CHALKLEY v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63831/00
by Tony Michael CHALKLEY
against the United Kingdom

The European Court of Human Rights (Third Section), sitting on 26 September 2002 as a Chamber composed of

MrG. Ress, President,
MrI. Cabral Barreto,
SirNicolas Bratza,
MrL. Caflisch,
MrR. Türmen,
MrsH.S. Greve,
MrK. Traja, judges,
and Mr V. Berger, Section Registrar,

Having regard to the above application lodged on 8 December 1998,

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, Mr Tony Michael Chalkley, is a United Kingdom national, born in 1961 and living in HMP Ashwell, United Kingdom. He is represented before the Court by Liberty, a civil liberties organisation in London, England.

A.  The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

In March 1994 the applicant was suspected by police officers in the Cambridge Constabulary of involvement in robbery. The view was taken by the Cambridgeshire Regional Crime Squad that it was necessary to place a hidden battery-powered listening and recording device in the applicant’s home. An application was therefore made to the Chief Constable for the instalment of such a device, which was authorised on 21 June 1994, pursuant to the non-statutory Home Office Guidelines of 1984.

In order to install the device, the police decided to arrest the applicant and his partner in connection with another matter (credit card fraud) and to remove them and their children from their home. Enquiries into the credit card fraud had previously lapsed without any arrest or questioning of the applicant or his partner. However, DC Harrison of the Regional Crime Squad and WDC Fletcher, an officer in the intelligence bureau of the Cambridgeshire County Constabulary, decided to revive the investigation for the purpose of removing the applicant and his partner from their home for long enough to enable the installation of the listening device.

WDC Fletcher briefed three officers about purported grounds for arresting the applicant and his partner for credit card fraud, without informing them of the intended installation of the device.

At 6.15 a.m. on 8 July 1994 the three officers arrested the applicant’s partner in her home and shortly thereafter arrested the applicant. Both were taken to the police station. The officers seized the keys to the applicant’s home and car. Officers from the Regional Crime Squad then used the house key to enter the applicant’s home and install the listening device. They also had a copy of the key cut to enable them to enter the house again at a later date.

The applicant and his partner were released from police custody on the evening of 8 July 1994 after being interviewed. Neither was charged, but both were released on police bail and required to report back to the police station on 24 August 1994. The applicant’s keys to his home and car were returned to him.

On 24 August 1994 the applicant and his partner attended the police station in accordance with their bail and were interviewed again. Neither was charged at that time or subsequently with credit card fraud. However, during their interview police officers entered their home using the duplicate key in order to renew the battery in the listening device.

During September 1994, police officers again entered the applicant’s home to renew the battery in the listening device.

As a result of conversations that were recorded between the applicant and J, his co-defendant in the criminal proceedings, both men were arrested in September 1994. They were charged with conspiracy to commit robbery and burglary between 1 January 1993 and 9 December 1994.

The trial was at Peterborough Crown Court in October 1996. The prosecution proposed to adduce the covertly obtained tape-recordings as evidence against the defendants.  There was evidence in addition to the tape-recordings supporting the allegations of a conspiracy: the prosecution relied upon the discovery of two shotguns, CS gas canisters, balaclava helmets, a scanner and boiler suits in the defendants’ possession at various places, including the farm at which the applicant worked part time. There was also police observation evidence which the prosecution alleged suggested that the applicant and/or J were planning robberies, including the sighting of the applicant removing a long and heavy object from his car and placing it in another vehicle in the presence of J. and eye-witness evidence of the suspects reconnoitring the targets.

An application was made, in a voir dire procedure, on behalf of the defendants for the tape recorded evidence to be excluded under section 78 of the Police and Criminal Evidence Act 1984 on the basis that it had been obtained unlawfully and in breach of Article 8 of the European Convention on Human Rights. This application was rejected by the trial judge on 24 October 1996. The judge found that the officers who carried out the arrests on 8 July 1994 did have reasonable grounds for suspecting those whom they arrested and that if further information had arisen at the interviews or from the other enquiries which were carried out it was possible that charges would have been brought for those matters. He stated inter alia:

“I take the view that the officers who carried out the arrests had reasonable grounds for suspecting those they arrested, ... The true situation is this: that the police were [not] acting in bad faith in the sense that anyone knew that there were no grounds or that there was doubt about the grounds, or that the grounds did not exist. I think all those things were true. The question is what difference does it make that the arrests would not have taken place, in other words the matter would not have been revived had it not been for the wish to get [the applicant and his girlfriend] out of the house. I regard Mr Harrison [the detective inspector in charge of the robbery investigation] as having been perfectly frank with the court that although it was not a device in the sense that it was a bogus reason for arrest the true motive was to get them out of the house and he has made no bones about that.”

The judge went on to find that the underlying motive was not improper in the circumstances or such as to render the arrest unlawful. He did find that the removal of the applicant’s keys was in breach of the search and seizure requirements of PACE, that the taking and use of the house key constituted a civil wrong, that there was a trespass to the applicant’s home and that minor criminal damage had taken place. However, balancing the various factors, including the fact that the tape-recordings amounted to confessions of serious crimes involving the possible use of firearms, that there was no suggestion of improper inducement or incitement to commit the offences and that there was no dispute about the content of the conversations, the judge ruled the evidence admissible.

As a result of the ruling on admissibility, the applicant and his co-defendant changed their pleas to guilty. They were each sentenced to ten years’ imprisonment.

On 18 December 1997, after being granted leave to appeal, the applicant’s appeal against conviction was dismissed by the Court of Appeal (R v. Chalkley and Jeffries [1998] 2 All ER 155).

It considered, firstly, whether it could quash a conviction where the appellant had changed his plea of guilty because of the trial judge’s refusal to exclude evidence which was so damning to his case that he and his legal advisers considered that his conviction was inevitable. Lord Justice Auld held:

“... it is important to understand what was meant by a plea of guilty being ‘founded upon’ a ruling. There are two possibilities. The first is where, in the light of the admitted facts, the erroneous ruling left the defendant at trial with no legal basis for a verdict of not guilty...

The second and broader meaning of the expression ‘founded upon’ in this context is ‘influenced by’ – that is, where a plea of guilty was influenced by an erroneous ruling...

It is only where an erroneous ruling of law, coupled with the admitted facts made acquittal legally impossible that a plea of guilty can properly be said to have been ‘founded upon’ the ruling so as to enable a successful appeal against conviction. The fact that an erroneous ruling of law as to the admissibility of certain prosecution evidence drives a defendant to plead guilty because it makes the case against him factually overwhelming will not do. It does not make it impossible to maintain his innocence as a matter of law or of fact, it merely makes it harder.

...

In appeals against conviction following a plea of guilty, the somewhat mechanical test of whether a change of plea to guilty was ‘founded upon’ a particular feature of the trial, namely a wrong direction of law or material irregularity, gives way to the more direct question, whether, given the circumstances prompting the change of plea to guilty, the conviction is unsafe... a conviction would be unsafe where the effect of an incorrect ruling on admitted facts was to leave an accused with no legal escape from a verdict on those facts. But a conviction would not normally be unsafe where an accused is influenced to change his plea to guilty because he recognises that, as a result of the ruling to admit strong evidence against him, his case on the facts is hopeless. A change of plea to guilty in such circumstances would normally be regarded as an acknowledgement of the truth of the facts constituting the offence charged.

We qualify the above propositions with the word ‘normally’ because there remains the basic rule that the court should quash as unsafe a conviction where the plea was mistaken or without intention to admit the truth of the offence charged...”

Applying those principles to the facts, he noted that there was nothing to suggest, in light of the submissions made in mitigation as to the applicant’s role in events, that the plea of guilty was not a true acknowledgement of guilt but merely a tactical and expedient way of enabling them to challenge the ruling in the Court of Appeal. The applicant should have maintained his plea of not guilty if that was truly his stance, fought the case and then sought leave to appeal. Nor did he find that the applicant had misunderstood the effect or object of the plea of guilty or been influenced by any oppression:

“Wrong advice or no as to their prospect of a successful appeal, they pleaded guilty because they were guilty and because, having regard to the judge’s ruling, they knew that they had no practical chance of acquittal....

We hold that the [applicant’s] appeals against conviction file because... their convictions are, therefore, safe.”

Lord Justice Auld did however go on to consider the judge’s rulings on the lawfulness of the arrest (with which he concurred) and the admissibility of the taped evidence. He concluded that:

“...we consider that the proper course is to make our own decision about the fairness of admitting this evidence. We have no doubt whatever about the fairness of doing so.  As we have said, there was no dispute as to its authenticity, content or effect; it was relevant, highly probative of the appellants’ involvement in the conspiracy and otherwise admissible; it did not result from incitement, entrapment or inducement or any other conduct of that sort; and none of the unlawful conduct of the police or other of their conduct of which complaint is made affects the quality of the evidence. In the circumstances, we can see no basis for concluding that the admission of this evidence would, in the words of s. 78, have had such an adverse effect on the fairness of the proceedings that the judge should not have admitted it.”

The Court of Appeal also cited with approval (at pages 179h-180a) the following passage from the House of Lords case of R v. Khan (Sultan) [1996] 3 All ER 289 at pages 302-303:

“... the discretionary powers of the trial judge to exclude evidence march hand in hand with art. 6.1 of the European Convention on Human Rights... Both are concerned to ensure that those facing criminal charges receive a fair hearing. Accordingly, when considering the common law and statutory discretionary powers under English law, the jurisprudence on art. 6 can have a valuable role to play.  English law relating to the ingredients of a fair trial is highly developed. But every system of law stands to benefit by an awareness of the answers given by other courts and tribunals to similar problems. In the present case the decision of the European Court of Human Rights in Schenk v. Switzerland (1988) 13 EHRR 242 confirms that the use at a criminal trial of material obtained in breach of the rights of privacy enshrined in art. 8 does not of itself mean that the trial is unfair. Thus, the European Court of Human Rights case law on this issue leads to the same conclusion as English law.”

On 15 June 1998 the House of Lords refused the applicant’s petition for leave to appeal.

In early 2001, the applicant was released on licence.

B.  Relevant domestic law and practice

The Home Office Guidelines

Guidelines on the use of equipment in police surveillance operations (the Home Office Guidelines of 1984) provide that only chief constables or assistant chief constables are entitled to give authority for the use of such devices. The Guidelines are available in the library of the House of Commons and are disclosed by the Home Office on application.

In each case, 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 the 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 and d) the use of equipment must be operationally feasible. The authorising officer should also satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness of the offence.

The Police and Criminal Evidence Act 1984 (“PACE”)

Section 78(1) of PACE provides as follows:

“In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

In R v. Khan [1996] 3 All ER 289, the House of Lords held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge’s discretion to admit or exclude such evidence under section 78 of PACE. The evidence obtained by attaching a listening device to a private house without the knowledge of the occupants in breach of Article 8 of the Convention was admitted in that case.

Criminal Appeal Act 1968 as amended by the Criminal Appeal Act 1995

Section 2(1) of the Criminal Appeal Act 1968 (“the 1968 Act”), as amended by the Criminal Appeal Act 1995 (“the 1995 Act”), provides a single, composite right of appeal against a criminal conviction. It states that the Court of Appeal:

“(a)  shall allow an appeal against conviction if they think that the conviction is unsafe; and

(b)  shall dismiss an appeal in any other case.”

The broad intention behind this provision was summarised by the then Lord Chief Justice, Lord Bingham, in R v. Graham and Others ([1997] vol. 1 Criminal Appeal Reports p. 302 [Court of Appeal]), when he said:

“This new provision ... is plainly intended to concentrate attention on one question: whether, in the light of any arguments raised or evidence adduced on appeal, the Court of Appeal considers a conviction unsafe. If the Court is satisfied, despite any misdirection of law or any irregularity in the conduct of the trial or any fresh evidence, that the conviction is safe, the Court will dismiss the appeal. But if, for whatever reason, the court concludes that the appellant was wrongly convicted of the offence charged, or is left in doubt whether the appellant was rightly convicted of that offence or not, then it must of necessity consider the conviction unsafe. The Court is then subject to a binding duty to allow the appeal.”

In R v. Chalkley and Jeffries [1998] 2 All ER 155 (the applicant’s case in the domestic courts), the Court of Appeal observed however that it:

“...has no power under the substituted section 2(1) to allow an appeal if it does not think the conviction unsafe but is dissatisfied in some way with what went on at the trial...” (per Lord Justice Auld at page 172j).

Subsequently, the Court of Appeal has modified this approach.

The scope of the “safety test” was discussed by Lord Bingham C.J. in his judgment in R v. Criminal Cases Review Commission, ex parte Pearson [2000] 1 Criminal Appeal Reports 141 (Court of Appeal) (after the hearing of the applicant’s appeal), where he stated:

“The expression ‘unsafe’ in section 2(1)(a) of the 1968 Act does not lend itself to precise definition. In some cases unsafety will be obvious, as (for example) where it appears that someone other than the appellant committed the crime and the appellant did not, or where the appellant has been convicted of an act that was not in law a crime, or where a conviction is shown to be vitiated by some serious unfairness in the conduct of the trial or significant legal misdirection, or where the jury verdict, in the context of other verdicts, defies any rational explanation. Cases however arise in which unsafety is much less obvious: cases in which the Court, although by no means persuaded of an appellant’s innocence, is subject to some lurking doubt or uneasiness whether an injustice has been done ...  If, on consideration of all the facts and circumstances of the case before it, the Court entertains real doubts whether the applicant was guilty of the offence of which he has been convicted, the Court will consider the conviction unsafe.”

This passage was subsequently cited by the Court of Appeal in the case of R v. Davis, Rowe and Johnson [2001] 1 Criminal Appeal Reports 8, where Lord Justice Mantell, delivering the judgment of the court, stated that:

“The following is not intended to be an exhaustive statement of the principles involved. We simply extract the following. The Court is concerned with the safety of the conviction. A conviction can never be safe if there is doubt about guilt. However, the converse is not true. A conviction may be unsafe even where there is no doubt about guilt but the trial process has been ‘vitiated by serious unfairness or significant legal misdirection’ ... Usually it will be sufficient for the Court to apply the test ... which, as adapted by [counsel for the Crown], might read:

‘Assuming the wrong decision on law or the irregularity had not occurred and the trial had been free from legal error, would the only reasonable and proper verdict have been one of guilty?’

That being so there is no tension between s. 2(1)(a) of the Criminal Appeal Act as amended and section 3(1) of the Human Rights Act [requiring legislation to be read and given effect in a way which is compatible with Convention rights].”

Later in his judgment, Lord Justice Mantell stated that:

“We are satisfied that the two questions [the questions of ‘fairness’ and ‘safety’] must be kept separate and apart. The [European Court of Human Rights] is charged with inquiring into whether there has been a breach of a Convention right. This court is concerned with the safety of the conviction.  That the first question may intrude upon the second is obvious. To what extent it does so will depend upon the circumstances of the particular case. We reject, therefore, [counsel for Johnson]’s contention that a finding of a breach of Article 6 (1) by the [European Court of Human Rights] leads inexorably to the quashing of the conviction. Nor do we think it helpful to deal in presumptions. The effect of any unfairness upon the safety of the conviction will vary according to its nature and degree. ...”

The Police Complaints Authority

The Police Complaints Authority was created by section 89 of PACE.  It is an independent body empowered to receive complaints as to the conduct of police officers. It has powers to refer charges of criminal offences to the Director of Public Prosecutions and itself to bring disciplinary charges.

COMPLAINTS

The applicant complains under Article 8 that the installation, maintenance and use by the police of a listening device amounted to an unjustifiable interference into his private and family life, home and correspondence.

The applicant complains under Article 6 that the fact that the evidence in question was obtained (i) in bad faith, (ii) in breach of domestic law and (iii) in contravention of Article 8 of the Convention, should have led to its exclusion from his trial as it rendered a fair trial impossible from the outset. He also complains under Article 6 that the restrictive approach adopted by the Court of Appeal in the light of section 2(1) of the Criminal Appeal Act 1968 (as amended) – examining ‘safety’ without regard to the fairness of the proceedings – meant that it did not determine whether the admission of the evidence obtained in breach of the Convention affected the fairness of the proceedings.

The applicant finally complains under Article 13 of the Convention that he did not have an effective remedy in respect of either the covert surveillance carried out by the police in breach of Article 8 or as regards the fairness of his trial.

THE LAW

The applicant complains of the installation of a covert surveillance device in his home, the use of the evidence so gathered at his trial and the approach adopted by the Court of Appeal on his appeal. He invokes Articles 6, 8 and 13 of the Convention which provide as relevant:

Article 6 § 1

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”

Article 8

“1.  Everyone has the right to respect for his private ...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...public safety ... for the prevention of disorder or crime ... or for the protection of the rights and freedoms of others.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] 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.”

Article 35 § 1 of the Convention – the six months time-limit

The parties’ submissions

The Government submitted that the application should be declared admissible because it has been pursued with inordinate delay. They pointed out that while the applicant himself first contacted the Court by letter dated 12 March 1995, his then representatives did not write requesting an application form until 13 November 1998. In a letter then sent on 8 December 1998, the applicant’s current representatives, Liberty gave a brief description of the complaint and were sent an application form. They were warned on a number of occasions by the Court Registry that delay might affect the introduction date of the application. However, Liberty did not send any further substantive submissions until 29 November 2000 (almost two years after their first letter) and the application form did not reach the Court until 27 April 2001 (almost two and a half years later). The Government disputed that there was any good reason for the above delay. They did not accept that it was necessary to wait while considering the possible existence of civil remedies for trespass or for delivery of the Court’s judgment in Khan v. the United Kingdom on 12 May 2000 (no. 35394/97, ECHR 2000-V). In any event, it still took Liberty another year to submit its application form after the latter date.

The applicant argued that the delay had not been so unreasonable as to justify altering the date of introduction in this case from the letter of 8 December 1998. He submitted that the case papers were exceptionally voluminous and were not received by Liberty until mid-1999. It was necessary, in order not to waste the Court’s time, to take advice as to the existence of any remedies and as his complaints were similar to some of those in the Khan case, it was sensible to wait for the judgment to be able to focus on the live issues. He also submitted that correspondence between a prison inmate and his representatives was a slow, time-consuming process and also that throughout the period of delay his representatives did attempt to keep the Court fully updated with information on the reasons for delay. Having regard to the Government’s admission of a breach in this case and the fact that the Government cannot claim to have been prejudiced by the lapse of time, he submitted that the original introduction date of 8 December 1998 should be maintained.

The Court’s assessment

In accordance with the established practice of the Convention organs, the Court considers the date of the introduction of an application to be the date of the first letter indicating an intention to lodge an application and giving some indication of the nature of the application. However, where a substantial interval follows before an applicant submits further information about his proposed application or before he returns the application form, the Court may examine the particular circumstances of the case to determine what date should be regarded as the date of introduction with a view to calculating the running of the six month period imposed by Article 35 of the Convention.

It recalls that the purpose of the six month rule is to promote security of the law, to ensure that cases raising Convention issues are dealt with within a reasonable time and to protect the authorities and other persons concerned from being under uncertainty for a prolonged period of time. It would be contrary to the spirit and aim of the six-month rule if, by any initial communication, an application could set into motion the proceedings under the Convention and then remain inactive for an unexplained and unlimited length of time. The Court has rejected applications where an applicant has submitted his application more than six months after the final decision in the process of exhaustion of domestic remedies. It would be inconsistent with the aim and purpose of the six-month rule to deviate from this approach where an application has been introduced within six months from the final decision, or the act complained of, but thereafter not pursued with reasonable expedition (see Olivier Gaillard v. France (dec.), no. 47337/99, 11 July 2000, Franz Hofstädter v. Austria (dec.), no. 25407/94, 12 September 2000, and Siti Bulut and Hatice Yavuz (dec.), no. 73065/01, 28 May 2002, and the cases cited therein).

In the present case, as the Government have pointed out, the applicant’s representatives Liberty first wrote to the Court on 8 December 1998 but did not return a completed application form until almost two years and five months later on 27 April 2001. The Court notes however that the applicant has provided an explanation for most of the intervening periods of delay. The case-file, which was voluminous, was not provided to Liberty until May 1999 and advice was sought from counsel concerning domestic remedies. On 28 January 2000, Liberty informed the Court that they would wait until the Court’s judgment had been delivered in the Khan v. the United Kingdom case before submitting their final observations. This judgment, dated 12 May 2000, did concern similar issues to those arising in this case. The further submissions were then submitted by letter of 29 November 2000. While the application form was not returned for some months after that, it did not contain any matters of substance additional to those already provided and the case had been registered as a pending case already on 18 December 2000.

Nonetheless the Court observes that the periods which elapsed were such that the Court Registry warned about the delay in this case on a number of occasions. Having regard to the time that had already passed since the final decision in this case (the House of Lords’ decision of 15 June 1998), the applicant’s representatives should have been aware of the need to act with reasonable expedition, in particular once the Khan judgment had been delivered and the principles to be applied in similar cases were established. On due consideration however, the Court does not find that the applicant’s representatives have acted in an abusive or unreasonable manner overall and considers that they kept in touch with the Court with sufficient regularity to prevent any appearance of the matter lying dormant.

In the circumstances, the Court maintains the introduction date as being that of the Liberty’s first letter dated 8 December 1998. The case was therefore introduced within six months of the final decision, namely the House of Lords’ rejection of the applicant’s petition for leave to appeal on 15 June 1998, and cannot be rejected for failure to comply with the six-month time limit imposed by Article 35 § 1 of the Convention.

The applicant’s trial and appeal

The parties’ submissions

The Government submitted that the requirements of the Article 6 § 1 were met by the original trial (voir dire) process conducted by the trial judge. In the process, conducted properly and with great care by the trial judge, live evidence was heard from numerous witnesses on the factual and legal issues and in his 39-page judgment, the trial judge gave very detailed reasons for ruling that the disputed evidence of the tape recordings was admissible. In particular, the arrests of the applicant and his partner were lawful, there was no bad faith by the police, the tape recordings amounted to confessions of serious crime, there was no dispute about the content of the conversations and it was not the only evidence against the applicant. They submitted that this case could not be distinguished from the Khan case (cited above) where the Court previously held the use of such evidence at trial was not in breach of Article 6.

Though the Government did not consider that it was necessary to consider the appeal process as this only became relevant where it was necessary to cure a material irregularity at trial, they submitted that in any event there was no right as such to an appeal and the United Kingdom was entitled to impose restrictions on the right of a defendant to pursue an appeal (in particular where he has pleaded guilty at trial). Furthermore, the Court of Appeal in considering the applicant’s appeal conducted its own fresh examination of the fairness of admitting the contested evidence. Nor was it unfair for the Court of Appeal to decline to look behind the applicant’s guilty plea. It had been open to the applicant to maintain his plea of not guilty at trial by, for example, contesting the accuracy or significance of the tapes, but he chose not to do so, on advice, because of the strong evidence against him and he preferred to gain credit for a lesser sentence. In his plea in mitigation the truth of the facts essential to establish guilt were admitted. In their view, where a defendant took a voluntary decision to admit guilt, the appellate court was entitled to take the view that he could not challenge his conviction and that his conviction is not therefore unsafe. The jurisprudence of the Court of Appeal makes it clear that unfairness at trial can, depending on the circumstances, result in a finding that a conviction is unsafe and so its approach is entirely compatible with any requirements imposed by Article 6 § 1.

The applicant submitted that in his case the surveillance evidence was obtained in bad faith, referring to the underhand manner in which the police acted in arresting the applicant on a charge which they had no intention of pursuing merely to obtain entry to his home and to the unlawful actions which were resorted to in the process (trespass and criminal damage). In view of the undisputed and very serious breaches of Article 8 in obtaining the evidence, that evidence should not have been admitted. The trial judge failed to give proper weight to the breach of rights and the Court of Appeal failed to remedy that defect. The applicant did not accept that there was powerful evidence against him apart from the tape recordings, the other evidence being wholly insufficient to found a charge of robbery. Once the evidence had been ruled admissible, the applicant stated that he had no choice but to plead guilty however and it was fanciful to suggest otherwise.

The applicant further submitted that, while the Court of Appeal did consider the notion of fairness in determining his appeal, it adopted a narrow approach limited by the idea of the “safety” of the conviction. Thus the court considered that none of the unlawful conduct of the police affected the quality of the evidence and it failed to remedy the admitted breaches of the applicant’s rights under Article 8. Since the applicant’s appeal, the Court of Appeal has considered it necessary to modify its approach to the safety test so as to give effect to Article 6, emphasising that the safety of a conviction could not be considered in isolation from the trial process by which it was secured and that a conviction may be unsafe even where there is no doubt about guilt. This gave additional reason to doubt the compliance with Article 6 of the approach adopted in his case. It also disclosed a violation of Article 13 as he was deprived of an effective remedy for his complaints of unfairness at his trial.

The Court’s assessment

The Court re-iterates that its duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States to the Convention. In particular, it is not its function to deal with errors of fact or of law allegedly committed by a national court unless and in so far as they may have infringed rights and freedoms protected by the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is therefore primarily a matter for regulation under national law (see the Schenk v. Switzerland judgment of 12 July 1988, Series A no. 140, §§ 45 and 46, and, for a more recent example in a different context, the Teixeira de Castro v. Portugal judgment of 9 June 1998, Reports 1998-IV, § 34). It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, unlawfully obtained evidence – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the alleged “unlawfulness” in question and, where violation of another Convention right is concerned, the nature of the violation found.

In the above-mentioned Schenk case, in concluding that the use of the unlawfully obtained recording in evidence did not deprive the applicant of a fair trial, the Court noted, first, that the rights of the defence had not been disregarded: the applicant had been given the opportunity, which he took, of challenging the authenticity of the recording and opposing its use, as well as the opportunity of examining the witness who made the recording and summoning the police inspector responsible for instigating the making of the recording. The Court further “attache(d) weight to the fact that the recording of the telephone conversation was not the only evidence on which the conviction was based” (§ 48 of that judgment). More recently, the Court has applied these principles in the case of Khan v. the United Kingdom (cited above, §§ 34-40) and found that the use at trial of recordings of the applicant’s conversations was not contrary to the requirements of Article 6 § 1 notwithstanding that they were obtained in circumstances where the Court had found, under Article 8 of the Convention, that the surveillance measures had not been “in accordance with the law”.

This case presents strong similarities to that of Khan v. the United Kingdom, in that the evidence was obtained by covert surveillance measures. As in Khan, there is no indication that the taped admissions made by the applicant during conversations with his co-defendant were made involuntarily. Nor was there any entrapment or any inducement for the applicant to make such admissions. The applicant asserted that in this case, unlike Khan, the circumstances in which the evidence were obtained rendered the use of the material unfair. In particular the police had acted in bad faith in having him arrested on a pretext and acted unlawfully in entering his home and causing damage in fixing the surveillance device. The Court recalls however that the trial judge found that the arrest had in fact been lawful as it had been carried out by police officers who had a reasonable suspicion that the applicant had committed the offence under investigation and that it was possible that charges would have been brought if sufficient information had arisen. The Court of Appeal concurred with this finding. Some confusion has arisen as to whether the trial judge nonetheless made a finding of bad faith, the wording of his judgment appearing to do so in a clumsy phrase which the Court of Appeal edited to add the negative which seemed to be missing. This Court understands why the Court of Appeal read the trial judge’s ruling in such a manner.  The sense of the trial judge’s ruling conveys the view that the fact that the investigation into the robbery gave the police the motivation to revive the fraud investigation was not sufficient to render their conduct in arresting the applicant either unlawful or in bad faith. The Court does not consider therefore that the way in which the police obtained the taped admissions has been shown to raise any issues of oppression or trickery or to impinge on the quality or reliability of the evidence. The Court further notes that, unlike the Khan case, the taped material was not the only evidence against the applicant.

In the circumstances however, the existence of fair procedures to examine the admissibility and test the reliability of the disputed evidence takes on importance. In that regard, the Court recalls that the applicant’s counsel challenged the admissibility of the recordings in a voir dire, and was able to put forward arguments to exclude the evidence as unreliable, unfair or obtained in an oppressive manner. The judge in a careful ruling however admitted the evidence. This decision was reviewed on appeal by the Court of Appeal which found that the judge had taken into account all the relevant factors and that his ruling could not be faulted. At each step of the procedure, the applicant had therefore been given an opportunity to challenge the reliability and significance of the recording evidence.

In that context, the applicant has argued that the Court of Appeal’s examination of his appeal was fundamentally flawed and incompatible with Article 6 of the Convention since it would not look behind a guilty plea and paid attention to the narrow requirements of the “safety” of the conviction rather than the crucial principle of fairness in reviewing the role played by the taped evidence at his trial.

The Government submitted that the appeal process only became relevant where it was necessary to cure a material irregularity at trial, something which had not occurred in the present case.  They further submitted that the Convention did not in any event guarantee a right to appeal and that a State which granted such a right was entitled to impose restrictions on the exercise of such right, in particular where a defendant had pleaded guilty at trial.

The Court does not find it necessary to examine these submissions of the Government in the present case, since the applicant’s complaint so far as it relates to the examination of his appeal by the Court of Appeal is in any event inadmissible for the following reasons.

While it is true that “safety” and fairness are not identical in their requirements (Condron v. the United Kingdom, no. 35718/97, ECHR 2000-V, § 65), the Court would agree with the dicta of the domestic courts which express the view that there is a certain overlap in practice (see Relevant and Domestic Law and Practice, and also C.G. v. the United Kingdom, no. 43373/98, judgment of 19 December 2001, § 36). Even though this position has been emphasised in decisions which occurred after the date of the applicant’s appeal, it would note that the approach of the Court of Appeal did not automatically exclude examination of substantive grounds of appeal where an applicant had pleaded guilty. It did not apply where the plea of guilty was based on a mistake or was made without intention to admit the truth of the offence charged. Nor did it apply where the ruling which led to the guilty plea rendered it legally impossible for the defendant to defend himself, as opposed to making it evidentially harder.

In the present case, the Court of Appeal found no indication that the applicant’s guilty plea had been anything other than voluntary and informed, noting that in his plea in mitigation counsel accepted the facts that constituted the offence. The Court is not persuaded by the applicant’s assertion that his plea of guilty was made without express admission of involvement in the offence. Furthermore, the judge’s ruling had not prevented the applicant from continuing to defend himself, by, for example, disputing the relevance or significance of the tapes and leaving the decision to the jury, followed by an appeal to the Court of Appeal if he was convicted. Against that background, the Court does not consider that the Court of Appeal’s decision, which took into account the applicant’s guilty plea in concluding that there was no basis for the applicant’s complaints about his trial, revealed any unfairness to the applicant. It did in any event proceed, notwithstanding the voluntary guilty plea, to re-examine for itself the fairness of admitting the taped admissions at trial and came to the same conclusion as the trial judge.

The Court is satisfied in the circumstances that the trial and appeal satisfied the requirements of Article 6 § 1 of the Convention. It would observe that the use at trial of material obtained without a proper legal basis or through unlawful means will not generally offend the standard of fairness imposed by  Article 6 § 1 where proper procedural safeguards are in place and the nature and source of the material is not tainted, for example, by any oppression, coercion or entrapment which would render reliance on it unfair in the determination of a criminal charge (see also Schenk, cited above, Khan v. the United Kingdom, no. 35394/97, ECHR 2000-V, and P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001-IX). The obtaining of such information is rather a matter which calls into play the Contracting State’s responsibility under Article 8 to secure the right to respect for private life in due form.

As regards the applicant’s complaint under Article 13 concerning his trial, the Court considers that it is not necessary to examine the case under Article 13 since its requirements are less strict than, and are here absorbed by, those of Article 6 § 1 (see, notably, the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, p. 32, § 88).

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

The installation of the covert surveillance device

The Government conceded, in the light of Khan v. the United Kingdom (cited above), that the installation of a surveillance device in the applicant’s home by the police and the making of tapes amounted to an interference with the applicant’s right to private life guaranteed by Article 8 and that these measures were not “in accordance with the law” for the purposes of Article 8 § 2. They also accepted that at the relevant time there was no effective  remedy as required by Article 13 in respect of this breach.

Having regard to the applicant’s complaints and the Government’s concession, the Court finds that serious questions of fact and law arise, the determination of which should depend on an examination of the merits. This part of the application cannot be regarded as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning the installation of a covert surveillance device and the making of tapes;

Declares the remainder of the application inadmissible.

Vincent BergerGeorg Ress
RegistrarPresident

Full & Egal Universal Law Academy