FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 15848/03 by Mark CRONIN against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 January 2004 as a Chamber composed of:

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mrs E. Fura-Sandström , judges , and Mr M. O’Boyle, Section Registrar ,

Having regard to the above application lodged on 8 May 2003,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mark Cronin, is a United Kingdom national, who was born in 1956 and lives in Sheffield. He is represented before the Court by Mr P. Mahy , a lawyer practising in Sheffield.

A. The circumstances of the case

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

On  21 November 2001 a warrant to search the applicant’s home was granted by justices sitting at Sheffield Magistrates’ Court under, inter alia , section 23 (3) of the Misuse of Drugs Act 1971. The warrant authorised a search for cannabis and associated drug paraphernalia. It was granted on the basis of an Information dated 20 November, sworn by police constable Frost, which set out the following grounds for the application:

“In October/November 2001, the police were contacted by an anonymous male stating that they had witnessed various persons visiting the target address at all times of the day, both on foot and in vehicles. These persons were unknown to the source but only visited the target premises for a matter of minutes before leaving. It has been stated that the premises were involved in the supply of cannabis.

The source has since contacted the police and confirmed that the activity is constant.

This same unregistered source has contacted the police on several occasions and has supplied reliable information.

Enquiries with the council reveal that [the applicant] is the tenant of the semi-detached property and they have also received complaints in relation to vehicles visiting the address in the summer of 2001 by local residents.

The vehicles, which are visiting the address on a regular basis, are used by the local drug fraternity who have previous criminal convictions for possession of cannabis.”

The Information went on to outline why alternative methods of enquiry were considered unsuitable and why the search was necessary. It stated:

“A search warrant is considered to be a proportionate response”.

The warrant was executed on 29 November 2001. Eight police officers searched the applicant’s home for forty five minutes, during which time the applicant and his wife were present. No items were found and no further action was taken against the applicant.

The applicant issued judicial review proceedings in March 2002, alleging that the failure of the justices to give reasons for their decision or to make a record of the hearing at which the warrant was granted meant that there were no adequate or effective safeguards against abuse of the warrant procedure. He submitted that the information supplied to the justices was ambiguous and inconsistent; for example because the “anonymous” male was also a “source” known to the police, and because the statement that the premises were involved in the supply of cannabis was merely an unattributed assertion. Moreover, the source of the statement about the use of the vehicles by the local “drug fraternity” was unclear.

Permission to apply for judicial review was granted on 10 May 2002. Witness statements were served from the police officer, the two lay magistrates and the legal adviser who were at the hearing on 21 November 2001. The police officer made two statements, the second of which outlined police concerns that, as applications for warrants were often based on confidential information, recording of the evidence or the justices’ reasons at the hearing of an application for a warrant could have a severe impact on police effectiveness. As to the particular application, the officer recalled being asked various questions by the justices about the vehicles mentioned in the Information and the geographical layout of the area.

The legal adviser to the justices, although unable to remember the specific case, gave details in his statement of his “invariable practice” when dealing with applications for warrants. In particular, he stated that he would draw the justices’ attention to the relevant statutory requirements and if any matters arose during the application which did not appear within the body of the Information, he would direct the justices to endorse those matters on the Information. In general, he asserted that the Information itself became the written record of evidence, together with any additional comments noted as a result of the justices’ questions to the constable. Taking a full note of the evidence would therefore simply be to restate the facts already set out in the Information and serve no useful purpose.

In the Divisional Court’s judgment on 20 November 2002, the Lord Chief Justice, dismissing the application and endorsing the views of the legal adviser to the justices, said:

“23. The evidence that exists in this case, as it seems to me, shows that the safeguards which the statute rightly requires and which article 8 makes necessary, which would also be required in the appropriate circumstances by article 6, were fully complied with. In considering compliance with article 8 and article 6 the facts of the particular case will in the end always be decisive. When justices accept an information as containing all the material upon which they rely as satisfying them ... it is unreasonable to require them to make a note. If a particular matter is elicited in the course of questioning the deponent who is seeking the warrant, then ... it would be desirable to make a note of that matter, not only for the benefit of any subsequent citizen who wished to challenge the legality of the warrant, but also to protect the justices and police from unwarranted allegations.”

The Lord Chief Justice went on to say that, in the applicant’s case:

“The material upon which the warrant was issued is clearly contained in the information and the basis on which the warrant was issued is obvious without any need for the justice merely to repeat that he is satisfied as required by section 23 of the 1971 Act. To require the justice to set out that he was so satisfied would serve no purpose whatsoever.”

The Divisional Court referred with approval to the prescribed form in which the Information was contained, noting that it appeared to have been carefully drafted with Articles 6 and 8 of the Convention in mind. The court concluded that, whilst an exceptional case would have to be considered on its merits, in the ordinary case it would be unreasonable to require anything additional to the Information itself, which the person affected ought to be able to obtain. The court refused permission to appeal, as did the Court of Appeal itself on 23 December 2002.

B. Relevant domestic law and practice

Section 15 of the Police and Criminal Evidence Act 1984 (“PACE”) provides:

“ Search warrants-safeguards . (1) This section and section 16 below have effect in relation to the issue to constables under any enactment, including an enactment contained in an Act passed after this Act, of warrants to enter and search premises; and an entry or search of premises under a warrant is unlawful unless it complies with this section and section 16 below.

(2) Where a constable applies for any such warrant, it shall be his duty-(a) to state-( i ) the ground on which he makes the application; and (ii) the enactment under which the warrant would be issued; (b) to specify the premises which it is desired to enter and search; and (c) to identify, so far as is practicable, the articles or persons to be sought.

(3) An application for such a warrant shall be made ex parte and supported by an information in writing.

(4) The constable shall answer on oath any question that the justice of the peace or judge hearing the application asks him.

(5) A warrant shall authorise an entry on one occasion only.

(6) A warrant-(a) shall specify-( i ) the name of the person who applies for it; (ii) the date on which it is issued; (iii) the enactment under which it is issued; and (iv) the premises to be searched; and (b) shall identify, so far as is practicable, the articles or persons to be sought.

(7) Two copies shall be made of a warrant.

(8) The copies shall be clearly certified as copies.”

Section 16 of PACE deals with the procedure for the execution of a warrant.

Code B of PACE, set out under section 66, includes provision that an application for a warrant should not be made on the basis of uncorroborated anonymous information.

Section 23 (3) of the Misuse of Drugs Act 1971 provides, as relevant:

“ If a justice of the peace ... is satisfied by information on oath that there is reasonable ground for suspecting- (a) that any controlled drugs are, in contravention of this Act or of any regulations made thereunder, in the possession of a person on any premises; ... he may grant a warrant authorising any constable acting for the police area in which the premises are situated at any time or times within one month from the date of the warrant, to enter, if need be by force, the premises named in the warrant, and to search the premises and any persons found therein ...”

COMPLAINTS

The applicant complains under Article 8 of the Convention about the lack of written reasons for the issue of the search warrant and/or a full record of the hearing. In the absence of such a record and given the ambiguity and inconsistencies on the face of the Information, it was not possible to ascertain what actually took place at the hearing at which the warrant was issued and there were thus no adequate safeguards against abuse of the process.

He also complains under Article 6 about the lack of reasons for the grant of the warrant and under Article 13 that there was no remedy for the alleged breach.

THE LAW

1. The applicant complains about the search of his home by police. He relies on Article 8 of the Convention which provides, as relevant:

“1. Everyone has the right to respect for his private ... 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 Court considers, on the basis of its case-law, that the search of the applicant’s home clearly involved an interference with his Article 8 rights (see, for example, Niemietz v. Germany , judgment of 16 December 1992, Series A no. 251 ‑ B; Chappell v. the United Kingdom , judgment of 30 March 1989, Series A, no. 152-A; Keslassy v. France , (dec.), no. 51578/99, 8 January 2002). The warrant was issued pursuant to the statutory provisions in section 23 of the Misuse of Drugs Act 1971 and section 15 of the Police and Criminal Evidence Act 1984. The Court finds that it was issued “in accordance with the law” and moreover that it pursued the legitimate aim of crime prevention.

The main issue in the case is whether the interference was “necessary in a democratic society”. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued; in determining whether an interference  is “necessary in a democratic society”, the Court will take into account the margin of appreciation to be afforded to the Contracting States ( Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, pp. 31-32, § 67)

Where States consider it necessary to resort to measures such as searches of residential premises in order to obtain evidence of offences the Court will assess whether the reasons adduced to justify such measures were relevant and sufficient and whether the proportionality principle has been adhered to (see Funke v. France , judgment of 25 February 1993, Series A no. 256 ‑ A). In particular the Court will consider whether there were sufficient procedural safeguards to prevent any abuse or arbitrariness.

The applicant complains that the existing procedure is inadequate to guard against the danger that the warrant was not issued on proper grounds and that the procedure does not therefore provide a sufficient protection against the potential for abuse. He submits that the person affected should be able to establish why the warrant was issued, whether there is a case to apply to set it aside on the basis of lack of grounds or material non-disclosure and whether the justices have complied with the statutory requirements. In the absence of reasons and a full record he submits that it is not possible to ascertain whether the procedure has been properly complied with.

The Court must consider the particular circumstances of each case in order to establish whether the state’s interference was proportionate, (see, for example, Camenzind v. Switzerland , judgment of 16 December 1997, Reports of Judgments and Decisions 1997 ‑ VIII, § 45). In the Funke and Camenzind cases (cited above), the Court was particularly concerned about the absence of a judicial warrant. However, whilst a highly relevant consideration, the fact that an application for a warrant has been subject to judicial scrutiny will not in itself necessarily amount to a sufficient safeguard against abuse (see Niemietz v. Germany , cited above, which concerned the search of a lawyer’s office). Rather, the Court must examine the particular circumstances and evaluate whether the legal framework and the limits on the powers exercised were an adequate protection against arbitrary interference by the authorities.

The Court notes that the search in the present case was carried out under a warrant issued by lay justices who were required by law to be satisfied that there were reasonable grounds for suspecting that the applicant was in possession of a controlled drug. The search was limited in scope to one occasion within a month of the issue of the warrant. The basis for the “reasonable suspicion” requirement was set out in the Information laid before the justices, on a prescribed form which drew attention to the need to assess the proportionality of the measure sought. The applicant complains nonetheless that he could not be satisfied, for example, that the justices had made any enquiry about the reliability of the “source” referred to, or of the information the source had supplied. The statement that the premises were involved in the supply of cannabis was unattributed and the source of the statement about the association of vehicles with members of the local “drug fraternity” was unclear.

It was not, however, a situation in which there was any suggestion that the justices had in fact based their decision on material which was not apparent on the face of the Information, or indeed that anything was withheld from them. To the extent that there was ambiguity in the language of the Information, the Court does not consider that it was sufficiently unclear so as to hamper the applicant’s ability to challenge the lawfulness of the decision. It is clear from the witness statements provided in the course of the domestic proceedings that questions were asked of the constable by way of clarification. However, in the circumstances of this case, it is not apparent that a verbatim record of the particular questions asked could have assisted the applicant any further in challenging the lawfulness of the search.

The Court considers that in this case the Information laid before the justices can be regarded as containing all the relevant material on which they based their decision and that the applicant was in a position to assess whether the procedure for the grant of the warrant had been properly adhered to, given that he had access to the Information. As the Lord Chief Justice observed, giving judgment in the Divisional Court, it may well be that in an appropriate case, additional reasons, or a fuller note of the questions asked of the constable by the justices would be necessary to satisfy the procedural requirements, but the Court is not persuaded that the lack of  further reasoning in this case deprived the applicant of the due protection of his interests.

The Court concludes that the search carried out in this case was not disproportionate to the legitimate aims pursued and that adequate safeguards attached to the procedure. The interference can accordingly be regarded as “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention.

It follows that the applicant’s complaints under Article 8 must be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complains that the lack of reasons for the justices’ decision amounts to a breach of Article 6, which provides:

“In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

He further complains about the lack of an effective remedy and invokes Article 13, which 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.”

The Court does not consider that the applicant’s complaint under Article 6 raises any issues which require separate consideration from the complaint under Article 8. The Court further recalls that Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52).

The Court has found that the applicant’s complaints under Article 8 are manifestly ill-founded. For similar reasons, the applicant does not have an arguable claim and Article 13 is therefore inapplicable to his case. It follows that this part of the application is also manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Michael O’B oyle Matti Pellonpää    Registrar President