EUROPEAN COURT OF HUMAN RIGHTS

663
25.9.2001

Press release issued by the Registrar

CHAMBER JUDGMENT IN THE CASE OF P.G. AND J.H.

v. THE UNITED KINGDOM

In a judgment1 notified in writing in the case of P.G. and J.H. v. the United Kingdom (no.
44787/98), the European Court of Human Rights held:

 unanimously that there had been a violation of Article 8 (right to respect for private life)
of the European Convention on Human Rights concerning the use of a covert listening
device at a flat;
 unanimously that there had been no violation of Article 8 concerning obtaining
information about the use of a telephone;
 unanimously that there had been a violation of Article 8 concerning the use of covert
listening devices at a police station;
 unanimously that there had been no violation of Article 6 § 1 (right to a fair hearing)
concerning the non-disclosure of part of a report to the applicants at trial or the hearing of
evidence from a police officer in the absence of the applicants or their lawyers;
 by six votes to one that there had been no violation of Article 6 § 1 concerning the use at
trial of the materials obtained by the covert listening devices;
 unanimously that there had been a violation of Article 13 (right to an effective remedy)
concerning the use of covert listening devices.

Under Article 41 (just satisfaction) of the Convention, the Court awarded each applicant
1,000 pounds sterling (GBP) for non-pecuniary damage and a total of GBP 12,000 for costs
and expenses. (The judgment is available only in English)

1. Principal facts

The applicants are both British nationals.

On 28 February 1995, D.I. Mann received information that an armed robbery of a Securicor
cash collection van was going to be committed on or around 2 March 1995 by the first
applicant and B. at one of several possible locations. Visual surveillance of B.’s home began
the same day. No robbery took place.

1 Under Article 43 of the European Convention on Human Rights, within three months from the date of a

Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the
17-member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises
a serious question affecting the interpretation or application of the Convention or its Protocols, or a serious issue
of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or
issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber
judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not
intend to make a request to refer.
 -2-

By 3 March, however, the police had been informed the robbery was to take place Comment [Note1]: Titles to be
‘somewhere’ on 9 March 1995. In order to obtain further details, D.I. Mann prepared a report added in appropriate place. Line returns –
applying for authorisation to install a covert listening device in B.’s flat. On 4 March 1995, and not paragraph returns – should be used
the Chief Constable gave oral authorisation and a listening device was installed in a sofa in (Shift+Enter).
B.’s flat the same day; the Deputy Chief Constable gave retrospective written authorisation
on 8 March 1995. On 14 March 1995, the police requested itemised billing for calls from the
telephone in B.’s flat. On 15 March 1995, B. and others who were with him in his home
discovered the listening device and abandoned the premises. The robbery did not take place.

The applicants were arrested on 16 March 1995 in a stolen car containing two black
balaclavas, five black plastic cable ties, two pairs of leather gloves, and two army kitbags.

As they wished to obtain speech samples to compare with the tapes, the police applied for
authorisation to use covert listening devices in the applicants’ cells and to attach listening
devices to the police officers who were to be present when the applicants were charged.
Written authorisation was given by the Chief Constable and samples of the applicants’ speech
were recorded without their knowledge or permission. An expert concluded it was ‘likely’ the
first applicant’s voice featured on the taped recordings and ‘very likely’ the second
applicant’s voice featured on them.

B. and the applicants were charged with conspiracy to rob. During their trial, evidence
derived from the use of the covert listening devices was deemed admissible and some
documents, including parts of D.I. Mann’s report, were withheld from the applicants and their
lawyers. Oral evidence was also taken from D.I. Mann in the absence of the applicants or
their lawyers. The applicants were convicted on 9 August 1996 of conspiracy to rob and
sentenced to 15 years’ imprisonment. Their application to the Court of Appeal for leave to
appeal was rejected.

2. Procedure and composition of the Court

The application was lodged with the European Commission of Human Rights on 7 May
1997. The case was transmitted to the European Court of Human Rights on 1 November 1998
and declared admissible on 24 October 2000.

Judgment was given by a Chamber of seven judges, composed as follows:

Jean-Paul Costa (French), President,

Willi Fuhrmann (Austrian),
Pranas Kūris (Lithuanian),
Françoise Tulkens (Belgian),
Karel Jungwiert (Czech),
Nicolas Bratza (British),
Kristaq Traja (Albanian),judges,

and also Sally Dollé, Section Registrar.

Judge Tulkens expressed a dissenting opinion, which is annexed to the judgment.

3. Summary of the judgment1
 -3-

Complaints

The applicants complained, relying on Article 8, about the use of covert listening devices to
monitor and record their conversations at B’s flat, the monitoring of calls from B’s telephone
and the use of listening devices to obtain voice samples while they were at the police station.

Relying on Article 6 § 1, they complained that part of the evidence relating to the
authorisation of a listening device was not disclosed to the defence during the trial, that part
of the police officer’s oral evidence was heard by the judge alone and that information
obtained from the listening device at B’s flat and the voice samples were used in evidence at
their trial. They also relied on Article 13.

Decision of the Court

Article 8

Use of a covert listening device at B.’s flat

Noting that the UK Government had conceded that the police surveillance of B’s flat was not
in accordance with the law existing at the time in question, the Court held that there had been
a violation of Article 8.

Obtaining information about the use of B.’s telephone

Observing that the information about the use of B.’s telephone was obtained and used in the
context of an investigation and trial concerning a suspected conspiracy to commit armed
robberies, the Court found that the measure was necessary in a democratic society. There had
therefore been no violation of Article 8.

Use of covert listening devices at the police station

Noting that, at the relevant time, there existed no statutory system to regulate the use of
covert listening devices by the police on their own premises, the Court found the interference
with the applicants’ right to a private life was not in accordance with the law. There had
therefore been a violation of Article 8.

Article 6 § 1

Non-disclosure of evidence during the trial

The Court was satisfied that the defence were kept informed and permitted to make
submissions and participate in the decision-making process as far as was possible without
revealing to them the material which the prosecution sought to keep secret on public interest
grounds. The questions which the defence counsel had wished to put to the witness D.I. Mann
were asked by the judge in chambers. The Court also noted that the material which was not
disclosed in the present case formed no part of the prosecution case whatever, and was never
put to the jury. The fact that the need for disclosure was at all times under assessment by the
trial judge provided a further, important safeguard in that it was his duty to monitor
throughout the trial the fairness or otherwise of the evidence being withheld.

1. This summary by the Registry does not bind the Court.

 -4-

In conclusion, therefore, the Court found that, as far as possible, the decision-making
procedure complied with the requirements of adversarial proceedings and equality of arms
and incorporated adequate safeguards to protect the interests of the accused. It followed that
there had been no violation of Article 6 § 1.

Use of taped evidence obtained by covert surveillance devices

The Court observed that the taped evidence at the trial was not the only evidence against the
applicants. Furthermore, they had had ample opportunity to challenge both the authenticity
and the use of the recordings. It was also clear that, had the domestic courts been of the view
that the admission of the evidence would have given rise to substantive unfairness, they
would have had a discretion to exclude it. The Court further considered that there was no
unfairness in leaving it to the jury, on the basis of a thorough summing-up by the judge, to
decide where the weight of the evidence lay.

Insofar as the applicants complained that the way in which the voice samples were obtained
infringed their right not to incriminate themselves, the Court considered that the voice
samples, which did not include any incriminating statements, might be regarded as akin to
blood, hair or other physical or objective specimens used in forensic analysis, to which the
right did not apply. There had therefore been no violation of Article 6 § 1.

Article 13

The Court observed that the domestic courts were not capable of providing a remedy because
it was not open to them either to deal with the complaint that the interference with the
applicants’ right to respect for their private lives was not in accordance with the law or to
grant appropriate relief in connection with the complaint.

The Court further found that the system of investigation of complaints did not meet the
standards of independence necessary to constitute sufficient protection against the abuse of
authority and to provide an effective remedy within the meaning of Article 13. There had
therefore been a violation of Article 13.

***
The Court’s judgments are accessible on its Internet site (http://www.echr.coe.int).

Registry of the European Court of Human Rights

F – 67075 Strasbourg Cedex
Contacts: Roderick Liddell (telephone: (0)3 88 41 24 92)
Emma Hellyer (telephone: (0)3 90 21 42 15)
Fax: (0)3 88 41 27 91

The European Court of Human Rights was set up in Strasbourg in 1959 to deal with
alleged violations of the 1950 European Convention on Human Rights. On 1 November 1998
a full-time Court was established, replacing the original two-tier system of a part-time
Commission and Court.