PERRY v. THE UNITED KINGDOM

THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 63737/00
by Stephen Arthur PERRY
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 6 October 2000,

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 Stephen Arthur Perry, born in 1964, is a United Kingdom national, and currently detained in HM Prison Brixton.

He is represented before the Court by Mr P. Cameron, a solicitor practising in London.

A.  The circumstances of the case

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

In 1997, there were a series of armed robberies of mini-cab drivers in and around Wolverhampton. Each robbery was carried out in the same way by a person posing as a passenger at night. Each involved violence. The first robbery was committed on 15 April 1997 (for which the applicant was later acquitted). On 17 April 1997, the applicant was arrested and agreed to an identification parade on 15 May 1997. He was released pending the parade.

On 30 April 1997, a second robbery, later alleged in count 2 of the indictment against the applicant, was committed. On 1 May 1997, the applicant was arrested in relation to that offence. The applicant again agreed to participate in an identification parade to be held on 15 May and was then released. However, on that date, the applicant did not appear for the identification parade but instead sent a doctor’s note stating that he was too ill to go to work. A subsequent identification parade was set for 5 June 1997. Notice to that effect was sent to the applicant’s residence.  He did not appear for identification on the specified date, stating later that he did not receive such notification as he had changed address.

On 27 June 1997, the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent.

On 21 July 1997, a robbery, for which the applicant was charged in count 3 of his indictment, occurred. The applicant was arrested on 1 August 1997 and later acquitted on this count. The applicant agreed to stand on an identification parade scheduled to take place on 11 September. On 3 September, the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on 11 September. On that date, he did not in fact attend.

On the 17 September 1997, the robbery alleged in count 4 occurred, while a further robbery alleged in count 5 took place on 24 October 1997.

An important part of the prosecution’s case rested almost entirely on the ability of the witnesses to visually identify the perpetrator. For this reason, submitting the applicant to an identification parade was of great importance for the prosecution. Given the failure of the applicant to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984.

On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused.

Meanwhile, on his arrival at the other police station, he was filmed by the custody suite camera which was kept running at all times and was in a public area. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use.

The applicant’s trial commenced in January 1999.

At the outset, the applicant’s counsel made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 that evidence of the video identification should not be admitted. The judge heard submissions from the prosecution and defence during a preliminary hearing (“voir dire”) on 11 and 12 January 1999. On 14 January 1999, the trial judge ruled that the evidence should be admitted. When shortly afterwards this judge became unable to sit, the new trial judge heard the matter afresh. In his ruling of 26 February 1999, he found that the police had failed to comply with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice, inter alia with regard to their failure to ask the applicant for his consent to the video, to inform him of its creation, to inform him of its use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). However, the judge concluded that there had been no unfairness arising from the use of the video. Eleven persons had been filmed for comparison purposes rather than the required eight and were all within comparative height, age and appearance. Even though the applicant’s solicitor was not present to verify the procedures adopted when the witnesses were shown the videos, the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated. The judge ruled that the evidence was therefore admissible.

The trial lasted 17 days, the applicant and 31 witnesses giving live evidence. During the course of it, the applicant discharged all his legal representatives (leading and junior counsel and solicitors) and conducted his own defence as he was dissatisfied with the way his defence was being conducted. In his summing-up to the jury, the trial judge warned the jury at considerable length about the “special need for caution” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker, telling them that if it was not a fair test they should not give much, if any weight, to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage, they could not rely safely on the video identification evidence. The jury were also made aware of the applicant’s complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code. The judge also outlined the other evidence against the applicant, namely, the discovery at the applicant’s home of headwear and other clothing similar to the description given of the robber by one victim; the addresses where the taxis picked up or dropped off the robber which were close to the homes of the applicant or his close relatives; a closed circuit television recording from a petrol station concerning the fifth robbery where the jury had to make its own identification; and close similarities between all five offences.

On 17 March 1999, the jury convicted the applicant of three counts of robbery and acquitted him of two others. The judge sentenced him to five years’ imprisonment.

The applicant applied for leave to appeal against conviction, inter alia, alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades. Leave was granted by a single judge of the Court of Appeal.

On 3 April 2000, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected his appeal, finding that the trial judge had dealt with the matter in a full and careful ruling, that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair. It refused leave to appeal to the House of Lords.

On 14 April 2000, the applicant applied to the House of Lords. No document has been provided indicating the date on which the House of Lords rejected the application. The applicant’s counsel recalls being informed by telephone in or about June or July 2000. The solicitors claim that they were informed on 7 July 2000.

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.

Code of Practice annexed to PACE

The Code of Practice was issued under sections 66-67 of PACE, laid before Parliament and then made a statutory instrument. It provided as relevant:

“D:2.6

The police may hold a parade other than an identification parade if the suspect refuses, or having agreed to attend, fails to attend an identification parade.

D:2.10

The identification officer may show a witness a video film of a suspect if the investigating officer considers, whether because of the refusal of the suspect to take part in an identification parade or group identification or other reasons, that this would in the circumstances be the most satisfactory course of action.

D:2.11

The suspect should be asked for his consent to a video identification and advised in accordance with paragraphs 2.15 and 2.16.  However, where such consent is refused the identification officer has the discretion to proceed with a video identification if it is practicable to do so.

D:2.12

A video identification must be carried out in accordance with Annex B. ...

D:2.15

Before a parade takes place or a group identification or video identification is arranged, the identification officer shall explain to the suspect:

(i)  the purposes of the parade or group identification or video identification;

(ii)  that he is entitled to free legal advice (see paragraph 6.5 of Code C);

(iii)  the procedures for holding it (including the right to have a solicitor or friend present); ...

(vi)  that he does not have to take part in a parade, or co-operate in a group identification, or with the making of a video film and, if it is proposed to hold a group identification or video identification, his entitlement to a parade if this can practicably be arranged;

(vii)  if he does not consent to take part in a parade or co-operate in a group identification or with the making of a video film, his refusal may be given in evidence in any subsequent trial and police may proceed covertly without his consent or make other arrangements to test whether a witness identifies him; ...

D:2.16

This information must also be contained in a written notice which must be handed to the suspect. The identification officer shall give the suspect a reasonable opportunity to read the notice, after which he shall be asked to sign a second copy of the notice to indicate whether or not he is willing to take part in the parade or group identification or co-operate with the making of a video film. The signed copy shall be retained by the identification officer.”

Annex B sets out the details for arranging a video identification, including how many other people should participate, what their appearance should be, etc.

COMPLAINTS

The applicant complains under Article 5 of the Convention that while he was in custody on another matter he was tricked into appearing at a police station where he was covertly videotaped for identification purposes in breach of the Codes of Practice annexed to the Police and Criminal Evidence Act 1984.

The applicant complains of a violation of Article 6 resulting from the use of the evidence obtained by covert videotaping in breach of the Codes of Practice. He invokes specifically Article 6 § 2, claiming that the domestic courts failed to protect the applicant’s rights outlined in the Codes of Practice by excluding such unlawfully-obtained evidence from trial. The applicant claims that he has thereby not been proved guilty according to law.

The applicant also complains of a violation of Article 8 as the police covertly videotaped him for identification purposes in breach of domestic law regulating police use of video surveillance and then subsequently used such evidence to convict him.

THE LAW

1.  The applicant complains under Article 5 § 1 of the Convention of the circumstances in which he was video-taped while in custody.

Article 5 § 1 provides as relevant:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

...”

The applicant submitted that the breaches of the Code of Practice and the way in which the custody suite was wrongly used to obtain video identification evidence meant that his detention at the police station was not in accordance with a procedure prescribed by law and in breach of Article 5.

The Court recalls that the purpose of Article 5 § 1 is to prevent arbitrary and unlawful detention. It notes that at the relevant time the applicant was detained on remand in prison pending trial on criminal charges. It is not alleged that this detention was in any way unlawful or unjustified in terms of Article 5 § 1(c). On 19 November 1997, he was transferred from prison to a police station for the purposes of identification and further investigation of the mini-cab robberies, which would appear to the Court to fall within the terms of Article 5 § 1(c) as disclosing grounds for arrest and detention in respect of those offences. The Court is not persuaded that the breaches, alleged or otherwise, of the Code of Practice concerning video identification practices, which occurred during the applicant’s presence at the police station rendered his detention over that period either unlawful in domestic terms (such would have formed the basis of a claim in tort for wrongful arrest or false imprisonment) or arbitrary for the purposes of Article 5 § 1. The covert filming and the use made of the videotape at trial fall rather to be considered under Articles 6 and 8 of the Convention (see below).

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

2.  The applicant complains that the use of the videotape rendered his trial unfair and that as a result he had not been found guilty according to law. Article 6 provides as relevant:

“1.  In the determination ... 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. ...

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The parties’ submissions

The Government submitted that the applicant did have a fair trial as required by Article 6 § 1 of the Convention. No material irregularity occurred at the voir dire hearing or the trial. The trial judge conducted the voir dire process properly and with great care, the applicant had ample opportunity to challenge the admission of the disputed evidence as two such hearings took place, he was represented by counsel and evidence from numerous witnesses was heard. The trial judge’s ruling was detailed and sound, giving due weight to the considerations of fairness but finding in the circumstances that there was no unfairness to the applicant having regard to the fact that eleven individuals similar to the applicant were filmed for comparative purposes and the entire process of showing the film to witnesses was recorded on film. The judge also gave a careful direction to the jury as to their approach to the evidence, which also included other incriminating material capable of convicting the applicant. The Court of Appeal also made its own assessment of the fairness of admitting the disputed evidence and came to the same conclusion as the judge.

The applicant emphasised that the videotape had been obtained in clear breach of the applicable code of practice and that without that evidence there would have been insufficient evidence to prosecute him. In his view, there were breaches of more provisions of the code than found by the trial judge and these breaches were so remarkably extensive that there had to be a very real doubt as to the fairness of the identification which resulted. The fact that neither the trial court nor the Court of Appeal would accept all these breaches compounded the element of unfairness. He argued that where the State had so extensively breached its own law in respect of identification it should only be in very rare cases that a court should reject a reasonable complaint of fairness. The applicant submitted that, as identity parades were the best means of identifying a suspect, he was denied his right to agree to a parade against a background of full knowledge of the facts and legal advice by the police failure to tell him that they either had a video or could obtain one. Also the video was made in bizarre circumstances, the volunteers on parade were unsatisfactory and the applicant was denied an opportunity to choose more suitable candidates. The applicant further submitted that the Court of Appeal did not add to the fairness of the proceedings as its hostility to the alleged breaches of the Convention was manifest and its approach geared to putting off counsel from arguing Convention points. Finally having regard to the breaches of the code, it could not be said that he had been proved guilty according to law as required by Article 6 § 2 of the Convention.

The Court’s assessment

The Court reiterates 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 “attach(ed) 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 some similarities to that of Schenk in that evidence was obtained by methods which were in breach of requirements of domestic procedure, in this case breach of the PACE Code (see Relevant Domestic Law and Practice above). The applicant asserted that in this case the blatant disregard of procedure rendered the use of the material unfair. In particular, as he had not been warned of the making of the videotape, he did not have the opportunity to agree instead to an identification parade or to object to any of the volunteers who participated in the compilation. The Court would observe that the applicant had already been afforded a number of opportunities to participate in a conventional identification parade and failed to make use of them. It also recalls that the trial judge reviewed the making of the videotape in some detail and that he found that there was no unfairness in the use of the film for identification purposes as the eleven persons used as volunteers were suitable comparators, more in fact than the required eight. Though the applicant’s solicitor had not been present at the showing of the film to the witnesses, the video film showed the process by which the tape was shown to witnesses and the applicant and the court were able to see how the witnesses had, or had not, reached an identification of the applicant. The Court further notes that, as in the Schenk case, this material was not the only evidence against the applicant.

In the circumstances however, as in the Schenk and Khan cases, the existence of fair procedures to examine the admissibility and test the reliability of the disputed evidence takes on importance. The Court recalls in that regard that the applicant’s counsel challenged the admissibility of the video tape in a voir dire, which was in fact repeated due to the change of judge. He was able to put forward arguments to exclude the evidence as unreliable, unfair or obtained in an oppressive manner. The second judge in a careful ruling however admitted the evidence and the applicant remained entitled to challenge it before the jury. The Court considers that there was no unfairness in leaving it to the jury, on the basis of a conscientious summing-up by the judge, to decide where the weight of the evidence lay. Furthermore, the judge’s approach was reviewed on appeal by the Court of Appeal which found that he had taken into account all the relevant factors and that his ruling and summing-up could not be faulted. At each step of the procedure, the applicant had therefore been given an opportunity to challenge the reliability and quality of the identification evidence based on the videotape. While the applicant has argued that the Court of Appeal’s examination of his appeal was flawed and he in fact alleges hostility on the part of that court to arguments raised under the Convention, this Court has on a number of occasions examined cases in which the Court of Appeal was called upon to review allegations of unfairness arising, inter alia, out of covert surveillance materials and found that its approach was compatible with the requirements of Article 6 of the Convention (see the above-mentioned Khan v. the United Kingdom judgment, Chalkley v. the United Kingdom, no. 63831/00, dec. of 26 September 2002; and, more generally, C.G. v. the United Kingdom, no. 43373/98, judgment of 19 December 2001, § 36). There is nothing in the material before the Court to suggest that the Court of Appeal failed to address itself properly to the issues.

The Court is satisfied in the circumstances that the applicant’s 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 the above-mentioned Schenk and Khan v. the United Kingdom judgments; also 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 6 § 2 of the Convention, this provision concerns the presumption of innocence. No issue arises on that aspect in the present case.

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.

3.  The applicant complains that the covert video-taping at the police station infringed his right to private life guaranteed by Article 8 of the Convention:

“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 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 submitted that there had been no interference with the applicant’s right to respect for his private life as the filming took place in a public place, the custody suite of the police station which was a communal administrative area through which all suspects had to pass and where the closed circuit video camera was running as a matter of security routine. The applicant did not have a reasonable expectation of privacy in such an environment. Further, the applicant was not filmed for surveillance purposes but for identification purposes and only for use in the criminal proceedings in question. Nor could it be said that the footage was “processed”: the section concerning the applicant was simply extracted and put with footage of the eleven volunteers.

Even assuming an interference occurred, the Government submitted that it was in accordance with the law as the legal basis for the filming could be found in the statutory authority of the PACE Code of Practice, which was both legally binding and publicly accessible. The 1984 Guidelines were not the legal basis for the filming. The fact that the Code was breached in three respects in the applicant’s case however did not lead to the conclusion that Article 8 itself had been breached.  The quality of the law was such as to provide sufficient safeguard against arbitrariness and abuse, the criminal courts having the power to exclude the resultant evidence under section 78 where necessary. The breaches in this case were not deliberate, and were breaches of procedure not substance, and the courts found no unfairness resulted. Further, any interference pursued the legitimate aim of protecting public safety, preventing crime and protecting the rights of others and since the applicant had failed or refused to attend four identification parades could reasonably be considered as “necessary in a democratic society”.

The applicant submitted that the camera in the police station was not running as a matter of routine, as it had been run at a different speed to produce a sharper, clearer image of the applicant. Its use did interfere with his private life. He was only in the police station because he had been brought there by the police, and if anything persons in custody required greater protection than the public. Furthermore, the purpose of the recording was to obtain evidence to prosecute the applicant.

The applicant argued that the videotape was made in circumstances which breached the law from start to finish and could not be regarded as in accordance with law. The courts could not be regarded as a safeguard where they admitted such evidence in breach of the law and the Convention. The breaches were not procedural but had a substantive effect, as if the Code had been followed it was highly likely that the applicant would have received proper legal advice, agreed to a formal identification parade, would have objected to and asked for the replacement of unsuitable volunteers and may not have been identified. It could never, in his view, be legitimate for agents of the Government to deliberately and extensively breach the law.

Having regard to the applicant’s complaints and the parties’ submissions, 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 making of a video identification film involving the applicant at a police station;

Declares the remainder of the application inadmissible.

Vincent BergerGeorg Ress
RegistrarPresident

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