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