CASE OF FOXLEY v. THE UNITED KINGDOM

1. The case originated in an application (no. 33274/96) against the United Kingdom lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Mr Gordon Foxley (“the applicant”), on 14 November 1995.
2. The applicant, who was granted legal aid, was represented by Mr Phillip Leach, a lawyer practising in London. The Government of the United Kingdom (“the Government”) were represented by their Agent, Mr Martin Eaton, of the Foreign and Commonwealth Office, London.
3. The applicant alleged, in particular, that the decision of the authorities of the respondent State to open, read and copy to file his correspondence was an unjustified interference with his right guaranteed by Article 8 of the Convention.
4. The application was transmitted to the Court on 1 November 1998, when Protocol No. 11 to the Convention came into force (Article 5 § 2 of Protocol No. 11).
5. The application was allocated to the Third Section of the Court (Rule 52 § 1 of the Rules of Court). Within that Section, the Chamber that would consider the case (Article 27 § 1 of the Convention) was constituted as provided in Rule 26 § 1 of the Rules of Court.
6. By a decision of 12 October 1999, the Chamber declared the application partly admissible.
7. The applicant and the Government were each invited to file observations on the merits (Rule 59 § 1). The Chamber decided, after consulting the parties, that no hearing on the merits was required (Rule 59 § 2 in fine ). The parties made submissions on the applicant’s claims under Article 41 of the Convention.
I. THE CIRCUMSTANCES OF THE CASE
8. On 3 April 1989 the Criminal Justice Act 1988 (“the 1988 Act”) entered into force. Under the 1988 Act, trial courts were empowered to make confiscation orders aimed at removing assessed benefits obtained through the commission of offences of which a person has been found guilty.
9. On 25 June 1992 the applicant was arrested and subsequently charged and committed for trial.
10. On 3 November 1993 the Snaresbrook Crown Court convicted the applicant of twelve counts of corruption committed between 11 December 1979 and 7 August 1984, when he was employed by the Ministry of Defence as an ammunition procurement officer. The court sentenced him to four years’ imprisonment under section 1 of the Prevention of Corruption Act 1906 on each of the twelve counts, to be served concurrently.
11. The court conducted an enquiry under the 1988 Act and found that the applicant had benefited from the commission of the offences in the amount of GBP 2,092,569.20. Pursuant to section 71 of the 1988 Act, a confiscation Order was made against him in the amount of GPB 1,503,301.80, the amount at which his realisable assets was assessed. This sum was to be paid within eighteen months. In default of payment the applicant was to be imprisoned for a further (consecutive) term of three years.
12. The applicant’s appeals against his conviction and sentence, as well as in relation to the amount and basis of calculation of the confiscation Order, were dismissed by the Court of Appeal on 6 February 1995. The applicant did not dispute before the Court of Appeal that he had realisable assets in excess of GBP 1.27 million.
13. On 4 December 1995 the Bow Street Magistrates’ Court issued a summons for the commitment of the applicant to custody for default in the payment of the amount due under the confiscation Order. The hearing on whether the applicant should be committed to custody for non-payment of the confiscation Order was adjourned at the request of the Crown Prosecution Service (“ CPS ”) pending an investigation into alternative methods of recovery.
14. On 8 August 1996, in connection with the enforcement of the confiscation Order, Ms S.D. was appointed as Receiver to realise the applicant’s property, including any property of the applicant held by third parties. The High Court, which appointed the Receiver under section 80(2) of the 1988 Act on application by the CPS and after the applicant had been given a further opportunity to comply with the confiscation Order, ordered that the Receiver’s powers were not to be exercised until the interests of the restrained properties had been determined.
15. On 2 September 1996, following an application on behalf of the Ministry of Defence in separate civil proceedings, the applicant was declared bankrupt. Ms S.D. was appointed as the applicant’s Trustee in Bankruptcy. This appointment was independent of her appointment as Receiver.
16. Following an ex parte application by the Receiver and Trustee in Bankruptcy, Ms S.D., the District Judge at Reading County Court ordered, on 27 September 1996, that:
“for a period of three months from the 27th day of September 1996 all postal packets (as defined by section 83 of the Post Office Act 1953) directed or addressed to the Bankrupt ... shall be re-directed, sent or delivered by the Post Office to [the Trustee in Bankruptcy’s address].”
17. The Order was made under section 371 of the Insolvency Act 1986 in favour of Ms S.D. in her capacity as the applicant’s Trustee in Bankruptcy. The application was based on the grounds that the Trustee in Bankruptcy was of the opinion that communications concerning remittances and useful information in respect of the applicant’s assets and liabilities which would better enable her to perform her duties might be forwarded to the applicant’s address and lost to the applicant’s estate if the Order were not made. The grounds invoked were supported by an affidavit sworn on 27 September 1996, which affirmed that it was necessary for postal packets to be intercepted immediately and without notice to the applicant to enable the Trustee in Bankruptcy properly to identify the applicant’s assets and sources of income.
18. An exception was made in the Order of 27 September 1996 for letters on which there was a specific direction, signed by the Trustee in Bankruptcy, that any such letter was to be delivered as addressed, if possible.
19. Between 27 September 1996 and 10 January 1997, a total of 71 letters addressed to the applicant were re-directed to the Receiver and Trustee in Bankruptcy. These letters included, inter alia, a letter from the Chief Inspector of the Ministry of Defence Police, two letters from the Legal Aid Board concerning civil proceedings to which the applicant was a party, a letter from the Police Complaints Authority, two letters from his legal advisers, the Legal Department of the National Council for Civil Liberties (later referred to as “Liberty”) relating to the proceedings before the European Commission of Human Rights, and affidavits and drafts made or prepared for use in the High Court in relation to the receivership proceedings.
20. Each of the letters mentioned above was copied to file before being forwarded promptly to the applicant.
21. In his letter of 28 November 1996 to the Receiver and Trustee in Bankruptcy the applicant expressed particular concern that apparently privileged material was being intercepted. On 2 December 1996 the Receiver and Trustee replied that no mail from the Police, Legal Aid, the National Council for Civil Liberties and the European Court of Human Rights would be opened in the future, as long as the sender’s names were clearly stamped on the envelopes.
22. Although the re-direction Order expired on 27 December 1996 it was only as from 18 January 1997 that the applicant began to receive his mail directly again. During that period there were two mail deliveries to the Trustee in Bankruptcy. One delivery was received on 30 December 1996, the other on 10 January 1997. The deliveries contained ten items of mail, none of which fell within the categories described above (see paragraph 19). A number of the items were however copied to file before being forwarded to the applicant.
23. On 25 February 1997 the applicant issued a summons for a stay of the receivership proceedings pending the determination of his application to the Commission. The hearing was listed for 16 June 1997 but was adjourned to 19 February 1998. On that date the High Court dismissed the application and confirmed that the receivership proceedings should continue. The applicant has not informed the Court of any subsequent developments in the receivership proceedings.
24. Section 371 of the Insolvency Act 1986 provides as follows:
“1. Where a bankruptcy order has been made, the court may from time to time, on the application of the official receiver or the trustee of the bankrupt’s estate, order the Post Office to re-direct and send or deliver to the official receiver or trustee or otherwise any postal packet (within the meaning of the Post Office Act 1953) which would otherwise be sent or delivered by them to the bankrupt at such place or places as may be specified in the order.
2. An order under this section has effect for such period, not exceeding three months, as may be specified in the order.”
25. Trustees in Bankruptcy have other statutory powers, which are more stringent than the power to apply for a re-direction order but which may nonetheless need to be used, in appropriate cases, if Trustees are properly to investigate the bankrupt’s affairs for the ultimate benefit of his creditors. In particular, under section 365 of the Insolvency Act 1986 a Trustee may obtain a warrant authorising him to seize property, books and/or records falling into the debtor’s estate. Furthermore, section 366 of the Act allows the court (on application by a Trustee) to summon a variety of persons before it to give an affidavit and/or produce documents.
26. A bankrupt owes a statutory duty, pursuant to section 333 of the Insolvency Act 1986, to give to the Trustee such information as to his affairs, attend meetings with the Trustee and do such other things as the Trustee may reasonably require for the carrying out of his relevant functions.
I. alleged violation of article 8 of the convention
27. The applicant complained that his correspondence, including correspondence with his legal advisers, was intercepted over the period 27 September 1996 to 18 January 1997 by the Post Office on behalf of the Trustee in Bankruptcy. The applicant invoked Article 8 of the Convention, which provides, as relevant:
“1. Everyone has the right to respect for ... 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.”
28. The applicant further contended that the failure of the relevant legislation and the re-direction Order of 26 September 1996 to protect his correspondence with the European Commission on Human Rights and with the lawyers advising him on his application to that institution must also be considered an inference with the exercise of his right of individual petition under Article 34 of the Convention.
1. Whether there was an interference
29. The Government did not dispute that there was an interference with the applicant’s right to respect for his correspondence as guaranteed by Article 8 of the Convention. However, in their submission the impugned interference found its justification in application of the provisions of paragraph 2 of that Article.
30. The Court observes that the following letters were among the correspondence re-directed to the Receiver and Trustee in Bankruptcy before the expiry of the Order of 27 September 1996 (see paragraph 19 above): two letters from the Legal Aid Board, two letters from the Legal Department of the applicant’s representative organisation, a letter from the Police Complaints Authority and a letter from the Chief Inspector of the Ministry of Defence Police. Each of these letters was copied to file before being forwarded to the applicant. Furthermore, there were two mail deliveries to the Trustee in Bankruptcy after 27 December 1996 when the Order had expired. One delivery was received on 30 December 1996, the other on 10 January 1997. A number of items in these deliveries were read and copied to file before being forwarded to the applicant (see paragraph 22 above).
For the Court, the measures applied to the applicant’s correspondence were an “interference by a public authority”, within the meaning of Article 8 § 2, with the exercise of the right guaranteed to the applicant under paragraph 1 of the provision. Indeed, the Government have not sought to argue to the contrary.
2. Justification for the interference
31. Such interference breaches Article 8 unless it is “in accordance with the law”, pursues one or more of the legitimate aims referred to in paragraph 2 and is, in addition, “necessary in a democratic society” to achieve those aims.
(a) Whether the interference was “in accordance with the law”
32. The applicant contended that the Insolvency Act 1986 (“the 1986 Act”) did not define with sufficient clarity the scope and manner of the exercise of discretion to re-direct and intercept mail. He observed in this connection that neither the 1986 Act nor the re-direction Order of 26 September 1996 made any provision for dealing with legally privileged materials. The applicant further stressed that his correspondence continued to be re-directed after the date of expiry of the Order and was read and copied to file. Moreover, Ms S.D. was both the Trustee in Bankruptcy and the Receiver, and in the former capacity had access to, read, copied and retained legally privileged communications concerning his challenge to the enforcement of the confiscation Order. For these reasons, the applicant maintained that the measures applied to his correspondence could not be considered to satisfy the requirement at issue.
33. The Government disagreed. They stated that the impeached measure was in accordance with the clear terms of the Order which the Trustee in Bankruptcy obtained from the court under section 371 of the 1986 Act. Although there were two mail deliveries to the Trustee in Bankruptcy after the Order had expired on 27 December 1996, neither fell into the category of correspondence covered by legal professional privilege (see paragraph 20 above). Moreover, the fact that these letters were re-directed after the expiry of the Order was explained by the delay in implementing the procedures for discontinuing the re-direction of letters.
34. The Court recalls that the expression “in accordance with the law” implies conditions which go beyond the existence of a legal basis in domestic law and requires that the legal basis be “accessible” and “foreseeable” (see the Amann v. Switzerland judgment of 16 February 2000, to be published in the Court’s official reports, § 56). Having regard to the terms of both section 371 of the 1986 Act and the re-direction Order (see paragraphs 24 and 16 above), the Court accepts that there was a legal basis for the interception of the applicant’s correspondence up until 27 December 1996 and its perusal and copying to file by the Trustee in Bankruptcy. It further accepts that the Trustee in Bankruptcy’s discretion to open, read and make copies of the applicant’s correspondence was not open-ended but confined to particular items which might assist her in her capacity of Trustee in locating and securing the applicant’s assets for the benefit of his creditors. It is to be noted that the applicant was at the material time a bankrupt. That his Trustee in Bankruptcy might have resort to the measure at issue must have been foreseeable, all the more since the applicant was legally represented in the bankruptcy proceedings.
In the Court’s opinion, the interference with the applicant’s correspondence between 27 September 1996 and 27 December 1996 satisfied the qualitative conditions inherent in the “in accordance with the law” requirement.
35. However, the Court cannot overlook the fact that the interference with the applicant’s correspondence continued after the expiry of the Order. The Government do not dispute the fact that two mail deliveries were re-directed by the Post Office to the Trustee in Bankruptcy after the expiry date. It is to be noted that, regardless of the alleged breakdown in the administrative arrangements for re-directing the applicant’s correspondence relied on by the Government, it nevertheless remains the case that the Trustee in Bankruptcy exercised her discretion to open letters and to retain copies of some of them. In the view of the Court, the Trustee in Bankruptcy must be taken to have known that the re-direction Order which she herself applied for and obtained no longer provided her with a legal basis to interfere with the applicant’s correspondence. On that account, the actions of the Trustee in Bankruptcy after 27 December 1996 were not in accordance with the law. For that reason, there has been a breach of Article 8 of the Convention and the Court does not consider it necessary to examine with respect to these particular items of correspondence whether the other conditions of paragraph 2 of that Article were complied with.
(b) Whether the interference before the expiry of the re-direction Order pursued a legitimate aim
36. The applicant did not contest the Government’s view that the measures directed against his correspondence during the validity of the re-direction Order were intended to protect the rights of his creditors.
37. The Court observes that the Trustee in Bankruptcy sought and was granted the re-direction Order to enable her to identify and secure the assets of the applicant, a bankrupt, with a view to their distribution to his creditors. Authorising the Trustee in Bankruptcy to have access to the applicant’s correspondence during the period covered by the Order can be considered to be in furtherance of the protection of the “rights of others” within the meaning Article 8 § 2 of the Convention. The Court concludes therefore that the interference pursued a legitimate aim.
(c) Whether the interference before the expiry of the re-direction Order was “necessary in a democratic society”
38. The applicant highlighted what he considered to be the unacceptable scope of the powers granted to the Trustee in Bankruptcy, in particular to have access to correspondence with his legal advisers, photocopy such correspondence and retain a copy of it. In the applicant’s submission, the re-direction Order could have excluded the re-direction of clearly marked legally privileged materials without impairing the aim of the Order. The applicant stressed in this respect that the Government did not contradict his argument that the envelopes containing correspondence with his representative organisation in the Convention proceedings, Liberty, were clearly identified on the outside.
39. The applicant drew attention to the fact that, in addition to his correspondence with Liberty, the Trustee in Bankruptcy also copied and retained five letters passing between the applicant and S.K. who was acting on his behalf as an insolvency consultant and legal adviser in the domestic proceedings involving the Receiver. The applicant maintained that Ms S.D., as Trustee in Bankruptcy, must have been aware that she was the opponent of S.K. in the domestic litigation. For her to open, read, copy and retain S.K.’s correspondence with the applicant amounted to a serious invasion of professional secrecy.
40. The Government replied that the interference was proportionate in its effect on the applicant’s right under Article 8. The applicant had not co-operated in the receivership proceedings and there was concern that suspected unsecured foreign assets might be dissipated if measures were not taken to identify those assets. The decision to authorise interception of the applicant’s correspondence was taken after consideration had been given to other, more stringent, options available to the Trustee in Bankruptcy (see paragraphs 25 and 26 above).
41. The Government further maintained that there was no reliable method of distinguishing letters which might assist the Trustee in Bankruptcy in the performance of her duties from other categories of correspondence such as letters from legal advisers. The envelope was of no assistance in this respect. Indeed, the Trustee in Bankruptcy was attentive to the applicant’s concern that his correspondence from the applicant’s legal advisers or the Convention institutions might be opened. She informed him that no such letters would be opened if the envelope clearly indicated the sender (see paragraph 21 above). The Government stated in this connection that there was no benefit to Ms S.D. as Receiver in attempting to gain further information under the re-direction Order for the purposes of the receivership proceedings instigated under the Criminal Justice Act 1988. Under the confiscation Order of 8 August 1996 (see paragraph 14 above) the only powers available to Ms S.D. were to gain control of title documents to specified assets. It was left to the Crown Prosecution Service and the applicant to litigate the beneficial ownership of the assets. In her capacity as Trustee in Bankruptcy, Ms S.D.’s primary function was to locate and secure further assets for the benefit of the applicant’s creditors.
42. The applicant replied that even if considerations of pragmatism may have some bearing on the reason why privileged correspondence could not be separated from other correspondence by the Post Office before mail was re-directed, there could be no pragmatic justification for the selective and systematic copying and retention of privileged correspondence.
43. The Court recalls that 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. In determining whether an interference is “necessary in a democratic society” regard may be had to the State’s margin of appreciation (see the Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233, p. 18, § 44). It further observes that in the field under consideration - the concealment of a bankrupt’s assets to the detriment of his creditors - the authorities may consider it necessary to have recourse to the interception of a bankrupt’s correspondence in order to identify and trace the sources of his income. Nevertheless, the implementation of the measures must be accompanied by adequate and effective safeguards which ensure minimum impairment of the right to respect for his correspondence. This is particularly so where, as in the case at issue, correspondence with the bankrupt’s legal advisers may be intercepted. The Court notes in this connection that the lawyer-client relationship is, in principle, privileged and correspondence in that context, whatever its purpose, concerns matters of a private and confidential nature (the above-mentioned Campbell judgment, pp. 18-19, §§ 46 and 48).
44. Admittedly, as the Government have pointed out, it may be difficult to identify from the envelope whether its contents attract legal professional privilege. However, the Government have not challenged the accuracy of the applicant’s allegations that letters from his legal advisers, once opened, were read, photocopied and a copy committed to file before being forwarded to him. The Court can see no justification for this procedure and considers that the action taken was not in keeping with the principles of confidentiality and professional privilege attaching to relations between a lawyer and his client. It notes in this connection that the Government have not sought to argue that the privileged channel of communication was being abused; nor have they invoked any other exceptional circumstances which would serve to justify the interference with reference to their margin of appreciation.
45. The Court would further observe that the fact that the Trustee in Bankruptcy was also the court-appointed Receiver made it even more compelling to forward, unread, the applicant’s correspondence from his legal adviser in connection with the receivership proceedings. However, and the Government have not contradicted the applicant’s declaration, the Trustee in Bankruptcy retained copies of the relevant letters before transmitting them to the applicant.
46. For the above reasons, the Court finds that there was no pressing social need for the opening, reading and copying to file of the applicant’s correspondence with his legal advisers and that, accordingly, the interference was not “necessary in a democratic society” within the meaning of Article 8 § 2.
47. Accordingly, there has been a breach of Article 8 in that respect. For that reason, the Court does not consider it necessary to examine the applicant’s assertion that the facts of the case also give rise to an interference with the exercise of his right of individual petition pursuant to Article 34 of the Convention.
II. alleged violation of article 6 of the convention
48. The applicant maintained that the interception of correspondence between himself and his legal advisers concerning the proceedings relating to the enforcement of the confiscation Order violated Article 6 of the Convention, which provides as relevant:
“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing .... ...
3. Everyone charged with a criminal offence has the following minimum rights: ...
c. to defend himself in person or through legal assistance of his own choosing ... .”
49. The Government disagreed. In their submission, to the extent that there may be concerns about the interception of correspondence from the applicant’s legal advisers, those concerns fell to be considered from the standpoint of Article 8 of the Convention. They further maintained that, in any event, the re-direction of the applicant’s letters did not amount to a breach of Article 6.
50. The Court recalls 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 of the Convention (see the Niemietz v. Germany judgment of 16 December 1992, Series A no. 251-B, pp. 35-36, § 37). However, the applicant has not provided the Court with any information on the conduct and outcome of the receivership proceedings (see paragraph 23 above). In these circumstances, and having regard to its finding of a violation of Article 8 of the Convention, the Court considers that it is unnecessary to examine the applicant’s complaint under Article 6 of the Convention.
iii. APPLICATION OF ARTICLE 41 OF THE CONVENTION
51. 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.”
52. The applicant stated that he is the victim of a very serious violation of his Article 8 right, having regard, inter alia, to the absence of safeguards in respect of the interception of his correspondence and the deliberate abuse of power by the Trustee in Bankruptcy which had had the effect of undermining legal professional privilege in litigation to which she herself was a party as Receiver. The applicant considered that a sizeable award was appropriate in the circumstances and claimed, in consequence, the sum of GBP 3,500 by way of compensation for the moral damage including the sense of humiliation which he had suffered.
53. The Government observed that the alleged breach was minimal and essentially technical in nature and resulted in no quantifiable damage. In the Government’s submission, a finding of a violation of the Convention would in itself constitute sufficient just satisfaction in the circumstances.
54. The Court considers that the alleged non-pecuniary damage is adequately compensated by the finding of violations of Article 8 of the Convention.
55. The applicant claimed the sum of GBP 8,482.33 inclusive of value-added tax (VAT) by way of compensation for costs and expenses incurring in the Convention proceedings. This amount was made up of fees and expenses as assessed by the applicant’s representative, Liberty, as well as fees charged by counsel. The applicant observed that the amount claimed reflected the work devoted to the processing of the complaints declared admissible by the Court to the exclusion of costs and expenses incurred in unsuccessfully arguing the admissibility of his complaint under Article 7 of the Convention.
The applicant received the sum of FRF 4,100 by way of legal aid from the Council of Europe.
56. The Government submitted that an overall sum of GBP 4,000 inclusive of VAT would be a more realistic award. They considered in this connection that the applicant had underestimated the time and effort devoted to his pleadings on his Article 7 complaint which had been declared inadmissible by the Court. Furthermore, in the Government’s opinion the hourly rate charged by counsel should be reduced, as should, inter alia, the amounts claimed by the applicant for “anticipated costs”.
57. The Court, deciding on an equitable basis, awards the applicant the sum of GBP 6,000 minus the amount already received by way of legal aid from the Council of Europe.