by Roger THOMSON
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:
Nebojša Vučinić, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 16 November 2005,
Having regard to the formal declarations accepting a friendly settlement of the case,
Having deliberated, decides as follows:
The applicant, Mr Roger Thomson, is a British national who was born in 1958 and lives in Port Erin, Isle of Man. He was represented before the Court by Mr C.J. Arrowsmith, a lawyer practising in Douglas. The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton, Foreign and Commonwealth Office.
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
In his Report dated 5 February 2004, the Commissioner, His Honour Deemster J.M. Kerruish QC, stated as follows:
“1. I have the honour to report that during the year ended 31st 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 31st December 2003. 9 warrants which remained in force on 31st December 2002 had ceased also to be in force prior to 31st 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 31st December 2003.”
The applicant underlined that the Tribunal found that two warrants issued in respect of Mr Graley’s communications were not in accordance with the law. He considered 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 complained under Article 8 of the Convention about shortcomings in the safeguards available under domestic law.
First, since the warrants for the interception of 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 appeared 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. The applicant contended that these findings indicated that there was 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 complained under Article 13 that there was 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 was expressly excluded.
On 23 July 2009 the Court received the following declaration from the Government:
“I, Derek Walton, Agent for the Government of the United Kingdom, declare that the Government of the United Kingdom offer to pay EUR 12,500 (twelve thousand five hundred euros) to Mr Roger Thomson with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.
This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into pounds sterling at the rate applicable on the date of payment, and will be fully inclusive of all taxes and in full and final settlement of all the applicant’s claims before the Court. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
The payment will constitute the final resolution of the case.”
On 13 August 2009 the Court received a letter from the applicant’s solicitor and a signed declaration confirming the friendly settlement.
The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Fatoş Aracı Lech
Deputy Registrar President