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Covert surveillance at police station violates rights-violation of Article 8
PG and JH v United Kingdom
European Court of Human Rights (2001) The Times, 19 October
Keywords
Human Rights; Violation of European Convention of Human Rights, Arts 8 and 13; no violation of European Convention of Human Rights, Art. 6; authenticity of taped evidence; right to a fair trial
The Facts
The applicants were both British nationals. On 28 February 1995, Detective Inspector Mann received information that an armed robbery of a Securicor cash collection van was going to be committed on or around 2 March 1995 by the first applicant and B at one of several possible locations. Visual surveillance of B's home began the same day. No robbery took place. By 3 March, however, the police had been informed the robbery was to take place somewhere on 9 March 1995. In order to obtain further details, DI Mann applied for authorisation to install a covert listening device in B's flat.
On 4 March 1995, the chief constable gave oral authorisation and a listening device was installed in a sofa in B's flat the same day; the deputy chief constable gave retrospective written authorisation on 8 March 1995.
On 14 March 1995, the police requested itemised billing for calls from the telephone in B's flat. On 15 March 1995, B and others who were with him in his home discovered the listening device and abandoned the premises. The robbery did not take place. The applicants were arrested on 16 March 1995 in a stolen car containing two black balaclavas, five black plastic cable ties, two pairs of leather gloves and two army kitbags. As they wished to obtain speech samples to compare with the tapes, the police applied for authorisation to use covert listening devices in the applicants' cells and to attach listening devices to the police officers who were to be present when the applicants were charged.
Written authorisation was given by the chief constable and samples of the applicants' speech were recorded without their knowledge or permission. An expert concluded it was likely the first applicant's voice featured on the tape-recordings and very likely the second applicant's voice featured on them.
B and the applicants were charged with conspiracy to rob. During their trial, evidence derived from the use of the covert listening devices was deemed admissible and some documents, including parts of DI Mann's report, were withheld from the applicants and their lawyers. Oral evidence was also taken from DI Mann in the absence of the applicants or their lawyers.
The applicants were convicted on 9 August 1996 of conspiracy to rob and sentenced to 15 years' imprisonment. Their application to the Court of Appeal for leave to appeal was rejected.
The judgment
In its judgment, the European Court of Human Rights held:
I. Alleged violation of Article 8
A. Use of covert device at B's flat. Noting that the UK Government had conceded that the police surveillance of B's flat was not in accordance with the law existing at the time in question, the Court held that there had been a violation of Article 8.
B. Use of B's telephone. Observing that the information about the use of B's telephone was obtained and used in the context of an investigation and trial concerning a suspected conspiracy to commit armed robberies, the Court found that the measure was justified under Article 8.2, as necessary in a democratic society.
C. Use of listening devices in police station. The Court recalled that the lack of any express basis in law for the interception of telephone calls on public and private telephone systems and for using covert surveillance devices on private premises did not conform with the requirement of lawfulness: see Malone v United Kingdom (Series A, No. 82); Halford v UK (The Times 3 July 1997; (1997) 24 EHRR 523) and Khan v UK (The Times 23 May 2000; (2000) 31 EHRR 45).
It considered that no material difference arose where the recording device was operated, without the knowledge or consent of the individual concerned, on police premises. The underlying principle that domestic law should provide protection against arbitrariness and abuse in the use of covert surveillance techniques applied equally in that situation. The Court noted that the Regulation of Investigatory Powers Act 2000 contained provisions concerning covert surveillance on police premises. However, at the relevant time, there existed no statutory system to regulate the use of covert listening devices by the police on their own premises (see Comment).
The Court therefore held, unanimously, that the interference was not in accordance with the law as required by the second paragraph of Article 8.
II. Alleged violation of Article 6.1
A. Non-disclosure of evidence during trial. It was a fundamental aspect of the right to a fair trial that criminal proceedings, including the elements of such proceedings which related to procedure, should be adversarial and that there should be equality of arms between the prosecution and defence. The right to an adversarial trial meant, in a criminal case, that both prosecution and defence had to be given the opportunity to have knowledge of and comment on the observations filed and the evidence adduced by the other party: see Brandstetter v Austria ((1991) Series A No. 211, paragraphs 66 and 67).
In addition Article 6.1 required, as indeed did English law (see R v Ward (1993) 1 WLR 619), that the prosecution authorities should disclose to the defence all material evidence in their possession for or against the accused: see Edwards v UK (The Times 21 January 1993; (1992) Series A No. 247-B, paragraph 36). The Court was satisfied that the defence were kept informed and permitted to make submissions and participate in the decision-making process as far as was possible without revealing to them the material which the prosecution sought to keep secret on public interest grounds (see Jasper v UK; Fitt v UK (The Times 1 March 2000; (2000) ECHR 2000-II, paragraphs 55-58 and 48-50). The questions which the defence counsel had wished to put to the witness, DI Mann, were asked by the judge in chambers. The Court also noted that the material which was not disclosed in the present case formed no part of the prosecution case whatsoever, and was never put to the jury.
The fact that the need for disclosure was at all times under assessment by the trial judge provided a further, important safeguard in that it was his duty to monitor throughout the trial the fairness or otherwise of the evidence being withheld. In conclusion, therefore, the Court found unanimously that, as far as possible, the decision-making procedure complied with the requirements of adversarial proceedings and equality of aiiiis and incorporated adequate safeguards to protect the interests of the accused.
It followed that there had been no violation of Article 6.
B. Use at trial of taped evidence obtained by covert surveillance. The Court observed that the taped evidence at the trial was not the only evidence against the applicants. Furthermore, they had had ample opportunity to challenge both the authenticity and the use of the recordings.
It was also clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it.
The Court further considered that there was no unfairness in leaving it to the jury, on the basis of a thorough summing-up by the judge, to decide where the weight of the evidence lay. In so far as the applicants complained that the way in which the voice samples were obtained infringed their right not to incriminate themselves, the Court considered that the voice samples, which did not include any incriminating statements, could be regarded as akin to blood, hair or other physical or objective specimens used in forensic analysis, to which the right did not apply: see Saunders v UK (The Times 18 December 1996; Reports 1996-VI, at 2064-65, paragraph 69).
The Court therefore held, Judge Tulkens dissenting, that there had been no violation of Article 6.
III. Alleged violations of Article 13
The Court observed that the domestic courts were not capable of providing a remedy because it was not open to them either to deal with the complaint that the interference with the applicants'
right to respect for their private lives was not in accordance with the law or to grant appropriate relief in connection with the complaint. It further found that the system of investigation of complaints did not meet the standards of independence necessary to constitute sufficient protection against the abuse of authority and to provide an effective remedy within the meaning of Article 13. The Court therefore held unanimously that there had been a violation of Article 13 in respect of the use of covert listening devices.
IV. Application of Article 41
The Court awarded each applicant £1,000 for non-pecuniary damage and a total of £12,000 for costs and expenses.
The Decision
The use of covert listening devices at a police station violated Articles 8 and 13 of the European Convention of Human Rights which guaranteed, respectively, the right to respect for private life and the right to an effective remedy.
The European Court of Human Rights so held unanimously but it did not, however, find a breach of Article 6 guaranteeing the right to a fair hearing. It held unanimously that there had been no violation of that provision in respect of the nondisclosure of part of a report to the applicants at trial or the hearing of certain evidence in the absence of the applicants or their lawyers. It also held, by 6 votes to 1, that there had been no violation of Article 6 as concerned the use, at a trial, of materials obtained by covert listening devices.
Comment
It is germane to remind ourselves of the case of Khan, which reached the European Court of Human Rights (Khan v The United Kingdom (Application no. 35394/97), Judgment, Strasbourg, 12 May 2000); the House of Lords decision was reported in Police Journal in 1997.
The facts of the case of Khan
On 17 September 1992 the applicant arrived at Manchester airport on a flight from Pakistan. On the same flight was his cousin, N. Both men were stopped and searched by customs officials. N was found to be in possession of heroin with a street value of almost £100,000. He was interviewed and then arrested and charged. No drugs were found on the applicant. He too was interviewed, but made no admissions. He was released without charge. On 26 January 1993 the applicant visited a friend, B, in Sheffield. B was under investigation for dealing in heroin. On 12 January 1993 the installation of a listening device on B's premises had been 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. It was not expected or foreseen that the applicant would visit the premises. Neither B nor the applicant was aware of the aural surveillance equipment which had been installed by the police.
By means of that device the police obtained a tape-recording of a conversation, in the course of which the applicant admitted that he was a party to the importation of drugs by N on 17 September 1992. The applicant was arrested on 11 February 1993. Again he made no admissions when interviewed, but subsequently he and N were jointly charged with offences under the Customs and Excise Management Act 1979 and the Misuse of Drugs Act 1991 and committed for trial.
The trial took place in December 1993. The applicant pleaded not guilty. The applicant admitted that he had been present at the Sheffield address and that his voice was one of those recorded on the tape. It was admitted on behalf of the Crown that the attachment of the listening device had involved a civil trespass and had occasioned some damage to the property. Thereupon, the trial judge conducted a hearing on the `voire dire' as to the admissibility in evidence of the conversation recorded on the tape. The Crown accepted that without it there was no case against the applicant.
The trial judge ruled that the evidence was admissible. Following an amendment to the indictment, the applicant was re-arraigned and pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. On 14 March 1994 the applicant was sentenced to three years' imprisonment.
The applicant appealed to the Court of Appeal on the ground that the evidence ought to have been held to be 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 whether evidence of tape-recorded conversations, obtained by a listening device attached by the police to a private house without the knowledge of the owners or occupiers, was admissible in a criminal trial against the defendant.
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. The House of Lords noted that the question before it gave rise to two separate issues, the first being whether evidence of the taped conversations was admissible at all and the second whether, if admissible, it should none the less have been excluded by the trial judge in the exercise of his discretion at common law or under the powers conferred by s. 78 of the Police and Criminal Evidence Act 1984 (PACE). As to the former issue, the House of Lords held that there was no right to privacy in English law and that, even if there were such right, the common-law rule that relevant evidence which was obtained improperly or even unlawfully remained admissible, applied to evidence obtained by the use of surveillance devices which invaded a person's privacy. As to the latter issue, it was held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under s. 78 of PACE. The judge's discretion had to be exercised according to whether the admission of the evidence would render the trial unfair, and the use at a criminal trial of material obtained in breach of the right to privacy enshrined in Article 8 did not mean that the trial would be unfair. On the facts, the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of Article 8 were not such as to require the exclusion of the evidence. 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.
Decision of Court of Human Rights
Holds - unanimously that there has been a violation of Article 8 of the Convention;
Holds - by six votes to one that there has not been a violation of Article 6 of the Convention;
Holds - unanimously that there has been a violation of Article 13 of the Convention;
Dismisses - unanimously the remainder of the applicant's claim for just satisfaction.
There was a partly concurring, partly dissenting opinion by Mr Louc aides :
I agree with the majority that there have been violations of Articles 8 and 13 of the Convention in this case for the reasons set out in the judgment. However, I disagree with the finding of the majority that there has not also been a violation of Article 6.
This is now covered by the Regulation of Investigatory Powers Act.
This Act received Royal Assent on 28 July 2000 and large parts of the Act were brought into force on 25 September and 2 October of the same year.
The main purpose of the Act is to ensure that the relevant investigatory powers are used in accordance with human rights. These powers are:
·the interception of communications;
·intrusive surveillance (on residential premises/in private vehicles);
·covert surveillance in the course of specific operations;
·the use of covert human intelligence sources (agents, informants, undercover officers);
·the acquisition of communications data (for example billing data);
·access to encrypted data.
For each of these powers, the Act ensures that the law clearly covers:
·the purposes for which they may be used;
·which authorities can use the powers;
·who should authorise each use of the power;
·the use that can be made of the material gained;
·independent judicial oversight;
·a means of redress for the individual.
Not all of these matters need be dealt with in the Act; in many cases existing legislation already covers the ground. The Act works in conjunction with existing legislation, in particular the Intelligence Services Act 1994, the Police Act 1997 and the Human Rights Act 1998.
Overview
The Act is in five parts.
- 1.Interception of Communications and the Acquisition and Disclosure of Communications Data: The existing arrangements for the interception of communications are established in the Interception of Communications Act 1985. Significant changes to that Act were proposed in the Consultation Paper, 'Interception of Communications in the United Kingdom' (Cm 4368) published on 22 June 1999.
This Act repeals the 1985 Act and provides for a new regime for the interception of communications incorporating the changes proposed in the consultation paper. These changes go beyond what is strictly required for human rights purposes and provide also for the changed nature of the communications industry since 1985.
2
Surveillance and Covert Human Intelligence Sources: This Part provides a statutory basis for authorisation and use by the security and intelligence agencies, law enforcement and other public authorities of covert surveillance, agents, informants and undercover officers. It regulates the use of these techniques and safeguards the public from unnecessary invasions of their privacy.
3. Investigation of Electronic Data Protected by Encryption etc: This Part contains provisions to maintain the effectiveness of existing law-enforcement powers in the face of increasing criminal use of encryption. Specifically, it introduces a power to demand access to protected (encrypted) data.
4. Scrutiny of Investigatory Powers and Codes of Practice: This Part ensures that there will be independent judicial oversight of powers where necessary. It also establishes a Tribunal as a means of redress for those who wish to complain about the use of the powers. Finally, it provides for the Secretary of State to issue Codes of Practice covering the use of the powers covered by the Bill.
5Miscellaneous and Supplemental: This Part makes minor amendments to Part III of the Police Act 1997 in the light of operational experience and extends those provisions to the Ministry of Defence Police, the British Transport Police and the Service Police.
Both the Police Act and the Intelligence Services Act 1994 are amended to ensure authority is given for interference with property or wireless telegraphy only where it is proportionate to do so.
Rob Jerrard
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