FIRST SECTION

DECISION

Application no . 25357/16 Anthony FRANCE against the United Kingdom and 3 other applications (see list appended)

The European Court of Human Rights (First Section), sitting on 26 September 2017 as a Committee composed of:

Kristina Pardalos, President, Pauliine Koskelo , Tim Eicke, judges , and Renata Degener, Deputy Section Registrar ,

Having regard to the above applications lodged on the various dates indicated in the appended table ,

Having deliberated, decides as follows:

THE FACTS

1. A list of the applicants is set out in the appendix.

A. The circumstances of the case

1. The background facts

2. The applicants are three journalists employed by The Sun newspaper and News Group Newspapers Limited, the company which owns The Sun newspaper.

3. On 19 September 2012 there was an altercation known as “ Plebgate ” between A.M., a Member of Parliament and Government Chief Whip, and the police. The incident attracted significant publicity on account of the abusive language alleged (and later proved in defamation proceedings) to have been used by A.M. towards the police officers, who were part of a special police detail known as the Diplomatic Protection Group (“DPG”).

4. “ Plebgate ” became the subject of an investigation by the Department of Professional Standards of the Metropolitan Police known as “Operation Alice”, after it transpired that members of the DPG had leaked confidential information about the incident to journalists from The Sun newspaper.

5. In the context of that investigation, investigating officers asked The Sun if they could discuss the leak with them. Representatives for The Sun declined the request on the grounds that the journalists had a professional and moral obligation to protect their sources and therefore did not want to discuss where the information came from.

6. No further step was taken to obtain the communications data of the journalists, the investigators taking the view that the matter under investigation did not meet the evidential threshold for a criminal offence. The investigation failed to discover the source of the leak and it was closed in October 2012.

7. As a result of the ongoing furore about “ Plebgate ”, on 19 October 2012 A.M. resigned from the government. It subsequently emerged that around this time, an email about the incident was raised with the Prime Minister and the Cabinet Office. That email had been sent to A.M. ’ s deputy, allegedly by a concerned constituent claiming to have witnessed the incident. However, later investigations revealed that the email was actually sent by a member of the DPG.

8. Then, further information came to light including CCTV footage which cast doubt over the veracity of the information that the DPG had disclosed to the journalists, including the fact that the officer who had sent the email was not present at “ Plebgate ” and so could not have witnessed the event as claimed. In light of these developments the investigation into “ Plebgate ” was re-opened on 15th December 2012, this time to investigate suspected offences of misconduct in a public office by one or more members of the DPG.

9. In the context of the investigation, the Metropolitan Police sought and obtained four authorisations (one concerning each applicant) under section 22 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) and the relevant code of practice (the Acquisition and Disclosure of Communications Data Code 2007 (“the 2007 Code”)). The purpose of the authorisations was to enable the police to obtain communications data which might reveal the journalists ’ sources, suspected to be members of the DPG or somehow linked to that group.

10. All the authorisations were granted by a Detective Superintendent as the person designated by the Metropolitan Police to perform that function under section 22 of RIPA (see section 1 below), as follows:

 the first authorisation on 23 December 2012 in respect of incoming and outgoing call data including cell site and General Packet Radio Service data (“GPRS” data (typically used for instant messaging)), on the mobile phone of Mr Newton Dunn for a period of seven days beginning at 7 p.m. on 19 September 2012;

 the second authorisation on 23 December 2012 in respect of incoming and outgoing call data including cell site and GPRS data on the mobile phone of Mr France for a period of seven days beginning at 7 p.m. on 19 September 2012;

 the third Authorisation on 14 March 2013 in respect of incoming and outgoing call data including cell site and GPRS data relating to Mr Woodhouse ’ s mobile phone for a period of nine days starting at 6 a.m. on 18 September 2012;

 the fourth Authorisation on 6 June 2013 in respect of incoming call data and subscriber checks made to the news desk of The Sun newspaper for the period from 7.30 a.m. to 9 a.m. on 20 September 2012.

11. Following the conclusion of the investigation, on 26 November 2013 the Crown Prosecution Service charged one police officer with misconduct in a public office in respect of a false witness claim concerning the “ Plebgate ” incident.

12. In September 2014 the Metropolitan Police published a closing report on the investigation. Amongst other information, it revealed the existence of the authorisations to obtain the applicants ’ communications data.

13. The Independent Police Complaints Commission (“IPCC”) reviewed Operation Alice and investigated whether there had been a conspiracy by police officers to bring down a Cabinet Minister. It published its report on 6 February 2014 concluding that the evidence did not suggest there had been an organised conspiracy but that there had been collusion between some police officers to “blow the whistle” as they saw it, on bad behaviour towards one of their own.

2. Domestic legal proceedings

14. Following the publication of the Metropolitan Police ’ s closing report revealing t he existence of the authorisations, the applicants complained to the Investigatory Powers Tribunal (“IPT”) under the Human Rights Act 2000 (“HRA”) arguing that their rights under Articles 8 and 10 of the Convention had been infringed. The central issue was whether section 22 of RIPA, which gave power to a police force to obtain communications data from a telecommunications operator, adequately safeguarded the confidentiality of journalists ’ sources .

15. It was not contested that the granting of the authorisations amounted to an interference with the applicants ’ rights under Articles 8 and 10, nor that it was lawful as a matter of domestic law. Accordingly, the proceedings before the IPT focussed on examining the necessity and proportionality of the interference. Taking account of the fact that the suspected offence of misconduct in a public office was a particularly serious offence; that the allegation that a group of police officers had lied for the purpose of damaging the democratic process by discrediting a Government minister was also particularly serious; that there was good reason to believe that the police officers in question had lied about the incident and/or communicating with the press; that the only way the conspiracy could be proved was by obtaining the communications data sought; and that the authorisations were limited in time; the IPT concluded that it was necessary and proportionate to obtain the authorisations with the exception of the third authorisation which concerned the fourth applicant. It concluded that the third authorisation was not supported by a compelling case that disclosure of the communications data of the fourth applicant was necessary to make the investigation effective.

16. The Court then examined the question of the legality of the interference and in particular whether there was a judicial safeguard in place to authorise the disclosure of a journalists ’ source, in accordance with the case-law of this Court. Noting that the authorisations were granted by a police officer and there was no other independent scrutiny of the request, the IPT found that there was no available safeguard under section 22 of RIPA or the 2007 Code.

17. The IPT then turned to the applicants ’ arguments seeking relief under Section 6 of the HRA. In respect of all the applicants except the fourth applicant it found that section 22 of RIPA could not have been interpreted in an alternative manner by the police that was Convention compliant in respect of the available safeguards. The police had acted lawfully as a matter of domestic law and so the IPT could not grant relief. However it also held that the legal regime in place at the relevant time did not adequately safeguard the important public interest in the right of a journalist to protect the identity of their source.

18. Concerning the third authorisation, it found that this had not been necessary or proportionate and was therefore unlawful, and had infringed of the applicant ’ s rights under Articles 8 and 10.

19. On 4 February 2016, after requesting further submissions from the parties, the IPT gave a judgment on remedies. It reaffirmed its conclusion that it could not grant any relief to the first, second and third applicants. Concerning the fourth applicant, Mr Woodhouse, it concluded after taking into account the case-law of this Court, that the finding of a violation was sufficient just satisfaction.

B. Relevant domestic law and practice

1 . The Regulation of Investigatory Powers Act 2000 (“RIPA”)

Chapter II of RIPA read as follows:

“2 Lawful acquisition and disclosure of communications data

(1) This Chapter applies to -

(a) any conduct in relation to a postal service or telecommunication system for obtaining communications data, other than conduct consisting in the interception of communications in the course of their transmission by means of such a service or system;

...

22 Obtaining and disclosing communications data

(1) This section applies where a person designated for the purposes of this Chapter believes that it is necessary on grounds falling within subsection (2) to obtain any communications data.

(2) It is necessary on grounds falling within this subsection to obtain communications data if it is necessary -

...

(b) for the purpose of preventing or detecting crime or of preventing disorder;

...

(4) Subject to subsection (5), where it appears to the designated person that a postal or telecommunications operator is or may be in possession of, or be capable of obtaining, any communications data, the designated person may, by notice to the postal or telecommunications operator, require the operator

(a) if the operator is not already in possession of the data, to obtain the data; and

(b) in any case, to disclose all of the data in his possession or subsequently obtained by him.

(5) The designated person shall not grant an authorisation under subsection (3), (3B) or (3F), or give a notice under subsection (4), unless he believes that obtaining the data in question by the conduct authorised or required by the authorisation or notice is proportionate to what is sought to be achieved by so obtaining the data.

(6) It shall be the duty of the postal or telecommunications operator to comply with the requirements of any notice given to him under subsection (4).”

20. The designated person mentioned in the above provisions and exercising that function for a police force is required to have the rank of Superintendent, under regulations made pursuant to section 25 (2) of RIPA.

21. Under section 71 the Secretary of State is required to issue a Code of Practice relating to the exercise, inter alia, of the power conferred by section 22 (see paragraph 22 below).

2. The Acquisition and Disclosure of Communications Data Code 2007

22 . The relevant Code of Practice in force at the time of the four authorisations was entitled Acquisition and Disclosure of Communications Data Code and was issued in 2007 (“the 2007 Code”). It required that a designated person should have a current working knowledge of human rights principles (paragraph 3.8) and should not as a general principle be responsible for authorisations in relation to investigations in which he is directly involved (paragraph 3.11). Paragraph 3.28 requires an authorisation to be issued in writing and contain certain information, including specifying the purpose for which the conduct is authorised, but there is no requirement for reasons for the authorisation to be recorded.

23. The 2007 Code did not include any particular provision for protecting communications data involving information relating to journalists .

3. The Revised Code of Practice 2015

24 . In a revised Code of Practice issued in March 2015 (“the 2015 Code”) the position changed. Paragraphs 3.78 to 3.84 require that an application for communications data by a police force or law enforcement agency which is designed to identify a journalist ’ s source should not be made under section 22 of RIPA but should be made under the Police and Criminal Evidence Act 1984 (“PACE”) which requires judicial authorisation. There is an exception for cases where there is believed to be an immediate threat of loss of life, in which case the internal authorisation process of section 22 may be used, provided that such authorisations are notified to the Interception of Communications Commissioner as soon as reasonably practicable. According to the IPT ’ s judgment in the domestic proceedings, since March 2015 the Metropolitan Police has sought judicial authorisation under PACE for any application for communications data which is made in order to identify a journalist ’ s source.

COMPLAINTS

25. The applicants complained under Articles 8 and 10 of the Convention about the covert acquisition of their communication data. Under Article 8, they complained that the covert acquisition of their communication data amounted to an unjustified interference. Under Article 10, they complained that the IPT did not have jurisdiction to make a declaration that the legislative regime in Part 1 Chapter II of RIPA was incompatible with the right to protect journalistic sources, and accordingly they had no remedy available to them concerning the lack of effective safeguards for that right.

THE LAW

A. Joinder

26. Given their similar factual and legal background, the Court decides that the four applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. The fourth applicant

27 . The Court notes that in the case of the fourth applicant, Mr Woodhouse, the IPT found that the covert acquisition of his communications data interfered with his rights under Articles 8 and 10 and could not be justified as it was not in accordance with the law. It concluded, after taking into account the Court ’ s case-law, that the finding of a violation amounted to sufficient just satisfaction.

28. Accordingly, it appears that the national authorities have expressly acknowledged, and then afforded redress for the breach of the Convention ( Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006 ‑ V ; Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010 ; and Nada v. Switzerland [GC], no. 10593/08, § 128, ECHR 2012 ).

29. In these circumstances, the Court is satisfied that the fourth applicant cannot claim to be a victim of a violation of his rights under the Convention, for the purposes of Article 34.

30 . It follows that his application is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, pursuant to Article 35 § 4 of the Convention.

C. The first, second and third applicants

31. Article 35 § 3 (b) of the Convention reads as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that:

...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as de-fined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

1. General principles

32. As pointed out in previous case-law (see Mura v. Poland ( dec. ), no. 42442/08, § 20, 2 June 2016, and C.P. v. the United Kingdom , ( dec. ) no. 300/11, § 41, 6 September 2016), the purpose of the admissibility rule in Article 35 § 3 (b) is to allow the Court to concentrate on its central mission of providing legal protection of human rights at the European level (see the Explanatory Report to Protocol No. 14, CETS No. 194, §§ 39 and 77 ‑ 79). The High Contracting Parties clearly wished the Court to devote more time to cases which warrant consideration on the merits, whether seen from the perspective of the legal interest of the individual applicant or considered from the broader perspective of the law of the Convention and the European public order to which it contributes ( ibid ., § 77).

33. The Court has considered the rule to consist of three criteria. First, has the applicant suffered a “significant disadvantage”? Second, does respect for human rights compel the Court to examine the case? Third, has the case been duly considered by a domestic tribunal?

34. The first question of whether the applicant has suffered any “significant disadvantage” represents the main element. Inspired by the general principle de minimis non curat praetor , this first criterion of the rule rests on the premise that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking into account both the applicant ’ s subjective perceptions and what is objectively at stake in a particular case. In other words, the absence of any “significant disadvantage” can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant. However, the applicant ’ s subjective perception cannot alone suffice to conclude that he or she has suffered a significant disadvantage. The subjective perception must be justified on objective grounds (see, inter alia , C.P ., cited above, § 42).

35 . The second element contained in Article 35 § 3 (b) compels the Court to examine the case in any event if respect for human rights so requires. This would apply where a case raises questions of a general character affecting the observance of the Convention, for instance whether there is a need to clarify the States ’ obligation under the Convention or to induce the respondent State to resolve a structural deficiency (see C.P ., cited above, § 49). In particular, respect for human rights does not require the Court to continue the examination of an application when, for example, the relevant law has changed (see Léger v. France (striking out) [GC], no. 19324/02, § 51, 30 March 2009).

36. Finally, the third criterion under Article 35 § 3 (b) does not allow the rejection of an application if the case has not been “duly considered by a domestic tribunal”. The purpose of this criterion is to ensure that every case receives a judicial examination whether at the national level or at the European level, in other words to avoid a denial of justice (see C.P., cited above, § 51).

2. The Court ’ s assessment

(a) Have the applicants suffered a “significant disadvantage”?

38. In the present case, the Court finds that the applicants did not suffer a significant disadvantage for four reasons.

39. First, there was a public interest in acquiring the applicants ’ communication data, as it was in aid of the investigation into a serious criminal offence affecting public confidence in the police . The IPT found that it was necessary and proportionate to obtain the applicants ’ data. As it stated when concluding that the offences were sufficiently serious to warrant use of the powers under RIPA:

“69 . ... The suspected offence of misconduct in a public office was particularly serious, given the allegation that a group of police officers had lied, and lied for the purpose of damaging the democratic process by discrediting a Government Minister.”

40. In this connection, it can also be noted that the applicants sought to argue in the domestic proceedings that there was “no pressing social need” to obtain the authorisations. To which the IPT responded that:

“72 . ... That argument is unreal on the evidence available to the investigative team at the time.”

and

“73. ... such a conspiracy was (as was obvious but was only made the more evident by the amount of publicity) putting at risk the public confidence in the police, unless and until it was fully investigated.”

41. The Court considers that the findings of the IPT create a strong presumption that there existed “an overriding requirement in the public interest” to obtain the communication data within the meaning of its case law (see paragraph 37 above) which may have justified the interference.

42. In this connection, the Court also notes that the IPT concluded that the only possible way to advance the investigation was to obtain the applicants ’ communications data, commenting:

“75 . ... it is necessary to bear in mind that the only way in which the suspected conspiracy could be proved was by obtaining, by one means or another, the communications data which might evidence communications between a police officer and a journalist. It would be practically impossible to prove a conspiracy which in part consisted of the disclosure of false information to the press without evidence from communications data. It was not only logical to obtain that data at an early stage of the investigation, but essential in order to assess whether the offence alleged might have taken place. The leaking of information to the journalist was an essential element of the criminal offence under investigation, rather than just corroborative evidence as to whether an offence had been committed . ”

43 . Second, the applicants have benefitted from a thorough and comprehensive judgment from the IPT, which clearly sets out all the aspects of the interference of their rights. Whilst, for reasons of domestic law, the IPT could not find that there had been a violation of their rights, it nonetheless made a clear statement that their rights had been infringed, stating:

“111 . ... we conclude that the legal regime under s. 22 of RIPA in place in 2013 when the four authorisations were made did not contain effective safeguards to protect Article 10 rights in a case in which the authorisations had the purpose of obtaining discourse of the identity of a journalist ’ s source.”

44. Third, regarding the applicants ’ complaint that the IPT could not award them a remedy under section 6 of the HRA, the Court cannot see that the applicants were disadvantaged by the limitation in the circumstances. That is because in substance what occurred in their case was almost identical to what occurred the case of the fourth applicant – the domestic court made a clear statement that their communications data was taken in a manner which was not in accordance with the Convention (see paragraph 43 above).

45. In this connection, the Court recalls that it has found that the IPT decision in the case of the fourth applicant was made in light of its case-law and the remedy granted was sufficient to deprive him of his victim status (see paragraphs 27 to 30 above).

46. Fourth and finally, the applicants also complain that the IPT did not have the power under S.4 of the Human Rights Act to make a “declaration of incompatibility” intended to effect a change in the law. However, even without the declaration of incompatibility, that change in the law occurred (see paragraph 49 below). Again, the alleged defect identified does not appear to have had a material impact in the circumstances of the case.

47. Given these four elements, the Court cannot see that, if it were to proceed to an examination of the cases on the merits, any violations it might find would have an impact beyond what has already been recognised and done at the domestic level. In this sense, the finding of a violation would be purely technical and insignificant, and accordingly the applications do not merit European supervision (see Sylka v. Poland ( dec. ), no. 19219/07, § 27, 3 June 2014).

48. In light of the above and looking at the circumstances as a whole, the Court does not consider that the first, second and third applicants have suffered a “significant disadvantage”.

(b) Does respect for human rights compel the Court to examine the case?

49 . As regards the question of whether respect for human rights compels it to examine the case, the Court observes that beyond the statements of the domestic courts in this case recognising the infringement of the applicants human rights, as noted above, the Code introduced in 2015 imposed a requirement to obtain authorisation from a judge, so addressing the problem which affected the applicants in this case (see paragraph 24 above). In light of this change in the law the Court does not consider that respect of human rights compels it to examine the case (see paragraph 35 above).

(c) Has the case been “duly considered by a domestic tribunal”?

50. As regards this third and final element, it is noted that the IPT examined the applicants ’ claim in substance. Accordingly, the case has been duly considered by a domestic tribunal.

(d) Conclusion

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 19 October 2017 .

             Renata Degener Kristina Pardalos              Deputy Registrar President

Appendix

No.

Application no.

Lodged on

Applicant

Represented by

25357/16

28/04/2016

Anthony FRANCE

Simons Muirhead and Burton, Solicitors, London

25514/16

05/05/2016

NEWS GROUP NEWSPAPERS LIMITED

Simons Muirhead and Burton, Solicitors, London

25552/16

05/05/2016

Tom NEWTON DUNN

Simons Muirhead and Burton, Solicitors, London

25597/16

05/05/2016

Craig WOODHOUSE

Simons Muirhead and Burton, Solicitors, London