THIRD SECTION

PARTIAL 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 27 June 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 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 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, a lawyer practising in Bristol.

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 the applicant. 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 defence counsel, 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.

COMPLAINTS

The applicant complains under Article 6 § 1 that he was denied a fair trial by virtue of the uncertainty of the factual basis on which he was convicted. In addition he submits under Articles 8 and 13 of the Convention that the interception of his pager messages by the police 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

1 . Article 6 § 1 of the Convention provides, as relevant:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal...”

The applicant contends that he was denied a fair trial because, in the light of the jury’s question, there is uncertainty as to the factual basis on which he was convicted.

The Court notes that when the jury put its question regarding the law of conspiracy, the trial judge consulted with defence counsel and replied to the jury in the terms proposed by defence counsel. The applicant submits that in accordance with the Contempt of Court Act 1981 it was not open to the trial judge or anyone else to seek an explanation from the jury as to the basis of their guilty verdict, but that the judge could have directed that alternative charges, setting out different factual bases, were drafted and put to the jury. However, the Court notes that, at the relevant time during the applicant’s trial in the Crown Court, his representatives did not request that such alternative charges be put to the jury. It follows that the applicant has failed to exhaust domestic remedies in relation to the complaint under Article 6 § 1 as required by Article 35 § 1 of the Convention, and that this part of the application is therefore inadmissible pursuant to Article 35 § 4.

2. Article 8 of the Convention states:

“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.”

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 applicant complains under these Articles that at the relevant time United Kingdom law contained no regulation to govern the interception of messages to a pager via a private telecommunications system.

The Court considers that it cannot, on the basis of the file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b) of the Rules of Court, to give notice of it to the respondent Government.

For these reasons, the Court, unanimously,

DECIDES TO ADJOURN the examination of the applicant’s complaints regarding the interception of his pager messages;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa Registrar President