CASE OF HEWITSON v. THE UNITED KINGDOM
Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings
Matti Pellonpää;Nicolas Bratza
7. The applicant was born in 1948 and is currently serving a sentence of imprisonment in HMP Verne. 8. The applicant owned a garage in Dorset and had business connections in Spain. He had two Mercedes cars each of which had a false compartment in the fuel tank. The false compartments could hold up to 45 kilograms of cannabis resin. From 1994 he was suspected by the police of being involved in drug trafficking. The police also suspected him of being involved in the handling of stolen goods, including stolen vehicles. 9. On 22 February 1995 he was arrested by the Dorset police in relation to their suspicions of his handling stolen goods. Whilst he was in custody, a listening device was installed at his garage premises which remained there and active until 26 July 1995 when it was discovered. 10. On 30 December 1996 an indictment was signed charging the applicant with conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. The prosecution evidence against the applicant relied on tape recordings made from the listening device which had been installed by the police at the applicant’s garage premises. It was acknowledged by the prosecution that without the evidence from the tapes, there was no prima facie case against the applicant. 11. The applicant objected to the admission of the tape recordings as evidence in his trial. He argued inter alia that the original grant of authority and the renewal of authority for the placement of the listening device were not in compliance with the Home Office Guidelines, which governed the use of surveillance equipment by the police at the relevant time. He submitted that his prosecution ought to be stayed as an abuse of the process of the court, alternatively the tape evidence should be excluded under section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). 12. A preliminary hearing was held on the matter of the admissibility of the tape recordings. His Honour Judge Pryor QC held on 8 July 1997 that he was satisfied that the original authority for the use of the surveillance equipment was properly granted and that there were proper grounds for renewal, though he made some criticism of the lack of documentation on the renewals and noted that there had been a technical infringement in that one renewal took place a day late. The judge concluded that the tapes were admissible as evidence and should not be excluded under section 78 of PACE. 13. Following the admission of the tapes as evidence, the applicant pleaded guilty to the charges of conspiracy to import controlled drugs and conspiracy to supply controlled drugs, namely cannabis. On 5 September 1997 he was sentenced to five years’ imprisonment. 14. The applicant was granted leave to appeal against his conviction. On 24 September 1997, the Court of Appeal held that in the light of the applicant’s pleas of guilty his convictions could not be regarded as “unsafe” and rejected his appeal. 15. Guidelines on the use of equipment in police surveillance operations (The Home Office Guidelines of 1984) provided that only chief constables or assistant chief constables were entitled to give authority for the use of such devices. The Guidelines were available in the library of the House of Commons and were disclosed by the Home Office on application. 16. In each case, the authorising officer had to satisfy himself that the following criteria were met: a) the investigation concerned serious crime; b) normal methods of investigation must have been tried and failed, or must from the nature of things, have been unlikely to succeed if tried; c) there was good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism; d) the use of equipment was operationally feasible. The authorising officer had also to satisfy himself that the degree of intrusion into the privacy of those affected by the surveillance was commensurate with the seriousness of the offence. 17. The 1997 Act provides a statutory basis for the authorisation of police surveillance operations involving interference with property or wireless telegraphy. The relevant sections relating to the authorisation of surveillance operations, including the procedures to be adopted in the authorisation process, entered into force on 22 February 1998. 18. Since 25 September 2000, these controls have been augmented by Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA”). In particular, covert surveillance in a police cell is now governed by sections 26(3) and 48(1) of RIPA. RIPA also establishes a statutory Investigatory Powers Tribunal to deal with complaints about intrusive surveillance and the use of informants by the police.