THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39029/97

by I.J.L.

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 6 July 1999 as a Chamber composed of

Mr J.-P. Costa, President ,

Sir Nicolas Bratza ,

Mrs F. Tulkens ,

Mr W. Fuhrmann ,

Mr K. Jungwiert ,

Mr K. Traja ,

Mr P. KÅ«ris , Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 14 November 1997 by I.J.L. against the United Kingdom and registered on 18 December 1997 under file no. 39029/97;

Having regard to the report provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national, born in 1916 and currently living in Switzerland.

He is represented before the Court by Stephenson Harwood , a firm of solicitors based in London as well as by Mr J.P. Gardner, a solicitor also based in London.

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

On 27 November 1997 the Secretary of State for Trade and Industry published a Report (“the Report”) prepared by Inspectors appointed by the Department of Trade and Industry under sections 432(2) and 442 of the Companies Act 1985 to investigate allegations of an unlawful share support operation at the time of the take-over by Guinness PLC of the Distillers Company PLC.

The applicant maintains that the Report refers quite extensively to him and is pejorative, containing criticisms of his honesty both in relation to the events which are the principal subject-matter of the Report and his responses to the Inspectors. The content of the Report is seriously detrimental to his reputation, all the more so in view of the intense media interest generated by it.

The applicant refers to the facts that on 11 and 16 October 1997 his lawyers submitted detailed representations to the Secretary of State urging him not to publish the Report as he had lodged an application with the European Commission on Human Rights in connection with the manner in which the Inspectors had obtained evidence from him and how that evidence was subsequently used by the prosecution at his trial. In their representations to the Secretary of State the applicant’s lawyers argued that, at the very least, publication of the Report should be deferred until the Convention institutions had adjudicated on his complaints. They requested the Secretary of State in the event of a decision to publish the Report in opposition to their representations to give them full information on the reasons for doing so.

COMPLAINT

The applicant complains that the preparation and publication of the Report violated his right to respect for his private life guaranteed under Article 8 of the Convention. In this connection he maintains that the interference with his reputation occasioned by publication was not in accordance with the law and was disproportionate in its effect.

THE LAW

The applicant complains that the publication of the Report breached his right to respect for his private life as guaranteed by Article 8 of the Convention, which provides:

“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.”

The applicant states that, in the absence of proof of irrationality, it was legally impossible for him to challenge the Secretary of State’s decision to publish the Report under the law of the respondent State having regard to the scope of the Secretary of State’s discretion on this matter. Further, he could not rely on his Convention rights, in particular his right to respect for his private life, before the domestic courts to impeach that decision since the Convention has not been incorporated into domestic law.

In the applicant’s submission the preparation and publication of the Report constituted an interference with his right to respect for his private life which was neither in accordance with the law nor proportionate in its effect. He submits that the Report was based on materials which were collected from him during interviews by Inspectors using compulsory powers and procedures which, while lawful under domestic law, were unlawful from the standpoint of Article 6 of the Convention. He stresses in this connection that the Court in its Saunders v. the United Kingdom judgment (judgment of 17 December 1996 , Reports of Judgments and Decisions 1996 -VI) has already ruled that the use by the prosecution of evidence gathered by Inspectors during interviews with that applicant had rendered the latter’s trial unfair. The applicant maintains that, in order to ensure internal consistency in the interpretation and application of the Convention, it must be concluded that the decision to publish the Report was not in accordance with the law for the purposes of Article 8 of the Convention.

The applicant further contends that the publication of the Report was a disproportionate interference with his right under Article 8 of the Convention since it was done in deliberate defiance of his complaint to the Convention institutions alleging that his right to a fair procedure before the Inspectors guaranteed under Article 6 of the Convention had been breached. His representations to the Secretary of State on this point had been discounted.

The Court notes that the impugned Report was published on 27 November 1997 and that much of the material on which the Inspectors based their conclusions was already in the public domain as a result of the decision of the trial judge on 21 November 1989 to allow the prosecution to rely at his trial on the transcripts of the evidence which he gave to the Government-appointed Inspectors. It further notes that the applicant in a separate application (no. 29522/95) complained, inter alia , that the Inspectors’ investigation, his trial and conviction and the resultant publicity blighted his reputation and led to the annulment of his knighthood. He invoked Article 8 of the Convention in this connection. In its partial inadmissibility decision on this complaint, the Commission found that, insofar as these matters could be considered an unjustified interference with the applicant’s right under Article 8, that interference would in any event be justified under Article 8 § 2 of the Convention including with reference to the “in accordance with the law” requirement. The Commission found as a result that the applicant’s complaint was inadmissible as being manifestly ill-founded.

For the Court, the publication of the Report cannot be said to have caused the applicant any further prejudice to his private life including reputation over and above that attendant on his conviction following a lengthy jury trial. It further considers that in the circumstances the applicant’s new application has the same factual basis as that of his previously rejected complaint under Article 8 notwithstanding that he has sought to support it with a new legal argument. Since the application is substantially the same as a matter that has previously been examined by the Convention institutions, it is inadmissible within the meaning of Article 35 §§ 2 (b) and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

S. Dollé J.-P. Costa

Registrar President