THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 44787/98 by P.G. and J.H. against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 24 October 2000 as a Chamber composed of

Mr J.-P. Costa, President , Mr W. Fuhrmann, Mr P. KÅ«ris, Mrs F. Tulkens, Mr K. Jungwiert, Sir Nicolas Bratza, Mr K. Traja, judges ,

and Mrs S. Dollé, Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 7 May 1997 and registered on 2 December 1998,

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 observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

The first applicant is a British national, born in 1961. The second applicant is a British national, born in 1957. They are both detained in HM Prison Full Sutton.

They are represented before the Court by Bindmans, solicitors practising in London.

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

A. Particular circumstances of the case

On 28 February 1995, Detective Inspector Mann (“D.I. Mann”), received information that an armed robbery of a Securicor cash collection van was going to be committed in or around 2 March 1995 by the first applicant and B at one of several possible locations. The police knew where B lived and began visual surveillance of those same premises on the same day. D.I. Mann learnt that B was suspected of being a drug dealer and that previous surveillance operations mounted against B in the past had proved unsuccessful because they had been compromised. It was therefore concluded that B was 'surveillance conscious'. B was suspected of being responsible for the shooting of a police officer with a shotgun in the course of a robbery. This was something that all the officers, and particularly the Chief Constable, were aware of when the police operation was being planned.

No robbery took place on 2 March 1995. By 3 March 1995 however, the police received further information that the robbery was to take place 'somewhere' on 9 March 1995. Further information as to the location or target of the proposed robbery could not be obtained during 3 March 1995. In order to obtain further details about the proposed robbery, D.I. Mann prepared a report for the Chief Constable in support of an application for authorisation to install a covert listening device in B's flat. Some of the contents of this report were the subject of a successful application for non-disclosure by the Crown on the ground that serious damage would be caused to the public interest were they to be made public.

The use of covert listening devices was governed by the 'Guidelines on the Use of Equipment in Police Surveillance Operations issued by the Home Office in 1984 (“the Guidelines”). On 3 March 1995, the Chief Constable decided that the use of such a device was justified under the Guidelines but would not authorise its use until he was satisfied that its installation was feasible. Reconnaissance on the night of the 3/4 March established that it was feasible.

On 4 March 1995, the Chief Constable gave oral authorisation to proceed with its use. However he did not provide written confirmation as stated in the Guidelines as he was then off on annual leave and gave the authority on the telephone from home. The Chief Constable stated that the use of the device was to be reviewed on a daily basis. The Chief Constable said that he asked the Deputy Chief Constable to look after the written side and to ensure, inter alia , that there was written confirmation of the message that the installation of the device was feasible. He did not receive this confirmation until 8 March. On 8 March 1995, the Deputy Chief Constable gave 'retrospective' written authorisation for use of the listening device.

A covert listening device was therefore installed in a sofa in B's flat on 4 March before the Deputy Chief Constable had confirmed the authorisation in writing. Conversations between B and others in B's living room were monitored and recorded until 15 March 1995.

On 15 March 1995, B and others who were with him in his home discovered the listening device and abandoned the premises. The robbery did not take place. The police had also been continuing visual surveillance of the premises, taking photographs and video footage whilst the audio surveillance was in progress. The applicants were identified by various officers going in and out of the flat and observed on occasions to be carrying various hold-alls. The police had also been observing a cache in a rural location and observed the first applicant collecting an item from this location on the evening of 15 March 1995. An officer had earlier inspected the hidden item, which he stated he could tell through the plastic bag was a revolver. It appeared that the vehicle which the first applicant used for transport that evening was a stolen vehicle in which he was subsequently arrested.

The first and second applicants were arrested on 16 March 1995 while in the stolen Vauxhall car. In the boot of the vehicle were found two hold-alls, containing, inter alia two black balaclavas, five black plastic cable ties, two pairs of leather gloves, and two army kitbags. Following legal advice, the applicants declined to comment during interview and refused to provide speech samples to the police. The police obtained a search warrant for the flat and searched it. Fingerprints of the applicants were found, as well as items such as a pair of overalls and a third balaclava. Three vehicles were recovered and examined. The items retained included balaclavas, hold-alls, overalls and a broken petrol cap.

As they wished to obtain speech samples to compare with the tapes, the police applied for authorisation to install covert listening devices in the cells being used by the applicants and to attach covert listening devices to the police officers who were to be present when the applicants were charged and when their antecedents were taken. Written authorisation was given by the Chief Officers in accordance with the Home Office Guidelines. Samples of the applicants' speech were recorded without their knowledge or permission. In the case of the second applicant, the conversations that were recorded included, on one occasion, the second applicant taking advice from his solicitor. The Government state that, when the police officer realised what the conversation concerned, it was not listened to. That recording was not adduced in evidence at trial.

The voice samples of the applicants were sent to an expert who compared them with the voices featured on the taped recordings of conversations held in B's home between 4 and 15 March. The expert concluded that it was 'likely' that the first applicant's voice featured on the taped recordings and that it was 'very likely' that the second applicant's voice featured on them.

On 14 March 1995, during the course of the investigation into the alleged offence of conspiracy to rob, the police requested information from British Telecom, namely, the itemised bill for telephone number 01202 718709 at B's flat. A data protection form was submitted, signed by a superintendent, stating that the information was necessary to assist in the identification of members of a team of suspected armed robbers. According to the Government, the only use made of the information at the subsequent trial was to corroborate the times and dates recorded by officers in respect of the covert listening device in the flat.

B and the applicants were charged with conspiracy to rob Securicor Ltd of monies. B pleaded guilty in view of the House of Lords decision in R. v. Khan [1996] 3 All ER 289. The House of Lords held in that case that relevant evidence was admissible notwithstanding that it had been obtained by unlawful means (for example trespass). The applicants, however, challenged the admissibility of the evidence derived from the use of the covert listening devices at B's home on two grounds:

(a) that the Chief Constable should not have authorised the use of a covert listening device in B's premises because other forms of investigation had not been tried and failed as required by paragraph 4(b) of the Guidelines, with the result that it would be unfair to admit evidence which ought never to have been obtained;

(b) that the covert listening device had been installed and used before written confirmation of the Chief Constable's authorisation had been received and there was no specific permission for the product of the device to be used in evidence.

Before the jury was sworn in at the trial, Judge Broderick heard evidence by means of a ' voir dire ' on matters relating to the admissibility of the challenged evidence. The prosecution conceded that the relevant evidence had been obtained by unlawful means, namely trespass. During this procedure, the prosecution claimed that the public interest was likely to be damaged if certain disclosures were made and certain evidence was given, in other words claiming public interest immunity. The prosecution stated the test of admissibility was relevance. The defence argued that the judge had discretion to exclude the evidence under s. 78 of the Police and Criminal Evidence Act 1984 (PACE) and that he should do so because the Chief Constable had failed to abide by the Guidelines.

As a result, some documents, including D.I. Mann's report, which led to the Chief Constable's decision to authorise the use and installation of a covert listening device in B's flat, were withheld from the applicants and their lawyers. The judge kept under review the non-disclosure during the proceedings and at one point more disclosure was made, though not D.I. Mann's report in its entirety. D.I. Mann also declined to answer questions put to him in cross-examination on the ground that it might reveal sensitive material. Judge Broderick asked defence counsel whether they wanted him to put the unanswered questions to the D.I. Mann, under oath, in chambers and they agreed. The judge proceeded to put various questions to D.I. Mann in private in the absence of the applicants and their lawyers. The answers to those questions were not divulged, the judge indicating in open court that the benefit to the defence from the answers given was slight, if any at all, while the damage to the public interest if the answers were made public would be great. Accordingly, he held that D.I. Mann was entitled on public immunity grounds to refuse to answer those questions. The judge heard further evidence from D.I. Mann in chambers concerning police ability to 'control' B in order to install the device in the flat, which the defence asserted indicated that normal methods of surveillance would have been possible. The judge heard D.I. Mann concerning the arrangements made and put into effect for this period and concluded that the details would be of no assistance to the defence in developing their point but that the damage to public interest, if the details became public, would be considerable. He held that those details could be excluded on public interest immunity grounds.

Judge Broderick rejected the applicants' challenge to the admissibility of the evidence derived from the covert listening devices in B's flat. In reaching his decision Judge Broderick stated:

“61. It follows that I must apply the test set out in s.78 on the basis that this was a properly authorised decision to install the device and that the police were justified in continuing to use it up to the moment when it was discovered. At most there were one or possibly two breaches of procedure, but neither, in my judgment, could be described as either significant or substantial. It is conceded by the Crown that the installation of the device amounted to a civil trespass. In addition it was a serious invasion of privacy in circumstances in which those concerned would have expected their conversations to be private.

62. I was invited to take into account, and I do, that the installation of the device may well amount to an invasion of the general right to privacy under Article 8 . It is not for me to determine whether there has, in fact, been a breach of Article 8, but in weighing this point I must bear in mind that it is at least arguable that the interference in the present case could be justified on one or more of the grounds set out in Article 8(2). In those circumstances I cannot see any reason for concluding that the possible breach of Article 8 was either substantial or significant.

63. I was also invited to consider whether the admission of this evidence and the difficulties faced by the Defence in seeking to test the validity of the Chief Constable's decision breached Article 6 of the Convention... I am satisfied beyond reasonable doubt that to the extent that there has been a breach of Article 6 it has not in fact deprived these Defendants of the right to a fair trial.”

The applicants also challenged the admissibility of evidence derived from the use of covert listening devices attached to the officers charging them and dealing with their antecedents. Judge Broderick stated:

“75. ...it does not seem to me to be right to attach great weight to the unfair way in which the control tapes were obtained. The fact that they provide relevant evidence, in the sense that they are a reliable sample of speech, which can be clearly attributed to each of these Defendants, weighs more heavily in my judgment. On balance therefore I am satisfied that the admission of the control tapes would not have such an adverse effect on the fairness of the proceedings that I ought to exclude them.”

The police submitted statements from those officers who had conducted the audio and visual surveillance of the flat, the searches of the flat and vehicles recovered. There was also evidence from officers who were conducting a surveillance of a cache. One officer stated that the item hidden under a tree was in fact a revolver. The first applicant was seen to collect this item on the evening of 15 March 1995.

The first and second applicants were convicted on 9 August 1996 of conspiracy to rob and sentenced to 15 years' imprisonment. They appealed to the Court of Appeal for leave to appeal, but their applications were refused on 12 November, a single judge finding that the judge's exercise of his discretion to admit evidence did not give rise to an arguable ground of appeal. Notification of the refusal was sent to them on 10 and 20 December 1996 respectively. It does not appear that the applicants made any complaints to the Police Complaints Authority in respect of the covert listening devices.

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) 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. They provide, inter alia :

“4. 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 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) use of equipment must be operationally feasible.

5. In judging how far the seriousness of the crime under investigation justifies the use of a particular surveillance technique, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected is commensurate with the seriousness of the offence.”

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

The Police Complaints Authority

The Police Complaints Authority was created by section 89 of the Police and Criminal Evidence Act 1984. 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.

The Police and Criminal Evidence Act 1984 (PACE)

Section 78(1) of this 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.”

The Police Act 1997

The 1997 Act provides for 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.

Disclosure of evidence to the Defence

R. v. Ward [1993] 1 WLR 619: This case dealt with the question of what duties the prosecution has to disclose evidence to the defence. It laid down the proper procedure to be followed when the prosecution claims that certain material is the subject of public interest immunity. The Court of Appeal held that it was the court, and not the prosecution, who would undertake the balancing exercise between the interests of public interest immunity and fairness to the party claiming disclosure.

.

R. v. Trevor Douglas K (1993) 97 Cr. App. R. 342: The Court of Appeal stated that that balancing exercise could only be performed by the trial judge himself examining or viewing the evidence, so as to have the facts of what it contains in mind.

Disclosure of personal data

Section 45 of the Telecommunications Act 1945 prohibits the disclosure by a person engaged in a telecommunications system of any information concerning the use made of the telecommunications services provided for any other person by means of that system.

However, pursuant to section 28(3) of the Data Protection Act 1984:

“Personal data are exempt from non-disclosure provisions in any case in which-

(a) the disclosure is for any of the purposes mentioned in sub-section 1 above; and

(b) the application of those provisions in relation to the disclosure would be likely to prejudice any of the matters mentioned in that sub-section.”

Sub-section 1 refers to date held for the purpose of:

“(a) the prevention or detection of crime;

(b) the apprehension or prosecution of offenders; or

(c) the assessment or collection of any tax or duty.”

COMPLAINTS

The applicants complain of violations of Article 8 of the Convention as regards:

- the use of covert listening devices to monitor and record conversations at B's flat;

- the provision of information to the police relating to the ownership/use of two mobile telephones and details of calls made to and from those telephones;

- the use of covert listening devices to monitor and record their conversations in their cells after they were arrested and while they were being charged.

2. The applicants also complain of violations of Article 6 of the Convention as regards:

- the non-disclosure of certain documents to the applicants and /or their lawyers for use in the ' voir dire ' and the refusal of D.I. Mann to answer questions in cross-examination on grounds of public interest immunity;

- the admission into evidence of the records and information derived from the above.

3. Finally the applicants complain that there is no effective remedy in domestic law for the said violations of Articles 6 and 8 of the Convention as required by Article 13.

THE LAW

1. The applicants complain of the covert taping carried out by the police at B's flat and in the police station and the obtaining of information about the use of the telephone at the flat, invoking Article 8 of the Convention which 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.”

a. concerning the use of covert listening device at B's flat

The Government acknowledge that the use of this device interfered with the applicants' right to respect for private life. They submit that it was justifiable under the second paragraph of Article 8 as being necessary in a democratic society in the interests of public safety, for the prevention of crime and/or for the protection of the rights of others. They refer, inter alia , to the serious nature of the crime under investigation, the fact that B was regarded as being surveillance conscious, rendering conventional forms of surveillance insufficient, and that the conversations proved that an armed robbery was being planned. They recall however that in the case of Khan v. the United Kingdom (judgment of 12 May 2000) the Court found that the Home Office Guidelines governing such devices did not satisfy the requirement of “in accordance with the law” and recognise that the Court is liable to reach the same conclusion in the present case.

The applicants submit that at the time of the events in their case there existed no statutory system to regulate the use of covert listening devices, though the Police Act 1997 now provides such a statutory framework. The Home Office Guidelines which provided the relevant instructions to the police were neither legally binding nor directly publicly accessible. The interference with their right to respect for their private life was therefore not “in accordance with the law” and there has been a violation of Article 8 in that respect.

b. use of covert listening devices in the police station

The Government submit that the use of the listening devices in the cells and when the applicants were being charged did not disclose any interference as these recordings were not made to obtain any private or substantive information. The aural quality of their voices was not part of private life but was rather a public, external feature. In particular, the recordings when they were charged - a formal process of criminal justice - did not concern private life. Even assuming there was any interference with right to respect for private life however, such was necessary and proportionate. The measures were also in accordance with the law, as the recording did not involve any trespass and were made in the exercise of the police's general powers to obtain and store evidence.

The applicants refer to the underhand manner in which the voice samples were obtained, and regard it as a procedure which is wholly unregulated, arbitrary and attended by bad faith. They submit that it should have been established first that voice samples were necessary, they should have then been asked to provide samples and, if they had failed to do, the jury could have been invited to draw any appropriate inferences.

c. the obtaining of information about the applicants' use of the telephone

The Government submit that the police obtained from British Telecom the itemised bill of the telephone at the flat, for use in corroborating times and dates recorded by officers in respect of the covert listening device. While they accept that this constituted an interference with privacy, they argue that the measure was necessary to fight crime, was proportionate, since it did not disclose the contents of any calls, and was in accordance with the law, namely in conformity with relevant legislation.

The applicants have not provided any detailed submissions on this aspect of their complaint.

2. The applicants complain of the use at trial of records and information obtained by the covert listening device in the flat and police station and from the telephone company, as well as the non-disclosure of certain evidence during the trial and the judge's questioning of a witness in their absence. They invoke Article 6 § 1 which provides in its first sentence:

“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. ..”

a. concerning the use at trial of materials obtained by the use of covert listening devices

The Government submit that the use of the taped materials did not infringe the overall fairness of the applicants' trial, referring to the Court's judgment in Khan v. the United Kingdom (cited above). The applicants had the opportunity, which they made use of, to challenge the admissibility of the recordings under section 78 of PACE. Their admissibility was judged by the most suitable tribunal, namely, the trial judge, by reference to the test of fairness. They were also able to appeal against the judge's ruling to the Court of Appeal. The recordings had been obtained in accordance with the applicable code of practice. Furthermore, there was almost no dispute about the authenticity of the written transcript of the tapes, and the expert evidence on voice identification was corroborated by the visual observations of the surveillance team and by their video and photographic evidence. The applicants did not call any expert evidence to challenge the tapes. Accordingly, there was no reasonable doubt that it was their voices on the tapes, or about the reliability of the tapes as evidence. The tapes were not in any event the only evidence against the applicants. The prosecution called 45 witnesses, and incriminating evidence was found in B's flat and in the car which the applicants were driving.

The applicants argue that their case should be distinguished from the Khan judgment, and that the fairness of their trial was undermined by the use of the taped materials. In Khan, they point out that the Court referred to the fact that the evidence had been obtained in accordance with the guidelines, whereas in their case there had been a clear breach of those guidelines. While the applicant in Khan had obtained a review of his case on appeal, the applicants had been refused leave to appeal against the judge's ruling. The Court in Khan had also given weight to the fact that the evidence obtained in breach of Article 8 had been strong and cogent. In their case, the evidence in relation to at least the first applicant was not particularly strong in that the forensic expert was only able to conclude that it was “likely” that his voice featured in the tape recordings. Finally, the applicants referred to the underhand manner in which police officers obtained samples of their voices for comparison, in a procedure which was unregulated, arbitrary and attended by bad faith.

b. concerning the non-disclosure of evidence and the hearing of a witness in chambers

The Government, relying on Jasper and Fitt (Jasper v. the United Kingdom and Fitt v. the United Kingdom judgments of 16 February 2000), submit that the procedure adopted concerning the non-disclosure of part of D.I. Mann's report complied with the requirements of Article 6, as the trial judge reviewed the material and was in the best position to balance the interests of the accused and the sensitivity of the material. They point out that the material was not disclosed to the jury and played no part in the conviction, being relevant only to ancillary questions of compliance with the Home Office Guidelines and having no bearing on guilt or innocence. They also point out that defence counsel agreed to the judge's proposal that he question D.I. Mann with defence counsels' questions in private and therefore that this part of the procedure took place with the consent of the defence. The need for non-disclosure was kept constantly under review by the judge, and the effectiveness of this safeguard was shown by his revisiting non-disclosure as the trial progressed and ordering disclosure of certain evidence.

The applicants argue that this case is different from Jasper and Fitt as it concerned the judge taking and recording evidence in the absence of the defence, not just the withholding of documents from the defence. The witness in question was a key officer in the investigation and since the defence did not hear the evidence, they could not put forward any meaningful arguments. Such a clandestine procedure cried out for review at the appeal stage but since the defence did not know the content of the testimony there was no prospect of appeal on an error of law. There should have been in their submission an automatic review by the Court of Appeal of the undisclosed material, otherwise errors of law or excesses of jurisdiction would go unchallenged.

3. The applicants complained that they had no effective remedy in respect of the violations of their rights, invoking Article 13 of the Convention, which provides:

“Everyone whose rights and freedoms as set forth in this 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 accepted that in the light of the above-mentioned Khan judgment the Court would be likely to find that no effective remedy was available to the applicants in respect of any breach of their rights under Article 8 of the Convention, since the Court had already ruled that the operation of section 78 of PACE and the availability of the procedures before the Police Complaints Authority did not provide an adequate remedy in similar circumstances.

The applicants submitted that there was no material distinction between their case and the Khan judgment, and relied on the Court's observations with regard to the effectiveness of PACE and the Police Complaints Authority and the lack of any sufficient protection against the abuse of authority.

4. Having regard to the parties' submissions, the Court finds that complex issues of fact and law arise under the Convention which should be examined on the merits. The application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and no other grounds for declaring it admissible have been established.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION ADMISSIBLE , without prejudging the merits of the case.

S. Dollé J.-P. Costa Registrar President