THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35394/97

by Sultan KHAN

against the United Kingdom

The European Court of Human Rights ( Third Section) sitting on 20 April 1999 as a Chamber composed of

Mr J-P. Costa, President ,

Sir Nicolas Bratza,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mr W. Fuhrmann,

Mrs H.S. Greve,

Mr K. Traja, Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 1 January 1997 by Sultan KHAN  against the United Kingdom and registered on 20 March 1997 under file no. 35394/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 2 March 1998 and the observations in reply submitted by the applicant on 30 September 1998 and the Government’s letter of 16 October 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant was born in 1957 and is a British citizen, resident in Sheffield. He is represented before the Court by Mr J. Dickinson of Messrs Graysons, solicitors, of Sheffield. The facts of the application, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

On 26 January 1993 the applicant visited a friend, Mr Bashforth, in Sheffield. Mr Bashforth was under investigation for dealing in heroin. On 12 January 1993, the installation of a listening device on Mr Bashforth’s premises was authorised by the Chief Constable of South Yorkshire on the grounds that the conventional methods of surveillance were unlikely to provide proof that he was dealing in drugs. Neither Mr Bashforth nor the applicant was aware of the aural surveillance equipment which had been installed by the police.

The police obtained a tape recording of a conversation, in the course of which the applicant admitted that he was involved in the importation of drugs. The applicant was arrested on 11 February 1993 and committed for trial. He pleaded "not guilty".

The trial took place in December 1993. The applicant admitted that his voice was one of those recorded on the tape. The applicant also submitted that the tape recording was inadmissible as evidence against him, having been improperly obtained; but if admissible, the trial judge ought to exercise his discretion to exclude it. The applicant amended his plea to "guilty" on the basis of the judge’s ruling in respect of the tape recording and reserved the right to challenge that ruling. The trial judge ruled that the evidence was admissible. On 14 March 1994, the applicant was convicted and sentenced to three years imprisonment.

The applicant appealed to the Court of Appeal on the ground that the evidence ought to have been inadmissible. On 27 May 1994 the Court of Appeal dismissed the applicant’s appeal against conviction but also certified, as a point of law of general public importance, the question of whether tape recorded conversations, obtained by a listening device attached by the police to a private house, were admissible in a criminal trial.

On 4 October 1994, the Appeal Committee of the House of Lords granted the applicant leave to appeal from the decision of the Court of Appeal, dismissing his appeal against conviction. On 2 July 1996 the House of Lords dismissed the applicant’s appeal on the grounds that there was in general nothing unlawful about a breach of privacy and the common law rule that relevant evidence obtained by the police by improper or unfair means was admissible and that the judge’s admission of such evidence did not of itself mean that the trial would be unfair. Lord Nolan, giving the opinion of the majority of the House, added:

"The sole cause of this case coming to your Lordship’s House is the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seems astonishing, the more so in view of the statutory framework which has governed the use of such devices by the Security Service since 1989, and the interception of communications by the police as well as by other agencies since 1985. I would refrain from other comment because counsel for the respondent was able to inform us, on instructions, that the government proposes to introduce legislation covering the matter in the next session of Parliament."

The applicant was discharged from prison on 11 August 1994. His release was on licence until 12 May 1995.

B. Relevant domestic law

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 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. 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 Complaints Authority

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

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."

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.

COMPLAINTS

The applicant complains under Article 6 of the Convention that the admission of the tape recorded conversation, obtained by a secret listening device, rendered the proceedings as a whole unfair. The applicant claims that unlike in the case of Schenk v. Switzerland (Eur. Court HR, judgment of 12 July 1988, Series A no. 140) the evidence in question was the only evidence against him and that it was obtained in circumstances where there were no domestic law safeguards in place.

The applicant also invokes Article 8 of the Convention alleging interference with his right to privacy which was not in accordance with the law. The applicant claims that the installation of secret listening devices by the police are the subject of Home Office guidelines, which were issued to police authorities in 1984 and do not have the force of law within the meaning of Article 8 § 2 of the Convention.

The applicant also claims that Article 13 of the Convention has been violated as the court should have taken into account the fact that the evidence was obtained in breach of Article 8 of the Convention.

PROCEDURE

The application was introduced on 2 January 1997 and registered on 20 March 1997.

On 3 December 1997 the European Commission of Human Rights decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 2 March 1998. The applicant replied on 30 September 1998, after an extension of the time-limit fixed for that purpose. On 16 October 1998 the Government made comments on the applicant’s observations in reply.

On 8 July 1998 the European Commission of Human Rights granted the applicant legal aid.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

The applicant complains that the judge’s decision to allow the secretly taped conversation in as evidence at his trial rendered the proceedings against him unfair in breach of Article 6 of the Convention. He also complains that the installation of the listening device constituted a breach of Article 8 which was not "in accordance with the law", and that he was deprived of an effective remedy in respect of the alleged breach, in violation of Article 13 of the Convention.

Article 6 of the Convention provides, so far as relevant, as follows:

"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 8 of the Convention provides as follows:

"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 as follows:

"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."

As to Article 6, the Government submit that the present case closely resembles the case of Schenk (cited above) and submit that the applicant had the opportunity to challenge the use of the tape recording against him at the “voire dire”. Having carefully considered the applicant’s arguments that the police lacked the power to carry out a recording in breach of the Home Office Guidelines and/or Article 8 of the Convention, the trial judge nevertheless considered that they did not allow for exclusion under section 78 of PACE and he therefore admitted the tape recording as evidence. The House of Lords considered the applicant’s challenge within the context of Article 6 of the Convention but found that "looking at the matter in the round" there was no breach of the Article even if the obtaining of the evidence constituted a fundamental breach of Article 8 of the Convention and was the only evidence against the applicant.

The Government recognise that the tape recording was the only evidence against the applicant. However, in their submission, that fact alone cannot make the admission of evidence, even unlawfully obtained evidence, a breach of Article 6 where there is a strong public interest in proving the involvement of the applicant in a serious crime and where he had ample opportunity to challenge the admissibility of the evidence before the domestic courts on the “voire dire” and on appeal.

Finally, the Government submit that the applicant’s admission of guilt during the trial is relevant to the consideration of the fairness of the trial under Article 6.

The applicant does not submit that Article 6 requires an automatic rule of exclusion of evidence obtained in consequence of a breach of Article 8, but argues that where evidence has been obtained in breach of a Convention right, three requirements must be fulfilled by the domestic courts:

- there must be an effective procedure during the trial by which the applicant can challenge the admissibility of evidence;

- the trial court should have regard to the nature of the violation, and

- the conviction should not be based solely on evidence obtained in consequence of a breach of a Convention right.

The applicant argues that the procedure under section 78 of PACE is not capable of affording a ground for the exclusion of evidence, given that the House of Lords’ judgment indicates that a breach of Article 8 was not capable of affording a ground for the exclusion of evidence under section 78. The applicant submits that the absence of an effective procedure by which to challenge the use of evidence obtained in breach of Article 8, is in breach of Article 6 of the Convention.

He submits that the nature of the breach amounted to a fundamental violation of the Convention since there was a complete absence of a statutory scheme regulating the use of secret aural surveillance devices by the police.

Finally, the applicant contends that it is contrary to the rule of law to permit a criminal conviction to be based solely on evidence obtained by illegal acts of law enforcement agents. The applicant disputes the Government’s submission that the applicant cannot claim a violation of the right to a fair trial because he was in fact guilty and pleaded guilty. In the present circumstances, if the evidence had been excluded as inadmissible by the trial court, the prosecution would have discontinued the proceedings. The applicant submits that the Court’s role is not to determine whether or not there would have been a miscarriage of justice but whether or not the applicant, innocent or guilty, received a fair trial.

As to Articles 8 and 13, the Government do not dispute that the surveillance of the applicant amounted to an interference with his right to respect for private life guaranteed by Article 8 § 1 of the Convention, but submit that such interference will not be a breach of the Article where it was in accordance with the law and necessary in a democratic society for the prevention of crime.

The Government recognise that foreseeability is a component of the concept of "in accordance with the law" but submit that foreseeability cannot be the same in the context of covert police surveillance as it is where the object of the relevant law is to place restrictions on the conduct of individuals. They argue that a law which confers a discretion as to whether or not to undertake covert surveillance activities does not breach the requirement of foreseeability provided that the scope of the discretion and the manner of its exercise is indicated with sufficient clarity.

The Government submit that the Home Office Guidelines were public and accessible, even though they did not have statutory force, and provide constraints within which surveillance is limited to the investigation of serious crime. Furthermore, the measures taken were proportionate with the criminal investigation in question. They refer to the judgment of the Court of Appeal, which expressly considered Article 8 of the Convention with reference to the applicant’s case.

Finally, the Government contend that the existence of the Police Complaints Authority demonstrates that there were adequate procedural safeguards against arbitrary interference and the abuse of powers.

The applicant submits that the Government’s position is no longer tenable in the light of the European Commission of Human Rights’ decision in Govell v. the United Kingdom (No. 27237/95, Comm. Rep. 14.1.98) where the Commission found that there is no existing statutory system governing the use of covert listening devices and that the Home Office Guidelines are neither legally binding nor accessible. Consequently, there had been a breach of Article 8 of the Convention because the tape recording in that case could not be considered to be "in accordance with the law" as required by Article 8 § 2 of the Convention.

In connection with Article 13 of the Convention, the Government dispute that the applicant has an "arguable claim" under Article 8 of the Convention, in which case, Article 13 would not apply to the present case. If, however, the applicant does have such an "arguable claim", the Government submit that there were remedies available to satisfy the requirements of Article 13. They submit that the House of Lords had a discretion under section 78 of PACE to take into account the fact that evidence has been obtained in circumstances which involved an arguable breach of Article 8 of the Convention.

Further, they claim that it was open to the applicant to complain to the Police Complaints Authority in respect of the allegations of police misconduct and that the High Court had jurisdiction over that Authority should the Authority be in breach of its procedures or act irrationally.

The applicant submits that, according to the domestic law, a breach of Article 8 does not satisfy the requirements for exclusion under section 78 of PACE, even if the evidence so obtained is the only evidence in the case. Section 78 is therefore not capable of affording a remedy which is practical and effective, as required by Article 13.

In respect of the submission by the Government that the Police Complaints Authority provides a second remedy, the applicant again refers to the findings of the European Commission of Human Rights in Govell v. the United Kingdom (see Comm. Rep., cited above, at §§ 68-70) and submits that given the Commission’s finding of a breach of Article 13 in those circumstances, the Court must also find a breach of the Article in the present case.

The Court considers, in the light of the parties’ submissions, that the application raises complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole. The Court 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 APPLICATION ADMISSIBLE , without prejudging the merits of              the case.

S. Dollé J-P. Costa

Registrar President