postponed until after he had given evidence at the applicant’s trial. The high point of H.’s evidence was the assertion that the applicant had admitted his presence at the murder scene. This asserted admission was not part of the recorded interview and was disputed. The thrust of the applicant’s case was that he was discussing robberies and did not accede to H.’s efforts to channel their conversation into a discussion of the murder. The audio and video recordings (or transcripts thereof) were utilised in the trial of the applicant. No evidence, other than the alleged admissions, connected the applicant with the killing of Mr Beesley.

In January 1998, the applicant’s trial on one count of murder and a count of conspiracy to rob began before a jury. He was represented by leading counsel.

During his trial, the applicant’s counsel challenged the admissibility of extracts from covert tape and video recordings of conversations of the applicant with Leroy Grant and J.N.S., under sections 76 and 78 of the Police and Criminal Evidence Act 1984 (“PACE”). The judge concluded that there was evidence on the tapes from which the jury could infer that the applicant was involved in the events of 3 February 1995, and it was not so unreliable that it could not be left to the jury to assess for themselves. The judge also rejected the applicant’s counsel’s arguments under sections 76 and 78 of PACE that the evidence from H. was obtained by oppression or by such impropriety as to render it inadmissible. He considered that the use of an informant to talk and listen to the accused over a substantial period of time did not result in any unfairness to the accused. The fact that H. might be considered as having much to gain in giving evidence was also a matter to be left to the jury in their assessment of the reliability of his evidence. The evidence was accordingly admitted before the jury. The judge’s ruling on the admissibility of the evidence was given on 26 January 1998, after a voire dire and consisted of a judgment of 18 pages.

In his summing up to the jury on 10 and 11 February 1998, the trial judge gave directions on the way in which the jury should assess the reliability of the disputed evidence. He told them that they were to judge whether the police had deliberately wound the applicant up during the interview on 28 June 1995 and how to approach the evidence of H.:

“So at the end of the day with regard to H. you have his evidence about the conversations that he had with and what the applicant said. You have the tape recordings of the conversations on 28 June when H. had been wired up, between the applicant and H., and you have the transcripts of the conversations between H. and the police. I suggest… that you approach the evidence of H. with the very greatest caution and care. He is a professional criminal. He behaved, and has behaved as he acknowledged, dishonestly and criminally for years. He saw the likelihood of advantage to himself, both in terms of bail and in the sentence that he was likely to receive. You have heard that he has not yet been sentenced on matters for which he was in custody in early 1995. The defence say if you consider the whole picture you simply cannot rely upon H.; quite unsafe to do so. The prosecution say the contents of the tapes of 28 June can be relied on and are consistent with what H. says the applicant had said to him previously, before he, H., was wired up. Of course tapes of … conversations cannot possibly constitute any independent confirmation of what H. says about what the applicant had said to him previously, because, and you will understand the logic of that, the information is all coming from one source, namely H. and the witness cannot strengthen his own evidence essentially by repetition.

So, ladies and gentlemen, at the end of the day how do you regard H.? Was he or may he have been lying, or are you sure that he was telling the truth? If you are sure, for example, in relation to things said on the tapes of 28 June or other aspects of H.’s evidence that his evidence is true, that the applicant did say a number of things, what do those things mean? Do they point to his guilt, to his presence at Kwik-Save on 3 February 1995, or are they capable of meaning something else?…”

The judge also directed the jury concerning the possible drawing of inferences from the applicant’s silence in police interview on 28 June, 29 June and 26 July 1995, pursuant to section 34 of the Criminal Justice and Public Order Act 1994. He reminded the jury that the defence had contended that the applicant’s silence had been adopted on legal advice because of the view that oppressive interrogation techniques were being used:

“…the applicant was questioned under caution in June and July …and the prosecution say that he could reasonably have been expected to mention then matters which he now relies on and has given in evidence by way of explanation. … if you are sure that he did fail to mention any fact when he was questioned on those dates in June and July, decide whether it was a fact which he could reasonably have been expected to mention then. If it was, … you may draw such inferences as appear proper from his failure to mention the matter at the time. Failure to mention such a fact cannot on its own prove guilt but depending on the circumstances you may hold it against him when deciding whether he is guilty, that is take it into account as some additional support for the prosecution’s case. You are not bound to do so. It is for you to decide whether it is fair to do so. The defence say it would be unfair to draw any inference against him at all. They say there were long transcripts of hours of conversation, whether it was with Grant or H.. Officers, say the defence, were selectively quoting bits at the applicant. How, they ask, could he deal fairly with the conversations which had taken place months before when they were to be put to him in that way, and the defence suggest that it is is perfectly understandable that on advice he should decline comment, and they say therefore you should not draw any inference, and really the same argument is advanced to you in respect of the questions that he was asked about that long statement that was put to him of H.’s with never a chance to read it and passages being selected from it.

Well, ladies and gentlemen, again that’s a matter for you to decide in the light of the directions that I have given you.”

On 17 February 1998, after the jury had deliberated for a total of twenty one and a half hours, the applicant was convicted of murder before the Crown Court at Manchester by a 10-2 majority and sentenced to life imprisonment. The applicant thereafter lodged a notice of appeal, asserting, inter alia , that the judge ought to have excluded evidence of the audiotape and videotape recordings of the applicant’s conversations with Leroy Grant and J.N.S. and the evidence of H. He also argued that the judge had erred in his directions as to the circumstances in which the jury could draw inferences from the applicant’s failure to respond to police questions in interviews of 28 and 29 June, when the police strategy was to “spook” the applicant into a state of garrulousness when he returned to prison, where he had a conversation with H.

On 31 July 1998, he was refused leave to appeal against his conviction by a single judge. His renewed application was refused by the Court of Appeal (Criminal Division) on 18 January 1999, after a hearing at which he was represented by leading counsel. In the court’s judgment of that date, Lord Justice Rose found that the trial judge gave a very careful and impeccable ruling as regards the admissibility of the tapes and evidence of H. and that he had considered all the matters which he should have considered and had not considered any matter which he ought not to have considered. There was no basis for holding that the exercise of his discretion had been so flawed that the Court of Appeal should intervene. Insofar as the applicant complained that the judge should have warned the jury not to take into account the applicant’s failure to answer police questioning in the light of the police strategy to “spook” him, Lord Justice Rose found that the judge had given an entirely appropriate direction to the jury in the circumstances of the case.

B. Relevant domestic law and practice

The Home Office Guidelines

Guidelines on the use of equipment in police surveillance operations (The Home Office guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application. They provide, inter alia :

“4. In each case, the authorising officer should satisfy himself that the following criteria are met:

the investigation concerns serious crime;

normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried;

there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;

use of equipment must be operationally feasible.

In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence.”

The Guidelines also state that there may be circumstances in which material so obtained could appropriately be used in evidence at subsequent court proceedings.

The Police Act 1997

The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1998.

Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA”). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police.

The Police and Criminal Evidence Act 1984

Section 76 provides:

(1) In any proceedings a confession made by an accused person may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.

(2) If in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained -

(a) by oppression of the person who made it; or

(b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession that might be made by him in consequence thereof,

the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession, notwithstanding that it might be true, was no obtained as aforesaid.”

Section 78(1) provides as follows:

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

COMPLAINTS

The applicant complains of violations of Article 8 of the Convention as regards the use of audio and visual devices within his cell and the prison visiting areas, and upon H. to record conversations between the applicant and his co-defendant, Mr Grant, H. and his woman friend respectively.

The applicant alleges that there is no effective remedy in domestic law for the said violations of Article 8 of the Convention as required by Article 13.

The applicant also complains of violations of Article 6 of the Convention as regards:

– the use of the foregoing recordings as evidence in the trial proceedings;

– the use of a fellow prisoner (H.) planted within the applicant’s cell to question the applicant and thereafter as a witness in the proceedings;

– the fitting of H. with recording equipment on one of the days he held conversations with the applicant; and

– the inadequate direction of the judge to the jury by which he told them that they could draw inferences from his silence to police questioning.

THE LAW

The applicant complains of the use of covert audio and video surveillance within his cell, the prison visiting area and upon a fellow prisoner and of the use of materials gained by these means at his criminal trial. He invokes:

Article 8 of the Convention:

“1. Everyone has the right to respect for his private … life, …

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 … for the prevention of disorder or crime ...”

Article 13 of the Convention:

“Everyone whose rights and freedoms as set forth in [the] 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.”

Article 6 of the Convention:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

The Government accept that the measures taken in bugging the applicant’s cell and the prison visiting area and placing devices on the applicant’s cell-mate H. constituted an interference with the applicant’s right to respect for his private life and that these measures were not at that time “in accordance with the law” as required by Article 8 of the Convention. They also concede that he did not have an effective remedy in domestic law for these matters as required by Article 13 of the Convention.

As regards the applicant’s complaints under Article 6 however, the Government submit, relying on the case of Khan v. the United Kingdom (no. 35394/97 [Section 3] ECHR 2000-V), that the admission at trial of recorded evidence obtained secretly by the police under the Guidelines did not violate this provision. The surveillance had been lawful in domestic terms, there was no reason to suppose that the tapes were not an accurate reflection of what was said, they had not been obtained under any form of pressure and the applicant had an opportunity under domestic law to challenge their use. Furthermore, the tapes were not the only evidence against the applicant and the jury were made fully aware of any possible deficiencies in this evidence. Concerning the testimony of H., the Government point out that questions of admissibility of evidence are for domestic courts. Issues of H.’s credibility and reliability were fully argued and explained to the jury which was in a good position to determine whether any findings of fact could be drawn from his statements. The applicant’s counsel had been able to cross-examine H. There was accordingly no unfairness contrary to Article 6 § 1 in the use of this evidence at trial.

The applicant notes the Government’s concessions under Articles 8 and 13 of the Convention limited to issues of lawfulness. However, he disputes that the bugging of a prisoner’s cell for five weeks was necessary in a democratic society, particularly after they knew that the applicant had realised that his cell was being bugged.

As regards the use of the evidence from the surveillance at trial, the applicant submits that the remarks recorded on tape were not an accurate reflection of the Kwik -Save murder, referring to discrepancies with regard to what in fact happened. The tapes were also used in the police interviews to unsettle the applicant and set him up for adverse inferences in the event that he exercised his right to silence. The police used H. not as an inanimate listening post but as a means of conducting surreptitious interrogation, circumventing the protections for a suspect who has availed himself of legal advice and exercised the right to silence. The applicant’s conviction was based substantially, if not decisively, on the evidence of H. who was a persistent criminal under threat of sentencing which would depend on his role in the applicant’s trial. This was in all the circumstances unfair and oppressive.

The Court has examined the applicant’s complaints and the submissions of the parties and finds that serious questions of fact and law arise, which are of such complexity that their determination should depend on an examination of the merits. This part of the application cannot, therefore, be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

2. The applicant next complains that the judge’s direction to the jury concerning his right to silence deprived him of a fair trial contrary to Article 6 § 1 of the Convention.

The Government submit that he has failed to introduce this complaint within six months of the Court of Appeal decision of 18 January 1999, as required by Article 35 § 1 of the Convention. No mention was made of this specific and separate complaint in the applicant’s application form and introductory letter. It was first raised in the later letter of 18 September 2000 which was out of time, no explanation having been given by the applicant for the failure to raise the matter with his other complaints.

The applicant submitted that in his application he had complained that he had not received a fair trial, contrary to Article 6 § 1 of the Convention, which complaint entailed a consideration of the fairness of the proceedings as a whole and the whole history of the investigation whereby the police sought to circumvent his exercise of his right to silence. As the Government relied on the applicant’s silence as supporting the evidence of H., the Court must be entitled to examine the instructions given to the jury on the question of silence.

The Court recalls that the running of the six month time-limit imposed by Article 35 § 1 of the Convention is, as a general rule, interrupted by the first letter from the applicant indicating an intention to lodge an application and giving some indication of the nature of the complaints made. As regards complaints not included in the initial application, the running of the six months time-limit is not interrupted until the date when the complaint is first submitted to a Convention organ.

In this case, the applicant’s solicitors wrote to the Court on 20 January 1999, requesting an application form on which to present a case, indicating that they acted for a client convicted of murder and that complaints would be made under Articles 6 and 8 of the Convention. No further factual details or indications were given at this time of what had occurred which was regarded as infringing either of those two provisions of the Convention. On 13 May 1999, they submitted the completed application form with detailed argument concerning complaints made under Articles 6, 8 and 13 of the Convention. In the application form, they listed the alleged violations in the applicant’s case as concerning a violation of Article 8 due to the recording of his conversations with his cell-mate and girl friend; a violation of Article 13 due to a lack of remedy in respect of that interference with his private life; a violation of Article 6 in that use of the recordings violated his right to a fair trial and a violation of Article 6 in that an informant H. was used to question him in violation of standards of fairness in interrogation. No reference, express or implied, was made that the judge’s direction to the jury was such as to render the proceedings unfair. This was raised for the first time and at some length in a later letter of 18 September 2000. This letter made reference to the Court’s judgment in Condron v. the United Kingdom of 2 May 2000 (no. 35718/97 [Section 3], ECHR 2000-V), where a direction by a judge to a jury concerning inferences to be drawn from an accused’s silent had been found to infringe Article 6 § 1 of the Convention.

The Court is not persuaded that the mere fact that the applicant’s solicitors had invoked Article 6 is sufficient to constitute introduction of all subsequent complaints made under that provision. It is true that they had put in issue the fairness of the applicant’s trial but this had been with specific reference to the use of covert recordings and the evidence of an informant. In the absence of any reference in the application to the judge’s direction on the right to silence in the application, there is no reason why the Court would have examined this aspect of the case. It further notes that the applicant’s lawyers were well aware of the alleged unfairness arising from the judge’s direction as this was part of the grounds raised in the Court of Appeal. The facts as set out in the application form however made no reference to this aspect of the case and it was not until 18 September 2000, when copies were provided of the grounds of appeal and the Court of Appeal judgment, that the factual basis of the complaint was made known to the Court. It would appear that the applicant’s solicitors raised the complaint about the judge’s direction at this late stage as it was only after their attention had been drawn to the Court’s judgment in Condron that they became aware that the direction in the applicant’s case might raise a Convention issue. It was very much an afterthought and not part of the case introduced on 13 May 1999.

The Court considers that some indication of the factual basis of the complaint and the nature of the alleged violation under the Convention is required to introduce a complaint and interrupt the running of the six month time-limit. The allegation raised concerning the judge’s direction was not mentioned in any communication prior to 18 September 2000, either as part of the background facts of the case or as one of the grounds of unfairness relied on under Article 6 of the Convention. Nor can it be regarded as so closely connected to the other complaints raised under Article 6 of the Convention that it cannot be examined separately.

Consequently, the Court concludes that the complaint concerning the judge’s direction was introduced in the letter of 18 September 2000. As the final decision in the process of exhaustion of domestic remedies in relation to this complaint was the Court of Appeal judgment of 18 January 1999, this part of the application has been introduced out of time and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court unanimously

Declares inadmissible the applicant’s complaints about the judge’s direction to the jury;

Declares admissible the remainder of the application, without prejudging the merits of the case.

T.L. Early J.-P. Costa Deputy Registrar President

[Note1] To be checked.