FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 1303/02 by Peter James LEWIS against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 8 July 2003 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mrs V. Strážnická , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , Mr J. Borrego Borrego , judges , and Mr M. O’ Boyle , Section Registrar ,

Having regard to the above application lodged on 4 April 2001,

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 Peter James Lewis, is a United Kingdom national, who was born in 1944 and is currently serving a sentence of imprisonment in HMP Maidstone. He is represented before the Court by Ms A. Bromley, a solicitor practising in Nottingham.

A. The circumstances of the case

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

The applicant and his wife frequently travelled between various European countries. On 16 April 1997, the Chief Constable of South Wales authorised the installation of covert recording devices at the applicant’s cottage and this was carried out on 23 April 1997. Authority for a further 28 days’ surveillance was granted on 14 May 1997.

Over 160 hours of tapes were obtained between the period of 25 April to 9 June 1997, on which latter date the applicant and his wife were arrested. The transcripts of the taped conversations made up the bulk of the case against the applicant.

At trial, the applicant’s defence alleged that the recorded discussions, which occurred while he and the others concerned were under the influence of drugs, were “drug-crazed ramblings” and challenged their admissibility. A “ voir dire ” took place from 28 May to 1 June 1998, during which the defence made submissions concerning the procedure for authorisation of the surveillance and seeking inter alia to exclude irrelevant or prejudicial material under sections 78 of the Police and Criminal Evidence Act 1984 (PACE). By agreement, the transcript evidence was reduced from five to two files and an agreed schedule was adopted by all counsel concerning the occasions on which the conversations occurred at the same time as drug taking. In summing up to the jury at the conclusion of the trial, the judge directed their attention to the fact that the supposedly incriminating statements taped at the cottage were or may have been the product of the participants’ intoxicated state and that it was for them to assess whether despite the drugs the defendants were expressing rational, genuine thoughts, real ideas, plans or arrangements.

On 15 June 1998, the applicant was convicted of charges inter alia of conspiracy to import controlled drugs and possession of controlled drugs in connection with importation of marijuana and cocaine from overseas. He was sentenced to a total of fifteen years’ imprisonment. A confiscation order was imposed on him on 24 September 1998 in the sum of 50,169.18 pounds sterling (GBP).

On 10 November 1999, a single judge of the Court of Appeal refused an extension of time to appeal against sentence and refused leave to appeal against conviction, noting that no satisfactory or sufficient reason had been given for the 11 month delay in lodging the application. His renewed application was refused by the Court of Appeal on 17 October 2000. Mr Justice Silber considered in giving judgment that there was no justification for extending the time for appealing and also stated:

“We also have had an opportunity of considering the merits of the appeal and the basis of the application is that the leading counsel instructed on behalf of the applicant failed to act in the applicant’s best interests. We have had the advantage of studying those grounds together with an answer to those grounds by leading counsel and the comments of his junior and his instructing counsel. Having considered all matters carefully, we do not believe that there are any grounds for believing that this conviction is unsafe in any way... In those circumstances we refuse the application.”

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) 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.

In each case, the authorising officer should satisfy himself that the following criteria are met: (a) the investigation concerns serious crime; (b) normal methods of investigation must have been tried and failed, or must from the nature of things, be unlikely to succeed if tried; c) there must be 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 be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence.

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

Section 78(1) of PACE 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.”

In R. v. Khan [1996] 3 All ER 289, the House of Lords held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge’s discretion to admit or exclude such evidence under section 78 of PACE. The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of Article 8 of the Convention was admitted in that case.

3. Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995

Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal:

“(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b) shall dismiss an appeal in any other case.”

The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham , in R. v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said:

“This new provision ... is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.”

3. The Police Complaints Authority

The Police Complaints Authority was created by section 89 of PACE. It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges.

COMPLAINTS

The applicant complains under Article 8 of the Convention that the covert recording of his conversations was not “in accordance with the law” as it had no statutory basis.

He complains under Article 6 of the Convention that the evidence against him was obtained by deception and that this undermined the fairness of the proceedings and violated his right not to incriminate himself.

He complains, finally, under Article 13 of the Convention that he had no effective remedy for the breaches of his rights, as outlined in the Khan v. the United Kingdom case (no. 35394/97, ECHR 2000-V).

THE LAW

1. The applicant complains of the installation of a covert surveillance device in his home, invoking Articles 8 and 13 of the Convention which provide as relevant:

Article 8:

“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 ... public safety ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.”

Article 13:

“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 Government conceded, in the light of Khan v. the United Kingdom (cited above), that the installation of a surveillance device in the applicant’s home by the police amounted to an interference with the applicant’s right to private life guaranteed by Article 8 and that these measures were not “in accordance with the law” for the purposes of Article 8 § 2. They also accepted that at the relevant time there was no effective  remedy as required by Article 13 in respect of this breach.

Having regard to the applicant’s complaints and the Government’s concession, 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. The applicant also complains about the use of the taped evidence at his trial, invoking Article 6 § 1 of the Convention which provides:

“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 applicant submitted that the use of the taped evidence obtained in breach of his Article 8 and 13 rights deprived him of a fair trial, pointing to the fact that it included conversations between husband and wife and times when they were clearly under the influence of drugs, rendering their use unfair (citing Allan v. the United Kingdom , no. 48539/99, ECHR 2002-VIII ). Taping of this material while they were under the influence of drugs also infringed the rule of self-incrimination. He also complains that the concession of the breach of Articles 8 and 13 should have been made to the trial judge as relevant to his ruling on the admissibility of the evidence.

The Court re-iterates 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 and 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 – for example, 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 and its use attended by appropriate procedural safeguards for the defence.

The Court has in a number of similar cases observed that the use at trial of material obtained without a proper legal basis or through unlawful means will not generally offend the standard of fairness imposed by  Article 6 § 1 where such 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 also Schenk and Khan, cited above, and P.G. and J.H. v. the United Kingdom , no. 44787/98, ECHR 2001-IX; mutatis mutandis , Allan 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.

In the present case, the evidence against the applicant was obtained by use of a covert device planted in his cottage. He challenged its admissibility at his trial, in a voir dire , where his counsel argued inter alia that the evidence was not reliable as the persons taped were under the influence of cocaine and cannabis and its use unfair as it had been obtained by methods akin to a trick. However while the trial judge refused to rule the material inadmissible, it appears that counsel came to an agreement which led to the exclusion of much prejudicial material and the transcripts remaining were annotated to show at what points the participants were taking drugs. At the end of the trial, the judge made it clear to the jury that they had to consider the reliability of the statements made by the defendants when apparently under the influence of drugs. It would also have been open to the applicant to appeal to the Court of Appeal alleging that the judge erred in his rulings or directions concerning the evidence. However, it appears that he failed properly to comply with the time-limits without good reason and, in any event, was relying on the alleged incompetence of his counsel as the main ground of appeal.

Furthermore, the Court does not consider that the way in which the police obtained the taped conversations has been shown to raise any issues of oppression or trickery inducing the applicant to incriminate himself. It is not persuaded by the applicant that this case may be regarded as analogous to Allan v. United Kingdom , cited above, where a breach of Article 6 § 1 arose from the use of evidence obtained by an informer coached by the police to gain the applicant’s confidence and obtain admissions from him between police interrogations in which tactics were employed to rattle him. This had been found in the circumstances to undermine the “ voluntariness ” of the admissions and as having been obtained in defiance of the will of the applicant (at § 52). In this case the fact that the applicant and his wife were taped does not per se disclose any unfairness or trickery and it has not been shown that the use of the tapes was in breach of any special status attributed to confidential marital communications in domestic law. The fact that during the recordings the applicant and the others, who were not subject to any coercion or inducement by the police or their agents as to their subject of conversation, happened at times to be taking drugs of their own free choice does not disclose any infringement of the privilege against self-incrimination but rather raises issues of reliability and credibility of the statements made which were not unreasonably left to the assessment of the jury.

In the circumstances therefore, the Court considers that at each step of the procedure the applicant was given an opportunity to challenge the reliability and significance of the recorded evidence. The absence of a concession by the authorities during the trial of a breach of Article 8 of the Convention cannot be regarded as materially affecting the courts’ approach to the evidence. Nor has its use has not been shown to infringe the fairness requirements imposed by Article 6 § 1 of the Convention.

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.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the installation of a covert surveillance device in his cottage ;

Declares the remainder of the application inadmissible.

Michael O’ Boyle Matti P ellonpää Registrar President