CASE OF HALFORD v. THE UNITED KINGDOM
Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
C. Russo;John Freeland
8. The applicant, Ms Alison Halford, was born in 1940 and lives in the Wirral. From 1962 until her retirement in 1992 she worked in the police service. 9. In May 1983 Ms Halford was appointed to the rank of Assistant Chief Constable with the Merseyside police. As such she became the most senior-ranking female police officer in the United Kingdom. 10. On eight occasions during the following seven years, Ms Halford applied unsuccessfully to be appointed to the rank of Deputy Chief Constable, in response to vacancies arising within Merseyside and other police authorities. In order to be considered for promotion to this rank, Home Office approval was required. However, according to the applicant, this was consistently withheld on the recommendation of the Chief Constable of the Merseyside police, who objected to her commitment to equality of treatment between men and women. 11. Following a further refusal to promote her in February 1990, Ms Halford commenced proceedings on 4 June 1990 in the Industrial Tribunal against, inter alia, the Chief Constable of Merseyside and the Home Secretary, claiming that she had been discriminated against on grounds of sex. On 14 June 1990, the Chairman and Vice-Chairman of the Merseyside Police Authority were designated a "Special Committee" to handle the issues arising from the discrimination case. 12. Ms Halford alleges that certain members of the Merseyside Police Authority launched a "campaign" against her in response to her complaint to the Industrial Tribunal. This took the form, inter alia, of leaks to the press, interception of her telephone calls (see paragraph 16 below) and the decision to bring disciplinary proceedings against her. 13. Thus, on 14 September 1990, the Special Committee referred to the Senior Officers’ Disciplinary Committee a report written by the Chief Constable about an alleged incident of misconduct on the part of Ms Halford on 24 July 1990. The Disciplinary Committee resolved, on 20 September 1990, to hold a formal investigation and to refer the matter to the Police Complaints Authority and, on 8 February 1991, to press charges. Ms Halford was suspended from duty on full pay from 12 December 1990. 14. She challenged the above decisions by way of judicial review in the High Court. The matter was adjourned by Mr Justice MacPherson in September 1991 in view of a possible settlement. However, the parties failed to reach agreement and the matter came back before him on 20 December 1991. He found that the Chairman and Vice-Chairman of the Police Authority had acted ultra vires and, without imputing ill-motive to them, held that there had been an element of unfairness. He therefore quashed the relevant decisions. 15. The hearing before the Industrial Tribunal took place in June 1992. On 14 July 1992 the proceedings were adjourned pending negotiation between the parties, which led to settlement of the case. Ms Halford was given an ex gratia payment of 10,000 pounds sterling (GBP) by the Chief Constable (the statutory maximum which the Industrial Tribunal could have awarded), together with GBP 5,000 towards her personal expenses by the Home Secretary. It was agreed that she would retire from the police force on medical grounds (arising out of an injury to her knee in 1989). In addition, the Home Office agreed to implement various proposals put by the Equal Opportunities Commission, inter alia to update and review selection procedures for senior posts within the police force. 16. As Assistant Chief Constable, Ms Halford was provided with her own office and two telephones, one of which was for private use. These telephones were part of the Merseyside police internal telephone network, a telecommunications system outside the public network. No restrictions were placed on the use of these telephones and no guidance was given to her, save for an assurance which she sought and received from the Chief Constable shortly after she instituted the proceedings in the Industrial Tribunal that she had authorisation to attend to the case while on duty, including by telephone. In addition, since she was frequently "on call", a substantial part of her home telephone costs were paid by the Merseyside police. Her home telephone consisted of a telephone apparatus connected, through the "network termination point", to the public telecommunications network. 17. She alleges that calls made from her home and her office telephones were intercepted for the purposes of obtaining information to use against her in the discrimination proceedings. In support of these allegations she adduced various items of evidence before the Commission (see paragraph 21 of the Commission’s report). In addition, she informed the Court that she was told by an anonymous source on 16 April 1991 that, shortly before, the source had discovered the Merseyside police checking transcripts of conversations made on her home telephone. For the purposes of the case before the Court, the Government accepted that the applicant had adduced sufficient material to establish a reasonable likelihood that calls made from her office telephones were intercepted. They did not, however, accept that she had adduced sufficient material to establish such a reasonable likelihood in relation to her home telephone. 18. Ms Halford raised her concerns about the interception of her calls before the Industrial Tribunal on 17 June 1992. On 2 July 1992, in the course of the hearing, counsel for the Home Secretary expressed the opinion that it was not possible for her to adduce evidence about the alleged interceptions before the Industrial Tribunal because section 9 of the Interception of Communications Act 1985 ("the 1985 Act") expressly excluded the calling of evidence before any court or tribunal which tended to suggest that an offence under section 1 of the Act had been committed (see paragraph 25 below). 19. On 6 December 1991 Ms Halford applied to the Interception of Communications Tribunal ("the Tribunal") for an investigation under section 7 of the 1985 Act (see paragraphs 30-32 below). In a letter dated 21 February 1992, the Tribunal informed her that its investigation had satisfied it that there had been no contravention of sections 2 to 5 of the 1985 Act in her case (see paragraphs 26-29 below). In a letter dated 27 March 1992, the Tribunal confirmed that it could not specify whether any interception had in fact taken place (see paragraph 32 below). 20. In a letter to Mr David Alton MP dated 4 August 1992, the Home Secretary explained that Ms Halford’s complaint regarding the interception of calls made from her office telephones "[did] not fall within [his] responsibilities as Home Secretary nor within the terms of the [1985] Act". 21. The Interception of Communications Act 1985 came into force on 10 April 1986 following the Court’s judgment in Malone v. the United Kingdom (2 August 1984, Series A no. 82). Its objective, as outlined in the Home Office White Paper which preceded it, was to provide a clear statutory framework within which the interception of communications on public systems would be authorised and controlled in a manner commanding public confidence (Interception of Communications in the United Kingdom (February 1985) HMSO, Cmnd. 9438). 22. A "public" telecommunications system is defined as a telecommunications system which is run pursuant to a licence granted under the Telecommunications Act 1984 ("the 1984 Act") and which has been designated as such by the Secretary of State (section 10 (1) of the 1985 Act, by reference to section 4 (1) of the 1984 Act). 23. 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. 24. Section 1 (2) and (3) provide four circumstances in which a person who intercepts communications in this way will not be guilty of the offence. The only one of these which is relevant to the present case is the interception of a communication pursuant to a warrant issued by the Secretary of State under section 2 of the Act (see paragraph 26 below). 25. Section 9 of the 1985 Act provides that no evidence shall be adduced by any party, in any proceedings before a court or tribunal, which tends to suggest either that an offence under section 1 of the 1985 Act has been committed by a public servant or that a warrant has been issued to such a person under section 2 of the 1985 Act. 26. Sections 2 to 6 of the 1985 Act set out detailed rules for the issuing of warrants by the Secretary of State for the interception of communications and the disclosure of intercepted material. Thus, section 2 (2) of the 1985 Act provides: "The Secretary of State shall not issue a warrant ... unless he considers that the warrant is necessary – (a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) for the purposes of safeguarding the economic well-being of the United Kingdom." When considering whether it is necessary to issue a warrant, the Secretary of State must take into account whether the information which it is considered necessary to acquire could reasonably be acquired by other means (section 2 (2) of the 1985 Act). 27. The warrant must specify the person who is authorised to do the interception, and give particulars of the communications to be intercepted, such as the premises from which the communications will be made and the names of the individuals concerned (sections 2 (1) and 3 of the 1985 Act). 28. A warrant cannot be issued unless it is under the hand of the Secretary of State himself or, in an urgent case, under the hand of a senior official where the Secretary of State has expressly authorised the issue of the warrant. A warrant issued under the hand of the Secretary of State is valid for two months; one issued under the hand of an official is only valid for two working days. In defined circumstances, warrants may be modified or renewed (sections 4 and 5 of the 1985 Act). 29. Section 6 of the Act provides, inter alia, for the limitation of the extent to which material obtained pursuant to a warrant may be disclosed, copied and retained. 30. The 1985 Act also provided for the establishment of an Interception of Communications Tribunal. The Tribunal consists of five members, each of whom must be a lawyer of not less than ten years’ standing, who hold office for five years subject to reappointment (section 7 of and Schedule 1 to the 1985 Act). 31. Any person who believes, inter alia, that communications made by or to him may have been intercepted in the course of their transmission by means of a public telecommunications system can apply to the Tribunal for an investigation. If the application does not appear to the Tribunal to be frivolous or vexatious, it is under a duty to determine whether a warrant has been issued, and if so, whether it was issued in accordance with the 1985 Act. In making this determination, the Tribunal applies "the principles applicable by a court on application for judicial review" (section 7 (2)-(4) of the 1985 Act). 32. If the Tribunal determines that there has been no breach of the 1985 Act, it will inform the complainant, but it will not confirm whether there was no breach because there was no authorised interception or because, although there was such an interception, it was justified under the terms of the 1985 Act. In cases where the Tribunal finds there has been a breach, it has a duty to make a report of its findings to the Prime Minister and a power to notify the complainant. It also has the power, inter alia, to order the quashing of the warrant and the payment of compensation to the complainant. The Tribunal does not give reasons for its decisions and there is no appeal from a decision of the Tribunal (section 7 (7)-(8) of the 1985 Act). 33. The 1985 Act also makes provision for the appointment of a Commissioner by the Prime Minister. The first Commissioner was Lord Justice Lloyd (now Lord Lloyd), succeeded in 1992 by Lord Bingham, also a senior member of the judiciary, who was in turn succeeded in 1994 by another, Lord Nolan. 34. The Commissioner’s functions include reviewing the carrying out by the Secretary of State of the functions conferred on him by sections 2 to 5 of the 1985 Act, reporting to the Prime Minister breaches of sections 2 to 5 of the 1985 Act which have not been reported by the Tribunal and making an annual report to the Prime Minister on the exercise of his functions. This report must be laid before Parliament, although the Prime Minister has the power to exclude any matter from it the publication of which would be prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report must state if any matter has been excluded (section 8 of the 1985 Act). 35. In general,the reports of the Commissioner to the Prime Minister have indicated an increase in new warrants issued, but the Commissioner has been satisfied that in all cases those new warrants were justified under section 2 of the 1985 Act. 36. The 1985 Act does not apply to telecommunications systems outside the public network, such as the internal system at Merseyside police headquarters, and there is no other legislation to regulate the interception of communications on such systems. 37. The English common law provides no remedy against interception of communications, since it "places no general constraints upon invasions of privacy as such" (Mr Justice Sedley in R. v. Broadcasting Complaints Commission, ex parte Barclay, 4 October 1996, unreported).