Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Miss PERSON , is a NORP national who was born in DATE and lives in GPE . She was not legally represented .

NORP The applicant is a solicitor who joined the firm ORG as an assistant solicitor in DATE . In DATE she became the sole proprietor and practitioner in the practice . DATE , she was the subject of CARDINAL successful complaints to ORG , of which CARDINAL related to overcharging .

NORP In DATE , ORG commenced an inspection of and investigation into ORG On DATE the head of forensic investigations at ORG wrote to the applicant stating that the books of ORG were to be investigated and that officers of ORG would be attending her office for that purpose . The letter said that it was not the policy of ORG to authorise staff to disclose the reasons for inspections . The applicant was therefore not advised of the reasons for the inspection .

CARDINAL different departments of ORG were involved in the investigation : forensic investigations , which dealt with concerns about compliance with LAW ; and multiple complaints investigation , which dealt with all other complaints . The inspection commenced with a visit to the applicant ’s office on DATE , which lasted DATE . CARDINAL further visits took place , the last on DATE . ORG inspectors from the multiple complaints investigation department also wrote CARDINAL lengthy letters to the applicant asking for further information in connection with the investigation . Although the applicant co - operated with the investigators in attendance at her offices , she did not reply in writing to any of the letters .

Following the final visit , the investigative officers compiled a report on the applicant ’s practice , intended for internal consideration within ORG , in order to determine whether any of the powers contained in LAW DATE ( “ the DATE LAW ) should be exercised in relation to ORG The report ( “ the ORG ” ) was prepared in the form of a letter dated DATE from the head of the forensic investigations department to the head of investigation and enforcement in ORG . ORG was CARDINAL pages long , with CARDINAL pages of appendices .

On DATE a member of the multiple complaints investigation department wrote a CARDINAL-page letter to the applicant . She did not enclose a copy of ORG at that time . The letter set out allegations of professional failures by the applicant and invited her to reply by CARDINAL DATE . The allegations related generally to alleged failures to comply with provisions of LAW ( see paragraph CARDINAL below ) .

The applicant , despite being reminded in the letter that she had a professional obligation to reply to ORG , did not reply .

On DATE ORG wrote to the applicant again , this time enclosing ORG . She was asked to comment on the report by DATE . A covering letter contained several allegations of breaches of the Solicitors’ Accounts Rules ( see paragraphs QUANTITY below ) and invited comments on these allegations . In addition , the letter stated that the investigators were satisfied that the applicant had failed to comply with provisions of those rules , and that therefore the power to intervene ( essentially , to take control of the applicant ’s practice – see paragraphs CARDINAL below ) was exercisable .

On TIME DATE the applicant received a telephone call from CARDINAL of the investigators telling her that there would be a large and important parcel waiting for her at her office DATE and that she should collect it and read it in order to reply by DATE . The applicant told the investigator that she was going on holiday with her mother to GPE the following day and that she could not deal with a large communication from ORG by DATE . She accordingly asked for an extension of time . No extension was granted . The applicant went on holiday without collecting the parcel . Upon her return , the parcel was waiting for her . However , she did not open it . She subsequently explained that the reason she did not open it was “ because she could not deal with it ” .

On an unknown date , ORG was forwarded to ORG of ORG ( “ the Panel ” ) . It was accompanied by a recommendation that stringent and immediate conditions imposed on the applicant ’s practising certificate would be sufficient to protect the public and the conclusion that intervention was not necessary , although the matter was “ finely balanced ” .

On DATE the applicant received funds in the sum of GBP CARDINAL in respect of a mortgage on her own home . As she intended to invest the funds in a client ’s business , she instructed her secretary to pay the funds into the firm ’s client account , intending to deal with the necessary paperwork later . However , her secretary instead credited the firm ’s office account . The applicant was not made aware of the error .

The Panel met on DATE . Following consideration of ORG , the ORG decided that there should be an intervention in the applicant ’s practice . It adopted several resolutions , the most significant of which being :

“ CARDINAL . The Panel were satisfied that grounds for intervention existed under paragraph CARDINAL(CARDINAL)(a)(i ) of Part I of Schedule CARDINAL Solicitors Act DATE ( as amended ) , namely that the Panel were satisfied that they had reason to suspect dishonesty on the part of PERSON Sheikh practising as ORG ... in connection with her practice as a solicitor .

The ORG were also satisfied that grounds for intervention existed under paragraph CARDINAL ) of Part I of Schedule CARDINAL Solicitors Act DATE ( as amended ) namely that PERSON Sheikh failed to comply with LAW .

The Panel balanced the need to exercise powers of intervention in order to protect the public and the serious consequences of intervention for a solicitor . The Panel were satisfied that it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in ORG dated DATE .

The ORG were further satisfied that it was necessary to exercise powers of intervention in order to protect the public .

ORG to intervene into Anal PERSON ’s practice at ORG ... ”

No particulars were given in the resolution of why the Panel suspected dishonesty on the part or the applicant or why it concluded that she had breached the Solicitors’ Accounts Rules .

The Council of the Law Society also passed resolutions providing that the applicant ’s practice monies vest in FAC and that the applicant be required to deliver practice documents to its nominated agent . In accordance with the applicable legislation , the applicant ’s practising certificate was automatically suspended ( see paragraph CARDINAL below ) .

That afternoon a representative of ORG called ORG to speak to the applicant but she was out of the office . He faxed a copy of the intervention resolution to her at her office , informing her that the intervention team would arrive at TIME and that an intervention had been ordered as a result of breaches of the Solicitors’ Accounts Rules , with reference to paragraphs CARDINAL and CARDINAL of Schedule CARDINAL to LAW ( see paragraphs CARDINAL below ) .

On TIME the applicant did not go to her office as she had client meetings scheduled . However , her secretary called her to inform her of the fax and ORG pending visit . According to the applicant , she was not made aware that an intervention had been ordered . She asked her secretary to reschedule the visit as she did not intend to be in the office that day . Her secretary telephoned ORG to relay the message . She was advised that it was imperative that the applicant attend the meeting that TIME and that her practising certificate had in any case been suspended . She then called the applicant back and explained the position . The applicant made arrangements to go immediately to her office .

At some point during the second phone call , or possibly during a third phone call with her secretary prior to arriving at the office , the applicant instructed her secretary to transfer the GBP CARDINAL from the client account to her personal bank account and to sign the transfer form on the applicant ’s behalf . The secretary effected the applicant ’s instructions , with the result that the client account was debited in the sum of GBP CARDINAL , leaving it heavily overdrawn .

In due course the intervention team arrived at the applicant ’s office to commence the intervention . The applicant was there to meet them and asked for , and was given , time to take legal advice before the intervention proceeded . She instructed a well - known firm of solicitors . It appears that they did not recommend that she take immediate action to halt the intervention but advised her to exercise her statutory right of challenge under LAW ( see paragraph DATE below ) . She permitted the intervention team to have access to the LOC . She had still not opened the parcel sent to her by ORG on DATE ( see paragraphs CARDINAL above ) .

On DATE the applicant issued an application to ORG to request the withdrawal of the intervention under paragraphs CARDINAL ) and CARDINAL(CARDINAL ) of Schedule CARDINAL to LAW ( see paragraphs CARDINAL below ) . Realising that it could be some time before the matter was heard by ORG , the applicant ’s solicitor wrote CARDINAL letters to ORG proposing measures to allow the applicant to continue to have conduct of a limited number of specific matters on conditions intended to protect clients against the risk perceived by ORG to exist . CARDINAL of the conditions was that she would not issue any bills to clients . ORG refused to accommodate the requests ; no reasons were provided for the refusal . However , in accordance with usual practice where a challenge to an intervention is lodged with ORG , ORG put in place arrangements to mitigate the damage to the goodwill in the practice pending the outcome of proceedings . An experienced firm of solicitors took possession of the practice and files and passed to other solicitors only those files requiring immediate action which the applicant herself was not able to take , which amounted to CARDINAL per cent of her files and the client and office accounts were frozen .

On or DATE the applicant sought case management directions . In particular , she sought directions for a speedy trial . ORG did not oppose the request . The applicant also sought , by way of interim relief , an order for the restoration of her practising certificate . However , the application was incompetent as it ought to have been made , in the first instance , to ORG itself ( see paragraph CARDINAL below ) .

On DATE the application for case management directions came before the court , which made an order for an expedited trial . It also considered the arrangements put in place by ORG to mitigate the effect of the intervention pending the resolution of the applicant ’s challenge ( see paragraph CARDINAL above ) . The applicant did not challenge these arrangements .

The applicant subsequently applied to ORG under section CARDINAL(CARDINAL ) of LAW to have her practising certificate restored ( see paragraph CARDINAL below ) . The outcome of the application was that ORG granted the applicant a new practising certificate for DATE with conditions to protect her clients , namely that she did not act as sole principal , as a partner or as a salaried partner . She was therefore unable to resume ORG practice .

The application for withdrawal of the intervention came before ORG on DATE and the trial lasted DATE . On DATE , FAC directed that the intervention be withdrawn , reserving his full judgment until DATE . Following Park J ’s notification of his decision on DATE , the intervention was ordered to be withdrawn by order of the same date . By order of DATE , all the conditions , apart from CARDINAL preventing the applicant from seeking the payment of fees for probate work without the prior approval of ORG , were lifted from the applicant ’s practising certificate as of DATE .

NORP In his subsequent written judgment , GPE explained that he had chosen to announce his decision before handing down judgment because DATE which passed was potentially damaging to the applicant even if her application succeeded in the end . In short , GPE reasons for ordering the withdrawal of the intervention were that he did not think that there was reason to suspect the applicant of dishonesty and that while he accepted that there had been some breaches of the Solicitors’ Accounts Rules and other aspects of the firm ’s practice about which ORG could legitimately feel concern , he did not think that they were serious enough to merit intervention .

Park J noted that where a decision to intervene resulted in the vesting of practice monies in ORG , the delivery up of practice documents and the suspension of the solicitor ’s practising certificate , the consequences were very severe for the solicitor and , in the case of a sole practitioner like the applicant , it effectively meant the total destruction of the practice . However , he accepted that the powers accorded to ORG under LAW were both valuable and desirable to ensure public confidence in the honesty of solicitors and to ensure a quick and effective response in cases where there were grounds to suspect dishonesty on the part of a solicitor . He noted that it was possible , in the applicant ’s case , that the intervention action which ORG had already taken might already have done substantial damage to the practice of her firm , but considered that such a consequence might be a risk which had to be accepted in the wider interests of preserving public confidence in the solicitors’ profession as a whole . However , he criticised the unexplained rejection by ORG applicant ’s solicitor request that she be allowed to continue some limited practice under conditions ( see paragraph CARDINAL above ) .

Concerning the scope of the court ’s review under paragraphs CARDINAL ) and CARDINAL(CARDINAL ) of Schedule CARDINAL to LAW ( see paragraphs CARDINAL below ) , GPE considered that the jurisdiction of the court was not to be exercised on grounds analogous to judicial review . Accordingly , he was not required to limit his consideration of the application to the question whether the notice was one which no reasonable body in the position of ORG could have decided to serve but was able to decide himself whether the notice of intervention should be allowed to stand . In this respect , LAW own view that the circumstances merited intervention was a relevant factor for consideration . PERSON also emphasised that the relevant legislation referred to a “ suspicion ” of dishonesty and it was therefore not necessary for a positive finding of dishonesty to be made . Finally , the court was not limited to reviewing the evidence before FAC at the time when the decision was made to intervene but could consider the whole of the evidence , including incidents or discoveries post - intervention , in deciding whether to withdraw the intervention . In this regard , he noted :

“ ... [ the applicant ] acknowledges that she had been deficient in providing explanations to ORG officers in the course of the inquiries which preceded the decision to intervene . She can , however , put before me evidence which she failed to present to FAC at the earlier stage , and submit ( as Mr Treverton - Jones has done on her behalf ) that , even if ORG which decided to intervene could understandably have thought that there was reason to suspect dishonesty given the absence then of answers from her to questions about matters which had caused the ORG ’s officers concern , the position now is different : I should , taking account of her evidence , conclude that there is no reason to suspect dishonesty in any respect which could rationally justify the drastic ( and effectively terminal ) step of intervention . ”

He then went on to consider the events which preceded the intervention . Regarding the letter of DATE , he noted that the letter requested comments on CARDINAL different alleged failures . In general they were categorised as failures to comply with particular provisions of the Solicitors’ Practice Rules and with associated principles in the Guide to ORG . He continued :

“ As far as I can see there is no reference to the Solicitors’ Accounts Rules in it , nor do I find anything which could be regarded as an allegation of actual dishonesty on [ the applicant ’s ] part . ”

Similarly , GPE observed that he could not find any specific allegation of dishonesty in the letter of DATE enclosing ORG .

Park J noted the absence of any details as to why the ORG had reached its conclusions and ordered the intervention , saying :

“ ... In this particular case I consider that the absence of particulars causes considerable difficulty , especially as regards the finding of suspected dishonesty . What precisely was the dishonesty , and what precisely were the grounds which raised a suspicion of it ? The ORG does not say . This is , I understand , in line with standard practice for Law Society Panels . In normal cases ( which in my opinion this case is not ) the absence of particulars in a ORG ’s finding of grounds to suspect dishonesty may not particularly matter , because the nature of the dishonesty and of the grounds of suspicion is perfectly obvious to anyone ... In all the earlier cases of interventions which I was shown the alleged dishonesty was clear for all to see . Similarly , in so far as the intervention may also have been founded on breaches of the Solicitors’ Accounts Rules , the breaches were equally obvious , and almost always consisted of solicitors either not having client accounts at all ... or taking money off client account and using it for private purposes or for their own professional purposes ( like reducing the office overdraft or paying the office rent ) in circumstances where the taking of the money was prohibited ... Furthermore as far as I can ascertain , although the members of the ORG in Miss PERSON ’s case presumably did know what sort of dishonesty they suspected and what their grounds for suspecting it were , nobody else in the Law Society knew . The Law Society officers [ involved in the investigation and preparation of ORG ] who gave evidence before me ... did not know ...

This has caused substantial difficulties in the case , and in my view has had an unfortunate effect on the nature of the proceedings . Miss PERSON did not know any detail of what sort of dishonesty was being alleged against her , and in her first witness statement could do little more on this aspect of the case than to say that she utterly refuted any suggestion that there was reason to suspect dishonesty on her part . She has always accepted that she failed to reply to correspondence and that there have been some technical infringements of LAW , but she denies any kind of dishonesty . Since she does not know what specific kind of dishonesty the Panel suspected , she has great difficulty in doing more than making a general denial . Her legal team in this case ... could only speculate as to the case which they had to meet . In a criminal case an indictment which merely charged that there was reason to suspect dishonesty would never survive . The same would apply to a pleading in a civil claim . ”

He noted that even ORG legal team were unaware of the reasons for the ORG ’s suspicion of dishonesty and concluded :

“ In the circumstances it seems to me that [ counsel for ORG ] have had to do the best they can to find in the extensive documentation in the case any features which , as it seems to them , might have given rise to a suspicion of dishonesty , to present them to me as giving rise to such a suspicion , and to cross - examine Miss PERSON and PERSON [ an ORG staff member ] in a way which entails alleging dishonesty in numerous different respects . ”

He noted that the applicant ’s case had not come before the court quickly , and that it had not proceeded speedily . He continued :

“ ... I may be wrong , but I think that it was primarily ORG which had problems with an earlier commencement [ of the trial ] . ”

As to the breaches of the Solicitors’ Accounts Rules , GPE noted that , unlike in virtually all other cases of interventions of which he was aware , there was no evidence that any client money had gone missing . Further , regarding the allegations of dishonesty , he observed that the applicant had been searchingly cross - examined for DATE and that she had not remotely struck him as the “ dishonest , grasping , incompetent ” implied by ORG multiple attacks upon her .

Park J expressed doubt at the proposition by counsel for ORG that , once intervention had been commenced by ORG , the subsequent review by ORG of whether to withdraw the intervention could take into consideration all matters relating to the solicitor ’s conduct , even those which , under LAW , did not justify intervention . He concluded :

“ ... I accept that I should look at the evidence as it exists when the case is presented to me , and that I am not limited to considering only the materials which were before the ORG when , DATE previously , it resolved to intervene ... Thus , if there is new evidence of the existence of reasons to suspect dishonesty or of breaches of the Solicitors’ Accounts Rules , I can certainly take account of it . It is far from clear , however , that I should take account of new evidence ( or for that matter old evidence ) of alleged shortcomings on the part of Miss PERSON which do not bear on any suspicion of dishonesty or on breaches of the Solicitors’ Accounts Rules ... [ A ] Panel can not resolve that a practice be intervened upon on the basis of a general opinion that the practice is unsatisfactory , and that it will be in the public interest for ORG to intervene . That being so , I am unconvinced that a general opinion of that nature should carry any substantial weight when it comes to deciding whether the court should order an intervention to be withdrawn . Suppose that it had appeared to the Panel that there was no reason to suspect dishonesty and that , although there had been breaches of LAW , they were not themselves of the sort which could justify the drastic step of intervention . Could the ORG nevertheless have decided that ORG should intervene in ORG because there were other aspects of the firm ’s practice which the Panel considered to be unacceptable ? I think not . Is it , therefore , any different at the stage when the court is considering whether an intervention should be withdrawn ? Again , I think not ... ”

Park J considered in some detail the matters raised in ORG . He concluded in relation to each that they were insufficiently serious to merit intervention . He further considered the matters raised by ORG as regards the applicant ’s alleged dishonesty and concluded that the evidence before him supported no such suspicion . He noted that some of the matters to which ORG referred might be relevant to any disciplinary proceedings which could be taken against the applicant , but were not relevant to the question of intervention . As to the failure of the applicant to respond to ORG letters , NORP noted that the letters were very demanding and that the applicant was a busy sole practitioner with clients to look after and without much in the way of high grade supporting staff in her office . He considered that she would have been unable to deal with the letters in the detail which FAC required without neglecting her current clients and risking failing in her duty to them .

In relation to the pre - intervention material put before him , GPE concluded :

“ On the basis of matters as they stood before the intervention ( and taking account of evidence which I had of such matters , whether the ORG had it or not ) , I believe that the intervention should be set aside . ”

He reviewed the events of CARDINAL and DATE and accepted the applicant ’s account that she had been unaware that an intervention would take place . He continued :

“ ... To an extent her lack of awareness of what might happen was her own fault . I have described ... how she never even opened the parcel which had arrived at the office on DATE and which contained , among other things , ORG letter of DATE . If she had opened the parcel and read that letter it would have put her clearly on notice that an intervention was a possibility . ”

In respect of post - intervention issues , the only matter considered to be of significance by GPE was the transfer , on TIME of the imposition of the intervention , of GBP CARDINAL from the client account to the applicant ’s personal bank account ( see paragraph CARDINAL above ) . GPE found that the applicant was not aware , at the time when she instructed the transfer , that there had been an intervention . However , he accepted that she gave the instructions to her secretary because of a general feeling that she did not want the money to be in the client account when ORG arrived . He continued :

“ The more general point is that I can not find it in me to condemn Miss PERSON for wanting to get the money out of an ORG bank account before ORG arrived . She did not ( in my view ) know that ORG was coming to effect an intervention into her practice , but after the second telephone call from [ her secretary ] she apprehended that something of a serious nature was quite likely to happen , and she must have felt deep concern about what might happen to this large sum of money which she had borrowed personally DATE before . It must have been a desperate anxiety to her that , because the money had gone into an ORG bank account , it might become entangled with the problems which it seemed that she was going to have with ORG . Feelings of that nature would surely have been enhanced by the reflection that the money might be regarded as still really being hers and not as belonging to a client yet . She was of course under the erroneous impression that the money was being held in the firm ’s client account ... She did not realise that the money was in fact in the firm ’s office account , but I comment that it was not appropriately held there . LAW , if ( as I suspect was correct ) it did not yet belong to LOC but still belonged to PERSON , did not belong to her in her capacity as the sole proprietor of the practice . On DATE the £ MONEY did not really have anything to do with the practice . She had just borrowed it on a mortgage of her private house , and it was intended to be invested in a commercial project in which she ... would be participating as an investor and not in her solicitor capacity .

In retrospect Miss PERSON might have been better advised just to leave the money alone and wait fatalistically to find out what was going to happen to it , but I can well understand that it did not seem that way to her at the time . I repeat that I can not find it in me to say that wanting to remove the money from ( as she thought ) the ORG client account was so objectionable a thing that I should leave in place an intervention upon her practice which otherwise I would direct to be withdrawn . ”

The applicant ’s remaining files and all monies from the client and the office accounts , plus interest , were subsequently returned to her . She resumed practice at ORG

On DATE ORG was given permission to appeal to ORG on CARDINAL grounds : first , that GPE had inappropriately assessed whether the applicant had in fact been dishonest , rather than addressing whether the statutory test of suspicion of dishonesty had been met ; second , that FAC had applied too high a threshold as regards whether the breaches of the Solicitors’ Accounts Rules could justify an intervention ; and third , that , in exercising his discretion as to whether to withdraw the intervention , NORP had wrongly failed to take into account other matters relating to the applicant ’s conduct which were not directly related to her alleged dishonesty and breaches of the Solicitors’ Accounts Rules . The judgment granting leave noted that FAC was not minded to re - intervene in the applicant ’s practice at that time but was considering disciplinary proceedings against her . The appeal was heard DATE .

NORP On DATE , ORG handed down its judgment . As regards the scope of the appeal proceedings , PERSON , giving judgment for the court , noted :

“ ORG has made it clear that , whatever the outcome of these appeals , it does not seek to re - intervene in [ the applicant ’s ] practice on the basis of the intervention notices served in DATE . Its concern is that the findings of fact made by the judge – almost all of which it regards as wrong – present serious difficulties in relation to the exercise of its powers to impose conditions on [ the applicant ’s ] practising certificate . Put shortly , the ORG fears that those findings of fact , if not reversed , make it impossible for it to impose the conditions on [ the applicant ’s ] practising certificate which it considers necessary for the protection of the public . It is concerned , also , that it may not be able to go behind those findings of fact in disciplinary proceedings against [ the applicant ] in which it may wish to allege actual dishonesty . And , further , the ORG is concerned that the judge ’s approach to the issues which were before him in this case gives rise to uncertainty as to the proper scope of the summary procedure which ORG must have intended should follow from an application to withdraw under paragraphs CARDINAL ) and CARDINAL(CARDINAL ) of schedule CARDINAL to the DATE Act : uncertainty which , unless resolved , will lead to problems in future cases ... ”

ORG considered the various matters relied upon by ORG before ORG as evidence that continued intervention was justified . As regards the allegations of breaches of LAW , he reached different conclusions from GPE as to the honesty of the applicant in her dealings with the client account . In particular , he commented on the failure of GPE to deal with certain anomalies as regards the applicant ’s charging practice :

“ For my part , I find it surprising that the judge was able to attribute [ certain aspects ] of the ORG ’s complaint ... to ‘ GPE and ‘ an error of judgment’ without a more rigorous analysis of the material which had led the ORG to take the view that those matters gave rise to suspicion of dishonesty . It is , I think , difficult to avoid the conclusion that he did so because he had already persuaded himself , from his observation of Miss PERSON and [ her employee ] as witnesses , that they were not dishonest ; so that matters which , objectively , were capable of giving rise to suspicion of dishonesty had to be explained in a way which avoided a finding of dishonesty ... ”

He further highlighted the failure of GPE to explain why , in relation to CARDINAL particular matter , he had rejected ORG submission that client funds had indeed gone missing contrary to his general finding that the applicant ’s case did not involve missing client funds . PERSON pointed to various other aspects of ORG complaints concerning the applicant ’s conduct in respect of client funds and charging which , in his view , had not been fully addressed by PERSON He referred to GPE observation that a client benefitted from clear protections , notably the possibility of requiring the solicitor to obtain a remuneration certificate from ORG where he considered that he was being overcharged by his solicitor , and that intervention was therefore not required in such circumstance . He concluded :

“ The Law Society submits that that is too narrow a view of the circumstances in which it may be appropriate to use its intervention powers . It points out that an honest solicitor should be endeavouring to charge no more than he ( or she ) believes is due ... I agree : a fortiori where the solicitor , as sole executor , is himself ( or herself ) the client [ as in a number of the examples in the applicant ’s case ] , it seems to me that evidence of persistent and deliberate overcharging in probate matters of that nature might well justify intervention on the basis of suspected dishonesty . ”

As to the transfer of the GBP CARDINAL ( see paragraph CARDINAL above ) , PERSON agreed with ORG that at the time she ordered the transfer , the applicant did not know of the intervention . However , like GPE , he found that she had , nonetheless , realised that the impending visit of ORG officials was more serious that just another inspection . He concluded that in the circumstances , the applicant must have known that intervention was a real possibility , and that she had for that reason transferred the money . He further considered that there was no evidence to allow GPE to conclude whether beneficial ownership of the money remained with the applicant . In light of the instructions that she had given to her secretary , PERSON considered that she could not claim that she thought it was still her money . That the applicant had requested her secretary to sign the bank transfer form on her behalf was a clear attempt to deceive the bank . In the circumstances it was not difficult to understand why ORG took the view that the incident gave rise to particular concern as to the applicant ’s fitness to carry on her practice . He noted :

“ ... What took place is a significant demonstration of the way in which this solicitor was prepared to act in the face of what she must have seen as an impending ( if not actual ) crisis in her practice . She was prepared to act in a way which – as she must have appreciated and intended – involved a deception . ”

PERSON disagreed with GPE approach to the question whether the intervention notices should be withdrawn . In his view , the correct approach was to look at the matter as a whole and in this regard , the conduct of the solicitor at the time of , and immediately following , intervention could well affect the way in which pre - intervention conduct should be viewed . In the applicant ’s case , her conduct in relation to the GBP CARDINAL demonstrated that she was willing to deceive and GPE ought to have asked himself whether his impression of her as a witness required re - evaluation in the light of her willingness to deceive in relation to that transfer .

PERSON referred to the distinction between an application to the court to withdraw the intervention ( as in the present case ) and a challenge to the use by ORG of its intervention powers :

“ Plainly , if there is a challenge to the exercise of the intervention powers , the court will need to ask itself whether the grounds under Part I of schedule CARDINAL to the DATE Act upon which the ORG relied at the time of the resolution to intervene were made out on the basis of the information available ( or , perhaps , reasonably available ) to the Society at that time . If that question is answered in the negative , then ( as it seems to me ) the resolution under paragraph CARDINAL(CARDINAL ) is of no effect and notices served under paragraph PERSON ) or CARDINAL ) are ‘ fundamentally NORP ... That is because the powers under Part II of schedule CARDINAL are exercisable only in circumstances within Part I. So , if the ORG is to exercise intervention powers in reliance on paragraph CARDINAL ) , the ORG must have reason to suspect dishonesty at the time when it passes the resolution under paragraph CARDINAL(CARDINAL ) or serves the notice under paragraph CARDINAL(CARDINAL ) .

Cases in which there is a challenge to the validity of the resolution under paragraph CARDINAL(CARDINAL ) or to the service of intervention notices are rare . Where the ORG relies on paragraph CARDINAL ) of schedule CARDINAL , the solicitor may well find it impossible to contend that , on the material available to the FAC at the time when the resolution was passed and the intervention notices served , the ORG did not have reason to suspect dishonesty . That was the position in the present case . And it is pertinent to keep in mind that , in many cases ( as in the present case ) , the ORG will rely , in addition , on paragraph CARDINAL ) ( breaches of the accounts rules ) and will have given a notice under paragraph CARDINAL ) – thereby providing an opportunity for challenge in advance of intervention . In such cases a challenge to the validity of the resolution under paragraph CARDINAL ) or to the service of intervention notices on the grounds that the condition in sub - paragraph ( a ) was not met will serve little purpose : the ORG will be able to rely ( in relation to validity ) on sub - paragraph ( c ) . In such cases the solicitor will usually focus his ( or her ) submissions on seeking to persuade the court that , whether or not the ORG had reason to suspect dishonesty on the material available to it at the time , the court should hold , on the basis of additional material deployed at the hearing of the application under paragraph CARDINAL ) , that suspicion of dishonesty has been dispelled . That , again , was the position in the present case .

What is not open to doubt is that , absent a challenge to the validity of the resolution under paragraph CARDINAL(CARDINAL ) of schedule CARDINAL or to the service of intervention notices , the single issue for the court on an application under paragraphs CARDINAL ) or CARDINAL(CARDINAL ) is whether the notices should be withdrawn ... ”

The sole issue for the court , therefore , in the present case being whether the intervention notices should be withdrawn , PERSON noted :

“ In addressing that question ... the court must , indeed , weigh the risks of re - instating the solicitor in his ( or her ) practice against the potentially catastrophic consequences to the solicitor ( and the inconvenience , and perhaps real harm , to his or her existing clients ) if the intervention continues . In weighing the risks of re - instatement the court must have regard to the views of ORG as the professional body charged by statute with the regulation of solicitors ... and as the body whose members are obliged , through the compensation fund , to underwrite those ... In a case where the ORG has taken , and continues to take , the view that there are reasons to suspect dishonesty on the part of the solicitor , the court may well need to address those reasons in the context of weighing the risks of re - instatement ; although ... that will not always be the case . It is important to keep in mind that ( in cases where there is no challenge to the validity of the resolution or to the service of the notices ) there is no free - standing requirement for the court to decide whether there are grounds for suspecting dishonesty ; a fortiori , no requirement for the court to decide whether the solicitor is or has been dishonest . The issue arises ( if at all ) in the context of deciding whether the intervention needs to continue . ”

Accordingly , all matters could be taken into account in reaching the decision whether to withdraw the intervention , including conduct falling outside the statutory grounds for its original imposition , such as the applicant ’s poor regulatory history and her failure to respond to proper requests for information from ORG . PERSON considered that ORG had erred in seeking to determine whether or not the applicant was dishonest as the question to be decided was simply whether the suspicion of dishonesty had been dispelled , and PERSON was satisfied that it had not , bearing in mind the serious inconsistencies between the applicant ’s oral evidence at the trial on the one hand and the answers which she had given at interview , the explanations in her witness statements and the documentary material on the other hand .

Finally , as regards ORG criticism of ORG approach to whether intervention should continue , PERSON found :

“ ... First , as it seems to me , past regulatory history is plainly relevant to a consideration whether it is realistic to think that future compliance can be enforced by regulatory powers short of intervention . The ORG was entitled to take the view that the history of successful complaints in relation to Miss PERSON ’s conduct of probate matters demonstrated that there could be no basis for confidence that ( absent intervention ) her practice in relation to such matters could be altered by tighter regulation .

Second , on an application under paragraph CARDINAL ) of schedule CARDINAL , the court is required to have regard to all matters before it : it is not confined to the grounds which led to the exercise of the intervention powers ... As I have sought to explain , the court ’s task on an application under paragraph CARDINAL ) of schedule CARDINAL is not constrained by the statutory grounds on which the ORG can exercise intervention powers .

Third , on an application under paragraph CARDINAL ) which does not include a challenge to the validity of the resolution under paragraph CARDINAL ) of schedule CARDINAL to LAW or to the service of intervention notices , past ‘ misconduct’ is relevant if , and only in so far as , it informs an assessment of future risk ... The question , in each particular case , is whether the experience of past conduct should lead to the conclusion that the risks of reinstatement are , or are not , acceptable . ”

The court made the limited orders sought by ORG regarding the lifting of limitations on its ability to impose conditions on the applicant ’s practising certificate .

PERSON also commented on the intervention procedure and the possibility to challenge an intervention . He noted that it was not in doubt that intervention in a solicitor ’s practice , without advance notice , was likely to have the most serious consequences for the solicitor . However , ORG had provided the solicitor with a summary process by which the matter could be brought before the court and had imposed short time limits within which that process had to be commenced . He observed that in LAW ( see paragraphs CARDINAL - CARDINAL below ) ORG had rejected an argument that the intervention procedure was incompatible with the solicitor ’s Convention rights , on the basis that the court ’s power to consider whether a fair balance had been struck between the demands of the general interest of the community and the protection of the individual ’s fundamental rights met the requirements of LAW No . CARDINAL . However , he continued :

“ ... it is clear that , unless the matter can be determined by the court within a short time of the intervention , the solicitor is likely to be denied an effective remedy . That is because the consequences of intervention – if the intervention continues for more than a short time DATE are likely to be irreversible . The solicitor ’s clients will have to take their affairs elsewhere ; the staff will have found other employment ; and the practice will be destroyed in any event . ”

He referred to GPE criticism of the resolution of CARDINAL DATE on the basis that it failed to disclose the reasons which had led the Panel to decide that intervention notices should be served , and noted :

“ ... The true vice , in my view , is that the reasons which were disclosed – ‘ it was necessary to exercise powers of intervention in this case in view of the nature of the matters identified in ORG dated DATE were stated in so general and unspecific terms . Disclosure of reasons in those terms is calculated to make it difficult for the solicitor to know and address the real concerns which had led to the exercise of intervention powers . The ORG should , I think , give thought to the need for Panel resolutions to identify , with much more specificity than in this case , the reasons which ( in the ORG ’s view ) make intervention necessary . If those reasons are not identified at an early stage , there is a danger that the solicitor will be denied the effective protection which ORG plainly intended a summary process to provide .

There will , of course , be many cases in which the solicitor who has suffered intervention will be in no doubt as to the ORG ’s concerns . And , as I have said , there will be cases where the solicitor wishes to challenge the validity of the resolution on public law grounds . But , in cases where , although the solicitor knows what material was before the Panel , there is genuine doubt as to the matters which the ORG regards as sufficiently serious to justify intervention , it seems to me that the court should be ready to assist DATE on an early application for directions following the issue of an application under the schedule CARDINAL procedure – by requiring the ORG to state the grounds upon which ( on the material then known to it ) the application will be resisted . Such a statement would enable the solicitor to address the ORG ’s concerns in a focussed response . And , in the light of that response , the ORG can explain to the court why it takes the view ( if it does ) that the concerns have not been met .

I appreciate that the process suggested in the previous paragraph may require the court to adopt a more pro - active role on applications under schedule CARDINAL to LAW than hitherto ; and that the need for an early determination of such applications will place demands on the court ’s resources which it may be difficult to meet . But , as it seems to me , the court will be ready to meet those demands in order to ensure that the solicitor does obtain the effective protection which the LAW requires and which LAW was plainly intended to provide . ”

The applicant applied for leave to appeal to ORG . In her petition for leave to appeal , she identified as a matter of general public importance requiring examination by ORG the question whether the intervention provisions in LAW were compatible with the Convention . ORG refused the applicant ’s request for leave to appeal on CARDINAL DATE .

On DATE a second intervention was effected into the applicant ’s practice . Her ORG challenge in respect of that intervention was dismissed .

Disciplinary proceedings against the applicant before ORG followed . The case was heard on DATE and on DATE the findings of the tribunal resulted in the applicant being struck off as a solicitor .

ORG is the governing body of the solicitors’ profession . It has a regulatory function and regulatory powers under LAW DATE . Under LAW of LAW , ORG is given the power to intervene in a solicitor ’s practice in circumstances specified in Part I of Schedule CARDINAL to the LAW by exercising any or all of the powers set out in Part II of Schedule CARDINAL to the LAW .

Paragraph CARDINAL(CARDINAL ) of Part I to Schedule CARDINAL of the LAW provides that ORG may exercise its right of intervention inter alia where ORG have reason to suspect dishonesty on the part of a solicitor in connection with that solicitor ’s practice or in connection with any trust of which that solicitor is or formerly was a trustee ; or where the ORG are satisfied that a solicitor has failed to comply with LAW , LAW or rules requiring solicitors to hold professional indemnity insurance .

Paragraph CARDINAL(CARDINAL ) provides that the intervention powers shall only be exercisable in cases concerning a suspected breach of the solicitors’ rules if the ORG has given the solicitor notice in writing that the ORG are satisfied that he has failed to comply with rules specified in the notice and that the intervention powers are accordingly exercisable in his case .

Part II of Schedule CARDINAL sets out the powers available to ORG upon intervention . Under paragraph CARDINAL , ORG has the power to take control of the practice ’s accounts pursuant to a resolution passed by the ORG .

Under paragraph CARDINAL , ORG has the power to take possession and control of the firm ’s documents .

Paragraph CARDINAL allows ORG to intercept the firm ’s mail .

Finally , section CARDINAL of the DATE Act provides for the suspension of the solicitor ’s practice certificate in the event of an intervention .

The DATE Act allows an intervened - upon solicitor to apply to ORG to request the withdrawal of an intervention . Under paragraph CARDINAL ) of Schedule CARDINAL , a decision to take possession of the practice monies can be challenged within DATE of the service of the notice by application to ORG for an order directing ORG to withdraw the notice , with not less than TIME notice to FAC . Paragraph CARDINAL(CARDINAL ) provides that upon an application under paragraph CARDINAL ) , the ORG may make such order as it thinks fit .

Under paragraph CARDINAL(CARDINAL ) and ( CARDINAL ) , a solicitor can , within DATE of receiving the notice that ORG has taken possession of the firm ’s documents and on not QUANTITY notice to ORG , apply to ORG for an order directing that the documents be delivered to such person as the applicant may require . Paragraph CARDINAL ) provides that upon an application , the ORG may make such order as it thinks fit .

Under section CARDINAL(CARDINAL ) , a solicitor may , at any time before the expiry of her practising certificate , apply to ORG to have the suspension of the certificate terminated . Under LAW ) , upon receipt of an application :

“ ... the ORG may in its discretion—

( a ) by order terminate the suspension either unconditionally or subject to such conditions as the ORG may think fit ; or

( b ) refuse the application . ”

If ORG refuses the application or terminates the suspension subject to conditions , the solicitor may appeal against the decision of the ORG . At the relevant time , an appeal was to be made to the Master of the Rolls , who could , under section CARDINAL(CARDINAL ) :

“ ( a ) affirm the decision ; or

( b ) terminate the suspension either unconditionally or subject to such conditions as he may think fit . ”

NORP The Solicitors’ Accounts Rules govern the treatment of client and practice monies by solicitors . They set out a number of general principles , including that a solicitor must keep client money separate from money belonging to the solicitor or the practice ; keep client money safe in a bank or building society account identifiable as a client account ; establish and maintain proper accounting systems , and proper internal controls over those systems , to ensure compliance with the rules ; keep proper accounting records to show accurately the position with regard to the money held for each client and each controlled trust ; and account for interest on other people ’s money in accordance with the rules .

Detailed rules exist concerning bank accounts and require in particular that solicitors to keep CARDINAL client account for the holding of money belonging to clients . They define the circumstances in which transfers can be made from the client account to cover payment of the solicitors’ fees . The rules also provide that the client account must not be overdrawn and that interest must be allocated to monies held in client accounts . Finally , the rules impose strict accounting obligations on solicitors .

DATE . The Solicitors’ Practice Rules are the principal set of rules governing the practice of solicitors in GPE and GPE .

In the case of LAW Society ( [ DATE ] EWCA Civ DATE ) ORG considered an appeal by ORG against the grant of permission by ORG for an application for withdrawal of an intervention to go to trial on the basis that the intervention violated the claimant ’s rights under LAW No . CARDINAL .

ORG discussed the possibility of obtaining an injunction , noting :

“ CARDINAL . Where necessary the procedure can operate very quickly . By way of illustration , we were referred to CARDINAL case ( PERSON v. PERSON , DATE ) where the Judge gave a temporary injunction by telephone on DATE before the proposed intervention to enable the matter to be considered in ORG the following TIME . In another recent case to which I shall return ( PERSON v. PERSON , DATE ) , an interim injunction was granted to preserve the position pending the full hearing DATE . The Judge recorded the speed with which all the parties had worked , including the submission of skeleton arguments by e - mail over DATE . ”

In overturning the decision of ORG and restoring the order of the Master to dismiss the claim , ORG explained :

“ CARDINAL . Before the judge it was submitted by PERSON ( appearing then as now for Mr Holder ) that the intervention power , either generally or as applied in this case , infringed Mr PERSON ’s right to ‘ peaceful enjoyment of his possessions’ under article CARDINAL of the First Protocol to LAW , as applied by LAW DATE ...

“ CARDINAL . Mr Engelman referred to the principles laid down by the GPE court for the application of the public interest test : ‘ the court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual ’s fundamental rights’ ( PERSON and PERSON ( DATE ) CARDINAL EHRR CARDINAL , CARDINAL , para CARDINAL ) ; ‘ There must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised by any measure depriving a person of his possessions’ : Holy Monasteries v GPE ( DATE ) CARDINAL EHRR CARDINAL , DATE , para DATE . He submitted that if , as the judge found , the more draconian features of the intervention procedure were not ‘ ORG , the requirement of ‘ proportionality’ was not satisfied . ”

He continued :

“ CARDINAL . With respect to the submission , and to the judge , this approach ignores the ‘ all important’ factor , when considering issues of proportionality , of the ‘ margin of appreciation or discretion’ or ‘ area of judgment’ allowed to the legislator and the decision - maker ... This aspect was not mentioned by the judge , although it was referred to in Mr DATE written submissions to him . [ The judge ] appears to have approached the matter on the basis that it was for the court to determine what was ‘ ORG in the public interest , and in doing so to compare other possible procedures devised by the court . In my view , this was fundamentally wrong . ”

He concluded that the legislation itself and the approach taken by ORG and the courts in carrying out a balancing exercise was no different from the requirement in LAW No . CARDINAL that a fair balance be struck , noting :

“ DATE . In the present case , the ‘ ORG arises at CARDINAL stages : first , the discretion allowed to the legislature in establishing the statutory regime , and , secondly , the discretion of ORG as the body entrusted with the decision in an individual case . ( In the former case , the only remedy for exceeding the ‘ ORG may be a ‘ declaration of GPE under LAW . ) The intervention procedure , now contained in the Solicitors Act DATE , is long - established ( dating back to DATE , in its earliest form ) , and has been reviewed by the court on many occasions . As appears from the cases to which I have referred , it has been recognised as ‘ ORG in some respects , but necessary for the protection of the public interest ; and the courts have repeatedly emphasised the ‘ balancing exercise’ which it involves . I see no material difference between this and the ‘ fair ORG which LAW ... I see no arguable grounds for thinking that the margin allowed to the legislature has been crossed , particularly having regard to the deference which is properly paid to an ORG , as compared to an administrative decision ...

Having reached that point , ORG actions must be judged by reference to the procedure laid down by ORG , not to some hypothetical alternative procedure ...

ORG also has a ‘ margin of discretion’ , but the court has a separate duty to consider the merits of the case , in accordance with the principles I have discussed , while paying due regard ... to the views of ORG , as the relevant professional body . As I have said , this meets any ‘ fair balance’ requirement ... ”

Sir PERSON agreed that the appeal should be allowed , adding :

“ CARDINAL . In the exercise of its powers of intervention ORG must of course comply with LAW . I can imagine circumstances where ORG might be found not to have complied with the LAW , or with LAW DATE . After all , a solicitor whose practice is the object of an intervention loses his practising certificate , and in all probability his livelihood as well . The provisions for bringing an intervention to an end are very unlikely to restore the solicitor ’s goodwill and his prosperity . If it comes about that the intervention was mistaken or unjustified , there is a risk that the solicitor will suffer a substantial loss without recourse to any remedy . In practice this may never happen ; but it is a cause for concern . However , not in this case . ”


Violation of Art. 8;No violation of Art 13+8

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants were born in DATE and DATE respectively and live in PERSON . They are members of “ Lawyers for Human Rights ” , a PERSON - based non - governmental organisation specialised in the representation of applicants before the ORG .

According to the applicants , after the coming to power of ORG the number of violations of human rights increased considerably . In that context their organisation was created , whose sole purpose was the protection of human rights by assisting persons who sought to introduce applications with ORG .

As a result , the applicants considered that they had caused the Government serious harm in terms of damage to their image and financial loss as a result of the findings of violation in cases they had helped to bring before this ORG .

The applicants maintained that they ran a serious risk of having their telephones tapped as a result of their activity , due to the state of the legislation in force . They did not claim to have been victims of any specific interception of their communications , whether by telephone or post , and they had not instituted any domestic proceedings in that respect .

The Government disputed the allegation concerning the increase of the number of violations of human rights after ORG had won the elections .

On DATE CARDINAL of the applicants wrote to the President of ORG and asked for statistical information concerning , inter alia , the number of applications lodged by the investigating bodies with courts for interception of telephone conversations and the number of successful and unsuccessful applications .

In a letter of DATE the Head of ORG replied that in DATE of a total of CARDINAL applications for interception lodged , PERCENT had been successful ; in DATE of the CARDINAL applications lodged , PERCENT had been successful ; and in DATE of the CARDINAL applications lodged , PERCENT had been successful .

The Operational Investigative Activities Act of DATE reads as follows :

a ) revealing attempts to commit crime ; preventing , suppressing or discovering criminal offences and the persons who organise , commit or have already committed offences ; and ensuring compensation for damage caused by a criminal offence ;

b ) searching for persons who are evading the preliminary investigative authorities , the preliminary investigation or the court , or who are fleeing from a criminal sanction , or for persons who have disappeared ;

c ) collecting information on events or actions which endanger the ORG or the military , economic or environmental security of GPE .

( CARDINAL ) The LAW , the present PERSON and other regulations enacted in accordance with them constitute the legal basis for operational investigative activities .

( CARDINAL ) The authorities which are entitled to conduct operational investigative activities may issue , within the limits of their competence , in accordance with the law and with the consent of ORG and ORG , regulations governing the organisation , methods and tactics of carrying out operational investigative measures .

( CARDINAL ) Anyone who considers that the actions of the authority which has carried out investigative measures have infringed his or her rights and liberties may lodge a complaint with the hierarchically superior authority , ORG or the courts .

( CARDINAL ) NORP In order to ensure a full and thorough examination of the complaint lodged by a person against whom operational investigative measures have been applied without due grounds , the authorities which have applied such measures shall , at the request of the prosecutor , present the latter with a record of every operational action taken on duty . Data concerning persons who have confidentially contributed to the conduct of operational investigative measures shall be presented only at the request of ORG .

( CARDINAL ) Should the authority ( the official ) exercising the operational investigative activity have infringed the legitimate rights and interests of natural and legal persons , the hierarchically superior authority or prosecutor shall take measures restoring such legitimate rights and interests , and afford compensation for the damage caused , in accordance with the law .

( CARDINAL ) Operational investigative measures shall be carried out only in accordance with the law and only when it is otherwise impossible to achieve the aims provided for in section CARDINAL .

( CARDINAL ) For the purpose of accomplishing the stated aims , the authorities carrying out operational investigative measures are entitled , with due observance of the rules of secrecy , to : ...

( c ) intercept telephone and other conversations ; ...

The operational investigative measures provided for under ... , ( l ) , ... may be carried out only by ORG and ORG under the statutory conditions and only when such measures are necessary in the interests of national security , public order , the economic situation of the country , the maintenance of legal order and the prevention of offences , and the protection of health , morals , and the rights and interests of others . ... ”

In DATE this section was amended as follows ( amendment in bold ) :

( CARDINAL ) Operational investigative measures shall be carried out only in accordance with the law on criminal procedure and only when it is otherwise impossible to achieve the aims provided for in section CARDINAL .

The operational investigative measures provided for under ... , ( l ) , ... may be carried out only by ORG and ORG under the statutory conditions and only when such measures are necessary in the interests of national security , public order , the economic situation of the country , the maintenance of legal order and the prevention of very serious offences and the protection of health , morals , and the rights and interests of others . ... ”

The section was further amended in DATE and currently reads as follows ( amendment in bold ) :

The operational investigative measures provided for under ... , ( l ) , ... may be carried out only by ORG and ORG under the statutory conditions and only when such measures are necessary in the interests of national security , public order , the economic situation of the country , the maintenance of legal order and the prevention of serious , very serious and exceptionally serious offences , and the protection of health , morals , and the rights and interests of others . ... ”

Under LAW the serious offences are considered to be those offences which are punishable with imprisonment of DATE ; very serious offences are intentional offences punishable with imprisonment of DATE ; and exceptionally serious offences are those intentional offences punishable with life imprisonment . PERCENT of all offences provided for in the NORP Criminal Code fall into the category of serious , very serious and exceptionally serious offences .

“ ( CARDINAL ) The grounds for carrying out operational investigative activities are :

( a ) unclear circumstances concerning the institution of criminal proceedings ;

( b ) information of which the authority carrying out an operational investigative activity has become aware in connection with :

- an illegal act that is being prepared , committed or has already been committed , or persons who are preparing , committing or have already committed such an act , where the basis for instituting criminal proceedings is insufficient ;

- persons who are fleeing from a criminal investigation or the courts , or who are avoiding a criminal sanction ; ...

( c ) instructions given by a criminal investigator , investigative body , prosecutor or court in pending criminal cases ;

( d ) requests from the bodies carrying out an operational investigative activity based on the grounds provided for in the present section . ... ”

( CARDINAL ) The grounds for carrying out operational investigative activities are :

( c ) instructions given by an officer of criminal investigation , investigative body , prosecutor or court in pending criminal cases ;

( CARDINAL ) Operational investigative measures which infringe lawful rights - the secrecy of correspondence , telephone and other conversations , telegraphic communications , and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious offences or are committing or have already committed serious offences , and only with the authorisation of the prosecutor pursuant to a reasoned decision of one of the heads of the relevant authority . ...

( CARDINAL ) NORP In urgent cases where otherwise there would be a risk of commission of serious criminal offences , it shall be permitted , on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity , to carry out operational investigative measures . The prosecutor must be notified within TIME .

( CARDINAL ) Should danger to the life , health or property of certain persons become imminent , interception of their telephone conversations or other means of communication shall be permitted , following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity , and the prosecutor shall be notified . ”

In DATE this section was amended as follows ( amendment in bold ) :

( CARDINAL ) Operational investigative measures which infringe lawful rights - the secrecy of correspondence , telephone and other conversations , telegraphic communications , and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit very serious offences or are committing or have already committed very serious offences , and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority . ...

( CARDINAL ) NORP In urgent cases where otherwise there would be a risk of commission of serious criminal offences , it shall be permitted , on the basis of a reasoned conclusion of one of the heads of the authority carrying out the operational investigative activity , to carry out operational investigative measures . The investigating judge shall be informed within TIME . He shall be presented with the reasons and shall verify the legality of the measures taken .

( CARDINAL ) Should danger to the life , health or property of certain persons become imminent , interception of their telephone conversations or other means of communication shall be permitted , following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity , and the investigating judge shall give his authority . ”

The section received further amendments in DATE and currently reads as follows ( amendment in bold ) :

( CARDINAL ) Operational investigative measures which infringe lawful rights - the secrecy of correspondence , telephone and other conversations , telegraphic communications , and the inviolability of the home - shall be permitted only for the purpose of collecting information about persons who are preparing or attempting to commit serious , very serious and exceptionally serious offences or are committing or have already committed such offences , and only with the authorisation of the investigating judge pursuant to a reasoned decision of one of the heads of the relevant authority . ...

( CARDINAL ) Should danger to the life , health or property of certain persons become imminent , interception of their telephone conversations or other means of communication shall be permitted , following the request or written consent of such persons on the basis of a decision approved by the head of the authority carrying out the investigative activity , and the investigating judge shall give his authority . ...

( CARDINAL ) In cases envisaged under LAW , bodies exercising operational investigative activities are entitled to carry out operational control . A record must be kept of any measure of operational control .

( CARDINAL ) Operational control shall be carried out with the authorisation and under the supervision of the head of the body conducting it . The results of operational investigative measures applied shall be reflected in duly filed official operational documents . ...

( CARDINAL ) Official operational documents shall be submitted to the prosecutor in order to obtain approval for carrying out operational investigative measures .

( CARDINAL ) The operational control shall be suspended when the specific aims of the operational investigative activity set out in section CARDINAL are accomplished or when circumstances are established proving that it is objectively impossible to accomplish the aim . ”

In DATE paragraph CARDINAL of this section was repealed .

( CARDINAL ) The results of operational investigative activity may be used for preparing and carrying out criminal investigative activities and for carrying out operational investigative measures in order to prevent , stop or discover criminal offences , and as evidence in criminal cases .

( CARDINAL ) ORG obtained during operational control shall not constitute a reason for limiting the rights , liberties and legitimate interests of natural and legal persons .

( CARDINAL ) ORG about the persons , means , sources ( with the exception of the persons who may provide assistance to the authorities carrying out such measures ) , methods , plans and results of the operational investigative activity , and about the organisation and the tactics of carrying out the operational investigative measures which constitute State secrets , may be disclosed only in accordance with the conditions provided by law .

( CARDINAL ) Operational investigative activity shall be exercised by ORG , ORG , ORG , ORG , ORG attached to ORG and ORG attached to ORG . ...

Scrutiny , on behalf of ORG , of operational investigative activity shall be exercised by the relevant permanent parliamentary commissions . The authorities which exercise operational investigative activities shall submit information to these commissions in accordance with the law .

( CARDINAL ) Enforcement of the laws by the authorities carrying out operational investigative activities and the lawfulness of the decisions adopted by these authorities shall be supervised by ORG , his or her deputy , and the municipal and county prosecutors ... ”

On DATE ORG , ORG and ORG enacted special instructions in accordance with section CARDINAL ( CARDINAL ) of the above PERSON . The instructions regulated the co - operation between the intercepting bodies and the telephone operators . In particular it obliged the operators to co - operate with the intercepting bodies in order to facilitate the interception of telephone conversations and to provide them with all the necessary information and with unlimited access to their networks .

The Code of Criminal Procedure in force until DATE read as follows :

The interception of telephone conversations or other means of communication used by a suspect , defendant or other person involved in a criminal offence may be carried out in connection with criminal proceedings instituted in accordance with a decision of the authority conducting the preliminary investigation or the criminal investigator with the authorisation of the prosecutor , or in accordance with a court decision , where such a measure is deemed necessary in a NORP society in the interests of national security , public order , the economic welfare of the country , the maintenance of order and the prevention of crimes , or the protection of the health , morals , rights and liberties of others . The interception of telephone or other conversations may not last DATE . ... Conversations held over the telephone or other means of communication may be recorded .

The interception and recording of telephone conversations or other means of communication shall be carried out by the criminal investigator unless the task is entrusted to the authority in charge of the preliminary investigation . In this case , the criminal investigator shall draw up a warrant and a decision concerning the interception , which shall be sent to the authority in charge of the preliminary investigation . At the same time the criminal investigator shall liaise with the authority in charge of the preliminary investigation or specify in the warrant the circumstances and manner of interception of the conversations and recording , modification and disposal of the information obtained . ...

Following the interception and recording , a record shall be drawn up giving a summary of the content of the taped conversations relevant to the case . The tape shall be attached to the record and the part which does not relate to the case shall be destroyed once the judgment becomes final . ”

The Code of Criminal Procedure , in force after DATE , in so far as relevant , reads as follows :

The investigating judge ensures judicial supervision during the criminal prosecution by :

authorising the interception of communications , seizure of correspondence , video recordings ; ... ”

( CARDINAL ) The interception of communications ( telephone conversations , or communications by radio or using other technical means ) is carried out by the prosecution body on the basis of an authorisation issued by the investigating judge issued on the basis of a reasoned warrant of a prosecutor charged with the examination of very serious and exceptionally serious crimes .

( CARDINAL ) In case of urgency , when a delay in obtaining an authorisation as stipulated in paragraph ( CARDINAL ) could cause serious harm to the evidence - gathering procedure , the prosecutor may issue a reasoned warrant for the interception and recording of communications . She or he is obliged to inform the investigating judge about this immediately and TIME after issuing the warrant . The latter is required to take a decision within TIME regarding the warrant issued by the prosecutor . When she or he confirms it , she or he authorises the further interception if necessary . When he or she does not confirm it , she or he orders its immediate suspension and the destruction of records already made .

( CARDINAL ) The interception of communications may be carried out at the request of the victim of a crime , a witness and members of his / her family , in case of threats of violence , extortion or commission of other crimes affecting such parties , based on a reasoned warrant of the prosecutor .

( CARDINAL ) The interception of communications during a criminal investigation is authorised for a maximum of DATE . The interception may be extended on the same conditions if justified . Each extension can not however exceed DATE . The total duration can not exceed DATE . In any case , it can not last longer than the criminal prosecution .

( CARDINAL ) The interception of communications may be stopped before the end of the period for which it has been authorised , if the grounds initially justifying it no longer exist .

( CARDINAL ) During a criminal prosecution , after the end of an authorised interception , and after having asked the opinion of the prosecutor who supervises and carries out the criminal prosecution , the investigating judge shall inform in writing the persons whose conversations were intercepted and recorded . This shall be done within a reasonable time , and must be done before the termination of the criminal prosecution .

( CARDINAL ) The interception of communications is carried out by the criminal prosecution body . Persons whose responsibility is technically to facilitate the interception and recording of communications are obliged to preserve the secrecy of the procedure and the confidentiality of correspondence . They are liable in the event of a violation of their obligations under the provisions of articles CARDINAL and CARDINAL of LAW . A note must be made to the effect that they have been informed of these obligations .

( CARDINAL ) A record of the interceptions and recording carried out by the prosecution body must be drawn up in conformity with the provisions of articles CARDINAL and CARDINAL . It must record information about the authorisation given by the investigating judge , the intercepted telephone number or numbers and their addresses , together with details of the radio or other technical equipment used for conversations . The record must also indicate the name ( where known ) of the parties and the date and time of each separate conversation and the number assigned to the tape used for the recording .

( CARDINAL ) Recorded communications must be fully transcribed and annexed to the record along with the authorisation of the criminal prosecution body , after its verification and signature by the prosecutor carrying out or supervising the criminal prosecution . Communications in languages other than the CARDINAL in which the criminal prosecution is carried out shall be translated with the assistance of an interpreter . The tape containing the original recorded communications shall also be annexed to the record after having been sealed and after the stamp of the criminal investigation body has been applied .

( CARDINAL ) The tape of the recorded communications , the transcript and the records of the interception and recording of communications shall be handed over to the prosecutor within TIME . The prosecutor shall assess which parts of the collected information are important for the case in question and draw up a record in this regard .

( CARDINAL ) Original copies of the tapes along with the complete written transcript and copies of the records shall be handed over to the investigating judge who authorised interception of the communications for further storage in a special place in a sealed envelope .

( CARDINAL ) The court shall adopt a decision regarding the destruction of records which are not important for the criminal case . All the other records shall be kept up to the moment when the file is deposited in the archive .

Evidence collected under the provisions of articles CARDINAL and CARDINAL may be verified through technical expert examination by the court at the request of the parties or ex officio . ”

Under section CARDINAL(CARDINAL ) of LAW of DATE , a lawyer 's professional correspondence can be intercepted only under the conditions provided for by law . LAW ( CARDINAL ) provides that the confidentiality of a lawyer 's correspondence with his client is guaranteed and that such correspondence can not be intercepted .


Violation of Art. 6-1;Violation of Art. 6-2;No separate issue under Art. 10;Costs and expenses partial award - domestic proceedings;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

On DATE , at TIME , CARDINAL detective police officers left GPE in an unmarked police car escorting a post office van carrying significant sums of money on its way to LOC village , Co. PERSON . When the CARDINAL vehicles arrived at the post office in GPE , the police car was rammed from behind by a stolen vehicle and immediately surrounded by CARDINAL heavily armed and masked individuals dressed in paramilitary style uniforms . CARDINAL of the CARDINAL opened fire at point blank range on the police officers . CARDINAL of those officers died instantly and the other was seriously wounded .

The police suspected a local unit of ORG ( an unlawful paramilitary organisation known as the IRA ) and the IRA later claimed responsibility for the murder . It was also suspected by the police that , on TIME prior to the attack in GPE , the stolen vehicle together with all firearms and ammunition used in the attempted robbery had been stored in a safe house in ORG PERSON .

As part of the investigation that followed , a number of persons suspected of being members of the local unit of the IRA were arrested and charged , including the applicant ’s brother who was charged with conspiracy to commit robbery ( in relation to the ORG incident ) , possession of ammunition and of membership of the IRA . A total of CARDINAL persons were arrested and asked to account for their movements at particular times surrounding the attack , including the remaining members of the applicant ’s family except his CARDINAL sisters . All of those persons who were asked to account for their movements did so .

On DATE at TIME the applicant , who resided in the family home in PERSON , Co. PERSON , was arrested under section CARDINAL of the Offences Against LAW CARDINAL ( " LAW " ) on suspicion of being a member of the IRA contrary to section CARDINAL of LAW .

He was questioned on QUANTITY occasions during CARDINAL CARDINAL-hour consecutive periods of detention for which provision is made under LAW . While in detention , he saw his solicitor on CARDINAL occasions : TIME and TIME on DATE prior to his first interview with the police ; TIME and TIME on DATE and TIME and TIME on DATE . That solicitor did not attend the applicant ’s interviews with the police .

At the beginning of the interviews , the applicant was cautioned that he was not obliged to say anything , but that anything he did say would be taken down in writing and could be given in evidence . Many of the questions put to the applicant related to the attack in LOC and to his alleged membership of the IRA . On several occasions during those interviews he was also requested to account for his movements during certain periods of time on CARDINAL and DATE immediately before , during and after the incident in LOC . In being so requested , he was informed by the questioning police officers that a failure to provide this information would constitute an offence under LAW for which the potential penalty was CARDINAL months’ imprisonment . The applicant was also informed , on certain occasions only , that the initial caution given to him did not apply as he was obliged to respond under LAW .

The applicant denied any connection with the events in LOC , indicated that he was in GPE when he heard the news of the murder and otherwise refused to give an account of his movements stating , on CARDINAL occasion , that he had been advised by his solicitor not to answer questions .

On DATE he was charged , pursuant to section CARDINAL of LAW , on CARDINAL counts of refusing to give an account of his movements . On CARDINAL DATE ORG dismissed CARDINAL charge , he was convicted on the second charge ( a section CARDINAL request made on DATE ) and no ruling was made on the remaining charge . The applicant was sentenced to CARDINAL months’ imprisonment .

The applicant appealed against conviction and sentence to ORG and was released on bail pending the appeal . He appealed on the basis , inter alia , of an overlap in the times referred to in the charge which was dismissed and the charge on which he was convicted . In DATE ORG rejected this part of his appeal . When ORG sat on DATE to hear the applicant ’s submissions on sentence , he withdrew that portion of the appeal which was then struck out . The applicant was detained immediately to serve his prison sentence and was released on DATE .

In DATE the applicant ’s brother pleaded guilty to the charge of conspiracy to commit robbery and the remaining charges were not proceeded with . CARDINAL other men pleaded guilty to the manslaughter of the detective police officer and the wounding of his colleague in GPE , Co. PERSON .

Article CARDINAL ) of LAW provides that no person shall be tried on any criminal charge save in due course of law . By DATE , the ORG guarantees liberty for the exercise , subject to public order and morality , of the right of citizens to express freely their convictions and opinions .

The Offences Against LAW CARDINAL ( “ the LAW ” ) is described in its long ( explanatory ) title as an Act to make provision for actions and conduct calculated to undermine public order and the authority of the ORG and , for that purpose , to provide for the punishment of persons guilty of offences against the ORG , and to establish ORG .

Section CARDINAL of the CARDINAL Act makes it an offence to be a member of an unlawful organisation as defined in the LAW .

Section CARDINAL deals with the arrest and detention of suspected persons and provides that a member of the police can arrest and detain a person whom he suspects of having committed an offence under LAW or an offence scheduled under Part V of LAW ( the scheduled offences are mainly offences under the firearms and explosive substances’ legislation ) . This power of arrest is a permanent power so that it is not dependent on a section CARDINAL proclamation ( see the following paragraph ) .

Section CARDINAL of the CARDINAL LAW provides that Part V of that LAW ( which establishes ORG and contains section CARDINAL ) is to come into force by means of a proclamation by the Government made when the Government is satisfied that the ordinary courts are inadequate to secure the effective administration of justice and the preservation of public peace and order , and when the Government therefore makes and publishes a proclamation to that effect . The proclamation was made in DATE and is still in force . Accordingly , section CARDINAL of LAW has been in force since DATE to date .

By section QUANTITY Act the Government may declare that a particular class or kind of offence is a scheduled offence for the purpose of LAW and such offences are to be tried by ORG established under LAW .

Section CARDINAL of the DATE LAW as follows :

“ CARDINAL . Whenever a person is detained in custody under the provisions in that behalf contained in Part IV of this LAW , any member of the < police > may demand of such person , at any time while he is so detained , a full account of such person ’s movements and actions during any specified period and all information in his possession in relation to the commission or intended commission by another person of any offence under any section or sub - section of this LAW or any scheduled offence .

NORP If any person , of whom any such account or information as is mentioned in the foregoing sub - section of this section is demanded under that sub - section by a member of the < police > , fails or refuses to give to such member such account or any such information or gives to such member any account or information which is false or misleading , he shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months . ”

NORP Under the terms of the Good Friday Peace Agreement of DATE , the ORG committed to initiating a wide ranging review of , inter alia , LAW with a view to reform and dispensing with those elements of LAW which would no longer be required . The Minister for ORG , Equality and PERSON reform has , with Government approval , established a committee to examine all aspects of the Offences Against the State Acts and to report to the Minister with recommendations for reform . The ORG has commenced its work .

In the case of ORG ) v. PERSON ( DATE IR CARDINAL ) the accused had been arrested under section QUANTITY of the CARDINAL Act and had made certain statements to the police . The defence argued that because of the basis of his arrest ( section CARDINAL ) , the existence of section CARDINAL of LAW and even though no section CARDINAL requests had actually been made , the accused was bound under penalty to give an account of his movements . Accordingly , the statements which had been made by him were involuntary and not therefore admissible . The ORG did not find this argument persuasive since no section CARDINAL requests had in fact been made . It went to point out that , even if section CARDINAL had been invoked by the police , the defence submission was not well - founded because of previous NORP case - law which had held that statements obtained in accordance with NORP law , even a law which made it a criminal offence to refuse to answer , were not inadmissible in any legal proceedings .

The Garda Siochana ( police ) Handbook contains relevant legislation and commentaries and is published by ORG of Ireland in association with ORG . The commentary on section CARDINAL of LAW in the sixth edition ( DATE ) provides as follows :

“ The fact that the accused is bound under threat of penalty to answer questions lawfully put under section CARDINAL does not render the resultant answers or statements inadmissible in evidence ”

The judicial authority for that proposition was noted in the handbook as being found in the above - cited PERSON case and the earlier NORP case - law approved in the PERSON case .

In the case of PERSON and PERSON v. GPE and the Attorney General ( [ DATE ] CARDINAL NORP ) , CARDINAL individuals had been sentenced to CARDINAL months’ imprisonment pursuant to section CARDINAL of LAW for failing to give an account of their movements . ORG rejected their challenge to the constitutionality of section CARDINAL , considering that section CARDINAL constituted a proportionate interference with those ORG right to silence guaranteed by LAW : the objective was to assist police investigations into serious crimes of a subversive nature involving the security of the ORG ; the restrictions were not considered arbitrary or irrational ; and other legal protections were available to persons in custody under section CARDINAL of the CARDINAL LAW which minimised the risk of an accused wrongfully confessing to a crime and safeguarded against the possible abuse of the powers provided by LAW .

Those protections were listed by ORG : the requirement that a police officer must have a bona fide suspicion prior to arrest ; the obligatory informing of the suspect of the offences under LAW and/or of the scheduled offences of which he is suspected ; the right to legal assistance when reasonably requested ; the right to medical assistance ; the right of access to court ; the right to remain silent and to be told of that right ; the obligations to provide appropriate cautions to detainees and to abstain from cross - examining a person in detention DATE Act and from unfair and oppressive questioning of such detainees ; and the conditions attaching to any extension of the length of detention under LAW .

ORG rejected the appeal ( PERSON and PERSON v. GPE and the Attorney General [ DATE ] FAC ) . It noted that section CARDINAL of the CARDINAL Act was silent on the question of the later use of statements made pursuant to requests of the police under that section . While it noted that ORG had suggested in the above - cited PERSON case that information lawfully obtained under LAW might be later used in evidence , ORG expressly reserved its position as to whether that view was correct or not .

ORG pointed out that the right to silence was a corollary to the freedom of expression guaranteed by LAW . The relevant assessment was , therefore , to consider the proportionality of the restriction on the right to silence in view of the public order exception to LAW . It noted that LAW was aimed at actions and conduct calculated to undermine public order and the authority of the ORG and that the proclamation made under LAW remained in force .

As to whether section CARDINAL restricted the right to silence more than was necessary in light of the disorder against which the ORG was attempting to protect the public , the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish , nevertheless , to take a stand on grounds of principle and to assert his or her constitutional rights . However , it considered that the entitlement of citizens to take such a stand must yield to the right of the ORG to protect itself . The entitlement of those , with something relevant to disclose concerning the commission of a crime , to remain silent must be regarded as of an even lesser order .

In the case of ORG ( In the matter of ORG and LAW DATE , DATE CARDINAL ILRM CARDINAL , at CARDINAL ) ORG found that a confession of a bank official obtained by ORG as a result of the exercise by them of their powers under LAW of LAW DATE would not , in general , be admissible at a subsequent criminal trial of that official unless , in any particular case , the trial judge was satisfied that the confession was voluntary . ORG considered that compelling a person to confess and then convicting that person on the basis of the compelled confession would be contrary to LAW . That court also found that any other evidence obtained as a result of information provided under LAW would be admitted in evidence in a subsequent trial if the trial judge considered , in all the circumstances , that it would be just and fair to admit it .