European Court of Human Rights

28 November 2008

FOURTH SECTION

Application no. 52771/08
by Toby NEALE
against the United Kingdom
lodged on 29 October 2008

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Toby Neale, is a British national who was born in 1963 and lives in Ballabeg, Isle of Man. He is represented before the Court by Russell Jones & Walker, a firm of lawyers based in Manchester.

A.  The circumstances of the case

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

The applicant is currently a serving police officer on the Isle of Man.

The applicant became aware in 2002 that two of his colleagues were the subjects of criminal investigations related to alleged fraudulent activities. Both were subsequently arrested. The applicant had been friends with Mr Graley, one of the two men arrested, since 1996 and their friendship continued throughout the investigation into Mr Graley’s conduct. Despite the applicant’s association with both colleagues, the applicant was never questioned by the Enquiry Team which was investigating the allegations of fraudulent activity by the two men.

In December 2005, the applicant was advised by a confidential source within the Isle of Man Constabulary that his name had been included on a list of police officers and civilians who were under investigation as part of the operation. He was also told informally by a senior police officer that the Investigation Team had obtained warrants to intercept telecommunications and that the targets included police officers.

On 2 June 2006, the applicant made an application to the Interception of Communications Tribunal (“the Tribunal”) for an investigation into whether his communications had been intercepted and if so, whether such interception was lawful.

On 2 May 2008, the Tribunal issued an Order which stated that the Tribunal was “satisfied that two relevant warrants numbered 03/03 (A) and 04/03 (A) related to the applicant” and continued:

“And whereas the Tribunal has concluded that the said warrants 03/03(A) and 04/03(A) contravened sections 2 to 5 of the [Interception of Communications Act 1988].

IT IS HEREBY ORDERED that all copies of the material intercepted pursuant to the relevant warrants numbered 03/03(A) and 04/03(A) be destroyed forthwith. ...”

B.  Relevant domestic law and practice

1. The Interception of Communications Act 1988

Within the Isle of Man, the intentional interception of communications is subject to the provisions of the Interception of Communications Act 1988 (“the Act”), as amended by the Interception of Communications Act 2001. By section 1(1) of the Act, anyone who intentionally intercepts a communication in the course of its transmission by means of, inter alia, a public communications system is guilty of a criminal offence. Section 1(2)(a) provides that no offence is committed if the interception is carried out pursuant to a warrant issued by the Chief Minister. Under section 2(2) of the Act, the Chief Minister may issue a warrant only if he considers it necessary in the interests of national security or for the purpose of preventing or detecting serious crime.

The Act includes a number of safeguards. For example, under section 6(4), before issuing or renewing a warrant, the Chief Minister must consult the Attorney General. The Act provides in section 8 for the creation of the Tribunal empowered to investigate alleged breaches of the Act and, in section 9, for the appointment of a Commissioner to keep under review the carrying out by the Chief Minister of his functions under the Act and to report on any contravention of sections 2 to 5 of the Act which has not been the subject of a report made by the Tribunal.

2. The 2003 Report of the Commissioner

“1. I have the honour to report that during the year ended 31^st December 2003, 23 warrants were issued by the Chief Minister or the Minister for Home Affairs under the provisions of the [1988 and 2001 Acts].

2. All 23 warrants were issued for the purpose of preventing or detecting serious crime. And all were for the interception of communications by means of a public telecommunications system. All the warrants had ceased to be in force prior to 31^st December 2003. 9 warrants which remained in force on 31^st December 2002 had ceased also to be in force prior to 31^st December 2003.

3. I have examined all 23 warrants that were issued, and I am satisfied that the Chief Minister or the Minister for Home Affairs was justified in each case in issuing the warrant for the purpose of preventing or detecting serious crime.

4. The Tribunal, appointed under section 8 of the Interception of Communications Act 1988, received no applications under that section during the year ended 31^st December 2003.”

COMPLAINTS

The applicant underlines that the Tribunal found that two warrants had been issued for the interception of his communications which were not in accordance with the law. He considers it distressing that his communications, including private communications between his wife and children and their friends and relatives, may have been unlawfully intercepted by his colleagues and he complains under Article 8 of the Convention about shortcomings in the safeguards available to him under domestic law.

First, since the warrants for the interception of his communications were issued at the request of the Attorney General’s Office, which had conduct of the relevant investigations, he was deprived of the protection of the independent advice provided for in section 6(4) of the Act.

Secondly, it appears from the Tribunal’s order, and the reference numbers quoted, that the warrants were issued early in 2003. The Reports of the Commissioner for 2003 and 2004 stated that the Commissioner was satisfied that the issuing of all warrants within those periods was justified. The applicant contends that these findings indicate that there is ineffective regulation and independent oversight of the interception of communications on the Isle of Man.

The applicant further complains under Article 6 of the Convention that, in accordance with paragraph 3(2) of Schedule 1 to the Act, the Tribunal could not disclose to him the reasons for its decision, although the Chief Minister received a fully reasoned report. He also complains that criminal proceedings against a person responsible for acting under a defective warrant can only be instituted with the consent of the Attorney General. He argues that this process lacks independence and clear public accountability given the Attorney General prior involvement in the events in question.

Finally, he complains under Article 13 that there is no effective remedy in the Isle of Man for his above complaints, since the Human Rights Act 2001 came into force on 1 November 2006 and its application to events which occurred prior to that date is expressly excluded.

QUESTION TO THE PARTIES

(a) it appears that the Attorney General’s Office acted both as prosecuting authority, requesting the warrant of surveillance against the applicant, and advisor to the Chief Minister under section 6(4) of the Interception of Communications Act 1988, as amended by the Interception of Communications Act 2001;

(b) the Commissioner in his Report dated 5 February 2004 stated that all 23 warrants issued in 2003 had been justified, whereas the Tribunal subsequently found that two warrants had been issued against the applicant, presumably in 2003, in breach of sections 2 to 5 of the 1988 Act;

(c) the Interception of Communications Tribunal gave no reasons to the applicant in connection with its findings that the warrants had been issued unlawfully; and

(d) criminal proceedings in respect of the unlawful interception of the applicant’s communications could not be brought without the consent of the Attorney General?