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Cite as: [2009] ECHR 113
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14 January 2009
FOURTH SECTION
Applications nos. 46559/06
and 22921/06
by Russell KNAGGS and
Ramzy KHACHIK
against
the United Kingdom
lodged on 7 November 2006 and 15 May 2006
STATEMENT OF FACTS
THE FACTS
The applicants, Mr Russell Knaggs and Mr Ramzy Khachik, are British nationals who were born in 1973 and 1957 respectively and are currently being detained in HMP Lowdham Grange, Nottingham. They are represented before the Court by Salhan & Co., a firm of lawyers based in Birmingham.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
On 8 November 2001, an officer in the National Crime Squad applied to conduct directed surveillance on Mr Knaggs and his criminal associates. The application was part of an ongoing investigation into the criminal activities of the applicant. The application was authorised and directed surveillance commenced, with monthly reviews. On 8 February 2002, an officer in the National Crime Squad ordered a feasibility study into the possibility of placing a probe in a Mitsubishi Shogun which Mr Knaggs allegedly owned. The purported purpose of the probe was to record conversations of face-to-face meetings in the vehicle. On 11 February 2002, a National Crime Squad officer applied for authorisation for intrusive surveillance, in order to place the probe in the vehicle. The application was authorised by the Director-General on 15 February 2002. According to the prosecution, the probe was installed on 25 February 2002.
Between 25 February 2002 and 5 April 2002, the probe was operated and the conversations in the car recorded. On 12 March 2002, a review of the intrusive surveillance was conducted. The review noted that around 150 mobile telephone calls had been made or received while Mr Knaggs was in the vehicle.
On 5 April 2002, the applicants were arrested and subsequently charged with conspiracy to supply a class A drug. Legal proceedings were commenced in the Crown Court. In the course of disclosure, the prosecution provided CD copies of the probe tapes to the applicants. As Mr Knaggs had regularly used his mobile telephone while in his car, the probe tapes contained for the most part one-sided mobile telephone conversations. Mr Knaggs considered that the probe tapes were not accurate recordings of events which took place in the Mitsubishi Shogun and sought the advice of a technical expert. After preliminary examination of the CD copies provided to the applicants, the expert concluded that the probe material contained extraneous signals which suggested that it was the product of a direct mobile telephone interception. The expert also examined itemised billing information produced by the prosecution. He concluded that the information had been produced from the intercept and had not been provided by the various telephone operators.
The applicants sought confirmation from the prosecution of whether or not there had been an intercept. They did this on the basis that, had there been an intercept, they would have had grounds to challenge the necessity and lawfulness of the probe and the motivations of the police officers requesting the probe. However, difficulties arose because section 17 of the Regulation of Investigatory Powers Act 2000 (“RIPA”: see further below) appeared to preclude the asking of any question and the disclosure of any information relating to whether or not there had been an intercept. Section 18 allowed limited disclosure of the content of an intercept in certain circumstances and where such disclosure could be made without breaching the section 17 prohibition. In October 2002, the applicants applied for a ruling as to the operation of sections 17 and 18 RIPA. On 25 October 2002, the judge delivered his ruling, holding that section 17 prohibited the applicants from knowing whether there was an intercept and that section 18 did not allow him to order any kind of disclosure in the applicants’ case. The judge noted that:
“It can thus be seen that subject to Section 18 there is no ambiguity about Section 17. Its terms and intention are crystal clear. There is a strict prohibition, a complete blanket comes down on anything at all which would reveal whether there was, or was not, an intercept, or even the possibility that there was, or might have been an intercept, or, indeed, application for an intercept. On its face that would completely rule out any disclosure of the kind originally asked for by the Defence in their skeleton. That was why the Crown ... had concerns about the very legality of what the Defence, through their expert, was doing. Concerns shared by the Court ...”
The applicants subsequently applied for the proceedings to be stayed as an abuse of process or for the probe evidence to be excluded on the grounds of unfairness under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”: see further below). They argued that the probe was unlawful on the basis that it was not “necessary” in light of the effective results of the directed surveillance exercise. They further argued that the officers involved in making the application for authorisation of the probe had acted deceitfully and dishonestly. They challenged in particular the police assertion that the intention of the probe was to collect evidence of face-to-face meetings in the car. Mr Knaggs argued that the claim on the authorisation form that he conducted meetings with his associates in the car had been fabricated. He pointed to a directive issued by the senior officer in the case instructing an officer involved in the directed surveillance not to make any records of his observations of Mr Knaggs’ movements. Such a direction was in breach of the Code of Practice adopted pursuant to section 23 of the Criminal Procedure and Investigations Act 1996 and deprived the applicants of the opportunity to examine the veracity of the claim on the authorisation form. It further deprived the applicants of being able to show that Mr Knaggs was not in his vehicle at times when the probe material contained recordings of Mr Knaggs’ conversations; and that others had been in the vehicle at times when no conversation with them was recorded on the probe material. The judge refused the applications on 15 November 2002 and ruled the evidence to be fair. He indicated that he was satisfied that the probe was necessary and that the officers, although careless and in breach of the Code, were not dishonest.
On 27 November 2002, following legal advice that as a result of the sections 17-18 rulings he could not challenge the prosecution’s evidence by calling his expert evidence, Mr Knaggs pleaded guilty to the charge of conspiracy to supply a controlled drug of Class A. On 2 December 2002, he appeared before the judge. He expressed concern at the circumstances in which he was pleading guilty, which he explained was because he did not feel that he had an opportunity to present his case in light of the judge’s rulings on sections 17-18 RIPA and section 78 PACE. He emphasised that there was strong forensic evidence to show that an intercept had taken place and that the call data records were actually related communications data obtained from an intercept. The judge prevented him from going further, saying:
“I am going to stop you there, because this is a matter, as you know, upon which I have ruled ... It is not open to you to ventilate this matter in open court. And so, if you have been advised to keep counsel about these matters, I advise you to do so. I am not prepared to hear any representations in relation to that matter.”
In December 2003 Mr Knaggs made a formal application to vacate his guilty plea, which he abandoned after a two day hearing. He renewed his application formally on 15 December 2003, at which stage it was refused by the judge. On 27 February 2003, following strong advice from counsel, he decided not to pursue his application to vacate his guilty plea.
On 29 January 2003, Mr Khachik was convicted by a jury of conspiracy to supply a controlled drug of Class A. The information obtained from the probe in Mr Knaggs’ car provided significant evidence against Mr Khachik.
On 5 March 2003, Mr Knaggs was sentenced to 16 years’ imprisonment and Mr Khachik was sentenced to 19 years’ imprisonment.
The applicants applied for leave to appeal against conviction to the Court of Appeal, and Mr Knaggs applied for an extension of time. The single judge refused leave and the applicants renewed their applications before the full court. Leave to appeal was refused on 11 May 2006. The Court of Appeal declined to consider whether section 17 infringed the applicants’ fair trial rights in that it prevented them from leading evidence to show that the police had tampered with the tape by introducing intercept material. They held that the issue did not arise as the applicants had not previously indicated their intention to challenge the reliability and accuracy of the probe material. As to the applicants’ challenges to the trial judge’s ruling on sections 17-18 RIPA and the subsequent ruling under section 78 PACE, the Court of Appeal upheld the decisions of the trial judge.
B. Relevant domestic law and practice
1. Surveillance
a. Directed surveillance
Section 28 RIPA provides for the authorisation of directed surveillance, i.e. covert surveillance involving observing an individual in public and recording his movements. Section 28(2) provides that such authorisation should not be granted unless the officer believes that the authorisation is “necessary” and that the surveillance is proportionate to what is sought to be achieved by carrying it out. Authorisation is “necessary” for the purposes of section 28(2) if it is necessary, inter alia, (a) in the interests of national security; (b) for the purpose of preventing or detecting crime or of preventing disorder; (c) in the interests of the economic well-being of the United Kingdom; or (d) in the interests of public safety.
Under paragraph 4.1 of the Code of Practice adopted pursuant to section 23 of the Criminal Procedure and Investigations Act 1996, the officer in charge of an investigation must ensure that material relevant to the investigation is recorded in a durable or retrievable form.
b. Intrusive surveillance
Under section 32(1) RIPA, senior authorising officers are given the power to grant authorisations for carrying out intrusive surveillance, i.e. surveillance which involves observing an individual in private or which is carried out by means of a surveillance device. Section 32(2) provides that such authorisation should not be granted unless the officer believes that the authorisation is “necessary” and that the surveillance is proportionate to what is sought to be achieved by carrying it out. Authorisation is “necessary” for the purposes of section 32(2) if it is necessary (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) in the interests of the economic well-being of the United Kingdom. Section 32(4) requires that in considering whether the test in section 32(2) has been met, the officer should consider whether the information which it is thought necessary to obtain by intrusive surveillance could reasonably be obtained by other means. Under section 43(4), authorisation of intrusive surveillance can be renewed. Prior to any renewal, there must be a review.
c. Interception of communications
Section 1(1) RIPA makes it an offence intentionally and without lawful authority to intercept any communication in the course of transmission by a public telecommunications system. An intercept will have lawful authority if under section 1(5)(b) it occurs in accordance with a warrant under section 5. Section 5(1) RIPA allows the Secretary of State to issue a warrant to secure the interception of communications described in the warrant. Section 5(2) provides that a warrant shall not be issued unless the Secretary of State believes that the warrant is “necessary” and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. Under section 5(3), a warrant is “necessary” if it is necessary, inter alia, (a) in the interests of national security; or (b) for the purpose of preventing or detecting serious crime. Section 5(4) requires that in considering whether the test in section 5(2) has been met, the Secretary of State should consider whether the information which it is thought necessary to obtain under the warrant could reasonably be obtained by other means.
2. Offences related to disclosure
Section 19 RIPA imposes a duty on specified persons to keep secret, inter alia, the existence and content of the warrant; the details of its issue and any renewal; the steps taken in pursuance of the warrant; and everything in the intercepted material and any related communications data. Those subject to this obligation include anyone holding office under the Crown. Section 19(4) establishes that disclosure in contravention of the section constitutes an offence.
Section 20 RIPA defines “related communications data” in this context as so much of any communications data as is obtained by, or in connection with, the interception and relates to the communication or to the sender or recipient, or intended recipient, of the communication. “Communications data” is defined in section 21(4) RIPA as traffic data comprised in or attached to a communication for the purposes of any telecommunications system by means of which it is being or may be transmitted; any information which includes none of the contents of a communication and is about the use made by a person of a telecommunications service or in connection with the provision to or use by a person of a telecommunications service; or any information not otherwise included that is held or obtained by a person providing a telecommunications service in relation to persons to whom he provides the service.
Section 4 of the Official Secrets Act 1989 provides that:
“(1) A person who is or has been a Crown servant or government contractor is guilty of an offence if without lawful authority he discloses any information, document or other article to which this section applies and which is or has been in his possession by virtue of his position as such.
(2) This section applies to any information, document or other article—
(a) the disclosure of which—
(i) results in the commission of an offence; or
(ii) facilitates an escape from legal custody or the doing of any other act prejudicial to the safekeeping of persons in legal custody; or
(iii) impedes the prevention or detection of offences or the apprehension or prosecution of suspected offenders; or
(b) which is such that its unauthorised disclosure would be likely to have any of those effects.
(3) This section also applies to—
(a) any information obtained by reason of the interception of any communication in obedience to a warrant issued under section 2 of the Interception of Communications Act 1985 or under the authority of an interception warrant under section 5 of the Regulation of Investigatory Powers Act 2000, any information relating to the obtaining of information by reason of any such interception and any document or other article which is or has been used or held for use in, or has been obtained by reason of, any such interception...”
3. Admissibility of evidence
Section 78 of the Police and Criminal Evidence Act 1984 (as amended) provides that:
“(1) 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.
(2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.”
Section 17 RIPA covers the admissibility of evidence relating to or obtained from an interception warrant. Section 17(1) provides that:
“Subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which (in any manner)–
(a) discloses, in circumstances from which its origin in anything falling within subsection (2) may be inferred, any of the contents of an intercepted communication or any related communications data; or
(b) tends (apart from any such disclosure) to suggest that anything falling within subsection (2) has or may have occurred or be going to occur.”
Section 17(2) refers to:
“(a) conduct by a person falling within subsection (3) that was or would be an offence under section 1(1) or (2) of this Act or under section 1 of the Interception of Communications Act 1985;
(b) a breach by the Secretary of State of his duty under section 1(4) of this Act;
(c) the issue of an interception warrant or of a warrant under the Interception of Communications Act 1985;
(d) the making of an application by any person for an interception warrant, or for a warrant under that Act;
(e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant.”
Section 17(3) sets out the persons referred to in section 17(2):
“(a) any person to whom a warrant under this Chapter may be addressed;
(b) any person holding office under the Crown;
(c) any member of the National Criminal Intelligence Service;
(d) any member of the National Crime Squad;
(e) any person employed by or for the purposes of a police force;
(f) any person providing a postal service or employed for the purposes of any business of providing such a service; and
(g) any person providing a public telecommunications service or employed for the purposes of any business of providing such a service.”
Section 18 RIPA sets out exceptions to Section 17 RIPA. The relevant subsections of Section 18 provide that:
“(4) Section 17(1)(a) shall not prohibit the disclosure of any of the contents of a communication if the interception of that communication was lawful by virtue of section 1(5)(c), 3 or 4.
(5) Where any disclosure is proposed to be or has been made on the grounds that it is authorised by subsection (4), section 17(1) shall not prohibit the doing of anything in, or for the purposes of, so much of any legal proceedings as relates to the question whether that disclosure is or was so authorised.
...
(7) Nothing in section 17(1) shall prohibit any such disclosure of any information that continues to be available for disclosure as is confined to—
(a) a disclosure to a person conducting a criminal prosecution for the purpose only of enabling that person to determine what is required of him by his duty to secure the fairness of the prosecution; or
(b) a disclosure to a relevant judge in a case in which that judge has ordered the disclosure to be made to him alone.
(8) A relevant judge shall not order a disclosure under subsection (7)(b) except where he is satisfied that the exceptional circumstances of the case make the disclosure essential in the interests of justice.
(9) Subject to subsection (10), where in any criminal proceedings—
(a) a relevant judge does order a disclosure under subsection (7)(b), and
(b) in consequence of that disclosure he is of the opinion that there are exceptional circumstances requiring him to do so,
he may direct the person conducting the prosecution to make for the purposes of the proceedings any such admission of fact as that judge thinks essential in the interests of justice.
(10) Nothing in any direction under subsection (9) shall authorise or require anything to be done in contravention of section 17(1).”
The Interception of Communications Code of Practice, adopted pursuant to section 71 RIPA, provides guidance as to the application of sections 17 and 18 RIPA. At Chapter 7, the Code provides that:
“7.3 The general rule is that neither the possibility of interception nor intercepted material itself plays any part in legal proceedings. This rule is set out in section 17 of the Act, which excludes evidence, questioning, assertion or disclosure in legal proceedings likely to reveal the existence (or the absence) of a warrant issued under this Act (or the Interception of Communications Act 1985). This rule means that the intercepted material cannot be used either by the prosecution or the defence. This preserves “equality of arms” which is a requirement under Article 6 of the European Convention on Human Rights.
7.4 Section 18 contains a number of tightly-drawn exceptions to this rule. This part of the Code deals only with the exception in subsections (7) to (11).
7.5 Section 18(7)(a) provides that intercepted material obtained by means of a warrant and which continues to be available, may, for a strictly limited purpose, be disclosed to a person conducting a criminal prosecution.
7.6 This may only be done for the purpose of enabling the prosecutor to determine what is required of him by his duty to secure the fairness of the prosecution. The prosecutor may not use intercepted material to which he is given access under section 18(7)(a) to mount a cross-examination, or to do anything other than ensure the fairness of the proceedings.
7.7 The exception does not mean that intercepted material should be retained against a remote possibility that it might be relevant to future proceedings. The normal expectation is, still, for the intercepted material to be destroyed in accordance with the general safeguards provided by section 15. The exceptions only come into play if such material has, in fact, been retained for an authorised purpose. Because the authorised purpose given in section 5(3)(b) (“for the purpose of preventing or detecting serious crime”) does not extend to gathering evidence for the purpose of a prosecution, material intercepted for this purpose may not have survived to the prosecution stage, as it will have been destroyed in accordance with the section 15(3) safeguards. There is, in these circumstances, no need to consider disclosure to a prosecutor if, in fact, no intercepted material remains in existence.
7.8 Be that as it may, section 18(7)(a) recognises the duty on prosecutors, acknowledged by common law, to review all available material to make sure that the prosecution is not proceeding unfairly. ‘Available material’ will only ever include intercepted material at this stage if the conscious decision has been made to retain it for an authorised purpose.
7.9 If intercepted material does continue to be available at the prosecution stage, once this information has come to the attention of the holder of this material the prosecutor should be informed that a warrant has been issued under section 5 and that material of possible relevance to the case has been intercepted.
7.10 Having had access to the material, the prosecutor may conclude that the material affects the fairness of the proceedings. In these circumstances, he will decide how the prosecution, if it proceeds, should be presented.
7.11 Section 18(7)(b) recognises that there may be cases where the prosecutor, having seen intercepted material under subsection (7)(a), will need to consult the trial Judge. Accordingly, it provides for the Judge to be given access to intercepted material, where there are exceptional circumstances making that disclosure essential in the interests of justice.
7.12 This access will be achieved by the prosecutor inviting the judge to make an order for disclosure to him alone, under this subsection. This is an exceptional procedure; normally, the prosecutor’s functions under subsection (7)(a) will not fall to be reviewed by the judge. To comply with section 17(l), any consideration given to, or exercise of, this power must be carried out without notice to the defence. The purpose of this power is to ensure that the trial is conducted fairly.
7.13 The judge may, having considered the intercepted material disclosed to him, direct the prosecution to make an admission of fact. The admission will be abstracted from the interception; but, in accordance with the requirements of section 17(l), it must not reveal the fact of interception. This is likely to be a very unusual step. The Act only allows it where the judge considers it essential in the interests of justice.
7.14 Nothing in these provisions allows intercepted material, or the fact of interception, to be disclosed to the defence.”
In Attorney General’s Reference No. 5 of 2002 [2004] UKHL 40, the House of Lords was asked for its interpretation of the prohibition in section 17(1) RIPA. The reference arose from legal proceedings in a criminal case which took place before the entry into force of RIPA when interception was regulated by the Interception of Communications Act (“ICA”) 1985. Although the ICA had introduced regulation for interception of public telecommunications systems, interception of private telecommunications systems remained unregulated under the ICA regime and no warrant was required for such interception. The question asked centred on whether, and if so to what extent, a criminal court could investigate whether intercept material relied on by the Crown had been obtained by intercepting a private, as opposed to a public, telecommunications system. The prosecution sought to admit evidence arguing that interception had taken place on a private telecommunications system. The defence case was that the interception had taken place on a public telecommunications system and so the evidence was inadmissible. At the trial, the defence submitted that section 17 RIPA prevented them from asserting that the interception had taken place on a public system, but did not prevent the prosecution from adducing evidence that it had taken place on a private system. The defence asked the judge under section 78 PACE to exclude prosecution evidence that the interception had taken place on a private system, on the grounds that it would not be fair to admit that evidence and shut out the defence case to challenge that the interception had taken place on a private system. The judge acceded and as a result, the prosecution were obliged to offer no evidence and the defendants were acquitted.
Lord Bingham of Cornhill delivered the leading judgment in Attorney General’s Reference No. 5 of 2002. He noted that under RIPA, interception of a private telecommunications system is only criminal and thus subject to the section 17(1) prohibition on disclosure where it is not lawful under sections 3 or 4 of the Act (which set out conditions under which interception will be lawful without a warrant). Lord Bingham concluded that:
“It would be absurd to conclude that there could be no inquiry to establish whether or not the interceptor’s conduct was excluded from criminal liability... I am satisfied that a court may properly inquire whether the interception was of a public or private system and, if the latter, whether the interception was lawful. If the court considers that it was public, that is the end of the inquiry”.
Lord Nicholls of Birkenhead, noting that the principal objective of section 17 appeared to be to preserve the secrecy of the warrant system, considered that the warrant system would not be damaged where, for example, a challenge by the defendant to the assertion that the interception had been lawful under section 3(1) (consent of both parties to the interception) suggested that an offence had been committed under section 1. He considered that section 18(5) permitted a challenge to the lawfulness of the interception by the defence.
The case of R v Austin and others [2008] EWCA Crim 1183 involved similar circumstances to those arising in the applicants’ case. The defendants in that case were convicted of conspiracy to supply a Class A drug. The prosecution relied on surveillance evidence demonstrating meetings and telephone calls between the defendants; evidence from recording devices in defendants’ cars; and evidence of money transfers. In addition, reliance was placed on telephone intercept material. This material was in the form of recordings of mobile phone conversations said by the Crown to have been made by intelligence agencies in Colombia; and recordings on cassette of conversations between a defendant in England and a defendant on a Colombian landline, again said to have been made in Colombia. Disclosure of intercept evidence gathered outside the United Kingdom is not prohibited under section 17 RIPA.
The defendants challenged the admissibility of the intercept evidence on the ground that there was no evidence that it had been obtained by Colombian rather than British authorities. They further argued that even if it was obtained by Colombian authorities, there was evidence that it had been altered and fabricated and so was unreliable and should not be admitted. The judge ruled that the intercepts were made in Colombia and that their reliability was a matter for the jury. He gave a later ruling that, in light of the strictures of section 17 RIPA, the defence at trial could only suggest the negative, i.e. that the recordings had not been made in Colombia, and not the positive, i.e. that the recordings had been made in the United Kingdom and therefore infringed RIPA.
The defendants appealed, arguing that the interpretation of section 17 by the judge did not accord with the House of Lords judgment in Attorney General’s Reference No 5 of 2002. The Court of Appeal considered that it was properly arguable that the judge’s approach in the defendants’ case had been too restrictive as a matter of law and that some investigation of whether the intercepts were made in the United Kingdom may have been permissible. On 16 May 2008, leave to appeal was granted and the case is currently pending before the Court of Appeal.
COMPLAINTS
The applicants complain under Article 8 that the probe was not “in accordance with law” and accordingly constituted an unjustified interference with their right to respect for private life.
Under Article 6 § 1 the applicants complain that the admission of evidence relating to the probe and the telephone call data, and the restrictions on their ability to challenge its admission, breached their right to a fair trial. They argue that the failure of the police to record Mr Knaggs’ movements during the directed surveillance exercise also unfairly limited their ability to challenge the probe evidence. Finally, they complain that the blanket ban on intercept evidence and any associated question or evidence breaches their rights under Article 6 § 1 because as a result of the ban, there is no way to challenge a suspected unlawful disclosure.
Under Article 13, the applicants complain that they were denied an effective remedy in respect of the above violations.
QUESTIONS TO THE PARTIES
In particular, did the applicants invoke before the national authorities, at least in substance, the rights on which they now wish to rely before the Court?
In particular, what was the effect on the fairness of the trial, if any, of:
(a) the ruling in the hearing on sections 17 and 18 RIPA;
(b) the decision to admit the probe evidence and call data records as evidence?
(c) the failure of the police to record Mr Knaggs’ movements in the directed surveillance exercise; and
(d) the blanket ban on admissibility of intercept evidence?