Information Note on the Court’s case-law 189

October 2015

R.E. v. the United Kingdom - 62498/11

Judgment 27.10.2015 [Section IV]

Article 8

Article 8-1

Respect for private life

Covert surveillance of a detainee’s consultations with his lawyer and with the person appointed to assist him, as a vulnerable person, following his arrest: violation, no violation

Facts – Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) combined with the Covert Surveillance Code of Practice permits covert surveillance in certain circumstances.

Between 15 March 2009 and 8 May 2010 the applicant, an Irish national, was arrested and detained three times in connection with the murder of a police officer believed to have been killed by dissident Republicans. When first arrested he was assessed by a medical officer as being mentally vulnerable, which meant that he could not be interviewed in the absence of an appropriate adult (a relative or guardian). During the first two periods of detention his solicitor received assurances from the Police Service of Northern Ireland (PSNI) that his consultations with the applicant would not be subject to covert surveillance.

The applicant was arrested for the third time on 4 May 2010 before being released, without charge, four days later. On this occasion, the PSNI refused to give an assurance to his solicitor that their consultations would not be subject to covert surveillance. An application by the applicant for judicial review of that decision was dismissed in September 2010 after the High Court ruled that the statutory provisions governing covert surveillance were clearly defined and sufficiently detailed and precise.

Law – Article 8: The Co urt proceeded on the basis that there had been an interference with the applicant’s right to respect for his private life. The interference pursued the legitimate aims of protecting national security and preventing disorder and crime. It had a basis in dom estic law (RIPA and the Covert Surveillance Code of Practice), which law was sufficiently accessible. In view of their similarity in the special context of secret surveillance measures, the issue whether the domestic law was also adequately foreseeable was addressed jointly with the question whether the interference had been necessary in a democratic society.

(a) Surveillance of legal consultations – The Government had argued that under the Court’s case-law less stringent safeguards were required in covert surveillance cases (such as the applicant’s) than those the Court had laid down in interception-of-communication cases such as Weber and Saravia v. Germany and, in relation to Part I of RIPA, Kennedy v. the United Kingdom . The Court observed, however, tha t the decisive factor was not the technical definition of the interference, but the level of interference with the right to respect for private life.

The surveillance of legal consultations constituted an extremely high degree of intrusion and was analogous to the interception of a telephone call between a lawyer and client. Article 8 afforded “strengthened protection” to exchanges between lawyers and t heir clients, as lawyers would be unable to defend their clients if they were unable to guarantee that their exchanges would remain confidential. Consequently, the same safeguards from arbitrary interference were required for surveillance of legal consulta tions as in interception-of-communications cases, at least insofar as those principles could be applied to the form of surveillance in question.

The Court found that the relevant provisions were sufficiently clear as regards (i) the nature of the offences that could give rise to covert surveillance, (ii) the categories of persons liable to such surveillance and (iii) the duration, renewal and cancellation of the surveillance measures. However, it was not satisfied that the provisions of Part II of RIPA and the Covert Surveillance Code of Practice afforded persons affected by the surveillance of legal consultations with sufficient safeguards as regards the examination, use and storage of the material, the precautions to be taken when communicating the materia l to other parties, and the circumstances in which recordings were to be erased or the material destroyed. These provisions were to be contrasted with the more detailed provisions of Part I of RIPA and the Interception of Communications Code of Practice wh ich the Court had approved in Kennedy .* Further, although a new service procedure (the Police Service of Northern Ireland Service Procedure, “Covert Surveillance of Legal Consultations and the Handling of Legally Privileged Material”) had since put in plac e further safeguards for the secure handling, storage and destruction of material obtained through covert surveillance, it was not in force during the applicant’s detention in May 2010.

Consequently, during the relevant period of the applicant’s detention the impugned surveillance measures, insofar as they may have been applied to him, had not met the requirements of Article 8 § 2 of the Convention as elucidated in the Court’s case-law.

Conclusion : violation (unanimously).

(b) Surveillance of consultations between detainee and appropriate adult – The surveillance of consultations between a vulnerable detainee and an appropriate adult appointed to assist him or her following arrest also constituted a significant degree of intrusi on. However, the surveillance did not take place in a private place, but in a police station and, unlike legal consultations, consultations with an appropriate adult were not subject to legal privilege and did not attract the “strengthened protection” acco rded to consultations with lawyers or medical personnel. The detainee would not, therefore, have the same expectation of privacy as during a legal consultation. The Court therefore applied a less strict standard and focused on the more general question of whether the legislation adequately protected detainees against arbitrary interference with their Article 8 rights and was sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on whic h public authorities were entitled to resort to covert measures.

The Court concluded that the provisions concerning the possible surveillance of consultations between vulnerable detainees and appropriate adults had been accompanied by adequate safeguards a gainst abuse. In this connection it noted that: authorisations for surveillance had to be regularly reviewed and were cancelled if the criteria were no longer met; authorisation could only be granted for three months at a time and detailed records of all a uthorisations had to be kept; the scheme was supervised by surveillance commissioners; the admissibility of evidence obtained through surveillance was subject to the control of the trial judge; and aggrieved parties could bring a claim to the Investigatory Powers Tribunal, which had power to award compensation, to quash or cancel orders and to order the destruction of any records.

Conclusion : no violation (unanimously).

Article 41: EUR 1,500 in respect of non-pecuniary damage.

(See Weber and Saravia v. Germ any (dec.), 54934/00, 29 June 2006, Information Note 88 ; and Kennedy v. the United Kingdom , 26839/05, 18 May 2010, Information Note 130 )

* Part I of RIPA and the Interception of Communications Code of Practice limit the number of persons to whom intercepted material is made available and restrict the extent to which it is disclosed and copied; impose a broad duty to keep intercepted material secr et; prohibit disclosure to persons who do not hold the necessary security clearance or do not “need to know” about the material; criminalise the disclosure of intercept material; and require the secure storage of intercepted material and its secure destruc tion as soon as it is no longer required.

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

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