CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 10 mars 1989

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }  AS TO THE ADMISSIBILITY OF     Applications Nos. 11745/85 and 13595/88 by the CAMPAIGN FOR NUCLEAR DISARMAMENT and Others against the United Kingdom             The European Commission of Human Rights sitting in private on 10 March 1989, the following members being present:                   MM.   J.A. FROWEIN, Acting President                      S. TRECHSEL                      F. ERMACORA                      G. SPERDUTI                      E. BUSUTTIL                      G. JÖRUNDSSON                      A.S. GÖZÜBÜYÜK                      A. WEITZEL                      J.C. SOYER                      H.G. SCHERMERS                      H. DANELIUS                      G. BATLINER                      J. CAMPINOS                      H. VANDENBERGHE                 Mrs.   G.H. THUNE                 Sir   Basil HALL                 MM.   F. MARTINEZ                      C.L. ROZAKIS                 Mrs.   J. LIDDY                 Mr.   L. LOUCAIDES                   Mr.   H.C. KRÜGER, Secretary to the Commission             Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;     - ii -               Having regard to:   -        the application introduced on 30 July 1985 by the CAMPAIGN FOR NUCLEAR DISARMAMENT and Others against the United Kingdom and registered on 11 September 1985 under file No. 11745/85;   -        the application introduced on 9 January 1988 by the CAMPAIGN FOR NUCLEAR DISARMAMENT and Others against the United Kingdom and registered on 8 February 1988 under file No. 13595/88;           Having regard to the report provided for in Rule 40 of the Rules of Procedure of the Commission;           Having deliberated;           Decides as follows:   THE FACTS   The applicants           The first applicant, the Campaign For Nuclear Disarmament, is an unincorporated association founded in 1958.   The aim of the association popularly referred to as "CND" is to oppose the manufacture and use of nuclear weapons and to establish unilateral disarmament in the United Kingdom.   The first applicant has no affiliation to any particular political group.   It has 110,000 national members and 350,000 local group members, drawn from all shades of political opinion.           The second applicant, Joan Mary Ruddock, is a British citizen born in Pontypool, Wales in 1943.   She is currently Chairwoman of the first applicant.           The third applicant, John Idris Cox, is a British citizen born in Cardiff in 1935.   He is currently Vice-President of the first applicant.   He has been a member of the Communist Party of Great Britain since 1958 and has held office twice in the Executive Committee of the Communist Party of Great Britain.           The fourth applicant, David Bruce Kent, is a British citizen born in London in 1929 and is the General Secretary of the first applicant.           The applicants are represented by Mr.   Stephen Grosz, a solicitor, practising in London.           The applicants allege a series of incidents illustrating that members and officials of the first applicant are the subject of interference with mail and telephone services, surveillance and the collection, retention and dissemination of personal information.   These activities are carried out by or on behalf of the British security services, MI5 and Special Branch.   Telephone tapping           The applicants alleged a history of systematic interference with the telephones of members of the first applicant.           In her affidavit dated 12 July 1985, Ms.   Catherine Massiter deposed to the fact that the telephone communications of the third applicant had been intercepted by the security services from about August 1983.   She also deposed to the fact that this interception was undertaken primarily not for reasons of national security, but in order to be able to listen to the conversations which the second and fourth applicants had with the first applicant on the telephone.   This was done so that the security services might obtain information about the activities of the first applicant and its principal officers.   The second, third and fourth applicants applied to the High Court for leave to apply for judicial review, seeking to quash the warrant issued in respect of the third applicant and to prohibit the interception of their telephones.           In his judgment given on 2 September 1986, the Honourable Mr. Justice Taylor accepted Ms.   Massiter's evidence and found as a fact that the telephone conversations of the third applicant had been intercepted, though he went on to dismiss the applicants' application for judicial review on other grounds.           The second, third and fourth applicants continue to take part in the activities of the first applicant and contend that they are members of a class whose telephone communications are likely to be intercepted.           On 20 August 1987, the second, third and fourth applicants submitted applications to the Interception of Communications Tribunal established under the Interception of Communications Act 1985, in order to establish whether their telephone communications were subject to interference.           On 20 October 1987, the Interception of Communications Tribunal replied that it could find no contravention of the Act in relation to a relevant warrant.   Interception of mail           The applicants also complain of interception of postal communications.   Members of CND have repeatedly complained of receiving their mail torn, unsealed or otherwise tampered with, to an extent far greater than experienced by the general public.           For example, a CND member, Mrs.   Lewton, has received 16 damaged letters between 17 September 1984 and 12 January 1985, and further damaged mail since.   On complaint to the Post Office, who carried out an investigation into the matter, she was told that the damage would seem to have been caused by a combination of machine damage and poor enveloping.   She also complained to the Home Secretary through her M.P.   By letter dated 4 February 1985, the Home Secretary refused to confirm or deny that interception had taken place or been authorised.           Mail sent to and from CND offices has been received damaged and after unusual delay.   The Post Office again attributed damage to franking machines and faulty packing, although post office officials had previously examined CND packaging procedures and had found no fault.           In one incident on 14 February 1985, 14 letters arrived open at CND offices, Finsbury Park, London.   An employee of the local sorting office allegedly told a CND member that this and other tampering and delays are the result of systematic periodic interception of CND's postal communications.           Following the publicity surrounding the T.V. programme "MI5's Official Secrets", the Prime Minister appointed Lord Bridge to investigate allegations of improperly authorised interceptions of communications at or about the end of February 1985.   Lord Bridge found that no warrant had been issued in contravention of the relevant criteria.   Surveillance and personal files           The applicants further complain of other measures taken by MI5 and Special Branch to gain information.           In 1982, according to Ms.   Massiter's affidavit, an intelligence officer of MI5, a Mr.   Harry Newton, was infiltrated into CND headquarters under the guise of being a volunteer.   He supplied MI5 with information concerning CND activities and particulars of CND officials.   This information was recorded on MI5 files and was made available to the Ministry of Defence and to the Secretary of State for Defence for, inter alia, the purpose of political propaganda.   This included the agent's opinion that the fourth applicant is a crypto-communist.           In March 1983, Mr.   Stanley Bonnett, former editor of the CND magazine "Sanity", was persuaded by Special Branch officers to pass on details of the private lives and political activities of CND officials.           The applicants allege that MI5 keep personal files on active members of CND containing information gained from the above-mentioned surveillance techniques.   These files include inaccurate information, for example:   i)       the fourth applicant and Mrs.   Barbara Eggleston, Christian CND         organiser, are recorded as communist sympathisers;   ii)      the second applicant is recorded as being a contact of a         hostile intelligence service; and   iii)     Ms.   Cathy Ashton, former member of the CND executive committee         is recorded as being a communist sympathiser because she         shared accommodation with a member of the Communist Party ;   iv)      Roger Spiller, a vice-chairman of the first applicant, was         wrongly recorded as having been a member of the Young         Communist League.           The applicants also complain that the information in MI5 files was made available for political propaganda purposes.   In March 1983, the Secretary of State for Defence set up a special unit DS19 whose task was to combat CND propaganda on unilateral nuclear disarmament. This unit requested information from MI5 on the leading members of CND and according to Ms.   Massiter non-classified information was provided. The applicants also state that information held on files may be made available to the police or to other ministers and could be used when a subject applies for Government employment.           The fourth applicant in a letter dated 25 February 1983 contacted the Home Secretary and requested the opportunity to check the file allegedly held on him and to correct any mistakes which it contained.   The Home Secretary following a standard policy refused the request and would neither confirm nor deny the allegations.           On 23 November 1988, the Government introduced the Security Service Bill before Parliament, draft legislation which it has been announced will place the security service on a statutory basis.     RELEVANT DOMESTIC LAW AND PRACTICE           Prior to 1985, the criteria governing the propriety of, or authorising interceptions directed against, subversive activity and the considerations to be taken into account in applying these criteria were to be found in the following public documents:     (1)    Sir David Maxwell-Fyfe's Directive to the Director-General         of the Security Service in September 1952, paras. 2-5         (published in Command 2151);     (2)    the Birkett Report of October 1957 (Command 283), paras. 67,         68, 113 and 141;     (3)    the definition of "subversive activities" given by the         Minister of State of Greenwich on 26 February 1975: House of         Lords Debates, Col. 947;     (4)    the White Paper on Interceptions of April 1980 (Command 7837),         para. 6;     (5)    Lord Diplock's Report of March 1981 (Command 8191), the         conditions numbered (1) to (3) on page 4.   Interception of Communications Act 1985           In 1985, the Interception of Communications Act was passed and this Act came into force on 10 April 1986.           Section 1(1) of the Act provides that a person who intentionally intercepts a communication in the course of its transmission by post or by means of a public telecommunication system is guilty of an offence.   Proceedings in respect of an alleged offence can be brought only with the consent of the Director of Public Prosecutions.           Section 1(2)(a) of the Act provides that interception shall not be an offence if it is done pursuant to a warrant issued by the Secretary of State under the Act.           Section 2 of the Act empowers the Secretary of State, or in certain urgent cases one of his senior officials, to issue a warrant requiring the addressee to intercept such communications as are described in the warrant.   The warrant may also give directions as to the disclosure of such material.           A warrant may not be issued unless the Secretary of State considers that it is necessary:           a.   in the interests of national security; or           b.   for the purposes of preventing or detecting             serious crime; or           c.   for the purpose of safeguarding the economic             well-being of the United Kingdom.           In considering whether a warrant is necessary, the Secretary of State must take into account whether the information which it is considered necessary to acquire could reasonably be acquired by other means (Section 2(3)).           The Act also sets up a Tribunal, comprising five members, each of whom must be a barrister, advocate or solicitor of not less than ten years' standing.   Members are appointed by Her Majesty the Queen by Letters Patent (upon the recommendation of Ministers).   The present chairman is a member of the Court of Appeal.           Any person who believes that communications sent to or by him may have been intercepted in the course of their transmission by post or by means of a public telecommunications system may apply to the Tribunal.   Unless the application appears to it to be frivolous or vexatious the Tribunal must investigate:           a.   whether there has been a relevant warrant; and           b.   if so, whether the provisions of the Act relating             to issue, scope, duration and modification have             been complied with.           In reaching their conclusions on these matters, the Tribunal must apply the principles applicable by a court on an application for judicial review.           If the Tribunal conclude that there has been a contravention of the Act, they must notify the applicant, make a report of their findings to the Prime Minister and send a copy to the Commissioner established under the Act.   They may also quash the warrant, direct the destruction of copies of intercepted material and direct the Secretary of State to pay the applicant such compensation as they may specify.   If the Tribunal do not conclude that the provisions relating to warrants (Sections 2 to 5 of the Act) have been contravened, they must notify the applicant that "there has been no contravention of Sections 2 to 5 <of the Act> in relation to a relevant warrant...": Section 7(7).           Decisions of the Tribunal, including decisions as to their jurisdiction, are not subject to appeal or liable to be questioned in any court.           The Act also requires the Prime Minister to appoint as Commissioner a person who holds or has held high judicial office           a.   to keep under review the Secretary of State's             performance of his functions relating to warrants             and to the disclosure of intercepted material; and           b.   to give the Tribunal all such assistance as they             may require to carry out their functions.           The Commissioner acts of his own motion.   If it appears to him that the provisions relating to warrants have been contravened without the Tribunal having reported to the Prime Minister or that the safeguards relating to the disclosure of intercepted material have proved inadequate he must report to the Prime Minister.   He must also report annually to the Prime Minister with respect to the carrying out of his functions generally and his annual report is to be laid before Parliament, although the Prime Minister may exclude certain parts of the report before so laying it.   The present Commissioner is Lord Bridge of Harwich, a Lord of Appeal in Ordinary.           The Act also provides that no evidence may be adduced or question asked in evidence in any legal proceedings which tends to suggest:           a.   that a person holding office under the Crown,             the Post Office or public telecommunications             business has committed or is to commit an             offence of unlawful interception; or           b.   that a warrant has been or is to be issued             to such a person.   COMPLAINTS           The applicants claim that they are victims of practices of interferences with their right, under Article 8 of the Convention, to respect for their private life and correspondence.   They complain that their postal communications have been intercepted and that they have been subjected to other forms of surveillance and information gathering.   The information collected has been kept in personal files compiled by MI5 and has been made available to the Government for the purposes of political propaganda.   The applicants also complain that some of the information recorded is inaccurate and they are refused the opportunity to verify or correct the contents of their files. This situation is alleged to have led members of the first applicant to resign and the applicants contend that further members are likely to resign as a result of the threat of surveillance and that other people will be discouraged from joining.           The applicants submit that the said practices are not "in accordance with the law" and are not necessary for any of the purposes listed in Article 8 para. 2.   They refer in this respect to a statement by the Home Secretary in the House of Commons in which he accepted that the first applicant was not a subversive organisation in the sense that it intends to undermine or overthrow Parliamentary democracy.   They also contend that the interferences were effected at least in part for an interior purpose, namely party political propaganda, and therefore could not be justified in accordance with Article 18 of the Convention.   They also claim that there are no or no sufficient legal limits on the circumstances in which and the manner in which such interferences can be effected and no safeguards against abuse.   They contend that the activities of MI5 and Special Branch are subject to no legal constraints but governed only by informal and unenforceable guidelines promulgated from time to time by the relevant ministers.           The applicants further claim that there are no or no effective remedies before a national authority in respect of their complaints contrary to Article 13 of the Convention.   They argue in particular that the Interception of Communications Act 1985 does not provide adequate safeguards against abuse or an effective remedy for their complaints.           To the extent that the applicants are unable to point to specific measures of intervention taken against them, they submit that:   a)       they are victims of violations occasioned by the existence of         a legislative situation permitting secret measures of         surveillance to be taken against them; and   b)       they are members of a class of person - members of a peace         movement - against whom such measures are likely to be         employed.     PROCEEDINGS BEFORE THE COMMISSION           These applications were introduced on 30 July 1985 and 9 January 1988 and registered on 11 September 1985 and 8 February 1988 respectively.   On 14 March 1986 the Commission decided to adjourn the first of these cases pending the outcome of the judicial review proceedings.           On 15 April 1988, the Commission decided to join the applications and to bring them to the notice of the respondent Government and invite them to submit written observations on admissibility and merits.           On 29 September 1988, the United Kingdom Government submitted its written observations following one eight week extension in the time limit and a further six week extension.   By a letter dated 28 November 1988, the applicants' solicitor informed the Secretariat that having had an opportunity to consider the Government's response and to take instructions from the applicants, he was now instructed to withdraw both applications in their entirety.     REASONS FOR THE DECISION           The Commission notes that the applicants wish to withdraw both applications in their entirety.   The Commission considers that there are no reasons of a general character affecting the observance of the Convention which necessitate a further examination of the case.           For these reasons, the Commission           DECIDES TO STRIKE THE APPLICATIONS OFF ITS LIST OF CASES.       Secretary to the Commission          Acting President of the Commission                (H.C. KRÜGER)                           (J.A. FROWEIN)