21 February 2008

FOURTH SECTION
Application no. 36152/05
by Simon Andrew GRALEY
against the United Kingdom
lodged on 22 September 2005

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Simon Andrew Graley, is a British national who was born in 1953 and lives in Michael, Isle of Man. He is represented before the Court by Mr C.J. Arrowsmith, a lawyer practising in Douglas.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant served as a police officer in the Isle of Man between 11 January 1988 and 31 January 2003.
On 30 January 2003 he was arrested on suspicion of conspiracy to defraud and on 31 March 2003 he was charged with one offence of false accounting (connected to allegedly fraudulent travel expenses claimed by another, subordinate, police officer) and two offences of aiding and abetting the same, subordinate, officer to obtain money by deception. The charges were laid on the advice of the Attorney General’s Chambers and the prosecutor with conduct of the case came from the Attorney General’s Chambers.
On 13 January 2004 the false accounting charge was dismissed by the High Bailiff’s Court following a preliminary committal hearing on the basis that there was no case to answer. On 2 March 2004 the two remaining charges were similarly dismissed and on 13 May 2004 the High Bailiff ordered that the applicant be awarded costs of GBP 54,045.68.
On 1 June 2004 the applicant complained to the Interception of Communications Tribunal (“the Tribunal”) that he suspected his telephone communications had been subjected to interception by the police. On 29 June 2005 the applicant received notification of the Tribunal’s conclusions in his case. The Tribunal was satisfied that a relevant warrant had been issued to intercept the applicant’s communications but it found that there had been a contravention of sections 2 to 5 of the Act in relation to the warrant.
On 12 August 2005 the applicant was sent a copy of the Order of the Tribunal, dated 10 August 2005, which stated that the Tribunal was “satisfied that two relevant warrants numbered 01/03(A) and 02/03(A) related to the applicant” and continued:
“And whereas the Tribunal has concluded that the said warrants 01/03(A) and 02/03(A) contravened sections 2 to 5 of the [Interception of Communications Act 1988].
IT IS HEREBY ORDERED that all copies of the material intercepted pursuant to the relevant warrants numbered 01/03(A) and 02/03(A) be destroyed forthwith. ...”

B.  Relevant domestic law and practice
1.	The Interception of Communications Act 1988
Within the Isle of Man, the intentional interception of communications is subject to the provisions of the Interception of Communications Act 1988 (“the Act”), as amended by the Interception of Communications Act 2001. By section 1(1) of the Act, anyone who intentionally intercepts a communication in the course of its transmission by means of, inter alia, a public communications system is guilty of a criminal offence. Section 1(2)(a) provides that no offence is committed if the interception is carried out pursuant to a warrant issued by the Chief Minister. Under section 2(2) of the Act, the Chief Minister may issue a warrant only if he considers it necessary in the interests of national security or for the purpose of preventing or detecting serious crime.
The Act includes a number of safeguards. For example, under section 6(4), before issuing or renewing a warrant, the Chief Minister must consult the Attorney General. The Act provides in section 8 for the creation of the Tribunal empowered to investigate alleged breaches of the Act and, in section 9, for the appointment of a Commissioner to keep under review the carrying out by the Chief Minister of his functions under the Act and to report on any contravention of sections 2 to 5 of the Act which has not been the subject of a report made by the Tribunal.
2.	The 2003 Report of the Commissioner
 “1.	I have the honour to report that during the year ended 31st December 2003, 23 warrants were issued by the Chief Minister or the Minister for Home Affairs under the provisions of the [1988 and 2001 Acts].
2.		All 23 warrants were issued for the purpose of preventing or detecting serious crime. And all were for the interception of communications by means of a public telecommunications system. All the warrants had ceased to be in force prior to 31st December 2003. 9 warrants which remained in force on 31st December 2002 had ceased also to be in force prior to 31st December 2003.
3.		I have examined all 23 warrants that were issued, and I am satisfied that the Chief Minister or the Minister for Home Affairs was justified in each case in issuing the warrant for the purpose of preventing or detecting serious crime.
4.		The Tribunal, appointed under section 8 of the Interception of Communications Act 1988, received no applications under that section during the year ended 31st December 2003.”

COMPLAINTS
The applicant underlines that the Tribunal found that two warrants had been issued for the interception of his communications which were not in accordance with the law. He considers it distressing that his communications, including contacts with his solicitor during a highly emotional period of his life, may have been unlawfully intercepted by his former colleagues and he complains under Article 8 of the Convention about shortcomings in the safeguards available to him under domestic law.
First, since the warrants for the interception of his communications were issued at the request of the Attorney General’s Office, which had conduct of the investigation and prosecution of his case, he was deprived of the protection of the independent advice provided for in section 6(4) of the Act.
Secondly, it appears from the Tribunal’s order, and the reference numbers quoted, that the warrants were issued early in 2003. The Reports of the Commissioner for 2003 (and 2004) stated that the Commissioner was satisfied that the issuing of all warrants within those periods was justified. The applicant contends that these findings indicate that there is ineffective regulation and independent oversight of the interception of communications on the Isle of Man.
The applicant further complains under Article 6 of the Convention that, in accordance with paragraph 3(2) of Schedule 1 to the Act, the Tribunal could not disclose to him the reasons for its decision, although the Chief Minister received a fully reasoned report.
Finally, he complains under Article 13 that there is no effective remedy in the Isle of Man for his above complaints, since the Human Rights Act does not apply there.
QUESTION TO THE PARTIES

Did the system of secret surveillance as it applied to the applicant contain adequate and effective guarantees against abuse, given in particular that:

(a) it appears that the Attorney General’s Office acted both as prosecuting authority, requesting the warrant of surveillance against the applicant, and advisor to the Chief Minister under section 6(4) of the Interception of Communications Act 1988, as amended by the Interception of Communications Act 2001;

(b) the Commissioner in his Report dated 5 February 2004 stated that all 23 warrants issued in 2003 had been justified, whereas the Tribunal subsequently found that two warrants had been issued against the applicant, presumably in 2003, in breach of sections 2 to 5 of the 1988 Act;

(c) the Interception of Communications Tribunal gave no reasons to the applicant in connection with its findings that the warrants had been issued unlawfully?

(d) having regard to the above, do the facts of the case disclose a breach of Article 8 of the Convention ?