Privacy Rights
Cases
Bailey v. Flood
[2000] IESC 11
Judgment of the Court delivered by The Hon. Mrs. Justice Denham on the 14th day of April, 2000
[*2] This is an appeal by Thomas Bailey, Caroline Bailey and Bovale Developments Limited, the applicants/appellants, hereinafter referred to as the applicants. The applicants are appealing against the judgment of the High Court, Morris P., delivered the 6th March, 2000, in proceedings in which the applicants claim relief by way of judicial review of a decision of the respondent.
1. The applicants sought judicial review of the ruling made on 8th February, 2000 of the Sole Member of the Tribunal of Inquiry into Certain Planning Matters and Payments, hereinafter referred to as the respondent.
2. The said ruling concluded:
“I believe in the light of my knowledge of the issues and the events which have occurred to date that it is appropriate that the witnesses in question be called before the Tribunal to give evidence on oath of the matters which are relevant to the Tribunal’s inquiries. It has been urged upon me that in view of the private nature of the proposed inquiry touching as it does upon the expenditure of money and acquisition of assets by the parties that such inquiries should be conducted in private. The Tribunal of Inquiries Evidence Act specifically provides for the evidence to be heard in public unless it is expedient to the public interest that I sit in private. I do not believe that there are sufficient grounds open to me to conduct the intended examination of the witnesses in private in the public interest and accordingly I believe that the examination of the witnesses should proceed.”
3. The factual background to this case is set out in the judgment of the learned President. There is no conflict between the parties on these facts.
4. Counsel for the applicants, Mr. John Gordon, S.C., opened the appeal by referring to two basic grounds, namely,
(a) That the relevance of the evidence to be given had not been established.
(b) That the respondent was incorrect in concluding that he must hear the evidence in public rather than in private.
[*3] That the applicants have a constitutional right to privacy is beyond debate. It is equally well established that this is not an absolute right but one which must in certain circumstances be weighed against or balanced with the exigencies of the common good. Again, the common good may require that matters, resolved by democratically elected representatives in the Houses of the Oireachtas to be of urgent public importance, be inquired into by the tribunal. It is of the essence of such tribunals that the inquiries be held in public. If this is not done public disquiet, which lead to the appointment of the tribunal, could not be allayed. These principles have been established and reviewed exhaustively in recent years (see Goodman International v. Mr. Justice Hamilton [1992] 2 I.R. 542, Redmond v.Mr. Justice Flood [1999] 1 I.L.R.M. 241; Lawlor v. Mr. Justice Flood (Unreported, Supreme Court, 8th October, 1999); Murphy v. Mr. Justice Flood (Unreported, High Court, Geoghegan J., 30th April, 1999). These principles were correctly analysed and applied by Mr. Justice Morris in the judgment under appeal. The concept that public interest includes the interest of the public in the right of privacy of a person or persons was addressed by the President. He stated at page 30 of the transcript of his judgment:
“… I am prepared to accept, without deciding, that the protection of constitutional rights can constitute a public interest that might justify the exclusion of the public from the proceedings of a tribunal of inquiry.”
5. The novel feature of the present case was the argument that the evidence of the applicants should be heard by the tribunal in private in the first instance and, if it was then established or emerged that the evidence so given was relevant or material, the hearing could be repeated in public. Assuming, without deciding, that such a procedure was permissible, a decision as to whether that course should be adopted was one which fell to be made by the [*4]
tribunal itself. That decision must conform to the standard of reasonableness laid down by this court in The State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I.R. 642 and O’Keefe v. An Bord Pleanala [1993] 1 I.R. 39. No doubt any determination of reasonableness would have regard to the subject matter and consequences of the decision as was so clearly illustrated by the decision of the Court of Appeal in England in R. v. Lord Saville [1999] 4 ALL ER 860. Those principles having been examined in full by the learned President, he stated at page 27 of the transcript of the judgment:
“The legislature has entrusted a broad measure of discretion to such tribunals, including the discretion to decide how the inquiry will proceed and what evidence will be admitted, and it is no part of the duty of this Court to whittle down that discretion, with the inevitable deleterious effects that would have on the effective discharge of the important public tasks with which tribunals of inquiry are burdened.”
6. The learned President stated and applied the law correctly and in so doing disposed of the issues which arise. The Court will therefore dismiss the appeal.
Kennedy v. Ireland
[1987] IR 587
Hamilton P.
H.C.
The facts in this case are not in dispute.
At all relevant times both the first and second plaintiffs were distinguished and well known political correspondents with Irish national newspapers with extensive circulation within the state. The third plaintiff was and is the spouse of the second plaintiff, a free-lance journalist and an active participant in the Women’s Political Association. In the course of their work and in their private capacities, each of the plaintiffs made extensive use of telephones from their respective homes. The first plaintiff’s private telephone number was 280006 and the second and third plaintiffs’ was 805575.
In para. 7 of the statement of claim delivered on behalf of the plaintiffs it was alleged that:”
“On dates unknown between the 28th July, 1982, and the 16th November, 1982, in respect of the first-named plaintiff’s telephone number and between the 10th May, 1982, and the 12th July, 1982, in respect of the second-named plaintiff’s then telephone number, the said telephones were illegally tapped. The said telephone tapping was carried out by one or other or either of the servants or agents of the first defendant pleaded herein. Recordings and transcripts were illegally made by the said servants or agents of the State.”
In para. 4 of the defence delivered on behalf of the defendants, it is stated that:”
“The defendants admit the facts set out in para. 7 of the statement of claim herein but deny that by reason of any of the said facts there was any illegality or any breach of any of the plaintiffs’ constitutional rights either as alleged or at all.”
The plaintiffs had in their statement of claim alleged that the activities of which they complained and which were admitted on behalf of the State were not authorised by law, were in breach of contract and in breach of the constitution.
It appears from a statement made by the then Minister for Justice on the 20th January, 1983, and which was by consent of the parties to these proceedings admitted in evidence, that he confirmed that both telephones were in fact “tapped”, that the facts showed that the system of safeguards which successive Ministers for Justice had publicly declared in Dail Eireann to be an integral part of the system was either disregarded in the cases in question or, what amounts to the same thing, was operated in such a way as to be rendered meaningless and that the facts showed that there was no justification for the ‘tapping’ of either of the two telephones and that what occurred went beyond what could be explained as just an error of judgment.
Warrants authorising the communication to Assistant Commissioner T.J. Ainsworth by the Minister for Posts and Telegraphs of particulars of all communications on the said telephone numbers were issued by the then Minister for Justice on the 14th May, 1982, in respect of telephone number 805575 and 30th July, 1982, in respect of telephone number 280006.
It is submitted on behalf of the defendants that the right to issue such warrants is recognised by the provisions of s. 56 of the Post Office Act, 1908.
It is conceded by the State that such warrants are issued only in very limited circumstances such as for security purposes or for the prevention and detection of serious crime. It is further conceded by the State, as appears from the statement of the then Minister for Justice made on the 20th January, 1983, already referred to, that there was no justification for the tapping of either of the two telephones in question in this case.
It is submitted by Mr. Fennelly on behalf of the defendants herein, the State and the Attorney General, that while the ‘tapping’ of the telephones was improper, it was not illegal and did not interfere with any constitutional rights of the plaintiffs or either of them.
This is a submission which I cannot accept.
Constitutional Rights
In their statement of claim the plaintiffs, inter alia, claim:”
(1) that their rights under Article 40, s. 3 of the Constitution include the personal right to privacy and to be free from unlawful and unwarranted intrusions into their private telephone conversations,
(2) that the State has failed:”
(a) to defend and vindicate their personal rights,
(b) to respect the privacy of the plaintiffs in the exercise of their profession as political journalists and in the living of their private lives by not interfering with, listening to and tapping their telephone conversations,
(c) to respect the guarantee to all citizens to express freely their convictions and opinions, including criticism of Government policy,
and
(3) that the State has:”
(a) interfered without any lawful cause or justification into the private lives and liberties of the plaintiffs,
(b) tapped the telephones of the plaintiffs and taken transcripts of conversations in a manner intended to interfere with the plaintiffs in the exercise of their guaranteed rights.
The personal right to privacy is not one of the rights actually acknowledged by Article 40 of the Constitution but as stated by Mr. Justice Kenny in Ryan v. The Attorney General [1965] I.R. 294 at p. 313:”
“[T]here are many personal rights of the citizen which follow from the Christian and democratic nature of the State which are not mentioned in Article 40 at all.”
The personal right to privacy is one of such rights. In the course of his judgment in Norris v. The Attorney General [1984] I.R. 36 at pp. 100 and 101 of the report, Mr. Justice McCarthy stated:”
“The Constitution does not guarantee or, in any way, expressly refer to a right of privacy ” no more, indeed than does the United States Constitution, with which our Constitution bears so many apparent similarities. In the United States Constitution the right to privacy in one form or another has been founded upon the First Amendment ( Stanley v. Georgia (1969) 394 U.S. 557); the Fourth and Fifth Amendments ( Terry v. Ohio (1968) 392 U.S. 1); in the penumbras of the Bill of Rights ( Griswold v. Connecticut (1965) 381 U.S. 479) ” the contraceptives case; in the Ninth Amendment ( Griswold v. Connecticut ); and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment ( Meyer v. Nebraska (1923) 262 U.S. 390).
In our Constitution a right of privacy is not spelt out. As stated by Mr. Justice Henchy in his judgment, there is a guarantee of privacy in voting under Article 16, s. 1, sub-s. 4 ” the secret ballot; a limited right of privacy given to certain litigants under laws made under Article 34; the limited freedom from arrest and detention under Article 40, s. 4; the inviolability of the dwelling of every citizen under Article 40, s. 5; the rights of the citizens to express freely their convictions and opinions, to assemble peaceably and without arms, and to form associations and unions-all conferred by Article 40, s. 6, sub-s. 1; the rights of the family under Article 41; the rights of the family with regard to education under Article 42; the right of private property under Article 43; freedom of conscience and the free profession and practise of religion under Article 44. All these may properly be described as different facets of the right of privacy, but they are general in nature (as necessarily they must be in a Constitution) and do not set bounds to the enumeration of the details of such a right of privacy when the occasion arises. In our jurisdiction this is best exemplified in the McGee Case [1974] I.R. 284 where, whilst Mr. Justice Walsh rested his judgment upon the provisions of Article 41, Mr. Justice Budd, Mr. Justice Henchy and Mr. Justice Walsh relied upon the guarantees of Article 40, section 3. I would respectfully share the latter view of the true foundation for what the McGee Case upheld ” the right of privacy in marriage.
Whilst the Constitution of the Irish Free State (Saorstát Éireann ) 1922, did not, as it were, isolate the fundamental rights of citizens in a manner in which the present Constitution of 1937 has done, articles 6, 7, 8, 9 and 10 of that Constitution indicate the manner in which certain rights were spelt out but, to a degree, highlight the absence of such guarantees as are contained in Article 40, s. 3, and Article 41 of the Constitution. There may well be historical reasons for these differences ” a greater awareness of the need for the annunciation of fundamental rights was present during the 1930s than at the time of the negotiations for the Treaty that led to the enactment of the Constitution of the Irish Free State. At all events, since 1937, the concept of judicial dynamism in constitutional law has grown, thereby identifying more readily the role of the Courts, and in particular, this Court as the judicial organ of government, not merely by way of a supervisory jurisdiction on the actions of the legislative and executive branches of government but by way of legal interpretation ” thus playing its part in “seeking to promote the common good, with due observance of prudence, justice and charity, so that the dignity and freedom of the individual may be assured . . .” as most strikingly evidenced by the decision in the McGee Case .
How then, to identify the nature of the personal right of privacy? The right to privacy has been called by Brandeis J. of the
United States Federal Supreme Court “the right to be let alone” ” a quotation cited by the Chief Justice in this case and by Mr. Justice Walsh in his dissenting judgment as a member of the Court of Human Rights in Dudgeon v. United Kingdom (1981) 4 E.H.R.R. 149. By way of definition it has brevity and clarity and I would respectfully adopt it as accurate and adequate for my purpose but, to a degree, the very definition begs the question. The right to privacy is not in issue, the issue is the extent of that right or the extent of the right to be let alone.”
Though not specifically guaranteed by the Constitution, the right of privacy is one of the fundamental personal rights of the citizen which flow from the Christian and democratic nature of the State. It is not an unqualified right. Its exercise may be restricted by the constitutional rights of others, by the requirements of the common good and is subject to the requirements of public order and morality.
There are many aspects to the right to privacy, some of which have been dealt with in the cases referred to by Mr. Justice McCarthy in the passage which I have just quoted from his judgment in Norris’s Case [1984] I.R. 36 and the remaining aspects remain to be dealt with when suitable cases come before the courts for determination. The question to be determined in this case is whether the right to privacy includes the right to privacy in respect of telephonic conversations and the right to hold such conversations without deliberate, conscious and unjustified interference therewith and intrusion thereon by servants of the State, who listen to such conversation, record them, transcribe them and make the transcriptions thereof available to other persons.
I have no doubt but that it does.
As stated by Mr. Justice Henchy in his judgment in Norris v. The Attorney General [1984] I.R. 36 at p. 71:”
“Having regard to the purposive Christian ethos of the Constitution, particularly as set out in the preamble (“to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations”), to the denomination of the State as “sovereign, independent, democratic” in Article 5, and to the recognition, expressly or by necessary implication, of particular personal rights, such recognition being frequently hedged in by overriding requirements such as”public order and morality” or “the authority of the State” or “the exigencies of the common good”, there is necessarily given to the citizen, within the required social, political and moral framework, such a range of personal freedoms or immunities as are necessary to ensure his dignity and freedom as an individual in the type of society envisaged. The essence of those rights is that they inhere in the individual personality of the citizen in his capacity as a vital human component of the social, political and moral order posited by the Constitution.
Amongst those basic personal rights is a complex of rights which vary in nature, purpose and range (each necessarily being a facet of the citizen’s core of individuality within the constitutional order) and which may be compendiously referred to as the right of privacy.”
The nature of the right to privacy must be such as to ensure the dignity and freedom of an individual in the type of society envisaged by the Constitution, namely, a sovereign, independent and democratic society. The dignity and freedom of an individual in a democratic society cannot be ensured if his communications of a private nature, be they written or telephonic, are deliberately, consciously and unjustifiably intruded upon and interfered with. I emphasise the words “deliberately, consciously and unjustifiably”because an individual must accept the risk of accidental interference with his communications and the fact that in certain circumstances the exigencies of the common good may require and justify such intrusion and interference. No such circumstances exist in this case.
There has been, as is admitted on behalf of the defendants, a deliberate, conscious and unjustifiable interference by the State through its executive organ with the telephonic communications of the plaintiffs and such interference constitutes an infringement of the constitutional rights to privacy of the three plaintiffs. Though the second plaintiff is not a citizen of this state, he is entitled to the same personal rights as if he were. Such interference constituted an infringement of the plaintiff’s constitutional right to privacy and, in the words of Mr. Justice Walsh spoken during the course of his judgment in Meskell v. CIE [1973] I.R. 121 at p. 134, such interference was “unlawful as constituting a violation of the fundamental law of the State.”
In the same case, Walsh J. further stated at pp. 132 and 133:”
“[A] right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it its own right to a remedy or for the enforcement of it.”
In this case the plaintiffs and each of them claim damages for breach of constitutional rights, abuse of power and breach of contract. In the events which have happened, the only remedy which the plaintiffs can obtain in this court, which, as one of the organs of the State is obliged to respect, defend and vindicate the personal rights of the citizens, lies in damages. Damages may be compensatory, aggravated, exemplary or punitive.
In the course of argument in this case I stated that, in my opinion, the plaintiffs were not entitled to punitive damages in this case. I still adhere to that view because of the action of the then Minister for Justice, in the course of the statement made by him on the 20th January, 1983, already referred to, in openly acknowledging that both the telephones referred to in this case were in fact “tapped”, that the system of safeguards which successive Ministers of Justice have publicly declared in Dail Eireann to be an integral part of the system was either disregarded or, what amounted to the same thing, was operated in such a way as to be rendered meaningless and that the facts showed that there was no justification for the tapping of either of the two telephones and that what occurred went beyond what could be explained as just an error of judgment. In doing so he, though belatedly, vindicated the good names of the plaintiffs herein, in particular the first and second plaintiffs.
It is quite clear from a consideration of the Civil Liability Act, 1961, and in particular s. 7, sub-s. 2 and s. 14, sub-s. 4 thereof that Irish law recognises a distinction as between “punitive damages” and “exemplary damages”. In determining the damages to which the plaintiffs are entitled, I must have regard not only to the distress which was suffered by the plaintiffs as a result of the infringement of their constitutional right to privacy, the implication thereof and the publicity consequent thereto but also to the fact that the infringement was carried out deliberately, consciously and without justification by the executive organ of the State which is under a constitutional obligation to respect, vindicate and defend that right.
In the course of his speech to the House of Lords in Rookes v. Barnard [1964] A.C. 1129, at p. 1226, Lord Devlin distinguished between aggravated and exemplary damages and stated that exemplary damages may be awarded where there has been “oppressive, arbitrary or unconstitutional action by the servants or the government”.
The action of the executive in this case in “tapping” the telephones of the plaintiffs without any lawful justification and in interfering with and intruding upon the privacy of the plaintiffs constituted an attack on their dignity and freedom as individuals and as journalists and cannot be tolerated in a democratic society such as ours is and our Constitution requires it to be and the injury done to the plaintiffs has been aggravated by the fact that it has been done by an organ of state which is under a constitutional obligation to respect, vindicate and defend their rights. The plaintiffs are in my opinion entitled to substantial damages and it is, in the circumstances of this case, irrelevant whether they be described as “aggravated” or “exemplary”damages.
I have carefully considered the evidence of the plaintiffs which I accept as honest and truthful with regard to the effect that the knowledge that their telephones had been “tapped” had on them and the distress that they suffered, which distress was accentuated by the realisation that the only justification for such tapping lay in security reasons or in connection with the investigation of serious crime. I am satisfied that the plaintiffs have not suffered any loss and am not satisfied that the change in the second plaintiff’s career as a journalist is attributable to the actions of the executive. I am also satisfied, particularly having regard to the statement of the Minister for Justice already referred to, that the reputations of the plaintiffs and each of them, have been vindicated. That being said however, the injury done to the plaintiffs’ right to privacy was serious, the distress suffered by them as a result thereof significant and in the case of the first and second plaintiffs was done consciously, deliberately and without justification. In the case of the third plaintiff, who is the spouse of the second plaintiff, the injury was not done consciously or deliberately but incidentally.
In all the circumstances of this case, I will award to the first plaintiff the sum of £20,000 damages, to the second plaintiff the sum of £20,000 damages and to the third plaintiff the sum of £10,000 damages.
[Reporter’s note: The final order further directed the defendants to return to the plaintiffs all transcripts of the conversations recorded on their respective telephone lines].
Stone v South East Coast Strategic Health Authority & Ors
[2006] EWHC 1668
Case No: CO/10426The applicable legal principles
Article 8 of the Convention is in these terms:
“Article 8. Right to respect for private and family life.
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 other.”
Article 10 of the Convention is in these terms:
“Article 10. Freedom of expression.
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Were this to be a claim based on ordinary “reasonableness” grounds it would manifestly be unfounded. The Defendants (and the Panel) have plainly considered the matter with great care. They applied the correct principles; they gave Mr Stone the opportunity to make representations and considered them; they took into account the relevant factors and did not have regard to irrelevant factors; and a conclusion to publish in full could not possibly be styled as perverse or irrational.
But that, of course, is not the test in a context such as the present. The focus is not on the decision making process but on the substance of the decision reached. The questions that have to be asked are whether Mr Stone’s rights under Article 8 of the Convention have been breached; whether the decision to publish the report is an interference with his right to privacy which is not justified under Article 8(2). Reference may be made to R (SB) v Governors of Denbigh High School [2006] 2 WLR 719 at paragraphs 29-30 [2006] UKHL 15 (Lord Bingham) and paragraph 68 (Lord Hoffmann). That, of course, was a case relating to Article 9 of the Convention, but the reasoning and approach is equally applicable in the present case by reference to Article 8.
For this purpose, it is also well established that the Court is required to adopt an intensity of review conditioned by the requirement that the proposed limitation of the Convention right be necessary in a democratic society and that such interference is really proportionate to a legitimate aim being pursued: see R (Daly) v Secretary of State for Home Department [2001] 2 AC 532 at p547E-540D (per Lord Steyn).
In the present case it seems to me that the review of the court must be of a very high intensity. As has been emphasised in the European Court of Human Rights, the protection of personal data, and the need for appropriate safeguards, is of fundamental importance to a person’s enjoyment of the right to respect for private and family life provided by Article 8: and that is particularly so in the case of medical data: see Z v Finland (1997) 25 EHRR 371; MS v Sweden (1997) 28 EHRR 313. Moreover it seems to me of importance that in the present case Mr Stone is not seeking simply to assert his private rights and private interest (although he is doing that): he is also himself asserting a matter of public interest. That consists not only of the upholding of the general principle of a right to privacy but also the upholding of a wider matter of public interest: viz. that a person can freely and frankly discuss sensitive matters with his or her doctor, probation officer and social worker etc. and, further, can cooperate with an inquiry of the present kind without being deterred by the risk of subsequent disclosure.
In the case of Campbell v MGN Limited [2004] 2 AC 457 [2004] UKHL 22 which involved the internationally famous model Naomi Campbell (and which raised issues under Article 8 and Article 10) Lord Hope of Craighead said this at paragraph 113:
“But decisions about the publication of material that is private to the individual raise issues that are not simply about presentation and editing. Any interference with the public interest in disclosure has to be balanced against the interference with the right of the individual to respect for their private life. The decisions that are then taken are open to review by the court. The tests which the court must apply are the familiar ones. They are whether publication of the material pursues a legitimate aim and whether the benefits that will be achieved by its publication are proportionate to the harm that may be done by the interference with the right to privacy. The jurisprudence of the European Court of Human Rights explains how these principles are to be understood and applied in the context of the facts of each case. Any restriction of the right to freedom of expression must be subjected to very close scrutiny. But so too must any restriction of the right to respect for private life. Neither article 8 nor article 10 has any pre-eminence over the other in the conduct of this exercise. As Resolution 1165 of the Parliamentary Assembly of the Council of Europe (1998), para 11, pointed out, they are neither absolute nor in any hierarchical order, since they are of equal value in a democratic society.”
The same judge had also said in R v Shayler [2003] 1 AC 247, [2002] UKHL 11 in paragraph 61 (in dealing with the application of proportionality principles):
“…it is not enough to assert that the decision that was taken was a reasonable one. A close and penetrating examination of the factual justification is needed if the fundamental rights enshrined in the Convention are to remain practical and effective for everyone who wishes to exercise them.”
I propose to apply that approach. It seems to me that a compelling case needs to exist to justify publication of this report in its present form.
Article 8 is not the only Convention right that has to be considered. As Campbell v MGN Ltd makes clear, Article 10 also has to be considered and given due weight. In the present case, it is now (albeit it was not in the original grounds) accepted on behalf of Mr Stone that – even though the three Defendants, as public bodies, cannot themselves directly invoke the provisions of Article 10 – such Article comes into play: if only because of the general corresponding right of the public to be free to receive information where it is sought to be published.
The actual methodology to be employed in such cases has to be related to its own facts and own circumstances, a “close and penetrating examination” being adopted. But what is of course clear is that in all such cases a balancing exercise has to be undertaken. And in a case such as the present an ultimate balance has to be struck not only by weighing the considerations for and against a restriction on the right to privacy by reference to Article 8 itself but also by weighing the considerations for and against a restriction on publication by reference to Article 10. An example of this can also be found in the House of Lords decision in re S (a Child) [2005] AC 593 [2005] UKHL 47. That was a decision in a factual context very different from the present – albeit raising issues under Articles 8 and 10. But, if I may respectfully say so, the actual approach adopted by Lord Steyn is very informative. Also very informative are his general comments – which I propose to follow in this case – at paragraph 17 of his opinion:
“The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.”
The overall balancing exercise in this case
(a) The redaction exercise
As I have said, Mr Stone has accepted that some report should be put into the public domain. One of his complaints has been, however, that the Defendants have taken an “all or nothing” approach to the issue of publication. It is submitted on his behalf that it is a fundamental principle that where there is to be an interference with Convention rights then such interference must be kept to the minimum necessary. That there is indeed such a general principle is borne out by authorities too numerous to require citation. Building on that, Mr Stone’s advisers have in the course of these proceedings submitted, for illustrative purposes, a draft of extracts from what is currently contained in Chapter 8 of the report, redacted so as to delete citation from, or extensive reference to, medical etc. records. They say that this is illustrative of an approach which could and should, as a matter of proportionality, properly be adopted for the rest of the report.
The Defendants had in fact themselves considered some such approach. They had commissioned in 2001 an experienced journalist to prepare a summary of the full report with a view to publicising just the summary. Such a summary was duly prepared. It was included in the confidential bundle of evidence placed before me. The Defendants decided that, notwithstanding the best efforts of the journalist involved, such summary was not appropriate for publication: it was unable to cover all the fundamental points; it could not contain the amount of detail needed for the report to be of sufficient value to persons reading it; and its effect, by reducing the text, was to distort the report itself and to devalue its conclusions. I have considered that summary. It is sufficient for me to say – although my view will also find reflection in some of my comments later in this judgment – that that plainly was a justified decision.
As to the exercise in redaction undertaken by the Claimant’s advisers in respect of Chapter 8, my more specific points on that are set out in Confidential Annex “A” to this Judgment. (These annexes, as agreed by Counsel and for reasons which I trust are obvious, must remain for the time being confidential, until further order of the court). But, having carefully considered the proffered redacted version of Chapter 8, I can set out in summary form in this public judgment my reasons for agreeing with the Defendants and with the Second Interested Party (Josie Russell) that such an exercise cannot be justified if there is to be publication:
37.1. First, the redactions tend to give a very misleading picture as to what Chapter 8 of the Report (in its unexpurgated form) is actually saying and what it is seeking to do.
37.2. Second, the deletions of the details would have the effect of depriving the public of knowing precisely what facts had prompted the conclusions and comments of the Panel as set out in Chapter 8. The conclusions and comments are necessarily based on the preceding details.
37.3. Third, the actual details of what was in the medical etc notes is crucial for assessing (and for forming an opinion on) what other professionals, dealing with Mr Stone either at the time or subsequently, should have known or should have done. That is to say, what did they know but not act upon? Or what did they not know but which they should have known? What information and records were (or as the case may be were not) passed on to other agencies?
37.4. Fourth, to the extent that individuals and procedures are criticised (or not criticised) in the report, the reader needs to know the details of what such individuals knew or could reasonably be expected to have known in order to assess such criticisms.
37.5. Fifth, such redactions tend to an impression of arbitrariness. For example – and it is only an example – dates are sometimes deleted, sometimes not.
37.6. Sixth, the scale of the redactions is such (and the proposed redactions extend not only to deletion of citations from medical records but also to some parts of the Panel’s actual conclusions or comments) that it can be said – as the Defendants and Mr Francis on behalf of the Panel do say – that such report in such form virtually ceases to be the report of the independent inquiry and would be rendered “wholly valueless.”
Mr Clayton in fact saw fit generally to criticise the “style” of the Report. That is a completely misplaced criticism – the style of the report is a matter for the Panel. A further criticism that the style adopted led to comments or conclusions which could not be linked to the preceding factual details, and so (it was said) could justify an exercise in redaction, is also completely misplaced.
I might add that I consider that there is a degree of force in the observation that publication of a summary or redacted version of this kind might be viewed with scepticism by the public, who might even suspect a cover-up. In any event, I agree overall with the Defendants’ blunt submission that a redacted report of the kind proposed cannot and will not work. It is not practicable to publish a report without disclosing details of Mr Stone’s private medical information.
As I have mentioned, the Defendants’ own solicitors had, during 2004, put forward to the Panel a list of suggested possible deletions and modifications to the report. That exercise is itself criticised by Mr Clayton. He says that the discussions between Mr Mason and Mr Francis were fundamentally inadequate. He says that they failed to deal with the “overarching question of justification for the wholesale revelation of information derived from confidential medical records”; and that such points as they did discuss were only “the tip of the iceberg” (a view point which subsequently found reflection in the Claimant’s subsequent exercise of wholesale expurgation by way of redaction in respect of Chapter 8).
My specific comments on the points advanced are set out in Confidential Annex “B” to this judgment. For the purposes of this judgment, I here place on record my view that Mr Francis’ justification for retaining these points in the report to be published, and with which the Defendants agreed, was well-founded. My reasons in essence correspond to those set out in paragraphs 37.2-37.4 of this judgment.
Those submissions on behalf of Mr Stone, however, are again illustrative of the general approach taken on his behalf: which is to the effect that it was not necessary and not of any high priority for the public to know the precise details and records of Mr Stone’s treatment or discussions with health professionals, probation officers and other such people: some of which information, indeed, Mr Clayton was disposed to dismiss as mere “general background”. Nevertheless, it is important to record that Mr Clayton also, fairly and rightly, conceded that the public should be in a position to know what went wrong and should have an intelligent understanding of the conclusions reached; and he accepted that the lessons derived from the inquiry had a high priority.
(b) The balancing exercise
In my judgment, the following points are particularly relevant in the balancing exercise for the purposes of Article 8.
So far as Mr Stone is concerned, much the most weighty point in his favour, as it seems to me, is his very entitlement to claim a right of privacy: in respect moreover of an aspect of private information (medical information) which – as the jurisprudence from Europe shows – is regarded as a vital and central element of that which should be protected under Article 8. Further, that is reinforced by other and wider considerations of the public interest: first, that persons may talk freely with their doctors, probation officers and other such persons without being deterred by risk of subsequent disclosure (although it has to be said such a risk in any case exists under English common law rules relating to confidentiality, where disclosure is necessary in the public interest); second, that such persons may give access to such information for the purposes of an inquiry without being deterred from doing so through fear of such matters later being released into the public domain.
But it seems to me that the force of those points is significantly outweighed by a number of other considerations (albeit some of them overlap):
45.1. First, there is the concession on behalf of Mr Stone that there should be some publication (to the public) of the report and that the public should be able to know what went wrong and should be able to form an intelligent understanding of the conclusions reached: that is to acknowledge that there is indeed a public interest in that regard. But, as I have indicated in my conclusions on the proposed redaction exercise, a system of expurgation which both involves removal of actual reference to the contents of medical notes and (in some respects) involves the editing of some of the comments and conclusions of the inquiry is not viable: the proposal made in that regard on behalf of Mr Stone’s advisers thus wholly devalues the proffered concession. In effect, such exercise – while of course limiting the intrusion into the privacy of Mr Stone – would turn the report into a report which is not, in truth, the report of the inquiry having regard to its terms of reference: and could indeed mislead. It was precisely for those reasons that the Defendants informed me at trial that, if that were to be the conclusion, then they would not publish the report at all. I did not regard that as an in terrorem argument: rather it reflected a realistic and understandable viewpoint.
45.2. Second, there is a true public interest in the public at large knowing of the actual care and treatment supplied (or, as the case may be, not supplied) to Mr Stone: and knowing, and being able to reach an informed assessment of, the failures identified and steps that may be recommended to be taken to address identified deficiencies. This is not simply in the context of the murder of Lin and Megan Russell by Mr Stone in circumstances of such great publicity. It also has a bearing for the future. As Mr Badenoch pointed out, it seems, regrettably, all too likely that in the future – and as has happened in the interim – there will be other instances where persons receiving psychiatric treatment or care in the community will commit acts of murder or extreme violence. The existence of potentially dangerous persons at liberty in the community affects the entire community. That community has a reasonable and justified expectation that an inquiry undertaken after such a high profile case as the present will be publicised in full, so that the public is not left in the dark (or in the shade) about how it happened or left to speculate about the lessons that have been or should be learned and about the recommendations made, with a view to implementation, to reduce the risk of such occurrences in the future.
45.3. Third, and following on from the second point, such objectives are not met simply by releasing a full version of the report to relevant health professionals.
45.4. Fourth, where individuals or agencies involved in Mr Stone’s treatment are (or are not) to be criticised the public can legitimately expect to know the full reasons for that.
45.5. Fifth, the information to be disclosed is to be disclosed solely with the aim of providing an informed view as to what went wrong in this case with a view to important lessons being learned for the future, both for the assistance of other people in the position of Mr Stone and for the protection and reassurance of the public. The actual details of the case are crucial for an informed assessment of the Panel’s conclusions and comments and for forming a view on that. (This would still be so, as I see it, even in circumstances where any established failures are not found to be causative of the subsequent criminality). The position is quite different from that pertaining in the cases of Campbell or of Z v Finland, where there was no corresponding public interest of the present kind.
45.6. Sixth, it is, I think, of importance as a justification for restricting Mr Stone’s right to privacy in this context that this inquiry, and all this publicity, have arisen out of Mr Stone’s own acts – acts found to have been criminal. He has, as it were, put himself in the public domain by reason of those criminal acts, which inevitably created great publicity. Of course that is not to say that a convicted murderer forfeits all his rights under Article 8; of course he does not. But here the information sought to be disclosed relates – and relates solely – to the investigation foreseeably arising out of the very murders which he himself committed.
45.7. Seventh, I also think it a point of considerable importance as a justification for restricting Mr Stone’s right to privacy in this context that a great deal of information relating to the background, treatment and mental health of Mr Stone has already been put in the public domain, and at a significant level of detail (see the numerous newspaper articles mentioned above and the StoneChronology prepared by Professor Gaber). The essential nature of his observed mental and personality disorders is already known. When so much has already been divulged, it seems to me highly material to a decision whether to permit disclosure of more such information. Indeed I think it also noteworthy that the Panel make clear that they also wish to correct certain errors and inaccuracies in previous public reporting. I agree with Mr Clayton that previous publication of private information in the public domain does not mean that an individual necessarily loses his right to privacy in respect of a proposal to put yet more such material in the public domain (cf. Editions Plon v France 18th May 2004, unrep. decision of the European Court of Human Rights, Second Section). But, as it seems to me, it must be relevant to the balancing exercise and to the issue of proportionality: and here the previous disclosure in the public domain has already been very extensive indeed. That must tell against the asserted detrimental impact of publication of further, albeit more detailed, information.
45.8. Eighth, Josie Russell and Dr Russell – the victims (directly or indirectly) of these crimes – support publication. So do – quite apart from the Panel itself and all the Defendants – the Secretary of State and relevant Mental Health authorities.
Mr Stone has raised a concern that publicising this report in full will give rise to risks as to his own personal safety. But the evidence shows that that has been assessed by the prison service, who conclude that there is no such increased risk.
As to the point made by Mr Clayton that others will be deterred in the future from cooperating with inquiries of this kind, that is a legitimate point of principle and cannot be ruled out as a possibility. The evidence, however, in this case indicates that in the past other offenders have cooperated fully and have consented to providing information to inquiries in the knowledge that a report is to be published. There is also no actual evidence that access to the relevant information has in fact been restricted in such cases because of concerns as to subsequent publication.
There are a number of other points I should mention:
48.1. I gained the distinct impression that Mr Stone – who, as I have said, continues to assert his innocence – was concerned that publication of this information would incline the public against his assertions. I cannot attach any significant weight to that. First, Mr Stone already has been convicted; in the eyes of the public he is entitled to be considered guilty. Second, and in any case, such publication of these details is unlikely, realistically, to be significantly more damaging to him with regard to his criminality than the previous publicity he has experienced.
48.2. Mr Stone is also concerned as to how the press will publicise the matter: he fears adverse sensationalism. But, broadly speaking, and within the parameters of the law of defamation, it is a matter for the Press as to how it reports matters. Besides, it is not to be presumed that further press publicity will necessarily be unfairly hostile in the way Mr Stone fears. There were indications from a number of the press articles following his conviction that a thoughtful line was being taken as to the need for lessons to be learned. It is not fanciful to think, in fact, that some readers of the report perhaps may be inclined, having access to the full facts, to take a more sympathetic view of Mr Stone than, in the absence of full information, they hitherto may have been inclined to take.
48.3. Publication of the report in full can, in my view, only assist the legitimate and ongoing public debate with regard to treatment of the mentally ill and of those with disturbed personalities in the community: which has already resulted, among other things, in extensive proposed revisions to the Mental Health legislation.
For all these reasons (which in many ways reflect the reasons given by the Panel itself as set out in paragraph 18 above and the reasons given by the Defendants, and with which I agree) I think that a compelling case in favour of publication in full is made out, balancing the relevant considerations under Article 8 alone. It seems to me, by reference to that Article, that such a decision is proportionate and justified as being necessary in the public interest.
Turning then to Article 10 – which is conceded to be engaged and relevant – and balancing the considerations there, as I see it that can only operate to confirm such a viewpoint. The considerations set out above – not least the fact that in essence much of the information is (albeit without the detail of the report) already in the public domain – seem to me to tell strongly against an interference with the operation of Article 10 being justified.
Mr Clayton made the point that this is not a case of publication by the press, the freedom of which the courts, generally speaking, seek to uphold. That is true. But the reality is that, for much of the public, access to the report will depend on informed comment by the media. It surely is desirable for the press and other media to have access to the full report – the more so when one of the purposes of the report is to correct previous publicised inaccuracies – so that their summaries and their comments for public consumption are based on knowledge of the full facts and details as set out in the report. It is moreover, in my view, important that the conduct of the public authorities in a context such as the present are seen to be subject to public scrutiny, with consequential legitimate and informed public debate on the conclusions to be drawn and lessons to be learned.
For these reasons, and on the ultimate balancing test, I am of the clear view that the decision to publish the report in full was entirely justified.
The Data Protection Act 1998
I turn to the argument based on the Data Protection Act 1998. This was rather shortly addressed in the written submissions but was greatly expanded in oral argument. If the argument is correct, it would of course mean that there could be no publication as the Defendants seek. Indeed, publication would also then not be “in accordance with law” for the purposes of Article 8.
However I consider that the Claimant’s argument is unjustifiably restrictive and is not correct.
The Data Protection Act 1998 was made in consequence of Directive 95/46/EC of 24th October 1995. As a matter of principle, the Act should be sought to be interpreted so as to accord with the policy and purpose behind the Directive.
The recitals to the Directive are extensive. Respect for fundamental rights and freedoms, “notably the right to privacy”, is much emphasised: see recitals (1)-(3), (7), (8), (10) and (33). Recital (34) provides as follows:
“(34) Whereas Member States must also be authorized, when justified by grounds of important public interest, to derogate from the prohibition on processing sensitive categories of date where important reasons of public interest so justify in areas such as public health and social protection – especially in order to ensure the quality and cost-effectiveness of the procedures used for settling claims for benefits and services in the health insurance system – scientific research and government statistics; whereas it is incumbent on them, however, to provide specific and suitable safeguards so as to protect the fundamental rights and the privacy of individuals.”
Article 1 of the Directive provides as follows:
“1. In accordance with this Directive, Member states shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.
2. Member States shall neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded under paragraph 1.”
Article 8 (in the relevant respects) provides as follows:
“(1) Member states shall prohibit the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and the processing of data concerning health or sex life.
. . . .
(3) Paragraph 1 shall not apply where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health-care services, and where those data are processed by a health professional subject under national law or rules established by national competent bodies to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy.
(4) Subject to the provision of suitable safeguards, Member States may, for reasons of substantial public interest, lay down exemptions in addition to those laid down in paragraph 2 either by national law or by decision of the supervisory authority.”
The structure of the Data Protection Act 1998 – reflecting that of the Directive – is to provide for “personal data” (defined in section 1) and then (in section 2) to make provision for “sensitive personal data”. Sensitive personal data expressly includes personal data consisting of information as to a data subject’s physical or mental health or condition: section 2(e). “Data controller” and “data processor” are given wide definitions in section 1. “Processing” is also given a wide definition in section 1: see also the decision of the Court of Appeal in the Campbell case [2003] QB 633. Section 4 then sets out the principles to be applied by every data controller. The first principle (as set out in Schedule 1) is that: “Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless:
a) at least one of the conditions in Schedule 2 is met; and
b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.”
That language connotes that more than one condition in Schedule 2 or Schedule 3 is capable of being satisfied in any given case.
It is not disputed that the Defendants’ decision to publish would involve “processing” of “sensitive personal data” relating to Mr Stone.
It is clear in this case – and is conceded on behalf of Mr Stone at this stage of the argument – that a condition in Schedule 2 is satisfied: viz. paragraph 5(2) of Schedule 2 (“The processing is necessary… for the purpose of any other functions of a public nature exercised in the public interest by any person”). It is common ground that the word “necessary”, as used in the Schedules to the 1998 Act, carries with it the connotations of the European Convention on Human Rights: those include the proposition that a pressing social need is involved and that the measure employed is proportionate to the legitimate aim being pursued.
The issue in the present case thus is whether one or more conditions set out in Schedule 3 is satisfied.
Paragraph 7 of Schedule 3 provides that one such condition is where “the processing is necessary…. (b) for the exercise of any functions conferred on any person by or under an enactment”.
That the Defendants have the power to commission an inquiry and promulgate its report is, as I have said and as Mr Clayton ultimately accepted, established under s.2 of the National Health Service Act 1977 and paragraph 3 of the 2002 Regulations. Such power is properly described as a “function” – indeed is so described in paragraph 3(3) and Schedule 1 of the 2002 Regulations themselves. Further the Defendants, by reference to the 2002 Regulations made pursuant to the 1977 Act, are exercising functions “under” an enactment. Consequently since the processing is – consistently with the earlier part of my judgment and the Claimant’s concession by reference to paragraph 5 of Schedule 2 – “necessary”, one of the conditions in Schedule 3 is satisfied.
Mr Clayton’s response to this, in his submissions in reply, was very wide ranging. It came to this. The inclusion of such provision has to be traced back, he submitted, to Article 8(4) of the Directive. Article 8(4), however, is qualified by the words “subject to the provision of suitable safeguards”. But paragraph 7 of Schedule 3 does not, he submits, make provision for any such safeguards (in contrast, for example, with paragraph 9 of Schedule 3): and he submits it should be read, consistently with the Directive, so as to include the provision of appropriate safeguards.
I cannot accept this for a number of reasons:
65.1. First, the Directive clearly leaves a margin of appreciation to Member States in implementation.
65.2. Second, Article 8(4) itself leaves it to Member States to decide what “suitable safeguards” are to be provided in a particular case.
65.3. Third, the structure of the 1998 Act – reflecting the Directive – is to build in safeguards. By way of example, an exception has to be justified where it is “necessary”.
65.4. Fourth, Parliament clearly has distinguished paragraph 7 of Schedule 3 from paragraph 9: in the latter “appropriate safeguards” are expressly made requisite; in the former (which relates to the exercise of functions by or under an enactment, with the attendant responsibilities that entails) they are not.
65.5. Finally, if an additional requirement for “appropriate safeguards” is somehow to be read into paragraph 7 it is left unexplained as to what different result that would or should actually lead to in the present case.
Mr Havers and Miss Laing also argued that the Defendants came within paragraph 8 of Schedule 3 (which reflects what is provided in Article 8(3) of the Directive). In view of my decision on paragraph 7 it is not strictly necessary to express a concluded view on this: but I will, in deference to the arguments I heard, state – albeit briefly – my opinion on that.
Paragaph 8 of Schedule 3 provides as follows:
“(1) The processing is necessary for medical purposes and is undertaken by:
(a) a health professional or
(b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional.
(2) In this paragraph “medical purposes” includes the purposes of preventative medicine, medical diagnosis, medical research, the provision of care and treatment and the management of healthcare services.”
The publishing of the report would, I consider, be within the ambit of “medical purposes”, for the purposes of paragraph 8, as relating to “the management of healthcare services”. It would also, essentially for the reasons I have already given, be “necessary” for such medical purposes. Furthermore the processing would be by the Defendants, who are within the class of persons owing a duty of confidentiality equivalent to that which would arise if they were health professionals. Accordingly, the processing would fall within the ambit of paragraph 8.
I was attracted by Mr Clayton’s argument that such paragraph was intended to relate to (for example) an exchange of professional views on a medical case between two separate medical departments: the safeguard being that each is under a duty of confidentiality. But as against that paragraph 8 focuses on the processing and the person undertaking the processing: it does not focus on the recipient of the information. Further, a safeguard is built in, in that the duty of confidentiality owed is such that, under English law, there in any event could be no processing or disclosure unless it had first been concluded that (assuming the absence of express consent) the public interest so required.
Overall, therefore, I preferred the submissions of Mr Havers and Miss Laing on the availability of paragraph 8 of Schedule 3 here to sanction the publication of the report, in addition to paragraph 7 of Schedule 3.
Conclusion
The public interest requires publication of the report in full. The decision to publish was justified and proportionate, and does not constitute an unwarranted interference with Article 8 of the Convention. Further, no breach of the Data Protection Act 1998 is involved.
Accordingly, this claim fails and I refuse to grant Mr Stone any of the relief that he seeks.
ANNEX “A”
Michael Stone
-and-
South East Coast Strategic Health Authority
and Others
1. Chapter 8 of the Report is headed “Addiction Services”.
2. The Claimant’s illustrative redaction exercise relates to the first four sections of the Chapter and to sections thirteen and fourteen.
3. The view of the Panel, whose report it is, is clearly set out in the second witness statement of Mr Francis dated 14th June 2006. He quotes in it the view of Dr Higgins as representing in summary the Panel’s view:
“The proposed draft seeks to exclude any detail of Mr Stone’s psychopathology and behaviour and how this was reported by him and how others reported it in turn and what the responses and consequences were. This renders the report virtually valueless, in my view.
His case and its variable management was extremely complex over a considerable period of time. It involved many individuals and agencies. Rarely did anyone have close to the full picture that we, in retrospect and with much endeavour, arrived at. Not describing accurately and in full what any individual did know or could have known at any particular point makes it quite unfair to criticise actions or omissions by anyone involved and, equally as important, to describe how well some individuals performed in such trying circumstances.
This is even more important in this case for other reasons. Marked inaccuracies have already been reported in the media. It has already been put about in the media that this was a straightforward case in which some individuals performed to a poor standard.
Finally, it was our remit to describe what happened in all its detail, complexity and uncertainty, exactly as and when it happened, and as events seemed to those at the time, in order that the true story is told and what lessons can be drawn from the tragedy are learned. The bowdlerised version as clearly intended by this draft chapter is quite inadequate to this task.”
4. Mr Francis, after commenting in detail on the proposed redactions, himself says that if comparable amendments were to be made to all chapters of the report he would consider that “the purpose of publishing it would be entirely defeated”. Having considered the entirety of the proposed redacted parts of Chapter 8, I agree with the views of Dr Higgins and Mr Francis and am of the clear viewthat these comments are justified.
5. By way of example, the starting section, headed “Overall Evaluation of the Addiction Services” is subject to extensive redaction. The purpose is unclear in many respects. For example (and it is only an example) in dealing with the Manor Road Clinic the report says “No systematic or comprehensive addictions assessment was carried out and no full substance abuse history was taken”. These words are redacted; and what is substituted are the words “There were deficiencies in the assessment of his condition”. In the same paragraph the report refers to “relevant notes of attendances at counselling sessions were brief and uninformative”: in the redacted version the words “of attendances at counselling sessions” are deleted.
6. This straightaway indicates the problem. A bland reference to “deficiencies in the assessment of his condition” leaves the public to wonder what the deficiencies were and who (if anyone) is intended to be criticised and what should in consequence be improved. As to the notes, again the public is left wondering as to the source of the notes and to what they relate.
7. Again, under a heading “Changing the Diagnosis” etc the entirety of the report’s overview reads as follows:
“Mr Stone made several requests for in-patient detoxification treatment, and on one occasion a plan for in-patient admission following community detoxification was formulated. None of these resulted in an admission. No offer of a bed was ever made to Mr Stone by the Addictions team. In-patient detoxification was not actively or clearly encouraged even when he reached his pre-determined target for admission. The reasons for this are not recorded”.
The redaction exercise deletes that in its entirety and substitutes for it: “The Panel identified a number of shortcomings in relation to the service’s approach to possible in-patient detoxification”.
8. This bland rewording is, as it seems to me, a good example of how the report is effectively being rewritten. It completely dilutes the impact of what the Panel is saying and the identification of specific deficiencies.
9. Yet further, in section 3.1 whole swathes of what the panel have written are deleted and entirely reworded in, generalised language. There is, of course, a wholesale deletion of details from the relevant medical notes: for example that a GP was in February 1993 reporting to a psychiatrist that Mr Stone had “bizarre fantasies and urges to attack people”; that the GP’s reported view was that Mr Stone was “very paranoid and a threat to children and people outside” and “Mr Stone also feels that he is a threat and expressed a wish to be locked away in Broadmoor”. References from the notes on another occasion are to the effect that Mr Stone’s favourite drug was heroin or methadone because they “calm him down and stop him from being aggressive.” All this detail is removed – thereby preventing the public from making an informed view as to who knew what, what was in consequence being done (or, as the case may be, not done) and so on. Precisely the same criticism can be made of wholesale deletions of other parts of section 3.
10. The same objection can be made to the redaction exercise undertaken in section 4. There is wholesale deletion of citations from medical notes, or reports of health professionals based on those notes, with a brief and uninformative “summary” – in wholly new language – of that information. Thus (by way of example) in sections 4.6 and 4.7 of the actual report there is a description of the notes of Dr W, a community psychiatrist, who had seen Mr Stone on 9th March 1993 setting out his comments about the effect of drugs on Mr Stone and the notes of Mr Y (a mental health nurse who saw Mr Stone at this time) are also described in detail: these include comments to the effect that Mr Stone “could be a danger to himself or other people. Mr Y said he realised he would have to inform other people very quickly if things became unstable”.
11. These points are clearly of great relevance. The details matter. Yet the redacted exercise – which also for some reason sometimes deletes dates, thereby distorting the level of contact going on at the time – turns the wording into “Dr W described to the Panel his experience of meeting Mr Stone”. That is virtually useless as information to the reader. So far as Mr Y is concerned this becomes: “Mr Y – RMN told the Panel about his experience of seeing Mr Stone and his impression as regards his behaviour towards others and his drug use. He expressed views about the likely nature of his prospective relationship with Mr Stone.” What was that impression? What were these views? What could be the consequences?
12. This kind of approach is consistently repeated in the redaction exercise. The consequence is a distorted report, with a vitiating lack of information. Indeed it has two wider consequences:
(1) First the Recommendations made at the end of Chapter 8 are left unredacted and unaltered. But these Recommendations are intended to be founded on the details contained in the preceding parts of the Chapter: the redaction exercise thus leaves the Recommendations to a significant extent without their factual base and justification.
(2) Moreover the summary Comments of the Panel in Section 4 are themselves the subject of redaction in places. Thus a criticism of the Panel was that no addictions assessment was conducted pulling all the relevant information “together” in one place in the form of notes”. But these crucial last words are proposed to be deleted, thereby distorting the Panel’s point. The Panel then go on to say that “In particular there was no evidence of”: [and then it sets out a number of analyses, appraisals and assessments that were not made.] All these are deleted too.
13. I do not need to say more. What I have sought to say above by way of example is clearly borne out, I consider, by a study of the redacted parts of Chapter 8, read as a whole. I accept as justified the assessment of the Defendants (as set out in the further witness statement of Mr Marsden and Mr Underwood). Thus, as Mr Underwood says: “the overall effect of omitting so much details is to make Chapter 8 sparse, unsubstantive and lacking credibility. Most importantly, it fails to give an accurate account of what happened.” I agree. I also agree with Mr Badenoch’s submission that the Panel’s factual conclusions derive their force and validity from the Panel’s detailed enquiry into, and description of, the observed and recorded history of Mr Stone and his presentation to the variousagencies; from the consequential response (or lack of it); and from the rationale for the decision making and responses (or lack of them) on the part of those agencies and relevant personnel. That is what the public interest requires to be known. I think that Mr Badenoch was justified in his submission that the Claimant’s attempts to redact Chapter 8 if anything in fact established the need for publication in full.
ANNEX “B”
Michael Stone
-and-
South East Coast Strategic Health Authority
and Others
1. I have referred in the body of the judgment to the Defendants’ solicitors’ letter to Mr Francis dated 8th June 2004. Mr Francis provided a lengthy response, on behalf of Panel, on 9th July 2004. In that letter, Mr Francis reiterated that the Panel had borne in mind throughout the question of privacy; and that, to the extent that – as the Panel thought – the public interest required disclosure, it should be limited to that required for the identified purposes. In my judgment, the latter shows clearly that the Panel had approached the matter in the right way.
2. The particular points raised by Mr Mason as being of possible concern were 24 in number.
3. The first and second points were queries as to whether background information from 1972 including assorted test results was really necessary. Mr Francis’ response was that it was considered necessary to include a full account from childhood records to show the history of disturbance from an early age, and also to note positive features in Mr Stone’s character that stage. Mr Francis went on to say “we found it of concern that those involved in the care and treatment of Mr Stone in adult life apparently had no knowledge of the childhood background”. These are valid points.
4. The third point is a query to a reference in the report to the use of “hammers” conversed in Mr Stone’s discussions with health professionals (a point also made by the solicitors with regard to similar references in other parts of the report). It seems to me self-evident – as it did to Mr Francis – that such references were necessary: not simply because of the manner of the deaths of Lin and Megan Russell but because such references were highly material to the assessment of Mr Stone’s dangerousness and to management needs. As Mr Francis said, with regard to the judgments the professionals needed to make: “Merely to refer in general terms to a history of acts and threats of violence would be insufficiently specific and would indeed be inaccurate. They were faced with specific information about Mr Stone’s actual use of, and thoughts concerning the use of, a specific type of weapon”. That is a valid point.
5. The same points, in my view, are validly made as to the solicitors’ queries to references variously in the report to records of Mr Stone referring to stabbing; to dismembering; to threats of murdering someone; to threats to kill prison officers; to his reporting fantasies about killing children. These can all be justified. Precisely what professional staff knew – either at the time or subsequently when reviewing the files – was relevant to risk assessment and perceptions of dangerousness and to the responses needed in consequence.
6. A query was raised as to the reference to Mr Stone’s previous convictions. But those in themselves were relevant to the assessment process. In any event, they were in the public domain, having been read out at trial for sentencing purposes.
7. A query was raised as to whether it was necessary to make a reference to Mr Stone’s sexuality. That was most briefly done, the report simply saying (at p.222) that in October 1996 a detailed multi-disciplinary review was carried out; and that “his sexuality was also reviewed at some length”. That nothing further than that was said on this aspect is in my view illustrative of the fact that the Panel throughout was trying to keep the disclosure of private detail to the minimum necessary for the task in hand. However that there was such a review is, as Mr Francis observed, material to whether a competent review was undertaken at that time. Clearly there was room for suspecting psycho-sexual issues might be present (indeed such a point had been raised in at least one newspaper article).
8. It is not necessary to say more on this. I accept Mr Havers’ submission that all these points are necessarily made, and form part of the detailed information on which the Panel’s ultimate conclusions necessarily are based. I reject the Claimant’s criticism of the inclusion of these points – for reasons which broadly correspond to my rejection of the proposed redaction exercise.
9. I only add that these points as queried by the Defendants’ Solicitors had virtually all, to a greater or lesser extent, emerged in the media and thus, as points, were in the public domain: even if, of course, not raised with the detail or precision of the report itself.
Niemietz v Germany
16 EHRR 97, [1992] ECHR 80, [1993] 16 EHRR 97, (1993) 16 EHRR 97, (1992) 16 EHRR 97, [1992] ECHR 13710/88, [1992] 16 EHRR 97
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
Mr Niemietz lives in Freiburg im Breisgau, Germany, where he practises as a lawyer (Rechtsanwalt).
On 9 December 1985 a letter was sent by telefax from the Freiburg post office to Judge Miosga of the Freising District Court (Amtsgericht). It related to criminal proceedings for insulting behaviour (Beleidigung) pending before that court against Mr J., an employer who refused to deduct from his employees’ salaries and pay over to the tax office the Church tax to which they were liable. The letter bore the signature of one Klaus Wegner – possibly a fictitious person -, followed by the words “on behalf of the Anti-clerical Working Group (Antiklerikaler Arbeitskreis) of the Freiburg Bunte Liste (multi-coloured group)” and a post-office box number. It read as follows:
“On 10.12.1985 the trial against Mr [J.] will take place before you. We, the Anti-clerical Working Group of the Freiburg Bunte Liste, protest most strongly about these proceedings.
In the FRG, the Church, on the basis of the Hitler concordat and in violation of the State’s duty to maintain neutrality, enjoys most extensive privileges. As a result, every non-Christian citizen of this State has to suffer disadvantages and daily annoyance. Among other things, the FRG is the only State which acts as Church-tax collector. It requires employers, whether they be Christians or not, to pay over Church tax for their Christian employees and thus relieve the Church of financial administrative work. [J.] has, for years, courageously and consistently refused to support the financing of the Church in this way and has made an appropriate arrangement whereby the Church tax of his Christian employees is paid without his own involvement.
This attempt – in a State which counts the separation of State and Church among its basic principles – to insist upon just such a separation has not only exposed [J.] to persistent vexation and interferences on the part of State authorities, culminating in the tax office employing coercive measures, such as attachment, to collect from him Church tax which his employees had already paid a long time previously. It has in addition involved him – when he called these underhand methods by their name – in the present proceedings for alleged insulting behaviour.
Were it your task as the competent judge to conduct an unbiased examination of this ‘case of insulting behaviour’, then it must be said that you have not only failed to carry out this task, but also abused your office in order to try – by means which give a warning and a reminder of the darkest chapters of German legal history – to break the backbone of an unloved opponent of the Church. It was with extreme indignation that we learned of the compulsory psychiatric examination which was conducted on your instructions, and to which [J.] has had to submit in the meantime. We shall use every avenue open to us, in particular our international contacts, to bring to public notice this action of yours, which is incompatible with the principles of a democratic State subscribing to the rule of law.
We shall follow the further course of the proceedings against [J.] and expect you to abandon the path of terrorisation which you have embarked upon, and to reach the only decision appropriate in this case – an acquittal.”
The applicant had, as a city councillor, been chairman for some years of the Freiburg Bunte Liste, which is a local political party. He had also played a particularly committed role in, although he had never been a member of, its Anti-clerical Working Group, which sought to curtail the influence of the Church.
Until the end of 1985 certain of the mail for the Bunte Liste, which had as its address for correspondence only the post-office box number that had been given in the letter to Judge Miosga, had been delivered to the office (Bürogemeinschaft) of the applicant and a colleague of his; the latter had also been active on behalf of the party and had acted for it professionally.
On 13 January 1986 the Director of the Munich I Regional Court (Landgericht) requested the Munich public prosecutor’s office (Staatsanwaltschaft) to institute criminal proceedings against Klaus Wegner for the offence of insulting behaviour, contrary to Article 185 of the Criminal Code. Attempts to serve a summons on him were unsuccessful. The applicant’s colleague refused to give any information about Klaus Wegner or his whereabouts and other attempts to identify him failed.
In the context of the above-mentioned proceedings the Munich District Court issued, on 8 August 1986, a warrant to search the law office of the applicant and his colleague and the homes of Ms D. and Ms G. The warrant read as follows:
“Preliminary investigations against Klaus Wegner concerning Article 185 of the Criminal Code
Decision
The search of the following residential and business premises for documents which reveal the identity of ‘Klaus Wegener’ [sic] and the seizure of such documents is ordered.
1.. Office premises shared by the lawyers Gottfried Niemietz and …,
2.. Home (including adjoining rooms and cars) of Ms [D.] …,
3.. Home (including adjoining rooms and cars) of Ms [G.]
Reasons
On 9 December 1985 a letter insulting Judge Miosga of the Freising District Court was sent by telefax from the Freiburg post office. It was sent by the Anti-clerical Working Group of the Freiburg Bunte Liste. The letter was signed by one Klaus Wegener.
Until now it has not been possible to identify the signatory. The Freiburg Bunte Liste could not be contacted by mail otherwise than through a box number. Until the end of 1985 such mail was forwarded to the office of Niemietz and …, and since the start of 1986 to Ms [D.]. It has therefore to be assumed that documents throwing light on the identity of Klaus Wegener can be found at the premises of the above-mentioned persons.
Furthermore, it is to be assumed that there are such documents in the home of Ms [G.], the Chairwoman of the Freiburg Bunte Liste.
For these reasons, it is to be expected that evidence will be found in the course of a search of the premises indicated in this decision.”
The search of the law office, the need for which the investigating authorities had first tried to obviate by questioning a witness, was effected by representatives of the Freiburg public prosecutor’s office and the police on 13 November 1986. According to a police officer’s report drawn up on the following day, the premises were entered at about 9.00 a.m. and inspected in the presence of two office assistants. The actual search began at about 9.15 a.m., when the applicant’s colleague arrived, and lasted until about 10.30 a.m. The applicant himself arrived at 9.30 a.m. He declined to give any information as to the identity of Klaus Wegner, on the ground that he might thereby expose himself to the risk of criminal prosecution.
Those conducting the search examined four filing cabinets with data concerning clients, three files marked respectively “BL”, “C.W. -Freiburg District Court …” and “G. – Hamburg Regional Court” and three defence files marked respectively “K.W. – Karlsruhe District Court …”, “Niemietz et al. – Freiburg District Court …” and “D. – Freiburg District Court”. According to the applicant, the office’s client index was also looked at and one of the files in question was its “Wegner defence file”. Those searching neither found the documents they were seeking nor seized any materials. In the proceedings before the Commission, the applicant stated that he had been able to put aside in time documents pointing to the identity of Klaus Wegner and had subsequently destroyed them.
The homes of Ms D. and Ms G. were also searched; documents were found that gave rise to a suspicion that the letter to Judge Miosga had been sent by Ms D. under an assumed name.
On 10 December 1986 the Chairman of the Freiburg Bar Association, who had been informed about the search by the applicant’s colleague, addressed a formal protest to the President of the Munich District Court. The Chairman sent copies to the Bavarian Minister of Justice and the Munich Bar Association and invited the latter to associate itself with the protest.
In a reply of 27 January 1987, the President of the Munich District Court stated that the search was proportionate because the letter in question constituted a serious interference with a pending case; hence no legal action on the protest was necessary.
The criminal proceedings against “Klaus Wegner” were later discontinued for lack of evidence.
On 27 March 1987 the Munich I Regional Court declared an appeal (Beschwerde) lodged by the applicant, pursuant to Article 304 of the Code of Criminal Procedure, against the search warrant to be inadmissible, on the ground that it had already been executed (“wegen prozessualer Überholung”). It considered that in the circumstances there was no legal interest in having the warrant declared unlawful. It had not been arbitrary, since there had been concrete indications that specified material would be found. There was no ground for holding that Article 97 of the Code of Criminal Procedure (see paragraph 21 below) had been circumvented: the warrant had been based on the fact that mail for the Freiburg Bunte Liste had for some time been delivered to the applicant’s office and it could not be assumed that that mail could concern a lawyer-client relationship. In addition, personal honour was not so minor a legal interest as to render the search disproportionate. There could be no question in the present case of preventing a lawyer from freely exercising his profession.
On 28 April 1987 the applicant lodged a constitutional complaint (Verfassungsbeschwerde) against the search warrant of 8 August 1986 and the Munich I Regional Court’s decision of 27 March 1987. On 18 August a panel of three judges of the Federal Constitutional Court (Bundesverfassungsgericht) declined to accept the complaint for adjudication, on the ground that it did not offer sufficient prospects of success.
The Federal Constitutional Court also found that the Munich I Regional Court’s decision of 27 March 1987 that the applicant’s appeal was inadmissible was not objectionable in terms of constitutional law. Furthermore, as regards the actual execution of the warrant, Mr Niemietz had not exhausted the remedy available to him under section 23(1) of the Introductory Act to the Courts Organisation Act (Einführungsgesetz zum Gerichtsverfassungsgesetz).
II. RELEVANT DOMESTIC LAW
The search complained of was ordered in the context of criminal proceedings for insulting behaviour, an offence punishable by imprisonment for a maximum, where no physical violence is involved, of one year or a fine (Article 185 of the Criminal Code).
Article 13 para. 1 of the Basic Law (Grundgesetz) guarantees the inviolability of the home (Wohnung); this provision has been consistently interpreted by the German courts in a wide sense, to include business premises (see, in particular, the Federal Constitutional Court’s judgment of 13 October 1971 – Entscheidungssammlung des Bundesverfassungsgerichts, vol. 32, p. 54).
Article 103 of the Code of Criminal Procedure provides that the home and other premises (Wohnung und andere Räume) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence, to investigate indications of an offence or to seize specific objects and provided always that there are facts to suggest that such a person, indications or objects is or are to be found on the premises to be searched.
Search warrants may be challenged, as regards their lawfulness, in proceedings instituted under Article 304 of the Code of Criminal Procedure and, as regards their manner of execution, in proceedings instituted under section 23(1) of the Introductory Act to the Courts Organisation Act.
In Germany a lawyer is an independent organ in the administration of justice and an independent counsel and representative in all legal matters.
An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of one year or a fine (Article 203 para. 1(3) of the Criminal Code). A lawyer is entitled to refuse to give testimony concerning any matter confided to him in a professional capacity (Article 53 para. 1(2) and (3) of the Code of Criminal Procedure). The last-mentioned provisions, in conjunction with Article 97, prohibit, with certain exceptions, the seizure of correspondence between lawyer and client.
III. CASE-LAW OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
In its judgment of 21 September 1989 in Joined Cases 46/87 and 227/88 Hoechst v. Commission [1989] European Court Reports (“ECR”) 2859 at 2924, the Court of Justice of the European Communities stated as follows:
“Since the applicant has also relied on the requirements stemming from the fundamental right to the inviolability of the home, it should be observed that, although the existence of such a right must be recognized in the Community legal order as a principle common to the laws of the Member States in regard to the private dwellings of natural persons, the same is not true in regard to undertakings, because there are not inconsiderable divergences between the legal systems of the Member States in regard to the nature and degree of protection afforded to business premises against intervention by the public authorities.
No other inference is to be drawn from Article 8(1) (art. 8-1) of the European Convention on Human Rights which provides that: ‘Everyone has the right to respect for his private and family life, his home and his correspondence’. The protective scope of that article is concerned with the development of man’s personal freedom and may not therefore be extended to business premises. Furthermore, it should be noted that there is no case-law of the European Court of Human Rights on that subject.
None the less, in all the legal systems of the Member States, any intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, must have a legal basis and be justified on the grounds laid down by law, and, consequently, those systems provide, albeit in different forms, protection against arbitrary or disproportionate intervention. The need for such protection must be recognized as a general principle of Community law. In that regard, it should be pointed out that the Court has held that it has the power to determine whether measures of investigation taken by the Commission under the ECSC Treaty are excessive (judgment of 14 December 1962 in Joined Cases 5 to 11 and 13 to 15/62 San Michele and Others v. Commission [1962] ECR 449).”
This statement was affirmed in the same court’s judgments of 17 October 1989 in Case 85/87 Dow Benelux v. Commission [1989] ECR 3137 at 3157 and Joined Cases 97 to 99/87 Dow Chemical Ibérica and Others v. Commission [1989] ECR 3165 at 3185-6.
PROCEEDINGS BEFORE THE COMMISSION
In his application (no. 13710/88) lodged with the Commission on 15 February 1988, Mr Niemietz alleged that the search had violated his right to respect for his home and correspondence, guaranteed by Article 8 (art. 8) of the Convention, and had also, by impairing the goodwill of his law office and his reputation as a lawyer, constituted a breach of his rights under Article 1 of Protocol No. 1 (P1-1). In addition, he submitted that, contrary to Article 13 (art. 13) of the Convention, he had no effective remedies before German authorities in respect of those complaints.
By decision of 5 April 1990, the Commission declared the complaints under Article 8 (art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) admissible and the remainder of the application inadmissible.
In its report of 29 May 1991 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 8 (art. 8) of the Convention and that no separate issue arose under Article 1 of Protocol No. 1 (P1-1). The full text of the Commission’s opinion is reproduced as an annex to this judgment….
FINAL SUBMISSIONS MADE TO THE COURT
At the hearing, the Agent of the Government invited the Court to find that the Federal Republic of Germany had not violated Article 8 (art. 8) of the Convention in the present case.
The applicant, for his part, requested the Court to hold that the search of his office had constituted a breach of the Convention.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION
Mr Niemietz alleged that the search of his law office had given rise to a breach of Article 8 (art. 8) of the Convention, which reads as follows:
“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.”
This submission was accepted by the Commission, on the basis that the search constituted an unjustified interference with the applicant’s private life and home.
A. Was there an “interference”?
In contesting the Commission’s conclusion, the Government maintained that Article 8 (art. 8) did not afford protection against the search of a lawyer’s office. In their view, the Convention drew a clear distinction between private life and home, on the one hand, and professional and business life and premises, on the other.
In arriving at its opinion that there had been an interference with Mr Niemietz’s “private life” and “home”, the Commission attached particular significance to the confidential relationship that exists between lawyer and client. The Court shares the Government’s doubts as to whether this factor can serve as a workable criterion for the purposes of delimiting the scope of the protection afforded by Article 8 (art. 8). Virtually all professional and business activities may involve, to a greater or lesser degree, matters that are confidential, with the result that, if that criterion were adopted, disputes would frequently arise as to where the line should be drawn.
The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of “private life”. However, it would be too restrictive to limit the notion to an “inner circle” in which the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside world not encompassed within that circle. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings.
There appears, furthermore, to be no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that, as was rightly pointed out by the Commission, it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time.
To deny the protection of Article 8 (art. 8) on the ground that the measure complained of related only to professional activities – as the Government suggested should be done in the present case – could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them. In fact, the Court has not heretofore drawn such distinctions: it concluded that there had been an interference with private life even where telephone tapping covered both business and private calls (see the Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25); and, where a search was directed solely against business activities, it did not rely on that fact as a ground for excluding the applicability of Article 8 (art. 8) under the head of “private life” (see the Chappell v. the United Kingdom judgment of 30 March 1989, Series A no. 152-A, pp. 12-13, para. 26, and pp. 21-22, para. 51.)
As regards the word “home”, appearing in the English text of Article 8 (art. 8), the Court observes that in certain Contracting States, notably Germany (see paragraph 18 above), it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word “domicile” has a broader connotation than the word “home” and may extend, for example, to a professional person’s office.
In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person’s private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words “home” and “domicile” could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of “private life” (see paragraph 29 above).
More generally, to interpret the words “private life” and “home” as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities (see, for example, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). Such an interpretation would not unduly hamper the Contracting States, for they would retain their entitlement to “interfere” to the extent permitted by paragraph 2 of Article 8 (art. 8-2); that entitlement might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case.
To the above-mentioned general considerations, which militate against the view that Article 8 (art. 8) is not applicable, must be added a further factor pertaining to the particular circumstances of the case. The warrant issued by the Munich District Court ordered a search for, and seizure of, “documents” – without qualification or limitation – revealing the identity of Klaus Wegner (see paragraph 10 above). Furthermore, those conducting the search examined four cabinets with data concerning clients as well as six individual files (see paragraph 11 above); their operations must perforce have covered “correspondence” and materials that can properly be regarded as such for the purposes of Article 8 (art. 8). In this connection, it is sufficient to note that that provision does not use, as it does for the word “life”, any adjective to qualify the word “correspondence”. And, indeed, the Court has already held that, in the context of correspondence in the form of telephone calls, no such qualification is to be made (see the above-mentioned Huvig judgment, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25). Again, in a number of cases relating to correspondence with a lawyer (see, for example, the Schönenberger and Durmaz v. Switzerland judgment of 20 June 1988, Series A no. 137, and the Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233), the Court did not even advert to the possibility that Article 8 (art. 8) might be inapplicable on the ground that the correspondence was of a professional nature.
Taken together, the foregoing reasons lead the Court to find that the search of the applicant’s office constituted an interference with his rights under Article 8 (art. 8).
B. Was the interference “in accordance with the law”?
The applicant submitted that the interference in question was not “in accordance with the law”, since it was based on suspicions rather than facts and so did not meet the conditions laid down by Article 103 of the Code of Criminal Procedure (see paragraph 19 above) and since it was intended to circumvent the legal provisions safeguarding professional secrecy.
The Court agrees with the Commission and the Government that that submission must be rejected. It notes that both the Munich I Regional Court and the Federal Constitutional Court considered that the search was lawful in terms of Article 103 of the aforesaid Code (see paragraphs 15-16 and 19 above) and sees no reason to differ from the views which those courts expressed.
C. Did the interference have a legitimate aim or aims?
Like the Commission, the Court finds that, as was not contested by the applicant, the interference pursued aims that were legitimate under paragraph 2 of Article 8 (art. 8-2), namely the prevention of crime and the protection of the rights of others, that is the honour of Judge Miosga.
D. Was the interference “necessary in a democratic society”?
As to whether the interference was “necessary in a democratic society”, the Court inclines to the view that the reasons given therefor by the Munich District Court (see paragraph 10 above) can be regarded as relevant in terms of the legitimate aims pursued. It does not, however, consider it essential to pursue this point since it has formed the opinion that, as was contended by the applicant and as was found by the Commission, the measure complained of was not proportionate to those aims.
It is true that the offence in connection with which the search was effected, involving as it did not only an insult to but also an attempt to bring pressure on a judge, cannot be classified as no more than minor. On the other hand, the warrant was drawn in broad terms, in that it ordered a search for and seizure of “documents”, without any limitation, revealing the identity of the author of the offensive letter; this point is of special significance where, as in Germany, the search of a lawyer’s office is not accompanied by any special procedural safeguards, such as the presence of an independent observer. More importantly, having regard to the materials that were in fact inspected, the search impinged on professional secrecy to an extent that appears disproportionate in the circumstances; it has, in this connection, to be recalled that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (art. 6) of the Convention. In addition, the attendant publicity must have been capable of affecting adversely the applicant’s professional reputation, in the eyes both of his existing clients and of the public at large.
E. Conclusion
The Court thus concludes that there was a breach of Article 8 (art. 8).
II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1)
Mr Niemietz also argued that, by impairing his reputation as a lawyer, the search constituted a violation of Article 1 of Protocol No. 1 (P1-1), which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
Having already taken into consideration, in the context of Article 8 (art. 8), the potential effects of the search on the applicant’s professional reputation (see paragraph 37 above), the Court agrees with the Commission that no separate issue arises under Article 1 of Protocol No. 1 (P1-1).
III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION
Article 50 (art. 50) of the Convention reads:
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
In a letter filed on 16 December 1991 (see paragraph 4 above), the applicant requested the Court, taking into account in particular the damage caused to the reputation of his practice, to award him under Article 50 (art. 50) compensation of a type and amount to be determined by the Court in its discretion.
The Court is unable to accede to that request.
The applicant has, in the first place, not established that the breach of Article 8 (art. 8) caused him pecuniary damage. If and in so far as it may have occasioned non-pecuniary damage, the Court considers, like the Delegate of the Commission, that its finding of a violation constitutes of itself sufficient just satisfaction therefor. Finally, although Mr Niemietz stated at the hearing that his request extended to his costs and expenses referable to the proceedings in Germany and in Strasbourg, he has supplied no particulars of that expenditure.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article 8 (art. 8) of the Convention;
Holds that no separate issue arises under Article 1 of Protocol No. 1 (P1-1);
Dismisses the applicant’s claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 16 December 1992.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
Note 1 The case is numbered 72/1991/324/396. The first number is the case’s position on the list of cases referred to the Court in the relevant year (second number). The last two numbers indicate the case’s position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission. [Back]
Note 2 As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990. [Back]
Note 3 Note by the Registrar: for practical reasons this annex will appear only with the printed version of the judgment (volume 251- B of Series A of the Publications of the Court), but a copy of the Commission’s report is available from the registry. [Back]
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HALFORD v. THE UNITED KINGDOM
(1997) 24 EHRR 523, 3 BHRC 31, [1997] IRLR 471, [1997] ECHR 32, 24 EHRR 523, [1998] Crim LR 753, (1997) 3 BHRC 31
I. RELEVANT DOMESTIC LAW AND PRACTICE
A. Public telecommunications systems
1. The offence created by the Interception of Communications Act 1985
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).
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).
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.
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).
2. Exclusion of evidence
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.
3. Warrants
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).
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).
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).
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.
4. The Interception of Communications Tribunal
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).
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).
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).
5. The Commissioner
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.
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).
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.
B. Telecommunications systems outside the public network
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.
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).
PROCEEDINGS BEFORE THE COMMISSION
In her application of 22 April 1992 (no. 20605/92) to the Commission, Ms Halford complained that the interception of calls made from her office and home telephones amounted to unjustifiable interferences with her rights to respect for her private life and freedom of expression, contrary to Articles 8 and 10 of the Convention (art. 8, art. 10), that she had no effective domestic remedy in relation to the interceptions, contrary to Article 13 of the Convention (art. 13), and that she was discriminated against on grounds of sex, contrary to Article 14 of the Convention in conjunction with Articles 8 and 10 (art. 14+8, art. 14+10).
The Commission declared the application admissible on 2 March 1995. In its report of 18 April 1996 (Article 31) (art. 31), it expressed the opinion, by twenty-six votes to one, that there had been violations of Articles 8 and 13 of the Convention (art. 8, art. 13) in relation to Ms Halford’s office telephones and, unanimously, that there had been no violation of Articles 8, 10 or 13 (art. 8, art. 10, art. 13) in relation to her home telephone, that it was not necessary to consider the complaint under Article 10 (art. 10) in relation to her office telephones, and that there had been no violation of Article 14 taken in conjunction with Articles 8 or 10 (art. 14+8, art. 14+10). The full text of the Commission’s opinion and of the dissenting opinion contained in the report is reproduced as an annex to this judgment[3].
FINAL SUBMISSIONS TO THE COURT
At the hearing, as they had done in their memorial, the Government asked the Court to hold that there had been no violation of the Convention.
The applicant maintained that there had been a violation, and asked the Court to award her compensation under Article 50 of the Convention (art. 50).
AS TO THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 8 OF THE CONVENTION (art. 8)
Ms Halford alleged that the interception of her telephone calls amounted to violations of Article 8 of the Convention (art. 8), 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.”
The Commission agreed that there had been a violation so far as the interception of calls from her office telephones was concerned. The Government denied that there had been any violation.
A. The office telephones
1. Applicability of Article 8 (art. 8) to the complaint relating to the office telephones
The applicant argued, and the Commission agreed, that the calls made on the telephones in Ms Halford’s office at Merseyside police headquarters fell within the scope of “private life” and “correspondence” in Article 8 para. 1 (art. 8-1), since the Court in its case-law had adopted a broad construction of these expressions (see, for example, the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 21, para. 41; the Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25; the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B; and the A. v. France judgment of 23 November 1993, Series A no. 277-B).
The Government submitted that telephone calls made by Ms Halford from her workplace fell outside the protection of Article 8 (art. 8), because she could have had no reasonable expectation of privacy in relation to them. At the hearing before the Court, counsel for the Government expressed the view that an employer should in principle, without the prior knowledge of the employee, be able to monitor calls made by the latter on telephones provided by the employer.
In the Court’s view, it is clear from its case-law that telephone calls made from business premises as well as from the home may be covered by the notions of “private life” and “correspondence” within the meaning of Article 8 para. 1 (art. 8-1) (see the above-mentioned Klass and Others judgment, loc. cit.; the Malone v. the United Kingdom judgment of 2 August 1984, Series A no. 82, p. 30, para. 64; the above-mentioned Huvig judgment, loc. cit.; and, mutatis mutandis, the above-mentioned Niemietz judgment, pp. 33-35, paras. 29-33).
There is no evidence of any warning having been given to Ms Halford, as a user of the internal telecommunications system operated at the Merseyside police headquarters, that calls made on that system would be liable to interception. She would, the Court considers, have had a reasonable expectation of privacy for such calls, which expectation was moreover reinforced by a number of factors. As Assistant Chief Constable she had sole use of her office where there were two telephones, one of which was specifically designated for her private use. Furthermore, she had been given the assurance, in response to a memorandum, that she could use her office telephones for the purposes of her sex-discrimination case (see paragraph 16 above).
For all of the above reasons, the Court concludes that the conversations held by Ms Halford on her office telephones fell within the scope of the notions of “private life” and “correspondence” and that Article 8 (art. 8) is therefore applicable to this part of the complaint.
2. Existence of an interference
The Government conceded that the applicant had adduced sufficient material to establish a reasonable likelihood that calls made from her office telephones had been intercepted. The Commission also considered that an examination of the application revealed such a reasonable likelihood.
The Court agrees. The evidence justifies the conclusion that there was a reasonable likelihood that calls made by Ms Halford from her office were intercepted by the Merseyside police with the primary aim of gathering material to assist in the defence of the sex-discrimination proceedings brought against them (see paragraph 17 above). This interception constituted an “interference by a public authority”, within the meaning of Article 8 para. 2 (art. 8-2), with the exercise of Ms Halford’s right to respect for her private life and correspondence.
3. Whether the interference was “in accordance with the law”
Article 8 para. 2 (art. 8-2) further provides that any interference by a public authority with an individual’s right to respect for private life and correspondence must be “in accordance with the law”.
According to the Court’s well-established case-law, this expression does not only necessitate 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 secret measures of surveillance or interception of communications by public authorities, because of the lack of public scrutiny and the risk of misuse of power, the domestic law must provide some protection to the individual against arbitrary interference with Article 8 rights (art. 8). Thus, the domestic law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in and conditions on which public authorities are empowered to resort to any such secret measures (see the above-mentioned Malone judgment, p. 32, para. 67; and, mutatis mutandis, the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, p. 23, paras. 50-51).
In the present case, the Government accepted that if, contrary to their submission, the Court were to conclude that there had been an interference with the applicant’s rights under Article 8 (art. 8) in relation to her office telephones, such interference was not “in accordance with the law” since domestic law did not provide any regulation of interceptions of calls made on telecommunications systems outside the public network.
The Court notes that the 1985 Act does not apply to internal communications systems operated by public authorities, such as that at Merseyside police headquarters, and that there is no other provision in domestic law to regulate interceptions of telephone calls made on such systems (see paragraphs 36-37 above). It cannot therefore be said that the interference was “in accordance with the law” for the purposes of Article 8 para. 2 of the Convention (art. 8-2), since the domestic law did not provide adequate protection to Ms Halford against interferences by the police with her right to respect for her private life and correspondence.
It follows that there has been a violation of Article 8 (art. 8) in relation to the interception of calls made on Ms Halford’s office telephones.
B. The home telephone
1. Applicability of Article 8 (art. 8) to the complaint relating to the home telephone
It is clear from the Court’s case-law (see the citations at paragraph 44 above) that telephone conversations made from the home are covered by the notions of “private life” and “correspondence” under Article 8 of the Convention (art. 8). Indeed, this was not disputed by the Government.
Article 8 (art. 8) is, therefore, applicable to this part of Ms Halford’s complaint.
2. Existence of an interference
The applicant alleged that calls made from her telephone at home also were intercepted by the Merseyside police for the purposes of defending the sex discrimination proceedings. She referred to the evidence of interception which she had adduced before the Commission, and to the further specification made to the Court (see paragraph 17 above). In addition she submitted that, contrary to the Commission’s approach, she should not be required to establish that there was a “reasonable likelihood” that calls made on her home telephone were intercepted. Such a requirement would be inconsistent with the Court’s pronouncement in the above-mentioned Klass and Others case that the menace of surveillance could in itself constitute an interference with Article 8 rights (art. 8). In the alternative, she contended that if the Court did require her to show some indication that she had been affected, the evidence brought by her was satisfactory; given the secrecy of the alleged measures it would undermine the effectiveness of the protection afforded by the Convention if the threshold of proof were set too high.
The Government explained that they could not disclose whether or not there had been any interception of calls made from the telephone in Ms Halford’s home, since the finding which the Interception of Communications Tribunal was empowered to make under the 1985 Act was deliberately required to be couched in terms which did not reveal whether there had been an interception on a public telecommunications system properly authorised under the Act or whether there had in fact been no interception. They could, however, confirm that the Tribunal was satisfied that there had been no contravention of sections 2 to 5 of the 1985 Act in Ms Halford’s case (see paragraphs 19 and 32 above).
The Commission, applying its case-law, required the applicant to establish that there was a “reasonable likelihood” that calls made on her home telephone had been intercepted (see, for example, the report of the Commission on application no. 12175/86, Hewitt and Harman v. the United Kingdom, 9 May 1989, Decisions and Reports 67, pp. 98-99, paras. 29-32). Having reviewed all the evidence, it did not find such a likelihood established.
The Court recalls that in the above-mentioned Klass and Others case it was called upon to decide, inter alia, whether legislation which empowered the authorities secretly to monitor the correspondence and telephone conversations of the applicants, who were unable to establish whether such measures had in fact been applied to them, amounted to an interference with their Article 8 rights (art. 8). The Court held in that case that “in the mere existence of the legislation itself there is involved, for all those to whom the legislation could be applied, a menace of surveillance; this menace necessarily strikes at freedom of communication between users of the postal and telecommunication services and thereby constitutes an ‘interference by a public authority’ with the exercise of the applicants’ right to respect for private and family life and for correspondence” (p. 21, para. 41).
The Court further recalls that in its above-mentioned Malone judgment, in addition to finding that one telephone conversation to which the applicant had been a party had been intercepted at the request of the police under a warrant issued by the Home Secretary, it observed that “the existence in England and Wales of laws and practices which permit and establish a system for effecting secret surveillance of communications amounted in itself to an ‘interference’” (pp. 30-31, para. 64).
However, the essence of Ms Halford’s complaint, unlike that of the applicants in the Klass and Others case (cited above, p. 20, para. 38), was not that her Article 8 rights (art. 8) were menaced by the very existence of admitted law and practice permitting secret surveillance, but instead that measures of surveillance were actually applied to her. Furthermore, she alleged that the Merseyside police intercepted her calls unlawfully, for a purpose unauthorised by the 1985 Act (see paragraphs 26 and 53 above).
In these circumstances, since the applicant’s complaint concerns specific measures of telephone interception which fell outside the law, the Court must be satisfied that there was a reasonable likelihood that some such measure was applied to her.
In this respect the Court notes, first, that the Commission, which under the Convention system is the organ primarily charged with the establishment and verification of the facts (see, for example, the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2272, para. 38), considered that the evidence presented to it did not indicate a reasonable likelihood that calls made on the applicant’s home telephone were being intercepted (see the report of the Commission, paragraph 65).
The Court observes that the only item of evidence which tends to suggest that calls made from Ms Halford’s home telephone, in addition to those made from her office, were being intercepted, is the information concerning the discovery of the Merseyside police checking transcripts of conversations. Before the Court, the applicant provided more specific details regarding this discovery, namely that it was made on a date after she had been suspended from duty (see paragraph 17 above). However, the Court notes that this information might be unreliable since its source has not been named. Furthermore, even if it is assumed to be true, the fact that the police were discovered checking transcripts of the applicant’s telephone conversations on a date after she had been suspended does not necessarily lead to the conclusion that these were transcripts of conversations made from her home.
The Court, having considered all the evidence, does not find it established that there was an interference with Ms Halford’s rights to respect for her private life and correspondence in relation to her home telephone.
In view of this conclusion, the Court does not find a violation of Article 8 of the Convention (art. 8) with regard to telephone calls made from Ms Halford’s home.
II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION (art. 13)
Ms Halford further alleged that she had been denied an effective domestic remedy for her complaints, in violation of Article 13 of the Convention (art. 13), which states:
“Everyone whose rights and freedoms as set forth in [the] 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.”
A. The office telephones
The applicant, with whom the Commission agreed, contended that there had been a violation of Article 13 (art. 13) in view of the fact that there was no avenue in domestic law by which to complain about interceptions of calls made on telecommunications systems outside the public network.
The Government submitted that Article 13 (art. 13) was not applicable in that Ms Halford had not made out an “arguable claim” to a violation of Articles 8 or 10 of the Convention (art. 8, art. 10). In the alternative, they submitted that no separate issue arose under this provision (art. 13) in relation to the office telephones.
The Court recalls that the effect of Article 13 (art. 13) is to require the provision of a remedy at national level allowing the competent domestic authority both to deal with the substance of the relevant Convention complaint and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision (art. 13) (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, pp. 1869-70, para. 145). However, such a remedy is only required in respect of grievances which can be regarded as “arguable” in terms of the Convention.
The Court observes that Ms Halford undoubtedly had an “arguable” claim that calls made from her office telephones were intercepted and that this amounted to a violation of Article 8 of the Convention (art. 8) (see paragraphs 42-51 above). She was, therefore, entitled to an effective domestic remedy within the meaning of Article 13 (art. 13). However, as the Government have conceded in relation to Article 8 of the Convention (art. 8) (see paragraph 50 above), there was no provision in domestic law to regulate interceptions of telephone calls made on internal communications systems operated by public authorities, such as the Merseyside police. The applicant was therefore unable to seek relief at national level in relation to her complaint concerning her office telephones.
It follows that there has been a violation of Article 13 of the Convention (art. 13) in relation to the applicant’s office telephones.
B. The home telephone
The applicant also complained that there was no remedy available to her against an interception of telephone calls made from her home by the police acting without a warrant. She referred to the first report of the Commissioner appointed under the 1985 Act (see paragraphs 33-34 above) who observed that he “was not concerned with [the offence of unlawful interception created by the 1985 Act. He could] not in the nature of things know, nor could he well find out, whether there [had] been an unlawful interception … That is a job for the police” (Interception of Communications Act 1985, Report of the Commissioner for 1986, Cm 108, p. 2, para. 3).
The Government submitted that Ms Halford had not established an arguable claim of a violation of the Convention in relation to the interception of calls made from her home. In the alternative, they submitted that the aggregate of remedies available to her, including those provided by the 1985 Act (see paragraph 31 above), was sufficient to satisfy Article 13 (art. 13).
The Commission, in view of its conclusion as to the lack of a reasonable likelihood of interception of her home telephone calls, considered that she did not have an arguable claim warranting a remedy under Article 13 (art. 13).
The Court recalls its observation that, in order to find an “interference” within the meaning of Article 8 (art. 8) in relation to Ms Halford’s home telephone, it must be satisfied that there was a reasonable likelihood of some measure of surveillance having been applied to the applicant (see paragraph 57 above). It refers in addition to its assessment of the evidence adduced by the applicant in support of her claim that calls made from her home telephone were intercepted (see paragraphs 58-60 above).
The Court considers that this evidence is not sufficient to found an “arguable” claim within the meaning of Article 13 (art. 13) (see paragraph 64 above).
It follows that there has been no violation of Article 13 of the Convention (art. 13) in relation to the applicant’s complaint concerning her home telephone.
III. ALLEGED VIOLATION OF ARTICLES 10 AND 14 OF THE CONVENTION (art. 10, art. 14)
In her application to the Commission, Ms Halford had complained that the interception of calls made from both her home and office telephones amounted to violations of Articles 10 and 14 of the Convention (art. 10, art. 14). However, before the Court she accepted that it might not be necessary to examine, in relation to these provisions (art. 10, art. 14), matters which had already been considered under Article 8 (art. 8).
Article 10 of the Convention (art. 10) states (as far as relevant):
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers …
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Article 14 (art. 14) states:
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court considers that the allegations in relation to Articles 10 and 14 (art. 10, art. 14) are tantamount to restatements of the complaints under Article 8 (art. 8). It does not therefore find it necessary to examine them separately.
IV. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
Ms Halford asked the Court to grant her just satisfaction under Article 50 of the Convention (art. 50), which provides as follows:
“If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the … Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Non-pecuniary damage
Ms Halford claimed compensation for the intrusion into her privacy and the distress it had caused. She informed the Court that in 1992 she had required medical treatment for stress.
The Government commented that no causal connection had been established between the stress suffered by the applicant at the time of proceedings before the Industrial Tribunal and the interception of her telephone calls.
The Court, bearing in mind that the interception of calls made by Ms Halford on her office telephones at Merseyside police headquarters, not subject to any regulation by domestic law, appears to have been carried out by the police with the primary purpose of gathering material to be used against her in sex-discrimination proceedings, considers what occurred to have amounted to a serious infringement of her rights by those concerned. On the other hand, there is no evidence to suggest that the stress Ms Halford suffered was directly attributable to the interception of her calls, rather than to her other conflicts with the Merseyside police.
Having taken these matters into account, the Court considers that GBP 10,000 is a just and equitable amount of compensation.
B. Pecuniary damage
Ms Halford requested reimbursement of her personal expenses incurred in bringing the Strasbourg proceedings, estimated at between GBP 1,000 and GBP 1,250.
The Government accepted that a sum could properly be awarded to cover her costs in attending the hearing before the Court. However, they observed that she had not produced any evidence to substantiate any other expenses.
In view of the fact that no evidence was produced to substantiate Ms Halford’s expenses but that she clearly attended the hearing in Strasbourg, the Court decides to award GBP 600 in respect of this item.
C. Costs and expenses
The applicant also claimed the costs and expenses of instructing solicitors and counsel. Her solicitors asked for payment at the rate of GBP 239 per hour. They estimated that they had undertaken the equivalent of 500 hours’ work in connection with the Strasbourg proceedings and asked for GBP 119,500 (exclusive of value-added tax, “VAT”) in respect of this. In addition, they asked for GBP 7,500 (exclusive of VAT) in respect of disbursements and expenses. Counsel’s fees were GBP 14,875 plus expenses of GBP 1,000 (exclusive of VAT).
The Government considered that the hourly rate requested by Ms Halford’s solicitors was too high: in domestic proceedings the appropriate rate would be GBP 120-150 per hour. Furthermore, they submitted that it had not been necessary to work for 500 hours on the case. By way of illustration, they observed that, although the case involved only a narrow range of issues, the applicant’s solicitor had chosen to submit written pleadings of approximately 200 pages, with some 500 pages of annexes and appendices, containing for the most part information which was either irrelevant or of only peripheral relevance. They submitted that a total figure for legal costs of approximately GBP 25,000 would be entirely sufficient.
Bearing in mind the nature of the issues raised by the case, the Court is not satisfied that the amounts claimed by the applicant were necessarily incurred or reasonable as to quantum (see, for example, the Saunders v. the United Kingdom judgment of 17 December 1996, Reports 1996-VI, p. 2070, para. 93). Deciding on an equitable basis, it awards GBP 25,000 under this head, together with any VAT which may be chargeable.
D. Default interest
According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 8% per annum.
FOR THESE REASONS, THE COURT
1. Holds unanimously that Article 8 of the Convention (art. 8) is applicable to the complaints concerning both the office and the home telephones;
2. Holds unanimously that there has been a violation of Article 8 (art. 8) in relation to calls made on the applicant’s office telephones;
3. Holds unanimously that there was no violation of Article 8 (art. 8) in relation to calls made on the applicant’s home telephone;
4. Holds unanimously that there was a violation of Article 13 of the Convention (art. 13) in relation to the applicant’s complaint concerning her office telephones;
5. Holds by eight votes to one that there was no violation of Article 13 of the Convention (art. 13) in relation to the applicant’s complaint concerning her home telephone;
6. Holds unanimously that it is not necessary to consider the complaints under Articles 10 and 14 of the Convention (art. 10, art. 14);
7. Holds unanimously
(a) that the respondent State is to pay the applicant, within three months, in respect of pecuniary and non-pecuniary damage, 10,600 (ten thousand six hundred) pounds sterling;
(b) that the respondent State is to pay the applicant, within three months, in respect of costs and expenses, 25,000 (twenty-five thousand) pounds sterling, together with any VAT which may be chargeable;
(c) that simple interest at an annual rate of 8% shall be payable from the expiry of the above-mentioned three months until settlement.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 June 1997.
Osterreichischer Rundfunk & Ors
EU:C:2003:294, [2003] EUECJ C-465/00, [2003] ECR I-4989,
JUDGMENT OF THE COURT
20 May 2003(1)
(Protection of individuals with regard to the processing of personal data – Directive 95/46/EC – Protection of private life – Disclosure of data on the income of employees of bodies subject to control by the Rechnungshof)
In Joined Cases C-465/00, C-138/01 and C-139/01,
REFERENCES to the Court under Article 234 EC by the Verfassungsgerichtshof (C-465/00) and the Oberster Gerichtshof (C
Community legislation
Recitals 5 to 9 in the preamble to Directive 95/46 show that it was adopted on the basis of Article 100a of the EC Treaty (now, after amendment, Article 95 EC) to encourage the free movement of personal data through the harmonisation of the laws, regulations and administrative provisions of the Member States on the protection of individuals with regard to the processing of such data.
According to Article 1 of Directive 95/46:
1. In accordance with this Directive, Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data.
2. Member States shall neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection afforded under paragraph 1.
In this connection, recitals 2 and 3 of Directive 95/46 read as follows:
(2) Whereas data-processing systems are designed to serve man; whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and contribute to economic and social progress, trade expansion and the well-being of individuals;
(3) Whereas the establishment and functioning of an internal market in which, in accordance with Article 7a of the Treaty, the free movement of goods, persons, services and capital is ensured require not only that personal data should be able to flow freely from one Member State to another, but also that the fundamental rights of individuals should be safeguarded.
Recital 10 of Directive 95/46 adds:
(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; …
Under Article 6(1) of Directive 95/46, personal data (that is, in accordance with Article 2(a), any information relating to an identified or identifiable natural person) must be:
(a) processed fairly and lawfully;
(b) collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes …
(c) adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed;
…
Article 2(b) of Directive 95/46 defines processing of personal data as:
any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
Under Article 7 of Directive 95/46, personal data may be processed only if one of the six conditions it sets out is satisfied, and in particular if:
(c) processing is necessary for compliance with a legal obligation to which the controller is subject; or
…
(e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller … to whom the data are disclosed.
According to recital 72 of Directive 95/46, the directive allows for the principle of public access to official documents to be taken into account when implementing the principles set out in the directive.
As regards the scope of Directive 95/46, Article 3(1) provides that it is to apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system. However, under Article 3(2), the directive shall not apply to the processing of personal data:
– in the course of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union and in any case to processing operations concerning public security, defence, State security (including the economic well-being of the State when the processing operation relates to State security matters) and the activities of the State in areas of criminal law;
– by a natural person in the course of a purely personal or household activity.
In addition, Article 13 of Directive 95/46 authorises Member States to derogate from certain of its provisions, in particular Article 6(1), where this is necessary to safeguard inter alia an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters (Article 13(1)(e)) or a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in certain cases referred to, including that in subparagraph (e) (Article 13(1)(f)).
The main proceedings and the questions referred for preliminary rulings
Case C-465/00
Differences of opinion as to the interpretation of Paragraph 8 of the BezBegrBVG arose between the Rechnungshof and a large number of bodies under its control with respect to salaries and pensions paid in 1998 and 1999.
The defendants in the main proceedings, which include local and regional authorities (a Land and two municipalities), public undertakings, some of which are in competition with other Austrian or foreign undertakings not subject to control by the Rechnungshof, and a statutory professional body (Wirtschaftskammer Steiermark), did not communicate the data on the income of the employees in question, or communicated the data, to a greater or lesser extent, in anonymised form. They refused access to the relevant documents or made access subject to conditions which the Rechnungshofdid not accept. The Rechnungshof therefore brought proceedings before the Verfassungsgerichtshof pursuant to Article 126a of the Bundes-Verfassungsgesetz (Federal Constitutional Law), which gives that court jurisdiction to rule on differences of opinion concerning the interpretation of the statutory provisions governing the jurisdiction of the Rechnungshof.
The Rechnungshof infers from Paragraph 8 of the BezBegrBVG an obligation to list in the Report the names of the persons concerned and show their annual income. The defendants in the main proceedings take a different view and consider that they are not obliged to communicate personal data relating to that income, such as the names or positions of the persons concerned, with an indication of the emoluments received by them. They rely principally on Directive 95/46, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (the Convention), which guarantees respect for private life, and on the argument that the obligation of publicity creates a barrier to the movement of workers, contrary to Article 39 EC.
The Verfassungsgerichtshof wishes essentially to know whether Paragraph 8 of the BezBegrBVG, as interpreted by the Rechnungshof, is compatible with Community law, so that it can interpret it consistently with Community law or declare it (partly) inapplicable, as the case may be.
It points out, in this connection, that the provisions of Directive 95/46, in particular Articles 6(1)(b) and (c) and 7(c) and (e), must be interpreted in the light of Article 8 of the Convention. It considers that comprehensive information for the public, as intended by the national legislature with respect to the income of employees of bodies subject to control by the Rechnungshof whose annual remuneration exceeds a certain threshold (ATS 1 127 486 in 1999 and ATS 1 120 000 in 1998), has to be regarded as an interference with private life, which can be justified under Article 8(2) of the Convention only if that information contributes to the economic well-being of the country. An interference with fundamental rights cannot be justified by the existence of a mere public interest in information. The court doubts that the disclosure, by means of the Report, of data on personal income promotes the economic well-being of the country. In any event, it constitutes a disproportionate interference with private life. The audit carried out by the Rechnungshof is indubitably sufficient to ensure the proper use of public funds.
The national court is also uncertain as to whether the scope of Community law varies according to the nature of the body which is required to contribute to the disclosure of the individual income of some of its employees.
In those circumstances, the Verfassungsgerichtshof decided to stay proceedings and refer the following two questions to the Court for a preliminary ruling:
1. Are the provisions of Community law, in particular those on data protection, to be interpreted as precluding national legislation which requires a State body to collect and transmit data on income for the purpose of publishing the names and income of employees of:
(a) a regional or local authority,
(b) a broadcasting organisation governed by public law,
(c) a national central bank,
(d) a statutory representative body,
(e) a partially State-controlled undertaking which is operated for profit?
2. If the answer to at least part of the above question is in the affirmative:
Are the provisions precluding such national legislation directly applicable, in the sense that the persons obliged to make disclosure may rely on them to prevent the application of contrary national provisions?
Cases C-138/01 and C-139/01
Ms Neukomm and Mr Lauermann, who are employees of ÖRF, a body subject to control by the Rechnungshof, brought proceedings in the Austrian courts for interim orders to prevent ÖRF from acceding to the Rechnungshof’s request to communicate data.
The applications for interim orders were dismissed at first instance. The Arbeits- und Sozialgericht Wien (Labour and Social Court, Vienna) (Austria) (C-138/01), distinguishing between the transmission of the data to the Rechnungshof and its inclusion in the Report, considered that the Report had to be anonymous, while the mere transmission of the data to the Rechnungshof, even including names, did not infringe Article 8 of the Convention or Directive 95/46. The Landesgericht St Pölten (Regional Court, St Pölten) (Austria) (C-139/01), on the other hand, held that the inclusion of data with names in the Report was lawful, since an anonymised report would not enable the Rechnungshof to exercise adequate control.
The Oberlandesgericht Wien (Higher Regional Court, Vienna) (Austria) upheld on appeal the dismissal of the applications for interim orders by the courts at first instance. While stating, in connection with Case C-138/01, that in communicating the data in question the employer is merely performing a task imposed on him by law and that the subsequent processing of the data by the Rechnungshofis not carried out under the control of the employer, the Oberlandesgericht held, in the context of Case C-139/01, that Paragraph 8 of the BezBegrBVG was consistent with fundamental rights and with Directive 95/46, even in the case of a list by name of the persons concerned.
Ms Neukomm and Mr Lauermann appealed on a point of law (Revision) to the Oberster Gerichtshof.
The Oberster Gerichtshof, referring to the reference for a preliminary ruling in Case C-465/00 and adopting the points of law raised by the Verfassungsgerichtshof, decided to stay proceedings and refer the following two questions to the Court, using the same wording in Cases C-138/01 and C-139/01:
1. Are the provisions of Community law, in particular those on data protection (Articles 1, 2, 6, 7 and 22 of Directive 95/46/EC in conjunction with Article 6 (formerly Article F) of the Treaty on European Union and Article 8 of the Convention), to be interpreted as precluding national legislation which requires a public broadcasting organisation, as a legal body, to communicate, and a State body to collect and transmit, data on income for the purpose of publishing the names and income of employees of a broadcasting organisation governed by public law?
2. If the Court of Justice of the European Communities answers the above question in the affirmative:
Are the provisions precluding national legislation of the kind described above directly applicable, in the sense that an organisation obliged to make disclosure may rely on them to prevent the application of contrary national legislation, and may not therefore rely on an obligation under national law against the employees concerned by the disclosure?
By order of the President of the Court of 17 May 2001, Cases C-138/01 and C-139/01 were joined for the purposes of the written procedure, the oral procedure and judgment. Case C-465/00 and Cases C-138/01 and C-139/01 should also be joined for the purposes of judgment.
The questions put by the Verfassungsgerichtshof and the Oberster Gerichtshof are essentially the same, and should therefore be examined together.
Applicability of Directive 95/46
To answer the questions as put would presuppose that Directive 95/46 is applicable in the main proceedings. That applicability is, however, disputed before the Court. This point must be decided as a preliminary issue.
Observations submitted to the Court
The defendants in the main proceedings in Case C-465/00 consider essentially that the control activity exercised by the Rechnungshof falls within the scope of Community law and hence of Directive 95/46. In particular, in that it relates to the remuneration received by the employees of the bodies concerned, that activity touches aspects covered by Community provisions in social matters, such as Articles 136 EC, 137 EC and 141 EC, Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), and Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1).
They further submit that the control exercised by the Rechnungshof, first, affects the possibility for employees of the bodies concerned to seek employment in another Member State, because of the publicity attaching to their salaries which limits their power of negotiation with foreign companies, and, second, deters nationals of other Member States from seeking employment with the bodies subject to that control.
Austrian Airlines, Österreichische Luftverkehrs-AG states that the interference with the freedom of movement of workers is particularly serious in its case because it competes with companies of other Member States which are not subject to such control.
The Rechnungshof and the Austrian and Italian Governments, and to a certain extent the Commission, on the other hand, consider that Directive 95/46 is not applicable in the main proceedings.
According to the Rechnungshof and the Austrian and Italian Governments, the control activity referred to in Paragraph 8 of the BezBegrBVG, which pursues objectives in the public interest in the field of public accounts, does not fall within the scope of Community law.
After observing that the directive, which was adopted on the basis of Article 100a of the Treaty, has the objective of establishing the internal market, an aspect of which is the protection of the right to privacy, the Rechnungshof and the Austrian and Italian Governments submit that the control in question is not such as to obstruct the freedom of movement of workers, since it does not in any way prevent the employees of the bodies concerned from going to work in another Member State or those of other Member States from working for those bodies. In any event, the link between the control activity and the freedom of movement of workers, even supposing that workers do seek to avoid working for a body subject to control by the Rechnungshof because of the publicity attaching to the salaries received, is too uncertain and indirect to constitute an infringement of freedom of movement and thereby to allow a link to be made with Community law.
The Commission adopts a similar position. At the hearing, it nevertheless submitted that the collection of data by the bodies subject to control by the Rechnungshof with a view to communication to the latter and inclusion in the report is itself within the scope of Directive 95/46. Collection serves not only the function of auditing but also, primarily, the payment of remuneration, which constitutes an activity covered by Community law, having regard to the existence of various relevant social provisions in the Treaty, such as Article 141 EC, and to the possible effect of that activity on the freedom of movement of workers.
Findings of the Court
Directive 95/46, adopted on the basis of Article 100a of the Treaty, is intended to ensure the free movement of personal data between Member States through the harmonisation of national provisions on the protection of individuals with regard to the processing of such data. Article 1, which defines the object of the directive, provides in paragraph 2 that Member States may neither restrict nor prohibit the free flow of personal data between Member States for reasons connected with the protection of the fundamental rights and freedoms of natural persons, in particular their private life, with respect to the processing of that data.
Since any personal data can move between Member States, Directive 95/46 requires in principle compliance with the rules for protection of such data with respect to any processing of data as defined by Article 3.
It may be added that recourse to Article 100a of the Treaty as legal basis does not presuppose the existence of an actual link with free movement between Member States in every situation referred to by the measure founded on that basis. As the Court has previously held (see Case C-376/98 Germany v Parliament and Council [2000] ECR I-8419, paragraph 85, and Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-0000, paragraph 60), to justify recourse to Article 100a of the Treaty as the legal basis, what matters is that the measure adopted on that basis must actually be intended to improve the conditions for the establishment and functioning of the internal market. In the present case, that fundamental attribute was never in dispute before the Court with respect to the provisions of Directive 95/46, in particular those in the light of which the national court raises the question of the compatibility of the national legislation in question with Community law.
In those circumstances, the applicability of Directive 95/46 cannot depend on whether the specific situations at issue in the main proceedings have a sufficient link with the exercise of the fundamental freedoms guaranteed by the Treaty, in particular, in those cases, the freedom of movement of workers. A contrary interpretation could make the limits of the field of application of the directive particularly unsure and uncertain, which would be contrary to its essential objective of approximating the laws, regulations and administrative provisions of the Member States in order to eliminate obstacles to the functioning of the internal market deriving precisely from disparities between national legislations.
Moreover, the applicability of Directive 95/46 to situations where there is no direct link with the exercise of the fundamental freedoms of movement guaranteed by the Treaty is confirmed by the wording of Article 3(1) of the directive, which defines its scope in very broad terms, not making the application of the rules on protection depend on whether the processing has an actual connection with freedom of movement between Member States. That is also confirmed by the exceptions in Article 3(2), in particular those concerning the processing of personal data in the course of an activity … provided for by Titles V and VI of the Treaty on European Union or in the course of a purely personal or household activity. Those exceptions would not, at the very least, be worded in that way if the directive were applicable exclusively to situations where there is a sufficient link with the exercise of freedoms of movement.
The same observation may be made with regard to the exceptions in Article 8(2) of Directive 95/46, which concern the processing of specific categories of data, in particular those in Article 8(2)(d), which refers to processing carried out by a foundation, association or any other non-profit-seeking body with a political, philosophical, religious or trade-union aim.
Finally, the processing of personal data at issue in the main proceedings does not fall within the exception in the first indent of Article 3(2) of Directive 95/46. That processing does not concern the exercise of an activity which falls outside the scope of Community law, such as those provided for by Titles V and VI of the Treaty on European Union. Nor is it a processing operation concerning public security, defence, State security or the activities of the State in areas of criminal law.
The purposes set out in Articles 7(c) and (e) and 13(e) and (f) of Directive 95/46 show, moreover, that it is intended to cover instances of data processing such as those at issue in the main proceedings.
It must therefore be considered that Directive 95/46 is applicable to the processing of personal data provided for by legislation such as that at issue in the main proceedings.
The first question
By their first question, the national courts essentially ask whether Directive 95/46 is to be interpreted as precluding national legislation such as that at issue in the main proceedings which requires a State control body to collect and communicate, for purposes of publication, data on the income of persons employed by the bodies subject to that control, where that income exceeds a certain threshold.
Observations submitted to the Court
The Danish Government considers that Directive 95/46 does not, strictly speaking, govern the right of third parties to obtain access to documents on request. In particular, Article 12 of the directive refers only to the right of any person to obtain data concerning him. According to the Government, the protection of personal data which appear not to be sensitive must give way to the principle of transparency, which holds an essential place in the Community legal order. The Danish Government, with the Swedish Government, observes in this respect that, according to recital 72 of the directive, the principle of public access to official documents may be taken into account when implementing the directive.
The Rechnungshof, the Austrian, Italian, Netherlands, Finnish and Swedish Governments and the Commission consider that the national provisions at issue in the main proceedings are compatible with Directive 95/46, by reason, generally, of the wide discretion the Member States have in implementing it, in particular where a task in the public interest provided for by law is to be carried out, under Articles 6(b) and (c) and 7(c) or (e) of the directive. Both the principles of transparency and of the proper management of public funds and the prevention of abuses are relied on in this respect.
Those objectives in the public interest can justify an interference with private life, protected by Article 8(2) of the Convention, if it is in accordance with the law, is necessary in a democratic society for the pursuit of legitimate aims, and is not disproportionate to the objective pursued.
The Austrian Government notes in particular that, when reviewing proportionality, the extent to which the data affect private life must be taken into account. Data relating to personal intimacy, health, family life or sexuality must therefore be protected more strongly than data relating to income and taxes, which, while also personal, concern personal identity to a lesser extent and are thereby less sensitive (see, to that effect, Fressoz and Roire v. France [GC], no. 29183/95, § 65, ECHR 1999-I).
The Finnish Government likewise considers that protection of private life is not absolute. Data relating to a person acting in the course of a public office or public functions relating thereto do not fall within the protection of private life.
The Italian Government submits that data such as that at issue in the main proceedings are already by their nature public in most Member States, since they are visible from salary scales or remuneration brackets laid down by statute, regulation or collective agreements. In those circumstances, it is not contrary to the principle of proportionality to provide for diffusion of that data with the identities of the various people in receipt of the salaries in question. That diffusion, being thus intended to clarify a situation that is already apparent from data available to the public, constitutes the minimum measure which would ensure realisation of the objectives of transparency and sound administration.
The Netherlands Government adds, however, that the national courts must ascertain, for each public body concerned, whether the objective of public interest can be attained by processing the personal data in a way that interferes less with the private lives of the persons concerned.
The United Kingdom Government submits that, in answering the first question, the provisions of the Charter of Fundamental Rights of the European Union, proclaimed in Nice on 18 December 2000 (OJ 2000 C 364, p. 1), to which the Verfassungsgericht briefly refers, are of no relevance.
In Cases C-138/01 and C-139/01, the Commission questions whether, in the context of examining proportionality under Article 6(1)(b) of Directive 95/46, it might not suffice for attaining the objective pursued by the BezBegrBVG to transmit the data in an anonymised form, for example by indicating the function of the person concerned rather than his name. Even if it is admitted that the Rechnungshof needs details of names in order to carry out a more exact check, it is questionable whether the inclusion of that data in the Report, giving the name of the person concerned, is really necessary for performing that check, especially as the Report is not only submitted to the parliamentary assemblies but must also be widely published.
Moreover, the Commission observes that under Article 13 of Directive 95/46 the Member States may inter alia derogate from Article 6(1)(b) of the directive in order to safeguard a number of objectives in the public interest, in particular an important economic or financial interest of a Member State (Article 13(1)(e)). However, in the Commission’s view, the derogating measures must also comply with the principle of proportionality, which calls for the same considerations as those stated in the preceding paragraph with reference to Article 6(1)(b) of the directive.
The defendants in the main proceedings in Case C-465/00 consider that the national legislation at issue is incompatible with Article 6(1)(b) and (c) of Directive 95/46 and cannot be justified under Article 7(c) or (e) of the directive, since it constitutes an interference which is not justified under Article 8(2) of the Convention, and is in any event disproportionate. The audit performed by the Rechnungshof is sufficient to guarantee the thrifty use of public funds.
More particularly, it has not been shown that publication of the names and the amount of the income of all persons employed by public bodies where that amount exceeds a certain level constitutes a measure aimed at the economic well-being of the country. The aim of the legislature was to exert pressure on the bodies in question to maintain salaries at a low level. The defendants also submit that that measure is aimed, in the present case, at persons who for the most part are not public figures.
Moreover, even if the drawing up by the Rechnungshof of a report containing personal data on income intended for public debate were to be regarded as an interference with private life justified under Article 8(2) of the Convention, Land Niederösterreich and ÖRF consider that that measure also violates Article 14 of the Convention. Persons receiving the same income are treated unequally, depending on whether or not they are employed by a body subject to control by the Rechnungshof.
ÖRF points out a further example of unequal treatment that cannot be justified under Article 14 of the Convention. Among the employees of bodies subject to control by the Rechnungshof, only those whose income exceeds the threshold fixed in Paragraph 8 of the BezBegrBVG have to suffer an interference with their private life. If the legislature attaches real importance to the reasonableness of the remuneration received by the employees of certain bodies, it is then necessary to publish the income of all employees, regardless of its amount.
Finally, ÖRF, Marktgemeinde Kaltenleutgeben and Austrian Airlines, Österreichische Luftverkehrs-AG submit that the wording of Paragraph 8 of the BezBegrBVG lends itself to an interpretation consistent with Community law, under which the salaries in question are required to be communicated to the Rechnungshof and included in the Report only in anonymised form. That interpretation should prevail, as it resolves the contradiction between that provision and Directive 95/46.
Findings of the Court
It should be noted, to begin with, that the data at issue in the main proceedings, which relate both to the monies paid by certain bodies and the recipients, constitute personal data within the meaning of Article 2(a) of Directive 95/46, being information relating to an identified or identifiable natural person. Their recording and use by the body concerned, and their transmission to the Rechnungshofand inclusion by the latter in a report intended to be communicated to various political institutions and widely diffused, constitute processing of personal data within the meaning of Article 2(b) of the directive.
Under Directive 95/46, subject to the exceptions permitted under Article 13, all processing of personal data must comply, first, with the principles relating to data quality set out in Article 6 of the directive and, second, with one of the criteria for making data processing legitimate listed in Article 7.
More specifically, the data must be collected for specified, explicit and legitimate purposes (Article 6(1)(b) of Directive 95/46) and must be adequate, relevant and not excessive in relation to those purposes (Article 6(1)(c)). In addition, under Article 7(c) and (e) of the directive respectively, the processing of personal data is permissible only if it is necessary for compliance with a legal obligation to which the controller is subject or is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller … to whom the data are disclosed.
However, under Article 13(e) and (f) of the directive, the Member States may derogate inter alia from Article 6(1) where this is necessary to safeguard respectively an important economic or financial interest of a Member State or of the European Union, including monetary, budgetary and taxation matters or a monitoring, inspection or regulatory function connected, even occasionally, with the exercise of official authority in particular cases including that referred to in subparagraph (e).
It should also be noted that the provisions of Directive 95/46, in so far as they govern the processing of personal data liable to infringe fundamental freedoms, in particular the right to privacy, must necessarily be interpreted in the light of fundamental rights, which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures (see, inter alia, Case C-274/99 P Connolly v Commission [2001] ECR I-1611, paragraph 37).
Those principles have been expressly restated in Article 6(2) EU, which states that [t]he Union shall respect fundamental rights, as guaranteed by the [Convention] and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
Directive 95/46 itself, while having as its principal aim to ensure the free movement of personal data, provides in Article 1(1) that Member States shall protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. Several recitals in its preamble, in particular recitals 10 and 11, also express that requirement.
In this respect, it is to be noted that Article 8 of the Convention, while stating in paragraph 1 the principle that the public authorities must not interfere with the right to respect for private life, accepts in paragraph 2 that such an interference is possible where it 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.
So, for the purpose of applying Directive 95/46, in particular Articles 6(1)(c), 7(c) and (e) and 13, it must be ascertained, first, whether legislation such as that at issue in the main proceedings provides for an interference with private life, and if so, whether that interference is justified from the point of view of Article 8 of the Convention.
Existence of an interference with private life
First of all, the collection of data by name relating to an individual’s professional income, with a view to communicating it to third parties, falls within the scope of Article 8 of the Convention. The European Court of Human Rights has held in this respect that the expression private life must not be interpreted restrictively and that there is no reason of principle to justify excluding activities of a professional … nature from the notion of private life (see, inter alia, Amann v. Switzerland [GC], no. 27798/95, § 65, ECHR 2000-II and Rotaru v. Romania [GC], no. 28341/95, § 43, ECHR 2000-V).
It necessarily follows that, while the mere recording by an employer of data by name relating to the remuneration paid to his employees cannot as such constitute an interference with private life, the communication of that data to third parties, in the present case a public authority, infringes the right of the persons concerned to respect for private life, whatever the subsequent use of the information thus communicated, and constitutes an interference within the meaning of Article 8 of the Convention.
To establish the existence of such an interference, it does not matter whether the information communicated is of a sensitive character or whether the persons concerned have been inconvenienced in any way (see, to that effect, Amann v. Switzerland, § 70). It suffices to find that data relating to the remuneration received by an employee or pensioner have been communicated by the employer to a third party.
Justification of the interference
An interference such as that mentioned in paragraph 74 above violates Article 8 of the Convention unless it is in accordance with the law, pursues one or more of the legitimate aims specified in Article 8(2), and is necessary in a democratic society for achieving that aim or aims.
It is common ground that the interference at issue in the main proceedings is in accordance with Paragraph 8 of the BezBegrBVG. However, the question arises whether that paragraph is formulated with sufficient precision to enable the citizen to adjust his conduct accordingly, and so complies with the requirement of foreseeability laid down in the case-law of the European Court of Human Rights (see, inter alia, Rekvényi v. Hungary [GC], no. 25390/94, § 34, ECHR 1999-III).
In this respect, Paragraph 8(3) of the BezBegrBVG states that the report drawn up by the Rechnungshof is to include all persons whose total yearly salaries and pensions from bodies … exceed the amount stated in subparagraph 1, without expressly requiring the names of the persons concerned to be disclosed in relation to the income they receive. According to the orders for reference, it is legal commentators who, on the basis of the travaux préparatoires, interpret the constitutional law in that way.
It is for the national courts to ascertain whether the interpretation to the effect that Paragraph 8(3) of the BezBegrBVG requires disclosure of the names of the persons concerned in relation to the income received complies with the requirement of foreseeability referred to in paragraph 77 above.
However, that question need not arise until it has been determined whether such an interpretation of the national provision at issue is consistent with Article 8 of the Convention, as regards its required proportionality to the aims pursued. That question will be examined below.
It appears from the order for reference in Case C-465/00 that the objective of Paragraph 8 of the BezBegrBVG is to exert pressure on the public bodies concerned to keep salaries within reasonable limits. The Austrian Government observes, more generally, that the interference provided for by that provision is intended to guarantee the thrifty and appropriate use of public funds by the administration. Such an objective constitutes a legitimate aim within the meaning both of Article 8(2) of the Convention, which mentions the economic well-being of the country, and Article 6(1)(b) of Directive 95/46, which refers to specified, explicit and legitimate purposes.
It must next be ascertained whether the interference in question is necessary in a democratic society to achieve the legitimate aim pursued.
According to the European Court of Human Rights, the adjective necessary in Article 8(2) of the Convention implies that a pressing social need is involved and that the measure employed is proportionate to the legitimate aim pursued (see, inter alia, the Gillow v. the United Kingdom judgment of 24 November 1986, Series A no. 109, § 55). The national authorities also enjoy a margin of appreciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved (see the Leander v. Sweden judgment of 26 March 1987, Series A no. 116, § 59).
The interest of the Republic of Austria in ensuring the best use of public funds, and in particular keeping salaries within reasonable limits, must be balanced against the seriousness of the interference with the right of the persons concerned to respect for their private life.
On the one hand, in order to monitor the proper use of public funds, the Rechnungshof and the various parliamentary bodies undoubtedly need to know the amount of expenditure on human resources in the various public bodies. In addition, in a democratic society, taxpayers and public opinion generally have the right to be kept informed of the use of public revenues, in particular as regards expenditure on staff. Such information, put together in the Report, may make a contribution to the public debate on a question of general interest, and thus serves the public interest.
The question nevertheless arises whether stating the names of the persons concerned in relation to the income received is proportionate to the legitimate aim pursued and whether the reasons relied on before the Court to justify such disclosure appear relevant and sufficient.
It is plain that, according to the interpretation adopted by the national courts, Paragraph 8 of the BezBegrBVG requires disclosure of the names of the persons concerned, in relation to income above a certain level, with respect not only to persons filling posts remunerated by salaries on a published scale, but to all persons remunerated by bodies subject to control by the Rechnungshof. Moreover, such information is not only communicated to the Rechnungshof and via the latter to the various parliamentary bodies, but is also made widely available to the public.
It is for the national courts to ascertain whether such publicity is both necessary and proportionate to the aim of keeping salaries within reasonable limits, and in particular to examine whether such an objective could not have been attained equally effectively by transmitting the information as to names to the monitoring bodies alone. Similarly, the question arises whether it would not have been sufficient to inform the general public only of the remuneration and other financial benefits to which persons employed by the public bodies concerned have a contractual or statutory right, but not of the sums which each of them actually received during the year in question, which may depend to a varying extent on their personal and family situation.
With respect, on the other hand, to the seriousness of the interference with the right of the persons concerned to respect for their private life, it is not impossible that they may suffer harm as a result of the negative effects of the publicity attached to their income from employment, in particular on their prospects of being given employment by other undertakings, whether in Austria or elsewhere, which are not subject to control by the Rechnungshof.
It must be concluded that the interference resulting from the application of national legislation such as that at issue in the main proceedings may be justified under Article 8(2) of the Convention only in so far as the wide disclosure not merely of the amounts of the annual income above a certain threshold of persons employed by the bodies subject to control by the Rechnungshof but also of the names of the recipients of that income is both necessary for and appropriate to the aim of keeping salaries within reasonable limits, that being a matter for the national courts to examine.
Consequences with respect to the provisions of Directive 95/46
If the national courts conclude that the national legislation at issue is incompatible with Article 8 of the Convention, that legislation is also incapable of satisfying the requirement of proportionality in Articles 6(1)(c) and 7(c) or (e) of Directive 95/46. Nor could it be covered by any of the exceptions referred to in Article 13 of that directive, which likewise requires compliance with the requirement of proportionality with respect to the public interest objective being pursued. In any event, that provision cannot be interpreted as conferring legitimacy on an interference with the right to respect for private life contrary to Article 8 of the Convention.
If, on the other hand, the national courts were to consider that Paragraph 8 of the BezBegrBVG is both necessary for and appropriate to the public interest objective being pursued, they would then, as appears from paragraphs 77 to 79 above, still have to ascertain whether, by not expressly providing for disclosure of the names of the persons concerned in relation to the income received, Paragraph 8 of the BezBegrBVG complies with the requirement of foreseeability.
Finally, it should be noted, in the light of the above considerations, that the national court must also interpret any provision of national law, as far as possible, in the light of the wording and the purpose of the applicable directive, in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 249 EC (see Case C-106/89 Marleasing [1990] ECR I-4135, paragraph 8).
In the light of all the above considerations, the answer to the first question must be that Articles 6(1)(c) and 7(c) and (e) of Directive 95/46 do not preclude national legislation such as that at issue in the main proceedings, provided that it is shown that the wide disclosure not merely of the amounts of the annual income above a certain threshold of persons employed by the bodies subject to control by the Rechnungshof but also of the names of the recipients of that income is necessary for and appropriate to the objective of proper management of public funds pursued by the legislature, that being for the national courts to ascertain.
The second question
By their second question, the national courts ask whether the provisions of Directive 95/46 which preclude national legislation such as that at issue in the main proceedings are directly applicable, in that they may be relied on by individuals before the national courts to oust the application of that legislation.
The defendants in the main proceedings in Case C-465/00 and the Netherlands Government consider that Articles 6(1) and 7 of Directive 95/46 fulfil the criteria stated in the Court’s case-law for having such direct effect. They are sufficiently precise and unconditional for the bodies required to disclose the data relating to the income of the persons concerned to be able to rely on them to prevent application of the national provisions contrary to those provisions.
The Austrian Government submits, on the other hand, that the relevant provisions of Directive 95/46 are not directly applicable. In particular, Articles 6(1) and 7 are not unconditional, since their implementation requires the Member States, which have a wide discretion, to adopt special measures to that effect.
On this point, it should be noted that wherever the provisions of a directive appear, so far as their subject-matter is concerned, to be unconditional and sufficiently precise, they may, in the absence of implementing measures adopted within the prescribed period, be relied on against any national provision which is incompatible with the directive or in so far as they define rights which individuals are able to assert against the State (see, inter alia, Case 8/81 Becker [1982] ECR 53, paragraph 25, and Case C-141/00 Kügler [2002] ECR I-6833, paragraph 51).
In the light of the answer to the first question, the second question seeks to know whether such a character may be attributed to Article 6(1)(c) of Directive 95/46, under which personal data must be … adequate, relevant and not excessive in relation to the purposes for which they are collected and/or further processed, and to Article 7(c) or (e), under which personal data may be processed only if inter alia processing is necessary for compliance with a legal obligation to which the controller is subject or is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller … to whom the data are disclosed.
Those provisions are sufficiently precise to be relied on by individuals and applied by the national courts. Moreover, while Directive 95/46 undoubtedly confers on the Member States a greater or lesser discretion in the implementation of some of its provisions, Articles 6(1)(c) and 7(c) or (e) for their part state unconditional obligations.
The answer to the second question must therefore be that Articles 6(1)(c) and 7(c) and (e) of Directive 95/46 are directly applicable, in that they may be relied on by an individual before the national courts to oust the application of rules of national law which are contrary to those provisions.
Costs
102. The costs incurred by the Austrian, Danish, Italian, Netherlands, Finnish, Swedish and United Kingdom Governments and by the Commission, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national courts, the decisions on costs are a matter for those courts.
On those grounds,
THE COURT,
in answer to the questions referred to it by the Verfassungsgerichtshof by order of 12 December 2000 and by the Oberster Gerichtshof by orders of 14 and 28 February 2001, hereby rules:
1. Articles 6(1)(c) and 7(c) and (e) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data do not preclude national legislation such as that at issue in the main proceedings, provided that it is shown that the wide disclosure not merely of the amounts of the annual income above a certain threshold of persons employed by the bodies subject to control by the Rechnungshof but also of the names of the recipients of that income is necessary for and appropriate to the objective of proper management of public funds pursued by the legislature, that being for the national courts to ascertain.
2. Articles 6(1)(c) and 7(c) and (e) of Directive 95/46 are directly applicable, in that they may be relied on by an individual before the national courts to oust the application of rules of national law which are contrary to those provisions.
Rodríguez Iglesias
Puissochet
Wathelet
Schintgen
Gulmann
Edward
La Pergola
Jann
Skouris
Macken
Colneric
von Bahr
Cunha Rodrigues
Delivered in open court in Luxembourg on 20 May 2003.
R. Grass G.C. Rodríguez Iglesias
Registrar President
R. v. Dyment
[1988] 2 SCR 417
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain* and La Forest JJ.
ON APPEAL FROM THE SUPREME COURT OF PRINCE EDWARD ISLAND, APPEAL DIVISION
Constitutional law — Charter of Rights — Unreasonable search or seizure — Doctor taking blood sample from emergency patient without his consent or knowledge — Blood sample taken for medical purposes but given to police officer — Analysis of blood sample used to secure conviction of impaired driving — No legal requirement at the time for person to give police blood sample — Whether or not the taking of blood sample by police amounted to seizure under s. 8 of the Charter — Whether or not such taking was unreasonable — Whether or not evidence of blood analysis should be under s. 24(2) of the Charter — Canadian Charter of Rights and Freedoms , ss. 8 , 24(2) — Criminal Code, R.S.C. 1970, c. C-34, ss. 236, 237(2).
A doctor treating appellant in a hospital after a traffic accident collected a vial of free-flowing blood for medical purposes without appellant’s knowledge or consent. Shortly after, appellant explained that he had consumed a beer and medication. The doctor, after taking the blood sample, spoke to the police officer who had attended at the accident and at the end of their conversation gave him the sample. The officer had not noted any evidence of appellant’s drinking, had not requested a blood sample from either the appellant or the doctor and had no search warrant. The sample was analyzed and appellant was subsequently charged and convicted of impaired driving. At the time, s. 237(2) of the Criminal Code did not require a person to give a blood sample.
The Supreme Court of Prince Edward Island, Appeal Division, dismissed an appeal from a judgment of the Supreme Court of Prince Edward Island which allowed an appeal from conviction. At issue here is whether or not the Appeal Division erred: (1) in holding that the police officer’s taking of the blood sample amounted to a seizure contemplated by s. 8 ; (2) in holding that such taking amounted to unreasonable search and seizure; and (3) in excluding the evidence of the blood analysis under s. 24(2) .
Held (McIntyre J. dissenting): The appeal should be dismissed.
Per Beetz, Lamer and Wilson JJ.: A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. Receipt by the police of the vial of blood, given that that blood was held by the doctor subject to a duty to respect the patient’s privacy, amounted to a seizure as contemplated by s. 8 of the Charter. This seizure was unlawful in that it was made without a warrant, was not supported by evidence establishing its lawfulness, and was not justified by urgency or other reason. It was therefore unnecessary to inquire further as to whether the search was unreasonable.
Per Dickson C.J. and La Forest J.: The officer, in taking the sample, breached respondent’s privacy interests in it, and so effected a seizure within the meaning of s. 8. The term “searches or seizures” is to be read disjunctively.
Section 8 is concerned not only with the protection of property but also with the protection of the privacy interests of individuals from search or seizure. The distinction between a seizure and a mere finding of evidence is to be made at the point where it can reasonably be said that the individual ceased to have a privacy interest in the subject-matter allegedly seized. The use of a person’s body without his consent to obtain information about him invades an area of privacy essential to the maintenance of his human dignity. The doctor, whose sole justification for taking the blood sample was that it was to be used for medical purposes, had no right to take it for other purposes or to give it to a stranger for non-medical purposes unless otherwise required by law, and any such law would be subject to Charter scrutiny. The Charter protection extends to prevent a police officer or agent of the state from taking an intimately personal substance, such as blood, from a doctor who holds it subject to a duty to respect a person’s privacy.
The seizure here was not reasonable. The violation of the privacy interests here was not minimal. The use of an individual’s blood or other bodily substances confided to others for medical purposes for uses other than such purposes seriously violates the personal autonomy of the individual. The seizure here infringed upon all the spheres of privacy — spatial, physical and informational. Although the needs of law enforcement are important and beneficent, there is danger when this goal is pursued with too much zeal. Given the danger to individual privacy of an easy flow of information from hospitals and others, the taking by the police of a blood sample from a doctor who has obtained it for medical purposes cannot be viewed as anything but unreasonable in the absence of compelling circumstances of pressing necessity.
The Charter breach was a very serious one: a violation of a person’s body is much more serious than a violation of his office or even his home. The sense of privacy transcends the physical. The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. The trust and confidence of the public in the administration of medical facilities would be seriously taxed if an easy and informal flow of information, and particularly of bodily substances from hospitals to the police, were allowed. There are well-known and recognized procedures for obtaining such evidence where the police have reasonable and probable grounds for believing a crime has been committed.
Per McIntyre J. (dissenting): There was no search here. If there was a wrongful seizure, that wrongful seizure and the wrongful dealing with the blood sample lay with the doctor. Nothing indicated misconduct, impropriety or bad faith on the part of the police officer who, having received “real evidence” decisive of the issue in the case, was under a duty to tender it in evidence. This evidence should not be excluded for its admission would not bring the administration of justice into disrepute.
Cases Cited
By Lamer J.
Referred to: Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265.
By La Forest J.
Distinguished: R. v. LeBlanc (1981), 64 C.C.C. (2d) 31; referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194; Entick v. Carrington (1765), 19 St. Tr. 1029, 2 Wils. K.B. 275, 95 E.R. 807; Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535; Katz v. United States, 389 U.S. 347 (1967); R. v. Pohoretsky, [1987] 1 S.C.R. 945; Milton v. The Queen (1985), 16 C.R.R. 215; R. v. Dzagic (1985), 16 C.R.R. 310; R. v. Griffin (1985), 22 C.R.R. 303; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Santa (1983), 6 C.R.R. 244; Olmstead v. United States, 277 U.S. 438 (1928); R. v. Carter (1982), 144 D.L.R. (3d) 301; R. v. DeCoste (1983), 60 N.S.R. (2d) 170.
By McIntyre J. (dissenting)
R. v. Jacoy, [1988] 2 S.C.R. 548.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 7 , 8 , 24(2) .
Criminal Code, R.S.C. 1970, c. C-34, ss. 236 , 237(2) , 238(3) .
Hospital Management Regulations, ss. 37, 47.
Hospitals Act, R.S.P.E.I. 1974, c. H-11.
Privacy Act, S.C. 1980-81-82-83, c. 111.
Authors Cited
Canada. Law Reform Commission. Report on Obtaining Forensic Evidence (No. 25). Ottawa: Law Reform Commission, 1985.
Canada. Report of the Task Force established by the Department of Communications/Department of Justice. Privacy and Computers. Ottawa: Information Canada, 1972.
Canadian Medical Association. Code of Ethics.
Marshall, T. David. The Physician and Canadian Law, 2nd ed. Toronto: Carswells, 1979.
Ontario. Commission of Inquiry into the Confidentiality of Health Information. Report of the Commission of Inquiry into the Confidentiality of Health Information. (The Krever Commission). Toronto: The Commission, 1980.
Westin, Alan F. Privacy and Freedom. New York: Atheneum, 1970.
APPEAL from a judgment of the Supreme Court of Prince Edward Island, Appeal Division (1986), 57 Nfld. & P.E.I.R. 210, 170 A.P.R. 210, 26 D.L.R. (4th) 399, 25 C.C.C. (3d) 120, 20 C.R.R. 82, dismissing an appeal from a judgment of Mitchell J. (1984), 47 Nfld. & P.E.I.R. 350, 139 A.P.R. 350, 9 D.L.R. (4th) 614, 12 C.C.C. (3d) 531, 8 C.R.R. 325, allowing an appeal from a conviction for impaired driving. Appeal dismissed, McIntyre J. dissenting.
Darrell Coombs, for the appellant.
John Maynard, for the respondent.
The reasons of Dickson C.J. and La Forest J. were delivered by
1. LA FOREST J.– The issues in this case are whether the taking by a police officer of a vial of a patient’s blood at a hospital from, and with the consent of, a physician who had himself obtained it from a bleeding and unconscious patient, violates s. 8 of the Canadian Charter of Rights and Freedoms , and if so whether it should be excluded as evidence under s. 24(2) of the Charter in proceedings against the patient.
2. Sections 8 and 24(2) of the Charter read as follows:
8. Everyone has the right to be secure against unreasonable search or seizure.
24. …
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter , the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
Facts
3. The respondent, Mr. Dyment, suffered a head laceration when, on April 23, 1982, his car left the highway and landed in a ditch. A doctor was called to the scene where he found Mr. Dyment in a bloodied condition sitting in the driver’s seat of the vehicle. An R.C.M.P. officer drove Mr. Dyment to a hospital but did not arrest or detain him. Neither the doctor nor the officer noted any evidence that Mr. Dyment had been drinking.
4. The doctor returned to the hospital and prepared to suture Mr. Dyment’s head, but before doing so, he held a vial under the free-flowing blood and collected a sample of it. This was done for medical purposes. The doctor thought the accident might have been caused by a medical problem. Shortly afterwards, Mr. Dyment told him he had consumed a beer and some antihistamine tablets, which explained to the doctor why the accident happened.
5. The doctor did not obtain his patient’s consent to obtain the blood sample. Mr. Dyment was not even aware of it as he was suffering from a concussion. I should note that at the time, under s. 237(2) of the Criminal Code , no person was required to give a sample of blood. Section 238(3) , however, now provides that, where a peace officer believes on reasonable and probable grounds that a person has committed the offence of impaired driving, he may require him to provide blood samples.
6. The R.C.M.P. officer remained at the hospital while the doctor attended Mr. Dyment. He did not request a blood sample from Mr. Dyment and he did not ask or direct the doctor to take one. Nor did he see the doctor take one. After taking the sample, the doctor spoke to the officer. The evidence does not reveal what was said, but at the end of the conversation, the doctor handed the sample to the officer. The officer did not have Mr. Dyment’s consent to take the sample and he did not have a search warrant.
7. The officer later had the sample analyzed, when a reading in excess of 100 milligrams of alcohol in 100 milliliters of blood was obtained. Mr. Dyment was then charged with, and convicted of, an offence of being in care or control of a motor vehicle having consumed alcohol in such quantity that the proportion in his blood exceeded 80 milligrams of alcohol in 100 milliliters of blood contrary to s. 236 of the Criminal Code as it then read.
The Courts Below
8. Mr. Dyment then appealed to the Supreme Court of Prince Edward Island on the ground that the taking of the blood violated s. 7 (which guarantees everyone the right to life, liberty and security of the person) and s. 8 of the Charter , and should have been excluded from the evidence under s. 24(2) because its use would, in the circumstances, bring the administration of justice into disrepute. Mitchell J., who heard the appeal, agreed: see (1984), 47 Nfld. & P.E.I.R. 350. Section 7 had been infringed because the accused had not consented to the sample’s being taken or given to the police. He also thought s. 8 was violated. The taking of the sample was a seizure, and an unreasonable one at that. Nobody had to give a blood sample to the police, and the officer did not even have probable cause to believe it would yield evidence of a criminal offence. “Just because the doctor gave it to him without any fuss”, Mitchell J. stated, did “not make the taking of the sample any less a seizure.” “The doctor”, he noted, “had no authority to give the officer the blood and the officer had no authority, or good reason, for taking it.”
9. Though a Charter violation does not automatically require the exclusion of evidence, he found that it should be excluded in this case. The taking of a specimen of a person’s bodily substances without consent, unless required by law or unless it forms part of an emergency medical procedure on an unconscious patient, violates the right to the security of the person. That right is also violated where a doctor who has taken a sample for medical reasons gives it to another for non-medical purposes. A specimen taken for medical reasons becomes part of the patient’s personal medical record which should be kept confidential. The fact that the blood was not extracted from his body did not mean that he had abandoned it. Its use as evidence would bring the administration of justice into disrepute. “What happened here”, he concluded, “constitutes such a gross violation of the sanctity, integrity and privacy of the appellant’s bodily substances and medical records that the community would be shocked and appalled if the court allowed the admission of this evidence in the face of the Charter .”
10. Mitchell J., therefore, allowed the appeal. The Crown then appealed to the Supreme Court of Prince Edward Island — Appeal Division: see (1986), 57 Nfld. & P.E.I.R. 210. MacDonald J., speaking for the court, was of the view that the doctor’s taking of the blood in an emergency situation and its subsequent transfer to the police officer did not violate s. 7 of the Charter . He agreed, however, with the conclusion of Mitchell J. that the taking of the sample by the police officer violated s. 8 of the Charter and should have been excluded under s. 24(2) . The taking of the blood sample by the police officer, he said, was a search and seizure because Mr. Dyment’s consent was not obtained and there was no warrant. It was illegal because the police officer had not testified that he had a reasonable belief that Mr. Dyment had committed an offence. It was also illegal because it offended the provisions of the regulations made under the Hospitals Act, R.S.P.E.I. 1974, c. H-11. Section 37 of the Hospital Management Regulations required each hospital board to compile a medical record of its patients, which included the various steps taken in his or her medical treatment. Under section 47 of the regulations, a hospital board is permitted to “remove, inspect or receive information from a medical record” only under certain conditions, one being when a court orders such action. In MacDonald J.’s view, the blood sample constituted part of the medical record since the purpose of s. 37 of the regulations was to keep information pertaining to patients confidential, and the blood sample, when analyzed, would disclose such information.
11. MacDonald J. then went on to hold that the evidence regarding the blood sample should be excluded under s. 24(2) of the Charter as bringing the administration of justice into disrepute. The breach of Mr. Dyment’s s. 8 right was flagrant. Time was not a factor in the case and there were other investigative tools that could have been used to obtain the evidence. While there was no direct evidence that Mr. Dyment’s rights under the Charter had been knowingly breached, the action of the police officer was so imprudent that it could not be condoned. He added that the breach of the hospital regulations would erode public confidence in both the administration of health services and the administration of justice.
12. The court, therefore, dismissed the appeal. The Crown then sought and was granted leave to appeal to this Court.
Grounds of Appeal
13. In his submission before this Court, counsel for the Crown submitted that the court appealed from erred in three different respects, namely:
(1) in holding that the taking of possession of the blood sample by the police officer amounted to a seizure as contemplated by s. 8 of the Charter ;
(2) in holding that such taking was unreasonable and so infringed s. 8 ;
(3) in excluding the evidence of the analysis of the blood under s. 24(2) of the Charter on the ground that the admission of this evidence would bring the administration of justice into disrepute.
14. Before examining these issues, it is first necessary to say a few words about the manner in which Charter rights are to be approached and more specifically about the nature of the right sought to be protected under s. 8 . The issues regarding s. 7 of the Charter were not addressed, and I do not propose to deal with them.
General
15. From the earliest stage of Charter interpretation, this Court has made it clear that the rights it guarantees must be interpreted generously, and not in a narrow or legalistic fashion; see R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344. The function of the Charter , in the words of the present Chief Justice, then Dickson J., in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 155 “is to provide … for the unremitting protection of individual rights and liberties”. It is a purposive document and must be so construed. That case dealt specifically with s. 8 . It underlined that a major, though not necessarily the only, purpose of the constitutional protection against unreasonable search and seizure under s. 8 is the protection of the privacy of the individual; see especially pp. 159-60. And that right, like other Charter rights, must be interpreted in a broad and liberal manner so as to secure the citizen’s right to a reasonable expectation of privacy against governmental encroachments. Its spirit must not be constrained by narrow legalistic classifications based on notions of property and the like which served to protect this fundamental human value in earlier times.
16. Indeed, it may be confusing means with ends to view these inherited rights as essentially aimed at the protection of property. The lives of people in earlier times centred around the home and the significant obstacles built by the law against governmental intrusions on property were clearly seen by Coke to be for its occupant’s “defence” and “repose”; see Semayne’s Case (1604), 5 Co. Rep. 91 a, 77 E.R. 194, at p. 91 b and p. 195 respectively. Though rationalized in terms of property in the great case of Entick v. Carrington (1765), 19 St. Tr. 1029, 2 Wils. K.B. 275, 95 E.R. 807, the effect of the common law right against unreasonable searches and seizures was the protection of individual privacy. Viewed in this light, it should not be cause for surprise that a constitutionally enshrined right against unreasonable search and seizure should be construed in terms of that underlying purpose unrestrained now by the technical tools originally devised for securing that purpose. However that may be, this Court in Hunter v. Southam Inc. clearly held, in Dickson J.’s words, that the purpose of s. 8 “is … to protect individuals from unjustified state intrusions upon their privacy” (supra, p. 160) and that it should be interpreted broadly to achieve that end, uninhibited by the historical accoutrements that gave it birth. He put it this way, at p. 158:
In my view the interests protected by s. 8 are of a wider ambit than those enunciated in Entick v. Carrington. Section 8 is an entrenched constitutional provision. It is not therefore vulnerable to encroachment by legislative enactments in the same way as common law protections. There is, further, nothing in the language of the section to restrict it to the protection of property or to associate it with the law of trespass. It guarantees a broad and general right to be secure from unreasonable search and seizure.
It should also be noted that s. 8 does not merely prohibit unreasonable searches and seizures. As Pratte J.A. observed in Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535 (C.A.), at p. 548, it goes further and guarantees the right to be secure against unreasonable search and seizure.
17. The foregoing approach is altogether fitting for a constitutional document enshrined at the time when, Westin tells us, society has come to realize that privacy is at the heart of liberty in a modern state; see Alan F. Westin, Privacy and Freedom (1970), pp. 349-50. Grounded in man’s physical and moral autonomy, privacy is essential for the well-being of the individual. For this reason alone, it is worthy of constitutional protection, but it also has profound significance for the public order. The restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state.
18. Claims to privacy must, of course, be balanced against other societal needs, and in particular law enforcement, and that is what s. 8 is intended to achieve. As Dickson J. put it in Hunter v. Southam Inc., supra, at pp. 159-60:
The guarantee of security from unreasonable search and seizure only protects a reasonable expectation. This limitation on the right guaranteed by s. 8 , whether it is expressed negatively as freedom from “unreasonable” search and seizure, or positively as an entitlement to a “reasonable” expectation of privacy, indicates that an assessment must be made as to whether in a particular situation the public’s interest in being left alone by government must give way to the government’s interest in intruding on the individual’s privacy in order to advance its goals, notably those of law enforcement.
19. The first challenge, then, is to find some means of identifying those situations where we should be most alert to privacy considerations. Those who have reflected on the matter have spoken of zones or realms of privacy; see, for example, Privacy and Computers, the Report of the Task Force established by the Department of Communi- cations/Department of Justice (1972), especially at pp. 12-14. The report classifies these claims to privacy as those involving territorial or spatial aspects, those related to the person, and those that arise in the information context. All three, it seems to me, are directly implicated in the present case.
20. As noted previously, territorial claims were originally legally and conceptually tied to property, which meant that legal claims to privacy in this sense were largely confined to the home. But as Westin, supra, at p. 363, has observed, “[t]o protect privacy only in the home … is to shelter what has become, in modern society, only a small part of the individual’s daily environmental need for privacy”. Hunter v. Southam Inc. ruptured the shackles that confined these claims to property. Dickson J., at p. 159, rightly adopted the view originally put forward by Stewart J. in Katz v. United States, 389 U.S. 347 (1967), at p. 351, that what is protected is people, not places. This is not to say that some places, because of the nature of the social interactions that occur there, should not prompt us to be especially alert to the need to protect individual privacy.
21. This Court has recently dealt with privacy of the person in R. v. Pohoretsky, [1987] 1 S.C.R. 945. The case bears some resemblance to the present one, but there the doctor had taken the blood sample from a patient, who was in an incoherent and delirious state, at the request of a police officer. In holding this action to constitute an unreasonable search and seizure, my colleague Lamer J. underlined the seriousness of a violation of the sanctity of a person’s body. It constitutes a serious affront to human dignity. As the Task Force on Privacy and Computers, supra, put it, at p. 13:
… this sense of privacy transcends the physical and is aimed essentially at protecting the dignity of the human person. Our persons are protected not so much against the physical search (the law gives physical protection in other ways) as against the indignity of the search, its invasion of the person in a moral sense.
22. Finally, there is privacy in relation to information. This too is based on the notion of the dignity and integrity of the individual. As the Task Force put it (p. 13): “This notion of privacy derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit.” In modern society, especially, retention of information about oneself is extremely important. We may, for one reason or another, wish or be compelled to reveal such information, but situations abound where the reasonable expectations of the individual that the information shall remain confidential to the persons to whom, and restricted to the purposes for which it is divulged, must be protected. Governments at all levels have in recent years recognized this and have devised rules and regulations to restrict the uses of information collected by them to those for which it was obtained; see, for example, the Privacy Act, S.C. 1980-81-82-83, c. 111.
23. One further general point must be made, and that is that if the privacy of the individual is to be protected, we cannot afford to wait to vindicate it only after it has been violated. This is inherent in the notion of being secure against unreasonable searches and seizures. Invasions of privacy must be prevented, and where privacy is outweighed by other societal claims, there must be clear rules setting forth the conditions in which it can be violated. This is especially true of law enforcement, which involves the freedom of the subject. Here again, Dickson J. made this clear in Hunter v. Southam Inc. After repeating that the purpose of s. 8 of the Charter was to protect individuals against unjustified state intrusion, he continued at p. 160:
That purpose requires a means of preventing unjustified searches before they happen, not simply of determining, after the fact, whether they ought to have occurred in the first place. This, in my view, can only be accomplished by a system of prior authorization, not one of subsequent validation. [Emphasis in original.]
He was there speaking of searches, but as I will endeavour to show, the statement applies equally to seizures.
24. I shall now look more closely at the issues raised by the appellant in the light of these considerations.
Was There a Search or Seizure?
25. In this case, unlike Pohoretsky, where this was conceded, there was no search. The doctor simply collected the blood as it flowed from an open wound and it was later handed over by him to the police officer. It should be observed, however, that s. 8 of the Charter does not protect only against searches, or against seizures made in connection with searches. It protects against searches or seizures. As Errico Co. Ct. J. put it in Milton v. The Queen (1985), 16 C.R.R. 215, at p. 226: “The words are used disjunctively and although in instances it is a search and seizure that will be under scrutiny as was the situation in Southam, the Charter is worded so that a seizure simpliciter could offend against the section.” See also R. v. Dzagic (1985), 16 C.R.R. 310 (Ont. H.C.), at p. 319.
26. As I see it, the essence of a seizure under s. 8 is the taking of a thing from a person by a public authority without that person’s consent. That is what occurred in Pohoretsky, supra. The focus of the enquiry in that case was on the actual taking of the blood sample. But one must bear in mind why that was so. In Pohoretsky, the blood sample was taken at the request of the police officer. The taking of the blood sample, therefore, immediately triggered s. 8 scrutiny. Section 8 was designed to protect against actions by the state and its agents. Here too the focus of enquiry must be on the circumstances in which the police officer obtained the sample. However, the circumstances under which it was obtained by the doctor are by no means irrelevant.
27. There was no consent to the taking of the blood sample in this case; Mr. Dyment was unconscious at the time. But even if he had given his consent, I do not think that would have mattered if the consent was restricted to the use of the sample for medical purposes; see R. v. Griffin (1985), 22 C.R.R. 303 (Ont. Dist. Ct.) As I have attempted to indicate earlier, the use of a person’s body without his consent to obtain information about him, invades an area of personal privacy essential to the maintenance of his human dignity.
28. Here of course there was no consent and none could be implied from the circumstances. The simple fact is that Mr. Dyment was brought to the hospital for medical treatment. Whether the actions of the doctor could, in strictness, be justified as an emergency measure necessary for the preservation of the life or health of Mr. Dyment, I need not explore. It was a perfectly reasonable thing for a doctor who had been entrusted with the medical care of a patient to do. However, I would emphasize that the doctor’s sole justification for taking the blood sample was that it was to be used for medical purposes. He had no right to take Mr. Dyment’s blood for other purposes. I do not wish to put the matter on the basis of property considerations, although it would not be too far-fetched to do so. Some provinces expressly vest the property of blood samples in the hospital, a matter I consider wholly irrelevant. What I wish to emphasize, rather, is that I cannot conceive that the doctor here had any right to take Mr. Dyment’s blood and give it to a stranger for purposes other than medical purposes unless the law otherwise required, and any such law, too, would be subject to Charter scrutiny. Specifically, I think the protection of the Charter extends to prevent a police officer, an agent of the state, from taking a substance as intimately personal as a person’s blood from a person who holds it subject to a duty to respect the dignity and privacy of that person.
29. The Task Force on Privacy and Computers, supra, pp. 23 et seq., like other similar studies, identified hospitals as one of the specific areas of concern in the protection of privacy. This is scarcely surprising. At one time, medical treatment generally took place in the home, or at the doctor’s office, but even then, of course, the confidentiality of the doctor-patient relationship was fully accepted as an important value in our society. This goes back as far as the Hippocratic Oath. The Code of Ethics of the Canadian Medical Association sets forth, as item 6 of the ethical physician’s responsibilities to his patient, that he “will keep in confidence information derived from his patient, or from a colleague, regarding a patient and divulge it only with the permission of the patient except when the law requires him to do so”; see T. D. Marshall, The Physician and Canadian Law (2nd ed. 1979), p. 14. This is obviously necessary if one considers the vulnerability of the individual in such circumstances. He is forced to reveal information of a most intimate character and to permit invasions of his body if he is to protect his life or health. Recent trends in health care exacerbate the problems relating to privacy in the medical context, particularly in light of the health-team approach in an institutional setting and modern health information systems. If the health-team approach gives a patient easy access to a wide range of medical services, it inevitably results in the fragmentation of the classical doctor-patient relationship among a team of medical and para-medical personnel. The dehumanization that can result has led some hospitals in the United States to appoint an ombudsman for patients. The Report of the Commission of Inquiry into the Confidentiality of Health Information (The Krever Commission), 1980, has drawn attention to the problem in the law enforcement context in the following passage, vol. 2, at p. 91:
…the primary concern of physicians, hospitals, their employees and other health-care providers must be the care of their patients. It is not an unreasonable assumption to make that persons in need of health care might, in some circumstances, be deterred from seeking it if they believed that physicians, hospital employees and other health-care providers were obliged to disclose confidential health information to the police in those circumstances. A free exchange of information between physicians and hospitals and the police should not be encouraged or permitted. Certainly physicians, hospital employees and other health-care workers ought not to be made part of the law enforcement machinery of the state. [Emphasis added.]
Under these circumstances, the demands for the protection of personal privacy become more insistent, a truth that has been recognized by governments. I look upon the Hospitals Act and its regulations not so much as justifying the need for privacy in this case but rather as a testimony that such protection is required. Under these circumstances, the courts must be especially alert to prevent undue incursions into the private lives of individuals by loose arrangements between hospital personnel and law enforcement officers. The Charter , it will be remembered, guarantees the right to be secure against unreasonable searches and seizures.
30. In the present case, the Crown submits that the police officer was merely given the evidence following a conversation with the doctor and did not demand it or seize it. This submission suffers from several flaws. To begin with, though we have no evidence to indicate the nature of the “conversation” between the doctor and the officer, I find it hard to believe the doctor merely volunteered it. Like the Krever Commission, I am not, as presently advised, prepared to say that doctors and hospitals should be prohibited from giving information to the police no matter what the circumstances may be. But it is one thing to inform, quite another to supply material which, if used, amounts, in the words of Lamer J. in Pohoretsky, supra, at p. 949, to conscripting the accused against himself. However, the most important flaw, and the matter that has compelling weight, is that when the officer took the sample from the doctor, he took something that the doctor held for medical purposes only, subject to a well-founded expectation that it was to be kept private. In the circumstances in which it was taken, Mr. Dyment was entitled to a reasonable expectation of privacy. If, as Dickson J. underlined in Hunter v. Southam Inc., s. 8 is intended to protect “people not places”, it is equally true that it is intended to protect people not things. In other words, as he indicated, that provision is concerned not merely with the protection of property but with the protection of the privacy interests of individuals from search or seizure. If I were to draw the line between a seizure and a mere finding of evidence, I would draw it logically and purposefully at the point at which it can reasonably be said that the individual had ceased to have a privacy interest in the subject-matter allegedly seized.
31. The present case may usefully be contrasted with R. v. LeBlanc (1981), 64 C.C.C. (2d) 31 (N.B.C.A.) There the police, after taking the accused to hospital, obtained a sample of his blood which was found on the front seat of the vehicle. The appellant in the present case observed that there can be no question that in LeBlanc it was a reasonable conclusion that the accused had “abandoned his blood”, although it seems best to put it in Charter terms by saying that he had ceased to have a reasonable expectation of privacy with regard to it. In that case, the evidence was truly `gathered’, not seized. In the present case, however, the respondent may, for some purposes perhaps, be deemed to have impliedly consented to a sample being taken for medical purposes, but he retained an expectation that his privacy interest in the sample continue past the time of its taking. Indeed, the doctor, in extracting the blood, placed himself in a situation where, pursuant to professional ethics and likely to hospital management regulations as well, he was charged with a duty to use the blood only for medical purposes. Under these circumstances, the sample was surrounded by an aura of privacy meriting Charter protection. For the state to take it in violation of a patient’s right to privacy constitutes a seizure for the purposes of s. 8 .
32. I, therefore, conclude that in taking the blood sample, the officer breached Mr. Dyment’s privacy interests in it, and so effected a seizure within the meaning of s. 8 .
Was the Seizure Unreasonable?
33. Counsel for the Crown submitted that if the taking by the police constituted a seizure within the meaning of s. 8 , it was reasonable even though this might be illegal. This Court has since had occasion to deal with this issue in R. v. Collins, [1987] 1 S.C.R. 265. However, I need not for the purposes of this case consider whether or not the taking of the blood was illegal, since it is clear to me, quite apart from this issue, that the seizure here was not reasonable.
34. To begin with, I do not accept that the violation of Mr. Dyment’s privacy interests was minimal. As I indicated, to use an individual’s blood or other bodily substances confided to others for medical purposes for purposes other than these seriously violates the personal autonomy of the individual. In this particular case, the seizure infringed upon all the spheres of privacy already identified, spatial, personal and informational. Under these circumstances, it seems to me that in the absence of pressing necessity, it was unreasonable for the police officer to act as he did. The needs of law enforcement are important, even beneficent, but there is danger when this goal is pursued with too much zeal. Given the danger to individual privacy of an easy flow of information from hospitals and others, the taking by the police of a blood sample from a doctor who has obtained it for medical purposes cannot be viewed as anything but unreasonable in the absence of compelling circumstances of pressing necessity; see R. v. Santa (1983), 6 C.R.R. 244 (Sask. Prov. Ct.), at p. 251. The need to follow established rules in cases like this is overwhelming. We would do well to heed the wise and eloquent words of Brandeis J. (dissenting) in Olmstead v. United States, 277 U.S. 438 (1928), at p. 479: “The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
35. In Hunter v. Southam Inc., supra, at p. 161, this Court expressed the view that “where it is feasible to obtain prior authorization, … such authorization is a precondition for a [constitutionally] valid search and seizure” (emphasis added). In the present case, as I observed earlier, the focus is not predominantly on the taking of the sample by the physician, but on its seizure by the police. It seems obvious to me that, assuming adequate cause, the police officer could have obtained a warrant authorizing the seizure of the sample (as happened, for example, in R. v. Carter (1982), 144 D.L.R. (3d) 301 (Ont. C.A.)), and there was nothing that could justify his failure to do so. No exigent circumstances existed because the blood had been extracted within the two-hour limit that is said to be essential to an accurate test. Indeed, when the facts are scrutinized, the most probable reason why no warrant was obtained was because the officer lacked the requisite belief that the accused had committed an offence and that the seizure was likely to yield evidence which was probative of that offence. Not only do the circumstances not reveal circumstances capable of justifying the failure to obtain a warrant, but the conduct of the police failed to comport with the minimal constitutional requirement that there be reasonable and probable grounds to believe that the search would yield evidence. As this Court observed in Hunter v. Southam Inc., supra, at pp. 167-68:
The state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion. History has confirmed the appropriateness of this requirement as the threshold for subordinating the expectation of privacy to the needs of law enforcement. Where the state’s interest is not simply law enforcement as, for instance, where state security is involved, or where the individual’s interest is not simply his expectation of privacy as, for instance, when the search threatens his bodily integrity, the relevant standard might well be a different one.
Quite simply, the constitution does not tolerate a “low standard which would validate intrusion on the basis of suspicion, and authorize fishing expeditions of considerable latitude” (Hunter v. Southam Inc., supra, at p. 167); if anything, when the search and seizure relates to the integrity of the body rather than the home, for example, the standard is even higher than usual. I have no difficulty concluding that even if the seizure in this case was legal, it was clearly unreasonable in terms of s. 8 .
36. I would add one further thought. In sensitive areas like this, it is important in the interests of law enforcement that there be clear rules for the guidance of police conduct, so as to maintain the support of the citizenry for law enforcement authorities. It is also important for them to know precisely how far they should go for their own protection and guidance. As the Law Reform Commission of Canada states in its Report on Obtaining Forensic Evidence (No. 25, 1985), at p. 1:
Besides protecting those individual interests that are directly threatened by the spectre of unchecked state power and unfettered police discretion, the creation of legal rules is necessary to provide the police with adequate guidance as to how they should conduct criminal investigations, and thereby to ensure that such investigations conform to the standards set by the Canadian Charter of Rights and Freedoms .
Should the Evidence Be Excluded?
37. The factors to be taken into account in determining whether evidence should be excluded under s. 24(2) of the Charter because it would bring the administration of justice into disrepute have already been set forth by this Court in R. v. Collins, supra, and I need only examine those that are particularly relevant here.
38. The Charter breach, in my view, was a very serious one. In Pohoretsky, supra, at p. 949, Lamer J. observed that “a violation of the sanctity of a person’s body is much more serious than that of his office or even of his home”. It is true that the police in that case were directly implicated in the invasion of the appellant’s body. However, as I earlier indicated, the sense of privacy transcends the physical. The dignity of the human being is equally seriously violated when use is made of bodily substances taken by others for medical purposes in a manner that does not respect that limitation. In my view, the trust and confidence of the public in the administration of medical facilities would be seriously taxed if an easy and informal flow of information, and particularly of bodily substances from hospitals to the police, were allowed. In R. v. DeCoste (1983), 60 N.S.R. (2d) 170 (S.C.T.D.), at p. 174, Grant J. stated his belief that “members of the public consider a hospital as a place where the sick and injured are treated and not a place where a doctor would take blood from an unconscious or semi-conscious person for the sole purpose of satisfying the unlawful demand or request of a police officer”. I agree, and I do not think they would feel differently about doctors and medical personnel freely handing over blood taken for medical purposes to a police officer or the police officer accepting it when there are well-known and recognized procedures for obtaining such evidence when the police have reasonable and probable grounds for believing a crime has been committed. In such a case, all are implicated in a flagrant breach of personal privacy. Though he spoke in terms of the pre-Charter “community shock” test, Mitchell J. in this case was substantially right when he stated at p. 355:
If the court received evidence obtained by taking a blood sample without consent, medical necessity or lawful authority, and without the police having any probable cause, it would bring the administration of justice into disrepute . . . . What happened here constitutes such a gross violation to the sanctity, integrity and privacy of the appellant’s bodily substances and medical records that the community would be shocked and appalled if the court allowed the admission of this evidence in the face of the Charter .
Such a practice would bring both the administration of health services and the administration of justice into disrepute.
39. This is all the more so having regard to the manner in which the sample was obtained — a manner that MacDonald J. regarded as constituting a flagrant breach of the Charter . As he put it at p. 218:
…I find that the manner in which the sample was here obtained would bring the administration of justice into disrepute. I have reached this conclusion because I consider the breach of the respondent’s Charter rights to have been flagrant. Time was not a factor in this case and there were other investigative techniques that could have been used to obtain the evidence. The blood sample had been taken within the two hour limitation period and there was no evidence that it would be destroyed.
While, as he added, there was no evidence that the respondent’s rights were knowingly breached, I agree with him that such lax police procedures cannot be condoned.
Disposition
40. Under these circumstances, I agree with the courts below that the evidence should be excluded, and I would, therefore, dismiss the appeal.
The judgment of Beetz, Lamer and Wilson JJ. was delivered by
41. LAMER J.–My brother Justice La Forest has set out the facts, summarized the judgments below and stated the issues to be addressed.
42. For the reasons given by my brother La Forest J., the fact that the doctor, at the time he remitted the vial to the police, had in his possession the respondent’s blood subject to a duty to respect respondent’s privacy is sufficient to qualify the receipt by the police of the vial of blood without the consent of the doctor’s patient as being a seizure as that term is meant in s. 8 of the Canadian Charter of Rights and Freedoms . As it was a warrantless seizure, the evidentiary burden of establishing that it was nevertheless a lawful seizure rested upon the shoulders of the Crown (see Hunter v. Southam Inc., [1984] 2 S.C.R. 145, at p. 161). The Crown has not adduced any evidence supportive of that conclusion, and there is no evidence on record in that regard. The seizure was therefore an unlawful one. Furthermore, there was no urgency or any other reason justifying such a seizure without first obtaining a warrant, assuming, of course, that the police officer, after having spoken to the doctor, could bring himself within the conditions required for obtaining a valid warrant. In R. v. Collins, [1987] 1 S.C.R. 265, I (along with the Chief Justice and Justices Wilson and La Forest) was of the view that to be reasonable, a search or seizure had to meet the following requirements (p. 278):
A search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.
43. The fact that the seizure in this case was unlawful, in my view, ends the enquiry as to whether the search was an unreasonable one. The only issue left is whether the evidence should be excluded. For the reasons given by my brother La Forest J., I am of the view that this is a case where the evidence must be excluded and the appeal dismissed.
The following are the reasons delivered by
44. MCINTYRE J. (dissenting)–I have had the advantage of reading the reasons for judgment prepared in this appeal by my colleagues, Justices La Forest and Lamer. I am unable, however, with great deference to their views, to agree with their judgments.
45. The facts have been recited by La Forest J. and they reveal that the doctor without consent took free-flowing blood from the unconscious respondent for medical purposes. He later gave the blood to the police officer. There is no evidence as to what passed between the doctor and the police officer and no inference adverse to the officer may be drawn. The evidence does disclose, however, that the officer did not request the taking of the blood sample and he did not see the doctor take it.
46. I agree with La Forest J. that there was no search here. If there was a wrongful seizure, it was made by the doctor and there is no evidence which would implicate the police officer. The sole question here is whether the evidence of the blood analysis, because of the improper disposition of this blood sample by the doctor, should be excluded. It may only be excluded if its admission would bring the administration of justice into disrepute.
47. It should be observed that Dyment was charged with having care and control of a motor vehicle having consumed alcohol in such quantity that the proportion thereof in his blood exceeded 80 milligrams of alcohol in l00 millilitres of blood. The sample would have been decisive in this case.
48. I am unable to consider that the admission of this evidence would bring the administration of justice into disrepute. No misconduct is shown against the police officer and there is nothing to indicate any bad faith on his part. Any wrongful seizure by the doctor or any wrongful dealing with the sample may be put at his door, but there is nothing to show impropriety on the part of the police. Indeed, having received “real evidence” decisive of the issue in the case it was his duty to tender it in evidence. In this, I would refer to the reasons of the Chief Justice in R. v. Jacoy, [1988] 2 S.C.R. 548, in reaching a similar conclusion relating to the exclusion of evidence under s. 24(2) of the Canadian Charter of Rights and Freedoms . I would allow the appeal and restore the conviction.
COPLAND v. THE UNITED KINGDOM
[2007] ECHR 253 (3 April 2007)
2 ALR Int’l 785, (2007) 45 EHRR 37
[N
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Copland v. the United Kingdom,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr T.L. Early, Section Registrar,
Having deliberated in private on 7 March 2006 and on 13 March 2007,
Delivers the following judgment, which was adopted on the last mentioned date:
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1950 and lives in Llanelli, Wales.
In 1991 the applicant was employed by Carmarthenshire College (“the College”). The College is a statutory body administered by the State and possessing powers under sections 18 and 19 of the Further and Higher Education Act 1992 relating to the provision of further and higher education.
In 1995 the applicant became the personal assistant to the College Principal (“CP”) and from the end of 1995 she was required to work closely with the newly appointed Deputy Principal (“DP”).
In about July 1998, whilst on annual leave, the applicant visited another campus of the College with a male director. She subsequently became aware that the DP had contacted that campus to enquire about her visit and understood that he was suggesting an improper relationship between her and the director.
During her employment, the applicant’s telephone, e-mail and internet usage were subjected to monitoring at the DP’s instigation. According to the Government, this monitoring took place in order to ascertain whether the applicant was making excessive use of College facilities for personal purposes. The Government stated that the monitoring of telephone usage consisted of analysis of the college telephone bills showing telephone numbers called, the dates and times of the calls and their length and cost. The applicant also believed that there had been detailed and comprehensive logging of the length of calls, the number of calls received and made and the telephone numbers of individuals calling her. She stated that on at least one occasion the DP became aware of the name of an individual with whom she had exchanged incoming and outgoing telephone calls. The Government submitted that the monitoring of telephone usage took place for a few months up to about 22 November 1999. The applicant contended that her telephone usage was monitored over a period of about 18 months until November 1999.
The applicant’s internet usage was also monitored by the DP. The Government accepted that this monitoring took the form of analysing the web sites visited,the times and dates of the visits to the web sites and their duration and that this monitoring took place from October to November 1999. The applicant did not comment on the manner in which her internet usage was monitored but submitted that it took place over a much longer period of time than the Government admit.
In November 1999 the applicant became aware that enquiries were being made into her use of e-mail at work when her step-daughter was contacted by the College and asked to supply information about e-mails that she had sent to the College. The applicant wrote to the CP to ask whether there was a general investigation taking place or whether her e-mails only were being investigated. By an e-mail dated 24 November 1999 the CP advised the applicant that, whilst all e-mail activity was logged, the information department of the College was investigating only her e-mails, following a request by the DP.
The Government submitted that monitoring of e-mails took the form of analysis of e-mail addresses and dates and times at which e-mails were sent and that the monitoring occurred for a few months prior to 22 November 1999. According to the applicant the monitoring of e-mails occurred for at least six months from May 1999 to November 1999. She provided documentary evidence in the form of printouts detailing her e-mail usage from 14 May 1999 to 22 November 1999 which set out the date and time of e-mails sent from her e-mail account together with the recipients’ e mail addresses.
By a memorandum dated 29 November 1999 the CP wrote to the DP to confirm the contents of a conversation they had had in the following terms:
“To avoid ambiguity I felt it worthwhile to confirm my views expressed to you last week, regarding the investigation of [the applicant’s] e-mail traffic.
Subsequent to [the applicant] becoming aware that someone from [the College] had been following up her e-mails, I spoke to [ST] who confirmed that this was true and had been instigated by yourself. Given the forthcoming legislation making it illegal for organisations to examine someone’s e-mail without permission, I naturally felt concerned over recent events and instructed [ST] not to carry out any further analysis. Furthermore, I asked you to do likewise and asked that any information you have of concern regarding [the applicant] be forwarded to me as a matter of priority. You indicated that you would respond positively to both requests, whilst re-affirming your concerns regarding [the applicant].”
There was no policy in force at the College at the material time regarding the monitoring of telephone, e-mail or internet use by employees.
In about March or April 2000 the applicant was informed by other members of staff at the College that between 1996 and late 1999 several of her activities had been monitored by the DP or those acting on his behalf. The applicant also believed that people to whom she had made calls were in turn telephoned by the DP, or those acting on his behalf, to identify the callers and the purpose of the call. She further believed that the DP became aware of a legally privileged fax that was sent by herself to her solicitors and that her personal movements, both at work and when on annual or sick leave, were the subject of surveillance.
The applicant provided the Court with statements from other members of staff alleging inappropriate and intrusive monitoring of their movements. The applicant, who is still employed by the College, understands that the DP has been suspended.
II. RELEVANT DOMESTIC LAW
A. Law of privacy
At the relevant time there was no general right to privacy in English law.
Since the implementation of the Human Rights Act 1998 on 2 October 2000, the courts have been required to read and give effect to primary legislation in a manner which is compatible with Convention rights so far as possible. The Act also made it unlawful for any public authority, including a court, to act in a manner which is incompatible with a Convention right unless required to do so by primary legislation, thus providing for the development of the common law in accordance with Convention rights. In the case of Douglas v Hello! Ltd ([2001] 1 WLR 992), Sedley LJ indicated that he was prepared to find that there was a qualified right to privacy under English law, but the Court of Appeal did not rule on the point.
The Regulation of Investigatory Powers Act 2000 (“the 2000 Act”) provided for the regulation of, inter alia, interception of communications. The Telecommunications (Lawful Business Practice) Regulations 2000 were promulgated under the 2000 Act and came into force on 24 October 2000. The Regulations set out the circumstances in which employers could record or monitor employees’ communications (such as e-mail or telephone) without the consent of either the employee or the other party to the communication. Employers were required to take reasonable steps to inform employees that their communications might be intercepted.
B. Contractual damages for breach of trust and confidence by employer
The House of Lords in Malik v Bank of Credit and Commerce International SA [1997] IRLR 462 confirmed that, as a matter of law, a general term is implied into each employment contract that an employer will not “without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee”. In Malik, the House of Lords was concerned with the award of so-called “stigma compensation” where an ex-employee is unable to find further employment due to association with a dishonest former employer. In considering the damages that could be awarded for breach of the obligation of trust and confidence, the House were solely concerned with the payment of compensation for financial loss resulting from handicap in the labour market. Lord Nicholls expressly noted that, “(f)or the present purposes I am not concerned with the exclusion of damages for injured feelings, the present case is concerned only with financial loss.”
In limiting the scope of the implied term of trust and confidence in Malik, Lord Steyn stated as follows:
“the implied mutual obligation of trust and confidence applies only where there is ‘no reasonable and proper cause’ for the employer’s conduct, and then only if the conduct is calculated to destroy or seriously damage the relationship of trust and confidence. That circumscribes the potential reach and scope of the implied obligation.”
C. Tort of misfeasance in public office
The tort of misfeasance in public office arises when a public official has either (a) exercised his power specifically intending to injure the plaintiff, or (b) acted in the knowledge of, or with reckless indifference to, the illegality of his act and in the knowledge or with reckless indifference to the probability of causing injury to the claimant or a class of people of which the claimant is a member (Three Rivers D.C. v. Bank of England (No.3) (HL) [2000] WLR 1220).
D. Data Protection Act 1984
At the time of the acts complained of by the applicant, the Data Protection Act 1984 (“the 1984 Act”) regulated the manner in which people and organisations that held data, known as “data holders”, processed or used that data. It provided certain actionable remedies to individuals in the event of misuse of their personal data. The 1984 Act has now been replaced by the Data Protection Act 1998.
Section 1 of the 1984 Act defined its terms as follows:
“(2) ‘Data’ means information recorded in a form in which it can be processed by equipment operating automatically in response to instructions given for that purpose.
(3) ‘Personal data’ means data consisting of information which relates to a living individual who can be identified from that information (or from that and other information in the possession of the data user…)
(4) ‘Data subject’ means an individual who is the subject of personal data.
(5) ‘Data user’ means a person who holds data, and a person ‘holds’ data if –
(a) the data form part of a collection of data processed or intended to be processed by or on behalf of that person as mentioned in subsection (2) above; and
(b) that person… controls the contents and use of the data comprised in the collection; and
(c) the data are in the form in which they have been or are intended to be processed as mentioned in paragraph (a)…
(7) ‘Processing’ in relation to data means amending, augmenting, deleting or re-arranging the data or extracting the information constituting the data and, in the case of personal data, means performing any of these operations by reference to the data subject.
(9) ‘Disclosing’ in relation to data, includes disclosing information extracted from the data …”
26. The “data protection principles” to be respected by data holders were set out in Part 1 to Schedule 1 of the Act as follows:
“1. The information to be contained in personal data shall be obtained, and personal data shall be processed, fairly and lawfully.
2. Personal data shall be held only for one or more specified and lawful purposes …
4. Personal data held for any purpose shall be adequate, relevant and not excessive in relation to that purpose or those purposes.”
27. Section 23 of the 1984 Act provided rights to compensation for the data subject in the event of unauthorised disclosure of personal data:
“ (1) An individual who is the subject of personal data held by a data user…and who suffers damage by reason of –
(c) …the disclosure of the data or, access having been obtained to the data, without such authority as aforesaid,
shall be entitled to compensation from the data user…for that damage and for any distress which the individual has suffered by reason of the…disclosure or access.”
The 1984 Act also created the position of Data Protection Registrar, under a duty to promote the observance of the data protection principles by data users. In section 10 it created a criminal offence as follows:
“(1) If the Registrar is satisfied that a registered person has contravened or is contravening any of the data protection principles he may serve him with a notice (‘an enforcement notice’) requiring him to take … such steps as are so specified for complying with the principle or principles in question.
(2) In deciding whether to serve an enforcement notice, the Registrar shall consider whether the contravention has caused or is likely to cause any person damage or distress.
…
(9) Any person who fails to comply with an enforcement notice shall be guilty of an offence… “
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
The applicant alleged that the monitoring activity that took place amounted to an interference with her right to respect for private life and correspondence under Article 8, which reads as follows:
“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.”
The Government contested that argument.
A. The parties’ submissions
1. The Government
The Government accepted that the College was a public body for whose actions the State was directly responsible under the Convention.
Although there had been some monitoring of the applicant’s telephone calls, e-mails and internet usage prior to November 1999, this did not extend to the interception of telephone calls or the analysis of the content of websites visited by her. The monitoring thus amounted to nothing more than the analysis of automatically generated information to determine whether College facilities had been used for personal purposes which, of itself, did not constitute a failure to respect private life or correspondence. The case of P.G. and J.H. v. the United Kingdom, no. 44787/98, ECHR 2001 IX, could be distinguished since there actual interception of telephone calls occurred. There were significant differences from the case of Halford v. the United Kingdom, judgment of 25 June 1997, Reports of Judgments and Decisions 1997 III, where the applicant’s telephone calls were intercepted on a telephone which had been designated for private use and, in particular her litigation against her employer.
In the event that the analysis of records of telephone, e-mail and internet use was considered to amount to an interference with respect for private life or correspondence, the Government contended that the interference was justified.
34. First, it pursued the legitimate aim of protecting the rights and freedoms of others by ensuring that the facilities provided by a publicly funded employer were not abused. Secondly, the interference had a basis in domestic law in that the College, as a statutory body, whose powers enable it to provide further and higher education and to do anything necessary and expedient for those purposes, had the power to take reasonable control of its facilities to ensure that it was able to carry out its statutory functions. It was reasonably foreseeable that the facilities provided by a statutory body out of public funds could not be used excessively for personal purposes and that the College would undertake an analysis of its records to determine if there was any likelihood of personal use which needed to be investigated. In this respect, the situation was analogous to that in Peck v. the United Kingdom, no. 44647/98, ECHR 2003 I.
Finally, the acts had been necessary in a democratic society and were proportionate as any interference went no further than necessary to establish whether there had been such excessive personal use of facilities as to merit investigation.
2. The applicant
The applicant did not accept that her e-mails were not read and that her telephone calls were not intercepted but contended that, even if the facts were as set out by the Government, it was evident that some monitoring activity took place amounting to an interference with her right to respect for private life and correspondence.
The applicant asserted that the conduct of the College was neither necessary nor proportionate. There were reasonable and less intrusive methods that the College could have used such as drafting and publishing a policy dealing with the monitoring of employees’ usage of the telephone, internet and e-mail.
B. The Court’s assessment
The Court notes the Government’s acceptance that the College is a public body for whose acts it is responsible for the purposes of the Convention. Thus, it considers that in the present case the question to be analysed under Article 8 relates to the negative obligation on the State not to interfere with the private life and correspondence of the applicant and that no separate issue arises in relation to home or family life.
The Court further observes that the parties disagree as to the nature of this monitoring and the period of time over which it took place. However, the Court does not consider it necessary to enter into this dispute as an issue arises under Article 8 even on the facts as admitted by the Government.
1. Scope of private life
According to the Court’s case-law, telephone calls from business premises are prima facie covered by the notions of “private life” and “correspondence” for the purposes of Article 8 § 1 (see Halford, cited above, § 44 and Amann v. Switzerland [GC], no. 27798/95, § 43, ECHR 2000 II). It follows logically that e-mails sent from work should be similarly protected under Article 8, as should information derived from the monitoring of personal internet usage.
The applicant in the present case had been given no warning that her calls would be liable to monitoring, therefore she had a reasonable expectation as to the privacy of calls made from her work telephone (see Halford, § 45). The same expectation should apply in relation to the applicant’s e-mail and internet usage.
2. Whether there was any interference with the rights guaranteed under Article 8.
The Court recalls that the use of information relating to the date and length of telephone conversations and in particular the numbers dialled can give rise to an issue under Article 8 as such information constitutes an “integral element of the communications made by telephone” (see Malone v. the United Kingdom, judgment of 2 August 1984, Series A no. 82, § 84). The mere fact that these data may have been legitimately obtained by the College, in the form of telephone bills, is no bar to finding an interference with rights guaranteed under Article 8 (ibid). Moreover, storing of personal data relating to the private life of an individual also falls within the application of Article 8 § 1 (see Amann, cited above, § 65). Thus, it is irrelevant that the data held by the college were not disclosed or used against the applicant in disciplinary or other proceedings.
Accordingly, the Court considers that the collection and storage of personal information relating to the applicant’s telephone, as well as to her e-mail and internet usage, without her knowledge, amounted to an interference with her right to respect for her private life and correspondence within the meaning of Article 8.
3. Whether the interference was “in accordance with the law”
45. The Court recalls that it is well established in the case-law that the term “in accordance with the law” implies – and this follows from the object and purpose of Article 8 – that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by Article 8 § 1. This is all the more so in areas such as the monitoring in question, in view of the lack of public scrutiny and the risk of misuse of power (see Halford, cited above, § 49).
46. This expression 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 (see, inter alia, Khan v. the United Kingdom, judgment of 12 May 2000, Reports of Judgments and Decisions 2000-V, § 26; P.G. and J.H. v. the United Kingdom, cited above, § 44). In order to fulfil the requirement of foreseeability, 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 the authorities are empowered to resort to any such measures (see Halford, cited above, § 49 and Malone, cited above, § 67).
The Court is not convinced by the Government’s submission that the College was authorised under its statutory powers to do “anything necessary or expedient” for the purposes of providing higher and further education, and finds the argument unpersuasive. Moreover, the Government do not seek to argue that any provisions existed at the relevant time, either in general domestic law or in the governing instruments of the College, regulating the circumstances in which employers could monitor the use of telephone, e-mail and the internet by employees. Furthermore, it is clear that the Telecommunications (Lawful Business Practice) Regulations 2000 (adopted under the Regulation of Investigatory Powers Act 2000) which make such provision were not in force at the relevant time.
48. Accordingly, as there was no domestic law regulating monitoring at the relevant time, the interference in this case was not “in accordance with the law” as required by Article 8 § 2 of the Convention. The Court would not exclude that the monitoring of an employee’s use of a telephone, e-mail or internet at the place of work may be considered “necessary in a democratic society” in certain situations in pursuit of a legitimate aim. However, having regard to its above conclusion, it is not necessary to pronounce on that matter in the instant case.
49. There has therefore been a violation of Article 8 in this regard.
II. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION
The applicant submitted that no effective domestic remedy existed for the breaches of Article 8 of which she complained and that, consequently, there had also been a violation of Article 13 which provides as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violationhas been committed by persons acting in an official capacity.”
Having regard to its decision on Article 8 (see paragraph 48 above), the Court does not consider it necessary to examine the applicant’s complaint also under Article 13.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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. Damage
The applicant made no claim for pecuniary damage but without quantifying an amount, claimed non-pecuniary loss for stress, anxiety, low mood and inability to sleep. She produced a medical report dated June 2006 recognising that she had suffered from stress and lack of sleep due to the work environment.
The Government submitted that the report presented by the applicant gave no indication that the stress complained of was caused by the facts giving rise to her complaint. Furthermore, as the Court had held in a number of cases relating to complaints involving the interception of the communications of suspected criminals by the police, in their view, a finding of a violation should in itself constitute sufficient just satisfaction (see Taylor-Sabori v. the United Kingdom, no. 47114/99, § 28, 22 October 2002, Hewitson v. the United Kingdom, no. 50015/99, § 25, 27 May 2003 and Chalkley v. the United Kingdom, no. 63831/00, § 32, 12 June 2003). Moreover, since the conduct alleged consisted of monitoring and not interception, the nature of such interference was of a significantly lower order of seriousness than the cases mentioned above.
The Court notes the above cases cited by the Government, but recalls also that, in Halford (cited above, § 76) which concerned the interception of an employee’s private telephone calls by her employer, it awarded GBP 10,000 in respect of non-pecuniary damage. Making an assessment on an equitable basis in the present case, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage.
B. Costs and expenses
The applicant claimed legal costs and expenses totalling GBP 9,363 inclusive of value-added tax. This included fees paid to a solicitor and trainee solicitor of GBP 7,171.62, disbursements of GBP 1,556.88 and the rest in anticipated future costs.
The Government submitted that the hourly rates charged by the solicitors and the rate of increase over the period during which the case was pending were excessive. Moreover, the applicant’s original application included a number of complaints which the Court declared inadmissible and therefore the portion of costs related to such claims should not be recoverable. In the Government’s view the sum of GBP 2,000 would adequately cover costs and expenses incurred.
According to its settled case-law, the Court will award costs and expenses in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Schouten and Meldrum v. the Netherlands, judgment of 9 December 1994, Series A no. 304, pp. 28-29, § 78 and Lorsé and Others v. the Netherlands, no. 52750/99, § 103, 4 February 2003). Taking into account all the circumstances, it awards the applicant EUR 6,000 for legal costs and expenses, in addition to any VAT that may be payable.
C. Default interest
The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Holds that there has been a violation of Article 8 of the Convention;
Holds that it is not necessary to examine the case under Article 13 of the Convention.
Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts, to be converted into pounds sterling at the rate applicable at the time of settlement:
(i) EUR 3,000 (three thousand euros) in respect of non-pecuniary damage;
(ii) EUR 6,000 (six thousand euros) in respect of costs and expenses;
(iii) any tax that may be chargeable on the above amounts;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 3 April 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Josep Casadevall
Registrar President
Pennwell Publishing (UK) Ltd v Ornstien
[2007] EWHC 1570 [2007] IRLR 700
MR JUSTIN FENWICK QC:
Introduction
The Claimant is a wholly owned subsidiary of PennWell Corporation, which describes itself as a business to business media company based in the USA which provides print and online publications, conferences and exhibitions, research, online exchanges and information products to strategic global markets. The parent company describes itself as a world leader in the development of conferences and exhibitions, managing and producing events worldwide across a large spectrum of industries including power generation.
PennWell UK’s business is run from two offices, of which the one relevant to this litigation is in Essex. This office principally manages PennWell’sconferences and exhibitions and is responsible for 11 events which are held worldwide in the power, petroleum, fire engineering and related industries.
This action arose in October 2006 because the Claimant was concerned that the First, Second and Third Defendants were involved in setting up the Fourth Defendant, the Energy Business Group Limited, to compete with the Claimant and that they had unlawfully removed and were using confidential information of the Claimant for the purposes of that competing business. By the time that the matter came to trial, the
In the light of the evidence, I have reached the following clear conclusions of fact:-
(a) I am satisfied that Mr Isles was aware at least in outline of the work being carried out to set up the Fourth Defendant in competition with the Claimant during the period from October 2005 to the end of August 2006 and that he played an active role in the planning and preparation of the launch of that company;
(b) I am satisfied that he must have been aware that Mr Ornstien and Mr Noyau were or were likely to be making use of the Claimant’s confidential information to prepare the various lists and carry out the soliciting of business which was contained in the plan to be carried out prior to 1 September 2006. I do not consider it realistic to suppose that the preparation of 1,000 recipients of the monthly publication, or the targeting of other individuals envisaged in the time line in the Business Plan, could have been carried out whilst they were working at PennWell without the question arising of whether such information could be obtained from PennWell sources. I am satisfied that Mr Isles must have been aware that that was likely and in the absence of any evidence that he discussed with Mr Ornstien and made clear his view that there should be no use of confidential PennWell information, I am satisfied there is an irresistible inference that he knew that Mr Ornstien would be making use of PennWell’s confidential information for these purposes;
(c) however, I am not satisfied that he had any idea that Mr Ornstien would be downloading the very large quantities of confidential information which the Claimant subsequently found to have occurred. Having heard Mr Isles give evidence, I am satisfied that if he had been aware of this he would have protested strenuously against such a blatant abuse of Mr Ornstien’s position and breach of his obligations to PennWell;
(d) I am satisfied that Mr Isles was aware that on certain visits abroad, Mr Ornstien was taking the opportunity to promote the planned business of the Fourth Defendant. However, I am not satisfied that Mr Ornstien or Mr Isles were misusing their expense accounts or promoting their own business at a time when they should have been promoting that of the Claimant. In particular, I am not satisfied that there are any valid criticisms of Mr Isles’ or Mr Ornstien’s conduct on such visits;
(e) I find that Mr Isles was aware that Mr Ornstien was attending the Power-Gen conference on 7 September with a view to competing with the Claimant and that despite that knowledge, he permitted Mr Ornstien to attend and took no steps either to prevent it or to alert the Claimant to the risk of competition;
(f) so far as concerns the list JuniorContacts.xls, I am satisfied that it came into existence in the following way:-
i it derived originally from a list brought by Mr Isles from his previous employment;
ii at some point in his employment with the Claimant, he transferred those contact details onto the Outlook e-mail address system provided to him by the Claimant;
iii thereafter, he maintained a single list of contacts for all those that he needed to contact for the purpose of the business of the Claimant, together with personal contacts of his own, his previous contacts and his family and friends, on the same Outlook address list;
iv although he may from time to time have taken a copy or printed a list of those contacts for perusal, he did not retain them in any form except on PennWell’s Outlook system backed up to the PennWell server;
v that before leaving PennWell, he downloaded the entire address list, comprising his previous contacts and all the contacts that he used in the course of PennWell’s business, to a pen drive mass storage device which he took with him for future use;
vi that the copy of his address list which was left on his computer when he departed was deleted by the Claimant as part of its clean up of redundant computer equipment, with no copy being kept for the Claimant’s own purposes;
vii that it was only after the list was returned by Mr Isles in the circumstances that I have described, that it came to be provided to Mr Nigel Blackaby who took on part of Mr Isles’ role and became used by him in the circumstances described in his witness statement.
Findings
The principal issue now between the parties relates to the rights over the information in the JuniorContacts.xls spreadsheet, but it is necessary to deal shortly with the other claims against Mr Isles. These are of limited significance since it is accepted that as a result of, as the Claimant puts it, its prompt action, no damage has in fact been suffered as a result of the breaches alleged against the Defendants. The Claimant maintains those claims essentially for the purpose of justifying its actions in obtaining an injunction against their undertaking in damages, because of the costs implications and to provide background to an analysis of Mr Isles’ conduct over his contacts list.
Because Mr Isles’ contract of employment did not contain any restrictions on competition after the termination of his employment or, expressly, during his employment, it is necessary to consider the other express and implied terms of his contract.
The following terms of Mr Isles’ employment contract are relevant:-
(a) clause 4.4(iii) – “not during your employment, without PennWell’s written consent have any other job or be interested in any other business”;
(b) clause 16: confidentiality – “… not, during or after the termination of your employment, to discuss with anyone or otherwise disclose, other than in the proper course of your employment, any information of a confidential nature relating to PennWell or any of its affiliated companies, including, without limitation, PennWell Publishing Company, PennWell Publishing New York Inc … or its or their business or trade secrets”;
(c) clause 21: company property – “all documents, manuals, hardware and software provided for your use by the company remain the property of the company and must be returned when your employment ceases. Similarly, any documents you receive from the company’s clients in connection with your work, must be returned before you leave.”
It is common ground that for 11 months prior to his departure, Mr Isles was director and company secretary of the Fourth Defendant and that he had a substantial financial interest in that company. The issue that I have to determine is whether Mr Isles’ involvement in the activities of the Fourth Defendant during any significant part of that period can be regarded as the running of another business, or whether what occurred were simply acts preparatory to the setting up and launch of that business which do not fall within the covenant set out above.
I was referred to the helpful analysis of the distinction between preparatory acts and competitive activity by the Court of Appeal in the case of Helmet Integrated Systems Ltd v. Tunnard ([2006] EWCA Civ 1735 as reported at 2007 IRLR p.126).
In the present case, because of the absence of any restriction in clause 22 of his contract of employment, Mr Isles was free to compete with PennWell after his departure. For that purpose, I accept that he was entitled to carry out preparatory steps, such as identifying business partners, setting up a company and locating suitable premises and equipment, including where necessary actually acquiring them before the date of his departure.
I also accept that Mr Isles did not himself have any significant direct involvement in the preparatory activities, with most of those being carried out by Mr Ornstien.
However, the mere fact that the Fourth Defendant did not trade prior to 1 September, in the sense that it did not issue invoices or publish periodicals or arrange a conference, is not determinative. It is relevant to note that in Helmet the Judge in first instance stressed the following findings:-
(a) there was no allegation of breach of confidence or misuse of confidential information;
(b) it was not alleged [he] was in breach of any restrictive covenant. There was no such covenant;
(c) no other employee was involved;
(d) the Defendant carried out his activities entirely in his own time without any use of the employer’s property;
(e) there was no commercial agreement or arrangement made before he left and no actual competition;
(f) he was neither a director nor an employee of similar rank, he was a middle ranking senior salesman.
Although Mr Isles was not subject to a restrictive covenant, I am satisfied that the steps taken by Mr Ornstien on behalf of the Fourth Defendant went well beyond the kind of preparatory activity which the Court accepted as reasonable within Helmet. I am satisfied that the position is closer to that found by the Judge and affirmed by the Court of Appeal in the case of Lancashire Fires Ltd v. S A Lyons & Co Ltd ([1997] IRLR 113).
In those circumstances, I have to consider whether Mr Isles’ involvement as a director and shareholder, his awareness of the Business Plan and his, as I have found, limited awareness of what Mr Ornstien was doing, coupled with his own limited involvement, amount to a breach of the express term that he would not be interested in any other business.
I find that the actions of Mr Ornstien in pursuance of the Business Plan, although it is clear that many parts of the Business Plan were not in fact accomplished, amounted to the carrying on of a business and not merely acts preparatory to the launch of a business. In those circumstances, I find that the Fourth Defendant did constitute a “business” within the meaning of the express term of Mr Isles’ contract and as a result, through his shareholding and directorship, I find that he had an interest in that business. This is consistent with Mr Isles’ legal responsibility for the acts done on behalf of the company of which he was a director.
It is common ground that Mr Isles was under an implied duty of good faith and fidelity on the principles set out in Robb v. Green [1895] 1 QB 315.
However, because I am not satisfied that Mr Isles had sufficient awareness of Mr Ornstien’s restrictions in his employment contract or of his breaches of duty to the Claimant in removing and misusing confidential information, and because I am satisfied on the evidence that Mr Isles himself did very little, I am not persuaded that Mr Isles was in fact in breach of his duty of good faith and fidelity, except in respect of his knowledge and assent to some limited use of the Claimant’s confidential information by Mr Ornstien, and the attendance of Mr Ornstien at the Power-Gen conference on 7 September which I now turn to consider.
The Claimant further relies on Sybron Corporation v. Rochem Ltd [1985] CH 112 for their assertion that Mr Isles was under a duty to report the misdeeds of Mr Ornstien and Mr Noyau in competing and in removing confidential information of the Claimant. In that case the Court of Appeal decided that although an employee was not generally under a duty to disclose his own past misconduct, the position may be different where a senior employee is aware of misconduct by other employees, particularly where it is continuing.
The Claimant’s case is that Mr Isles’ position was sufficiently senior for him to fall within the rule in Sybron and to be under an obligation to disclose the misdeeds of Mr Ornstien and Mr Noyau.
In that case Lord Justice Stevenson said at page 126H as follows:-
“It follows from Swaine v. West (Butchers) Ltd ([1936] 3 All ER 261) which is consistent with Bell v. Lever Brothers Ltd ([1932] AC 161) and is binding upon us, that there is no general duty to report a fellow servant’s misconduct or breach of contract; whether there is such a duty depends on the contract and on the terms of employment of the particular servant. He may be so placed in the hierarchy as to have a duty to report either the misconduct of his superior, as in Swaine v. West (Butchers) Ltd, …. or the misconduct of his inferiors as in this case.”
I have considered carefully the evidence as to Mr Isles’ role in the company and although I am satisfied that he occupied a senior position, I am not satisfied that he was in a position where he was under an obligation to report the misconduct of Mr Ornstien who was in effect the senior UK member of staff. So far as Mr Noyau is concerned, there is not sufficient evidence before me of separate misconduct on the part of Noyau being known to Mr Isles for me to be satisfied that there arose a duty to report his misconduct in circumstances where I cannot be satisfied that Mr Isles was aware of the restrictions on competition placed on Mr Noyau or Mr Ornstien.
However, I consider that the position is different in relation to the Power-Gen conference on 7 September attended by Mr Ornstien. By that time, Mr Ornstien had left the company and was, to Mr Isles’ knowledge, engaged in promoting a rival business, of which the Claimant was ignorant. As conference chairman, Mr Isles had a responsibility either to prevent Mr Ornstien from attending or canvassing at the conference, or to draw the matter to the attention of his superiors. He was in a position of clear conflict of interest because his interest in Mr Ornstien making use of the conference to promote the Fourth Defendant was in direct conflict with the Claimant’s aims in running that conference. Even if Mr Isles was not aware of any specific restriction on competition in Mr Ornstien’s contract of employment, it must have been clear to him that Mr Ornstien would have been seeking to make use of his contacts with the business and his privileged position as attending the conference, and that any prudent conference organiser would wish to be alert to and take reasonable steps to control any such competitive canvassing.
Finally, the Claimant asserts that because of the seniority of his position, Mr Isles owed a fiduciary duty to act in good faith and in the best interest of the Claimant not to place himself in a position where there was a conflict between his personal interest and his duties to the Claimant. It is said that the setting up of the Fourth Defendant and the steps taken to launch that business including using publicity material very similar to that of PennWell and the obtaining of PennWell client lists, was a breach of that fiduciary duty because of the conflict between his personal interests as an investor in the Fourth Defendant and his duties to the Claimant.
Although the Claimant urged that Mr Isles was in breach of a fiduciary duty, I am not satisfied that there was any aspect of Mr Isles’ conduct which put him in the position of a fiduciary. Had I reached the conclusion that Mr Isles had been involved in the active solicitation of business for the Fourth Defendant by preference to the Claimant, during the time that he was an employee, in relation to those matters of which he had direct control, namely the publication of which he was editor and the conferences of which he was chairman, it would have been necessary to consider this issue rather more fully. However, on my findings, this issue does not arise.
JuniorContacts.xls list
At the heart of this case is the question of whether the information on the JuniorContacts.xls list:-
(a) belongs to PennWell to the exclusion of Mr Isles;
(b) belongs to Mr Isles to the exclusion of PennWell (although Mr Isles does not seek to prevent PennWell from now using the list in common with him);
(c) is jointly owned and can be used by both.
The position taken by the Claimant through the evidence of Marybeth Dewitt is straightforward. They assert that the information was prepared and maintained on PennWell’s computers during Mr Isles’ employment with PennWell and for the purposes of that employment and it is therefore confidential information which is the property of the Claimant. It is said that that position remains the same even though parts of the information may originate from a spreadsheet originally legitimately in the possession of Mr Isles, although their overall position is that if Mr Isles can show that any part of the information pre-dated his employment, he should be entitled to that part of the list.
The case for Mr Isles was essentially that this was his personal contact list which he, in common with other journalists and editors, kept of the contacts that he had built up over his career. As such, it was his personal information rather than that of the Claimant and he was entitled to retain it.
Mr Isles also submitted that to deprive him of this list would be a breach of his rights under Article 10 of the European Convention on Human Rights. It is said that that would seriously diminish the quality of his journalistic output and disclose to the Claimant confidential sources for his journalism.
I deal first with the position under Article 10. This provides as follows:-
“Freedom of expression
1. Everyone has the right of freedom of expression. This right should include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed in law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevent of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
Mr Isles also relied on section 12(4) of the Human Rights Act 1998. The relevant parts of the section provide:-
“12. Freedom of expression
(1) This section applies if a court is considering whether the grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression. ……
(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to – (b) any relevant privacy code.”
Finally, Mr Isles refers to clause 14 of the Press Complaints Commission Code of Practice which refers expressly to sources as follows:-
“14. Confidential sources
Journalists have a moral obligation to protect confidential sources of information.”
Mr Duodu, on behalf of Mr Isles, correctly emphasised the Court’s recognition of the important role played by the media in society and the need for the prevention of unwarranted interference as reflected in cases such as Goodwin v. United Kingdom [1996] 22 EHRR 123 and the importance of the protection afforded to journalistic sources embodied in, for instance, section 10 of the Contempt of Court Act 1981. Mr Duodu also relied on Campbell v. MGN for the proposition that the Court should carry out a “balancing exercise” where Article 10 rights are in conflict with other rights such as proprietary or confidentiality rights.
In practice, I do not consider that on the facts of this case, the Article 10 rights are significantly engaged, for reasons which will become clear later in this Judgment. It is sufficient at this stage to state my conclusions shortly.
Firstly, I do not consider that the protection of confidential sources of information is threatened. There is no evidence to suggest that the identity or contact details of anybody on the list is in itself something which cannot be disclosed, nor is there any suggestion that the list would enable a link to be made between any person on that list and any unattributable information contained in any material published by Mr Isles. Further, and perhaps more importantly, to the extent that Mr Isles published this material in the course of his employment with PennWell, PennWell will be subject to the same duties of confidentiality as Mr Isles and will need to exercise the same care in any relevant situation over the disclosure of any material identifying a confidential source.
Finally, and in any event, since Mr Isles has expressly confirmed that he does not seek to restrain PennWell from retaining a copy of the list, this part of his argument inevitably fails.
I accept that Article 10 would be relevant if this court were to act in a way which would prevent Mr Isles from holding opinions, receiving and imparting information and ideas without interference. Had the Claimant sought to restrict Mr Isles from contacting his journalistic sources and contacts, it would have been necessary to consider carefully the balance between their rights to the information, if any, and Mr Isles’ rights under the ECHR. However, the Claimant does not seek to restrict him from exercising his rights nor from using any information as to contacts which he may have independently of a list belonging to PennWell.I consider the limited impact of Article 10 in respect of this later in this Judgment.
If, as a result of this action, Mr Isles is in practical terms hampered in his journalistic activities, it will be because the only place on which he stored those contacts was in circumstances where the rights in it are vested in the Claimant.
I turn next to the ownership of the information contained in the JuniorContacts.xls list. In this respect, both parties put their case relatively high. In paragraph 22 of his Defence and Counterclaim, Mr Isles accepted that the JuniorContacts.xls list and information on it was confidential and of substantial value both to the Claimant and to himself and the Fourth Defendant. By his Counterclaim he described the list as “a list of journalistic sources and industry contacts … which he has built up over the last 17 years and which is integral to his work as a journalist and expert within the energy industry … as a result [he] has been hampered in his ability to work in his field of expertise in the industry to which he is accustomed”. Further, it will be noted from the material I have referred to earlier in this Judgment that he consistently referred to it as his information assembled over 17 years. In paragraph 8 of his first witness statement he said that he had always been careful to keep a secure record of his contacts and to maintain them as personal contacts. He said that prior to leaving PennWell he had never shared them or allowed them to become incorporated into any central company database. In his second witness statement he stated that it was he who chose to save it to the internal hard drive of his work computer for his own convenience and not to the PennWell network where it could be accessed by other employees. He went on to say:-
“If anything, I maintained control over the list and was confident that it was stored securely and would not be accessed by any other person.”
In paragraph 19 onwards of the second witness statement of Ms Dewitt, she referred to PennWell’s policy of maintaining the secrecy of its confidential and proprietary lists and databases because these were “the most valuable assets of PennWell’s worldwide publications and conference and exhibition business”. At paragraph 208 she stated that:-
“When PennWell hires new editors or other employees, it does not expect and actually restricts new employees bringing databases of customer or commercial information from their previous employers. PennWell would not knowingly use databases taken from other companies as PennWell recognises that it has no legal right to use such information”.
She went on to say that:-
“The Contact List is commercially valuable because it is much more than a list of journalistic contacts to assist Mr Isles in writing his own articles. …. The Contact List would enable him to retain and work with industry experts so he could publish magazines and plan conferences and exhibitions that would compete directly with PennWell. In this respect, the value of a contact list to a publisher and event organiser such as Mr Isles is functionally equivalent to the value of a customer list or ACT! database to a sales person such as Mr Noyau.”
Mr Nigel Blackaby, who took over some of the duties of Mr Isles on his departure, gave evidence for the Claimant and commented on the contact list as follows:-
“I have examined the Contact List and believe that it is more than just a list of Mr Isles’ contacts as a journalist. I do not recognise all the names on the Contact List, but a substantial proportion of the Contact List relates to persons who have spoken at PennWell’s global power events, served on various PennWell event committees, or are otherwise related to PennWell’s events. As such, the Contact List has commercial value to PennWell even though most of the persons on the list would not have responsibility for purchasing advertising or booth space at an event.”
He described the list as having been provided to him in connection with his duties as Acting Editor after Mr Isles resigned. However, it is clear to me on the evidence that in fact the material provided to him was not retained by PennWell but a copy of the list as disclosed by Mr Isles pursuant to an order of this Court.
For the reasons set out earlier in this Judgment, I do not accept that this list was a list separately maintained by Mr Isles as a list of his journalistic contacts. It seems that he may have had such a list which he brought with him to PennWell. However, it is clear to me that it was not a list which was maintained separately as his own personal list of journalistic contacts, updated on a spreadsheet and kept separate. Such a list would have been similar to a private address book or the kind of address book of contacts which, on the evidence, is typically maintained by some journalists.
On the evidence, I am satisfied that what Mr Isles did some time after he joined PennWell was to add personal contact details of some of his existing contacts to the Outlook e-mail system maintained by his employer. I am satisfied, on the evidence, that that was maintained as a typical e-mail address list with additional contact information, that it was backed up on PennWell’s servers on a regular basis and accessed by Mr Isles by logging on to PennWell’s e-mail system. Indeed it was this back-up which enabled Mr Isles, as I find, to restore the list on his new Palm when the original one containing a copy of the list was stolen.
I also find, on the evidence before me, that Mr Isles maintained a single list which contained all those with whom he was in contact for the purposes of PennWell’s business, whether these could be described as journalistic contacts or business contacts in his capacity as a PennWell editor and conference chairman. This is no different from the kind of e-mail address book maintained by many executives on their employer’s e-mail system.
I am also satisfied that Mr Isles downloaded the entire address list, without any form of filtering, onto a memory stick in Excel spreadsheet format, shortly before he left PennWell on 8 September 2006. I find that the list which was eventually disclosed by him with the title “JuniorContacts.xls” was in fact an Outlook spreadsheet version of the e-mail address list maintained by him on PennWell’s e-mail system on PennWell’s server.
I do not accept Mr Isles’ evidence that he used the list in spreadsheet format in the normal course of events. He accepted in evidence that the headings to the columns are derived from Outlook and it is clear to me that as a spreadsheet, it was extremely inconvenient in the number of columns and the positioning of those columns where one would have to scroll across the sheet with considerable frequency in order to obtain information to contact an individually named person.
On the other hand, I do not think that it can properly be said that this was a confidential list deliberately maintained by the Claimant and intended to be preserved by it as important confidential information. On the facts of this case, it is clear that PennWell had not addressed its mind to the importance of or best use of e-mail contact information maintained by its executives. It was for that reason that information which, on Mr Blackaby’s evidence I accept, was of considerable value to him as Mr Isles’ replacement, was not preserved on Mr Isles’ departure but wiped from his computers as part of a routine clearance.
The irony of this case is that this list would as a matter of fact, have been entirely lost to the Claimant had Mr Isles not taken a copy with him on his departure.
I also find that PennWell had a standard system maintained on an Apple Mac, of various editorial and other contacts which was added to by all members of the department, although on Mr Isles’ evidence he was not particularly aware of this list nor did he add to it.
In these circumstances, I do not consider that the list currently at issue is properly described as a personal list maintained by a journalist apart from his work systems and for his own use.
Instead, I have to decide what is the legal position in relation to e-mail address lists maintained by employees which is a situation which must occur in relation to many thousands of employees who have individual responsibilities and who develop and maintain a list of useful contacts for the purposes of their role.
Before deciding the legal status of this list on my findings and, in the alternative if I am wrong as to it being an e-mail address list, the conclusions that I would have reached had I found that it was a separately maintained list of contacts, it is necessary to consider the law in relation to confidential client lists and similar in a little detail.
It is clear from the decision in the Court of Appeal in Faccenda Chicken Ltd v. Fowler ([1987] 1 CH 117) that an employee cannot be restrained from using information obtained during his employment after that employment has come to an end unless it falls within the category of specific trade secrets. That applies even where the employee has gained knowledge of a large range of useful commercial information such as names of customers and how to contact them. Thus, although an employee will be restrained from using that information during his employment, he is not restricted from using it afterwards unless it falls into the restricted category. The Court of Appeal concluded that in order to assess whether particular information is protected it is necessary to consider all the circumstances of the case and they set out the following as matters to which attention must be paid:-
“(a) The nature of the employment. Thus employment in a capacity where “confidential” material is habitually handled may impose a high obligation of confidentiality because the employee can be expected to realise its sensitive nature to a greater extent than if you were employed in the capacity where such material reaches him only occasionally or incidentally.
(b) The nature of the information itself. In our judgment the information will only be protected if it can properly be classed as a trade secret or as material which, while not properly to be described as a trade secret, is in all the circumstances of such a highly confidential nature as to require the same protection as a trade secret eo nomine. The restrictive covenant cases demonstrate that a covenant will not be upheld on the basis of the status of the information which might be disclosed by the former employee if he is not restrained, unless it can be regarded as a trade secret or the equivalent of a trade secret.”
It is plain in this case that individual addresses and contact details were not in themselves sufficiently confidential to amount to a trade secret. Many of them would fall into the first category identified by the Court in Faccenda Chicken, namely material easily available in the public domain, although certain items, such as direct telephone numbers and private e-mail addresses, would not fall into that category.
Therefore, I do not consider that, if Mr Isles had obtained details of these contacts during the course of his employment and selectively identified contacts that he might want to use in future, he could have been prevented from using that information after the end of his employment.
In the circumstances, I do not consider that the use of individual contact names by Mr Isles would be a breach of clause 16 of his contract.
Of far greater difficulty is whether it falls within the definition of company property under clause 21 of his contract.
If what had happened on Mr Isles’ departure was that he had taken a copy of the list of contacts maintained in the PennWell offices, such as the one on an Apple Mac which I have referred to earlier in this Judgment, or such as the list maintained on some form of card index at his previous employers, then I would have concluded that that fell within the definition of documents, manuals, hardware and software provided for his use by the company.
However, the list with which we are concerned in this case was not a list of contacts which had been provided to Mr Isles but one which he had prepared himself from material brought with him at the outset of his employment and other contacts which he had developed during the course of and for the purposes of his employment.
The taking of copies of a list of customers or other contacts by an employee and its subsequent use has long been held to be a breach of an employee’s duty of fidelity (see Robb v. Green [1895] QB 315) and that remains the position today (Bullivant v. Ellis [1987] ICR 464).
Therefore, had this database list been provided to Mr Isles, as it subsequently was to Mr Blackaby, there would be no doubt that to take and use a copy of it would be a breach of the express terms of Mr Isles’ contract as to confidentiality and the return of the employer’s property. If the list was compiled by Mr Isles himself, but as part of his duties, in my judgment there would be no significant difference. A list which most employees cannot lawfully take, cannot be available to be copied by one employee simply because it is his duty to compile that list. Indeed, the duty to maintain its confidentiality is probably greater in the case of the employee whose task it is to compile that list.
At a late stage of this litigation, the Claimant sought to rely on the argument that this was a copyright database, under the Copyright Designs & Patents Act 1988 (“CDPA”) or under the sui generis property right created by the Copyright and Rights in Database Regulations 1997.
This argument, which I find had not been clearly signalled or pleaded, gave rise to the need for supplemental written submissions after the close of oral argument. I am grateful to both parties for the very detailed and full submissions which they have provided to me.
I can, however, state my conclusions on this topic relatively shortly:-
(a) where a database is made by an employee in the course of his employment, his employer is be regarded as the maker of the database subject to any agreement to the contrary (Regulation 14(2));
(b) otherwise, the maker of the database is defined by Regulation 14(1) which provides that “the person who takes the initiative in obtaining, verifying or presenting the contents of a database and assumes the risk of investing in that obtaining verification or presentation shall be regarded as the maker of, and having made, the database”;
(c) thus, if the database was assembled by Mr Isles privately and for his own purposes, he would be treated as the maker of that database under Regulation 14(1) but if it can be said that the database was made in the course of this employment, then ownership will be that of the employer;
(d) for a relevant property right in a database to exist, there must be a substantial investment in obtaining, verifying or presenting the contents of the database under Regulation 13;
(e) if a database constitutes the author’s own intellectual creation by reason of the selection or arrangement of its contents, then it may be treated as an original work under Section 3A(2) of the Copyright Designs and Patents Act 1988;
(f) it is not necessary, in the light of my other findings, for me to reach a conclusion as to whether the database either in its form on the Outlook system or in the form of the JuniorContacts.xls spreadsheet was an original work within the meaning of the Copyright Designs and Patents Act 1988, but it is right to indicate that I was far from persuaded that the exercise of assembling a list of contacts addresses would be sufficient to qualify.
In relation to the Regulations, the answer will in my judgment turn on whether the database was one prepared by Mr Isles in the course of his employment, or one prepared by him outside his employment for his own long term purposes as a journalist, although in part using contacts developed in the course of his employment. In the former case, I would hold that the ownership of the database resided in the Claimant and in the latter in Mr Isles.
There are three subsidiary questions which I have to consider. The first is whether the fact that the database was derived in part from material brought by Mr Isles from his previous employment affects the conclusion. In my judgment, it does not. If the database was maintained as a separate spreadsheet by Mr Isles, it would reinforce the conclusion that any ownership of the database rested in him. If, however, the database was created in the course of his employment, the fact that some of the material was derived from information which he had already, does not in itself change the nature of the new database. In this context, it is clear on my findings that data from Mr Isles’ previous list on a spreadsheet was added to the Claimant’s Outlook system. As such, the Outlook system was not a development of the original database, but a new database to which old data was added.
Secondly, in his supplemental submissions Mr Duodu seeks to draw a distinction between the Excel spreadsheet which was finally delivered up by Mr Isles and the original Outlook database from which, on my findings, it was derived. The fact that the copy may be in Excel format and thus different in terms of presentation and usability does not in my judgment make it anything other than a copy of the original data. There is no evidence that any change or re-design of the data or the way that it was presented was carried out by Mr Isles in such a way as to create a new database.
Finally, Mr Duodu argues in the alternative that the database is a work of joint ownership. Again, this will turn on whether the database was created in the course of Mr Isles’ employment, or partly in the course of his employment and partly for his own purposes. In my judgment, on the facts that I have found, the Outlook database was created and maintained for the purposes of the Claimant’s business, although it may have been intended to be used in part for Mr Isles’ own journalistic purposes.
In the event, I do not consider that the analysis of the database regulations changes the position under the general law. The real question for me is whether the database containing the relevant information was the property of the Claimant or of Mr Isles, or whether there was some implied agreement either that although it was created in the course of Mr Isles’ employment he would be entitled to use it thereafter, or that there would be some form of sharing of information.
Had I reached the conclusion that this list had been maintained by Mr Isles separately, in the form of an electronic version of a personal address list, to which he had selectively added contacts which he regarded as journalistic and to be maintained by him for his career purposes, rather than for the purposes of his employment, I would have reached the conclusion that, in ordinary circumstances, Mr Isles was entitled as a journalist to develop and maintain such a list. I would have reached that conclusion because, in my judgment, there is a distinction to be made between on the one hand executives who are provided with and/or maintain and develop contact information for the purpose of doing their job properly, where the removal of that information would be detrimental to their employer and most obviously useable for the purposes of competition, with the position of a journalist who, on the evidence before me which I accept, needs to build up a collection of contacts which he can use when he needs information for his articles. I would also accept that a person in the position of Mr Isles who, by all accounts, is a highly capable and well respected journalist, editor and conference chairman, for the purpose of assembling expert boards for conferences, would be material which he could legitimately seek to develop as part of the body of experience which makes him attractive to employers.
In reaching such a conclusion, I would distinguish his position from that of the salesman who has a list of sales contacts of that business, and I take account of the fact that the protection from use of that material for reasonable periods can be obtained by the inclusion of suitable non-competition clauses in employment contracts, which was not the case with Mr Isles.
In reaching my conclusion I have considered various letters and representations, included without objection in the bundle before me which in my view point up the importance of journalists being allowed to maintain and add to a list of contacts which is independent of any list maintained by their employer and which they are entitled to preserve and use on leaving their employment. One Janet Wood who describes herself as currently news editor of Utility Week magazine and who has had significant previous experience, stated that “neither as a journalist or editor have I known of an occasion when a journalist moving jobs has been required to surrender his contacts to his employer. I do not think it is either practical or useful: they are personal relationships that may have been built up over many years.”
Mr James Lucky wrote on 8 December 2006 as follows:-
“One of the most important assets a journalist can have – regardless of industry or topic covered and be it national, regional or trade press – is a good contacts book. On the few occasions I have moved between journals (as I did when I left IPG for a while to join Energy Markets), I have always kept my contacts records and taken them with me to the new place of work. Quite simply, covering a technical field such as electricity supply I would be lost without them. Many of these contacts are not just people you have met in recent times but important business relationships built up over many years. Contacts for a salesman are a different matter. For a journalist they are your source of information enabling you to write about the industry you cover.”
John Toner who describes himself as a freelance organiser for the National Union of Journalists, has written a letter of support as follows:-
“It is important to draw a distinction between confidential information about a company’s business and the personal contacts that a journalist acquires over the course of his/her career. The former is clearly the property of the company, and should not be disclosed to third parties. The latter, however, is the property of the journalist. A journalist is often employed or engaged by a company on the strength of his/her contacts. It is those contacts, cultivated over many years, that make some journalists more sought after than others. When Mr Isles was headhunted by PennWell, his contacts list would be one of the reasons they were so attracted to employing him. In other words, his existing contacts list, compiled when in the employ of others, was something from which PennWell hoped to benefit. …. It is common practice within the industry that a journalist will take his contacts list from one engagement to another.”
However, the position is in my view rather different in the case of e-mail address books maintained on the employer’s computer. In this case, although I was provided during the trial with a copy of an e-mail policy of PennWell, I am not satisfied that that restriction was ever brought to the attention of Mr Isles or incorporated in his employment contract. I was provided with a copy of an e-mail sent by Mr Freddie Lauritzen, who gave evidence before me, on 16 May 2006 which stated as follows:-
“Compliance and monitoring – violations of these policies may result in disciplinary action up to and possibly including termination. All employees should be aware that e-mail, communications, information access, and network usage at PennWell is not considered private. PennWell may monitor, audit, access, or interrupt all communications, access to the computer network, and employee activites utilising PennWell provided resources without prior notice to users.”
Whilst I am satisfied that that e-mail will have come to the attention of Mr Isles, I am not satisfied that the two documents described as “Network Access and Usage Policy” and “E-mail Policy” were either attached to that e-mail or otherwise brought to Mr Isles’ attention. Mr Lauritzen fairly conceded that he could not be satisfied whether any and if so which attachments were sent with that e-mail.
The relevant section of the e-mail policy provides as follows:-
“Employees may only use the e-mail system for business use. Access to the e-mail system is granted to employees to facilitate communication with co-workers and customers. Employees may not use PennWell provided e-mail systems to send or redistribute any messages or files that are not directly related to their job responsibilities. Routinely receiving personal e-mail via the PennWell e-mail system causes significant increase in disk usage, tape back-up usage, and network usage. Employees are expected to use PennWell’s e-mail system for all business purposes, unless an exception has been granted, in writing, by the Chief Information Officer.”
In my judgment, had that e-mail policy been effectively communicated to Mr Isles, it would have made clear to him that the e-mail system provided to him was to be used only for business purposes and, therefore, that in adding to or maintaining contact details on that system, he was doing so exclusively for the employer’s benefit and not for his own.
However, in the absence of effective communication of such a policy, I have to consider the difficult issue of the status of such address lists on e-mail systems provided by employers for their employees when no express limitation has been imposed.
This raises the difficult issue of the status of such address lists on e-mail systems provided by employers for their employees.
On one view, these lists plainly consist of confidential information of the employer. They include details of the individuals with whom the employee is expected to and will have made contact during his employment for his employer’s purposes. They are backed up, generally, on a system maintained or at least paid for by the employer.
On the other hand, in the new electronic age, electronic address books, whether on mobile telephones, communicators or e-mail systems, are inevitably used by individuals, whether employees or executives, for the convenient storage of those that they wish to contact. In the absence of a declared e-mail policy, it may well be that such employees will use such systems, including on mobile telephones provided for their use, for retaining the records of all sorts of contacts, from personal friends and family, through friendships that they have developed in work and journalistic contacts of the kind I have referred to above, through to the normal business contacts of their employer.
It may well be the case that many employees do not think of the implications of using their mobile telephones or computers to record their own personal contacts and simply use them for convenience. In the case of mobile telephones, modern technology permits the transfer of contact details either one by one or as a block from one telephone or SIM card to another telephone or SIM card. Thus employees may routinely take copies of those contacts at the end of their employment before handing over the telephone to their employer. Similarly, they may well choose to use their employer’s e-mail system or even be required not to use a personal e-mail system such as hotmail on their work computers, so that the only means of communicating during working hours by e-mail is by using their employer’s computer.
I am satisfied that where an address list is contained on Outlook or some similar program which is part of the employer’s e-mail system and backed up by the employer or by arrangement made with the employer, the database or list of information (depending whether one is applying the Database Regulations or the general law) will belong to the employer. I do not consider that the position will change where the database is accessed not from the employer’s computer but from the employee’s home computer by “dialling up” or otherwise “logging on” to the employer’s e-mail system by some form of remote access.
In all those circumstances, I find that such lists will be the property of the employer and may not be copied or removed in their entirety by employees for use outside their employment or after their employment comes to an end.
Because this is not likely to be appreciated by many employees, it is in my judgment highly desirable that employers should devise and publish an e-mail policy of the kind which in this case was devised by PennWell but on my findings not adequately communicated to Mr Isles.
In the absence of such a laid down policy, I next have to consider the status of contact details which have been put on to an employer’s system by an employee for their own use outside their employment, in ignorance of the fact that they would thereby become part of the Claimant’s property. No problem arises, of course, where such details are duplicated elsewhere by the employee because that information is plainly theirs.
In my judgment it is reasonable to imply in the absence of any laid down guidance a term that an employee will at the end of their employment be entitled to take copies of their own personal information and, where the information is person and confidential to them, such as details of their doctor, banker or legal adviser, to remove them from the employer’s system.
Most forms of e-mail system will permit the creation of compartmentalised address books, so that ordinarily an employee will be able to put their own personal contact details of friends, relations, and the like into a personal address book. In those circumstances, in the absence of clear evidence of an e-mail policy, I would be inclined to the view that ownership of that part of the database resided with the employee. It would then only be if that part improperly contained information confidential to the employer which was being removed for the purpose of competition, that the employer could challenge its removal.
I accept that Mr Isles was in a position where he failed to appreciate that by maintaining his contact list exclusively on PennWell’s system, he was thereby keeping it in a form in which it was the property of PennWell. I am satisfied that had he addressed his mind to the position, he would have kept his earlier contacts separate and although he might have added some of them to his work e-mail for convenience, he would not have abandoned his own separate address book spreadsheet system.
I am also satisfied that he would have been entitled, from time to time, to add selected contacts which he had updated or gained during his employment and which were of general use to him in a journalistic context, to that private address book.
Such an approach is entirely consistent with the conclusions that I have reached as to the desirability of a journalist being entitled to develop personal contacts.
I have also reached the conclusion that had Mr Isles wished to do so immediately before leaving his employment, he would have been entitled to remove his private family contacts from the PennWell system and to have extracted information about key journalistic contacts which could properly be described as his personal sources as well as copying any information which he had put on to the system from his own previous resources. I do not consider that he would have been entitled to remove any of the items apart from purely private ones from the PennWell system.
I also consider it likely that had he asked PennWell if he could remove his personal contacts and take details of one or two of his best contacts, he would have been permitted to do so.
It follows therefore that in my judgment, the submissions made by Mr Duodu both as to the general rights of a journalist to develop contacts and to the rights which Mr Isles would have had if he had continued to maintain the JuniorContacts.xls spreadsheet separately, are well founded.
However, on the evidence, this is not what happened in this case. I am satisfied that the list of contacts which Mr Isles downloaded from the Claimant’s Outlook system and converted into the JuniorContacts.xls spreadsheet, comprised the totality of the individuals and organisations with which he had sufficiently regular contact during the course of his employment with PennWell for it to be worthwhile keeping a record of their contact details. Such a list might in another age be maintained by his secretary and would undoubtedly have been the property of PennWell.
If the evidence had suggested that Mr Isles had selectively copied those that he regarded as proper journalistic sources or long term contacts, on to a spreadsheet, then I would have reached the conclusion that he was entitled to retain those as journalistic contacts for the reasons set out earlier in this Judgment. However, I do not accept that the entire list or even a majority of it, fell into that category. In my judgment, this was a list of all the contacts that one would expect an editor and conference chairman holding his position in PennWell, to require for the purposes of PennWell’s business. Although some of them would be relevant to him in his future career, there was no such process of selection. This is an inevitable finding given that he exported his entire Outlook address book.
For it to have been otherwise, Mr Isles would have had to maintain on his Outlook system not those contacts which were useful for the purposes of PennWell’sbusiness but only those which were of long term value to him. It is in my judgment clear that no responsible person in Mr Isles’ employment would have acted in such a way because to do so would have hampered his ability to carry out his work properly.
I am satisfied that Mr Isles removed the entire contents of his address book not for the purpose of maintaining key journalistic contacts and sources in the way supported by the many individuals of distinction who have written in to support his case, but in order to have the widest possible list of contacts of PennWellwho would be useful for the purposes of the Fourth Defendant.
My conclusion is reinforced by the contents of an e-mail sent by Mr Isles on 21 September 2006 to a large number of those on his contact list in which he drew attention to his new role as editorial director of the Energy Business Group and, in essence, sought to maintain contact with them. In that e-mail he wrote as follows:-
“There were a number of changes at PennWell, many of which have been ongoing, which didn’t always align with my vision. This prompted a decision I would have made at some point anyway. However, after leaving I met up with a couple of colleagues who had recently left PennWelland decided to set up a company called the Energy Business Group. I will be producing a monthly subscription only newspaper focusing on power and energy, and smaller conference led events focused on specific markets. In fact the first one will be held in Belgrade April 17-19 called Energy Business South East Europe.”
That statement of how he came to become involved in Energy Business Group was, of course, not true as he accepted in evidence.
For all these reasons, I conclude that the ownership in this database has at all material times been with PennWell, since it was created in the Outlook system of PennWell and that Mr Isles is not entitled either to exclusive or shared use of it.
It follows that, in principle, the Claimant is entitled to retain the database as delivered up and to a permanent injunction preventing use of it, but not of individual parts of its content which may be known to Mr Isles by other means.
However, that leaves over the question of whether, pursuant to the implied terms which I have identified above in relation to an e-mail address system where the Claimant has not made clear its e-mail policy, Mr Isles is entitled to some relief in respect of certain parts of the database.
I have reached the conclusion that the concession offered by the Claimant in respect of those contacts made by Mr Isles before his employment at PennWellbegan, and included in the database, was correctly made and that Mr Isles should be permitted to retain details of those individuals.
In his second witness statement for trial, at paragraph 25 in Exhibit JI12, Mr Isles sets out a chart and statistics in which he attempts to identify the various category of contact included in the list. This is an exercise carried out very much at the eleventh hour, and one which he had previously indicated through solicitors was not practicable. However, it is the only evidence that I have as to which of the contacts, which I have found were incorporated into the database, in fact pre-dated his employment. In category A he identified 288 individuals who he had known prior to his time with PennWell and who had been in his contact list since that time. In category C were 204 entries whom he knew outside work including his brother. In Category D were 5 contacts who he had added to the spreadsheet after he had left PennWell.
I am satisfied that in the circumstance of this case, and despite the way in which Mr Isles in my judgment prevaricated about the existence, nature and origin of the list, it would be reasonable for Mr Isles not to be deprived of those contacts.
The veracity and accuracy of the categorisation has been challenged by the Claimant but there was an opportunity to cross-examine Mr Isles on the list and in any event, I am satisfied that Mr Isles is in general a person of integrity who can be relied upon to do his best to be truthful in identifying the relevant categorisation and the way in which the list has been split up in my judgment is indicative of a careful and considered attempt to provide accurate answers. In those circumstances, I see no reason not to permit Mr Isles to retain that contact information.
So far as the other categories are concerned, these are either category F where Mr Isles is unable to identify the history of those individuals, or cases where he accepts that he either first came into contact with them during his time at PennWell or where he first came into the relevant individual during that period, even if he had previously been aware of their company.
The number of contacts in these categories reinforces my conclusion that this was not a list of journalistic contacts but the wholesale exportation of PennWell’s list. I have no doubt that included within these categories, are at least a few individuals whom Mr Isles would, had he maintained a separate spreadsheet of his journalistic contacts, have included on that list. Had Mr Isles raised the matter properly with his employers prior to leaving PennWell, I think it likely that he would have been permitted, or would otherwise have been found entitled, to take details of such selected individuals. However, by his conduct, he has acted in a way in which there is reason for the Claimant to apprehend that if given the entire list, he would not use it selectively, and in any event, there is no convenient means, without an extensive enquiry, of establishing which of these contacts could reasonably be regarded as journalistic contacts that Mr Isles is entitled to collect together as a journalist and which do not fall in that category. I have therefore concluded that there are no grounds on which, even carrying out a balancing exercise of such rights as he may have pursuant to Article 10 or any implied term of his contract, he should be entitled to a copy of these parts of the list.
Conclusion
I therefore conclude that Mr Isles was in breach of the express terms of his employment contract and that the Claimant is entitled to retain the JuniorContacts.xls list, subject to the limited relief I have identified.
I should add that in my judgment, this is a case in which, although parts of the claim have fallen away and others have not been pursued, the Claimant was entitled both to launch these proceedings against Mr Isles as a director and shareholder in the Fourth Defendant and in respect of his personal role, and in which they were entitled to pursue adequate answers in relation to the JuniorContacts.xls list, in respect of which I find that the answers given by Mr Isles at all times prior to trial were inadequate and partially inaccurate.
I will hear Counsel as to the form of any Order.
LEANDER v. SWEDEN
[1987] ECHR 4(1987) 9 EHRR 433, 9 EHRR 433, [1987] ECHR 4
[
JUDGMENT
STRASBOURG
26 March 1987
In the Leander case*,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
Mr. R. RYSSDAL, President,
Mr. G. LAGERGREN,
Mr. F. GÖLCÜKLÜ,
Mr. L.-E. PETTITI,
Sir Vincent EVANS,
Mr. C. RUSSO,
Mr. R. BERNHARDT,
and also of Mr. M.-A. EISSEN, Registrar, and Mr. H. PETZOLD, Deputy Registrar,
Having deliberated in private on 30 and 31 May and 28 August 1986 and on 25 February 1987,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The present case was referred to the Court by the European Commission of Human Rights (“the Commission”) on 11 July 1985, within the three-month period laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention. The case originated in an application (no. 9248/81) against the Kingdom of Sweden lodged with the Commission on 2 November 1980 under Article 25 (art. 25) by a Swedish citizen, Mr. Torsten Leander.
2. The Commission’s request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby Sweden recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision from the Court as to whether the facts of the case disclosed violations by the respondent State of its obligations under Articles 8, 10 and 13 (art. 8, art. 10, art. 13) of the Convention.
3. In response to the inquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, the applicant stated that he wished to take part in the proceedings pending before the Court and designated the lawyer who would represent him (Rule 30).
4. The Chamber of seven judges to be constituted included, as ex officio members, Mr. G. Lagergren, the elected judge of Swedish nationality (Article 43 of the Convention) (art. 43), and Mr. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 2 October 1985, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. J. Cremona, Mr. G. Wiarda, Mr. L.-E. Pettiti, Sir Vincent Evans and Mr. R. Bernhardt (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Mr. J. Gersing, substitute judge, subsequently replaced Mr. Wiarda, whose term of office as judge had expired before the hearing, and at a later stage Mr. F. Gölcüklü and Mr. C. Russo, substitute judges, replaced Mr. Gersing and Mr. Cremona, who were prevented from taking part in the consideration of the case (Rules 2 § 3, 22 § 1 and 24 § 1).
5. Mr. Ryssdal assumed the office of President of the Chamber (Rule 21 § 5). He ascertained, through the Registrar, the views of the Agent of the Swedish Government (“the Government”), the Delegate of the Commission and the lawyer for the applicant regarding the need for a written procedure (Rule 37 § 1). On 12 December 1985, he directed that the lawyer and, should he so decide, the Agent should each have until 4 February 1986 to file a memorial and that the Delegate should be entitled to reply in writing within two months from the date of the transmission to him by the Registrar of whichever of the aforesaid documents should last be filed.
The applicant’s memorial was received at the registry on 3 February. By letter the same day, the Agent of the Government stated that the Government did not intend to file any memorial. On 21 March, the Secretary to the Commission informed the Registrar that the Delegate would present his observations at the hearing.
6. On 3 April 1986, after consulting, through the Registrar, the Agent of the Government, the Delegate of the Commission and the lawyer for the applicant, the President directed that the oral proceedings should open on 26 May 1986 (Rule 38).
On 28 April, the Commission communicated to the Registrar a number of documents whose production he had requested on the instructions of the President. On 12 May, certain additional documents furnished by the applicant were received at the registry.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
47. The applicant claimed that the personnel control procedure, as applied in his case, gave rise to a breach of Article 8 (art. 8), which reads:
“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 contended that nothing in his personal or political background (see paragraph 17 above) could be regarded as of such a nature as to make it necessary in a democratic society to register him in the Security Department’s register, to classify him as a “security risk” and accordingly to exclude him from the employment in question. He argued in addition that the Personnel Control Ordinance could not be considered as a “law” for the purposes of paragraph 2 of Article 8 (art. 8-2).
He did not, however, challenge the need for a personnel control system. Neither did he call in question the Government’s power, within the limits set by Articles 8 and 10 (art. 8, art. 10) of the Convention, to bar sympathizers of certain extreme political ideologies from security-sensitive positions and to file information on such persons in the register kept by the Security Department of the National Police Board.
A. Whether there was any interference with an Article 8 (art. 8) right
48. It is uncontested that the secret police-register contained information relating to Mr. Leander’s private life.
Both the storing and the release of such information, which were coupled with a refusal to allow Mr. Leander an opportunity to refute it, amounted to an interference with his right to respect for private life as guaranteed by Article 8 § 1 (art. 8-1).
B. Whether the interference was justified
1. Legitimate aim
49. The aim of the Swedish personnel control system is clearly a legitimate one for the purposes of Article 8 (art. 8), namely the protection of national security.
The main issues of contention were whether the interference was “in accordance with the law” and “necessary in a democratic society”.
2. “In accordance with the law”
(a) General principles
50. The expression “in accordance with the law” in paragraph 2 of Article 8 (art. 8-2) requires, to begin with, that the interference must have some basis in domestic law. Compliance with domestic law, however, does not suffice: the law in question must be accessible to the individual concerned and its consequences for him must also be foreseeable (see, mutatis mutandis, the Malone judgment of 2 August 1984, Series A no. 82, pp. 31-32, § 66).
51. However, the requirement of foreseeability in the special context of secret controls of staff in sectors affecting national security cannot be the same as in many other fields. Thus, it cannot mean that an individual should be enabled to foresee precisely what checks will be made in his regard by the Swedish special police service in its efforts to protect national security. Nevertheless, in a system applicable to citizens generally, as under the Personnel Control Ordinance, the law has to be sufficiently clear in its terms to give them an adequate indication as to the circumstances in which and the conditions on which the public authorities are empowered to resort to this kind of secret and potentially dangerous interference with private life (ibid., p. 32, § 67).
In assessing whether the criterion of foreseeability is satisfied, account may be taken also of instructions or administrative practices which do not have the status of substantive law, in so far as those concerned are made sufficiently aware of their contents (see the Silver and Others judgment of 25 March 1983, Series A no. 61, pp. 33-34, §§ 88-89).
In addition, where the implementation of the law consists of secret measures, not open to scrutiny by the individuals concerned or by the public at large, the law itself, as opposed to the accompanying administrative practice, must indicate the scope of any discretion conferred on the competent authority with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference (see the above-mentioned Malone judgment, Series A no. 82, pp. 32-33, § 68).
(b) Application in the present case of the foregoing principles
52. The interference had a valid basis in domestic law, namely the Personnel Control Ordinance. However, the applicant claimed that the provisions governing the keeping of the secret police-register, that is primarily section 2 of the Ordinance, lacked the required accessibility and foreseeability.
Both the Government and the Commission disagreed with this contention.
53. The Ordinance itself, which was published in the Swedish Official Journal, doubtless meets the requirement of accessibility. The main question is thus whether domestic law laid down, with sufficient precision, the conditions under which the National Police Board was empowered to store and release information under the personnel control system.
54. The first paragraph of section 2 of the Ordinance does confer a wide discretion on the National Police Board as to what information may be entered in the register (see paragraph 19 above). The scope of this discretion is however limited by law in important respects through the second paragraph, which corresponds to the prohibition already contained in the Constitution (see paragraph 18 above), in that “no entry is allowed merely for the reason that a person, by belonging to an organisation or by other means, has expressed a political opinion”. In addition, the Board’s discretion in this connection is circumscribed by instructions issued by the Government (see paragraphs 20-21 above). However, of these only one is public and hence sufficiently accessible to be taken into account, namely the Instruction of 22 September 1972 (see paragraph 20 above).
The entering of information on the secret police-register is also subject to the requirements that the information be necessary for the special police service and be intended to serve the purpose of preventing or detecting “offences against national security, etc.” (first paragraph of section 2 of the Ordinance – see paragraph 19 above)
55. Furthermore, the Ordinance contains explicit and detailed provisions as to what information may be handed out, the authorities to which information may be communicated, the circumstances in which such communication may take place and the procedure to be followed by the National Police Board when taking decisions to release information (see paragraphs 25-29 above).
56. Having regard to the foregoing, the Court finds that Swedish law gives citizens an adequate indication as to the scope and the manner of exercise of the discretion conferred on the responsible authorities to collect, record and release information under the personnel control system.
57. The interference in the present case with Mr. Leander’s private life was therefore “in accordance with the law”, within the meaning of Article 8 (art. 8).
3. “Necessary in a democratic society in the interests of national security”
58. The notion of necessity implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued (see, inter alia, the Gillow judgment of 24 November 1986, Series A no. 109, p. 22, § 55).
59. However, the Court recognises that the national authorities enjoy a margin of appreciation, the scope of which will depend not only on the nature of the legitimate aim pursued but also on the particular nature of the interference involved. In the instant case, the interest of the respondent State in protecting its national security must be balanced against the seriousness of the interference with the applicant’s right to respect for his private life.
There can be no doubt as to the necessity, for the purpose of protecting national security, for the Contracting States to have laws granting the competent domestic authorities power, firstly, to collect and store in registers not accessible to the public information on persons and, secondly, to use this information when assessing the suitability of candidates for employment in posts of importance for national security.
Admittedly, the contested interference adversely affected Mr. Leander’s legitimate interests through the consequences it had on his possibilities of access to certain sensitive posts within the public service. On the other hand, the right of access to public service is not as such enshrined in the Convention (see, inter alia, the Kosiek judgment of 28 August 1986, Series A no. 105, p. 20, §§ 34-35), and, apart from those consequences, the interference did not constitute an obstacle to his leading a private life of his own choosing.
In these circumstances, the Court accepts that the margin of appreciation available to the respondent State in assessing the pressing social need in the present case, and in particular in choosing the means for achieving the legitimate aim of protecting national security, was a wide one.
60. Nevertheless, in view of the risk that a system of secret surveillance for the protection of national security poses of undermining or even destroying democracy on the ground of defending it, the Court must be satisfied that there exist adequate and effective guarantees against abuse (see the Klass and Others judgment of 6 September 1978, Series A no. 28, pp. 23-24, §§ 49-50).
61. The applicant maintained that such guarantees were not provided to him under the Swedish personnel control system, notably because he was refused any possibility of challenging the correctness of the information concerning him.
62. The Government invoked twelve different safeguards, which, in their opinion, provided adequate protection when taken together:
(i) the existence of personnel control as such is made public through the Personnel Control Ordinance;
(ii) there is a division of sensitive posts into different security classes (see paragraph 26 above);
(iii) only relevant information may be collected and released (see paragraphs 18-20, 28 and 30 above);
(iv) a request for information may be made only with regard to the person whom it is intended to appoint (see paragraph 27 above);
(v) parliamentarians are members of the National Police Board (see paragraph 29 above);
(vi) information may be communicated to the person in question; the Government did, however, concede that no such communication had ever been made, at least under the provisions in force before 1 October 1983 (see paragraph 31 above);
(vii) the decision whether or not to appoint the person in question rests with the requesting authority and not with the National Police Board (see paragraph 34 above);
(viii) an appeal against this decision can be lodged with the Government (see paragraph 16 above);
(ix) the supervision effected by the Minister of Justice (see paragraph 35 above);
(x) the supervision effected by the Chancellor of Justice (see paragraphs 36-37 above);
(xi) the supervision effected by the Parliamentary Ombudsman (see paragraphs 38-39 above);
(xii) the supervision effected by the Parliamentary Committee on Justice (see paragraph 40 above).
63. The Court first points out that some of these safeguards are irrelevant in the present case, since, for example, there was never any appealable appointment decision (see paragraphs 11 and 16 above).
64. The Personnel Control Ordinance contains a number of provisions designed to reduce the effects of the personnel control procedure to an unavoidable minimum (see notably paragraphs 54-55 and nos. (ii)-(iv) in paragraph 62 above). Furthermore, the use of the information on the secret police-register in areas outside personnel control is limited, as a matter of practice, to cases of public prosecution and cases concerning the obtaining of Swedish citizenship (see paragraph 22 above).
The supervision of the proper implementation of the system is, leaving aside the controls exercised by the Government themselves, entrusted both to Parliament and to independent institutions (see paragraphs 35-40 above).
65. The Court attaches particular importance to the presence of parliamentarians on the National Police Board and to the supervision effected by the Chancellor of Justice and the Parliamentary Ombudsman as well as the Parliamentary Committee on Justice (see paragraph 62 above, nos. (v), (x), (xi) and (xii)).
The parliamentary members of the Board, who include members of the Opposition (see paragraph 29 above), participate in all decisions regarding whether or not information should be released to the requesting authority. In particular, each of them is vested with a right of veto, the exercise of which automatically prevents the Board from releasing the information. In such a case, a decision to release can be taken only by the Government themselves and then only if the matter has been referred to them by the National Police Commissioner or at the request of one of the parliamentarians (see paragraph 29 above). This direct and regular control over the most important aspect of the register – the release of information – provides a major safeguard against abuse.
In addition, a scrutiny is effected by the Parliamentary Committee on Justice (see paragraph 40 above).
The supervision carried out by the Parliamentary Ombudsman constitutes a further significant guarantee against abuse, especially in cases where individuals feel that their rights and freedoms have been encroached upon (see paragraphs 38-39 above).
As far as the Chancellor of Justice is concerned, it may be that in some matters he is the highest legal adviser of the Government. However, it is the Swedish Parliament which has given him his mandate to supervise, amongst other things, the functioning of the personnel control system. In doing so, he acts in much the same way as the Ombudsman and is, at least in practice, independent of the Government (see paragraphs 36-37 above).
66. The fact that the information released to the military authorities was not communicated to Mr. Leander cannot by itself warrant the conclusion that the interference was not “necessary in a democratic society in the interests of national security”, as it is the very absence of such communication which, at least partly, ensures the efficacy of the personnel control procedure (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 27, § 58).
The Court notes, however, that various authorities consulted before the issue of the Ordinance of 1969, including the Chancellor of Justice and the Parliamentary Ombudsman, considered it desirable that the rule of communication to the person concerned, as contained in section 13 of the Ordinance, should be effectively applied in so far as it did not jeopardise the purpose of the control (see paragraph 31 above).
67. The Court, like the Commission, thus reaches the conclusion that the safeguards contained in the Swedish personnel control system meet the requirements of paragraph 2 of Article 8 (art. 8-2). Having regard to the wide margin of appreciation available to it, the respondent State was entitled to consider that in the present case the interests of national security prevailed over the individual interests of the applicant (see paragraph 59 above). The interference to which Mr. Leander was subjected cannot therefore be said to have been disproportionate to the legitimate aim pursued.
4. Conclusion
68. Accordingly, there has been no breach of Article 8 (art. 8).
II. ALLEGED VIOLATION OF ARTICLE 10 (art. 10)
69. The applicant further maintained that the same facts as constituted the alleged violation of Article 8 (art. 8) also gave rise to a breach of Article 10 (art. 10), which reads:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
70. The Commission found that the applicant’s claims did not raise any separate issues under Article 10 (art. 10) in so far as either freedom to express opinions or freedom to receive information was concerned. The Government agreed with this conclusion.
A. Freedom to express opinions
71. The right of recruitment to the public service is not in itself recognised by the Convention, but it does not follow that in other respects civil servants, including probationary civil servants, fall outside the scope of the Convention and notably of the protection afforded by Article 10 (art. 10) (see the Glasenapp and the Kosiek judgments of 28 August 1986, Series A no. 104, p. 26, §§ 49-50, and Series A no. 105, p. 20, §§ 35-36).
72. It has first to be determined whether or not the personnel control procedure to which the applicant was subjected amounted to an interference with the exercise of freedom of expression – in the form, for example, of a “formality, condition, restriction or penalty” – or whether the disputed measures lay within the sphere of the right of access to the public service. In order to answer this question, the scope of the measures must be determined by putting them in the context of the facts of the case and the relevant legislation (ibid.).
It appears clearly from the provisions of the Ordinance that its purpose is to ensure that persons holding posts of importance for national security have the necessary personal qualifications (see paragraph 24 above). This being so, access to the public service lies at the heart of the issue submitted to the Court: in declaring that the applicant could not be accepted for reasons of national security for appointment to the post in question, the Supreme Commander of the Armed Forces and the Commander-in-Chief of the Navy took into account the relevant information merely in order to satisfy themselves as to whether or not Mr. Leander possessed one of the necessary personal qualifications for this post.
73. Accordingly, there has been no interference with Mr. Leander’s freedom to express opinions, as protected by Article 10 (art. 10).
B. Freedom to receive information
74. The Court observes that the right to freedom to receive information basically prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him. Article 10 (art. 10) does not, in circumstances such as those of the present case, confer on the individual a right of access to a register containing information on his personal position, nor does it embody an obligation on the Government to impart such information to the individual.
75. There has thus been no interference with Mr. Leander’s freedom to receive information, as protected by Article 10 (art. 10).
III. ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
76. The applicant finally alleged a breach of Article 13 (art. 13), which reads:
“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.”
Firstly, he complained of the fact that neither he nor his lawyer had been given the right to receive and to comment upon the complete material on which the appointing authority based its decision (see paragraph 62, no. (vi), above). He also objected that he had not had any right to appeal to an independent authority with power to render a binding decision in regard to the correctness and release of information kept on him (see paragraph 42 above).
Both the Government and the Commission disagreed with these contentions.
77. For the interpretation of Article 13 (art. 13), the following general principles are of relevance:
(a) where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress (see, inter alia, the above-mentioned Silver and 0thers judgment, Series A no. 61, p. 42, § 113);
(b) the authority referred to in Article 13 (art. 13) need not be a judicial authority but, if it is not, the powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective (ibid.);
(c) although no single remedy may itself entirely satisfy the requirements of Article 13 (art. 13), the aggregate of remedies provided for under domestic law may do so (ibid.);
(d) Article 13 (art. 13) does not guarantee a remedy allowing a Contracting State’s laws as such to be challenged before a national authority on the ground of being contrary to the Convention or equivalent domestic norms (see the James and Others judgment of 21 February 1986, Series A no. 98, p. 47, § 85).
78. The Court has held that Article 8 (art. 8) did not in the circumstances require the communication to Mr. Leander of the information on him released by the National Police Board (see paragraph 66 above). The Convention is to be read as a whole and therefore, as the Commission recalled in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. Consequently, the Court, consistently with its conclusion concerning Article 8 (art. 8), holds that the lack of communication of this information does not, of itself and in the circumstances of the case, entail a breach of Article 13 (art. 13) (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, pp. 30-31, § 68).
For the purposes of the present proceedings, an “effective remedy” under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret checks on candidates for employment in posts of importance from a national security point of view. It therefore remains to examine the various remedies available to the applicant under Swedish law in order to see whether they were “effective” in this limited sense (ibid., p. 31, § 69).
79. There can be no doubt that the applicant’s complaints have raised arguable claims under the Convention at least in so far as Article 8 (art. 8) is concerned and that, accordingly, he was entitled to an effective remedy in order to enforce his rights under that Article as they were protected under Swedish law (see the above-mentioned James and Others judgment, Series A no. 98, p. 47, § 84, and also the Lithgow and Others judgment of 8 July 1986, Series A no. 102, p. 74, § 205).
The Court has found the Swedish personnel control system as such to be compatible with Article 8 (art. 8). In such a situation, the requirements of Article 13 (art. 13) will be satisfied if there exists domestic machinery whereby, subject to the inherent limitations of the context, the individual can secure compliance with the relevant laws (see the above-mentioned James and Others judgment, Series A no. 98, p. 48, § 86).
80. The Government argued that Swedish law offered sufficient remedies for the purposes of Article 13 (art. 13), namely
(i) a formal application for the post, and, if unsuccessful, an appeal to the Government;
(ii) a request to the National Police Board for access to the secret police-register on the basis of the Freedom of the Press Act, and, if refused, an appeal to the administrative courts;
(iii) a complaint to the Chancellor of Justice;
(iv) a complaint to the Parliamentary Ombudsman.
The majority of the Commission found that these four remedies, taken in the aggregate, met the requirements of Article 13 (art. 13), although none of them did so taken alone.
81. The Court notes first that both the Chancellor of Justice and the Parliamentary Ombudsman have the competence to receive individual complaints and that they have the duty to investigate such complaints in order to ensure that the relevant laws have been properly applied by the National Police Board (see paragraphs 36 and 38 above). In the performance of these duties, both officials have access to all the information contained in the secret police-register (see paragraph 41 above). Several decisions from the Parliamentary Ombudsman evidence that these powers are also used in relation to complaints regarding the operation of the personnel control system (see paragraph 39 above). Furthermore, both officials must, in the present context, be considered independent of the Government. This is quite clear in respect of the Parliamentary Ombudsman. As far as the Chancellor of Justice is concerned, he may likewise be regarded as being, at least in practice, independent of the Government when performing his supervisory functions in relation to the working of the personnel control system (see paragraph 37 above).
82. The main weakness in the control afforded by the Ombudsman and the Chancellor of Justice is that both officials, apart from their competence to institute criminal and disciplinary proceedings (see paragraphs 36-38 above), lack the power to render a legally binding decision. On this point, the Court, however, recalls the necessarily limited effectiveness that can be required of any remedy available to the individual concerned in a system of secret security checks. The opinions of the Parliamentary Ombudsman and the Chancellor of Justice command by tradition great respect in Swedish society and in practice are usually followed (see paragraphs 37-38 above). It is also material – although this does not constitute a remedy that the individual can exercise of his own accord – that a special feature of the Swedish personnel control system is the substantial parliamentary supervision to which it is subject, in particular through the parliamentarians on the National Police Board who consider each case where release of information is requested (see paragraph 29 above).
83. To these remedies, which were never exercised by Mr. Leander, must be added the remedy to which he actually had recourse when he complained, in a letter of 5 February 1980 to the Government, that the National Police Board, contrary to the provisions of section 13 of the Personnel Control Ordinance, had omitted to invite him to comment, in writing or orally, on the information contained in the register (see paragraph 15 above). The Government requested the opinion of the Board in this connection; whereupon Mr. Leander was given the opportunity to reply, which he did in a letter of 11 March 1980. In its decision of 14 May 1980, which covered also Mr. Leander’s complaints of 22 October and 4 December 1979, the Government, that is the entire Cabinet, dismissed Mr. Leander’s various complaints (see paragraphs 14 and 16 above).
The Court recalls that the authority referred to in Article 13 (art. 13) need not necessarily be a judicial authority in the strict sense, but that the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy is effective. There can be no question about the power of the Government to deliver a decision binding on the Board (see paragraph 77 above).
84. It should also be borne in mind that for the purposes of the present proceedings, an effective remedy under Article 13 (art. 13) must mean a remedy that is as effective as can be, having regard to the restricted scope for recourse inherent in any system of secret surveillance for the protection of national security (see paragraphs 78-79 above).
Even if, taken on its own, the complaint to the Government were not considered sufficient to ensure compliance with Article 13 (art. 13), the Court finds that the aggregate of the remedies set out above (see paragraphs 81-83) satisfies the conditions of Article 13 (art. 13) in the particular circumstances of the instant case (see, mutatis mutandis, the above-mentioned Klass and Others judgment, Series A no. 28, p. 32, § 72).
Accordingly, the Court concludes that there was no violation of Article 13 (art. 13).
FOR THESE REASONS, THE COURT
1. Holds unanimously that there has been no breach of Article 8, or Article 10 (art. 8, art. 10);
2. Holds by four votes to three that there has been no breach of Article 13 (art. 13).
Done in English and in French, and delivered at a public hearing at the Human Rights Building, Strasbourg, on 26 March 1987.
Rolv RYSSDAL
President
Marc-André EISSEN
Registrar
In accordance with Article 51 § 2 (art. 51-2) of the Convention and Rule 52 § 2 of the Rules of Court, the following separate opinions are annexed to the present judgment:
– partly dissenting opinion of Mr. Ryssdal;
– partly dissenting opinion of Mr. Pettiti and Mr. Russo.
R. R.
M.-A. E.
PARTLY DISSENTING OPINION OF JUDGE RYSSDAL
1. I subscribe to the finding that no breach of Article 8 or Article 10 (art. 8, art. 10) has been established.
2. As the Court has held that Article 8 (art. 8) did not in the circumstances require the communication to the applicant of the relevant information on him released to the military authorities, I also concur that the lack of communication of this information cannot entail a breach of Article 13 (art. 13). In that respect, Article 13 (art. 13) must be interpreted and applied so as not to nullify the conclusion already reached under Article 8 (art. 8).
3. However, by virtue of Article 13 (art. 13), the applicant should have had available to him “an effective remedy before a national authority”; and I do not agree with the majority of the Court “that the aggregate of the remedies” set out in paragraphs 81 to 83 of the judgment “satisfies the conditions of Article 13 (art. 13) in the particular circumstances of the instant case”.
4. It is convenient first to identify the alleged breach of the Convention in respect of which Mr. Leander was entitled to an effective domestic remedy by virtue of Article 13 (art. 13). His basic grievance under Article 8 (art. 8) is described in the judgment (at paragraph 47) as being “that nothing in his personal or political background … could be regarded as of such a nature as to make it necessary in a democratic society to register him in the Security Department’s register, to classify him as a ‘security risk’ and accordingly to exclude him from the employment in question”.
5. I concur with the Court that “for the purposes of the present proceedings, an effective remedy under Article 13 (art. 13) must mean a remedy that is as effective as can be, having regard to the restricted scope for recourse inherent in any system of secret surveillance for the protection of national security” (see paragraph 84 of the judgment).
On the other hand, precisely because the inherent secrecy of the control system renders the citizens’ right to respect for private life especially vulnerable, it is essential that any complaint alleging violation of that right should be examined by a “national authority” which is completely independent of the executive and invested with effective powers of investigation. The “national authority” should thus have both the competence in law and the capability in practice to inquire closely into the operation of the personnel control system, and in particular to verify that no mistake has been made as to the scope and manner of exercise of the discretionary power conferred on the police and the National Police Board to collect, store and release information. Such an independent power of inquiry is all the more necessary as some of the Government’s instructions regarding the storing of information in the police register are themselves secret, a fact which, to my mind, of itself constitutes a considerable source of concern.
In so far as the “national authority” ascertains that a mistake has been made, the citizen affected should also, by virtue of Article 13, (art. 13) have the possibility – if need be by bringing separate proceedings before the courts – either of contesting the validity of the outcome of the secret personnel control, that is the decision not to employ him (or her), or of obtaining compensation or some other form of relief.
6. The majority of the Court (at paragraph 83 of the judgment) include in the aggregate of relevant remedies Mr. Leander’s complaint to the Government that the National Police Board had, contrary to the provisions of the Personnel Control Ordinance, omitted to invite him to comment on the information contained in the register, which complaint was rejected by the Government in their decision of 14 May 1980. In my opinion, this avenue of recourse is not capable of being decisive for the purposes of Article 13 (art. 13), whether taken on its own or in conjunction with the other remedies relied on by the majority of the Court, namely complaint to the Parliamentary Ombudsman and the Chancellor of Justice. This is because, leaving aside the question of independence, it did not address Mr. Leander’s basic grievance under the Convention. Even if the requirement of secrecy did not permit Mr. Leander himself to be given the opportunity of commenting on the adverse material kept on him in the register, Article 13 (art. 13) guaranteed him a right of access to a “national authority” having competence to examine whether his Convention grievance was justified or not.
Consequently, of the aggregate of relevant remedies, there remains for consideration the possibility of applying either to the Parliamentary Ombudsman or to the Chancellor of Justice.
7. The Parliamentary Ombudsman and the Chancellor of Justice exercise a general supervision over the activities of the executive branch of government; they do not have specific responsibility for inquiry into the operation of the personnel control system. I recognise that, by tradition in Sweden, the opinions of the Parliamentary Ombudsman and the Chancellor of Justice command great respect. However, the Parliamentary Ombudsman and the Chancellor of Justice have no power to render legally binding decisions; and it is not clearly established that, if in the opinion of the Ombudsman or the Chancellor a mistake has been made, the individual affected would have available to him an effective means to contest the validity of the employment decision or to obtain some other form of relief.
8. I consequently conclude that there has been a breach of Article 13 (art. 13).
PARTIALLY DISSENTING OPINION OF JUDGES PETTITI AND RUSSO
(Translation)
We voted with the majority in finding that there has been no breach of Articles 8 and 10 (art. 8, art. 10) but we hold that there has been a breach of Article 13 (art. 13).
We consider that a complaint to the Chancellor of Justice would have resulted only in an opinion being given and was not an effective remedy; the same is true of the Ombudsman. These two remedies taken together, then, do not satisfy the requirements of Article 13 (art. 13).
Individuals are not regarded as being parties to the release procedure before the Board (see the Supreme Administrative Court’s decision of 20 June 1984). No appeal lies to the Government or to the administrative courts against the Board’s decision as such to supply information to the requesting authority, nor was Mr. Leander involved in criminal proceedings such as would have entitled him to require the document to be released.
In the case specifically of registers which, being secret, make it impossible for a citizen to avail himself of the laws and regulations entitling him to have access to administrative documents, it is all the more necessary that there should be an effective remedy before an independent authority, even if that authority is not a judicial body.
The doctrine of act of State may be invoked by the Government improperly. The police authorities may even have committed a flagrantly unlawful act (voie de fait).
It should also be noted that the Swedish Ombudsman’s decisions are effective only in relation to civil servants and not as regards the applicant concerned.
Furthermore, even when combined, ineffective remedies cannot amount to an effective remedy where, as in the instant case, their respective shortcomings do not cancel each other out but are cumulative.
The six members of the Commission who held in their dissenting opinion that there had been a breach of Article 13 (art. 13), rightly commented on the lack of any effective remedy. In our view, it is not essential to make it a mandatory requirement that the authority responsible for hearing appeals should be able to award damages, but it is absolutely essential that an independent authority should be able to determine the merits of an entry in the register and even whether there has been a straightforward clerical error or mistake of identity – in which case the national-security argument would fall to the ground.
Consideration also needs to be given to the dangers of electronic links between the police registers and other States’ registers or Interpol’s register. The individual must have a right of appeal against an entry resulting from a fundamental mistake, even if the source of the information is kept secret and is known only to the independent authority that has jurisdiction to determine the applicant’s appeal.
A supervisory system such as is provided by the Supreme Administrative Courts (in Belgium, France and Italy) ought to afford an effective remedy, which is lacking at present in our view.
The State cannot be sole judge in its own cause in this sensitive area of human-rights protection.
We consequently hold that there has been a breach of Article 13 (art. 13).
* Note by the Registrar: The case is numbered 10/1985/96/144. The second figure indicates the year in which the case was referred to the Court and the first figure its place on the list of cases referred in that year; the last two figures indicate, respectively, the case’s order on the list of /4.html
Jones v University of Warwick
The Lord Chief Justice: This is the judgment of the Court.
The issue which this appeal raises is whether, and if so when, a defendant to a personal injury claim is entitled to use as evidence a video of the claimant which was obtained by filming the claimant in her home without her knowledge after the person taking the film had obtained access to the claimant’s home by deception.
As Mr Robert Weir, who appears on behalf of the claimant contends, the issue on the appeal requires this court to consider two competing public interests: the interests of the public that in litigation, the truth should be revealed and the interests of the public that the courts should not acquiesce in, let alone encourage, a party to use unlawful means to obtain evidence.
The Background to the Appeal
The claimant, Mrs Jean F Jones, appeals against an order of His Honour Judge Charles Harris QC (“Judge Harris”), sitting as a deputy High Court judge, who on 16 May 2002, allowed an appeal from the decision of District Judge Wartnaby and made an order allowing the University of Warwick, the defendant, to rely, at the trial of the claimant’s action against the defendant, on a video film which they had recorded of the claimant in her home without her knowledge.
The action arose out of an accident that occurred when the claimant dropped a full cash bo
In his reserved judgment of 16 May 2002, Judge Harris came to the opposite conclusion. Judge Harris drew attention to the fact that the claimant was alleging a substantial handicap and therefore that she was entitled to substantial compensation; that the disputed films revealed in the words of the defendant’s orthopaedic expert “that she has regained full function of her right hand”; that as copies of the film had been provided on 11 June 2001, this was not an ambush case; that in English criminal proceedings the fact that evidence has been illegally obtained does not render it inadmissible, subject to the power of the trial judge to exclude evidence in the exercise of its common law discretion or under the provisions of section 78 of the Police and Criminal Evidence Act 1984.
The judge was considerably influenced by the approach adopted by Lord Nolan in his speech in R v Khan (Sultan) [1997] AC 558. The judge pointed out that: “the overriding objective in a civil case tried in England is that court should deal with a case justly” and referred to his own judgment in McNally v RG Manufacturing [2001] Lloyds Reports 379, where he had stated that if a party is making “an inflated, exaggerated or unjustified claim, then he is seeking other peoples’ money to which he is not entitled. It is clearly both just and fair that he should be prevented from succeeding in this. In order to uncover this deception steps may have to be taken which involve him being misled or his privacy being infringed. Misleading him may be the only practical means of showing that he himself is misleading other people.” He added that in that case he had concluded “there were next to no physical signs, as opposed to complaints, of anything wrong with him. I do not think that the deception involved in coming to his house in the guise of a market researcher was of such gravity or impropriety as to render evidence thus obtained inadmissible.”
As to the reliance upon the ECHR, he contended that under the Strasbourg jurisprudence questions of admissibility were matters of domestic law. Referring to the CPR, he stated that:
“The overriding objective of those rules is to enable the court to deal with cases justly. This includes, inter alia, ensuring that the parties are on an equal footing, that the case is dealt with in ways which are proportionate to the amount of money involved and that the case is dealt with “fairly” (CPR 1.1). The plaintiff knows very well what she can do with her hand, the defendants do not. They are not, therefore, on an equal footing in this respect”.
The judge added:
“So, the question for me to decide, in my review of the district judge’s decision is whether it was wrong. I think it plainly was. The central passage of the district judge’s reasoning was, “the courts should not in any way give approval to the method used by the defendant’s agent. In those circumstances, I am not satisfied that the video evidence should be available.”
The judge continued by saying that:
“The primary question for the court is not whether or not to give approval to the method whereby evidence was obtained. It is whether justice and fairness require that this highly material evidence, which contradicts the evidence which she has given to others, should be put to her before the trial judge to enable him to reach a sound conclusion about the true extent of any disability. True, the claimant was herself deceived but there is strong prima facie evidence that she herself is deceiving or misleading the defendants to enrich herself thereby. It is not easy for the defendants to protect themselves against exaggerated claims. Anyone with much experience of personal injury litigation will know that the defendants and their insurers are frequently faced by claimants who suggest that their disabilities are far greater than they are, and large sums of money may be unjustifiably sought. Though such people are rarely, if ever prosecuted, in many cases what they do or seek to do must amount to the crime of obtaining property or pecuniary advantage by deception. In these circumstances I do not believe that the courts should be too astute to prevent effective investigation by the defendants of claimants against them. Clearly, there is a public interest that unfair, tortious and illegal methods should not be used in general and where they are unnecessary, but the conflicting considerations are on the one side the claimant’s privacy and on the other the legitimate need and public interest that defendants or their insurers should be able to prevent and uncover unjustified, dishonest and fraudulent claims. In the instant case I have no doubt that the latter considerations do and should outweigh the former.”
Finally, the judge commented in a critical manner about the fact that up to that stage the claimant’s solicitors had kept the films from their own medical experts, “thus not giving them all the available material to enable them to make a disinterested assessment of the degree of her disability”. Having acknowledged that he had not heard very extensive argument upon this “perhaps not wholly straightforward topic”, he added, “at first blush this seems, to put it mildly, veryunsatisfactory”.
The Contentions of the Parties
We can deal with Mr Robert Owen QC’s submissions on behalf of the defendant fairly succinctly because he naturally relied very strongly on the forceful reasoning of Judge Harris. Mr Owen was, however, careful to make it clear that in his submissions he was not inviting the court to give a green light to insurers taking unlawful action, such as trespassing, in order to obtain evidence. His submission was that the court had a discretion to exercise and the judge had exercised his discretion properly, having come to the conclusion that the district judge had exercised his discretion wrongly, and this being so, this court should not intervene.
Mr Weir was in agreement with Mr Owen that the judge had a discretion. The discretion was contained in CPR 32.1 which provides, so far as relevant:
“(1) The court may control the evidence by giving direction as to –
. . .
(c) The way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.”
He also relies upon the overriding objective contained in CPR 1.1 which provides that:
“(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2) Dealing with a case justly includes, so far as practical –
(a) ensuring that the parties are on an equal footing;
. . .
(d) ensuring that it is dealt with expeditiously and fairly; and
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
He could also have referred to the duty of the parties under CPR 1.3 “to help the court further the overriding objective”.
When it comes to determining how a court should exercise its discretion Mr Weir argues that the answer is provided by the relevant provisions of the Human Rights Act and in particular Articles 6 and 8 thereof. The Article 6 right to a fair hearing he argues must be analysed in the context of the court’s obligation to determine whether the introduction of the video is in accordance with the law and necessary for the protection of the defendant’s rights. In saying this he relies on the fact that the video recording was obtained as a result of the defendant’s representative having trespassed and infringed the claimant’s right of privacy under Article 8(1). The reference to law and necessity he extracts from Article 8.2 which provides:
“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” etc.
Mr Weir accepts that he cannot rely upon Article 8 directly because the insurers of the defendant were responsible for obtaining the evidence in this way and not a public authority. But he contends that this does not prevent him relying upon Article 8. This is because of the fact that the court that has to exercise its discretion is a public authority (see section 6(3) of the Act) and it is “unlawful for a public authority to act in a way which is incompatible with a Convention right” (see section 6(1)). He submits that for the court to ignore the manner in which the video evidence was obtained would involve the court acting in a way that is incompatible with the claimant’s Article 8 rights unless the evidence which was obtained in contravention of Article 8 was necessary in order to achieve justice in the case.
Squaring the Circle
It is not possible to reconcile in a totally satisfactory manner, the conflicting public policies which the district judge and the Deputy High Court judge had to try and balance in this case. The approach of Judge Harris was consistent with the approach which would have been adopted in both criminal and civil proceedings prior to the coming into force of the CPR and the Human Rights Act. The achieving of justice in the particular case which was before the court was then the paramount consideration for the judge trying the case. If evidence was available, the court did not concern itself with how it was obtained.
While this approach will help to achieve justice in a particular case, it will do nothing to promote the observance of the law by those engaged or about to be engaged in legal proceedings. This is also a matter of real public concern.
If the conduct of the insurers in this case goes uncensured there would be a significant risk that practices of this type would be encouraged. This would be highly undesirable, particularly as there will be cases in which a claimant’s privacy will be infringed and the evidence obtained will confirm that the claimant has not exaggerated the claim in any way. This could still be the result in this case.
Fortunately, in both criminal and civil proceedings, courts can now adopt a less rigid approach to that adopted hitherto which gives recognition to the fact that there are conflicting public interests which have to be reconciled as far as this is possible. The approach adopted in R v Karuna [1955] AC 197 and R v Sang [1980] AC 402 and R v Khan (Sultan) [1997] AC558 which was applied by the Judge has to be modified as a result of the changes that have taken place in the law. The position in criminal proceedings is that now when evidence is wrongly obtained the court will consider whether it adversely affects the fairness of the proceedings and, if it does, may exclude the evidence (section 78 of the Police and Criminal Evidence Act 1984). In an extreme case, the court will even consider whether there has been an abuse of process of a gravity which requires the prosecution to be brought to a halt (see R v William Loveridge & Others [2001] 2 CAR 29 and R v Mason & Others [2002] 2 CAR 38 (paragraph 50, 68 and 76). In civil proceedings, as Potter LJ recognised this in Rall v Hume [2001] 3 All ER 248, he commenced by saying:
“In principle the starting point in any application of this kind must be that where video evidence is available which, according to the defendant undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendants should be permitted to cross-examine the claimant and her medical advisors upon it.” (emphasis added)
But Potter LJ then added that this does not apply if the conduct of the defendant amounts “to trial by ambush”. The discretion on the court is not, however, confined to cases where the defendants have failed to make proper disclosure. A judge’s responsibility today in the course of properly managing litigation requires him, when exercising his discretion in accordance with the overriding objective contained in CPR Part 1, to consider the effect of his decision upon litigation generally. An example of the wider approach is that the judges are required to ensure that a case only uses its appropriate share of the resources of the court (CPR Part 1.1(2)(e)). Proactive management of civil proceedings, which is at the heart of the CPR, is not only concerned with an individual piece of litigation which is before the Court, it is also concerned with litigation as a whole. So the fact that in this case the defendant’s insurers, as was accepted by Mr Owen, have been responsible for the trespass involved in entering the claimant’s house and infringing her privacy contrary to Article 8(1) is a relevant circumstance for the court to weigh in the balance when coming to a decision as to how it should properly exercise its discretion in making orders as to the management of the proceedings.
Mr Weir argues that unless it was necessary for the insurers to take the actions they did, the evidence must inevitably, at least in a case such as this, be held inadmissible. He submits that otherwise the court would be contravening the duty that it is under, pursuant to section 6 of the Human Rights Act, not to contravene Article 8. While the court should not ignore the contravention of Article 8, to adopt Mr Weir’s approach would fail to recognise that the contravention would still remain that of the insurer’s enquiry agent and not that of the court. The court’s obligation under section 6 of the Human Rights Act is to “not itself act in a way which is incompatible with a convention right” (see Venables v News Group Newspapers Ltd [2001] 2 WLR 1038 at P. 1048/9 paras. 24-27).
As the Strasbourg jurisprudence makes clear, the Convention does not decide what is to be the consequence of evidence being obtained in breach of Article 8 (see Schenk v Switzerland [1988] 13 EHRR 242 and PG and JH v United Kingdom application no. 44787/98 (25/9/2001 paragraph 76). This is a matter, at least initially, for the domestic courts. Once the court has decided the order, which it should make in order to deal with the case justly, in accordance with the overriding objectives set out in Part 1.1 of the CPR in the exercise of its discretion under Part 32.1, then it is required or it is necessary for the court to make that order. Accordingly if the court could be said to have breached Article 8.1 by making the order which it has decided the law requires, it would be acting within Article 8.2 in doing so.
That leaves the issue as to how the court should exercise its discretion in the difficult situation confronting the district judge and Judge Harris. The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of Article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant’s insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case. We accept Mr Owen’s submission that to exclude the use of the evidence would create a wholly undesirable situation. Fresh medical experts would have to be instructed on both sides. Evidence which is relevant would have to be concealed from them, perhaps resulting in a misdiagnosis; and it would not be possible to cross-examine the claimant appropriately. For these reasons we do not consider it would be right to interfere with the Judge’s decision not to exclude the evidence.
Mr Weir’s submission that we should determine the issue on the basis of the facts as they were before the district judge is not realistic. Nonetheless, it is right that we should make clear that we do not accept that the criticism of the claimant’s legal advisers for deciding not to reveal the contents of the video films in issue to their medical experts is justified. It was sensible to defer doing so until it was known whether the evidence could be used. While not excluding the evidence it is appropriate to make clear that the conduct of the insurers was improper and not justified. We disagree with the indication by Judge Harris to the contrary. The fact that the insurers may have been motivated by a desire to achieve what they considered would be a just result does not justify either the commission of trespass or the contravention of the claimant’s privacy which took place. We come to this conclusion irrespective of whether Mr Weir is right in contending that in this particular case the evidence could be obtained by other means.
Excluding the evidence is not, moreover, the only weapon in the court’s armoury. The court has other steps it can take to discourage conduct of the type of which complaint is made. In particular it can reflect its disapproval in the orders for costs which it makes. In this appeal, we therefore propose, because the conduct of the insurers gave rise to the litigation over admissibility of the evidence which has followed upon their conduct, to order the defendants to pay the costs of these proceedings to resolve this issue before the district judge, Judge Harris and this court even though we otherwise dismiss the appeal. This is subject to Mr Owen having an opportunity to persuade us to do otherwise. In addition, we would indicate to the trial judge that when he comes to deal with the question of costs he should take into account the defendant’s conduct which is the subject of this appeal when deciding the appropriate order for costs. He may consider the costs of the inquiry agent should not be recovered. If he concludes, as the complainant now contends, that there is an innocent explanation for what is shown as to the claimant’s control of her movements then this is a matter which should be reflected in costs, perhaps by ordering the defendants to pay the costs throughout on an indemnity basis. In giving effect to the overriding objective, and taking into account the wider interests of the administration of justice, the court must while doing justice between the parties, also deter improper conduct of a party while conducting litigation. We do not pretend that this is a perfect reconciliation of the conflicting public interests. It is not; but at least the solution does not ignore the insurer’s conduct.
Subject to hearing further argument on costs, the appeal is dismissed.
Order: Appeal dismissed with costs as per agreed minute, leave to appeal refused.
(Order does not form part of the approved judgment)