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 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)