European Court of Human Rights

Mr. Zekia and Mr. Bernhardt, who were prevented from taking part in the consideration of the case, were subsequently replaced by Mr. B. Walsh and Mr. E. García de Enterría, substitute judges (Rules 22 para. 1 and 24 para. 1).

On 14 September, the President extended until 14 October each of the time-limits granted to the Agent and the applicant’s lawyers.

On 16 December 1983, this time-limit was extended by the President by three weeks. The POEU’s comments were received at the registry on 26 January 1984.

There appeared before the Court:

- for the Government

       Mr. M. Eaton, Legal Counsellor,

                            Foreign and Commonwealth Office,                            Agent,

       Sir Michael Havers, Q.C., M.P., Attorney General,

       Mr. N. Bratza, Barrister-at-Law,                                             Counsel,

       Mr. H. Steel, Law Officers’ Department,

       Mrs. S. Evans, Legal Adviser, Home Office,                            Advisers;

- for the Commission

       Mr. C. Nørgaard, President

                            of the Commission,                                                Delegate;

- for the applicant

       Mr. C. Ross-Munro, Q.C.,

       Mr. D. Serota, Barrister-at-Law,                                             Counsel.

The Court heard addresses by Sir Michael Havers for the Government, by Mr. Nørgaard for the Commission and by Mr. Ross-Munro for the applicant, as well as their replies to its questions.

AS TO THE FACTS

I.   PARTICULAR CIRCUMSTANCES OF THE CASE

It was admitted by the Government that the single conversation about which evidence emerged at the applicant’s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of State for the prevention and detection of crime. According to the Government, this interception was carried out in full conformity with the law and the relevant procedures. No disclosure was made either at the trial of the applicant or during the course of the applicant’s proceedings against the Commissioner of Police as to whether the applicant’s own telephone number had been tapped or as to whether other and, if so, what other, telephone conversations to which the applicant was a party had been intercepted. The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information, particularly police informants, and thereby place in jeopardy the source in question. For similar reasons, the Government declined to disclose before the Commission or the Court to what extent, if at all, the applicant’s telephone calls and correspondence had been intercepted on behalf of the police authorities. It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the Commission was attributable directly or indirectly to any interception. The Government conceded that, as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques, he was one of a class of persons against whom measures of interception were liable to be employed.

II.   RELEVANT LAW AND PRACTICE

A. Introduction

Firstly, a Committee of Privy Councillors under the chairmanship of Lord Birkett was appointed in June 1957 "to consider and report upon the exercise by the Secretary of State of the executive power to intercept communications and, in particular, under what authority, to what extent and for what purposes this power has been exercised and to what use information so obtained has been put; and to recommend whether, how and subject to what safeguards, this power should be exercised ...". The Committee’s report (hereinafter referred to as "the Birkett report") was published in October 1957 (as Command Paper 283). The Government of the day announced that they accepted the report and its recommendations, and were taking immediate steps to implement those recommendations calling for a change in procedure. Subsequent Governments, in the person of the Prime Minister or the Home Secretary, publicly reaffirmed before Parliament that the arrangements relating to the interception of communications were strictly in accordance with the procedures described and recommended in the Birkett report.

Secondly, a Command Paper entitled "The Interception of Communications in Great Britain" was presented to Parliament by the then Home Secretary in April 1980 (Command Paper 7873 - hereinafter referred to as "the White Paper"). The purpose of the White Paper was to bring up to date the account given in the Birkett report.

Finally, in March 1981 a report by Lord Diplock, a Lord of Appeal in Ordinary who had been appointed to monitor the relevant procedures on a continuing basis (see paragraphs 54 and 55 below), was published outlining the results of the monitoring he had carried out to date.

B. Legal position relating to interception of communications prior to 1969

"If any officer of the Post Office, contrary to his duty, opens ... any postal packet in course of transmission by post, or wilfully detains or delays ... any such postal packet, he shall be guilty of a misdemeanour ... .

Provided that nothing in this section shall extend to ... the opening, detaining or delaying of a postal packet ... in obedience to an express warrant in writing under the hand of a Secretary of State."

"Postal packet" is defined in section 87 sub-section 1 of the Act as meaning:

"a letter, postcard, reply postcard, newspaper, printed packet, sample packet or parcel and every packet or article transmissible by post, and includes a telegram".

Section 58, which is still in force, reproduced a clause that had been on the statute book without material amendment since 1710.

These provisions are still in force.

The Birkett Committee considered that the power to intercept telephone communications rested upon the power plainly recognised by the Post Office statutes as existing before the enactment of the statutes (Birkett report, para. 50). It concluded (ibid., para. 51):

"We are therefore of the opinion that the state of the law might fairly be expressed in this way.

(a)  The power to intercept letters has been exercised from the earliest times, and has been recognised in successive Acts of Parliament.

(b)  This power extends to telegrams.

(c)  It is difficult to resist the view that if there is a lawful power to intercept communications in the form of letters and telegrams, then it is wide enough to cover telephone communications as well."

C. Post Office Act 1969

"A requirement to do what is necessary to inform designated persons holding office under the Crown concerning matters and things transmitted or in course of transmission by means of postal or telecommunication services provided by the Post Office may be laid on the Post Office for the like purposes and in the like manner as, at the passing of this Act, a requirement may be laid on the Postmaster General to do what is necessary to inform such persons concerning matters and things transmitted or in course of transmission by means of such services provided by him."

"In any proceedings against a person in respect of an offence under section 45 of the Telegraph Act 1863 or section 11 of the Post Office (Protection) Act 1884 consisting in the improper divulging of the purport of a message or communication or an offence under section 20 of the Telegraph Act 1868 it shall be a defence for him to prove that the act constituting the offence was done in obedience to a warrant under the hand of a Secretary of State."

D. Judgment of Sir Robert Megarry V.-C. in Malone v. Commissioner of Police of the Metropolis

- that any "tapping" (that is, interception, monitoring or recording) of conversations on his telephone lines without his consent, or disclosing the contents thereof, was unlawful even if done pursuant to a warrant of the Home Secretary;

- that he had rights of property, privacy and confidentiality in respect of conversations on his telephone lines and that the above-stated tapping and disclosure were in breach of those rights;

- that the tapping of his telephone lines violated Article 8 (art. 8) of the Convention.

In his judgment, delivered on 28 February 1979, the Vice-Chancellor noted that he had no jurisdiction to make the declaration claimed in respect of Article 8 (art. 8) of the Convention. He made a detailed examination of the domestic law relating to telephone tapping, held in substance that the practice of tapping on behalf of the police as recounted in the Birkett report was legal and accordingly dismissed the action.

"... the only form of telephone tapping that has been debated is tapping which consists of the making of recordings by Post Office officials in some part of the existing telephone system, and the making of those recordings available to police officers for the purposes of transcription and use. I am not concerned with any form of tapping that involved electronic devices which make wireless transmissions, nor with any process whereby anyone trespasses onto the premises of the subscriber or anyone else to affix tapping devices or the like. All that I am concerned with is the legality of tapping effected by means of recording telephone conversations from wires which, though connected to the premises of the subscriber, are not on them." ([1979] 2 All England Law Reports, p. 629)

As to the applicant’s remaining contentions based on privacy and confidentiality, he observed firstly that no assistance could be derived from cases dealing with other kinds of warrant. Unlike a search of premises, the process of telephone tapping on Post Office premises did not involve any act of trespass and so was not prima facie illegal (ibid., p. 640). Secondly, referring to the warrant of the Home Secretary, the Vice-Chancellor remarked that such warrant did not "purport to be issued under the authority of any statute or of the common law". The decision to introduce such warrants in 1937 seemed "plainly to have been an administrative decision not dictated or required by statute" (ibid.). He referred, however, to section 80 of the Post Office Act 1969 and Schedule 5 to the Act, on which the Solicitor General had based certain contentions summarised as follows:

"Although the previous arrangements had been merely administrative, they had been set out in the Birkett report a dozen years earlier, and the section plainly referred to these arrangements; ... A warrant was not needed to make the tapping lawful: it was lawful without any warrant. But where the tapping was done under warrant ... [section 80] afforded statutory recognition of the lawfulness of the tapping." (ibid., p. 641)

"In their essentials", stated the Vice-Chancellor, "these contentions seem to me to be sound." He accepted that, by the 1969 Act,

"Parliament has provided a clear recognition of the warrant of the Home Secretary as having an effective function in law, both as providing a defence to certain criminal charges, and also as amounting to an effective requirement for the Post Office to do certain acts" (ibid., pp. 641-642).

The Vice-Chancellor further concluded that there was in English law neither a general right of privacy nor, as the applicant had contended, a particular right of privacy to hold a telephone conversation in the privacy of one’s home without molestation (ibid., pp. 642-644). Moreover, no duty of confidentiality existed between the Post Office and the telephone subscriber; nor was there any other obligation of confidence on a person who overheard a telephone conversation, whether by means of tapping or otherwise (ibid., pp. 645-647).

He then considered the applicant’s argument that the Convention, as interpreted by the European Court in the case of Klass and Others (judgment of 6 September 1978, Series A no. 28), could be used as a guide to assist in the determination of English law on a point that was uncertain. He observed that the issues before him did not involve construing legislation enacted with the purpose of giving effect to obligations imposed by the Convention. Where Parliament had abstained from legislating on a point that was plainly suitable for legislation, it was difficult for the court to lay down new rules that would carry out the Crown’s treaty obligations, or to discover for the first time that such rules had always existed. He compared the system of safeguards considered in the Klass case with the English system, as described in the Birkett report, and concluded:

"... Not a single one of these safeguards is to be found as a matter of established law in England, and only a few corresponding provisions exist as a matter of administrative procedure.

It does not, of course, follow that a system with fewer or different safeguards will fail to satisfy Article 8 (art. 8) in the eyes of the European Court of Human Rights. At the same time, it is impossible to read the judgment in the Klass case without it becoming abundantly clear that a system which has no legal safeguards whatever has small chance of satisfying the requirements of that Court, whatever administrative provisions there may be. ... Even if the system [in operation in England] were to be considered adequate in its conditions, it is laid down merely as a matter of administrative procedure, so that it is unenforceable in law, and as a matter of law could at any time be altered without warning or subsequent notification. Certainly in law any ‘adequate and effective safeguards against abuse’ are wanting. In this respect English law compares most unfavourably with West German law: this is not a subject on which it is possible to feel any pride in English law.

I therefore find it impossible to see how English law could be said to satisfy the requirements of the Convention, as interpreted in the Klass case, unless that law not only prohibited all telephone tapping save in suitably limited classes of case, but also laid down detailed restrictions on the exercise of the power in those limited classes."

This conclusion did not, however, enable the Vice-Chancellor to decide the case in the way the applicant sought:

"It may perhaps be that the common law is sufficiently fertile to achieve what is required by the first limb of [the above-stated proviso]: possible ways of expressing such a rule may be seen in what I have already said. But I see the greatest difficulty in the common law framing the safeguards required by the second limb. Various institutions or offices would have to be brought into being to exercise various defined functions. The more complex and indefinite the subject-matter the greater the difficulty in the court doing what it is really appropriate, and only appropriate, for the legislature to do. Furthermore, I find it hard to see what there is in the present case to require the English courts to struggle with such a problem. Give full rein to the Convention, and it is clear that when the object of the surveillance is the detection of crime, the question is not whether there ought to be a general prohibition of all surveillance, but in what circumstances, and subject to what conditions and restrictions, it ought to be permitted. It is those circumstances, conditions and restrictions which are at the centre of this case; and yet it is they which are the least suitable for determination by judicial decision.

 ... Any regulation of so complex a matter as telephone tapping is essentially a matter for Parliament, not the courts; and neither the Convention nor the Klass case can, I think, play any proper part in deciding the issue before me." (ibid., pp. 647-649)

He added that "this case seems to me to make it plain that telephone tapping is a subject which cries out for legislation", and continued:

"However much the protection of the public against crime demands that in proper cases the police should have the assistance of telephone tapping, I would have thought that in any civilised system of law the claims of liberty and justice would require that telephone users should have effective and independent safeguards against possible abuses. The fact that a telephone user is suspected of crime increases rather than diminishes this requirement: suspicions, however reasonably held, may sometimes prove to be wholly unfounded. If there were effective and independent safeguards, these would not only exclude some cases of excessive zeal but also, by their mere existence, provide some degree of reassurance for those who are resentful of the police or believe themselves to be persecuted." (ibid., p. 649)

"I have already held that, if such tapping can be carried out without committing any breach of the law, it requires no authorisation by statute or common law; it can lawfully be done simply because there is nothing to make it unlawful. Now that I have held that such tapping can indeed be carried out without committing any breach of the law, the contention necessarily fails. I may also say that the statutory recognition given to the Home Secretary’s warrant seems to me to point clearly to the same conclusion." (ibid., p. 649)

"Though of necessity I have discussed much, my actual decision is closely limited. It is confined to the tapping of the telephone lines of a particular person which is effected by the Post Office on Post Office premises in pursuance of a warrant of the Home Secretary in a case in which the police have just cause or excuse for requesting the tapping, in that it will assist them in performing their functions in relation to crime, whether in prevention, detection, discovering the criminals or otherwise, and in which the material obtained is used only by the police, and only for those purposes. In particular, I decide nothing on tapping effected for other purposes, or by other persons, or by other means; nothing on tapping when the information is supplied to persons other than the police; and nothing on tapping when the police use the material for purposes other than those I have mentioned. The principles involved in my decision may or may not be of some assistance in such other cases, whether by analogy or otherwise: but my actual decision is limited in the way that I have just stated." (ibid., p. 651)

E. Subsequent consideration of the need for legislation

"The interception of communications is, by definition, a practice that depends for its effectiveness and value upon being carried out in secret, and cannot therefore be subject to the normal processes of parliamentary control. Its acceptability in a democratic society depends on its being subject to ministerial control, and on the readiness of the public and their representatives in Parliament to repose their trust in the Ministers concerned to exercise that control responsibly and with a right sense of balance between the value of interception as a means of protecting order and security and the threat which it may present to the liberty of the subject.

Within the necessary limits of secrecy, I and my right hon. Friends who are concerned are responsible to Parliament for our stewardship in this sphere. There would be no more sense in making such secret matters justiciable than there would be in my being obliged to reveal them in the House. If the power to intercept were to be regulated by statute, then the courts would have power to inquire into the matter and to do so, if not publicly, then at least in the presence of the complainant. This must surely limit the use of interception as a tool of investigation. The Government have come to the clear conclusion that the procedures, conditions and safeguards described in the [White] Paper ensure strict control of interception by Ministers, are a good and sufficient protection for the liberty of the subject, and would not be made significantly more effective for that purpose by being embodied in legislation. The Government have accordingly decided not to introduce legislation on these matters" (Hansard, House of Commons, 1 April 1980, cols. 205-207).

He gave an assurance that "Parliament will be informed of any changes that are made in the arrangements" (ibid., col. 208).

"... [A]lthough we have no evidence that the existing controls are inadequate to prevent abuse, we think that there are strong arguments for introducing a system of statutory control on similar lines to that which we have recommended for search warrants. As with all features of police investigative procedures, the value of prescribing them in statutory form is that it brings clarity and precision to the rules; they are open to public scrutiny and to the potential of Parliamentary review. So far as surveillance devices in general are concerned this is not at present so.

 ...

We therefore recommend that the use of surveillance devices by the police (including the interception of letters and telephone communications) should be regulated by statute."

These recommendations were not adopted by the Government.

F. The practice followed in relation to interceptions

(a) the offence must be "really serious";

(b) normal methods of investigation must have been tried and failed or must, from the nature of things, be unlikely to succeed;

(c) there must be good reason to think that an interception would be likely to lead to an arrest and a conviction.

Handling (including receiving) stolen goods, knowing or believing them to be stolen, is an offence under section 22 of the Theft Act 1968, carrying a maximum penalty of fourteen years’ imprisonment. According to the Government, the receiving of stolen property is regarded as a very serious offence since the receiver lies at the root of much organised crime and encourages large-scale thefts (see the Birkett report, para. 103). The detection of receivers of stolen property was at the time of the Birkett report (ibid.), and remains, one of the important uses to which interception of communications is put by the police.

In their submissions to the Commission and the Court, the Government supplemented as follows the information given in the White Paper. Except in cases of exceptional urgency, an application will only be considered in the Home Office if it is put forward by a senior officer of the Metropolitan Police, in practice the Assistant Commissioner (Crime), and also, in the case of another police force, by the chief officer of police concerned. Close personal consideration is given by the Secretary of State to every request for a warrant submitted to him. In the debate on the British Telecommunications Bill in April 1981, the then Home Secretary confirmed before Parliament that he did not and would not sign any warrant for interception unless he were personally satisfied that the relevant criteria were met (Hansard, House of Commons, 1 April 1981, col. 336).

(a) the ground on which the warrant is applied for;

(b) a copy of the warrant issued or a note of rejection of the application;

(c) the dates of any renewals of the warrant;

(d) a note of any other decisions concerning the warrant;

(e) the date of cancellation of the warrant (White Paper, para. 14).

"1.67 Head Postmasters and Telephone Managers have been given authority to assist the police as indicated in paragraph 1.68 below without reference to Post Office Headquarters, in circumstances where the police are seeking information

(a) in the interests of justice in the investigation of a serious indictable offence; or

(b) when they are acting in a case on the instructions of the Director of Public Prosecutions; or

(c) when a warrant has been issued for the arrest of the offender, or the offence is such that he can be arrested without a warrant; or

 ...

1.68 Head Postmasters, or (in matters affecting the telecommunication service) Telephone Managers, may afford the following facilities in response to a request made by the officer locally in charge of the force at the town where the Head Postmaster is stationed

 ...

(g) Telegrams. Telegrams may be shown to the police on the authority of the sender or addressee. Apart from this the Post Office is prepared to give authority in particular cases of serious crime where the inspection of a telegram is a matter of urgency, and will do so at once on telephonic application, by a chief officer of police or a responsible officer acting on his behalf, to the Chief Inspector, Post Office Investigation Division. ...

 ...

1.69 ...

1.70 As regards any matter not covered by paragraphs 1.67 and 1.68 above, if the police are in urgent need of information which the Post Office may be able to furnish in connection with a serious criminal offence, the police officer in charge of the investigation should communicate with the Duty Officer, Post Office Investigation Division who will be ready to make any necessary inquiries of other branches of the Post Office and to communicate any information which can be supplied."

In May 1984, the Home Office notified chief officers of police that paragraph 1.68 (g), described as containing advice and information to the police which was "in some respects misleading", was henceforth to be regarded as deleted, with the exception of the first complete sentence. At the same time, chief officers of police were reminded that the procedures for the interception of communications were set out in the White Paper and rigorously applied in all cases.

"to review on a continuing basis the purposes, procedures, conditions and safeguards governing the interception of communications on behalf of the police, HM Customs and Excise and the security service as set out in [the White Paper]; and to report to the Prime Minister" (Hansard, House of Commons, 1 April 1980, cols. 207-208).

It was further announced that the person appointed would have the right of access to all relevant papers and the right to request additional information from the departments and organisations concerned. For the purposes of his first report, which would be published, he would examine all the arrangements set out in the White Paper; his subsequent reports on the detailed operation of the arrangements would not be published, but Parliament would be informed of any findings of a general nature and of any changes that were made in the arrangements (ibid.).

(i)   that, in each case, the information provided by the applicant authorities to the Secretary of State in support of the issue of a warrant was stated with accuracy and candour and that the procedures followed within the applicant authorities for vetting applications before submission to the Secretary of State were appropriate to detect and correct any departure from proper standards;

(ii)  that warrants were not applied for save in proper cases and were not continued any longer than was necessary to carry out their legitimate purpose.

Lord Diplock further found from his examination of the system that all products of interception not directly relevant to the purpose for which the warrant was granted were speedily destroyed and that such material as was directly relevant to that purpose was given no wider circulation than was essential for carrying it out.

In early 1982, Lord Diplock submitted his second report. As the Secretary of State informed Parliament, Lord Diplock’s general conclusion was that during the year 1981 the procedure for the interception of communications had continued to work satisfactorily and the principles set out in the White Paper had been conscientiously observed by all departments concerned.

In 1982, Lord Diplock resigned his position and was succeeded by Lord Bridge of Harwich, a Lord of Appeal in Ordinary since 1980.

G. "Metering"

In the case of the Post Office, the Crown does not require the keeping of records of this kind but, if the records are kept, the Post Office may be compelled to produce them in evidence in civil or criminal cases in the ordinary way, namely by means of a subpoena duces tecum. In this respect the position of the Post Office does not differ from that of any other party holding relevant records as, for instance, a banker. Neither the police nor the Crown are empowered to direct or compel the production of the Post Office records otherwise than by the normal means.

However, the Post Office do on occasions make and provide such records at the request of the police if the information is essential to police enquiries in relation to serious crime and cannot be obtained from other sources. This practice has been made public in answer to parliamentary questions on more than one occasion (see, for example, the statement by the Home Secretary to Parliament, Hansard, House of Commons, 23 February 1978, cols. 760-761).

H.  Possible domestic remedies in respect of the alleged violation of the Convention

(i)   In the event of any interception or disclosure of intercepted material effected by a Post Office employee "contrary to duty" or "improperly" and without a warrant of the Secretary of State, a criminal offence would be committed under the Telegraph Acts 1863 and 1868 and the Post Office (Protection) Act 1884 (as regards telephone interceptions) and under the Post Office Act 1953 (as regards postal interceptions) (see paragraphs 25-27 above). On complaint that communications had been unlawfully intercepted, it would be the duty of the police to investigate the matter and to initiate a prosecution if satisfied that an offence had been committed. If the police failed to prosecute, it would be open to the complainant himself to commence a private prosecution.

(ii)  In addition to (i) above, in a case of unlawful interception by a Post Office employee without a warrant, an individual could obtain an injunction from the domestic courts to restrain the person or persons concerned and the Post Office itself from carrying out further unlawful interception of his communications: such an injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act (see, for example, Gouriet v. The Union of Post Office Workers, [1977] 3 All England Law Reports 70; Ex parte Island Records Ltd., [1978] 3 All England Law Reports 795).

(iii)  On the same grounds, an action would lie for an injunction to restrain the divulging or publication of the contents of intercepted communications by employees of the Post Office, otherwise than under a warrant of the Secretary of State, or to any person other than the police.

Besides these remedies, unauthorised interference with mail would normally constitute the tort of trespass to (that is, wrongful interference with) chattels and so give rise to a civil action for damages.

(i)   In the event that the police were themselves implicated in an interception carried out without a warrant, a complaint could additionally be lodged under section 49 of the Police Act 1964, which a chief officer of police would, by the terms of the Act, be obliged to investigate and, if an offence appeared to him to have been committed, to refer to the Director of Public Prosecutions.

(ii)  If a complainant were able to establish merely that the police or the Secretary of State had misappreciated the facts or that there was not an adequate case for imposing an interception, the individual concerned would be able to complain directly to the Secretary of State himself or through his Member of Parliament: if a complainant were to give the Home Secretary information which suggested that the grounds on which a warrant had been issued did not in fact fall within the published criteria or were inadequate or mistaken, the Home Secretary would immediately cause it to be investigated and, if the complaint were found to be justified, would immediately cancel the warrant.

(iii)  Similarly, if there were non-compliance with any of the relevant administrative rules of procedure set out in the Birkett report and the White Paper, a remedy would lie through complaint to the Secretary of State who would, in a proper case, cancel or revoke a warrant and thereby terminate an interception which was being improperly carried out.

According to the Government, in practice there never has been a case where a complaint in any of the three above circumstances has proved to be well-founded.

PROCEEDINGS BEFORE THE COMMISSION

In its report adopted on 17 December 1982 (Article 31) (art. 31), the Commission expressed the opinion:

- that there had been a breach of the applicant’s rights under Article 8 (art. 8) by reason of the admitted interception of a telephone conversation to which he was a party and of the law and practice in England and Wales governing the interception of postal and telephone communications on behalf of the police (eleven votes, with one abstention);

- that it was unnecessary in the circumstances of the case to investigate whether the applicant’s rights had also been interfered with by the procedure known as "metering" of telephone calls (seven votes to three, with two abstentions);

- that there had been a breach of the applicant’s rights under Article 13 (art. 13) in that the law in England and Wales did not provide an "effective remedy before a national authority" in respect of interceptions carried out under a warrant (ten votes to one, with one abstention).

The full text of the Commission’s opinion and of the two separate opinions contained in the report is reproduced as an annex to the present judgment.

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

"(1) with regard to Article 8 (art. 8),

(i) to decide and declare that the interference with the exercise of the rights guaranteed by Article 8 para. 1 (art. 8-1) of the Convention resulting from the measures of interception of communications on behalf of the police in England and Wales for the purpose of the detection and prevention of crime, and any application of those measures to the applicant, were and are justified under paragraph 2 of Article 8 (art. 8-2) as being in accordance with the law and necessary in a democratic society for the prevention of crime and for the protection of the rights and freedoms of others and that accordingly there has been no breach of Article 8 (art. 8) of the Convention;

(ii) (a) to decide and declare that it is unnecessary in the circumstances of the present case to investigate whether the applicant’s rights under Article 8 (art. 8) were interfered with by the so-called system of ‘metering’; alternatively (b) to decide and declare that the facts found disclose no breach of the applicant’s rights under Article 8 (art. 8) by reason of the said system of ‘metering’;

(2) with regard to Article 13 (art. 13),

to decide and declare that the circumstances of the present case disclose no breach of Article 13 (art. 13) of the Convention".

AS TO THE LAW

I.   ALLEGED BREACH OF ARTICLE 8 (art. 8)

"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 applicant alleged violation of this Article (art. 8) under two heads. In his submission, the first violation resulted from interception of his postal and telephone communications by or on behalf of the police, or from the law and practice in England and Wales relevant thereto; the second from "metering" of his telephone by or on behalf of the police, or from the law and practice in England and Wales relevant thereto.

A. Interception of communications

1. Scope of the issue before the Court

2. Whether there was any interference with an Article 8 (art. 8) right

Despite the applicant’s allegations, the Government have consistently declined to disclose to what extent, if at all, his telephone calls and mail have been intercepted otherwise on behalf of the police (see paragraph 16 above). They did, however, concede that, as a suspected receiver of stolen goods, he was a member of a class of persons against whom measures of postal and telephone interception were liable to be employed. As the Commission pointed out in its report (paragraph 115), the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an "interference ... with the exercise" of the applicant’s rights under Article 8 (art. 8), apart from any measures actually taken against him (see the above-mentioned Klass and Others judgment, ibid.). This being so, the Court, like the Commission (see the report, paragraph 114), does not consider it necessary to inquire into the applicant’s further claims that both his mail and his telephone calls were intercepted for a number of years.

3. Whether the interferences were justified

(a) "In accordance with the law"

(i) General principles

The first such principle was that the word "law/loi" is to be interpreted as covering not only written law but also unwritten law (see the above-mentioned Sunday Times judgment, p. 30, para. 47). A second principle, recognised by Commission, Government and applicant as being applicable in the present case, was that "the interference in question must have some basis in domestic law" (see the the above-mentioned Silver and Others judgment, p. 33, para. 86). The expressions in question were, however, also taken to include requirements over and above compliance with the domestic law. Two of these requirements were explained in the following terms:

"Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." (Sunday Times judgment, p. 31, para. 49; Silver and Others judgment, p. 33, paras. 87 and 88)

The Court would reiterate its opinion that the phrase "in accordance with the law" does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention (see, mutatis mutandis, the above-mentioned Silver and Others judgment, p. 34, para. 90, and the Golder judgment of 21 February 1975, Series A no. 18, p. 17, para. 34). The phrase thus implies - and this follows from the object and purpose of Article 8 (art. 8) - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1 (art. 8-1) (see the report of the Commission, paragraph 121). Especially where a power of the executive is exercised in secret, the risks of arbitrariness are evident (see the above-mentioned Klass and Others judgment, Series A no. 28, pp. 21 and 23, paras. 42 and 49). Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.

(ii) Application in the present case of the foregoing principles

This issue was considered under two heads in the pleadings: firstly, whether the law was such that a communication passing through the services of the Post Office might be intercepted, for police purposes, only pursuant to a valid warrant issued by the Secretary of State and, secondly, to what extent the circumstances in which a warrant might be issued and implemented were themselves circumscribed by law.

Detailed procedures concerning interception of communications on behalf of the police in England and Wales do exist (see paragraphs 42-49, 51-52 and 54-55 above). What is more, published statistics show the efficacy of those procedures in keeping the number of warrants granted relatively low, especially when compared with the rising number of indictable crimes committed and telephones installed (see paragraph 53 above). The public have been made aware of the applicable arrangements and principles through publication of the Birkett report and the White Paper and through statements by responsible Ministers in Parliament (see paragraphs 21, 37-38, 41, 43 and 54 above).

Nonetheless, on the evidence before the Court, it cannot be said with any reasonable certainty what elements of the powers to intercept are incorporated in legal rules and what elements remain within the discretion of the executive. In view of the attendant obscurity and uncertainty as to the state of the law in this essential respect, the Court cannot but reach a similar conclusion to that of the Commission. In the opinion of the Court, the law of England and Wales does not indicate with reasonable clarity the scope and manner of exercise of the relevant discretion conferred on the public authorities. To that extent, the minimum degree of legal protection to which citizens are entitled under the rule of law in a democratic society is lacking.

(iii) Conclusion

(b) "Necessary in a democratic society" for a recognised purpose

In view of its foregoing conclusion that the interferences found were not "in accordance with the law", the Court considers that it does not have to examine further the content of the other guarantees required by paragraph 2 of Article 8 (art. 8-2) and whether the system circumstances.

B. Metering

C. Recapitulation

II.   ALLEGED BREACH OF ARTICLE 13 (art. 13)

"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."

III.  APPLICATION OF ARTICLE 50 (art. 50)

He further sought recovery of interest in respect of the first two items.

The Government have so far made no submissions on these claims.

FOR THESE REASONS, THE COURT

1. Holds unanimously that there has been a breach of Article 8 (art. 8) of the Convention;

2. Holds by sixteen votes to two that it is not necessary also to examine the case under Article 13 (art. 13);

3. Holds unanimously that the question of the application of Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) refers back to the Chamber the said question.

Done in English and in French at the Human Rights Building, Strasbourg, this second day of August, one thousand nine hundred and eighty-four.

Gérard WIARDA

President

Marc-André EISSEN

Registrar

The separate opinions of the following judges are annexed to the present judgment in accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 52 para. 2 of the Rules of Court:

- partially dissenting opinion of Mr. Matscher and Mr. Pinheiro Farinha;

- concurring opinion of Mr. Pettiti.

G.W.

M.-A.E.