Interception of communications, phone tapping and secret surveillance
II. RELEVANT DOMESTIC LAW AND PRACTICE 14. By section 1 (1) of the 1985 Act, anyone who intentionally intercepts a communication in the course of its transmission by means of a public communications system is guilty of a criminal offence, unless the interception is carried out pursuant to a warrant issued in compliance with the Act. 15. At the time of the applicant’s trial there was no provision in British law governing the interception of communications on a private system. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 16. The applicant complained that the interception by the police of messages on his pager violated 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.” He submitted that the police action amounted to an interference with his private life and correspondence, which was not “in accordance with the law” or “necessary in a democratic society”. 17. The Government conceded that the interception by the police of messages sent to the applicant’s pager was inconsistent with Article 8 in that it was not “in accordance with the law”, although they added that this should not be taken as a concession that the action was not justified in the circumstances. 18. The Court notes that it is not disputed that the surveillance carried out by the police in the present case amounted to an interference with the applicant’s rights under Article 8 § 1 of the Convention. It recalls that the phrase “in accordance with the law” not only requires compliance with domestic law but also relates to the quality of that law, requiring it to be compatible with the rule of law. In the context of covert surveillance by public authorities, in this instance the police, domestic law must provide protection against arbitrary interference with an individual’s right under Article 8. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to such covert measures (see Khan v. the United Kingdom, no. 35394/97, § 26, ECHR 2000-V). 19. At the time of the events in the present case there existed no statutory system to regulate the interception of pager messages transmitted via a private telecommunication system. It follows, as indeed the Government have accepted, that the interference was not “in accordance with the law”. There has, accordingly, been a violation of Article 8. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 20. The applicant also contended there was no remedy available to him at national level in respect of his Article 8 complaint, contrary to Article 13, which provides: “Everyone whose rights and freedoms as set forth in [this] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” He relied on the above-mentioned Khan judgment as authority for the position that section 78 of the Police and Criminal Evidence Act 1985 (“PACE”), which allows the trial judge to exclude evidence in certain circumstances, could not provide an effective remedy to deal with all aspects of his complaint about unlawful surveillance. 21. The Government alleged that there had been no violation of the applicant’s Article 13 rights, submitting that under section 78 of PACE the judge could have regard to Article 8 of the Convention when exercising his discretion to exclude evidence from trial proceedings. However, it did not appear that the applicant had ever submitted during his trial that the intercepted messages should be excluded from the evidence under section 78 on the basis that they had been obtained in breach of Article 8, and added that in the circumstances it cannot be said that such a submission would necessarily have failed. In this way, the Government claimed that the present case was distinguishable from the above-mentioned Khan case. 22. The Court recalls that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the competent national authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, without, however, requiring incorporation of the Convention (see the above-mentioned Khan judgment, § 44). 23. The Court recalls its finding in the Khan judgment that, in circumstances similar to those of the applicant, the courts in the criminal proceedings were not capable of providing a remedy because, although they could consider questions of the fairness of admitting the evidence in the criminal proceedings, it was not open to them to deal with the substance of the Convention complaint that the interference with the applicant’s right to respect for his private life was not “in accordance with the law”; still less was it open to them to grant appropriate relief in connection with the complaint (ibid.). 24. It does not appear that there was any other effective remedy available to the applicant for his Convention complaint, and it follows that there has been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 25. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Non-pecuniary damage 26. The applicant claimed non-pecuniary damage for the invasion of his privacy. He drew attention to the facts that the interceptions took place over a long period of time (August 1995-January 1996) and were indiscriminate, in that every message on his pager was copied. He pointed out, furthermore, that since the Malone v. the United Kingdom judgment of 2 August 1984 (Series A no. 95), the Government had been aware of the need to regulate covert surveillance by the police. 27. The Government submitted that a finding of violation would constitute ample just satisfaction, since there was no evidence to suggest that, had proper procedures been in place at the relevant time, as they now were, the interceptions in question would not have been authorised. 28. The Court recalls that the violations it has found in this case relate to the fact that the interceptions by the police were not properly controlled by law. It considers that the findings of violation constitute sufficient just satisfaction for any non-pecuniary loss caused to the applicant by this failure. B. Costs and expenses 29. The applicant claimed legal costs and expenses as follows: GBP 918.00, exclusive of value added tax (“VAT”), for his solicitors, and the fees of two counsel, amounting to GBP 2,680.00 and GBP 3348.20, both exclusive of VAT. 30. The Government considered that the sums claimed were excessive, given that the application had not progressed beyond the written stage, that the Article 6 § 1 complaint was declared inadmissible on 27 June 2000 and that the Article 8 complaint did not raise any new issues not already established in the Court’s case-law. The Government questioned whether it had been necessary to have engaged both leading and junior counsel to work on the case in addition to a solicitor, and whether it had been necessary for both barristers and the solicitor to visit the applicant in prison at a total cost of nearly GBP 4,700.00. The Government suggested that GBP 1,500, plus VAT, would be a reasonable sum. 31. The Court recalls that it will award legal costs and expenses only if satisfied that these were necessarily incurred and reasonable as to quantum. It agrees with the Government that this was a straightforward case, raising virtually identical issues to the above-mentioned Khan judgment. It awards EUR 4,800 in respect of costs and expenses, plus any VAT that may be payable. C. Default interest 32. The Court considers that the default interest should be fixed at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
The Court held there had been a violation of Article 8 of the Convention. Noting in particular that, at the time of the events in question, there was no statutory system to regulate the interception of pager messages transmitted via a private telecommunication system, it found, as the UK Government had accepted, that the interference was not in accordance with the law.