Information Note on the Court’s case-law 47

November 2002

Allan v. the United Kingdom - 48539/99

Judgment 5.11.2002 [Section IV]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Self-incrimination – eliciting of confession by police informer placed in suspect's cell: violation

Facts : While the applicant was remanded in custody along with another man, G., on suspicion of robbery, their cell and the visiting area which they used were placed under covert audio and video surveillance by the police in connection with a murder investigation. Conversations between the two men and between the applicant a visitor were recorded. Subsequently, a police informer, H., w as placed in the applicant's cell for the purpose of eliciting information from him. H., who had been fitted with a recording device, made a statement in which he asserted that the applicant had admitted his presence at the scene of the murder. The admissi on had not been recorded and there was no other evidence connecting the applicant to the murder. At the applicant's trial, his lawyer unsuccessfully challenged the admissibility of the covert recordings and of the evidence from H. The applicant was convict ed and sentenced to life imprisonment. He was refused leave to appeal.

Law : Article 8 – At the relevant time there existed no statutory system to regulate the use of covert recording devices by the police and the interferences were therefore not “in accord ance with the law”.

Conclusion : violation (unanimously).

Article 6 § 1 – The recordings were not unlawful in the sense of being contrary to domestic criminal law and there was no suggestion that any admissions made during the conversations with the G. and the visitor were elicited by coercion or that there was any entrapment or inducement. An assessment of the strength or reliability of the evidence concerned was not a straightforward matter and in those circumstances the existence of fair procedures took o n particular importance. In that respect, the applicant's lawyer was able to challenge the admissibility of the recordings, the trial judge gave a careful ruling and the decision was reviewed in the leave to appeal proceedings. The Court was not persuaded, therefore, that the use at the applicant's trial of the recordings of conversations with G. and the visitor conflicted with the requirements of fairness under Article 6. However, the way in which H. was used to obtain evidence raised more complex issues. The right to remain silent serves in principle to protect the freedom of a suspect to choose whether to speak or remain silent under police questioning and such freedom is effectively undermined if the authorities use subterfuge to elicit a confession or o ther incriminating statements. In the present case, the admissions allegedly made to H. were not spontaneous and unprompted but were induced by the persistent questioning of H. who, at the instigation of the police, channelled the conversations in circumst ances which could be regarded as the functional equivalent of interrogation, without any of the safeguards which would attach to a formal police interview. While there was no special relationship between the applicant and H. and no direct coercion had been identified, the applicant would have been subject to psychological pressures which impinged on the voluntary nature of the admissions. In those circumstances, the information gained by using H. in that way could be regarded as having been obtained in defi ance of the applicant's will and its use at his trial impinged on his right to remain silent and the privilege against self-incrimination.

Conclusion : violation (unanimously).

Article 13 – The Government accepted that the applicant did not have an effective remedy at the relevant time in respect of the complaints under Article 8.

Conclusion : violation (unanimously).

Article 41 – The Court awarded tha applicant 1,642 € in respect of non-pecuniary damage for the violations of Articles 8 and 13. It considered that the finding of a violation of Article 6 § 1 constituted sufficient just satisfaction in that respect. It also made an award in respect of costs and expenses.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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