CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 26 février 1997

.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                         Application No. 27237/95                       by Michael GOVELL                       against the United Kingdom        The European Commission of Human Rights (First Chamber) sitting in private on 26 February 1997, the following members being present:              Mrs.   J. LIDDY, President            MM.    E. BUSUTTIL                  A. WEITZEL                  C.L. ROZAKIS                  L. LOUCAIDES                  B. MARXER                  B. CONFORTI                  N. BRATZA                  I. BÉKÉS                  G. RESS                  A. PERENIC                  C. BÎRSAN                  K. HERNDL                  M. VILA AMIGÓ            Mrs.   M. HION            Mr.    R. NICOLINI              Mrs.   M.F. BUQUICCHIO, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 26 May 1994 by Michael GOVELL against the United Kingdom and registered on 3 April 1995 under file No. 27237/95;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      25 June 1996 and the observations in reply submitted by the      applicant on 6 September 1996;        Having deliberated;        Decides as follows:   THE FACTS   a.    Circumstances of the case.        The applicant is a British citizen, born in India in 1958 and presently detained in Leeds Prison, Leeds.   He is represented by Mr. John Wadham of Liberty.        In February 1992 the applicant was living in Leeds in a house at 149 Sandringham Drive, together with his wife.   He was subjected to police surveillance: the police drilled a hole into his living room wall from the adjoining house that would have enabled someone to listen from next door or to attach a listening device; the police installed camera equipment in the next door property, and the applicant believes that his flat was entered when he and his wife were out.        By letter dated 8 June 1992, the applicant made a complaint to the Police Complaints Authority ("PCA") through his then solicitors. He asked for a full investigation into the matter.        On 3 July 1992, an investigating officer was appointed by the chief officer to carry out a formal investigation into the applicant's complaint.   The investigation was completed on 15 October 1992.        On 9 December 1992 the report of the investigation was submitted by the Chief Constable to the Director of Public Prosecutions ("DPP") for his advice.   By letter dated 24 March 1993, the Crown Prosecution Service ("CPS") stated that it had:        "reached the conclusion that the evidence is not sufficient to      justify a prosecution, and ... informed the Deputy Chief      Constable of [its] decision".        In the light of that advice, the Assistant Chief Constable of the West Yorkshire Police by letter dated 7 April 1993, wrote to the PCA stating that in his opinion the evidence that was available was not sufficient to justify disciplinary charges parallel to the criminal charges which had already been considered.   The Deputy Chairman of the PCA was personally responsible for reviewing the evidence resulting from the investigation.   In accordance with section 98 of Police and Criminal Evidence Act 1984 ("the 1984 Act") and regulation 8 of the Police (Complaints) (General) Regulations 1985, he reviewed the evidence resulting from the investigation and wrote to the applicant on 10 May 1993 in the following terms:        "Your two specific complaints have been investigated in detail,      statements have been taken from police officers and also      witnesses from amongst your friends and neighbours.        Your first complaint - that your privacy was invaded without      justification - has provided a technical problem in that invasion      of privacy, per se, is not a criminal offence in this country,      neither does the allegation fit easily into the police discipline      code.        I have therefore considered the evidence adduced from the      investigation against a possible disciplinary charge of abuse of      authority.        It is not denied by any of the officers concerned that      investigations were being carried out into areas in which you are      alleged to have an interest.   However evidence has been produced      from the investigation to show that all investigations and      methods of investigation were carried out within the correct      procedures and with the necessary authorisations.   To that extent      therefore there is no evidence to support a charge under the      provisions of Paragraph 8 of Schedule 1 of the Police Discipline      Regulations - Abuse of Authority, or indeed any other paragraph      of these regulations...        Whilst the Authority might wish to provide you with more detail      from the investigation so as to allay any dissatisfaction you may      feel, I have to advise you with regret that all statements given      in the course of the investigation are covered by public interest      immunity and may not be revealed without an appropriate order of      the court."        On 4 October 1993 the applicant was granted leave to judicially review the decisions of the PCA and the Chief Constable.   He contended that they had erred in law and/or failed in their respective duties to carry out a full and proper investigation having not considered whether the applicant's complaint as a matter of fact was made out, and if so, whether the acts and matters complained of disclosed the commission of the tort of trespass by one or more police officers and/or disclosed breaches of Articles 6, 8, 10 and 13 of the Convention.        By affidavit sworn for the purposes of the judicial review proceedings, the Superintendent of the West Yorkshire Police, stated that the following matters were established in the course of the investigation:        "a)    The [applicant], ... was a man who the regional Crime            Squad had reasonable cause to suspect was involved in            large-scale and serious crime.        b)     Proper authority was sought and received to place a            listening device in the partition wall between the            house occupied by [the applicant] and the adjoining            house.        c)     That device was removed on or before the expiry of the            authorised period and all damage was made good."        The applicant requested disclosure of the Investigation Report, the relevant Home Office Guidelines on the authorisation of surveillance ("the Home Office Guidelines"), the letter of 9 December 1992 from the Chief Constable to the Director of Public Prosecutions and the letter from the Assistant Chief Constable to the PCA dated 7 April 1993.   Disclosure was refused by the West Yorkshire Police Authority on the basis that the documents were covered by Public Interest Immunity. However, the applicant does not appear to have asked the Court to order disclosure and a copy of the Home Office Guidelines appears to have come into the hands of the applicant's representatives by some other means. The documents seeking authority for the action taken and the documents authorising the action taken were disclosed by the West Yorkshire Police Authority.        The application for judicial review was heard in the High Court on 23 May 1994.   Lord Justice Kennedy and Mr. Justice Alliot found that the applicant had been subject to surveillance, but that the affidavit evidence disclosed no evidence of damage to property or furniture and only disclosed the drilling of one hole (see judgment of 23 May 1994 in R v (1) the Chief Constable of the West Yorkshire Police and (2) the Police Complaints Authority ex. parte. Govell, p. 2G).   The judges could see no basis for the applicant's claims that the PCA and the Chief Constable had failed to carry out their duties or exercise their discretion correctly and dismissed the application.        On 26 May 1994, the applicant applied for legal aid to commence an action for damages against West Yorkshire Police.   In February 1995, that application for legal aid was refused on appeal.        The applicant was detained in prison on remand in respect of charges relating to the possession of drugs.        On 8 January 1996 the applicant was convicted in Edinburgh High Court of two offences of supplying controlled drugs and two offences of possession of a controlled drug with intent to supply.   He was sentenced to seven, ten, five and five years for each offence respectively, to be served concurrently.        On 13 March 1996 the applicant lodged an appeal against conviction and sentence.   b.    Relevant domestic law and practice.   The Home Office Guidelines        The Guidelines on the use of equipment in police surveillance operations ("the Home Office Guidelines") are non-statutory guidelines intended to guide police authorities as to the use of surveillance. They provide as follows:        "II.   COVERT USE OF LISTENING DEVICES        Principles        4.     In each case in which the covert use of a listening device      is requested the authorising officer should satisfy himself that      the following criteria are met:              a)     the investigation concerns serious crime;              b)     normal methods of investigation must have been tried            and failed, or must, from the nature of things, be unlikely            to succeed if tried;              c)     there must be good reason to think that use of the            equipment would be likely to lead to an arrest and a            conviction, or where appropriate, to the prevention of acts            of terrorism;              d)     use of equipment must be operationally feasible.        5.     In judging how far the seriousness of the crime under      investigation justifies the use of particular surveillance      techniques, authorising officers should satisfy themselves that      the degree of intrusion into the privacy of those affected by the      surveillance is commensurate with the seriousness of the offence.      Where the targets of the surveillance might reasonably assume a      high degree of privacy, for instance in their homes, listening      devices should be used only for the investigation of major      organised conspiracies and of other particularly serious      offences, especially crimes of violence.        6.     The covert use in operations of listening, recording and      transmitting equipment (for example microphones, tape recorders      and tracking equipment) requires the personal authority of the      chief officer.        ...        III. VISUAL SURVEILLANCE        13.    Visual surveillance measures are more varied in form and      are used in a greater variety of circumstances than listening      devices.   In some case controls similar to those relating to      listening devices need to be applied.   In other cases different      forms of control are more appropriate.   But care nevertheless      needs in all cases to be exercised over their authorisation and      use.        Covert use in investigations        14.    Where the target individual is to be observed in a private      place..., the same principles and procedures should be observed      as those which apply to the use of listening devices.   In      particular, the chief officer should be personally responsible      for authorising the use of the equipment, and should not delegate      that authority except where the equipment is to be :              a)     knowingly used by a person other than a police officer      who is a party to events which are to be observed or recorded;              b)     used by a police officer whose presence is known to at      least one of the non-police subjects of the observation or      recordings;              c)     installed in premises, with the consent of the lawful      occupier, to observe or record events in circumstances where at      least one of the participants in these events will know of the      surveillance.              In these cases authority may be given by an Assistant Chief      Constable."   The Police and Criminal Evidence Act 1984        Part IX of the Police and Criminal Evidence Act 1984   ("the 1984 Act") governs the investigation into complaints against police officers.   The authority responsible for investigating the complaint is determined according to the status of the individual officer complained about.   Section 84 reads as follows:        "(1)   Where a complaint is submitted to the chief officer of      police for a police area, it shall be his duty to take any steps      that appear to him to be desirable for the purposes of obtaining      or preserving evidence relating to the conduct complained of.        (2)    After performing the duties imposed on him by subsection      (1)    above, the chief officer shall determine whether he is the      appropriate authority in relation to the officer against whom the      complaint was made."   The "appropriate authority is defined in section 84(4) as follows:        "in relation to an officer [of a ] police force [other than the      metropolitan police]-        (i)    if he is a senior officer, the police authority for the      force's area; and        (ii)   if he is not a senior officer, the chief officer of the      force."        It is therefore for the chief officer to decide which authority is the appropriate authority to carry out the investigation, having regard to the rank of the officer against whom the complaint is made.        In circumstances where the officer complained about is below the rank of Chief Superintendent, (as was presumed to be the case here), the standard procedure laid down in section 85 is followed.   That section provides as follows:        "(1)   If a chief officer determines that he is the appropriate      authority in relation to an officer about whose conduct a      complaint has been made and who is not a senior officer, he shall      record it.      (2)    After doing so he shall consider whether the complaint is      suitable for informal resolution and may appoint an officer from      his force to assist him.      (3)    If it appears to the chief officer that the complaint is      not suitable for informal resolution, he shall appoint an officer      from his force or some other force to investigate it formally.      (4)    If it appears that it is suitable for informal resolution,      he shall seek to resolve it informally and may appoint an officer      from his force to do so on his behalf.            (5)    If it appears to the chief officer after attempts have            been made to resolve a complaint informally-            (a)    that informal resolution of the complaint is            impossible; or            (b)    that the complaint is for any other reason not            suitable for informal resolution he shall appoint an            officer from his force or some other force to investigate            it formally.      (6)    An officer may not be appointed to investigate a complaint      formally if he has previously been appointed to act in relation      to it under subsection (4) above.      (7)    If a chief officer requests the chief officer of some other      force to provide an officer of his force for appointment under      subsection (3) or (5) above, that chief officer shall provide an      officer to be so appointed.      (8)    No officer may be appointed under this section unless he is            (a)    of at least the rank of chief inspector; and            (b)    of at least the rank of the officer against whom the            complaint is made.      (9) Unless the investigation is supervised by the Authority [the      PCA] under section 89 below, the investigating officer shall      submit his report on the investigation to the chief officer.      (10)   A complaint is not suitable for informal resolution unless-            (a) the member of the public concerned gives his consent;            and            (b) the chief officer is satisfied that the conduct            complained of, even if proved, would not justify a criminal            or disciplinary charge."        As regards an investigation into police surveillance, Lord Justice Kennedy in R v. (1) the Chief Constable of the West Yorkshire Police and (2) the Police Complaints Authority ex. p. Govell (referred to above), accepted the submissions of the Respondents that it was appropriate in such an investigation to consider first whether the police were involved at all and then, if so, whether the officers who used the listening device had the proper authority.   If they did the investigation could stop at that stage, without it being necessary to go on to consider whether the senior officer, in giving authority, was acting in accordance with the Home Office Guidelines, unless something emerged that indicated that they had been contravened.   Only in that context would it be appropriate for an officer of the rank of Superintendent to have regard to the existence of the guidelines themselves (see pp. 10-11 transcript ibid).        Having carried out an investigation into the conduct of a senior officer, the chief officer must send a copy of the report to the DPP unless he is satisfied that no criminal offence has been committed (s. 90(1) 1984 Act).   If the investigation was concerned with an officer who was not a senior officer, it is for the chief officer to determine whether a criminal offence may have been committed and whether the individual should be charged (s. 90(3) ibid).   If he considers that to be the case, he must send a copy of the Report to the DPP (s. 90(4) ibid).   The chief officer must then send a memorandum to the PCA indicating the conclusions reached and the course he intends to adopt (s. 90(5)-90(10) ibid.).   If a chief officer's memorandum states that he proposes to prefer disciplinary charges or has done so, it shall be his duty to prefer and proceed with them (s. 90(10) ibid.).   The Police Complaints Authority ("the PCA")        The PCA supervises investigations referred to it under s. 88 of the 1984 Act by the appropriate authorities (s.89(2) ibid.) or when the complaint alleges that the conduct of the relevant officer resulted in serious injury or death (s. 89(1) ibid.).   It may also require the appropriate authority to refer a complaint to it (s. 87(2) ibid.).   It may refer reports to the DPP under s. 92, which provides as follows:        "(1) When a chief officer of police has performed all duties      imposed on him by section sections 90 and 91 above in relation      to the report of an investigation concerning the conduct of an      officer who is not a senior officer, it shall be the duty of the      Authority [PCA]            (a)    to determine whether the report indicates that a            criminal offence may have been committed by that officer;            and            (b)    if so, to consider whether the offence is such that            the officer ought to be charged with it.      (2) If the Authority consider that the officer ought to be      charged, it shall be their duty to direct the chief officer to      send the Director of Public Prosecutions a copy of the report."        The PCA may direct the preferring of disciplinary charges under s. 93 of the 1984 Act, which provides as follows:        "(1)   Where a memorandum under section 90 above states that chief      officer of police has not preferred disciplinary charges or does      not propose to do so, the Authority may recommend him to prefer      such disciplinary charges as they may specify.      (2)    Subject to subsection (6) below, a chief officer may not      withdraw charges which he has preferred in accordance with a      recommendation under subsection (1) above.      (3)    If after the Authority have made a recommendation under      this section and consulted the chief officer he is still      unwilling to prefer such charges as the Authority consider      appropriate, they may direct him to prefer such charges as they      may specify.      ...      (5)    Subject to subsection (6) below, it shall be the duty of a      chief officer to prefer and proceed with charges specified in      such a direction.      (6)    The Authority may give a chief officer leave-            (a)    not to prefer charges which section 90(10) above or            subsection (5) above would otherwise oblige him to prefer;            or            (b)    not to proceed with charges with which section 90(10)            above or subsection (2) or (5) above would otherwise oblige            him to proceed."        In carrying out its functions under s. 93, the PCA must take into account guidance from the Secretary of State (s. 105(4) ibid.) and must report to the Secretary of State should the Secretary of State so request (s.97 ibid.). Strict rules relating to the disclosure of information received by the PCA are laid down in s. 98 ibid.   COMPLAINTS   1.    The applicant complains that the surveillance by the police constituted a violation of his right to respect for his private and family life, home and correspondence as guaranteed under Article 8 of the Convention. In particular, he submits that the interference with these rights was not "in accordance with law" within the meaning of the second paragraph of Article 8. The use of listening devices has no basis in domestic law and the power to engage in secret surveillance is not laid down with precision in accessible legal rules which sufficiently indicate the scope and manner of the exercise of the discretion conferred on the relevant authorities. In addition, there are no adequate safeguards against abuse in existence and any interference accordingly cannot be regarded as "necessary in a democratic society".   The applicant further contends that he is subject to an ongoing violation of Article 8, since there is a reasonable likelihood that he has been subject to further surveillance since the events described in the application, and risks becoming the subject of further surveillance in the future.   2.    The applicant also contends that he had no effective domestic remedy for his complaints in violation of Article 13 of the Convention. He considers that he is also subject to an ongoing violation of Article 13 for the same reasons as in respect of Article 8, set out above.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 26 May 1994 and was registered on 3 April 1995.        On 12 April 1996 the Commission decided to communicate the application and to ask the respondent Government for written observations on its admissibility and merits.        The Governments' observations were submitted on 25 June 1996 and the applicant's observations in reply were submitted by letter dated 6 September 1996, after one extension in the time-limit for the purpose.   THE LAW   1.    The applicant complains that he has been subject to surveillance by the police amounting to an interference in his right to respect for his private and family life as guaranteed by Article 8 (Art. 8) of the Convention.   That provision provides as follows.        "1.    Everyone has the right to respect for his private and      family life, his home and his correspondence.        2.     There shall be no interference by a public authority with      the exercise of this right except such as is in accordance with      the law and is necessary in a democratic society in the interests      of national security, public safety or the economic well-being      of the country, for the prevention of disorder or crime, for the      protection of health or morals, or for the protection of the      rights and freedoms of others."        The Government do not comment on whether or not they consider there to have been an interference in the applicant's right to respect for his family and private life.   They claim however that the surveillance activities were in accordance with the law, the Home Office Guidelines having been publicly announced and being accessible, despite their not having statutory force.   They state that the Home Office will disclose the guidelines on application to that department. Further, they submit that the guidelines confine the use of surveillance to activities intended to prevent and detect crime, and provide rules which, unless disobeyed, ensure that surveillance is not carried out where other methods of investigation are practicable or when it is no longer necessary for the relevant purpose to continue with the surveillance.        They further submit that guarantees against abuse are afforded by the PCA, an independent body that has power to sanction any breach of the rules through the use of disciplinary proceedings or, in the case of a potentially criminal offence, by referring the matter to the DPP.        As to whether the measures are necessary for the prevention of crime, the Government submit that the facts of this case demonstrate how important secret surveillance was in investigating the applicant. Reference is made to intelligence sources that the Government claim reveal that the applicant was a leading criminal in West Yorkshire, selling counterfeit goods and using the profit to obtain and distribute Class A drugs of high value.   They state that, as a result of intelligence, the applicant was arrested in a car on his way to Glasgow in possession of Class A drugs and that his associates were arrested in Glasgow while attempting to meet him, also in possession of Class A drugs.   They submit that there is no material to suggest that the use of the techniques in this case was disproportionate.   Consequently they claim that the interference in the applicant's private life was justified within the meaning of Article 8 para. 2 (Art. 8-2) of the Convention.        The applicant submits that the actions of the West Yorkshire Police went to the heart of the notion of "private and family life" within the meaning of Article 8 (Art. 8) of the Convention since they included listening to the applicant's conversations and discussions in his home, including conversations with his wife, giving rise to an infringement of Article 8 para. 1 (Art. 8-1).        The applicant submits that the interference was not in accordance with the law; the power to engage in secret surveillance, in particular, the power to install bugging devices, not being laid down with precision in accessible rules that sufficiently indicate the scope and manner of exercise of the discretion conferred on the relevant authorities.   The applicant emphasises the lack of legislative basis for the use of listening devices or bugs, the fact that breach of the Home Office Guidelines does not render the installation and use of listening devices illegal and the internal nature of the Home Office Guidelines, that he claims are not available to the public.        The applicant submits that in accordance with the Court's reasoning in Klass v. Germany, (Eur. Court HR judgment of 6 September 1978, Series A no. 28) and Malone v. United Kingdom (Eur. Court HR, judgment of 2 August 1984, Series A no. 82), the installation of secret surveillance equipment and bugging devices can only be considered to be necessary in a democratic society, where there exist adequate safeguards against abuse, and that no such safeguards exist in this case.   Unlike the case of the Commissioners and Tribunals established under the Security Services Act 1989 and the Intelligence Services Act 1994, which are independent of MI5, MI6 and GCHQ, investigations by the PCA are carried out by the police themselves. In this case the Chief Constable for the West Yorkshire Police was, in effect, asked to investigate whether his officers had properly applied to his assistant, the Deputy Chief Constable, for authorisation to install and use a listening device or bug in the applicant's home. The applicant states that he has no faith in such an investigation and considers that the intrusive nature of such surveillance requires more stringent protections against abuse.   In the circumstances, he claims the requirement that any interference in his rights safeguarded under Article 8 para. 1 (Art. 8-1) is "necessary in a democratic society" within the meaning of Article 8 para. 2 (Art. 8-2) cannot be said to have been met.   2.    The applicant also contends that he had no effective domestic remedy for his complaints in violation of Article 13 (Art. 13) of the Convention, which provides as follows.        "Everyone whose rights and freedoms as set forth in this      Convention are violated shall have an effective remedy before a      national authority notwithstanding that the violation has been      committed by persons acting in an official capacity."        The Government submit that Article 13 (Art. 13) only applies in cases where there is an arguable claim that there has been a violation of the Convention. Insofar as the matters raised under Article 13 (Art. 13) again raise the issue of whether there was an effective guarantee against abuse, the Government repeat their submissions made in relation to the PCA, and add that the High Court has a supervisory jurisdiction over the authority should it breach its rules of procedure or act irrationally.        The applicant submits that a complaint to the PCA does not provide adequate protection from abuse since the Home Office Guidelines are not legally binding in any sense and breach of the guidelines thus has no effect in law.   He further submits that since the Home Office Guidelines are not in the public domain, citizens and their lawyers cannot make meaningful complaints as to suspected violations thereof. In any event, the PCA can only consider whether any given conduct amounts to a breach of police disciplinary regulations or a criminal offence.   In certain circumstances a breach of the Home Office Guidelines will not amount to a breach of disciplinary regulations or a criminal offence such that there will be no sanction for that failure to comply with the guidelines.   3.    The Commission considers, in the light of the parties' submissions, that the above complaints raise complex issues of law and fact under the Convention, the determination of which should depend on an examination of the merits of the application as a whole.   The Commission concludes, therefore, that these complaints are not manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   No other grounds for declaring them inadmissible have been established.        For these reasons, the Commission, unanimously,        DECLARES THE APPLICATION ADMISSIBLE, without prejudging the      merits.     M.F. BUQUICCHIO                                  J. LIDDY      Secretary                                     President to the First Chamber                          of the First Chamber