FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 50015/99 by James Robert HEWITSON against the United Kingdom

The European Court of Human Rights (Fourth Section) , sitting on 22 October 2002 as a Chamber composed of

Mr M. Pellonpää , President , Sir Nicolas Bratza , Mr A. Pastor Ridruejo , Mrs E. Palm , Mr M. Fischbach , Mr J. Casadevall , Mr S. Pavlovschi , judges , and Mr M. O’Boyle , Section Registrar ,

Having regard to the above application lodged on 16 March 1999,

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

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr James Robert Hewitson, is a United Kingdom national, who was born in 1948 and currently serving a prison sentence at HMP Verne, Dorset. He is represented before the Court by Mr B. Sharman, a solicitor practising in Bournemouth.

A. The circumstances of the case

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

The applicant owned a garage in Dorset and had business connections in Spain. He had two Mercedes cars each of which had a false compartment in the fuel tank. The false compartments could hold up to 45 kilogrammes of cannabis resin. In 1994 and 1995 he was suspected by the Regional Crime Squad of being involved in drug trafficking. At the same time the Dorset police suspected him of being involved in the handling of stolen goods, including stolen vehicles.

On 22 February 1995 he was arrested by the Dorset police in relation to their suspicions of his handling stolen goods. Whilst he was in custody, a listening device was installed at his garage premises which remained there and active until 26 July 1995 when it was discovered.

On 30 December 1996 an indictment was signed charging the applicant with conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. The prosecution evidence against the applicant relied on tape recordings made from the listening device which had been installed by the police at the applicant’s garage premises. It was acknowledged by the prosecution that without the evidence from the tapes, there was no prima facie case against the applicant.

The applicant objected to the admission of the tape recordings as evidence in his trial. He argued that the arrest on 22 February 1995 had been a wrongful arrest, staged merely to facilitate the planting of a listening device. He also argued that the original grant of authority and the renewal of authority for the placement of the listening device were not in compliance with the Home Office Guidelines, which governed the use of surveillance equipment by the police at the relevant time. On these grounds the applicant submitted that his prosecution ought to be stayed as an abuse of the process of the court, alternatively the tape evidence should be excluded under the provisions of section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). 

A preliminary hearing was held on the matter of the admissibility of the  tape recordings. His Honour Judge Pryor QC held on 8 July 1997 that he was satisfied that the original authority for the use of the surveillance equipment was properly granted and that there were proper grounds for renewal, though he made some criticism of the lack of documentation on the renewals and noted that there had been a technical infringement in that one renewal took place a day late. He also found that the arrest of the applicant on 22 February 1995 was lawful and that it was not bogus, satisfied from the evidence of the police officers concerned that they had been investigating the applicant for some time, that they considered that they had good grounds for arresting him and had the intention of pursuing the matter to prosecution. The later prosecution was discontinued not on police suggestion but on the advice of the Crown Prosecution Service. The judge concluded that the tapes were admissible as evidence and should not be excluded under section 78 of PACE.

Certain documents, or parts of documents, relating to the police applications for the warrant and the renewals were not disclosed to the defence. The prosecution made a number of ex parte applications to the trial judge asserting public interest immunity. The judge in his ruling on the voir dire also referred to these applications, noting that he had examined the material in question before upholding the applications and that he had kept the applications under review during the proceedings.

Following the admission of the tapes as evidence, the applicant pleaded guilty on 10 July 1997 to the charges of conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. On 5 September 1997 he was sentenced to five years’ imprisonment.

The applicant, having been given leave, appealed against his conviction. The Court of Appeal ruled on 24 September 1997 that, in the light of the applicant’s pleas of guilty, his convictions could not be regarded as “unsafe”. It referred to case-law concerning appeals of conviction following a change of plea, in particular the case of R. v. Chalkley [1988] 3 WLR 146, where Auld LJ said:

“The first and possibly determinative issue is whether the court can quash a conviction where the appellant has changed his plea to guilty because of the trial judge’s refusal to exclude the evidence which is so damning to his case that he and his advisers consider his conviction is inevitable.

... it is important to understand what was meant by a plea of guilty being ‘founded upon’ a ruling. There are two possibilities. The first is where, in the light of the admitted facts, the erroneous ruling left the defendant at trial with no legal basis for a verdict of not guilty...

The second and broader meaning of the expression ‘founded upon’ in this context is ‘influenced by’ – that is, where a plea of guilty was influenced by an erroneous ruling...

...

It is only where an erroneous ruling of law, coupled with the admitted facts made acquittal legally impossible that a plea of guilty can properly be said to have been ‘founded upon’ the ruling so as to enable a successful appeal against conviction. The fact that an erroneous ruling of law as to the admissibility of certain prosecution evidence drives a defendant to plead guilty because it makes the case against him factually overwhelming will not do. It does not make it impossible to maintain his innocence as a matter of law or of fact, it merely makes it harder.

...

In appeals against conviction following a plea of guilty, the somewhat mechanical test of whether a change of plea to guilty was ‘founded upon’ a particular feature of the trial, namely a wrong direction of law or material irregularity, gives way to the more direct question, whether, given the circumstances prompting the change of plea to guilty, the conviction is unsafe ... a conviction would be unsafe where the effect of an incorrect ruling on admitted facts was to leave an accused with no legal escape from a verdict on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of the ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgement of the truth of the facts constituting the offence charged.  

We qualify the above propositions with the word ‘normally’ because there remains the basic rule that the court should quash as unsafe a conviction where the plea was mistaken or without intention to admit the truth of the offence charged...”

Applying that approach in the applicant’s case, Lord Justice Kennedy stated:

“In Chalkley attention was also invited by the Crown to the fact that, following the change of plea, as in the present case, defence counsel had spoken in mitigation in terms which indicated that the defendants acknowledged their guilt of the offences charged against them. As the court said, had they wished to preserve their position, then it would have been open to them to maintain their plea of not guilty, if that was truly their stance, fought the case and in the event of conviction then sought leave to appeal. That they did not do in Chalkley . That they have not done in the present case... The essential point made by [applicant’s counsel] was that in the present case it was acknowledged by the Crown that if the evidence which came from the listening device were not to be admitted, then there was no prima facie case ... certainly against [the applicant].

We are wholly unable to see that that fact in any way affects the reasoning of this court in Chalkley . The reality is that after the ruling was made it was still open to the defendants, had they chosen, to continue to plead not guilty and to leave to the jury the issues which remained, namely the effect of the evidence which the judge had decided should be admitted. They chose not to do so because they came to the conclusion that if the evidence was admitted the case against them was factually overwhelming. Having arrived at that conclusion themeselves, they then accepted those facts which were essential in order to establish the guilt of the charge with which they were faced and admitted their guilt. They underlined their position by, through their counsel in mitigation, putting forward explanations for their conduct at the time when these matters were taking place...

In those circumstances ... it seems to us to be quite impossible to say that ... the conviction of [the applicant] ... is in any way unsafe. Accordingly ... the appeal must be dismissed.”

B. Relevant domestic law and practice

The Home Office Guidelines

Guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) 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 were 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 was good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; (d) the use of equipment was 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.

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

The Police and Criminal Evidence Act 1984

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.”

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.”

The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson [2000] 1 Criminal Appeal Reports 141 (Court of Appeal) (after the hearing of the applicant’s appeal), where he stated:

“The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done... If, on consideration of all the facts and circumstances of the case before it, the Court entertains real doubts whether the applicant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.”

This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson [2001] 1 Criminal Appeal Reports 8, where Lord Justice Mantell , delivering the judgment of the court, stated that:

“The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read:

‘Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’.”

Later in his judgment , Lord Justice Mantell stated that:

“We are satisfied that [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The E.C.H.R. is charged with inquiring into whether there has been a breach of a Convention right. This court is concerned with the safety of the conviction. That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the E.C.H.R. leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree.”

COMPLAINTS

The applicant complains under Article 8 of the Convention about the installation and use of a listening device at his work premises and the making of tapes. He complains under Article 6 that he was denied a fair trial as he did not have access to certain police documents regarding the renewal of authority for the surveillance. Finally he complains that the Court of Appeal, in declining to hear and determine the merits of his appeal, acted in breach of Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7.

THE LAW

1. The applicant complains about the use made of the information obtained by surveillance at his trial and the approach taken by the Court of Appeal on his appeal against conviction, invoking Articles 6 and 13 of the Convention and Article 2 of Protocol No. 7.

Article 6 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 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.”

Article 2 of Protocol No. 7 provides as relevant:

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

The parties’ submissions

The Government submitted that the requirements of Article 6 § 1 were met by the original trial ( voir dire ) process conducted by the trial judge. In the process, conducted properly and with great care by the trial judge over three weeks, live evidence was heard from numerous witnesses on the factual and legal issues and in his 51 page judgment , the trial judge gave very detailed reasons for ruling that the disputed evidence of the tape recordings was admissible. In particular, the arrest of the applicant was genuine and lawful, the breach of the Guidelines as regards the keeping of proper records was technical and did not disclose any abuse of process, the tape recordings amounted to confessions of serious crime and were not obtained under any form of pressure or coercion and there was no dispute about the content of the conversations. They submitted that this case could not be distinguished from that of Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V, where the Court previously held the use of such evidence at trial was not in breach of Article 6 of the Convention.

Though the Government did not consider that it was necessary to consider the appeal process as this only became relevant where it was necessary to cure a material regularity at trial, they submitted that in any event there was no right as such to an appeal and the United Kingdom was entitled to impose restrictions on the right of a defendant to pursue an appeal (in  particular where he has pleaded guilty at trial). In any event, the Government submitted that the Court of Appeal took into account considerations of fairness, considering that the questions of safety of a conviction and the fairness of the trial intruded upon one another. While a conviction could never be safe while there was a doubt about guilt, a conviction could still be unsafe even where there was no doubt about guilt but there had been some serious unfairness or irregularity in the trial process that could not be cured on appeal. After the voir dire , it had remained open to the applicant to maintain his plea of not guilty. The decision of the Court of Appeal which took into account the fact that the applicant had admitted his guilt in a voluntary, informed and deliberate manner in not reviewing the substance of his grounds of appeal did not disclose any unfairness.

The applicant submitted that the trial judge had erred in ruling after the voir dire that the evidence should be admissible. His conclusion that the applicant was not unlawfully arrested was entirely contrary to the evidence and unreasonable. The failure by the police to keep proper records of the renewals of the authorities for the continued use of the listening device also disclosed a misuse by the police of law enforcement powers. On the basis of both these matters, the bringing of the prosecution was an abuse of process. Notwithstanding however that he had a meritorious and arguable appeal,  the Court of Appeal failed itself to remedy the matter by quashing the conviction, adopting an approach in contravantion of Article 6 § 1 of the Convention. In particular, it relied on the precedent of R. v. Chalkley (cited above) which, he argued, imposed a restriction on the rights of individuals who had pleaded guilty by confining the right to appeal to very narrow circumstances.

The applicant submitted that as a result the Court of Appeal did not consider the substance or merits of his appeal, in particular the alleged improper admission of evidence or abuse of process. He was alleging that the trial judge’s ruling in the voir dire was wrong and that as his rights under Article 8 of the Convention had been breached the court should have stayed the prosecution as an abuse of process. He had a meritorious and arguable appeal but was prevented from obtaining an examination of his claims. As regarded his guilty plea, the prosecution maintained that the compartments in the Mercedes’ fuel tanks were to transport cannabis while the applicant had maintained that they were to transport valuables. The admission of the tapes provided an overwhelming case against him as the conversations referred to the transport and distribution of cannabis. By pleading guilty however, the applicant did not make any admission of fact, while his mitigation was merely a description of his position in an organisation on the premise that he was guilty of trafficking cannabis without his expressly admitting that he had been engaged in trafficking cannabis.

The Court’s assessment

(a) 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 (the 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, the Teixeira de Castro v. Portugal judgment of 9 June 1998, Reports 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. 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 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”.

This case presents strong similarities to that of Khan v. the United Kingdom , in that the evidence was obtained by covert surveillance measures. As in Khan , there is no indication that the taped admissions made by the applicant during conversations with his co-defendant were made involuntarily. Nor was there any entrapment or any inducement for the applicant to make such admissions. The applicant asserted that in this case, unlike Khan , the circumstances in which the evidence were obtained rendered the use of the material unfair. In particular the police had acted abusively in having him arrested on a pretext in order to install the listening device. The Court recalls however that the trial judge found that the arrest had in fact been lawful and that the breaches in the Guidelines had been technical, without any resulting unfairness to the applicant. The Court does not consider therefore that the way in which the police obtained the taped admissions has been shown to raise any issues of oppression or trickery or to impinge on the quality or reliability of the evidence.

While it may be noted that the contested material in the present case was in effect the only evidence against the applicant and that the applicant’s plea of guilty was tendered only on the basis of the judge’s ruling that the evidence should be admitted, this element is not a determining factor ( Schenk , pp. 19-22, § 28; Khan , § 37). Where the disputed material is acknowledged to be very strong evidence, and where there is no risk of it being unreliable, the need for supporting evidence is correspondingly weaker. The central question is rather whether the proceedings as a whole were fair, and, as in the Khan case, the existence of fair procedures to examine the admissibility and test the reliability of the disputed evidence takes on importance.

In that regard, the Court recalls that the applicant’s counsel challenged the admissibility of the recordings in a voir dire , and was able to put forward arguments to exclude the evidence as unreliable, unfair or obtained in an oppressive manner. The judge in a careful ruling however admitted the evidence.

Whereas the applicant in the Khan case also had the opportunity of challenging the use of the disputed surveillance material before the Court of Appeal and House of Lords, the Court of Appeal in the applicant’s case did not consider it necessary to address the applicant’s arguments on this aspect of the case. The applicant has argued that the Court of Appeal’s examination of his appeal was therefore fundamentally flawed since it would not look behind a guilty plea and paid attention to the narrow requirements of the “safety” of the conviction rather than the crucial principle of fairness in reviewing the role played by the taped evidence at his trial.

The Government submitted that the appeal process only became relevant where it was necessary to cure a material irregularity at trial, something which had not occurred in the present case. They further submitted that the Convention did not in any event guarantee a right to appeal and that a State which granted such a right was entitled to impose restrictions on the exercise of such right, in particular where a defendant had pleaded guilty at trial.

The Court does not find it necessary to examine these submissions of the Government in the present case, since the applicant’s complaint so far as it relates to the examination of his appeal by the Court of Appeal is in any event inadmissible for the following reasons.

While it is true that “safety” and fairness are not identical in their requirements ( Condron v. the United Kingdom , no. 35718/97, ECHR 2000-V, § 65) , the Court would agree with the dicta of the domestic courts which express the view that there is a certain overlap in practice (see Relevant and Domestic Law and Practice, and also C.G. v. the United Kingdom , no. 43373/98, judgment of 19 December 2001, § 36). Even though this position has been emphasised in decisions which occurred after the date of the applicant’s appeal,  it would note that the approach of the Court of Appeal did not automatically exclude examination of substantive grounds of appeal where an applicant had pleaded guilty. It did not apply where the plea of guilty was based on a mistake or was made without intention to admit the truth of the offence charged. Nor did it apply where the ruling which led to the guilty plea rendered it legally impossible for the defendant to defend himself, as opposed to making it evidentially harder.

In the present case, the Court of Appeal found no indication that the applicant’s guilty plea had been anything other than voluntary and informed, noting that in his plea in mitigation counsel accepted the facts that constituted the offence. The Court is not persuaded by the applicant’s assertion that his plea of guilty was made without express admission of involvement in drug trafficking. Furthermore, the judge’s ruling had not prevented the applicant from continuing to defend himself by, for example, disputing the relevance or significance of the tapes and leaving the decision to the jury, followed by an appeal to the Court of Appeal if he was convicted. Against that background, the Court does not consider that the Court of Appeal’s decision, which took into account the applicant’s guilty plea in concluding that there was no basis on which to examine the applicant’s complaints about his trial, revealed any unfairness to the applicant or deprived the appellate jurisdiction of an effective role in reviewing the trial procedures (see Chalkley v. the United Kingdom (dec.), no. 63831/00, 26 September 2002, unpublished).

It would appear to this Court that in the absence of any other challenge at trial to the credibility, relevance or strength of the taped evidence the applicant’s plea of guilty may reasonably have been taken as an admission of its reliability. Paying due regard to the quality of the evidence and the opportunity given to the defence to challenge the evidence, the use at trial of material obtained without a proper legal basis or lawful authority has been found by the Court on a number of occasions not to offend the standard of fairness imposed by  Article 6 § 1 (Schenk v. Switzerland, Khan v. the United Kingdom (both cited above), and P.G. and J.H. v. the United Kingdom , no. 44787/98, ECHR 2001-IX). The obtaining of information in such circumstances 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.

The Court concludes that the applicant was provided with a fair and effective opportunity to challenge the authenticity and use of the recording and that the role played at the applicant’s trial of the secretly taped material did not conflict with the requirements of fairness guaranteed 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.

(b) As regards the complaint raised under Article 13, the applicant complained that the “safety” test applied by the Court of Appeal failed to secure the quashing of a conviction following an unfair trial.

The Government disputed this argument.

Having regard to its decision on Article 6 § 1, the Court considers that it is not necessary to examine the case under Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see notably, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 32, § 88).

c. Insofar as the applicant invokes Article 2 of Protocol No. 7, the Court notes that the United Kingdom is not a Contracting Party to this Protocol. It follows that this complaint is incompatible ratione personae and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The applicant also complains under Article 6 of the Convention that he was denied access to police documents relating to the renewal of authority for the surveillance.

The Court observes that this material did not relate to any potential defence to the charges but, to the extent that it was relevant at all, concerned the conformity of the police procedures with the guidelines for granting of authority for surveillance operations. The judge examined the material in respect of which the prosecution requested non-disclosure and upheld the  public interest immunity claims, though he kept the applications under review as the proceedings continued. The material which was available was found to support criticisms of a lack of documentation and a technical breach in the lateness of a renewal application. However, the judge considered that these matters did not affect the fairness of admitting the taped materials in evidence. In the circumstances, the Court considers that the proceedings provided adequate safeguards to protect the interests of the accused and that the failure to disclose all the documents relating to the police warrant procedure did not deprive the applicant of a fair trial (see Jasper v. the United Kingdom [GC], no. 27052/95, §§ 51-58, and Fitt v. the United Kingdom [GC], no. 29777/96, §§ 44-50, ECHR 2000-II) .

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

3. The applicant complained about the installation by the police of, and recordings made by, a listening device at his work premises, invoking 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 ... public safety ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.”

The Government concede, in the light of Khan v. the United Kingdom (cited above) that the listening surveillance of the applicant by the police and the making of tapes 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.

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.

For these reasons, the Court unanimously

Declares the applicant’s complaints concerning the installation of a covert surveillance device and making of tapes admissible, without prejudging the merits of the case;

Declares the remainder of the application inadmissible.

Michael O’Boyle Matti Pellonp ää Registrar President