JORDAN v. THE UNITED KINGDOM
Inadmissible
Josep Casadevall;Nicolas Bratza
The applicant, John Colin Campbell Jordan, is a United Kingdom national, who was born in 1923 and lives in Harrogate. The respondent Government are represented by Mr John Grainger of the Foreign and Commenwealth Office, London. The facts of the case, as submitted by the parties, may be summarised as follows. On 27 July 1998, a search warrant was issued against the applicant under Section 24(1) of the Public Order Act 1986 in connection with an investigation into suspected offences involving the possession and distribution of racially inflammatory material. A large number of items of property, including papers, were seized in the course of a search at the applicant's home on 4 August 1998. An application by the applicant for permission to apply for judicial review of the decision to retain and sift through the documents was refused by a High Court judge as the judge considered that the police had acted both reasonably and lawfully in seizing and retaining the material for their investigation. A renewed application was dismissed by the High Court on 1 November 1999. On 19 April 2000 the applicant was charged with offences under the Public Order Act 1986, and on 2 November 2000 he was committed to stand trial. The applicant was charged together with another man, H. The applicant applied for a stay of the proceedings on the ground that he was too ill to stand trial. The stay was granted by the Crown Court on 23 November 2001. After hearing the prosecution, the applicant and the medical evidence, the judge stated: “... It is obvious that Mr Jordan is not fit to conduct his own defence as is his right .. And, indeed, it may well be the case that he is not fit to be tried even if counsel were able to represent him. I must say that, having seen Mr Jordan in court and having heard Mr Jordan, he is able to put his case forcibly and eloquently, although that may be on the medical evidence before me only over very short periods of time. I have therefore come to the conclusion that I should apply a stay in this case but it will not be a permanent stay. I intend to apply to this indictment a conditional stay. The indictment will be stayed upon the following conditions which I have had the opportunity of canvassing both with [counsel] on behalf of the Crown and Mr Jordan and it is right to say Mr Jordan does not agree with them, but they are the conditions which I impose. Firstly, that the stay will continue to apply providing that, one, the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried; and, secondly, providing that the defendant does not engage in any activity, either political, social or personal, which demonstrates to the satisfaction of a court that he is in fact able to stand his trial, irrespective of his medical condition.” The formal order incorporating that ruling reads as follows: “The indictment be conditionally stayed against John Colin Campbell Jordan and the stay will continue to apply: 1. Providing the defendant's health does not improve by way of treatment or otherwise to a condition where he is no longer medically unfit to be tried. 2. Providing the defendant does not engage in any activities either political, social or personal which demonstrates to the satisfaction of a court that he is in fact able to stand his trial irrespective of his medical condition.” On 23 November 2001, after the ruling on a stay of the proceedings, the Crown Court discussed the question of materials which were still retained. The prosecution stated that they had offered to return seized material which was not relevant to the prosecution of the co-defendant, but that the applicant had stated that he wanted all of the material or none of it. The applicant did not accept the prosecution's claim, and maintained that “special procedure material” should never have been seized under the warrant. At the end of the discussions, the judge stated that all the seized material which was not of assistance to the co-defendant or the prosecution in the case against the co-defendant would be returned to the applicant. The applicant tried to challenge, by an application for judicial review, both (i) the conditions of the stay and (ii) the fact that his property had not been returned. Mr Justice Munby refused leave on 6 February 2002, and in so doing made the following comments: “1. Despite what is said by the LCD [the Lord Chancellor's Department] and the CPS [the Crown Prosecution Service] I have some disquiet about the propriety of staying an indictment on terms which might appear to suggest that freedom from future prosecution is to be in some way dependent upon abstention from political activity. 2. But (i) most of this application for [judicial review] is plainly barred by [the Supreme Court Act] 1981 Section 29 (3) and I can see no even arguable basis for saying that Section 29 (3) is not Convention compatible and (ii) that part which is not so barred is plainly without merit – the application in relation to the property is, at least in the first instance, a matter for the Crown Court, not the Administrative Court.” A renewed application was refused on 26 February 2002. On 18 April 2002, the applicant applied to the Leeds Crown Court for return of “special procedure material”. He states that he has had no reply. He further wrote to the North Yorkshire police and the Crown Prosecution Service on 26 July 2002, asking for return of 790 items of “special procedure material” to be sent to his home in Harrogate “with a complete list of all items”. He was informed that the return of property would be considered at the end of the trial against the co-defendant. The co-defendant was acquitted on 5 September 2002. On 24 October 2002, the Crown Prosecution Service informed the applicant that the material seized on 4 August 1998 could be returned to him with the following exceptions: “(i) The electronic stunning device, which is a prohibited weapon. (ii) Multiple copies of those documents which are the subject of counts on the indictment of publishing or distributing written material. Only a single copy of these documents will be returned. [There follows a list of the nine documents referred to.] [iii] Material distributed by you to others is no longer your property and will not be returned.” The letter continued: “The material is being returned to you because [H's] trial has been concluded. It is not accepted that any of the material is special procedure material.” A similar letter was sent to the applicant by the Head of Legal Services of the North Yorkshire County Council for the Chief Constable of North Yorkshire Police on 24 October, and the applicant was informed that he could collect the items from Tadcaster Police Station from 28 October onwards. The applicant replied on 26 October that “a proper return of the property to me is a return of it to the place from which it was taken ... and with a complete listing beforehand of all items, individually, so that they can be checked off on return.” The applicant repeated his demands in a letter of 31 October 2002, adding reference to a typewriter which he claimed had been damaged whilst in police custody, and again on 6 and 11 November 2002. On 7 November 2002, the High Court refused an application made by the applicant in September 2002 for permission to apply for judicial review in respect of materials held. The judge noted “The application covers substantially the same allegation[s] of illegality ... as those made on previous occasions and rejected. Furthermore, the applicant has liberty to apply to the Recorder ... for the return of any documents or original documents not required for the trial which has been conditionally stayed”. On 13 November 2002, the Head of Legal Services of the North Yorkshire County Council wrote to the applicant that the applicant's property (save for the excepted items) would be delivered to his home in Knaresborough, and the majority of items would be listed individually. Certain bulk items would not figure individually. The applicant was informed that it might not be possible to deliver his property to him before he left North Yorkshire for three months, but that it was open to him to collect it from Tadcaster Police Station. On 16 November the applicant refused to collect the property from any police station, and insisted on its return to Harrogate by the end of November. The property was not handed over or collected, and on 9 April 2003, the Head of Legal Services wrote to the applicant in the following terms: “I note, upon a review of my file in this matter, that the question of the return of your property remains outstanding. You will be aware from previous correspondence that my client is prepared to return to you all of the material seized from your house save for the items set out in my letter of 24 October 2002, a copy of which I enclose. I am instructed to indicate that my client is prepared to make arrangements for the return of your property at a time and date to suit you. It would obviously be preferable for all concerned if the hand over of your property could be undertaken at your address in Harrogate but if a trip to your property in Ross-shire is necessary, that could also be arranged. With that in mind, would you please be so kind as to contact the writer with a suggested time and date, or a number of such options, in order that arrangements can be made with my client for your property to be returned. It would assist if you would kindly revert to me in the course of the next seven days and with that in mind we enclose a stamped addressed envelope for your early response.” The applicant replied on 18 April: “My position remains as expressed during and to the end of that previous contact in the matter. I was open then to the return of all of my seized property on precisely and essentially the terms rightfully laid down by me in my letter then, and I am open now to such return on those terms, nothing other and nothing less than that. Are you people therefore now to make return in full fulfilment of those terms? ... If you are not, then determination of the matter will have to await eventual legal process encompassing the continuation of wrongful retention.” On 20 May, after a further exchange of letters, the applicant sent a draft signed Agreement to the Head of Legal Services, in which he demanded return of all items (save those which had been handed over already, the stunning device, and a single copy of each of 11 documents), a list including each individual item, and an acknowledgment of damage to a typewriter. The agreement stated that the applicant was not able to check the property against the list for more than three hours per day, and ended “No deletion or alteration or addition to the Agreement is acceptable to the property owner, the terms here set out being non-negotiable”. In his covering letter, the applicant stated “Unless I receive back, signed and dated by you, the here enclosed Agreement, nothing can be done in the matter apart from, for my part, moving towards legal action for the return of all my long withheld property”. The Head of Legal Services declined to arrange for the Agreement to be signed, but confirmed that there was still no resistance in principle to the return of the applicant's property on the lines already laid out. Correspondence continued in the same tone, the final exchange running as follows: The applicant's letter of 1 November 2003 to the Head of Legal Services: “... the agreement is absolutely essential, now or at any future time, and that I will not accept now or at any time in the future what, in the absence of the agreement, amounts to a dumping disregardful of it. Sign and return the agreement, if you want the return to go ahead, otherwise stand confirmed and revealed as opposed to a fair and proper return for suspect reasons. As I will be returning to Scotland in four weeks time, the signed agreement needs to reach me straight away. Unless you are signing and returning the agreement and arranging the return of property on this basis, there is no point in further correspondence from you which I am not prepared to deal with because it will be futile and time-wasting, having given you my final and irrevocable answer.” The Head of Legal Services, letter to the applicant of 11 November 2003: “For the avoidance of doubt, my client's position is as follows: 1. All property, save for that set out at numbered paragraphs (i) to (iii) of my correspondence dated 24 October 2002, to be listed in an inventory. 2. North Yorkshire Police to return the listed property on a date and time to be agreed. 3. Adequate and mutually convenient arrangements to be made to facilitate a thorough checking of the property against the inventory.” Section 23 (1) of the Public Order Act 1986 provides: “A person who has in his possession written material which is threatening, abusive or insulting, or a recording of visual images or sounds which are threatening, abusive or insulting with a view to (a) in the case of written material, its being displayed, published, distributed or included in a programme service, whether by himself or another, or (b) in the case of a recording, its being distributed, shown, played or included in a programme service, whether by himself or another is guilty of an offence if he intends racial hatred to be stirred up thereby or, having regard to all the circumstances, racial hatred is likely to be stirred up thereby.” Section 24 (1) of the Public Order Act 1986 provides: “If in England and Wales a justice of the peace is satisfied by information on oath laid by a constable that there are reasonable grounds for suspecting that a person has possession of written material or a recording in contravention of Section 23, the justice may issue a warrant under his hand authorising any constable to enter and search the premises where it is suspected the material or recording is situated.” Certain categories of material cannot be the subject of an application for a warrant before a magistrate, but must be the subject of an application to a circuit judge. This material is broadly speaking material such as personal records acquired or created in the course of any trade, profession or business. The material is known as “excluded material” and “special procedure material”. Excluded material is material, including journalistic material, held in confidence (Section 11(1) Police and Criminal Evidence Act 1984 “PACE”). Special procedure material includes journalistic material not held in confidence (Section 14 PACE). Independently of common law powers to seize and retain material falling within the terms of a warrant, a constable who is lawfully on premises may seize material on the premises if he has reasonable grounds for believing that it is evidence in relation to an offence which he is investigating or any other offence, and that it is necessary to seize it to prevent it being concealed, lost, altered or destroyed (Section 19(3) PACE). The Notes for Guidance which accompany the PACE Code of Practice relating to search and seizure (“Code of Practice for the Searching of Premises by Police Officers and the Seizure of Property found by Police Officers on Persons or Premises”, applicable to warrants and searches after 9 April 1995) state that “Any person claiming property seized by the police may apply to a magistrates' court under the Police (Property) Act 1897 for its possession, and should, where appropriate, be advised of this procedure”. Section 29 (3) of the Supreme Court Act 1981 provides that: “In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.” Criminal courts have wide common law powers to stay proceedings. A stay typically takes the form of an order that the charge should not be proceeded with. In certain exceptional and limited circumstances the prosecution would be entitled to seek to lift a , including the rights of the accused.