CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 23 novembre 2004

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Casadevall , President ,   Sir   Nicolas Bratza ,   Mr   G. Bonello ,   Mr   R. Maruste ,   Mr   S. Pavlovschi ,   Mr   L. Garlicki ,   Mr   J. Borrego Borrego, judges , and   Mr   M. O'Boyle , Section Registrar , Having regard to the above application lodged on 29 May 2002, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS The applicant, John Colin Campbell Jordan, is a United Kingdom national, who was born in 1923 and lives in Harrogate. The respondent Government are represented by Mr John Grainger of the Foreign and Commenwealth Office, London. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. On 27 July 1998, a search warrant was issued against the applicant under Section 24(1) of the Public Order Act 1986 in connection with an investigation into suspected offences involving the possession and distribution of racially inflammatory material. A large number of items of property, including papers, were seized in the course of a search at the applicant's home on 4 August 1998. An application by the applicant for permission to apply for judicial review of the decision to retain and sift through the documents was refused by a High Court judge as the judge considered that the police had acted both reasonably and lawfully in seizing and retaining the material for their investigation. A renewed application was dismissed by the High Court on 1   November 1999. On 19 April 2000 the applicant was charged with offences under the Public Order Act 1986, and on 2 November 2000 he was committed to stand trial. The applicant was charged together with another man, H. The applicant applied for a stay of the proceedings on the ground that he was too ill to stand trial. The stay was granted by the Crown Court on 23   November 2001. After hearing the prosecution, the applicant and the medical evidence, the judge stated: “... It is obvious that Mr Jordan is not fit to conduct his own defence as is his right .. And, indeed, it may well be the case that he is not fit to be tried even if counsel were able to represent him. I must say that, having seen Mr Jordan in court and having heard Mr Jordan, he is able to put his case forcibly and eloquently, although that may be on the medical evidence before me only over very short periods of time. I have therefore come to the conclusion that I should apply a stay in this case but it will not be a permanent stay. I intend to apply to this indictment a conditional stay. The indictment will be stayed upon the following conditions which I have had the opportunity of canvassing both with [counsel] on behalf of the Crown and Mr   Jordan and it is right to say Mr Jordan does not agree with them, but they are the conditions which I impose. Firstly, that the stay will continue to apply providing that, one, the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried; and, secondly, providing that the defendant does not engage in any activity, either political, social or personal, which demonstrates to the satisfaction of a court that he is in fact able to stand his trial, irrespective of his medical condition.” The formal order incorporating that ruling reads as follows: “The indictment be conditionally stayed against John Colin Campbell Jordan and the stay will continue to apply: 1.   Providing the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried. 2.   Providing the defendant does not engage in any activities either political, social or personal which demonstrates to the satisfaction of a court that he is in fact able to stand his trial irrespective of his medical condition.” On 23 November 2001, after the ruling on a stay of the proceedings, the Crown Court discussed the question of materials which were still retained. The prosecution stated that they had offered to return seized material which was not relevant to the prosecution of the co-defendant, but that the applicant had stated that he wanted all of the material or none of it. The applicant did not accept the prosecution's claim, and maintained that “special procedure material” should never have been seized under the warrant. At the end of the discussions, the judge stated that all the seized material which was not of assistance to the co-defendant or the prosecution in the case against the co-defendant would be returned to the applicant. The applicant tried to challenge, by an application for judicial review, both (i) the conditions of the stay and (ii) the fact that his property had not been returned. Mr Justice Munby refused leave on 6 February 2002, and in so doing made the following comments: “1.   Despite what is said by the LCD [the Lord Chancellor's Department] and the CPS [the Crown Prosecution Service] I have some disquiet about the propriety of staying an indictment on terms which might appear to suggest that freedom from future prosecution is to be in some way dependent upon abstention from political activity. 2.   But (i) most of this application for [judicial review] is plainly barred by [the Supreme Court Act] 1981 Section 29 (3) and I can see no even arguable basis for saying that Section 29 (3) is not Convention compatible and (ii) that part which is not so barred is plainly without merit – the application in relation to the property is, at least in the first instance, a matter for the Crown Court, not the Administrative Court.”   A renewed application was refused on 26 February 2002. On 18 April 2002, the applicant applied to the Leeds Crown Court for return of “special procedure material”. He states that he has had no reply. He further wrote to the North Yorkshire police and the Crown Prosecution Service on 26 July 2002, asking for return of 790 items of “special procedure material” to be sent to his home in Harrogate “with a complete list of all items”. He was informed that the return of property would be considered at the end of the trial against the co-defendant. The co-defendant was acquitted on 5 September 2002.   On 24 October 2002, the Crown Prosecution Service informed the applicant that the material seized on 4 August 1998 could be returned to him with the following exceptions: “(i) The electronic stunning device, which is a prohibited weapon. (ii) Multiple copies of those documents which are the subject of counts on the indictment of publishing or distributing written material. Only a single copy of these documents will be returned. [There follows a list of the nine documents referred to.] [iii] Material distributed by you to others is no longer your property and will not be returned.” The letter continued: “The material is being returned to you because [H's] trial has been concluded. It is not accepted that any of the material is special procedure material.” A similar letter was sent to the applicant by the Head of Legal Services of the North Yorkshire County Council for the Chief Constable of North Yorkshire Police on 24 October, and the applicant was informed that he could collect the items from Tadcaster Police Station from 28 October onwards. The applicant replied on 26 October that “a proper return of the property to me is a return of it to the place from which it was taken ... and with a complete listing beforehand of all items, individually, so that they can be checked off on return.” The applicant repeated his demands in a letter of 31 October 2002, adding reference to a typewriter which he claimed had been damaged whilst in police custody, and again on 6 and 11 November 2002. On 7 November 2002, the High Court refused an application made by the applicant in September 2002 for permission to apply for judicial review in respect of materials held. The judge noted “The application covers substantially the same allegation[s] of illegality ... as those made on previous occasions and rejected. Furthermore, the applicant has liberty to apply to the Recorder ... for the return of any documents or original documents not required for the trial which has been conditionally stayed”. On 13 November 2002, the Head of Legal Services of the North Yorkshire County Council wrote to the applicant that the applicant's property (save for the excepted items) would be delivered to his home in Knaresborough, and the majority of items would be listed individually. Certain bulk items would not figure individually. The applicant was informed that it might not be possible to deliver his property to him before he left North Yorkshire for three months, but that it was open to him to collect it from Tadcaster Police Station. On 16 November the applicant refused to collect the property from any police station, and insisted on its return to Harrogate by the end of November. The property was not handed over or collected, and on 9 April 2003, the Head of Legal Services wrote to the applicant in the following terms: “I note, upon a review of my file in this matter, that the question of the return of your property remains outstanding. You will be aware from previous correspondence that my client is prepared to return to you all of the material seized from your house save for the items set out in my letter of 24 October 2002, a copy of which I enclose. I am instructed to indicate that my client is prepared to make arrangements for the return of your property at a time and date to suit you. It would obviously be preferable for all concerned if the hand over of your property could be undertaken at your address in Harrogate but if a trip to your property in Ross-shire is necessary, that could also be arranged. With that in mind, would you please be so kind as to contact the writer with a suggested time and date, or a number of such options, in order that arrangements can be made with my client for your property to be returned. It would assist if you would kindly revert to me in the course of the next seven days and with that in mind we enclose a stamped addressed envelope for your early response.” The applicant replied on 18 April: “My position remains as expressed during and to the end of that previous contact in the matter. I was open then to the return of all of my seized property on precisely and essentially the terms rightfully laid down by me in my letter then, and I am open now to such return on those terms, nothing other and nothing less than that. Are you people therefore now to make return in full fulfilment of those terms? ... If you are not, then determination of the matter will have to await eventual legal process encompassing the continuation of wrongful retention.” On 20 May, after a further exchange of letters, the applicant sent a draft signed Agreement to the Head of Legal Services, in which he demanded return of all items (save those which had been handed over already, the stunning device, and a single copy of each of 11 documents), a list including each individual item, and an acknowledgment of damage to a typewriter. The agreement stated that the applicant was not able to check the property against the list for more than three hours per day, and ended “No deletion or alteration or addition to the Agreement is acceptable to the property owner, the terms here set out being non-negotiable”. In his covering letter, the applicant stated “Unless I receive back, signed and dated by you, the here enclosed Agreement, nothing can be done in the matter apart from, for my part, moving towards legal action for the return of all my long withheld property”. The Head of Legal Services declined to arrange for the Agreement to be signed, but confirmed that there was still no resistance in principle to the return of the applicant's property on the lines already laid out. Correspondence continued in the same tone, the final exchange running as follows: The applicant's letter of 1 November 2003 to the Head of Legal Services: “... the agreement is absolutely essential, now or at any future time, and that I will not accept now or at any time in the future what, in the absence of the agreement, amounts to a dumping disregardful of it. Sign and return the agreement, if you want the return to go ahead, otherwise stand confirmed and revealed as opposed to a fair and proper return for suspect reasons. As I will be returning to Scotland in four weeks time, the signed agreement needs to reach me straight away. Unless you are signing and returning the agreement and arranging the return of property on this basis, there is no point in further correspondence from you which I am not prepared to deal with because it will be futile and time-wasting, having given you my final and irrevocable answer.” The Head of Legal Services, letter to the applicant of 11 November 2003: “For the avoidance of doubt, my client's position is as follows: 1.   All property, save for that set out at numbered paragraphs (i) to (iii) of my correspondence dated 24 October 2002, to be listed in an inventory. 2.   North Yorkshire Police to return the listed property on a date and time to be agreed. 3.   Adequate and mutually convenient arrangements to be made to facilitate a thorough checking of the property against the inventory.” Relevant domestic law Section 23 (1) of the Public Order Act 1986 provides: “A person who has in his possession written material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting with a view to (a) in the case of written material, its being displayed, published, distributed or included in a programme service, whether by himself or another, or (b) in the case of a recording, its being distributed, shown, played or included in a programme service, whether by himself or another is guilty of an offence if he intends racial hatred to be stirred up thereby or, having regard to all the circumstances, racial hatred is likely to be stirred up thereby.” Section 24 (1) of the Public Order Act 1986 provides:   “If in England and Wales a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of Section 23, the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated.” Certain categories of material cannot be the subject of an application for a warrant before a magistrate, but must be the subject of an application to a circuit judge. This material is broadly speaking material such as personal records acquired or created in the course of any trade, profession or business. The material is known as “excluded material” and “special procedure material”. Excluded material is material, including journalistic material, held in confidence (Section 11(1) Police and Criminal Evidence Act 1984 “PACE”). Special procedure material includes journalistic material not held in confidence (Section 14 PACE). Independently of common law powers to seize and retain material falling within the terms of a warrant, a constable who is lawfully on premises may seize material on the premises if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating or any other offence, and that it is necessary to seize it to prevent it being concealed, lost, altered or destroyed (Section 19(3) PACE). The Notes for Guidance which accompany the PACE Code of Practice relating to search and seizure (“Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises”, applicable to warrants and searches after 9 April 1995) state that “Any person claiming property seized by the police may apply to a magistrates' court under the Police (Property) Act 1897 for its possession, and should, where appropriate, be advised of this procedure”. Section 29 (3) of the Supreme Court Act 1981 provides that: “In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.” Criminal courts have wide common law powers to stay proceedings. A stay typically takes the form of an order that the charge should not be proceeded with. In certain exceptional and limited circumstances the prosecution would be entitled to seek to lift a stay of proceedings. Such a possibility could arise, for example, if it transpired that the court had been misled at the time it granted the stay. In deciding whether to lift the stay, the judge would have to consider all the circumstances of the case, including the rights of the accused. COMPLAINTS The applicant complains under Article 6 of the Convention that the effect of the second condition imposed on the stay of proceedings is like a “life-long measure of deterrence ... on someone who has not been tried and convicted ... but instead is entitled to be presumed innocent ...”. He also complains that his property was unlawfully seized and has not been returned, referring to Articles 8 of the Convention and Protocol No. 1 to the Convention. He is specifically concerned by the retention of materials classified by Section 14 of the Police and Criminal Evidence Act 1984 as “special procedure materials”, that is, materials relating to a person's trade or business, and certain journalistic materials. THE LAW 1.   The applicant complains of the conditions attached to the stay of proceedings in his case. He alleges a violation of Article 6 of the Convention. Article 6 provides, so far as relevant, as follows: “1.     In the determination of ...any criminal charge against him, everyone is entitled to a fair and public hearing ... 2.     Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law ...”. The Government first note that the criminal proceedings against the applicant ended when the stay of proceedings was pronounced on 23   November 2001, such that the complaint about the conditions of the stay is inadmissible for non-compliance with the six-months rule because the application was introduced only on 29 May 2002. They further note that the proceedings against the applicant were stayed on the basis that the applicant was not fit to conduct his own defence and that to continue with the proceedings would itself be in violation of Article 6 § 1 of the Convention. The Government submit that the conditional stay of the criminal proceedings was compatible with the Convention because it did no more than enable the Crown Court to take into account all the relevant facts for the purpose of determining whether the applicant remained unfit to stand trial. The applicant considers that he has complied with the six-months rule because he introduced his application within six months of the determination of his renewed application for permission to apply for judicial review of the conditional stay, which was refused on 26 February 2002. He was not aware that the Supreme Court Act prevented judicial review of the terms of the conditional stay. He adds that in any event, even if the period ran from 23 November 2001, his application was no more than six days late. He maintains that the condition on the stay of proceedings had an implication of political surveillance and censorship which was not compatible with the Convention. The Court first notes that the wording of Section 29(3) of the Supreme Court Act excludes the jurisdiction of the High Court over the Crown Court where trial on indictment is concerned. The remedy which the applicant sought to pursue against the conditions of the stay of proceedings was therefore not an “effective” remedy (see, for example, Moody v. the United Kingdom , no. 22613/93, Commission decision of 11 January 1995). It follows that, to the extent that the applicant is complaining of the making of the conditions attached to the stay of proceedings, he has failed to comply with the six-months rule contained in Article 35 § 1 of the Convention, the application having been introduced more than six months after the order of 23 November 2001. In so far as the complaint is directed against any continuing effect of the conditions on the stay of the proceedings – that is, a continuing effect beyond the stayed criminal proceedings against the applicant - the Court notes that the applicant has not shown that he has been impeded in any way in the exercise of his Convention rights by the continuing existence of the condition. In connection with the disquiet expressed by Mr Justice Munby in refusing the applicant's second application for judicial review on 6   February 2002, the Court notes the Government's contention that the second condition did no more than repeat the substance of the first condition, namely, that if the applicant appeared to be sufficiently well to stand trial, it would be for a judge to determine whether the proceedings should resume. The Court considers that whilst a prohibition on political activity “in return” for the dropping of criminal charges could give rise to issues under substantive Articles of the Convention and, indeed, under Article 18 (see, for example, Gusinskiy v.   Russia , no.   70276/01, §§   73 - 78, 19   May 2004), there is no clear indication that this was either the intention or the effect of the second condition for the stay of proceedings in the present case. Rather, the Court considers that the Recorder's intention was to underline that if the applicant was well enough to engage in political activities, the conclusion that he was too ill to take part in criminal proceedings might itself need reviewing.   There is no indication that the condition for the stay had any actual impact on the applicant's political activities, or that he personally felt subjected to any “chilling effect”. Finally, the Court notes that the applicant has not returned to the Crown Court to ask for the second condition – if it has any continuing effect – to be amended or removed. The Court concludes from these considerations that there is no indication that the applicant is adversely affected by the continuing existence of the second condition on a stay of prosecution, such that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. This part of the application must therefore be rejected as inadmissible within the meaning of Article 35 § 4 of the Convention.   2.   The applicant also complains of the seizure and retention of materials which were removed from his home on 4 August 1998. He refers principally to Article 1 of Protocol No. 1 to the Convention and Article 8 of the Convention. Article 1 of Protocol No. 1 provides as follows:   “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” Article 8 of the Convention 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 submit that the search warrant issued on 27 July 1998 authorised the making of the search at the applicant's home, that the material was lawfully seized, and that in any event the complaint is out of time as it was not raised within six months of the dismissal of the applicant's challenge to the legality of the seizure, on 1 November 1999. Further, they submit that the applicant has failed to exhaust domestic remedies in connection with the continued retention of the property as he could have carried out his threat to bring civil proceedings, claiming either that the continuing retention was unlawful, or that his property should be returned. The applicant maintains that the seizure of “special procedure material” was not lawful, and contends that the application which was determined on 1 November 1999 did not focus on the “special procedure material”, as does the present application to the Court. As to the possibility of civil proceedings, the applicant contends that without a precise list of what had been taken – a list which he asked the police to provide on a number of occasions - it was not open to him to bring proceedings. He underlines that the material has still not been returned to him. The Court notes that two types of material are alleged by the applicant to have been seized by the police, namely “ordinary” materials, and “special procedure” materials. It will deal with them in turn, and will then consider the continuing retention of the applicant's property. (a)   As regards the search and seizure of “ordinary” materials, the Court finds that the initial search and seizure were compatible with both Article 8 of the Convention and Article 1 of Protocol No. 1. In particular, both search and seizure were covered by the warrant which had been issued on 27 July 1998, and it is not contended that they were disproportionate. This part of the application is therefore manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. (b)   As regards any “special procedure material”, that is, according to Sections 11 and 14 of PACE and so far as relevant to this application, journalistic material which was not held in confidence, the Court recalls that Article 35 of the Convention requires applicants to exhaust domestic remedies, and to bring complaints to it within six months from the final decision. In the present case, the applicant brought judicial review proceedings to challenge the lawfulness of the decision to retain and sift through the documents which were being studied by the police as part of their investigation. The natural forum for a discussion of whether special procedure material was at issue and if so whether it was being wrongly retained would have been those judicial review proceedings. However, the applicant states that those proceedings did not deal with the question of special procedure material because they were focussed on access to and the conditions of return of seized property. It therefore appears that – on his own account - the applicant has failed to put to any domestic court his claim that special procedure material was in issue and was wrongly retained. To this extent, the applicant has failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention. (c)   As regards the continued retention of materials by the police, again the Court recalls that Article 35 § 1 of the Convention requires applicants to exhaust domestic remedies. The requirement applies to property whose initial seizure is accepted by the applicant as being in accordance with the Convention, and also to property which the applicant says should never have been seized. The applicant contends that it was not open to him to bring proceedings in respect of retained materials because the police refused to sign an agreement which he had prepared and which required the police to set out a detailed list of the retained items. The Court notes the express reference to an action under the Police (Property) Act 1897 in the Code of Practice relating to Search and Seizure at the relevant time, and considers that in the ordinary course of events, such an application would represent the appropriate remedy to be exhausted, particularly once the criminal proceedings against the applicant had ended and the property was being held, according to the applicant, without lawful basis. The Court does not accept that the absence of the list requested by the applicant could affect the requirement that he pursue normal remedies: the applicant knew what material had been taken, various lists had been prepared in the course of the criminal proceedings, and there is no serious suggestion that the police would have denied holding the material. Such an action would have afforded the courts the opportunity to determine which, if any, material could be retained (for example as being necessary for the prosecution against H, once the proceedings against the applicant had been stayed), and which should be returned. Therefore, in respect of the complaint concerning alleged unlawful retention of material, the applicant has failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. It follow that this part of the application must also be rejected pursuant to Article 35 § 4 of the Convention. For these reasons, the Court unanimously Declares the application inadmissible. Michael O'Boyle   Josep Casadevall   Registrar   President