European Court of Human Rights

28 November 2008

FOURTH SECTION

Application no. 43371/05
by Roger THOMSON
against the United Kingdom
lodged on 16 November 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Roger Thomson, is a British national who was born in 1958 and lives in Port Erin, Isle of Man.

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.

On 30 January 2003 the applicant’s colleague, Mr Graley, was arrested for conspiracy to defraud. On 1 February 2003, the applicant called Mr Graley by telephone from his home address. The call was initiated by the applicant and was made on welfare grounds and on a personal basis. The applicant was not acting on the instructions of, or on behalf of, the Isle of Man Constabulary.

On 31 March 2003, Mr Graley was charged with one offence of false accounting and two offences of aiding and abetting a subordinate officer to obtain money by deception. The charges were laid on the advice of the Attorney General’s Chambers and the prosecutor with conduct of the case came from the Attorney General’s Chambers.

On 10 June 2003, the applicant was served with a Notice of Report, Allegation or Complaint under Regulation 5 of the Isle of Man (Discipline) Regulations 1995 (“the Notice”). The Notice alleged, inter alia, that between 31 January 2003 and 8 February 2003, the applicant contacted by telephone Mr Graley, who at the time was suspended from duty, contrary to the instructions. The Notice advised that such conduct may amount to “disobedience to Orders”. The disciplinary process was completed in December 2003 and on 16 December 2003 the applicant was informed that no further action would be taken and that no allegations remained outstanding.

The charges against Mr Graley were subsequently dismissed and on 13 May 2004 the High Bailiff ordered that Mr Graley be awarded costs of GBP 54,045.68.

On 1 June 2004 Mr Graley complained to the Interception of Communications Tribunal (“the Tribunal”) that he suspected that his telephone communications had been subjected to interception by the police.

The applicant wrote to the Office of the Data Protection Supervisor requesting an assessment under the Data Protection Act 1986 of whether a breach of the data protection principles had occurred. By letter dated 19 July 2004, the applicant was advised by the Deputy Data Protection Supervisor that his home telephone records had been disclosed by Manx Telecom, which was licensed to operate the Isle of Man public telecommunications system, to the Isle of Man Constabulary. However, no breach of the Data Protection Act was revealed.

On 10 August 2005 the Tribunal issued an Order in respect of Mr Graley’s application. It found that two warrants had been issued to intercept Mr Graley’s communications and that both contravened sections 2 to 5 of the Interception of Communications Act 1988.

On 12 August 2005 Mr Graley informed the applicant of the Tribunal’s finding.

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. Section 3 stipulates that the warrant must describe the communications to be intercepted, including reference to “addresses, numbers, apparatus and other factors specified in the warrant as the factors or combination of factors to be used” in order to identify the communications to be intercepted.

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 issued in respect of Mr Graley’s communications were not in accordance with the law. He considers it distressing that his private communication with Mr Graley was unlawfully intercepted by his former colleagues, with whom he had close working relationships and social contact, and that information obtained from the interception was used to initiate disciplinary proceedings against him. He complains under Article 8 of the Convention about shortcomings in the safeguards available under domestic law.

First, since the warrants for the interception Mr Graley’s communications, which included the applicant’s private call to Mr Graley, were issued at the request of the Attorney General’s Office, which had conduct of the investigation and prosecution of Mr Graley’s case, he was deprived of the protection of the independent advice provided for in section 6(4) of the Act.

Second, it appears from the Tribunal’s order in respect of Mr Graley, 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. These findings indicate that there is ineffective regulation and independent oversight of the interception of communications on the Isle of Man.

Third, insofar as the material obtained from the interception of the applicant’s call to Mr Graley was used in order to institute the disciplinary proceedings, there were insufficient safeguards in the Act to prevent material obtained from being used for purposes not linked to national security or the prevention or detection of serious crime.

The applicant further 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.

QUESTIONS TO THE PARTIES

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

(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 Mr Graley, presumably in 2003, in breach of sections 2 to 5 of the 1988 Act;