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Cite as: [2011] ECHR 1328
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application nos.
46559/06 and 22921/06
by Russell KNAGGS and Ramzy KHACHIK
against
the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 30 August 2011 as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Ljiljana Mijović,
Sverre Erik
Jebens,
Zdravka Kalaydjieva,
Nebojša
Vučinić,
Vincent A. De Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having regard to the above applications lodged on 7 November 2006 and and 15 May 2006,
Having regard to the observations submitted by the respondent Government, the observations in reply submitted by the applicants and the third party observations of the Equality and Human Rights Commission,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr Russell Knaggs (“the first applicant”) and Mr Ramzy Khachik (“the second applicant”), are British nationals who were born in 1973 and 1957 respectively and are currently being detained in HMP Lowdham Grange, Nottingham. They were represented before the Court by Mr P. Hughman, a solicitor practising in London. The United Kingdom Government (“the Government”) were represented by their Agent, Ms H. Upton, of the Foreign and Commonwealth Office.
A. The circumstances of the case
1. The applications for surveillance
2. On 8 November 2001 an officer in the National Crime Squad applied to conduct directed surveillance (i.e. observation of an individual in public) of the first applicant, Mr Knaggs, and his criminal associates. The application was part of an ongoing investigation into the criminal activities of the first applicant. The application was authorised and directed surveillance commenced, with monthly reviews.
3. In a review of the directed surveillance of 17 January 2002, it was noted that surveillance was progressing highly successfully and beneficially in expanding the intelligence base and developing knowledge of Mr Knaggs’ operation.
4. On 8 February 2002 an officer in
the National Crime Squad ordered a feasibility study into the
possibility of placing a probe (i.e. a listening device) in a
Mitsubishi Shogun vehicle which Mr Knaggs allegedly owned. The
purported purpose of the probe was to record conversations of
face-to-face meetings in the vehicle.
5. On 11 February 2002 a National Crime Squad officer applied for authorisation for intrusive surveillance (i.e. observation of an individual in private or by means of a surveillance device) under the Police Act 1997 and the Regulation of Investigatory Powers Act 2000 (“RIPA”) (see paragraphs 114-115 below), in order to place the probe in the vehicle. The application included details of what was being sought and how the proposed action was proportionate to what it sought to achieve. It stated:
“Observations have corroborated Knaggs carrying criminal associates as passengers, and it is believed that he discusses his drugs business with them whilst travelling in the Shogun.”
6. The application was authorised by the Director General on 15 February 2002. The probe was installed on or around 25 February 2002.
7. 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 document noted that around 150 mobile telephone calls had been made or received while Mr Knaggs was in the vehicle and that 17 meetings had taken place.
2. The applicants’ arrests and pre-trial proceedings
8. 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. Mr Knaggs did not lodge any defence statement setting out the nature and scope of his defence.
9. 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 sought the advice of a technical expert.
10. In a preliminary report dated 30 September 2002 instructed by Mr Knaggs, Mr D. Campbell, a technical and telecommunications consultant, commented on the probe material. He explained that he had had time to examine only eight of the approximately 280 audio CDs produced in the case. He noted at the outset that he was strongly of the view that the placing of the probe in the vehicle was done knowingly to defeat the prohibition contained in the Regulation of Investigatory Powers Act (“RIPA” – see paragraphs 121-123 below) on the use of telecommunications information in evidence. He further noted that the recordings appeared to contain extraneous signals which suggested that an interception of communications had taken place, although he accepted that an innocuous explanation for the extraneous signals might exist. He continued:
“If there is to be a dispute, the Court will in my view have no alternative but to enquire into details of the technical systems use[d] to monitor conversations in the vehicle to relay the information to the listening office, and the methods of recordings and operations in use at the listening centre.”
11. The report explained that, according to the police, the probe had relayed the sounds it captured immediately to a secure listening office, where teams of two officers had supervised the creation of two simultaneous copy Digital Audio Tapes (“DAT tapes”) recording the signal from the probe. The decision to supply the defence with CD copies of the DAT tapes posed problems for forensic analysis, as the authentic time coding embedded in the original recordings was lost. Further, the use of a recording method which created “markers” to show when one audio recording stopped and another started had sometimes been used, which also prevented checking the audio material against transcripts and billing records.
12. Mr Campbell noted three major extraneous signals in the eight CDs he had examined. One was where the audio signal to the probe had been lost but it was possible to hear a sound which resembled the dialling of a phone. The report continued:
“The enigma thus created is how the recording machinery ... is able to capture signals from the phone other than via the listening device. The best-fitting explanation on the data so far examined is that during the quiet periods (when the connection to the listening device had been lost), the DAT machine records (at a lower level) signals from a separate interception system which is inadvertently feeding into the recording system for the Shogun.”
13. Another extraneous signal was observed where the signal had been lost but words apparently spoken by Mr Knaggs were picked up. Mr Campbell suggested two possible explanations: first, that the police officers had dishonestly tampered with the evidence of the sound recordings but left traces of their conduct; second, that the conversations were not only being monitored by the probe but were at the same time being intercepted under a RIPA warrant, resulting in “spillage of signals” due to proximate equipment. He considered the second possibility to have “much more profound implications”.
14. Mr Campbell’s report then went on to consider a possible explanation for the events which had been observed. He advanced the view that given the nature of the investigation and the views of the police regarding Mr Knaggs, an interception of his communications would have been warranted. He continued:
“I speculate that this was done, and that officers heard a pattern of calls develop not unlike those in evidence. From this monitoring, they would realise that calls of the type they regarded as suspicious were often made by Knaggs when sitting in his vehicles ...
From the police perspective in this situation, the core problem was that (as alleged in the case) Knaggs was a shrewd operator who did not put himself in possession of drugs or incriminating materials. Yet they knew that calls took place of a type they regarded as highly incriminating. Their problem was that in order to prosecute Knaggs, they would need evidence to take into court, and the RIPA interceptions could not be used ...”
15. In the section of his report named “Context and conclusion”, Mr Campbell noted:
“If my observations and reasoning in due course prove correct, then Russell Knaggs is correct in claiming that the sole purpose of planting the listening device was to enable the police to evade the restrictions placed in RIPA and get interception evidence into Court. That goes to the heart of the issue of admissibility.
The possible inadvertent co-presence of evidence of RIPA interception material in the case is a remarkable echo of the first case in this field, Malone [v. the United Kingdom, 2 August 1984, Series A no. 82] ... I wonder if history is now repeating itself in digital form.”
16. In his second report dated 3 October 2002, Mr Campbell again set out his hypothesis that at the same time as signals from the probe were being recorded, signals direct from Mr Knaggs’ mobile phone were being intercepted by the police under an interception warrant. He continued:
“If this is correct it follows that the covert recording device was not necessary for the police to gain intelligence on his activities, as better quality intelligence was being obtained from the intercept or intercepts on Knaggs’ phone(s) ...”
17. The report considered the application for authorisation to carry out intrusive surveillance, which it considered was:
“... misleading at best, insofar as it did not state that the true purpose of the application was to obtain evidence known to be available from intercepted phone calls, but inadmissible because of RIPA ...”
18. It also noted the first applicant’s instructions that, at the time the application for intrusive surveillance was made, he had never even used the Shogun and that the statement that he used it to meet with criminal associates (see paragraph 5 above) was false.
19. Reference was made to the presence of voices which were not recorded on the written transcripts of the DAT tapes but which could be heard on the tapes by the introduction of amplification. These incidents occurred during periods in which the transcripts indicated that the signal to the probe had been lost. He considered that the voice “crosstalk” appeared to be coming from another system which was directly intercepting all the communications from Mr Knaggs’ phone.
20. The applicants subsequently sought confirmation from the prosecution of whether or not there had been an intercept of Mr Knaggs’ telephone communications and, if so, the dates on which the intercept had been in place. Defence counsel explained that the reason for the request was that, if there was an intercept, they would have grounds to challenge the necessity and lawfulness of the probe and the motivations of the police officers requesting the probe. The prosecution were unable to provide the confirmation sought by the applicants because section 17 of RIPA 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. Section 18(7)(b) clarified that nothing in section 17 prohibited disclosure of information to a relevant judge in a case where the judge has ordered disclosure to be made to him alone.
3. The sections 17 and 18 ruling
21. In October 2002, the applicants applied for a ruling from the Crown Court as to the operation of sections 17 and 18 RIPA in respect of their request for confirmation as to the existence and duration of any intercept of communications. Submissions were made to the court by counsel for Mr Knaggs and by counsel for Mr Khachik.
22. The transcript of the proceedings before the court on 23 October 2002 records, inter alia, the following:
“Mr Ryder [counsel for Mr Knaggs]: ... whilst, perhaps regrettably, the Act [RIPA] does not provide for judicial involvement as of necessity, it does make involvement possible at your Honour’s discretion, subject to your Honour being satisfied there are exceptional circumstances.
...
The exceptional circumstances ... would be that there is material in the hands of the Defence which does suggest, and strongly suggests, that intelligence of some sort existed – and I will put it in neutral terms, for obvious reasons – which, if it existed, is potentially highly relevant to matters both on the voir dire and on the trial of the sort that I have set out in the course of my skeleton argument.”
23. The transcript also notes the following discussion:
“Mr Ryder: ... If your Honour is empowered actually to order the disclosure of material to you, certainly implicit in that is power to make enquiries to determine whether or not that is necessary.
Judge Lawler: But you originally, in your skeleton, were not seeking anything to do with the material.
Mr Ryder: No.
Judge Lawler: Just the fact of whether or not there was an intercept.
Mr Ryder: That is right. That is really what I am interested in.”
24. Subsequently, the following exchange took place:
“Judge Lawler: ... as I understand it, you are inviting me to effectively convene the Crown on what would be a [public interest immunity] hearing.
Mr Ryder: Yes.
Judge Lawler: And ask them to disclose anything that there is – if there is anything – about an intercept.
Mr Ryder: To your Honour.
...
... If there is something and it is revealed to your Honour, we are then in this position: we will conduct the voir dire along the line that I have indicated in previous skeleton arguments and in the current one. We will not know what your Honour knows, but your Honour will have in mind what your Honour has learned, in determining whether or not the answers given by a given officer, for example, are honest or not, whether or not there was intelligence which informed what they were doing which rendered the necessity for the intrusive surveillance less urgent than they said, things of that sort ...”
25. Counsel for Mr Khachik asked the court, if the prosecution were asked to confirm whether there was an intercept, to bear in mind whether the authorities had complied with the relevant safeguards in the legislation.
26. Later, counsel for the prosecution made the following statement:
“The first thing I should say is that, in carrying out my duties, I have had regard to everything I know, the points the Defence wish to make and to the Defence cases as they have been set out in interview and sometimes in argument. If I may, for example, use the matter put forward by Mr Smith, on behalf of Mr Khachik, I am well aware of the nature of the Prosecution case and the importance of seeking out any material that may further a suggestion that Mr Khachik was not in fact the person at the other end of the telephone, or that he was having an innocent conversation. I have obviously borne that in mind ... throughout when considering any matter of disclosure.
...
... [I]f there were no intercept in this case, it seems very difficult to see how an admission could be drafted that did not reveal that fact that could be relevant to these proceedings.”
27. No mention was made in the oral submissions of counsel for either applicant, or by counsel for any of the other defendants in the case, of any concerns regarding, or potential challenge to, the integrity, authenticity or reliability of the probe material.
28. Handing down his ruling later that day, with reasons to follow, Judge Lawler said:
“I am obviously conscious of my duty to ensure that these proceedings are conducted fairly. I have noted on more than one occasion the concerns expressed by the defence in relation to disclosure and I have taken time to consider the submissions this morning against the background of the relevant statutes, authorities and skeletons which I considered before today.
I am happy to confess that I find this a very difficult area. In the end result I have decided not to exercise my power under section 18(7)(b).”
29. On 25 October 2002, Judge Lawler gave full reasons for his decision. He noted at the outset:
“The evidence upon which the Crown relies comes from several different sources. There is evidence from observations by Police Officers, and overheard conversations. There is evidence from a co-defendant, [W.], who has pleaded guilty and awaits sentence. He has implicated a number of Defendants in a material way. There is evidence of the recovery of drugs and associated drugs apparatus as well as money. In addition, the Crown have material upon which they can draw from the interviews of some of the Defendants ...
A fairly large portion of the evidence, however, relied upon by the Crown, is the result of a probe which was attached to Mr Knaggs’ vehicle, and from which many hours of meetings and telephone conversations with alleged co-conspirators and others were taped and later transcribed. That evidence is potentially very incriminating, and the subject of a hotly contested voir dire as to its admissibility.”
30. Summarising the defence objections to the evidence, the judge noted:
“The Defence wish, among other things, to test the lawfulness of the applications made, and the authorities given. There may also be an issue of bad faith on the part of the National Crime Squad ...”
“In his second skeleton of the 14th October ... Mr Ryder suggested that material existed which suggested that an interception had taken place. Understandably, we do not know what that material is. We do not know whether it emanates from his expert, or his instructions from his lay client, or a mixture of both. If this is the case, he says the fact of – though not the content of – such intercepts is directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance. He went on to say that assertions and implications in the application for authorisation to conduct intrusive surveillance, that it was not feasible to gather evidence by conventional methods of surveillance, are untenable if such conventional surveillance was informed by information as to Mr Knaggs’ movements and activities gathered by way of telephone interception. It is this matter which has loomed large, and given rise to some difficult questions concerning the construction, interpretation and operation of Sections 17 and 18 of the 2000 Act.”
32. Considering the effect of section 17 RIPA, 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 effect of the Rule ... is that interceptive material cannot be used either by the Prosecution or the Defence, thus preserving the equality of arms principle enshrined in Article 6 of the ... Convention ...”
“[Mr Ryder] said that the exceptional circumstances was that there is material in the hands of the defence which, as I have said, the Court does not know the nature of, which strongly suggests that, to put it bluntly, though he was more circumspect, an intercept had been in place, and the relevance that had to the voir dire, as I have indicated already, and as he set out in his first skeleton, was obvious.”
34. As to the conduct of the prosecution in ensuring fairness in the proceedings, the judge noted:
“... Mr Garside [counsel for the prosecution] indicated that he had had regard to all he was aware of from the Defence point of view, which had arisen in interview, or in argument. In particular he highlighted and answered Mr Smith’s point [on behalf of Mr Khachik] about the one-sided conversations ... He indicated that were he in possession of information, from whatever source, to exclude, exculpate or explain Mr Khachik’s part in one-sided conversations he would, consistent with his duty, have made an admission, and not have advanced a case to the Jury which he had any reason to think was false.”
35. Judge Lawler reviewed the provisions of RIPA and the power of the judge under section 18 to review any evidence. He found:
“... it seems to me that the whole tenor of these provisions is directed to the material arising out of an interception. It has been made clear in this case that the Defence have absolutely no interest in any such material, even if there is any. Their interest is as to whether there was or was not an intercept.”
36. As to the correct interpretation of section 18(7), he said:
“I am of the view that any information [in section 18(7)] relates to the material arising out of the intercept. I suppose it may reasonably be argued that any information surfacing as a result of something said or done in turn arising out of the intercept material, which was also in [the] possession of the authorities, might be included, but it goes no further than that. The important point, however, is that none of this has any relevance because, as I have said, it is not what the Defence are after to help their testing of the evidence or arguments on the voir dire.
I am satisfied, therefore, that any information in sub-section 7 cannot be widened and interpreted to mean whether, for example, there was or was not an intercept, or any application for one. It cannot do so because release of that information is strictly prohibited.”
37. Summarising counsel for Mr Knaggs’ suggested approach (see paragraph 24 above), the judge continued:
“I find a number of difficulties with these points. First, it cannot be gainsaid but that as Mr Ryder has conceded on more than one occasion the Defence are not remotely interested in any material emanating from the intercept, but with whether there was one. That is the whole thrust of his argument.”
“However, even if I am wrong about the various matters I have just rehearsed, I am of the opinion that whilst the point has some importance on the voir dire, it is not so important as to amount to exceptional circumstances whereby disclosure is essential and required in the interests of justice. It is but one aspect of the voir dire. In addition, there is nothing particularly exceptional about this situation. It is likely to occur quite frequently where the authorities believe that they are one the path of serious crime and where authority has been granted for intrusive surveillance, but there may well be an intercept lurking in the background.”
4. The voir dire
a. The voir dire proceedings
39. 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 paragraph 120 below). Judge Lawler summarised the thrust of the defence submissions as follows:
“... They say that the dishonest intention of the National Crime Squad from the start was to get inside Knaggs’ vehicle and record what he said on his mobile phone. They well knew that he used it extensively ... The reality was that their sole purpose was to hear those conversations. The Police knew that the rules forbade intrusive surveillance of this type (if that was the object). Equally, they knew that any material arising out of an interception by virtue of a warrant under Sec.5 [RIPA] (the only other way of hearing calls) could not be used in evidence.
In order to get round that prohibition, and to enable the evidence to be used, they quite deliberately and deceitfully, and in bad faith, contrived to construct an application in such a way as to pull the wool over the eyes of their senior officers ... so as to gain lawful authorisation and, for that matter, renewal of that authorisation.
They did this – say the Defence – by a mixture of false, misleading and disingenuous statements and exaggeration of the position both on the original application and the review document ...”
40. According to the defence, the whole process illustrated bad faith and thus the initial authorisation for the probe as well as the continuing authorisation following the review were unlawfully obtained. They pointed to a secret instruction given to police officers not to record their observations of the movements of Mr Knaggs. They contended that the integrity of the whole investigative process had been compromised by police misconduct and that no fair trial could take place if the police were found to have behaved in the way they alleged. Accordingly, they argued the indictment should be stayed. Alternatively, the probe evidence should be excluded because of the gross bad faith and dishonesty of the police in obtaining it and because its admission would have, in the circumstances, such an adverse effect of the fairness of the proceedings that the court ought not to admit it.
41. The court began hearing evidence on the voir dire on 25 October 2002. Further disclosure of material which the defence said went generally to the accuracy of the material contained in the applications for authorisation of the probe and to the credibility of the police officers involved in the probe application was ordered by Judge Lawler on 28 October 2002.
42. By letter dated 29 October 2002 Mr Campbell informed Mr Knaggs’ counsel that having conducted further analysis, he believed that the itemised telephone billing records produced by the prosecution were inadmissible or unreliable and unfair. A comparison of the police communications data and commercial communications data showed that 75 per cent of the records were different in at least one data element. In his view this showed that the two sets of records originated from different sources.
43. Evidence was heard on the voir dire from police officers involved in the surveillance operation and the Director General of the National Crime Squad, who had authorised the use of intrusive surveillance. On cross-examination by counsel for Mr Knaggs, the police officer who made the application denied lying when he asserted that meetings with criminal associates were taking place in the vehicle. He agreed that the police were aware that Mr Knaggs used his mobile phone regularly, but not necessarily that he used it extensively before the probe was fitted. He rejected the suggestion that directed surveillance could have been highly successful in respect of Mr Knaggs, emphasising that directed surveillance did not provide the police with evidence against Mr Knaggs sufficient to secure a conviction. He was unable to explain why a decision was taken not to record Mr Knaggs’ movements.
44. The senior investigating officer explained that he had been concerned about the number of one-sided conversations recorded during the deployment of the probe. However, recording one-sided calls had not been the sole purpose of the probe and in any event, the police were obtaining evidence and could therefore legitimately continue to use the probe notwithstanding the fact that the majority of the product was one-sided conversations.
45. The Director General emphasised that his authorisation of intrusive surveillance was not a rubber-stamping exercise. He dealt with the matter personally and exercised independent judgment. While he could not check every detail of the process and had to take certain matters on trust, he was assisted by members of staff who carried out checks and provided legal advice when required. He required a presentation by the requesting officer in an application of a particularly sensitive nature and also conducted random checks. He explained that the recording of one-sided calls occurred in many cases. If it were the only material being obtained from intrusive surveillance there would be cause for concern, but that was not the case in respect of the probe in Mr Knaggs’ car. He was satisfied that the relevant criteria had been met when he authorised the initial probe and the renewal. He had no cause to question the good faith of the officers making the application.
46. It was put to the officer who prepared the review document that, contrary to what he had indicated (see paragraph 7 above), 533 telephone calls and either 24 or 30 meetings had taken place in the vehicle between 25 February and 12 March. The officer explained that his figures were based on transcripts available at the time. Following an adjournment to allow him to investigate, he said that on his calculations there were 281 calls and about 30 meetings between the relevant dates. The figures in the review had been based on the period from 2 to 12 March, for an operational reason that he was unable to disclose. He denied that he had made up the explanation to cover up the inaccurate figures.
47. Judge Lawler summarised counsel for Mr Knaggs’ closing submissions to the court as follows:
“Mr Ryder QC was characteristically trenchant in his criticism of the evidence of the National Crime Squad. He conceded that there can be no question of error or mistake. He nailed his colours firmly to the mast, of dishonesty and deceit. The National Crime Squad well understood the legal requirements and had cynically manipulated the applications to deceive the Director General, and so achieve their sole objective, which was to record what Knaggs said on his mobile, and thus get round the problems they knew a warrant under Sec.5 would create for them. He submitted that, even if the Prosecution evidence was accepted, the Crown had not come close to establishing that the probe was necessary and the exercise essential.”
48. Counsel for Mr Khachik’s submissions were summarised as follows:
“Mr Smith submitted that the key question was whether the application [for the probe] was necessary ... The Crown and the Court had been very seriously misled by the National Crime Squad, who had abused the system. The only thing which changed in the lead-up to 12th of February was Knaggs’ acquisition of a new car.”
b. The judge’s ruling
49. On 15 November 2002 Judge Lawler refused the defence applications. He noted:
“In coming to my findings on the facts, I have also taken into account the following matters:
1. it is for the Crown to satisfy me, so that I am sure, that the criteria under [RIPA] were met at both the initial stage and for review purposes.
2. since allegations of bad faith are raised by the Defence, the Crown must, on all the material, completely rule out any question of dishonesty or bad faith.
3. all the evidence called on the voir dire and, in particular, the assessment of the honesty and reliability of those officers whose credibility is so seriously questioned.
4. the discrepancies and inconsistencies in the evidence, where they occur.
5. the skeletons and strong arguments forwarded by the Defence.
6. the oft repeated concerns of the Defence at the lack of disclosure as a result of the Public Interest Immunity Hearings and the constraints, out of necessity, which that has imposed on their questioning and probing of the witnesses, as well as their concerns often expressed of the lack of candour in relation to disclosure.
...
7. the great care I must exercise in my mind about that which I know and which the Defence do not in connection with the decision-making process.
...
8. applications of this kind are a substantial interference with privacy, and should only succeed where there are – and I am summarising the effect of the legislation – compelling reasons for doing so.
...”
50. He considered that the only way to deal with the defence handicap on the sensitive material which had not been disclosed to the defence was to say that the defence were “entitled to have it both ways”, namely that they could expect the court to act on anything it knew that helped them but not to act on anything that helped the prosecution.
51. He addressed first the question whether the intrusive surveillance of Mr Knaggs was necessary and, in particular, whether the information sought could reasonably be obtained by other means. He referred to the police’s belief that Mr Knaggs was familiar with police surveillance techniques, citing several examples which appeared to provide some support for this belief. He also noted that the police believed that they were dealing with a major criminal, and had to plan and proceed accordingly. He therefore accepted what was said in the probe application form in this regard, which was borne out by the comments made by Mr Knaggs in the recordings. He considered this to be the:
“first and important point on the road to necessity, as well as proportionality.”
52. Next, Judge Lawler considered the defence arguments concerning the effectiveness of directed surveillance. He noted:
“... Directed surveillance was feasible and useful when employed to observe other members of the conspiracy, but, for reasons I have already given, difficult and often impossible in the case of Knaggs. Its effectiveness was limited with regard to him, for example, because he did not handle drugs. The prospect of catching him with drugs was effectively nil.”
“The Police needed to collect hard evidence to convict him. As they candidly said in their application, it was necessary for them to collect such evidence, as opposed to information. The two things are quite different.”
54. He further noted that directed and intrusive surveillance were tools of investigation, both of which were more effective when carried out in tandem with the other. He observed:
“... Directed surveillance may have been working within its own terms, but it is difficult to see how the substantial drugs seizures could have been made if the Police had not known what was going to happen. To know what was going to happen, they had to listen to conversations in the car. In this connection, one should bear in mind that, not only were they under an obligation to detect serious crime, but also to prevent it. They needed a means of predicting or tracing the travels of conspirators, and hence the shipment of drugs.”
55. As to the issues raised by the defence concerning the absence of observation material, Judge Lawler considered that there was no doubt that the attitude and behaviour of the senior investigating officer in instructing that no record be kept was open to severe censure and was a clear breach of the applicable code of practice (see paragraph 113 below). However, he was satisfied that there was no conspiracy or dishonesty among police officers on the question.
56. Regarding the intention of the police when making the application for the probe, Judge Lawler accepted that the police were aware that Mr Knaggs used his mobile phone a great deal. However, he considered that there was a reasonable expectation by the police that Mr Knaggs would hold meetings with fellow criminals in his car and there was a legitimate wish to obtain evidence of what was said during those meetings. In that sense, he considered the overhearing of one-sided calls to be incidental or subordinate to the purpose for which the authorisation was sought. The fact that in the event very useful telephone evidence was obtained did not affect the validity of the decision to apply for authorisation, to grant it, or to permit it to continue. The key factor was the purpose of the probe and not the result. In this regard he emphasised that the probe could not be “de-authorised” retrospectively simply because something unexpected happened. He was therefore satisfied that the police intention was to monitor meetings and not to use the probe to circumvent the prohibition on using interception material in evidence.
57. Similarly, while certain aspects of the review documents were completed carelessly, the judge was satisfied that the police officers were telling the truth on the voir dire and that there was no dishonesty. He continued:
“...This was an ongoing operation, and a very serious one at that. The fact is that, whilst there were a large number of calls, the meetings had continued, and, thus, justification for the authority still stood.”
58. Applying the RIPA criteria, the judge had no doubt that the criteria relevant to the authorisation of intrusive surveillance, set out in section 32 RIPA (see paragraph 114 below), were fully satisfied. Accordingly, the authorisations were perfectly valid.
59. In setting out his conclusions on the abuse of process and section 78 PACE applications, the judge summarised the matters which in his view affected the question of the fairness of admitting the evidence:
“1. There is a clear, and substantially unchallenged, record of what was said in Knaggs’ car. Very often tapes can be difficult to understand, and unfairness can result from conflicting interpretations of material which is unclear. That is singularly not the case here.
2. There is no element of entrapment. What Knaggs said is said quite voluntarily and quite uninfluenced by any Police Officer.
3. He made no comment to the Police when these matters were put to him, which, of course, he was perfectly entitled to do. However, he and the other Defendants who may be tied into the other ends of telephone conversations by mobile phone evidence and observations are particularly able to say what was being discussed.
4. Each Defendant alleged to be involved in a conversation can, if he wishes, deny that he was on the other end of that conversation, or assert what was being said was being taken out of context, or otherwise put innocent explanation, or some explanation, upon them.
5. All the tapes – not just those relied upon by the Prosecution – have been disclosed. Any Defendant can, therefore, put before the jury any passages upon which he relies, in order, for example, to show what the Prosecution allege has been taken out of context, or otherwise explain them.
6. Whilst the Prosecution case – which is, of course, charged as a conspiracy – places a good deal of reliance upon this material, it is not the sole evidence in the case. It should be noted, however, that the taped evidence is strong evidence in its own right ...
7. The admitted breaches of the codes of practice and admitted conduct of the Police Officers which had been the subject of censure – apart from the issue of bad faith – should be put in its proper context, and the question asked: taking both matters at their highest, what effect did they have, or would they have, on the fairness of a trial?”
60. He concluded:
“None of the criticisms made, it seems to me, go anywhere near an attack on the reliability or probative value or cogency of the evidence in question. Nor is there any suggestion of the manipulation of the tape recording exercise, as sometimes does arise.”
5. Further expert evidence
61. In a note for counsel for Mr Knaggs dated 16 November 2002 Mr Campbell explained the results of further analysis of the billing information, highlighting inconsistencies in the information obtained from the prosecution compared to information obtained from the service provider. One inconsistency raised was the presence in the prosecution list of calls of “zero-length” calls, where no connection was made. Evidence from the provider indicated that such calls were not included in the billing records they issued and their presence in the prosecution data therefore raised questions as to the source.
62. By letter to counsel dated 24 November 2002 Mr Campbell drew attention to new evidence received as to police procedures on obtaining telephone record data which had shed some light on the inconsistencies observed. In particular, the method available to the police for automatically obtaining phone records generated call data in a different format to the formal inquiry system in which the provider issued data. The automated system for certain mobile phone operators did include zero-length calls in the output. The different methods of generating the data also helped explain inconsistencies regarding the duration of calls: the precise duration given in the automated records was rounded up in the billing records produced by the formal inquiry method.
6. The first applicant’s guilty plea
63. On 27 November 2002, following legal advice that as a result of the sections 17-18 ruling 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 Class A drug.
64. On 2 December 2002, Mr Knaggs appeared before the judge. In relation to his plea, he said:
“As you know, on Wednesday of last week, I entered a plea of guilty of conspiracy to supply Class ‘A’ drugs. I was well aware of the consequences and I was well aware that, in pleading guilty to such a charge, I am going to receive a quite substantial custodial sentence. I did plead guilty after consulting with my family, and I did it off my own back; I wasn’t pressured by my legal team in any way, but I was very carefully advised.”
65. However, he expressed concern at the circumstances in which he was pleading guilty:
“My issues, your Honour, with that plea of guilty was that I felt that I was put in a no-win situation in relation to that plea of guilty. I feel that you know, with all due respect your honour, I feel that my chances of a fair trial were rendered absolutely impossible, and if I may say, I would like to briefly go into the reasons why I believe that.
The first thing is, we, the defence, – I should say I, [the] defence – had strong forensic evidence to show that an interception of telephone communications took place ...”
66. Judge Lawler 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.”
“... I would also like to say, your Honour, that I’m not trying to stand here and portray myself as being some sort of an angel; I have pleaded guilty, and I was involved in crime, but I certainly wasn’t involved to the extent that the Prosecution are trying to say that was. And, like I say, your Honour, I was never able to prove that. And for my involvement in that crime, I am truly sorry. And if I could turn back the clock, I can guarantee that I would not be here today.”
68. On 5 March 2003 Mr Knaggs was sentenced to 16 years’ imprisonment. Confiscation proceedings were subsequently commenced against him.
69. 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.
7. The second applicant’s conviction
70. On 29 January 2003 Mr Khachik was convicted by a jury of conspiracy to supply a Class A controlled drug. The information obtained from the probe in Mr Knaggs’ car provided significant evidence against Mr Khachik. At trial, he did not seek to dispute the authenticity or reliability of the probe material. Instead, he sought to give an innocent explanation for the recordings in which he was implicated.
71. On 5 March 2003 Mr Khachik was sentenced to 19 years’ imprisonment. Confiscation proceedings were subsequently commenced against him.
72. Mr Khachik sought leave to appeal. On 1 July 2003 his application for leave to appeal was refused by the single judge.
8. Later expert reports
73. In February 2003 Mr Campbell produced a further technical report to assist an intended appeal by Mr Knaggs. The report began with a summary of the position set out in previous reports, again advancing the hypothesis that the probe had been placed in the vehicle intentionally to collect evidence of calls being made by Mr Knaggs on his mobile phone. The report noted:
“5. The circumstances of that application and the many misleading statements made by the NCS in obtaining and then continuing permission for intrusive surveillance, were explored extensively in a voir dire, and are set out in detail in the judgment ...”
“8. From the beginning, my view was that the placing of the probe in the Shogun was done intentionally to intercept telephone calls made by Knaggs – knowing when making the application that Knaggs conducted many mobile phone conversations from his (previous) vehicle, and that some of his conversations could be highly incriminating. [original italics]
...
13. The Courts are prohibited under s17 RIPA from allowing evidence to be sought or taken concerning the interception of communications. It is not therefore possible to examine how information obtained from the interception of communications might have influenced the making of an application for intrusive surveillance.”
75. Referring again to the extraneous signals found on the DAT tapes, Mr Campbell concluded that the police recording equipment was inadvertently recording unintended information. Two possibilities were proposed:
“(1) The recorders were picking up a separate signal from a direct intercept on Knaggs’ phone which became (barely) audible when the direct line to the probe was lost. This is a well-known electrical phenomenon called crosstalk;
(2) The telephone device used to connect to the probe was inadvertently picking up conversations within the secure listening room. If so, in simple terms the police were inadvertently recording their own conversations.”
76. In March 2004 a report was prepared on behalf of Mr Knaggs by Mr B. Clues, a chartered electrical engineer and consultant. Referring to voices on the tapes which did not appear to come from the target vehicle, Mr Clues noted that these appeared to be a contamination of the tapes. In his opinion, there was the possibility that the investigation and analysis of the unexplained recordings could produce evidence of, among other possibilities, tampering and editing of the recordings. He concluded that the material from the CDs which he had examined was not, in his view, consistent with assertions that there were no audio sources on the tapes other than from the probe. He considered that the recordings had characteristics which were consistent with being extracts of the original recordings or, alternatively, an edited version of original recordings.
77. Having analysed some of the DAT tapes’ contents, he noted that “unusual audio events” occurred when there was a loss of connection with the probe. Two types of audio source were nonetheless heard on the tapes during the loss of connection, namely voices which appeared to be related to the operation of the probe and voices which appeared to be that of a telephone call between Mr Knaggs and another person. Further, when the probe was active, sounds could be heard on the tapes which did not appear to be coming from inside the vehicle. He accepted that there could be an explanation for these unusual audio events, but indicated that detailed audio analysis was required to determine this.
78. In March 2005 a report by Mr C. Mills, director and senior consultant of Network Forensics, was prepared on the instructions of the prosecution. He noted, first, that all eight DAT tapes which he analysed contained continuous and uninterrupted recorded information for the respective periods which they covered. He further indicated that he had found only two sources of information on the DAT tapes: the input from the probe and speech from the handset at the monitoring station. He dismissed a number of Mr Clues’ conclusions as speculative and/or mistaken.
79. In April 2005, a further report was instructed by the defence on behalf of Mr Knaggs. The report was prepared by Ms E. McClelland, a consultant specialising in speaker identification and disputed language issues. A similar report was prepared on behalf of the prosecution by Mr A. Hirson, senior lecturer in phonetics at City University, London. Both reports considered the voices on an extract of the tapes and the voice of one of the police officers involved in the operation. Both considered it likely that one of the voices recorded in the extract was that of the police officer.
9. The renewed request for leave to appeal
80. Mr Knaggs also lodged grounds of appeal against conviction, dated 7 November 2005, prepared by his solicitor. His grounds of appeal were split into two distinct grounds, which in turn were sub-divided into a number of different heads. The grounds noted:
“The applicant even at an appeal cannot fully apprise the Court of the full facts giving rise to the unsafe conviction, because the evidence and associated material demonstrating the unreliability, illegality and subsequently inadmissibility of the Crown’s evidence cannot be adduced. In these circumstances there is an overwhelming need for a directions hearing. Directions will be sought as to how Mr Knaggs could adduce his evidence without falling foul of the statutory prohibition imposed under [RIPA and the Official Secrets Act].”
81. The first ground of appeal was that:
“The Learned Judge erred in not allowing defence submissions to exclude evidence under Section 78 of the Police and Criminal Evidence Act 1984 and/or stay the proceedings for abuse of the Court’s process.”
82. The followings heads were identified within that ground: (i) the conduct of the police during the investigation and on the voir dire, namely concealment and dishonesty to justify retrospectively unlawfully obtained material; (ii) the true purpose behind the intrusive surveillance, namely to record the applicant using his mobile phone; (iii) the system used to transmit the product of the recording device and whether in essence it amounted to an interception of communications itself; (iv) the authenticity and integrity of the tape recordings, and the restrictions imposed by statute on disclosing the evidence which emerged during the voir dire; and (v) the authenticity and reliability of the telephone call data, for similar reasons.
83. In particular, as to the authenticity and integrity of the tape recordings, the grounds of appeal noted:
“... in respect of the tape recordings there was, and remains, a significant challenge to the authenticity and legality of this material and the integrity of the system employed to record it.
During the Voir Dire evidence was to emerge which would demonstrate that the integrity of the tape recordings could not be guaranteed and the product could not be relied upon. However, due to the restrictions imposed by statute, the reliability and legality of the tapes could not properly be explored, and the expert evidence could not be called and heard in Court, because to do so would offend the statutory prohibitions set out in [RIPA] ...”
84. The second ground of appeal was that:
“As a result of the judge’s rulings giving rise to ground one, combined with the procedural problems imposed under statute which led to the legal advice that Mr Knaggs was prohibited from calling any of his evidence (which was to include scientific expert evidence), he pleaded guilty as he could not defend his case ... The Learned Judge was wrong not to permit Mr Knaggs to change his plea and defend his case in front of a jury.”
85. The followings heads were identified within that ground: (i) the entering of the guilty plea and the subsequent clarifications by the applicant of his acceptance of guilt (see paragraphs 63-65 above); (ii) the application to vacate the plea; and (iii) the learned judge’s refusal to hear a renewed application to vacate the plea (see paragraph 69 above).
86. In the written legal advice received by Mr Knaggs and lodged with the court in support of the need for directions, the grounds of appeal are summarised as follows:
“1. The refusal of the Learned Judge to exclude all or substantial parts of the product of a covert listening device installed in a vehicle said to be used by Mr Knaggs, and/or to stay the proceedings as an abuse of Court process, and
2. The refusal of the Learned Judge thereafter to permit Mr Knaggs to revoke his plea of guilty.”
87. The document made it clear that the alleged anomalies contained in the recordings were apparent at a very early stage, and before the voir dire.
88. Mr Khachik renewed his application for leave to appeal before the full court. He sought to lodge amended grounds of appeal on 12 October 2005, intended to replace those drafted by trial counsel and considered by the single judge. He sought to rely on the amended grounds “in support of his renewed application for leave to appeal against conviction and sentence and his application to call fresh evidence”. Notwithstanding the reference to an application to call fresh evidence in his amended grounds of appeal, no formal application to call fresh evidence, in compliance with the Criminal Appeal Act 1968 and the relevant Criminal Procedure Rule and applicable practice directions (see paragraphs 132-135 above), was lodged.
89. Mr Khachik’s amended grounds of appeal, in outline, were:
“(i) The judge should have stayed the indictment or excluded the evidence of the covert police tapes. The arguments for doing so were so strong and compelling that this court can properly interfere with the exercise of the judge’s discretion. In refusing the defence submissions, the judge reached conclusions of fact that were untenable on the evidence he had heard.
(ii) There is now a body of technical evidence, unavailable to the applicant at trial, which shows that the tapes are contaminated with recordings from other sources. Knaggs’ voice can be heard during periods of signal loss to the probe. One of the recording sources is an interception of Knaggs’ mobile phone: s 17 of RIPA 2000 prohibits its use in evidence. New evidence also shows that Knaggs was not in his car, the site of the probe, when a significant proportion of the recordings occur. If this evidence had been available at trial, it would, or may, have had a decisive influence on the submissions to stay the indictment or exclude the evidence of the covert tapes.
(iii) The new evidence sheds light on the way the probe functioned and demonstrates that it caused, of itself, an interception of Knaggs’ calls ... If the probe was an interception, s. 17 of RIPA renders the whole of its product inadmissible.
(iv) New evidence, in the form of witness statements made after the applicant’s trial, tends to undermine and cast doubt on the evidence of [W.] ...
(v) Other new evidence ... tends to show that the applicant’s conviction was unsafe.”
90. As regards ground (ii), the grounds explained that in the course of the confiscation proceedings against Mr Knaggs, a variety of expert reports had emerged, including reports by Mr Campbell and Mr Clues. Mr Khachik sought leave to rely on these reports, as well as further reports being prepared at the time, and statements from forty witnesses showing that Mr Knaggs was not in the vehicle on at least forty per cent of the occasions when his voice was said to be recorded on the probe. An affidavit signed by Mr Khachik’s solicitor during the trial attested to the fact that the solicitor did not receive a copy of any report by Mr Campbell, nor was she aware of the contents of any such report, until after Mr Khachik’s conviction. She also confirmed that neither she nor Mr Khachik’s counsel were aware that police officers’ voices were recorded on the DAT tapes.
91. Mr Knaggs’ skeleton argument, prepared by senior counsel and dated 24 April 2006, summarised the defence at trial as:
“... a denial and an attack on the admissibility of the probe evidence and on the credibility of the police officers generally.”
92. The skeleton argument referred to the analysis of the DAT tapes by Mr Campbell and the alleged presence of extraneous signals, noting:
“It followed that the covert recording device was not necessary for the police to gain intelligence about the Applicant’s activities as better quality intelligence was being obtained from the intercept.
...
It further followed that this evidence also cast serious doubt as to the veracity of the police evidence generally and in particular when the police had maintained that ‘conventional surveillance is therefore not feasible in the circumstances’ in order to get authority for the probe.
It also followed ... on the basis of the defence expert evidence that by disclosing the probe evidence the police officers concerned had breached section 17 [RIPA].”
93. The skeleton argument explained that the defence wished to rely on the expert evidence for the following reasons:
“(a) it went to admissibility: material existed that an interception had taken place. The fact of the intercept was directly relevant to the integrity of the applications for authorisation to deploy intrusive surveillance and to the admissibility of evidence arising out of such surveillance. Assertions in the applications for authorisation to conduct intrusive surveillance that the information could not reasonably be obtained by other means and the action sought to be achieved could not reasonably be achieved by other means were untenable, inaccurate, wrong and misleading ...
(b) it went to the integrity of the tape recordings themselves as the extraneous signals could be evidence of tampering.
(c) it went to the reliability of the probe evidence generally.
(d) It went to the [credibility] and bona fides of the police officers involved in connection with the probe evidence.
(e) it went to the integrity of the procedures adopted generally ... If the interception was made under a RIPA warrant then it was possible that the purpose of planting the listening device was to enable the police to evade the restrictions in the RIPA and adduce the fact of the intercept evidence in the proceedings.
(f) it went to the integrity of the police officers generally ...”
94. As to the effect of the trial judge’s rulings on sections 17 and 18 RIPA and section 78 PACE, the skeleton argument stated:
“The consequences of the Judge’s rulings was that the Applicant could not raise as an issue that there had been an intercept disclosed by the Prosecution as part of the covert recordings and telephone cell data or even mention it. This meant that he was unable to challenge the veracity of the probe evidence by calling expert witnesses and he was so advised. This was a breach of Article 6.
The Defence was prohibited from calling their expert evidence.
The Defence could not question technical experts called by the Prosecution.
The Defence could not challenge the admissibility of the probe evidence.
The Defence could not cross-examine the police officers responsible for the probe on this issue as to [credibility].
The Defence could not seek to show that the police officers had acted illegally with regard to the probe evidence.
...
It follows that the Judge misinterpreted Section 18 and took a wrong approach and this view of section 18 constituted a breach of Article 6.”
95. The skeleton argument further clarified that the evidence which it was suggested should be before the Court of Appeal was the evidence excluded by the 25 October 2002 ruling, and not further evidence discovered since that ruling. It continued:
“As the matter stands the Defence has not disclosed to the Court or Prosecutor:
a. the expert reports of Mr Campbell.
b. the expert reports of Mr Clues.
c. statements from approximately 40 witnesses.
As to the reports of Mr Campbell – some of these reports were available at the time of the Voir Dire decision but they could not be received in evidence by reason of the Judge’s decision. In these premises it is submitted that these reports could be additional evidence and receivable by the Court on this basis.
The same applies to the reports of Mr Clues ...
The approximately 40 witnesses all deal with particular incidents to discredit the probe evidence. The Applicant had supplied the names and in most cases the addresses of these witnesses to his then solicitors. As at the date of the plea of guilty his then solicitors had not obtained statement from any of these witnesses. These witnesses would have been able to give evidence despite the Judge’s ruling. It is submitted that in these circumstances these witnesses were not available at the date of trial and could be called as additional evidence before this Court.”
96. The skeleton argument concluded:
“Bearing in mind the suggested illegality and alleged contravention of Section 17 the Applicant seeks directions as to how to present this part of the case if necessary.”
97. The Court of Appeal refused Mr Knaggs’ request to give directions in the case. It considered that directions were not necessary unless and until leave was granted.
98. Mr Khachik’s skeleton argument, dated 3 May 2006 and prepared by senior counsel, clarified in its introduction:
“Additional evidence sought to be relied on is:
a. The expert reports from Campbell and Clues, also referred to by Knaggs.
b. Evidence from witnesses within the Mitsibushi shogun, also relied on by Knaggs.
c. Holt and Martin statements impacting of [W.]’s testimony.
d. The affidavit of [Mr Khachik’s solicitor at trial] and letters of trial counsel.”
99. The skeleton argument also reiterated the argument advanced by the defence during the voir dire that authority for the probe was wrongly granted, that the police officers had acted dishonestly in applying for authority and that the probe was intended to record the calls in order to circumvent the prohibition on intercept evidence being used as evidence. Mr Khachik further denied that at any time prior to trial he was aware that there were unexplained voices on the DAT tapes. The skeleton continued:
“The applicant thus submits:
i. the evidence relating to voices on tapes and other recording sources should have been disclosed and were not. Equally if any reports from Campbell had been served before [Mr Khachik]’s trial he should have been served with them.
ii. [Mr Khachik] conducted the voir dire and his trial relying on their integrity. He had not been in the car nor is heard on the tapes.
iii. The question mark over the tapes would have been the last straw for a judge clearly already very concerned as to the state of the evidence he was being presented with.
iv. If the jury were aware that the main evidence had been tampered with, it is unlikely that they would have accepted the evidence of the police.”
100. The skeleton argument for the prosecution, dated 21 April 2006, referred to the defence submissions during the voir dire, noting:
“... At no stage was there any challenge to the proposition that, so far as was material, the source of the voices recorded on some 450, 2 hour, DAT tapes was conversation in Mr Knaggs’ car. Nor was there any allegation of the kind which Mr Knaggs now makes that the tapes were a fabrication composed of recordings from different sources.
Even if the judge’s ruling of 25th October 2002 was wrong, and I submit that it was not, it did nor prevent the defence from calling evidence to prove that there were signs that the tapes were fabricated or that Mr Knaggs’ voice was not on them. In the event the evidence of the officers who were responsible for recording and sealing the tapes was never challenged and Mr Knaggs did not seek to call any of the 40 witnesses he now says are available to prove that he was not in the car when the tapes indicated that he was.”
“... At some of the many hearings involving Mr Knaggs it has been suggested that because some of the DAT tapes allegedly contain words derived from an intercept those tapes are inadmissible. I should make it clear that the prosecution categorically deny that this is the case but even if it is, it would not affect the admissibility of the great body of the recordings. The telephone records relied on by the Crown did not include any material associated with an intercept if there was one. It consisted of material produced by the service providers although a small part of it had originally been produced as what is known as intelligence billing during the course of the enquiry and was in a different format to the normal ....”
102. An appeal hearing took place on 10 and 11 May 2006. According to the judgment of the Court of Appeal, at the oral hearing the applicants submitted, first, that the judge’s ruling in relation to the application of sections 17 and 18 RIPA was wrong in law and effectively amounted to a breach of their right to a fair trial under Article 6 of the Convention; second that the judge was wrong to refuse the application to stay the proceedings as an abuse of process or, alternatively, to permit the evidence under the probe to be produced in evidence; and third, that there was now evidence that W. had been lying in the course of the evidence that he had given at the trial. Mr Knaggs further submitted that he should be entitled to vacate his guilty plea. Similarly, a summary of the hearing prepared by prosecution counsel and dated 19 May 2006, provided to the Court by Mr Khachik in support of his application, indicates that the oral applications for leave to appeal were made on the grounds that:
“(a) H.H. Judge Lawler Q.C. was wrong to rule that he had no power to order the prosecution to disclose whether or not there was an interception in this case; (b) that if the ruling referred to in (a) was correct it made the trial unfair within the meaning of Article 6 of the [Convention]; (c) that the judge was wrong to rule that the probe tapes were admissible; (d) in the case of Knaggs, that the judge was wrong to reject his application to change his plea and (e) in the case of Khachik that fresh evidence existed to throw doubt on the credibility of [W.]”.
103. Leave to appeal was refused on 11 May 2006. Summarising the evidence against the applicants, Lord Justice Latham, delivering the judgment of the court, noted:
“12. The evidence against the applicants fell essentially into three parts. Firstly, there was what might be called ordinary surveillance evidence; that is, evidence of what the police saw and heard over a period from the middle of January to 5th April 2002. It is not necessary for the purposes of this judgment to go in detail through that evidence, but we shall touch on it when dealing with the overall story. The second part of the evidence was the evidence obtained from a probe which had been placed in Russell Knaggs’ Mitsubishi Shogun car on or about 25th February 2002. That probe picked up all conversations within the car and also Russell Knaggs’ end, if one can put it that way, of mobile telephone conversations. Finally, there was the evidence of [W.].
13. Put together, that evidence showed that these applicants were clearly closely connected. There was abundant evidence of meetings, abundant evidence of telephone conversations, and, as we shall see, there were occasions when members of the conspiracy were caught in possession of drugs.”
104. As to Judge Lawler’s ruling on the applicants’ application relating to sections 17 and 18 RIPA, Latham LJ noted:
“27. It is important to put that application in its context. By then, the position was that the material which had been obtained from the probe, which had been recorded initially on two tapes, one of which was the master tape and the other was the working tape, had been re-recorded from the working tape to provide copies of what had been heard to any defendant who wished to have a copy and check it. And transcripts had been made from those tapes and of course were available. It is apparent from the material that we have that three reports on those tapes had been provided to those advising Russell Knaggs by a Mr Campbell by the date upon which the ruling with which we are concerned was made. At no time at that stage was it apparent that any challenge was going to be made to the reliability or accuracy of either the tapes, the copies or the transcripts, or at least no relevant ones. As far as Russell Knaggs was concerned, there was indeed no defence statement.
28. The nature of the application that was made in those circumstances is of some importance. What was being suggested was that the reports from Mr Campbell had identified the possibility of an intercept ..., the existence of such an intercept being prima facie protected from disclosure in any form under section 17 of the Act.
29 Mr Ryder QC, who was appearing for Russell Knaggs at the time, in the first place was asking for, in effect, disclosure of whether or not an intercept had taken place. The context in which he made that application was (as one can see from page 163 of the transcript) in order to enable him to put forward an argument in relation to the installation of the probe that it was not necessary for the probe to be installed, which is a requirement under Part II of that Act, on the basis that the intercept would be able to inform surveillance in a way which would mean that it was not necessary for the probe to be installed. The application was undoubtedly understood in that way by the judge. And when Mr Ryder’s submissions were distilled, they came to a request for either an admission that an intercept had taken place, together with the dates over which it was active, or confirmation that no such intercept had occurred. He and other counsel expressly eschewed making any request for what might be called the content of any intercepts that may have taken place. It follows that the judge was essentially only concerned with the question of whether or not it was permissible to answer the two questions which were posed by Mr Ryder. Section 17, Mr Garside QC submitted to the judge on behalf of the prosecution, precluded the judge from answering those questions, or requiring any other person to answer those questions. The judge agreed, and in our judgment that conclusion was entirely correct.”
105. Latham LJ noted that the applicants submitted before the Court of Appeal that the sections 17 and 18 ruling had produced substantial unfairness because they were precluded from being able to put before the jury material which might have in some way undermined the integrity of the probe material. He continued:
“32. ... But, as will have been appreciated from what we have already said, that was not the basis upon which the application was made. It was clearly made in order to support at that stage the argument that the application for the installation of the probe had not been a proper application because the material could have been obtained in some other way.”
“34. The application, however, does raise this matter ... namely that there was material in the evidence of Mr Campbell which arose out of his conclusion that there might have been an intercept which could be said to have been material which could have undermined the prosecution assertion that the taped material was material which could be relied upon as being an accurate recording and transcription of the material obtained by the probe and the probe alone.
35. For the reasons that we have given, that does not strictly arise as a problem in this case because that was not what was being submitted at the time. But it seems to us to be necessary to say that, when one looks at the material upon which that assertion is based, it is difficult to see how, ultimately, it could have cast any real doubt upon the reliability of the probe evidence overall. But that is an aside for the purposes of these applications. And, in particular, that comment only relates to the three reports in existence at that time. Accordingly, as far as the applications are based on the judge’s ruling in relation to sections 17 and 18, the submissions do not succeed.”
107. The court also found that the decision not to stay the proceedings did not result in the applicants’ trial being unfair, emphasising at the outset:
“36. ... It is important, it seems to us, to repeat what we said earlier, which is at this stage in the proceedings there was no challenge to the reliability of the evidence produced by the probe, and it was on that basis that the judge approached the matter.
37. Although there was no challenge to the integrity, so to speak, of the material produced by the probe, there was a root and branch attack on the credibility and behaviour of the three police officers who gave evidence and who were the main police protagonists in relation to this aspect of the case ...”
108. Nor did the decision to admit the probe evidence result in unfairness:
“45. Turning to the ruling in relation to section 78, it is important to remind ourselves once again that at this stage there was no challenge to the integrity of the material produced by reason of the probe. As the judge himself said: in those circumstances how could it be unfair for this material to go before the jury? The defendants were in a position to explain what was heard on the tapes as being innocent, if they could; they were in no way precluded from doing so. They could, for example, have called evidence in relation to the people who were at the other end of the telephone conversations if it was considered that it was necessary in the interests of their defence to do so. It is significant to note in that context that part of the application before us today from Russell Knaggs is an application to call 40 witnesses to say that the telephone conversations either did not take place when they were said to have taken place or were in a different form, or, alternatively, were related to matters other than drugs matters. Those were all witnesses available to Mr Knaggs and his advisers at the time had they wished to call them. Clearly, in those circumstances there could be no unfairness arising out of the admission of what was evidence which had not been obtained by way of entrapment or vitiated in any other way of that sort. It follows that the challenge insofar as it relates to the judge’s rulings in that respect must also fail.”
109. Leave was also refused in respect of the remaining grounds of appeal.
10. Subsequent events
110. In late 2009 the Serious Organised Crime Agency (“SOCA”) suspected, on reasonable grounds, that Mr Knaggs, in detention at HMP Lowdham Grange, was involved with others in a conspiracy to import cocaine into the United Kingdom. On 11 November 2009 a number of arrests were made. At the request of SOCA, prison security entered Mr Knaggs’s cell and removed him to the segregation unit. He remained in the segregation unit until 20 November 2009.
111. During Mr Knaggs’ absence from his cell, prison security and SOCA searched the cell. The search was carried out under lawful authority and all material within the cell, including legal correspondence, was seized and placed in bags with tamper-proof seals. This was done pending an examination of the material by independent counsel, whose task it was to identify any items subject to legal professional privilege, which were then returned to Mr Knaggs. The exercise produced disputed material, which was subsequently held for assessment by a Circuit Judge.
B. Relevant domestic law and practice
1. Surveillance
a. Directed surveillance
112. Section 28 of the Regulation of Investigatory Powers Act 2000 (“RIPA”) provides for the authorisation of directed surveillance, i.e. covert surveillance involving observing an individual in public. Section 28(2) provides that such authorisation should not be granted unless the police 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.
113. 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
114. 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.
115. Section 93 of the Police Act 1997 also provides for authorisation for police action if it is necessary for the action specified to be taken for the purpose of preventing or detecting serious crime and the taking of the action is proportionate to what the action seeks to achieve.
c. Interception of communications
116. 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. Pursuant to section 1(5)(b) an intercept will have lawful authority if it occurs in accordance with a warrant under section 5. Section 5(1) 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 of intercept evidence
117. Section 19 RIPA imposes a duty on specified persons to keep secret, inter alia, the existence and content of an interception 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.
118. Section 20 RIPA defines “related communications data” in this context as so much of any communications data as are obtained by, or in connection with, the interception and relate to the communication or to the sender or recipient, or intended recipient, of the communication. “Communications data” are 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 they are 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.
119. Section 4 of the Official Secrets Act 1989 provides:
“(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
120. Section 78 of the Police and Criminal Evidence Act 1984 (“PACE”) provides:
“(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.”
121. 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.”
“(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 ...;
(d) the making of an application by any person for an interception warrant ...;
(e) the imposition of any requirement on any person to provide assistance with giving effect to an interception warrant.”
123. 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.”
124. Section 18 RIPA sets out exceptions to section 17 RIPA. The relevant subsections of section 18 provide that:
“(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).”
125. 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 states:
“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.”
126. The Code goes on to consider the operation of the exceptions set out in section 18:
“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.
...
7.9 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.
...
7.11 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.”
127. 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 1985 (“ICA”). 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 prosecution had been obtained by intercepting a private, as opposed to a public, telecommunications system. During a criminal trial, the prosecution had 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.
128. Lord Bingham of Cornhill delivered the leading judgment in Attorney General’s Reference No. 5 of 2002. He concluded:
“ 20. The inclusion in section 17(2) of an offence under section 1(2) of the Act poses an obvious problem of interpretation given the very sweeping language in which section 17(1) is expressed. The requirement in section 17(2)(a) that the conduct must be by a person falling within subsection (3), and the listing in that subsection of persons and bodies involved in the warrantry regime, strongly suggest that the focus of the prohibition is, as in the 1985 Act, on that regime. It is also relevant to recall that interception of a private telecommunication system is only criminal under section 1(2)(a) if without lawful authority and section 18(4) expressly provides that section 17(1)(a) shall not prohibit the disclosure of the contents of a communication if the interception of that communication was lawful by virtue of section 3 or section 4. In other words, disclosure is not prohibited if the interception was lawfully authorised under those sections. It would be absurd to conclude that there could be no enquiry to establish whether the interception was lawfully authorised or not, and whether or not the interceptor’s conduct was excluded from criminal liability under section 1(6) ... Given the obvious public interest in admitting probative evidence which satisfies the requirements of sections 1(6), 3 and 4, and the absence of any public interest in excluding it, I am satisfied that a court may properly enquire whether the interception was of a public or private system and, if the latter, whether the interception was lawful. If the court concludes that it was public, that is the end of the enquiry. If the court concludes that it was private but unlawful, that also will be the end of the enquiry. If it was private but lawful, the court may (subject to any other argument there may be) admit the evidence.
129. 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 (see paragraph 116 above). He considered that section 18(5) permitted a challenge to the lawfulness of the interception by the defence.
“31. It is true, as Lord Bingham has pointed out, that the inclusion in section 17(2) of an offence under section 1(2) of the Act creates a linguistic difficulty given the language in which section 17(1) is expressed. In my view, however, this point is decisively outweighed by a purposive interpretation of the statute. No explanation for resorting to purposive interpretation of a statute is necessary. One can confidently assume that Parliament intends its legislation to be interpreted not in the way of a black letter lawyer, but in a meaningful and purposive way giving effect to the basic objectives of the legislation. So approached the answer to the central question is obvious: a court may enquire into the question whether tapping took place on a private system.”
131. In R (on the application of Noone) v.The Governor of HMP Drake Hall and another [2010] UKSC 30, Lord Mance applied Attorney General’s Reference No. 5 of 2002, noting:
“75. In Attorney-General’s Reference (No. 5 of 2002) ... the House, in view of the absurdity that would otherwise result, refused to give its literal interpretation to a statutory provision which, literally read, precluded the defence from asking questions to establish that there had been interception (consequently illegal) on part of a public telecommunications system, but allowed the prosecution to call evidence to the effect that the interceptions had taken place wholly within a police private telecommunications system (and were therefore legal). The linguistic difficulty was ‘decisively outweighed by a purposive interpretation of the statute’ ...”
4. Fresh evidence in criminal appeals
132. Section 23 of the Criminal Appeal Act 1968 (“the 1968 Act”) provides for the lodging of fresh evidence in the context of a criminal appeal:
“(1) For the purposes of an appeal under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice—
(a) order the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case;
(b) order any witness who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings; and
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies.”
133. Pursuant to section 23(2), the Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to:
“(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”
134. The Criminal Procedure Rules 2005 applicable at the time of the appeal provided, at Rule 68.15:
“(1) Notice of an application by the appellant ... –
(a) that a witness who would have been a compellable witness at the trial be ordered to attend for examination by the court; or
(b) that the evidence of a witness be received by the court;
shall be in the form set out in the Practice Direction and shall be served on the Registrar; save that where a notice of an application under sub-paragraph (a) or (b) is given together with a notice of appeal or notice of application for leave to appeal, it shall be served on the Crown Court officer.
(2) An application as aforesaid may be made to the court orally.”
135. The Lord Chief Justice’s Consolidated Criminal Practice Direction indicated that the relevant form which had to be completed in respect of an application for fresh evidence was “Form W”. The details to be included in Form W were the name and address of the appellant, the particulars of the witness, the evidence to be given by the witness together with a copy of the witness statement and an explanation of why the evidence was not given at trial.
136. Considering the operation of section 23 of the 1968 Act in R v. Pendleton [2001] UKHL 66, Lord Bingham of Cornhill noted:
10. There was no real issue between the parties to this appeal concerning the construction of section 23(1) and (2). The term ‘receive’ is used to describe the formal act of admitting the evidence referred to before the Court of Appeal. Deciding whether or not to receive the evidence is the first task the court must usually undertake when application is made that it should do so under section 23(1)(c). In considering whether or not it should receive such evidence, usually called ‘fresh evidence’, the court must have regard in particular to the matters listed in (2)(a)(d). These are matters to which, as practice had developed over the years, the courts had come to pay attention: see R v Parks [1961] 1 WLR 1484 at 1486-1487. They are matters of obvious significance. When considering an application to receive the fresh evidence of a witness, the court will have before it a written statement of the evidence which the witness will give: see form 6, prescribed by rule 3 of the Criminal Appeal Rules 1968 (SI 1968 No 1262). If the statement does not appear to the court on reading it to be even capable of belief, there will be little purpose in proceeding further. The statement may be obvious nonsense. Similarly, if it does not appear to the court when it reads the statement that it might, even if fully accepted, afford any ground for allowing the appeal (that is, for thinking that the conviction may be unsafe) there will again be little point in proceeding further. It is obviously relevant to consider whether the fresh evidence would be admissible at the trial, although the Court of Appeal has held that section 23(1)(a) is not limited to admissible evidence (R v D and J [1996] 1 CrAppR 455). The Court of Appeal will always pay close attention to the explanation advanced for failing to adduce the evidence at the trial, since it is the clear duty of a criminal defendant to advance any defence and call any evidence on which he wishes to rely at the trial. It is not permissible to keep any available defence or any available evidence in reserve for deployment in the Court of Appeal. Thus the practice of the court is to require a full explanation of the reasons for not adducing the evidence at the trial (R v Trevor [1998] CrimLR 652). It is however clear that while the court must, when considering whether to receive fresh evidence, have regard in particular to the matters listed in section 23(2)(a)-(d), and while in practice it is most unlikely to receive the evidence if the requirements of (a), (b) and (c) are not met, the court has an overriding discretion to receive fresh evidence if it thinks it necessary or expedient in the interests of justice to do so.”
COMPLAINTS
Under Article 6 § 1 of the Convention the applicants complained 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. In this context, they complained that the blanket ban on intercept evidence and any associated question or evidence breached their rights under Article 6 § 1 because as a result of the ban, there was no way to challenge a suspected unlawful disclosure. They further argued that the failure of the police to record Mr Knaggs’ movements during the directed surveillance exercise unfairly limited their ability to challenge the probe evidence.
The applicants also complained under Article 8 of the Convention that the probe constituted an unjustified interference with their right to respect for private life.
Under Article 13 of the Convention, the applicants complained that they were denied an effective remedy in respect of the above violations.
Finally, the applicants contended that the respondent State had failed to comply with its obligations under Article 34 of the Convention.
THE LAW
I. JOINDER
137. Given their similar factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
138. The applicants complained that the admission of the evidence derived from the probe and the telephone call data, as well as the restrictions on their ability to challenge their admission as a result of the operation of section 17 RIPA and the failure of the police to record Mr Knaggs’ movements, breached their right to a fair trial as provided in Article 6 § 1 of the Convention, which reads as follows:
“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”
A. Scope of the applicants’ complaint
139. The Court considers it helpful at the outset to identify the scope of the applicants’ complaint before this Court, and in particular the specific arguments which are now being advanced. In this context, the Court reiterates that its task is not to review the relevant law in abstracto, but to determine whether the manner in which it was applied in the applicants’ case gave rise to a violation of the Convention (see, inter alia, Klass and Others, cited above, BAILII: [1978] 2 EHRR 214, § 33; N.C. v. Italy [GC], no. 24952/94, BAILII: [2002] ECHR 824 , § 56, ECHR 2002-X; Krone Verlag GmbH & Co. KG v. Austria (no. 4), no. 72331/01, BAILII: [2006] ECHR 952 , § 26, 9 November 2006; and Kart v. Turkey [GC], no. 8917/05, BAILII: [2009] ECHR 1981 , § 85, 3 December 2009).
140. It is clear from the submissions made in the context of the first applicant’s application to the Court, subsequently adopted by the second applicant, that the challenge under Article 6 § 1 of the Convention before this Court has two components. First, the applicants argued that the admission of the probe evidence and the telephone billing data, when viewed in tandem with the restrictions on their right to challenge the evidence as a result of section 17 RIPA, constituted a violation of Article 6 because it was actually intercept evidence. As part of this complaint, they complained about the blanket ban on the admission in evidence of material obtained by, or revealing the existence of, an interception of communications. Second, they argued that the failure of the police to record Mr Knaggs’ movements during the directed surveillance exercise unfairly limited their ability to challenge the probe material. The Court will examine each of these complaints separately.
B. The first complaint
1. The parties’ submissions
a. The Government
141. The Government contended that the applicants had failed to raise in the context of the domestic proceedings the complaints on which they now sought to rely. Indeed, the Government argued that the submissions advanced by the applicants during the trial proceedings were inconsistent with the arguments they were now seeking to advance. In the Crown Court, it had been argued that the probe was ordered with the intention of eavesdropping on telephone conversations in order to suggest that it had been used in circumstances where it should not have been, either because it was not “necessary” or because the investigating authorities should have obtained an interception warrant instead. However, before this Court the applicants sought to argue that the probe material was in fact derived from an intercept, an argument which was never made before the domestic courts.
142. In particular, the Government emphasised that at no stage during the domestic proceedings had the applicants sought to challenge the authenticity or reliability of the evidence obtained from the probe, a point made by Latham LJ in the Court of Appeal (see paragraphs 104-108 above). Indeed, at trial, Mr Khachik had accepted the accuracy of the probe evidence and by pleading guilty, Mr Knaggs had also accepted the reliability of the probe material. Nor had the applicants sought to rely on the evidence of their expert; indeed, it appeared that the trial judge was not aware of the nature of that evidence (see paragraphs 31 and 33 above). The only argument advanced by the applicants regarding any alleged interception was that they ought to be informed whether there had been an intercept, in support of their argument that intrusive surveillance via the probe was not “necessary”, within the meaning of section 32 RIPA. As regards that question, the trial judge found that non-disclosure would not handicap the conduct of the defence case.
143. The Government argued that it was open to the applicants during the trial proceedings to challenge the authenticity of the probe material. Had they done so, the prosecution could have been invited to prove the authenticity of the evidence as an objective fact. This would have required the prosecution to establish that the material relied on was in fact derived from the probe. In order to demonstrate this, the prosecution would have had to adduce expert evidence. The Government contended that had the arguments now being made been advanced by the applicants at trial, the courts would have examined them. In the event that the applicant’s arguments had been upheld, effective remedies would have been available. For example, where a Crown Court judge concluded that a fair trial could not take place, the proceedings had to be stayed on the ground that to continue would amount to an abuse of process. In the Court of Appeal, where proceedings were found to be unfair, convictions were almost invariably quashed.
144. In response to the applicants’ argument that the Court of Appeal had missed the whole basis and substance of the appeal, the Government submitted that there was no foundation for this suggestion. They considered that the Court of Appeal had correctly analysed the issues which fell to be determined and had addressed them properly. They emphasised that there had been no formal application to the Court of Appeal to receive fresh evidence. While there was some reference in Mr Knaggs’ skeleton argument to additional evidence, the Government pointed out that this was not a formal application in compliance with applicable procedural requirements. Further, some of the “additional evidence” was available during the Crown Court proceedings but the defence had chosen not to deploy it. In the circumstances, the Government considered the Court of Appeal’s findings to be clearly correct and argued that it was not for this Court to substitute its own judgment for that of the national courts.
145. The Government accordingly invited the Court to reject the applicants’ complaint for failure to exhaust domestic remedies.
b. The applicants
146. The applicants accepted that they had not raised their complaint as to the alleged manipulation of the probe evidence specifically before the domestic courts, and that there was therefore no domestic judgment on the exact issue before the Court. However, they relied on the “extraordinary circumstances” of their applications, namely the fact that the law operated in a manner which itself prohibited any judgment on their complaint being given at domestic level, to justify this failure. They alleged that despite their best endeavours it was impossible for them to obtain a domestic judgment which directly confronted the procedural unfairness. They contended that it was the implementation of the statute and its overall impact on the fairness of the proceedings which required examination by the Court, rather than any specific judgment.
147. The applicants emphasised that
their submissions on the voir dire were an initial preliminary
argument, and claimed that, but for the trial judge’s
comprehensive ruling on disclosure under RIPA, upheld by the Court of
Appeal, they would have made further legal submissions. They
maintained that but for the statutory prohibition, they would have
undoubtedly relied on their expert material and would have advanced
fully informed argument on the issue. In particular, they claimed
that they had compelling expert evidence showing without doubt that
the prosecution disclosures of the probe material and accompanying
telephone data were intentionally and dishonestly tampered with and
illegally disclosed under RIPA and the OSA. Accordingly, they would
have advanced a positive and demonstrably provable case that the
audio recordings contained intercepted telephone calls and that the
telephone billing data were in fact
intercept-related data and
not billing records from service providers. They argued that, at the
very least, this would have rendered the probe material inadmissible.
The result of the sections 17 and 18 ruling was that the defence had
to amend their argument to avoid contravening the terms of RIPA. The
remainder of the trial proceedings were conducted within the limits
set by the trial judge. Mr Khachik further contended that at the time
of his trial he was unaware of the content of Mr Campbell’s
reports and their implications on the recordings and call data.
148. The applicants noted that it could perhaps be argued that defence counsel could have pushed a little harder with their legal submissions prior to the voir dire. However, they contended that it was quite obvious that they would have been pushing at a locked door as the law in question was unequivocally rigid and absolute. They referred to the advice of senior counsel that their expert could not be called to give evidence as this would offend sections 17 and 18 RIPA. The applicants invited the Court to consider “the actual impact and consequence of the various rulings and decisions that occurred pre trial and indeed pre voir dire on the fairness of the proceedings, and not necessarily the reasons and arguments that provoked such rulings and decisions in the first instance”. They contended that the arguments that were being led at the time and which acted as a catalyst for the judge’s ruling on the interception regime were “virtually insignificant”.
149. The applicants insisted that they had tried to raise the issue which is currently before this Court, as their skeleton arguments, grounds of appeal and supporting documentation made clear. They explained that before the Court of Appeal they argued that if the trial judge’s ruling was incorrect, then the conviction was unsafe as they were deprived of their right to be able to deploy expert testimony and argument; if, on the other hand, the trial judge’s ruling was correct as a matter of law, then the law was incompatible with Article 6 and the Court of Appeal should so rule. However, the Court of Appeal had failed to engage with the issues raised in the appeals, namely the effect of sections 17 and 18 RIPA on their ability to conduct their defences. In concluding that they had failed to run their evidence to challenge the authenticity and reliability of the tapes, the Court of Appeal had failed to address the reason for which the challenge was not made; indeed, in the applicants’ view, having accepted that the trial judge’s sections 17 and 18 ruling was correct, the Court of Appeal could do nothing else. In order to confront the nature of the legislative restraints imposed on the applicants, it would have had to find that the trial judge’s ruling on the interception regime was incorrect and incompatible with Article 6. As it was, the Court of Appeal found that the trial judge’s ruling was correct as a matter of law and that there was no breach of Article 6. It was “precisely this finding” that was now subject to challenge by the applicants.
150. As to the Court of Appeal’s aside to the effect that the reports did not undermine the authenticity of the probe material (see paragraph 106 above), the applicants pointed out that Latham LJ had seen only three of the five reports prepared and had heard no witnesses. In any event, the applicants argued that the complaint was one of procedure and that the Court should not now concern itself with the factual content of the expert material.
151. The applicants concluded that the applications raised substantial issues of procedural unfairness and that the impact of the statutory prohibition in RIPA should not be underestimated. They contended that section 17 created a blanket ban on any arguments, questions, submissions or any other route which would suggest the existence of an intercept, and that they could therefore not be criticised for failing to raise any argument which would suggest the existence of an intercept. While they could have argued that the recordings and the call data records were inaccurate, this would have served no practical or sensible purpose as they were unable to support or make good this claim due to the blanket ban which prevented them from leading their evidence. In the circumstances, and in particular in light of the failure of the Court of Appeal to address the concerns raised, the applicants maintained that there was nothing more they could have done to seek a remedy for the alleged violation at domestic level.
c. The third party
152. The Equality and Human Rights Commission made no submissions regarding exhaustion of domestic remedies in respect of this complaint.
2. The Court’s assessment
a. General principles
153. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, BAILII: [1996] ECHR 35 , § 65, Reports of Judgments and Decisions 1996 IV; and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04, 21819/04, § 69, 1 March 2010, BAILII: [2010] ECHR 306 ).
154. Of particular relevance to the present case, Article 35 § 1 requires that the complaints intended to be made subsequently at Strasbourg should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law and, further, that any procedural means that might prevent a breach of the Convention should have been used (see Akdivar and Others, cited above, § 66; and Cardot v. France, 19 March 1991, BAILII: [1991] ECHR 24 , § 34, Series A no. 200).
155. As
the Court also held in Akdivar and Others (cited above, § 68),
in the area of the exhaustion of domestic remedies there is a
distribution of the burden of proof. It is incumbent on the
Government claiming
non-exhaustion to satisfy the Court that the
remedy was an effective one available in theory and in practice at
the relevant time, that is to say, that it was accessible, was one
which was capable of providing redress in respect of the applicant’s
complaints and offered reasonable prospects of success (see also
Kennedy v. the United Kingdom, no. 26839/05, BAILII: [2010] ECHR 682 , § 109,
ECHR 2010 ...). However, once this burden of proof has been
satisfied it falls to the applicant to establish that the remedy
advanced by the Government was in fact exhausted or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement.
156. Finally, the Court has emphasised that the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar and Others, cited above, § 69).
b. Application of the general principles to the facts of the present cases
157. The essence of the first complaint, as explained by the applicants’ detailed submissions prior to and following communication of the applications to the Government, is that the legislative framework in place in the United Kingdom allowed evidence obtained from an intercept, disguised as probe evidence, to be unlawfully admitted in the proceedings against them but restricted their ability to challenge the admissibility of the evidence. From the outset of the proceedings before this Court, they alleged that they had evidence that the probe material had been tampered with and that intercept evidence had been unlawfully introduced into the recordings. The question arises whether the applicants raised this argument in the context of the domestic proceedings, such as to allow the relevant domestic authorities to address the matter and to afford them such redress as would be appropriate.
158. The Court observes, first, that when making the initial request for confirmation of whether there had been an intercept in place when the probe was authorised, counsel for Mr Knaggs explained that the reason for the request was that, if there was an intercept, there would be grounds to challenge the necessity and lawfulness of the probe and the motivations of the police officers who requested the probe (see paragraph 20 above). The transcript of the proceedings of 23 October 2002 shows that the trial judge sought clarification of the defence request, and in the context of the hearing, the defence invited the judge to order disclosure to him alone and to bear in mind, during later evidence, whether the police were privy to intelligence which rendered the necessity for intrusive surveillance, in the form of the probe, less urgent than they claimed (see paragraphs 23-24 above). The transcript shows that at no time during the hearing did the defence make reference to any concerns regarding the reliability, authenticity or integrity of the probe material (see paragraph 27 above).
159. As regards Mr Khachik’s claim that he was unaware at that time of any issues regarding the probe material, the Court observes that the sections 17 and 18 hearing was held because of a request, prompted by the findings of Mr Knaggs’ expert, for confirmation of whether there had been an intercept. The judge’s ruling following that hearing makes specific reference to potential evidence regarding the possible existence of an intercept from the expert of Mr Knaggs (see paragraph 31 above). The Court considers it noteworthy that counsel for Mr Khachik attended, and made submissions during, the hearing. It is therefore somewhat surprising that, according to Mr Khachik, neither he nor his legal team had any idea what Mr Campbell’s report contained (see paragraph 90 above) and that they did not make inquiries into why an intercept was suspected, nor consider any such information necessary for their participation in the sections 17 and 18 hearing or, more generally, for the preparation of Mr Khachik’s defence.
160. In his sections 17 and 18 ruling of 25 October 2002 the trial judge, summarising the defence’s objections to the probe evidence, indicated that the defence wished to test the lawfulness of the applications and the authorities for intrusive surveillance, noting that there could also be an issue of bad faith on the part of the police officers (see paragraph 30 above). His later summary of Mr Knaggs’ submissions contained in his skeleton argument confirmed that the thrust of the defence argument was directed at demonstrating that the reasons identified in the applications for intrusive surveillance were not tenable if an intercept had been in place (see paragraph 31 above). This was the issue that “loomed large” and it was in this context that the judge turned to consider the effects of sections 17 and 18 RIPA and the requirements of Article 6 of the Convention. His reference to the “blanket ban” under section 17 RIPA was clearly in the context of the specific question asked by the defence as to whether there had been an intercept in place (see paragraph 32 above). He later noted that counsel for Mr Knaggs had conceded on more than one occasion that the defence was not remotely interested in the content of any interception but only with whether there had been one (see paragraphs 35 and 36 above).
161. Similarly, the voir dire submissions focused on the conduct of the police and whether the authority given for the probe was lawful. This is evident from the trial judge’s summary in his judgment of 15 November 2002 of the defence (see paragraph 39 above) and the closing submissions of counsel for Mr Knaggs and Mr Khachik (see paragraphs 47-48 above), which clearly focussed on whether the probe was necessary within the meaning of RIPA. At no point was it suggested that the probe material itself had been tampered with, or that intercept evidence had been included in the DAT tapes. The judge emphasised that there was a clear and substantially unchallenged record of what was said in Mr Knaggs’ car. He also pointed out that the defendants could still challenge the prosecution interpretation of the tapes or otherwise provide an explanation for them (see paragraph 59 above). He concluded that none of the criticisms made went anywhere near an attack on the reliability, probative value or cogency of the probe evidence, adding that there was no suggestion of the manipulation of the tape recording exercise (see paragraph 60 above).
162. It is also relevant to consider the terms of Mr Campbell’s reports upon which the applicants now allege their concerns as to tampering were based. While it was clear at an early stage that he had indentified what appeared to be extraneous signals on the CD copies of the DAT tapes, there was only a passing suggestion that the tapes had been tampered with, and no reference to any possibility that intercept evidence had been intentionally introduced into the recordings (see paragraph 13 above). Indeed, his reports appeared to proceed on the premise that the DAT tapes were an accurate recording of what took place in the Mitsibushi Shogun. The extraneous signals, which could only be detected with amplification (see paragraphs 19 and 75 above), provided, according to Mr Campbell, evidence of a simultaneous intercept of Mr Knaggs’ mobile phone calls, because the results of that intercept or dialling tones heard when the probe signal had been lost were occasionally “inadvertently” caught on the DAT tapes (see paragraphs 12, 15 and 75 above). If Mr Campbell indeed suspected at that stage that the DAT tapes had been intentionally manipulated such that intercept material had been introduced onto them, it is surprising to say the least that he made no reference to this suspicion in his reports. The Court notes that shortly after the voir dire commenced, Mr Campbell discovered anomalies in the telephone billing data, which appear to have led him to suspect that they were created from intercept evidence of the calls which had taken place (see paragraphs 42 and 61 above). However, later evidence from the police as to how the records were created seems to have provided a reasonable alternative explanation for the anomalies (see paragraphs 62 and 101 above), and there is no evidence of any concerns being raised or steps being taken to challenge the telephone billing data during the trial proceedings.
163. The Court observes that the above conclusions as to the scope of the defence arguments during the trial proceedings are entirely consistent with the findings of the Court of Appeal. In its judgment of 11 May 2006, the court noted that at no time before or during the trial was it apparent that any challenge was going to be made to the reliability or accuracy of either the DAT tapes, the copies of the DAT tapes or the transcripts (see paragraphs 104-108 above). The context in which the application for confirmation of whether there had been an intercept was made had been, in the view of the Court of Appeal, clearly to enable the defence to challenge the “necessity” of the probe under the provisions of RIPA (see paragraph 104 above). As to the applicants’ argument before the Court of Appeal that the trial judge’s sections 17 and 18 ruling produced substantial unfairness because it precluded them from putting before the jury material which would have undermined the integrity of the probe, the Court of Appeal emphasised that this was not the basis on which the application which led to the sections 17 and 18 RIPA ruling was made (see paragraph 105 above). Similarly, as to the effect of the voir dire ruling, the court reiterated that there was no challenge to the reliability of the probe evidence during the voir dire and that the trial judge approached the matter on that basis (see paragraphs 107-108 above).
164. The Court further notes that Mr Knaggs pleaded guilty and that Mr Knachik, during his trial, did not seek to challenge the reliability or authenticity of the probe material. The applicants argued that the effect of the trial judge’s rulings on sections 17 and 18 RIPA and in the voir dire was such that it was clear that they could not subsequently seek to argue that the probe material had been manipulated by the inclusion of intercept material. However, the Court, like the Court of Appeal, reiterates that the trial judge’s rulings on the interpretation of sections 17-18 RIPA and following the voir dire were made in the context of the particular challenge which the applicants had indicated they wished to make to the admission of the probe material, namely that the authorisation for the probe was not lawful. Accordingly, the Court does not accept the applicants’ contention that the effect of either ruling was to preclude any defence challenge to the integrity and reliability of the probe material. Like the Court of Appeal (see paragraph 108 above), the Court notes that Mr Knaggs could easily have led evidence from the forty witnesses who he claims were available at the time of the trial to show that he was not in the vehicle at the time the probe recordings were made. Had he been able to demonstrate to the satisfaction of the jury that he was not present in the car, the reliability of the probe material and the prosecution’s case against him would have been seriously undermined. The Court further finds persuasive the Government’s submission that the applicants could have disputed the reliability and authenticity of the probe material, thus requiring the prosecution to prove it, if necessary by leading technical evidence testifying to the fact that the recordings were obtained exclusively from the probe (see paragraph 143 above).
165. In any case, the Court is of the view that, given the detailed and careful rulings issued by the trial judge, had the applicants sought to advance, either in the context of the sections 17 and 18 ruling or in the context of the voir dire, a challenge of the type they are now seeking to make, it would have been carefully examined by the trial judge and the implications for the applicants’ fair trial rights would have been taken into account in a reasoned ruling. In this regard, the Court refers to the House of Lords ruling in Attorney General’s Reference No. 5 of 2002, applied by Lord Mance in Noone, which demonstrates a purposive approach to the interpretation of section 17 RIPA in order to preserve equality of arms and fairness in criminal proceedings (see paragraphs 127-131 above). The Court therefore does not consider that the applicants have shown that any attempt to present submissions regarding the unreliability of the probe material would have been pushing at a “locked door” (see paragraph 148 above). It is significant, as demonstrated in the case which led to Attorney General’s Reference No. 5 of 2002, that had the trial judge concluded that in light of section 17 RIPA the applicants were indeed precluded from, or excessively restricted in, seeking to challenge the reliability, authenticity and integrity of the probe material, he could have ruled that the evidence should not be admitted, pursuant to section 78 PACE (see paragraphs 120 and 127 above). By failing to raise any argument to this effect before the trial judge, the applicant deprived the court of the opportunity to consider their complaint and to provide any necessary redress.
166. Having failed to raise their complaint at trial, the question therefore arises whether the applicants could and did raise their complaint regarding the alleged tampering with the probe evidence and incorporation into the DAT tapes of intercept evidence before the Court of Appeal, in compliance with all applicable procedural requirements, as required by Article 35.
167. It is instructive in this regard to consider the applicants’ grounds of appeal and skeleton arguments. In so far as relevant, Mr Knaggs’ grounds of appeal argued that the trial judge had erred in not ordering the exclusion of the probe material or a stay on proceedings for abuse of process (see paragraph 69 above). In setting out the detail of his argument, the applicant indicated that he intended to challenge, inter alia, the authenticity and integrity of the probe material and the authenticity and reliability of the telephone call data (see paragraph 83 above). He accepted in his grounds of appeal and his skeleton argument that the issues regarding the recordings were apparent to him at an early stage in the criminal proceedings, and certainly prior to the voir dire (see paragraphs 87 and 95 above). It is significant that while Mr Knaggs referred to a challenge to the authenticity and integrity of the probe material, neither in his grounds of appeal nor in his skeleton argument did he allege in terms that the police or the prosecution had in fact intentionally tampered with the DAT tapes by unlawfully introducing onto them evidence from other sources (see paragraphs 80-87 and 91-95 above). It is also significant that his principal arguments on appeal, as set out in the grounds of appeal and skeleton argument, focused on the lawfulness of the authorisations for the probe and the alleged dishonest conduct of the police (see paragraphs 82 and 91-94 above).
168. Mr Khachik’s amended grounds of appeal and skeleton argument, on the other hand, referred extensively to fresh evidence, including technical evidence showing that the DAT tapes were contaminated with recordings from other sources and evidence from witnesses testifying that Mr Knaggs was not in his car when a significant proportion of the recordings were made (see paragraphs 89-90 and 98 above). However, despite apparently seeking to rely on fresh evidence before the Court of Appeal, he seems to have failed to comply with the relevant procedural requirements set out in the 1968 Act and relevant rules and practice directions (see paragraph 88 above). In particular, he did not lodge the requisite “Form W” setting out in detail the evidence on which he sought to rely as well as his explanation for his failure to present the evidence at trial (see paragraph 135 above).
169. Nor do the subsequent reports produced by defence experts submitted to the Court provide unequivocal evidence to support the claim that, by the time of the appeal proceedings, the defence position that the DAT tapes had been intentionally manipulated to include intercept evidence was clear. Mr Campbell’s post-trial report of February 2003 once again reiterated his view that the probe had been placed in the vehicle intentionally to collect telephone call evidence (see paragraphs 73-74 above). In particular, the report referred to the impossibility, due to section 17 RIPA, of examining how information obtained from an intercept might have influenced the making of an application for intrusive surveillance (see paragraph 74 above). For the first time, the suggestion that some of the unexplained voices heard on the tapes were those of police officers in the listening room was put forward (see paragraph 75 above). However, there was no reference in the report to a suspicion that evidence from an intercept had been unlawfully inserted onto the DAT tapes. Nor do any of the reports from later defence experts articulate specific concerns as to the integrity of the DAT tapes and the possible introduction onto them of material obtained from an intercept. Mr Clues’ report noted that the presence of unexplained voices appeared to indicate that the tapes had been contaminated and he considered that it was possible that the tapes had been edited or tampered with (see paragraph 76 above). However, his analysis of the tapes merely revealed similar anomalies to those already identified by Mr Campbell and he accepted that further analysis would be required to establish whether there was a reasonable explanation for the unusual audio events observed (see paragraph 77 above). Further, his findings were disputed by the expert instructed by the prosecution (see paragraph 78 above). The Court further considers that the ambiguous and provisional nature of the expert evidence which has been submitted in the context of the present proceedings is consistent with the written submissions by the applicants in the appeal proceedings, and in particular the failure of the applicants to launch any particularised challenge to the integrity of the probe material.
170. At the oral hearing itself, the applicants’ counsel submitted that the trial judge was wrong in finding as he did in the ruling on sections 17 and 18 RIPA and the voir dire ruling (see paragraph 102 above). Thus it is again clear that the appeal submissions were directed at persuading the Court of Appeal to overturn the rulings of the trial judge on the basis that they were wrong. In the circumstances, the Court of Appeal examined the two impugned rulings of the trial judge in order to assess whether, as the applicants contended, they were wrong in law or otherwise breached the applicants’ fair trial rights. Having regard to the context in which the rulings were made, and in particular to the fact that at that stage there was no challenge to the reliability of the probe, the court found the trial judge’s rulings to have been entirely correct (see paragraphs 104-105 and 107-108 above). Regarding the argument that there was material in the expert reports which could have undermined the prosecution’s assertion that the DAT tapes came from the probe alone, the Court of Appeal noted that the problem did not strictly arise in the case because that was not what the defence had submitted at the time (see paragraph 106 above). However, it observed as an aside that it was difficult to see how the expert reports could have cast any real doubt on the reliability of the probe evidence, a conclusion with which the Court has already indicated it would tend to agree (see paragraphs 162 and 169 above). The court pointed out that, notwithstanding the rulings, the applicants could have explained to the jury why the content of the tapes was innocent or called the parties on the other end of the telephone conversations to give evidence (see paragraph 108 above). It noted that Mr Knaggs had sought, in the application for leave to appeal, to call forty witnesses in his defence, but that all witnesses had been available to Mr Knaggs and his advisers at the time of the trial had they wished to call them.
171. While the Court of Appeal did not itself consider the impact of the new evidence on the fairness of the trial, the Court notes that it was not explicitly invited to do so by the applicants. The thrust of the applicants’ submissions on appeal was that the trial judge had wrongly interpreted sections 17 and 18 RIPA, had wrongly admitted the probe evidence and had wrongly refused to stay the proceedings. It was in this context that the applicants sought, albeit apparently without complying with the relevant procedural requirements, the admission of additional evidence. The Court of Appeal concluded, as it was entitled to do, that the trial judge’s rulings were correct. The failure lay with the applicants for not seeking to challenge the integrity, reliability and authenticity of the probe material through one of the means which were open to them, thus allowing the domestic court to address any concerns.
172. In conclusion, and after careful examination of the parties’ submissions, the transcripts of the proceedings of 23 October 2002, the trial judge’s rulings of 25 October 2002 and 15 November 2002, the applicants’ grounds of appeal and skeleton arguments, the expert reports submitted by the applicants and the judgment of the Court of Appeal of 11 May 2006, the Court concludes that there was no challenge to the integrity, reliability or integrity of the probe recordings in the context of the trial proceedings. The above considerations lead the Court to conclude that the applicants have failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention in respect of this complaint. It must therefore be rejected as inadmissible pursuant to Article 35 § 4 of the Convention.
B. The second complaint
173. The second limb to the applicants’ Article 6 complaint was directed at the effect on the fairness of their trial of the decision of the police not to record Mr Knaggs’ movements, and in particular, at the decision to admit the probe evidence despite that failure.
1. The parties’ submissions
174. The applicants submitted that the trial judge’s conclusion that the secret instruction given to police officers not to record the results of the directed surveillance exercise was not evidence of dishonesty or a police conspiracy was wrong. They further contended that a consequence of the instruction was to prevent them from establishing facts which would have proved that the probe recordings contained audio material which could not have derived from the probe in the vehicle. This in turn would have allowed them to demonstrate that the probe had been tampered with. Accordingly their defence at trial suffered serious prejudice and unfairness as a result of the trial judge’s decision.
175. The Government emphasised that the trial judge had heard evidence from the relevant witnesses in the context of a lengthy voir dire. He had found that the police had not behaved dishonestly or deceitfully. He had further concluded that the fairness of the proceedings was not in doubt. The Government argued that was no reason to go behind the findings of the trial judge.
2. The Court’s assessment
176. At the outset, the Court emphasises that the applicants’ complaint does not concern a lack of disclosure but the admission of incriminating evidence in circumstances where the applicants’ opportunity to challenge that evidence was allegedly limited by the conduct of the police. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, BAILII: [1988] ECHR 17 , § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, BAILII: [1998] ECHR 52 , § 34, Reports 1998-IV; and Jalloh v. Germany [GC], no. 54810/00, BAILII: [2006] ECHR 721 , §§ 94-96, ECHR 2006-IX). The question which must be answered is whether the proceedings as a whole were fair and in this context, regard must be had to whether the rights of the defence were respected. It must be examined in particular whether the applicants were given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (Bykov v. Russia [GC], no. 4378/02, BAILII: [2009] ECHR 441 , § 88-90, ECHR 2009 ...).
177. The Court observes that the failure of the police to record Mr Knaggs’ movements during the directed surveillance exercise and the consequences of this failure were considered by the trial judge in his voir dire ruling. He accepted that the conduct of the police officers was open to severe censure but did not consider that it affected the admissibility of the probe material (see paragraphs 55 and 59 above). The Court of Appeal agreed that in the absence of any challenge to the reliability or integrity of the tapes, it was not unfair for the probe evidence to go before the jury as it was open to the applicants to explain that what was heard on the tapes was innocent (see paragraphs 107-108 above).
178. The Court has already found that at the time of the applicants’ trial, there was no indication that the applicants intended to challenge the authenticity or integrity of the probe evidence (see paragraph 172 above). It has further observed that the applicants could have taken steps to challenge the reliability and authenticity of the probe material (see paragraph 164 above). The Court accepts that police observations arising from the directed surveillance exercise could have assisted Mr Knaggs in demonstrating that he was not in the vehicle during certain conversations recorded on the DAT tapes. However, as noted above, no less than forty witnesses were available at the time of trial to testify on behalf of Mr Knaggs that he was not in his vehicle at the relevant times (see paragraphs 95, 108 and 164).
179. In the circumstances, the Court is satisfied that the applicants had ample opportunity to challenge the probe evidence and that the absence of observations from the directed surveillance operation did not render the admissibility of the probe evidence unfair, particularly in light of the fact that the applicants did not seek to challenge the reliability or authenticity of the probe material.
180. This complaint is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
181. The applicants also complained that the probe constituted an unjustified interference with their right to respect for private life. They relied on Article 8 of the Convention, which provides:
“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.”
A. The parties’ submissions
1. The applicants
182. The applicants accepted that the use of intrusive surveillance in the fight against trafficking in drugs and investigation of serious crime was necessary in a democratic society. However, they argued that the authorisation and use of the probe in their case was unnecessary and resulted in an infringement of their Article 8 rights. Given that the purported product of the probe had been found to be a disingenuous amalgamation of recording sources, an actual analysis of the probe product could probably not withstand legal scrutiny. Accordingly, they concluded, the probe was both authorised and deployed under false pretences, as a device upon which to disguise the disclosure of intercepted conversations. In their submission, an intrusive surveillance device which interfered with privacy rights could not be considered to be “in accordance with the law” when the actual product had been tampered with so as to inflate its evidential value in criminal proceedings.
183. The applicants contended that Mr Campbell’s reports supported the conclusion that the recordings from the probe contained intercepted telephone calls and that the telephone bill data were related communications data, within the meaning of section 20 RIPA (see paragraph 118 above). This meant that it was highly likely that when the probe was authorised, an intercept was already in place. If this was the case, then the assertions on the application for authorisation for the probe that it was necessary for the prevention or detection of serious crime and that the information could not reasonably be obtained by other means were wrong and misleading. However, the operation of section 17 RIPA meant that the question of the lawfulness of the authorisation could not be fully explored in the domestic proceedings. Given the disproportionate number of one-sided telephone conversations recorded, compared to the number of face-to-face meetings which took place in the car, the prosecution stance regarding the intended purpose of the probe was both unreasonable and unsustainable.
2. The Government
184. The Government argued that RIPA provided a careful and detailed regime governing the use of intrusive surveillance. In the applicants’ case, the Crown Court judge found that the authorisation for intrusive surveillance had been granted in accordance with the requirements of RIPA and that the use of intrusive surveillance was a necessary and proportionate response to what the police were seeking to achieve. He concluded that the authorisations were valid. That conclusion was upheld by the Court of Appeal.
185. The Government emphasised that the applicants were involved in a sophisticated operation to supply illegal Class A drugs. The evidence against them could not reasonably have been obtained by other means. There concluded that there was no basis for going behind the findings of fact made by the domestic courts.
B. The Court’s assessment
186. The Court notes at the outset that the applicants are not seeking to challenge the regime established by RIPA for the authorisation of intrusive surveillance (compare and contrast Kennedy v. the United Kingdom, no. 26839/05, BAILII: [2010] ECHR 682, ECHR 2010 ..., concerning the interception regime established under RIPA). However, they challenged the lawfulness and necessity of the authorisation of the probe in their case.
187. As regards the applicants’ complaint that the probe was not lawful because it had been tampered with, the Court recalls its finding above that the applicants failed to argue in the context of the domestic proceedings that the DAT tapes had been unlawfully manipulated (see paragraph 172 above). They have therefore failed to exhaust domestic remedies as regards this aspect of their Article 8 complaint, which is accordingly rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
188. Regarding the general complaint as to the lawfulness of the authorisation of the probe, the Court observes that the trial judge examined in detail the applicants’ arguments in the context of the voir dire (see paragraphs 47-60 above). He heard from the police officers involved in making the application for intrusive surveillance and from the Director General, who was responsible for authorising it (see paragraphs 43-46 above). It is clear from the judge’s ruling that at the time that use of the probe was authorised, there were grounds for suspecting Mr Knaggs’ involvement in the commission of a serious crime (see paragraphs 51-52 above). The judge also distinguished between information and hard evidence, observing that the two were quite different and emphasising that intrusive surveillance was required in order to collect evidence against Mr Knaggs capable of leading to a conviction (see paragraphs 53-54 above). The judge was further satisfied that, while certain police officers had acted in a manner which was open to serious criticism, there was no dishonesty or deceit by the police in making the application for authority to carry out intrusive surveillance (see paragraph 55-59 above). He concluded that the authorisation of the probe was lawful. The Court sees no reason to question the factual findings of the domestic court or its conclusion that the authorisation of the probe was in accordance with the provisions of RIPA. In the circumstances, the Court concludes that the authorisation for the probe was “in accordance with the law”.
189. As to the aim of the probe, the Court reiterates that Mr Knaggs was suspected of being involved in a conspiracy to supply Class A drugs. The applicants accepted that in the fight against trafficking in drugs and investigation of serious crime, intrusive surveillance could be justified (see paragraph 182 above). The Court considers that application for and authorisation of the probe clearly pursued the legitimate aim of “prevention of disorder or crime”.
190. The Court is further satisfied that the authorisation of the probe in the applicants’ case was necessary, within the meaning of Article 8 § 2 of the Convention. The fact that directed surveillance was in place did not render the probe unnecessary, given that the police were seeking to obtain evidence against Mr Knaggs and that their efforts to do so using only directed surveillance had failed to produce any evidence capable of leading to his conviction (see paragraph 51-54 above). For the same reason, the Court considers that the existence of any intercept, intended to capture intelligence to allow police officers effectively to investigate and prevent illegal drug activity, rather than to provide admissible evidence against the applicants, would not have rendered the probe unnecessary.
191. The applicants’ complaint under Article 8 is accordingly manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
192. Under Article 13, the applicants complained that they were denied an effective remedy in respect of the alleged violations of their rights under Articles 6 and 8 of the Convention.
193. The Court reiterates that Article 13 of the Convention guarantees the availability at national level of a remedy where there is an “arguable claim” of a violation of a substantive Convention provision (see Boyle and Rice v. the United Kingdom, 27 April 1988, BAILII: [1988] ECHR 3 , § 52, Series A no. 131; Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, BAILII: [2007] ECHR 314 , § 80, ECHR 2007 IV; and Çakır and Others v. Cyprus (dec.), no. 7864/06, BAILII: [2010] ECHR 742 , 29 April 2010). In so far as the applicants’ complaint under Article 8 of the Convention has been found by the Court to be manifestly ill-founded, no arguable claim arises under Article 8. Accordingly, Article 13 does not apply to that complaint.
194. Having regard to its finding in respect of the applicants’ complaints under Article 6 § 1 and Article 8 above to the effect that the applicants had failed to exhaust domestic remedies, the Court concludes that an effective remedy was available to the applicants. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
195. Following communication of the applications the applicants alleged that the Government had hindered the effective exercise of their right to petition the Court. They relied on Article 34 of the Convention, which reads as follows:
“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
A. The parties’ submissions
1. The applicants
196. The applicants complained about the search of Mr Knaggs’ cell and indicated that they intended to commence legal proceedings against SOCA in respect of the removal of the legal correspondence. They emphasised the importance of legal professional privilege and submitted that the breach of confidentiality was extremely significant. They claimed that not all of the documentation which was subject to legal professional privilege had been returned to Mr Knaggs and that as a result the prosecuting authorities were at an advantage. They highlighted that the deadline for their submissions in the written procedure before the Court was the end of November 2009 and that the removal of the first applicant’s documents at a time when the response was being prepared constituted a serious hindrance to their effective exercise of their right to submit a case to the Court. They complained that they were still missing documentation which would have been of assistance to them and to the Court, citing by way of example supporting documentary evidence capable of corroborating their substantive claims in response to the Government.
2. The Government
197. The Government denied that there had been a violation of Article 34 of the Convention. They argued that the search of the cell was reasonable in the circumstances and confirmed that no material subject to legal professional privilege, nor any disputed material, had been seen by prosecuting authorities. Material clearly subject to legal professional privilege had been returned to Mr Knaggs.
198. The Government noted that the applicants had not particularised the missing material which would have been capable of corroborating their substantive claims in the present proceedings. They had also failed to explain why such corroborating material was not available to Mr Khachik, whose cell was not searched. Finally, they pointed out that the applicants had not suggested that they had been inhibited in preparing their observations, which ran to over one hundred pages and were accompanied by annexes running to several hundred pages.
B. The Court’s assessment
199. The Court has consistently reiterated that Article 34 is one of the fundamental guarantees of the effectiveness of the Convention system of human rights protection. In interpreting such a key provision, the Court must have regard to the special character of the Convention as a treaty for the collective enforcement of human rights and fundamental freedoms. Unlike international treaties of the classic kind, the Convention comprises more than mere reciprocal engagements between Contracting States. It creates, over and above a network of mutual, bilateral undertakings, objective obligations which, in the words of the Preamble, benefit from a “collective enforcement” (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, BAILII: [2005] ECHR 64 , § 100, ECHR 2005 I; and Paladi v. Moldova [GC], no. 39806/05, BAILII: [2009] ECHR 450 , § 84, ECHR 2009 ...)
200. The undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual’s right to present and pursue his complaint before the Court effectively. The obligation set out in Article 34 in fine requires the Contracting States to refrain not only from exerting pressure on applicants, but also from any act or omission which, by destroying or removing the subject matter of an application, would make it pointless or otherwise prevent the Court from considering it under its normal procedure (see Mamatkulov and Askarov, cited above § 102; Paladi, cited above, § 87). The Court is also of the view that Article 34 may be engaged where acts of the authorities of the Contracting State restrict or otherwise hinder the ability of an applicant to present his case in compliance with the procedures and within the deadlines fixed by the Court.
201. The question therefore arises whether the actions of SOCA and the removal of Mr Knaggs’ papers on 11 November 2009 restricted or otherwise hindered the applicants’ ability to present their case. In this regard, the Court notes that the entry into Mr Knaggs’ cell and the removal of material it contained was carried out because there existed a reasonable suspicion that Mr Knaggs was involved in further criminal activity (see paragraph 110 above). In these circumstances, the Court is satisfied that the conduct of the authorities was not intended to hinder the applicants’ right to present their case to the Court.
202. According to the case file, the Government’s written observations on the admissibility and merits of the applicants’ complaints were sent to the applicants’ solicitors on 14 October 2009 and were received by them on 23 October 2009. Appendices were subsequently sent on 23 October 2009. The deadline for the applicants’ submission of their response to the Government’s observations was fixed by the Court at 26 November 2009, some five weeks after the applicants’ solicitors had received the Government’s observations.
203. Almost three weeks after the Government’s written observations had been received by the applicants’ solicitors, and with only two weeks left before the deadline for submission of the applicants’ written observations, Mr Knaggs’ cell was searched and all material was removed. By letter dated 17 November 2009, the applicants’ solicitors informed the Court that relevant papers had been removed from Mr Knaggs’ cell. On 19 November 2009, they requested a two-month extension of the deadline for submission of the applicants’ observations on the basis that they could not instruct counsel to prepare the applicants’ response until the papers were available. The Court observes that the letter of 19 November 2009 appeared to imply that by that date, which was one week before the expiry of the deadline fixed by the Court, counsel had not yet been instructed to prepare a response to the Government’s observations. In the event an extension until 26 January 2010 was granted. By letter dated 22 January 2010, a further one-week extension was requested by the applicants as the demand for return of the papers had apparently not met with a satisfactory response from SOCA, in that not all material had been returned. The Court extended the deadline to 2 February 2010. No further extension of the deadline was requested.
204. The Court notes that the purpose of the opportunity afforded to applicants to make written comments on the admissibility and merits of the application is to allow them to respond to the Government’s comments on their complaints and to submit any further documents which appear, in light of those comments, to be necessary. When lodging their application with the Court, the applicants in the present case had already extensively set out their complaints and had submitted a number of documents. It is clear from the above consideration of the chronology of the case that, prior to the search of Mr Knaggs’ cell, the applicants had already had three weeks in which to prepare their response and gather together any documents required. They were subsequently granted a significant extension in order to address their concerns that the cell search and removal of documents had disrupted the preparation of their response. In the event, they submitted extensive written observations together with supporting documentation, including extracts of expert reports and copies of appeal documents. The Court observes in this regard that the applicants have not provided any details of the particular documents which they allege would have supported their substantive allegations and which were not returned to them. Nor have they explained why such documents were in the hands of Mr Knaggs only and why they had not been provided to his solicitors well in advance of the search of his cell.
205. In light of the above considerations, the Court is of the view that the search of Mr Knaggs’ cell and the removal of documents did not hinder the effective exercise of the applicants’ right of application. It therefore concludes that the applicants’ complaint under Article 34 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
Lawrence Early Lech Garlicki
Registrar President