THIRD SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48521/99 by Mark ARMSTRONG against the United Kingdom

The European Court of Human Rights (Third Section) , sitting on 10 October 2000 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 17 May 1997 and registered on 6 February 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 deliberated, decides as follows:

THE FACTS

The applicant is a British national, born in 1965 and detained in HM Prison Everthorpe. He is represented before the Court by Ms. Bridget Petherbridge of Kingsley Napley, solicitors, of London.

A. Particular circumstances of the case

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

1. Concerning the applicant's trial

On 27 April 1995, the applicant was arrested and charged with a count each for conspiracy to supply Class A and Class B drugs. On 27 January 1997, he and his co-defendants (Kevin Douglas, Paul Anthony Easingwood, Keith Gleeson and Andrew David Dalton) pleaded guilty to the charges after the trial judge ruled disputed evidence admissible.

The evidence at issue resulted from a covert surveillance operation involving observation and recording of conversations in the home of Kevin Douglas allegedly from October 1994 until January 1995 and in April 1995. According to the applicant, the authority for such surveillance had been sought and granted on the purported grounds that the drug operation conducted by the defendants was of such sophistication that conventional evidence gathering techniques were fruitless. He claimed that it was not the Chief Constable who authorised the warrant, but rather the Chief Superintendent.

The defendants challenged the admissibility of the evidence on grounds of improper compliance with the Home Office Guidelines and argued that the judge should exercise his discretion under section 78 of the Police and Criminal Evidence Act 1984 (PACE) to exclude the recordings. The defendants argued that the Crown had failed to establish the necessary conditions to justify a surveillance operation of such nature and size and that the resulting authorisation was therefore wrongfully/unlawfully obtained. They further asserted that the evidence the Crown sought to put before the jury was an inadequate representation of the full content (of 680 hours of tape, 7 transcribed, spliced hours were to be presented) and accordingly unreliable. A voire dire regarding the assertions was conducted.

During the voire dire , the trial judge examined material which had been used by the officer authorising the surveillance operation and was deemed subject to Public Interest Immunity. This material was not disclosed to the applicant. The judge, however, stated that he would not take this material into account in his ruling on admissibility.

The taped conversations constituted the sole evidence against the applicant.

Upon the trial judge's ruling on the admissibility of the evidence, the defendants pleaded guilty to the relevant charges on the indictment.

On 6 February 1997, the applicant was sentenced to 9 years' imprisonment. The applicant was allegedly informed on 15 February 1998 by his trial barrister that his guilty plea would prevent him from pursuing an appeal against conviction. The Court of Appeal had given judgment in R. v. Jeffries & Chalkley [1998] 2 Cr App R 79, holding that under ordinary circumstances a guilty plea would bar an appeal.

The applicant applied for leave to appeal against conviction and sentence out of time. He was refused legal aid for that application and had raised money from friends and family to finance representation before the Court of Appeal.

On 28 January 1999, the applicant's application to seek leave to appeal against conviction and sentence out of time was refused by Mr Justice Hooper and Lord Justice Rose. The judgment stated, inter alia :

“There is no evidence before us to suggest that when pleading guilty, as he did, the applicant was entering an equivocal plea, or entering a plea as a result of improper pressure.

Some 378 days out of time, the applicant now seeks leave to appeal against conviction. He has produced voluminous grounds.... The thrust of his submissions is that the ruling made by the trial judge...was wrong. He does not deny his involvement in the offences.

It is clear on the authority of R. v. Chalkley & Jeffries [1998] 2 Cr App R 79 that following a plea in the circumstances which we have outlined this Court will not entertain an appeal against conviction. It cannot be said that the conviction is unsafe.

The application to extend time is therefore refused. Even if we had granted an extension, the application would have been refused.

There is also a renewed application to appeal against sentence. He received a sentence of 9 years' imprisonment. Again the application was 370 days out of time. There has been no satisfactory explanation for that delay. In the event, we agree with the Single Judge that the sentence was appropriate, both in principle and in length. That renewed application is also refused.”

2. Concerning aspects of his imprisonment

The applicant claimed that his correspondence with his solicitor, the Criminal Cases Review Commission, the Court of Appeal and the European Commission of Human Rights was regularly opened and scrutinised by the prison authorities.

A letter dated 19 March 1999 from the European Court of Human Rights was opened by the prison authorities. The applicant submitted a complaint on 7 September 1999. On 14 December 1999, Prison Headquarters replied that the envelope had not been marked Rule 37A nor was it clear that it was confidential. The envelope had been marked with the ECHR motif but for security reasons it was necessary to open it. In his report (case no. 10125/00) of 19 April 2000, the Prisons Ombudsman noted that it appeared to be the practice at the Wolds Prison to open letters from the Commission or Court though that practice had ceased. He found in the case of this letter that the prison had no strong grounds for suspecting that the letter was not genuine and therefore was not persuaded that there were sufficient grounds to justify opening it. He recommended that the Prison Service apologise to the applicant.

On or about 13 April 1999, a package from the European Court of Human Rights was opened by a prison officer. The applicant lodged a complaint with the Head of Residence at the Wolds Prison on 16 April 1999. Dissatisfied with the response, he applied to the Prison Service Headquarters. On 9 October 1999, the Headquarters replied that the matter had been investigated and that all mail was being handled in accordance with Standing Orders. He applied to the Prisons Ombudsman. According to the Ombudsman's report (case no. 11553/99) of 13 January 2000, prison records revealed that the applicant did receive “1 x pack from European Commission of Human Rights” on 13 April 1999, which was opened, after having been x-rayed, as allegedly nothing indicated from where it had come, other than the “European Stars” in one corner. The Ombudsman expressed surprise that there should be any doubt as correspondence from the Commission and Court was readily identifiable. He found no evidence that the letter was deliberately opened in breach of Prison Rules and recommended that prison staff take greater care and be reminded of the applicable regulations.

The applicant submitted a complaint that two letters from his solicitor dated 2 June 1999 and 5 August 1999 had been opened at HMP Everthorpe. This complaint was not answered by the prison authorities. In his report of 19 April 2000 (case no. 10125/00), the Prisons Ombudsman was told by the prison that they were unable to give any explanation for why they were opened. He expressed disappointment that the staff could not identify the reasons, as whenever a prisoner's legal mail was opened it was important to keep a record of the reasons. In the absence of reasons, he could not be satisfied that there were sufficient grounds to open them and upheld the complaint. He recommended that the Director of the Prison remind staff of the applicable rules and that he conduct a review of the prison's procedures to ensure that the request/complaints forms were answered properly.

The applicant lodged further complaints regarding the alleged theft of his mail as two visiting orders were never received by his girlfriend. Prison authorities rectified the situation by reissuing the orders and the Ombudsman in his report (case no. 11533/99) concluded there was no proof that the applicant's mail was deliberately being interfered with or that the prison was responsible for the letters going astray in the post.

The applicant further lodged complaints regarding the interception of his telecommunications. In his report (case no. 10860/99) of 12 August 1999, the Ombudsman noted that prisoners were informed that telephone calls were recorded and might be monitored and that their use of this facility was conditional on that understanding. A prisoner could make prior arrangements for a call to be made to his legal representative, which would not be recorded. He also noted that there were no special instructions that the applicant's calls be picked out and monitored and that staff were under instruction to cease monitoring a call if it became apparent that it was legally privileged.

The applicant complained about the use of zoom lens cameras and directional microphones in the visiting area during legal visits and family visits. The Ombudsman in his report (case no. 11566) found that this was in accordance with the prison rules that visits should take place within the sight and hearing of a prison officer.

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; 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.

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 Act 1997

The 1997 Act provides 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.

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.”

Instruction to Governors (IG) 113/1995

“4. Correspondence between a prisoner and the European Commission or Court of Human Rights will normally pass unopened, unexamined and unread. ...

4.2 All mail received from the European Commission or the European Courts is readily identifiable, i.e. the envelope is clearly stamped, bearing the words “European Commission, Strasbourg” or “European Court of Justice” in both English and French. Such correspondence should be passed to the prisoner unopened unless there is reason to believe that the letter (or parcel – some papers may be very bulky) did not originate from these sources.”

COMPLAINTS

1. The applicant complains of violations of Article 8 of the Convention as regards the use of covert audio devices within the private home of Kevin Douglas which recorded the applicant's telephone conversations.

2. The applicant also complains of violations of Article 6 of the Convention as regards:

- the judge's ruling as to the admissibility and the consequent use of the foregoing recordings as evidence in the trial proceedings;

- the non-disclosure of certain documents to the applicant and/or his lawyer which were considered by the judge during the voire dire on grounds of public interest immunity;

- alleged denial of legal aid for preparing an appeal;

- the dual function of the Criminal Appeal office, the Registrar serving as the defendant's solicitor as well as taking the role of a court officer e.g. instructing counsel for the appeal and obtaining advice on appeal;

- the Court of Appeal's handling of his appeal, in particular in failing to give reasons.

3. The applicant further complains under Article 8 of the Convention of:

- the opening and screening of his correspondence in prison with the European Court of Human Rights;

- the opening and screening of his correspondence in prison with his solicitors;

- the recording and monitoring of his telephone conversations in prison, including calls with his legal advisers;

- the use of zoom lenses and directional microphones in the prison visiting area.

4. The applicant also invokes Article 6 § 3 (c) of the Convention in relation to the recording and monitoring of telephone calls with his legal advisers.

5. Finally the applicant complains 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

I. Concerning the use of covert devices

The applicant has complained that the use of covert devices in the home of Kevin Douglas which recorded his telephone conversations discloses a violation of Articles 8 and 13 of the Convention, which as far as relevant provide:

Article 8 of the Convention

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

Article 13 of the Convention

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority ...”

The Court notes its recent judgment in the case of Khan v. the United Kingdom (judgment of 12 May 2000). As similar issues arise in the present case, it decides to adjourn further examination of this part of the application pending its notification to the respondent Government for their written observations on its admissibility and merits.

II. Concerning the applicant's trial

The applicant has made numerous complaints concerning his trial and conviction, invoking Article 6 § 1 of the Convention, 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.”

1. Insofar as the applicant complains that the judge ruled the tape recordings taken at Kevin Douglas' home admissible, the Court recalls 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 1987, Series A no. 140, §§ 45 and 46, and 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 “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found (see the above-mentioned Khan judgment, § 35).

In this case, the recording of the telephone conversations was not unlawful in the sense of being contrary to domestic criminal law. Nor does it appear that the applicant made any admissions during those conversations which were involuntary or under inducement or due to entrapment. The “unlawfulness” of the conversations related solely to the fact that there was no apparent statutory authority for the interference with the applicant's right to private life, which raises issues under Article 8 of the Convention above. Furthermore, the applicant was given ample opportunity to challenge both the authenticity and use of the tape recording and did so during the voire dire . If the domestic court had been of the view that the admission of the evidence gave rise to substantive unfairness, it would have had the discretion to exclude it under section 78 of PACE. This application is in this respect substantially identically to the recent judgment in the Khan case (cited above) where the Court found no unfairness contrary to Article 6 resulting from the use at trial of recordings made from covert devices. The Court finds no reason to depart from that conclusion in the present case.

In the circumstances therefore, the Court finds that the use of the tapes at trial did not conflict with the guarantees of fairness imposed by Article 6 § 1 of the Convention.

2. Insofar as the applicant complains of the non-disclosure of material during the voire dire , the Court observes that the judge examined the material which the police considered to attract public interest immunity and upheld the objection, stating however that he would not take account of the material in his ruling. It is not the role of the Court to decide whether or not such non-disclosure was strictly necessary since, as a general rule, it is for the national courts to assess the evidence before them. As held in Rowe and Davis, it is the trial judge who is in the best position to weigh the public interest in non-disclosure against the question of fairness to the defence (Rowe and Davis v. the United Kingdom, No. 28901/95, judgment of 16 February 2000, § 58 and § 65). The Court finds no basis in the present case to find that the non-disclosure of material deprived the applicant of a fair trial contrary to Article 6 § 1 of the Convention.

3. As regards the applicant's complaint of being refused legal aid for his application for leave to appeal, the Court recalls that in Monnell and Morris v. the United Kingdom (judgment of 2 March 1987, Series A no. 115, § 68), the Court held that the applicant's complaint as to the denial of legal aid for leave to appeal under similar circumstances as presently at issue, did not disclose a breach of Article 6 §§ 1 or 3 (c) of the Convention. In any event, it appears that the applicant was able to raise the money necessary to finance representation for his appeal.

4. In respect of the applicant's complaint about the alleged dual function of the Registrar of the Criminal Appeals Court, the Court finds that it has not been established that the applicant has thereby been deprived of a hearing before an independent and impartial tribunal. The fact that, as alleged by the applicant, the Registrar fulfils, de facto , certain functions for legally aided appellants in instructing counsel and obtaining advice on the appeal, which would otherwise be conducted by an accused's solicitor, has not been shown to have impinged in any material way on the proceedings before the Court of Appeal, a court of senior professional judges, who reached the decision to reject the applicant's application. Nor does it furnish any basis on which any legitimate fear as to the impartiality or independence of the court might arise.

5. Finally, as regards the complaints about the Court of Appeal's handling of the applicant's complaints, Article 6 § 1 obliges courts to give reasons for their decisions but cannot be understood as requiring a detailed answer to every argument (Van de Hurk v. the Netherlands judgment of 19 April 1994, Series A no. 288, § 61). The Court notes that in its judgment the Court of Appeal explained, concisely, why it was rejecting the application for leave, both as regards the legal and evidential issues. It is not persuaded that there was any omission or oversight in that reasoning which might raise any issues as to the fairness of the proceedings.

6. In conclusion, the Court finds that the applicant's complaints disclose no appearance of a violation of Article 6 of the Convention and rejects them as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

III. Concerning the alleged interference with the applicant's correspondence and visits

The applicant complains of the opening of correspondence with this Court and with his solicitors and the use of zoom lenses and directional microphones in the visiting area. He again invokes Article 8 of the Convention cited above.

1. As regards the applicant's complaints about opening by the prison authorities of correspondence with the Court and his solicitors, the Court notes that it appears that at least two letters from the Court and two letters from his solicitor were found by the Prisons Ombudsman to have been opened by prison officers. Having regard to its case-law (see in particular Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233), the Court finds that issues arise meriting communication to the respondent Government. It therefore adjourns this part of the application.

2. As regards the alleged surveillance in the prison visiting area, the Court considers that national authorities are entitled, within the margin of appreciation left to them under Article 8 § 2, to take the view that such measures are necessary “in the interests...of public safety or...for the prevention of disorder or crime...or for the protection of the rights and freedoms of others.” It accordingly finds no appearance of a violation of Article 8 of the Convention in this respect and rejects the complaint as being manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

IV. Concerning telephone monitoring in prison

The applicant complains that his telephone conversations with his legal advisers were monitored, invoking the aforementioned Article 8 and Article 6 § 3 (c) of the Convention, which provides:

“3. Everyone charged with a criminal offence has the following minimum rights: ...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

The Court has emphasised the importance that accused persons, in particular, be able to communicate freely and effectively with their lawyers (see e.g. S. v. Switzerland judgment of 28 November 1991, Series A no. 220, p.16, § 48). While the applicant has claimed that the prison authorities have infringed his rights in this respect, the Court observes that, in his investigation of this complaint, the Prisons Ombudsman found that the prison authorities carried out general recording of the telephones used by prisoners and only listened to calls on a random basis, under instructions to cease listening if it appeared to be a call to a legal representative. To the extent that the applicant had any fear that his calls with his solicitors might be listened to, it was open to him to make use of a procedure whereby calls could be arranged with the prison authorities on a strictly confidential basis. It does not appear that the applicant made use of this procedure.

In the circumstances, the Court does not find that the applicant has been deprived of an opportunity effectively to communicate with his lawyers contrary to Article 6 § 3 (c) of the Convention. Nor given the context of prison, where telephone facilities may be subjected to legitimate restrictions in the light of the shared nature of the facilities with other prisoners and the requirements of the prevention of disorder or crime, does the Court find any appearance of a violation of Article 8 of the Convention.

This part of the application must therefore also be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention.

V. Concerning the alleged lack of remedies

The applicant complained that he had no effective remedy available to him in respect of his complaints about his trial, his correspondence, prison visits and monitoring of telephone calls, invoking Article 13 cited above.

Article 13, however, does not require a remedy under domestic law in respect of any alleged violation of the Convention. It only applies if the individual can be said to have an “arguable claim” of a violation of the Convention (Boyle and Rice judgment of 27 April 1988, Series A no. 131, p.23, § 52). Furthermore, Article 13, as a more general guarantee, does not apply in cases where the more specific guarantees of Article 6 are in operation, Article 6 being the lex specialis in relation to Article 13 and absorbing its requirements.

Consequently, no separate issue arises under Article 13 of the Convention as regards the applicant's complaints under Article 6. As regards the other complaints, excluding the alleged interference with correspondence with the Court and his solicitors, the applicant cannot be said, in the light of the Court's findings above, to have an “arguable claim” of a violation of the Convention. It follows that those complaints must be dismissed as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

The Court adjourns its examination of the complaints concerning remedies in respect of the interference with correspondence, pending their communication to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant 's complaints concerning the use of a covert listening device, the interference with his correspondence with the Court and his solicitors and the alleged lack of effective remedies in respect of these matters;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar              President