THIRD SECTION

FINAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 47114/99 by Sean Marc TAYLOR-SABORI against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 29 May 2001 as a Chamber composed of

Mr J.-P. Costa , President , Mr W. Fuhrmann , Mr L. Loucaides , Sir Nicolas Bratza , Mrs H.S. Greve , Mr K. Traja , Mr M. Ugrekhelidze , judges , and Mrs S. Dollé , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 1 October 1998 and registered on 26 March 1999,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the partial decision of 27 June 2000,

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 is a British national, born in 1962 and currently detained at HMP Lowdham Grange, Nottingham. He is represented before the Court by Mr A. Miles of Bobbetts Mackan , a firm of solicitors practising in Bristol. The respondent Government are represented by their Agent, Mr C.A. Whomersley of the Foreign and Commonwealth Office.

A. The circumstances of the case

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

Between August 1995 and the applicant’s arrest on 21 January 1996, he was the target of surveillance by the police. Using a “clone” of the applicant’s pager, the police were able to intercept messages sent to him. The pager system used by the applicant and intercepted by the police operated as follows: The sender, whether in the United Kingdom or overseas, would telephone the pager bureau in the United Kingdom via the public telephone network. The pager operator would key the message into a computer and read it back to the sender to confirm its accuracy. The computer message was transmitted via the public telephone system to the pager terminal, from where it was relayed by radio to one of four regional base stations and thence, again by radio, simultaneously to the applicant’s and the police’s clone pagers, which displayed the message in text.

The applicant was arrested and charged with conspiracy to supply a controlled drug. The prosecution alleged that he had been one of the principal organisers of the importation to the United Kingdom from Amsterdam of over 22,000 ecstasy tablets worth approximately GBP 268,000. He was tried, along with a number of alleged co-conspirators, at Bristol Crown Court in September 1997.

Part of the prosecution case against the applicant consisted of the contemporaneous written notes of the pager messages which had been transcribed by the police. The applicant’s counsel submitted that these notes should not be admitted in evidence because the police had not had a warrant under section 2 of the Interception of Communications Act 1985 (“the 1985 Act”) for the interception of the pager messages. However, the trial judge ruled that, since the messages had been transmitted via a private system, the 1985 Act did not apply and no warrant had been necessary.

The applicant pleaded not guilty. His defence was that he had known nothing about the conspiracy to import drugs. He claimed to have borrowed money from the owner of a night club in Amsterdam who frequently contacted him by pager regarding the repayment of the loan. The jury retired to consider their verdicts on the morning of Monday 29 September 1997. On Tuesday morning they put the following question to the judge:

“If a person was asked to go and pick up a package or parcel but then finds out it was drugs and says that he is not doing it but sends someone else to pick up the parcel but doesn’t tell them it’s drugs, then is that person involved in a conspiracy to supply drugs?”

The judge, having consulted the defence counsels, explained the law of conspiracy to the jury, concluding:

“If on the facts as you find them to be what [the applicant] did was intended to be in furtherance of the conspiracy the answer to your question is ‘Yes’”.

Twenty minutes later the jury convicted the applicant. He was sentenced to ten years’ imprisonment.

The applicant appealed against conviction and sentence. One of the grounds was the admission in evidence of the pager messages. The Court of Appeal, dismissing the appeal on 13 September 1998, upheld the trial judge’s ruling that the messages had been intercepted at the point of transmission on the private radio system, so that the 1985 Act did not apply and the messages were admissible despite having been intercepted without a warrant.

An additional ground of appeal against both conviction and sentence was that, in the light of the jury’s question, the factual basis on which the applicant was convicted was uncertain. The Court of Appeal rejected this ground, observing that there was ample evidence of the applicant’s knowing participation in the conspiracy and that, in framing his response to the jury’s question, the judge acted as requested by the applicant’s counsel.

B. Relevant domestic law and practice

By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence, unless the interception is carried out pursuant to a warrant issued in compliance with the Act.

At the time of the applicant’s trial there was no provision in British law governing the interception of communications on a private system.

Section 78(1) of the Police and Criminal Evidence Act 1984 (“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 the case of R v. Khan [1996] 3 All E R 289, the House of Lords examined, inter alia, the question of the weight to be given by a judge, under the common law or section 78(1), to Article 8 of the Convention when considering whether to exclude evidence collected through a covert listening device installed on private property. The court identified two issues in the circumstances of the case before it. The first was whether the evidence concerned was admissible at all. The House of Lords held that there was no right to privacy in English law and that, even if there were such right, the common law rule that relevant evidence which was obtained improperly or even unlawfully remained admissible, applied to evidence obtained by the use of surveillance devices which invaded a person’s privacy. The second issue was whether the evidence should nonetheless have been excluded by the trial judge in the exercise of his discretion at common law or under the powers conferred by section 78 of PACE. 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. The judge’s discretion had to be exercised according to whether the admission of the evidence would render the trial unfair, and the use at a criminal trial of material obtained in breach of the right to privacy enshrined in Article 8 did not mean that the trial would be unfair. On the facts, the House of Lords found that the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of Article 8, were not such as to require the exclusion of the evidence.

COMPLAINTS

The applicant complains under Articles 8 and 13 of the Convention that the interception of his pager messages by the police and subsequent reference to them at his trial amounted to an unjustified interference with his private life and correspondence which was not “in accordance with the law” and in respect of which there was no remedy under English law.

THE LAW

Article 8 of the Convention provides:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

The Government concede that the interception by the police of messages sent to the applicant’s pager was inconsistent with Article 8 in that it was not “in accordance with the law”, although they add that this should not be taken as any concession as to whether or not the action was otherwise justified in the circumstances.

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.”

The Government submit that this aspect of the applicant’s complaint is inadmissible because he has failed to exhaust the domestic remedies available to him. They point to section 78 of PACE and highlight the House of Lords’ decision in R v. Khan as illustrating that a judge can have regard to Article 8 of the Convention, and its application by this Court, when exercising his discretion to exclude evidence from trial proceedings under that section. They note that it does not appear that the applicant ever submitted during his trial that the intercepted messages should be excluded from the evidence under section 78 on the basis that they had been obtained in breach of Article 8, and add that in the circumstances it cannot be said that such a submission would necessarily have failed. In this way, say the Government, the present case is distinguishable from Khan v. the United Kingdom (judgment of 12 May 2000, ECHR 2000-V).

The applicant disputes the Government’s submissions, first, because section 78 only relates to the criminal court’s power to exclude evidence from trial proceedings. It does not provide any remedy in respect of the other breaches of Article 8 inherent in the in the acts of intercepting pager messages or using them in the course of preparing for trial. The applicant states that he had therefore been the victim of a number of violations of Article 8 well before the possibility of the section 78 remedy arose in respect of the last violation, namely that of introducing the intercepted messages to the trial proceedings.

Secondly, the applicant submits that section 78 did not offer him any real prospect of having the intercepted messages excluded from the trial proceedings since domestic case-law shows that the courts consistently refuse to exclude evidence obtained by covert surveillance pursuant to that provision. In particular, he highlights the case of R v. Khan (supra) as showing that evidence obtained contrary to Article 8 is not amenable to exclusion from trial proceedings under the section.

The Court is of the view that the objection raised by the Government raises a matter to be joined to the merits of the case.

As regards the substance of the applicant’s complaints, the Court considers that it raises complex issues of law and fact under Articles 8 and 13 of the Convention, the determination of which should depend on an examination of the merits. It concludes, therefore, that the application is not 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 remainder of the application admissible, without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President