FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 23414/02 by Clayton Paul WOOD against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 20 January 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs V. Strážnická , Mr R. Maruste , Mr S. Pavlovschi , Mr L. Garlicki , Mr J. Borrego Borrego , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 6 June 2002,

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 Clayton Paul Wood, is a United Kingdom national who is currently serving a sentence of imprisonment in HM Prison Featherstone. He is represented before the Court by Mr Robin Pearse Wheatley, a barrister practising in London.

A. The circumstances of the case

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

1. The investigation

Between 4 July 1998 and 1 April 1999 a series of robberies and burglaries took place in the Coventry area. As a result of their investigations, the police considered that there were some nine persons involved in the commission of these offences, including the applicant and his three co-defendants. The police had difficulty obtaining evidence against those who they thought were responsible, and therefore decided to seek authority from the Chief Constable for the West Midlands authority to carry out a covert operation (“Operation Brassica ”). The operation was to be carried out by arresting the suspects in groups, on suspicion of having committed different offences, and detaining them together in a police cell which had been specially fitted with covert audio equipment. It was hoped that the suspects would discuss the reasons for their arrest and that their ensuing conversation would be incriminating. On 17 May 1999 the Chief Constable gave authority for Operation Brassica to take place.

The applicant and two others were arrested on 20 May 1999. Their conversations whilst in police detention were recorded on 21 and 22 May 1999. Further covert recordings took place on 16 and 17 June 1999. The tapes formed the basis of the prosecution against the applicant.

2. The trial

The trial judge held a “ voir dire ” on the admissibility of the tapes. Counsel for the applicant argued that the methods of obtaining the evidence violated Articles 5, 6 and 8 of the Convention, and that they should therefore be excluded under section 78 or section 76 of the Police and Criminal Evidence Act 1984 (PACE). The tapes were ruled admissible on 13 March 2000. During the course of his ruling, the trial judge rejected the defendants’ argument that the circumstances of obtaining the evidence were oppressive and the tapes should therefore be excluded under section 76 of the PACE Act 1984. In considering section 78 of the Act, the trial judge said:

“I find that no mala fides exist in this case and that the Chief Constable acted throughout in good faith. Although I find the decision of the Chief Constable was not in accordance with a strict interpretation of the guidelines [Home Office Guidelines on the Use of Police Surveillance Equipment], it does not mean that his authority to use a bugging device or devices is no longer of importance. Of course it is. It is a very important factor which I have to take into account in deciding to exercise my discretion under section 78 of the Police and Criminal Evidence Act.”

He went on to consider the points raised under the Convention, saying:

“There is no doubt that when the defendants were arrested the main plan was that the covert operation would be put into effect, and to do this all the defendants involved should be in the cells at the same time.

However, the matter has to be taken in stages and then considered jointly. Firstly, did the police have power to arrest and was the arrest lawful? The evidence before me was that the police had information that the accused had committed some or other of the crimes which they were investigating. They not only had the right but the duty, in my judgment, to arrest and investigate the further evidence... As I have indicated already, the police clearly hoped that the covert bugging operation would bear fruit and if it did not the relevant defendant would have to be released. They were not arresting to create evidence but in the hope that evidence would be forthcoming.

The wording of Article 5(1)(c) does not readily read with the English system and was clearly designed for taking an accused before a magistrate for investigation. But it obviously is intended to be adjusted to the specific system of member states. I find that there is no breach of Article 5.” [6G-7D]

On the question of Article 6, the trial judge said:

“It has to be borne in mind but requires no specific findings from me at this stage.” [7E]

In considering Article 8, he said:

“A man in a police cell is entitled to privacy just as much as a man sitting at his fireside in his own home. In fact it may be argued that his right should be greater. He is after all innocent until proved guilty and he is in a vulnerable situation. Any bugging of his cell to intrude on his private conversation with another person would, prima facie, amount to an invasion of his privacy and as such a breach of Article 8.1. However, it can perhaps be argued that whilst he is in a cell he not only does not have to say anything but if in fact he is free of guilt there is nothing that he can say. If, on the other hand, he is guilty then he does not deserve the same right of privacy as anyone else. The weight of his loss of privacy is another matter which I may take into account.

... the main point which I have to decide is as to whether or not the intrusion to privacy was ‘in accordance with the law’.

There is no statute which provides for lawful bugging of police cells nor to prohibit such an action. There are however numerous cases where it has been considered and adopted. In fairness, if bugging is done it should not be done haphazardly and certainly does not bestow on police officers unfettered power. It is to this end that, in 1984, the Home Office issued the Guidelines for the Use of Police Surveillance Equipment. As I have already said, these are merely guidelines, they are certainly not statutes.

The actions of the police and the decision of the Chief Constable have to be considered together with all the other matters which have to be taken into consideration. On the basis of all those matters, I have to consider in which way I should exercise my discretion under section 78.” [7G-9A]

Applicant’s counsel suggested five safeguards that should have been afforded to the accused if the bugging was to be lawful. The trial judge said:

“I have considered each one of these matters and have rejected them all. If they were to be required in each case, no covert listening would ever be realistic or possible. As I have indicated already, such evidence can in serious cases such as this be very important and is, in my judgment, not objectionable. [9F]

In the exercise of my discretion under section 78, I will allow the tapes to be used in evidence.”

None of the defendants gave evidence at trial. In the course of his summing-up to the jury, the trial judge gave the following direction:

“So far as the defendants in this case are concerned, not one of them has given evidence. That does of course mean that there is no evidence from him to undermine, contradict or explain the prosecution case, and that is a matter which you may take into account. However, in this case I must direct you not to hold his failure to give evidence against him – I am sorry. I have misled you. Could I just start that again? The defendant first of all said nothing when he was asked questions about these matters, or some of them did on what you may think were the vital pieces of evidence, and I direct you that when a defendant in the course of his interview says ‘no comment’ and did so at that particular stage when advised and represented by a solicitor, that you must not hold his silence or refusal to answer questions against him. That means that it cannot by itself provide any additional support for the prosecution’s case. But each one of them has not given evidence in this case and that means of course that there is no evidence from him which can undermine, contradict or explain the prosecution’s case, and that is a matter which you may take into account.”

None of the defendants’ counsel invited the judge to correct the direction.

The applicant together with three others was convicted on 20 July 2000 of various robbery and firearms offences. He was sentenced to a total of 8 years’ imprisonment.

3. The appeal

The applicant and his three co-defendants appealed to the Court of Appeal, raising three broad grounds: (a) there was bias or the appearance of bias because the trial judge knew the Chief Constable personally, (b) the tapes should not have been admitted in evidence, and (c) the trial judge’s summing-up was so confused on the issue of silence at court that the jury may well have been left with the impression that they could draw an adverse inference from the applicant’s silence.

Lord Woolf CJ gave the judgment of the Court of Appeal on 13 February 2002, dismissing the appeal on all three grounds.

As regards the possible bias of the trial judge, the Court of Appeal rejected this ground on the basis that the evidence given by the Chief Constable was not in dispute, and the relationship between him and the judge therefore could not affect the fairness of the trial.

As regards the admissibility of the tapes in evidence, the Court of Appeal considered the alleged violations of the Convention. It decided that there had been a violation of Article 8 because the surveillance was not conducted according to law. Lord Woolf CJ said:

“This is because of the lack of any legal structure to which the public have access authorising the infringement. If there had been such authorisation there would have been no breach.” [§ 65]

He went on to say:

“The non-compliance with Article 8 does not, however, mean that the tape-recordings cannot be relied upon as evidence.

...

It is the responsibility of the Government to provide remedies against this violation of Article 8. However, the remedy does not have to be the exclusion of the evidence. The remedy can be the finding, which we have now made, that there has been a breach of Article 8 or it can be an award of compensation. The European Court of Human Rights recognises that to insist on the exclusion of evidence could in itself result in a greater injustice to the public than the infringement of Article 8 creates for the appellants. The infringement is, however, a matter which the trial judge was required to take into account when exercising his discretion under section 78 of PACE.” [§§ 66-67]

As regards Article 5 of the Convention, the Court of Appeal rejected the applicant’s argument on the basis that the arrests were for a lawful purpose as well as to enable the surveillance to take place, and the appellants were not therefore unlawfully deprived of their liberty. Lord Woolf CJ said:

“The fact that the police were operating in accordance with a strategy designed to obtain additional evidence by covert recording does not turn lawful arrests into unlawful arrests.” [§ 68]

The argument that the admission of the tapes in evidence prevented the defendants from receiving a fair trial was also rejected. Lord Woolf CJ said:

“51. The complaints of the appellants with regard to the decision of the judge are not to the relevance of the contents of the tape. They were clearly highly relevant. Instead it is argued that the way the evidence was obtained was contrary to PACE. The submission is not so much based on the a contravention of the language of PACE. The allegation is that the surveillance took place contrary to the spirit of the relevant Codes of Practice...

52. ... On the evidence there were proper grounds for the arrests and ignoring the fact that the police were working to an overall plan, there was nothing improper about the purpose for which the arrests took place.... As already indicated it was not suggested that the Chief Constable gave his authority other than in good faith. In addition whether or not the Guidelines applied to what happened in the police cells, the police considered that they were appropriately applying the Guidelines and entitled to do what they did.

...

54. Here the trial judge came to the conclusion that the Guidelines had not been complied with ... because of the requirement ... for normal methods of investigation to have been tried or failed or be unlikely to succeed if tried...

55. In coming to this conclusion, the trial judge may have been unduly rigorous in his approach because the object of the exercise was not to obtain evidence against one or other of the suspects in relation to a particular offence but to obtain the evidence which would enable the police to bring to justice those who were involved in the conspiracy to carry out numerous robberies in the Coventry area. Viewed in this way, it was Sergeant Fairfield’s evidence that “other policing means had failed.

...

58. We are far from satisfied that when the Guidelines were formulated, they were intended to apply to surveillance of the sort that took place here of those in custody in police cells. However, even if the Guidelines were not intended to apply to suspects already in custody, as there was not alternative guidance published, we consider that it was reasonable for the Chief Constable to apply the Guidelines by analogy, unless they conflicted with PACE. ... This was a situation were the police were responding reasonably and proportionately to a very serious threat to the safety of the public and law an order and so were entitled to seek evidence not only of individual wrongdoing but of a conspiracy to commit armed robbery. ...

59. More difficult is the issue whether the surveillance in police cells is inappropriate treatment of those in police custody who are intended to be protected by the safeguards in PACE and the Codes. ...the surveillance is not directly in conflict with any provision of PACE or the Codes...

60. We have no doubt that it is highly desirable that a statutory code should be established for the surveillance of the sort that occurred here ... but our conclusion is that that it is not contrary to the spirit of PACE or the Codes for there to be covert taping of what is said in cells.”

Lord Woolf CJ went on to adopt the conclusions reached in other cases that there was no unfairness in admitting such taped evidence where there was no suggestion that the confessions were oppressively obtained or other than wholly reliable. As regarded the complaints under the Convention, he observed:

“Article 6 for the purposes of the present case does not add anything to section 78. If there was no unfairness caused by the tapes being relied upon in evidence then there is no breach of Article 6.” [§ 69]

On the issue of the trial judge’s approach to the defendants’ silence in his summing-up, Lord Woolf CJ said:

“80. The first point to make is that no member of the Bar invited the judge to correct the direction. That this part of the summing up was deficient is really beyond argument. Quite apart from the judge being confused, the judge, having told the jury that the absence of a defendant from the witness box was something ‘which you may take into account’, did not go on to give the jury guidance as to how it should be taken into account.

81. Usually it is desirable for juries to be directed in accordance with the Judicial Studies Board specimen direction on section 35 of the Criminal Justice and Public Order Act 1994, though a judge is not compelled to follow the direction. However, although the judge did not use the words of the opening requirement of the specimen direction to tell the jury that the appellants had the right not to give evidence, he did immediately before the direction complained of say the defendants were entitled in effect to say to the prosecution; ‘...you brought these charges. You go ahead. You prove them. I am taking no part in this case at all.’ So the spirit of this part of the specimen direction was mentioned. In addition, the judge did tell the jury that they ‘may’ draw an inference twice so he did leave the question for them to decide as to whether or not to draw an inference. Nonetheless it would have been preferable if he had used the clearer words of the specimen direction, ‘that you may draw such inferences as appear proper’.

82. The warning in the specimen direction to the effect that no question of holding a defendant’s absence from the witness box against him can arise unless the jury are satisfied that there is a case for him to answer was certainly not given. However, in the context of this case this omission is purely technical since there was undoubtedly a case to answer in respect of all the counts of which the appellants were found guilty. Again, the judge did not invite the jury to consider whether it was fair to hold the failure of the appellants to give evidence against them. However in this case it is difficult to see why it would not be fair to hold their failure to testify against them having regard to the terms of section 35.

83. In R. v. Cowan and others [1996] 1 Cr.App . Lord Taylor CJ (at p. 7) highlighted 5 essentials of a good direction. The first is as to the burden of proof. This requirement was complied with both before and after the direction complained of. The second was as to the right to silence. This point we have already considered. The third is an inference alone cannot prove guilt. This direction was not given but the prosecution had ample other evidence so this failure is of little significance. The fourth we have also dealt with. It is the need for a prima facie case. The fifth refers to how to deal with any explanation for not giving evidence but this was hardly needed here because the appellants had no explanation.

84. [Prosecution counsel] submits that notwithstanding the limited direction upon what is ordinarily a very important topic, in this case no injustice could conceivably have been occasioned. This failure he suggested can be regarded as technical since there was undoubtedly a case for each defendant to answer on any possible interpretation of the evidence. The real issue in the case was whether the jury could be sure that the various confessions in the covert tape (a) could be related to particular allegation in the indictment and (b) could be attributed to a particular defendant. The prosecution’s case was that the jury could be sure, the defence case was they could not. Reasons relating to the quality of the tapes and the reliability of the voice identification evidence were advanced which the jury had to consider. These matters the judge made clear.

85. On behalf of the prosecution it is said that once the jury were sure first that defendant X had spoken the words on the tape which had been attributed to him by a witness and second that those words amounted to a confession to an offence... X’s absence from the witness-box could have had no bearing on the verdict.

86. That may be true, but it overlooks the possibility that in deciding one or other or each of the two basic issues we have identified the jury may have had regard to the fact that defendant X. had not availed himself of the opportunity either to contradict the evidence which identified him as the speaker or to proffer an explanation for the words attributed to him which undermined the prosecution case that the words amounted to a confession.

87. However it seems to us that if in the case of one or more of these appellants this was the approach of the jury it was a wholly legitimate approach. Even if the Judicial Studies Board direction had been given, the legitimacy of the approach would have been unaffected. The complaint is not that something was said that should not have been said. The complaint is about what was not said and what was not said did not bear on this issue. So we are satisfied the defendants were not prejudiced by the defect in the summing-up. In our judgment the judge’s failure to give the conventional direction in the circumstances of this particular case does not render unsafe or unfair the conviction of any defendant upon any count...”

The Court of Appeal certified the following question for consideration by the House of Lords:

“Whether evidence derived from the covert recording of conversations in police cells which is contrary to Article 8 of the European Convention on Human Rights can be admitted in evidence if this would not affect the fairness of the trial when the defendant had been arrested lawfully but a purpose of that arrest was to provoke conversation and eavesdrop on the defendant to obtain evidence of his participation in a serious crime?”

On 30 May 2002, leave to appeal to the House of Lords was refused.

B. Relevant domestic law and practice

1. The Home Office Guidelines

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

In each case, the authorising officer had to satisfy himself that the following criteria were met: (a) the investigation concerned serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, have been unlikely to succeed if tried; (c) there must have been good reason to think that the 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 and (d) the use of equipment must have been operationally feasible. The authorising officer had also to satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence.

2. The Police and Criminal Evidence Act 1984 (PACE)

Section 76 of the Act provides as material:

“(1) In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings...

(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...

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

the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.”

Section 78(1) of the Act 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.”

3. The Police Act 1997

The Police Act 1997 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 1999.

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. These provisions were not in existence at the time of the applicant’s trial.

4. Criminal Justice and Public Order Act 1994

Section 35(2) and (3) of the Criminal Justice and Public Order Act 1994 provides that:

“(2) Where this subsection applies, the court shall, at the conclusion of the evidence for the prosecution, satisfy itself (in the case of proceedings on indictment, in the presence of the jury) that the accused is aware that the stage has been reached at which evidence can be given for the defence and that he can, if he wishes, give evidence and that, if he chooses not to give evidence, or having been sworn, without good cause refuses to answer any question, it will be permissible for the court or jury to draw such inferences as appear proper from his failure to give evidence or his refusal, without good cause, to answer any question.

(3) Where this subsection applies, the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences as appear proper from the failure of the accused to give evidence or his refusal, without good cause, to answer any question.”

Section 38 (3) adds that:

“A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section 34(2)...”

Guidance as to the direction which the judge should give the jury in respect of section 35 of the Criminal Justice and Public Order Act 1994 are provided by the Judicial Studies Board specimen directions and by the dicta of Lord Taylor CJ in R. v. Cowan ([1996] 1 Cr.App.R . 1). The relevance of these dicta to directions under section 34 of the same Act was confirmed by the Court of Appeal in R. v. Condron ([1997] 1 Cr.App.R . 185).

The dicta of Lord Taylor CJ are as follows:

“We consider that the specimen direction is in general terms a sound guide. It may be necessary to adapt it to the particular circumstances of an individual case. But there are certain essentials that we would highlight:

1. The judge will have told the jury that the burden of proof remains upon the prosecution throughout and what the standard required is.

2. It is necessary for the judge to make clear to the jury that the defendant is entitled to remain silent. That is his right and his choice.

3. An inference from failure to give evidence cannot on its own prove guilt. That is expressly stated in section 38(3) of the Act.

4. Therefore, the jury must be satisfied that the prosecution have established a case to answer before drawing any inferences from silence. Of course, the judge must have thought so or the question whether the defendant was to give evidence would not have arisen. But the jury may not believe the witnesses whose evidence the judge considered sufficient to raise a prima facie case. It must therefore be made clear to them that they must find there to be a case to answer on the prosecution evidence before drawing an adverse inference from the defendant’s silence.

5. If despite any evidence relied upon to explain his silence or in the absence of any such evidence, the jury conclude the silence can only sensibly be attributed to the defendant’s having no answer or none that would stand up to cross-examination, they may draw an adverse inference.”

Following the Court of Appeal’s judgments in R. v. Cowan and R. v. Condron , the following specimen direction in respect of section 35 was drawn up by the Judicial Studies Board. It states:

“The defendant has not given evidence. That is his right. He is entitled to remain silent and require the prosecution to prove its case. You must not assume he is guilty just because he has not given evidence because, failure to give evidence cannot, on its own prove, prove guilt. However, as he has been told, depending on the circumstances, you may take into account his failure to give evidence when deciding on your verdict.

1. In the first place when considering the evidence as it now is you may bear in mind that there is no evidence from the defendant himself which in any way undermines or contradicts or explains the evidence put before you by the prosecution.

...

2. In the second place, if you think that in all the circumstances it is right to do so, you are entitled, when deciding whether the defendant is guilty of the offence(s) charged, to draw such inferences from his failure to given evidence as you think proper. In simple terms, this means that you may hold this failure against him.

[There is evidence before you on the basis of which the defendant’s advocate invites you not to hold it against the defendant that he has not given evidence. That evidence is (here set out the evidence). If you think that this amounts to a reason why you should not hold it against the defendant that he has not given evidence, do not hold his silence against him. If, on the other hand, it does not in your judgment provide an adequate explanation for his absence from the witness box, then you may, if you think it right, hold his failure to give evidence against him.]

What inference can you properly draw from the defendant’s decision not to given evidence before you? If you conclude that there is no case for him to meet, you may think that if he had an answer to it he would have gone into the witness box to tell you what it is.

If, in your judgment, the only sensible reason for his decision not to give evidence is that he has no explanation or answer to give, or none that could have stood up to cross-examination, then it would be open to you to hold against him his failure to give evidence, 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.”

COMPLAINTS

The applicant complained under Article 8 of the Convention that the covert recording of his conversations was not “in accordance with the law” ( Khan v. the United Kingdom , no. 35394/97, [Section 3], ECHR 2000-V, judgment of 12 May 2000, §§ 26-28).

He complained under Article 5 of the Convention that the real purpose of the arrest was to record conversations between the defendants in the cells and thereby obtain evidence against them.

He complained under Article 6 of the Convention that the evidence against him was obtained unlawfully and the trial judge’s decision that it was admissible undermined the fairness of the proceedings and violated his right not to incriminate himself. He also complained under Article 6 of the Convention about the trial judge’s failure to give an adequate direction to the jury on his silence at the trial.

He finally complains under Article 13 of the Convention that he had no effective remedy for the breaches of his rights. Although the Court of Appeal found a violation of Article 8, he complains that it had no authority to grant him effective relief for the violation.

THE LAW

A. Covert surveillance

The applicant complains about the covert recording of conversations with other suspects while detained together in a police cell, invoking Articles 5, 6, 8 and 13 of the Convention.

Article 5 § 1 provides as relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;...”

Article 6 § 1 provides as relevant:

“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. ...”

Article 8 provides:

“1. Everyone has the right to respect for his private and family 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 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.”

Article 13 provides:

“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.”

1. Concerning the complaints about the covert taping of conversation raised under Articles 8 and 13, the Government admits that there has been a breach, referring to the domestic findings of a lack of legal basis for the measures and to the Court’s judgments in similar cases ( Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V, and P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001-IX).

Having regard to the applicant’s complaints and the parties’ submissions, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. This part of the application cannot 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. Insofar as the applicant invokes Article 6 of the Convention with regard to the use of the tapes at his trial, the Government submit that the domestic courts considered with care whether the statements covertly recorded were admissible as evidence, in particular whether any unfairness would flow from the admission. Both the trial judge and the Court of Appeal found no such unfairness, noting inter alia that there was no question of oppression or entrapment, the crimes were very serious, the contents of the tapes were “clearly highly relevant” and the police were acting in good faith and in a reasonable and proportionate response to a very serious threat to the safety of the public. The judge gave clear warnings to the jury as to how to approach the tapes and it would have been open to the applicant to challenge their reliability or quality as evidence.

The applicant submits that the recordings had been made in breach of domestic law (PACE) and Article 8, and included a degree of subterfuge, if not trickery, as part of a deliberate strategy. It was irrelevant that the police were acting in good faith where they deliberately carried out a plan to breach an individual’s rights and created circumstances where the normal safeguards covering detention and interview were circumvented. He relies in particular on Allan v. the United Kingdom (no. 48539/99, ECHR 2002-VIII, § 50), arguing that the police actions effectively undermined the applicant’s choice as to whether to speak or remain silent to police questioning. As the evidence was obtained by unlawful procedures and the admissions followed a number of interviews designed to produce discussion between the defendants, he claimed that there had been a breach of Article 6 of the Convention.

The Court reiterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see Schenk v. Switzerland , judgment of 12 July 1988, Series A no. 140, §§ 45-46, and, for a more recent example in a different context, Teixeira de Castro v. Portugal , judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, § 34). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence, such as unlawfully obtained evidence, may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged ‘unlawfulness’ in question and, where violation of another Convention right is concerned, the nature of the violation found.

In the above-mentioned Schenk case, in concluding that the use of the unlawfully obtained recording in evidence did not deprive the applicant of a fair trial, the Court noted, first, that the rights of the defence had not been disregarded: the applicant had been given the opportunity, which he took, of challenging the authenticity of the recording and opposing its use, as well as the opportunity of examining the witness who made the recording and summoning the police inspector responsible for instigating the making of the recording. The Court further “attach(ed) weight to the fact that the recording of the telephone conversation was not the only evidence on which the conviction was based” (§ 48 of that judgment). More recently, the Court has applied these principles in the case of Khan v. the United Kingdom (cited above, §§ 34-40) and found that the use at trial of recordings of the applicant’s conversations was not contrary to the requirements of Article 6 § 1 notwithstanding that they were the only evidence against the applicant and that they had been obtained in circumstances where the Court had found, under Article 8 of the Convention, that the surveillance measures had not been “in accordance with the law”. The Court emphasised in that case the importance of procedures making due allowance for testing the reliability of, and fairness in using, materials obtained in this manner.

In the present case, the applicant asserts that the blatant disregard of his Article 8 rights as well as the provisions of PACE rendered the use of the material unfair. The Court notes that there are no findings by the domestic courts of any unlawfulness or failure to comply with the requirements of PACE. Though the trial judge found that the police had not operated in conformity with the Home Office Guidelines in one aspect, it is not argued that this rendered the police actions unlawful. In any event, the Court of Appeal considered that the trial judge had been overly rigorous in his assessment on the point and was of the view that the police had been justified in applying the measures on the basis that normal policing means had not worked and would not work in the future. While the applicant also claims that the tapes were obtained by subterfuge or possibly trickery, the Court does not find any element of coercion or oppression inducing the applicants to break their silence as occurred in Allan v. the United Kingdom , no. 48539/99, ECHR 2002-IX, § 52). It is apparent however that the trial judge and the Court of Appeal acknowledged that the tapes had been obtained in circumstances interfering with the applicant’s right to private life and, as in the Schenk and Khan cases, the existence of fair procedures to examine the admissibility and test the reliability of the disputed evidence takes on importance.

The Court recalls in that regard that the applicant’s counsel challenged the admissibility of the tapes in a voir dire . He was able to put forward arguments to exclude the evidence as unreliable, unfair or obtained in an oppressive manner. The judge, after due consideration of the issues, admitted the evidence and the applicant remained entitled to challenge it before the jury. The Court considers that there was no unfairness in leaving it to the jury, on the basis of a conscientious summing-up by the judge, to decide where the weight of the evidence lay. Furthermore, the judge’s approach was reviewed on appeal by the Court of Appeal which found that he had taken into account all relevant matters. At each step of the procedure, the applicant had therefore been given an opportunity to challenge the reliability and quality of the evidence based on the tapes.

The Court is satisfied in the circumstances that in this respect the applicant’s trial and appeal satisfied the requirements of Article 6 § 1 of the Convention. It would observe that the use at trial of material obtained without a proper legal basis or through unlawful means will not generally, without more, of itself offend the standard of fairness imposed by Article 6 § 1 where proper procedural safeguards are in place and the nature and source of the material is not tainted, for example, by any oppression, coercion or entrapment which would render reliance on it unfair in the determination of a criminal charge (see the above-mentioned Schenk and Khan judgments; also P.G. and J.H. v. the United Kingdom , cited above). The obtaining of such information is rather a matter which calls into play the Contracting State’s responsibility under Article 8 to secure the right to respect for private life in due form.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

3. As regards the applicant’s complaints under Article 5, the Court observes that he claims that his detention was effected for underhand purposes (namely, to record incriminating statements between the accused in the police cells). These arguments were considered by the trial judge and the Court of Appeal, who took the view that the applicant was suspected of participation in criminal offences and that his arrest was a bona fide part of the investigation. It is not disputed that the applicant’s arrest was lawful under domestic law.

In the circumstances, the Court considers that the applicant’s arrest and detention may be regarded as falling within Article 5 § 1 (c). It is not persuaded that measures implemented by the police to tape the applicant’s conversations with other suspects in a police cell rendered his detention over that period either unlawful in domestic terms (such would have formed the basis of a claim in tort for wrongful arrest or false imprisonment) or arbitrary for the purposes of Article 5 § 1. The issue of covert taping during that detention falls more appropriately to be dealt with under Article 8 (see Perry v. the United Kingdom, no. 63737/00 (dec.) 26 September 2002, where the applicant was brought to a police station to be covertly video’ed for identification).

It follows that this complaint must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

B. The right to silence

Insofar as the applicant complains under Article 6 § 1 of the Convention that the judge misdirected the jury concerning adverse inferences to be drawn from silence, the Government submitted that the judge had complied with the spirit of the specimen direction. It was not relevant that he did not state that no inference could arise in the absence of a case to answer as there plainly was a case to answer on all counts. There was ample evidence to convict the applicant such that the failure to direct the jury that they could not convict on the basis of the inference alone was also of no real significance. Nor had the applicant given any explanation for his failure to give evidence. The matter was reviewed by the Court of Appeal, which found that the judge’s summing-up had not rendered the convictions unfair.

The applicant submits that the summing-up in this case was so confused and confusing that the overwhelming likelihood was the jury would have been misdirected. Since the requirements of section 35 had not been complied with, it was overly pragmatic to claim that it would not be unfair to hold his silence against him. Nor did the fact that there was strong evidence against the defence, even if true, absolve a court from giving a proper direction. That approach flew in the face of the Court of Appeal’s previous judgments in this area.

The Court recalls that in its Condron v. the United Kingdom judgment (no. 35718/97, ECHR 2000-V, §§ 56-57) it confirmed in line with its earlier John Murray v. the United Kingdom judgment ( Reports 1996-I) that the right to silence is not an absolute right. Accordingly, the fact that a trial judge leaves a jury with the option of drawing an adverse inference from an accused’s silence either, as in the instant case, during police interview or during his trial cannot of itself be considered incompatible with the requirements of a fair trial.

The Court further stressed in its Condron judgment that since the right to silence, like the privilege against self-incrimination, lay at the heart of the notion of a fair procedure under Article 6, particular caution was required before a domestic court could invoke an accused’s silence against him. Thus it would be incompatible with the right to silence to base a conviction solely or mainly on the accused’s silence or on a refusal to answer questions or to give evidence himself. Nevertheless, it is obvious that the right cannot and should not prevent that the accused’s silence, in situations which clearly call for an explanation from him, be taken into account in assessing the persuasiveness of the evidence adduced by the prosecution ( ibid .).

For the Court, whether the drawing of adverse inferences from an accused’s silence infringes Article 6 is a matter to be determined in the light of all the circumstances of the case, having regard to the situations where inferences may be drawn, the weight attached to them by the national courts in their assessment of the evidence and the degree of compulsion inherent in the situation ( ibid. ). Of particular relevance are the terms of the trial judge’s direction to the jury on the issue of adverse inferences.

Turning to the facts of this case, the Court observes that the applicant was represented at his trial and that the trial judge verified from his counsel that he had been advised that if he did not give evidence the jury might draw inferences from that failure. There is no indication therefore on the facts of the case that the applicant was unaware of the consequences or did not make a free, informed decision.

As to the trial judge’s direction, the Court notes the finding of the Court of Appeal that this part of the summing-up was undeniably deficient. In particular, the relevant passage was brief and confusing, the trial judge directing the jury concerning the applicant’s silence at trial, breaking off the direction with an apology to the jury for misleading them, addressing the question of the applicant’s silence during police interviews, and then repeating his direction on the issue of silence at trial.

The Court, however, observes that, as regards the applicant’s silence during police interviews, the trial judge in fact directed the jury that they should not hold his silence or refusal to answer questions against him and that his silence could not by itself provide any additional support for the prosecution’s case. The present case may be distinguished in this respect from the Condron case, in which the jury were directed that they might draw inferences from the failure of the accused to mention certain matters during the course of police interviews and in which the judge’s direction to the jury contained a significant omission, acknowledged by the Court of Appeal, in that it failed properly to deal with the applicants’ explanation for their silence.

As regards the applicant’s silence at trial, the Court observes that the trial judge directed the jury – and repeated his direction – that the fact that the applicant had not given evidence meant that there was “no evidence from him to undermine, contradict or explain the prosecution case” and that this was a matter which the jury “may take into account.” The Court notes that the judge did not direct the jury that they could draw adverse inferences from the applicant’s failure to give evidence. Moreover, the formula used by the trial judge, to the effect that the jury might “take account” of the fact that the applicant’s failure to give evidence meant that there was no evidence from him to “undermine, contradict or explain” the prosecution case, corresponded closely to the wording in the first part of the relevant specimen direction (see part 4 of the Relevant domestic law and practice above).

It is true that, as pointed out by the Court of Appeal, the trial judge did not use the opening words of the specimen direction by telling the jury in terms that it was the applicant’s right to remain silent and that the jury must not assume guilt just because he had not given evidence, since his failure to do so could not, on its own, prove guilt. However, as the Court of Appeal further noted, the trial judge had, immediately before directing the jury on the effect of the applicant’s failure to give evidence, explained that an accused was entitled in effect to put the prosecution to proof of the charges brought and was free to take no part in the case at all – a direction which reflected the spirit if not the letter of the direction. The Court finds nothing in the trial judge’s direction which left the jury at liberty to convict the applicant solely or mainly on the strength of his failure to give evidence at trial.

The Court, like the Court of Appeal, further attaches some importance to the fact that, despite its technical deficiencies, no member of the Bar present during the summing-up made any complaint as to the manner in which the trial judge had directed the jury on the issue or invited the judge to correct the direction.

In these circumstances, the Court concludes that the trial judge’s direction did not give rise to any risk of adverse inferences being drawn from the applicant’s failure to give evidence or otherwise lead to unfairness in the determination of the criminal charges against the applicant. It finds no appearance of a violation of Article 6 § 1 of the Convention and this application must therefore be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the interference with his private life arising from the covert taping and the lack of remedy therefor;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti Pellonpää Registrar President