REGINA
v.
KHAN
(APPELLANT)
(ON APPEAL FROM THE COURT OF APPEAL
(CRIMINAL DIVISION))
ON 2 JULY 1996
Lord Keith of Kinkel
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Nolan
Lord Nicholls of Birkenhead
LORD KEITH OF KINKEL
My Lords,
For the reasons given in the speech to be delivered by my noble and
learned friend Lord Nolan, which I have read in draft and with which I agree.
I would dismiss this appeal.
LORD BROWNE-WILKINSON
My Lords,
I have had the advantage of reading in draft the speech of my noble
and learned friend Lord Nolan. Subject to one caveat, I agree that the appeal
should be dismissed for the reasons which he gives.
It is not necessary in the present case for your Lordships to decide
whether the law of England recognises a right of privacy and, if so. whether
the use by the police in the present case of a listening device constituted a
breach of such right. Whether or not such a right of privacy exists is
currently a matter of considerable public debate and one of great importance.
This country is a party to the European Convention for the Protection of
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Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), article 8 of
which provides for a right of privacy but always subject to certain exceptions.
Further, article 13 of the Convention requires that the law of this country
must provide an effective remedy for any breach of article 8. In the
circumstances, the question whether English law recognises a right of privacy,
and if so what are the limitations of such right, is likely to come before your
Lordships for decision in the future. Until then I prefer to express no view
on the question.
In the present case, as Lord Nolan demonstrates, even if there was an
infringement of a right of privacy the decision in Reg. v. Sang [1980] A.C.
402 shows that the evidence so obtained would be admissible. Moreover the
judge, in exercising his discretion under section 78 of the Police and Criminal
Evidence Act 1984, properly took into consideration any possible breach of
article 8. Therefore there is no need to decide whether or not there is a right
of privacy in the present case.
LORD SLYNN OF HADLEY
My Lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend Lord Nolan. I do not repeat his analysis of the facts
and issues involved and I state my own view briefly.
In the present case there were two separate acts which it is said
constitute invasions of privacy, one in fixing the device to the wall of the flat
of the occupier who is not the appellant and the other to record what the
appellant said. The justification for these two acts was said to be the need to
detect and obtain evidence to support a conviction for a very serious crime.
Whether or not a right of privacy does or should exist and in what
circumstances is obviously a question of major importance but it became plain
during the hearing of this appeal that the existence of a right of privacy was
not the key issue and that it was really unnecessary to decide it. The key
issue was whether, assuming that there was here a breach of a right to privacy
which could not be justified, the evidence of what the appellant said was
admissible. On the basis of Reg. v. Sang [1980] AC 402 the evidence was
admissible and I have not been persuaded that we should depart from Sang in
the present case.
But the question has also been raised as to whether in exercising his
discretion under section 78 of the Police and Criminal Evidence Act 1984 as
to whether the evidence should be admitted a judge can have regard to articles
6 and 8 of the European Convention on Human Rights and their application
by the Court of Human Rights. In my view he can even if the Convention is
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not binding on him as a matter of domestic law. On that basis it seems to me
that it is relevant to note that in Schenk v. Switzerland (1988) 13 E.H.R.R.
242 where both articles 6 and 8 were in issue the European Court of Human
Rights attached primary importance to the question whether the admission of
evidence alleged to have been improperly obtained constituted a violation of
the right to a fair trial under article 6. They did not decide that evidence
improperly obtained was always admissible but that the right approach was to
consider whether the trial as a whole was fair having regard to the admission
of the evidence. They said that the rights of the defence in that case were not
disregarded and they added at paragraph 47: (p. 266)
“The applicant was not unaware that the recording complained of was
unlawful because it had not been ordered by the competent judge. He
had the opportunity – which he took – of challenging its authenticity
and opposing its use, having initially agreed that it should be heard.
The fact that his attempts were unsuccessful makes no difference.”
There are differences between that case and the present one but the
essential thrust of that judgment is pertinent to the present case. I do not
consider, looking at the matter in the round, that there was here a breach of
a right to a fair trial based on an analogy with article 6 of the Convention.
Like Lord Nolan I would accordingly dismiss the appeal.
Though I have no doubt in this case that the Chief Constable exercised
his discretion fairly and bona fide I consider that fairness both to accused
persons and to those who have to exercise this discretion make it highly
desirable that such interceptions should be governed by legislation.
LORD NOLAN
My Lords,
On 17 September 1992 the appellant arrived at Manchester Airport on
a flight from Pakistan. On the same flight was his cousin, Farooq Nawab.
Both men were stopped and searched by customs officials. Nawab was found
to be in possession of heroin with a street value of almost £100,000. He was
interviewed, and then arrested and charged. No drugs were found on the
appellant. He, too, was interviewed, but made no admissions. He was
released without charge.
On 26 January 1993 the appellant went to an address in Sheffield, the
home of a man named Bashforth, on the outside of which a listening device
had been installed by the South Yorkshire Police. Neither the appellant nor
Mr. Bashforth were aware of its presence. By means of that device, the
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police obtained a tape recording of a conversation which took place between
Mr. Bashforth, the appellant and others. In the course of the conversation,
the appellant made statements which amounted to an admission that he was a
party to the importation of drugs by Nawab on 17 September 1992.
As a result, the appellant was arrested on 11 February 1993. Again,
he made no admissions when interviewed, but subsequently he and Nawab
were jointly charged with offences under the Customs and Excise Management
Act 1979 and the Misuse of Drugs Act 1971. They were committed for trial
at the Sheffield Crown Court.
At the trial it was admitted on behalf of the appellant that he had been
present at the Sheffield address and that his voice was one of those recorded
on the tape. It was admitted on behalf of the Crown that the attachment of the
listening device had involved a civil trespass, and had occasioned some
damage to the property. Thereupon, the judge conducted a hearing on the
voir dire as to the admissibility in evidence of the conversation recorded on
the tape. The Crown accepted that without it there was no case against the
appellant.
The judge ruled that the evidence was admissible. Following an
amendment to the indictment, the appellant was re-arraigned and pleaded
guilty to being knowingly concerned in the fraudulent evasion of the
prohibition on the importation of heroin. He was sentenced to three years
imprisonment. It was made clear that his plea of guilty was tendered only on
the basis of the judge’s ruling, and that he reserved the right to challenge that
ruling.
His appeal to the Court of Appeal was dismissed on 27 May 1994 but
the Court certified the following question as being one of general public
importance:
“Whether in a criminal trial evidence as to the terms of tape recorded
conversations obtained by means of an electronic listening device
attached by the police to a private house without the knowledge of the
owners or occupiers was admissible against the defendant.”
It became clear in the course of argument, however, that this question
raised two separate issues, the first being whether the evidence was admissible
at all, and the second whether, if admissible, it should none the less have been
excluded by the Judge in the exercise of his discretion at common law or
under the powers conferred upon him by section 78 of the Police and Criminal
Evidence Act 1984. That is how the matter had been approached both by the
Judge and by the Court of Appeal. But although the issues are separate, the
focal point of the appellant’s case upon each of them was the fact that there
is no legal framework regulating the installation and use by the police of
covert listening devices. This is in contrast to the use of such devices by the
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Security Service which has been regulated by statute since 1989 under the
Security Service Act of that year.
That is a matter to which I shall return. It should not be assumed,
however, that the use by the police of such devices is wholly arbitrary and
undisciplined. They are the subject of guidelines which were issued to police
authorities by the Home Office in 1984, entitled “Guidelines on the use of
Equipment in Police Surveillance Operations.” They are also dealt with in
standing orders issued by the South Yorkshire Police, but it is unnecessary to
refer to these since they do not differ materially from the Home Office
guidelines.
The guidelines amount to a detailed and comprehensive code restricting
the authorised use of the devices in question. For present purposes it is, I
think, sufficient to quote paragraphs 4, 5 and 6 which read as follows:
“4. In each case in which the covert use of a listening device is
requested the authorising officer should satisfy himself that the
following criteria are met: a) the investigation concerns serious
crime . . . ; b) normal methods of investigation must have been tried
and failed, or must, from the nature of things, be unlikely to succeed
if tried; c) there must be good reason to think that use of the
equipment would be likely to lead to an arrest and a conviction, or
where appropriate, to the prevention of acts of terrorism; d) use of
equipment must be operationally feasible.
“5. In judging how far the seriousness of the crime under
investigation justifies the use of particular surveillance techniques,
authorising officers should satisfy themselves that the degree of
intrusion into the privacy of those affected by the surveillance is
commensurate with the seriousness of the offence. Where the targets
of surveillance might reasonably assume a high degree of privacy, for
instance in their homes, listening devices should be used only for the
investigation of major organised conspiracies and of other particularly
serious offences, especially crimes of violence.
“6. The covert use in operations of listening, recording and
transmitting equipment (for example microphones, tape recorders and
tracking equipment) requires the personal authority of the chief
officer.”
In certain circumstances, which do not exist in the present case, this
authority may be delegated to an assistant chief constable. As appears from
the facts found by the Judge, after the hearing on the voir dire, the installation
of the listening device in Mr. Bashforth’s premises was authorised by the
Chief Constable of South Yorkshire on the grounds that there was good reason
to suppose that Mr. Bashforth was dealing in heroin, but that conventional
methods of surveillance were unlikely to provide proof that he was doing so.
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No suggestion was made in Your Lordships’ House that the South Yorkshire
Police had operated otherwise than in accordance with the Home Office
guidelines.
Even so, it was argued for the appellant, the evidence was
unacceptable in principle and should not be admitted. Private conversations
on private property of a kind which could not be overheard save by means of
listening devices should be inviolate save where intrusion upon them was
authorised by law. The procedure adopted in the present case should not be
accepted as a means of obtaining evidence, the more so in a case, such as the
present, where it involved trespass and, at least arguably, criminal damage to
property.
Mr. Muller Q.C., representing the appellant, likened the case of a
private conversation conducted in a private house to that of a private telephone
conversation by means of the public telecommunications system. The
interception of the latter was strictly regulated by the provisions of the
Interception of Communications Act 1985. This Act had been passed as a
result of the decision of the European Court of Human Rights in Malone v.
United Kingdom (1984) 7 E.H.R.R. 14. In that case, the applicant’s
telephone calls and correspondence had been intercepted by the police. The
interception had been carried out pursuant to a warrant issued by the Home
Secretary, but there was no authority in statute or common law for such a
warrant. The applicant had brought civil proceedings against the police in the
High Court, but without success. Megarry J. concluded, after an extensive
review of the authorities, that the applicant had no right of action against the
police under English law: Malone v. Metropolitan Police Commissioner
[1979] Ch 344. In the course of his judgment, however, Megarry J.
commented (p. 380E-H) that telephone tapping was a subject which cried out
for legislation, and that the requirements of the European Convention for the
Protection of Human Rights and Fundamental Freedoms (1953) should provide
a spur to action.
These comments were resoundingly echoed by the European Court of
Human Rights. The Court held that the tapping of the applicant’s telephone
amounted to a breach of his rights under article 8 of the Convention. That
article provides as follows:
“1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic wellbeing of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.”
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At paragraph 66 of its judgment (pp. 39-40) the Court held that article
8.2. imposed requirements over and above compliance with the domestic law.
These included the requirement that the law must be adequately accessible.
At paragraph 67 the court added (pp. 40-41) that
“… the law must be sufficiently clear in its terms to give citizens an
adequate indication as to the circumstances in which and the conditions
on which public authorities are empowered to resort to the secret and
potentially dangerous interference with the right to respect for private
life and correspondence.”
Mr. Mulier contended that in the present case there had been
interception which was not in accordance with the law and further that there
had been a breach of the requirement of accessibility to information about the
conditions in which it took place. The Home Office circular was placed in the
library of the House of Commons, but knowledge of its terms was not
available to the general public.
Reverting to the Interception of Communications Act 1985, Mr. Muller
pointed out that the use in evidence of material obtained by the interception
of communications was expressly forbidden by section 9. He added that there
had evidently been a similar restriction on material obtained by the use of
surveillance devices in the years prior to 1984. He referred us in this
connection to a Home Office letter dated 1 July 1977, addressed to chief
constables, which appears to have been the precursor to the 1984 guidelines,
and which stated that “the primary purpose of using equipment for aural or
visual surveillance should be to help confirm or dispel a suspicion of serious
crime, and not to collect evidence (except where, as in blackmail, the spoken
word is the kernel of the offence).” This is to be contrasted with the opening
sentence of paragraph 10 of the 1984 guidelines which reads
“It is accepted that there may be circumstances in which material
obtained through the use of equipment by the police for surveillance
as a necessary part of a criminal investigation could appropriately be
used in evidence at subsequent court proceedings. …”
In Reg. v. Preston [1994] 2 A.C. 130, 148 Lord Mustill. referring to
paragraph 10, had said that this departure from previous practice was itself
contradicted a few weeks later by the Home Office White Paper. The
Interception of Communication in the United Kingdom (Cmnd. 9438) designed
to lay the ground for the Bill which became the Interception of
Communications Act 1985. Paragraph 12(f) of the White Paper had stated
that
“The Bill will provide for controls over the use of intercepted material.
By making such material generally inadmissible in legal proceedings
it will ensure that interception can be used only as an aspect of
investigation, not of prosecution.”
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It is true that the Home Office guidelines were concerned with aural
and visual surveillance devices whereas the 1985 Act is concerned with
telephone tapping and the interception of postal communications, but it is
difficult to see why different rules should apply to the admissibility of
evidence gained from these sources. The difficulty is compounded by the
provisions of the Intelligence Services Act 1994 which govern the activities
of the Secret Intelligence Service, the Government Communications
Headquarters and the Security Service. One of the effects of section 2(2)(a)
and section 5(4) of the Act is that information obtained by the Secret
Intelligence Service or the Security Service through the use of listening
devices may be disclosed not only for the purpose of preventing or detecting
serious crime but also for the purpose of any criminal proceedings.
Finally, Mr. Muller turned to the decision of Your Lordships’ House
in Reg. v. Sang [1980] AC 402. That decision is, of course, authority for
the proposition that a judge has no discretion to refuse to admit relevant
evidence on the ground that it was obtained by improper or unfair means.
Lord Diplock said, at p. 437:
“(1) A trial judge in a criminal trial has always a discretion to refuse
to admit evidence if in his opinion its prejudicial effect outweighs its
probative value. (2) Save with regard to admissions and confessions
and generally with regard to evidence obtained from the accused after
commission of the offence, he has no discretion to refuse to admit
relevant admissible evidence on the ground that it was obtained by
improper or unfair means. The court is not concerned with how it was
obtained.”
As to this, Mr. Muller submitted firstly that the general rule in Sang
did not apply to the evidence with which the present case was concerned
because that evidence fell within the category of admissions, confessions, and
other evidence obtained from the accused after commission of the offence.
In my judgment, this submission has no force. It is clear from an earlier
passage in the speech of Lord Diplock, at p. 436B, that the exceptional
category which he had in mind consisted of
“evidence tantamount to a self-incriminatory admission which was
obtained from the defendant, after the offence had been committed, by
means which would justify a judge in excluding an actual confession
which had the like self-incriminating effect.”
He continued, at p. 436c
“My Lords, I propose to exclude, as the certified question does,
detailed consideration of the role of the trial judge in relation to
confessions and evidence obtained from the defendant after commission
of the offence that is tantamount to a confession. It has a long history
dating back to the days before the existence of a disciplined police
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force, when a prisoner on a charge of felony could not be represented
by counsel and was not entitled to give evidence in his own defence
either to deny that he had made the confession, which was generally
oral, or to deny that its contents were true. The underlying rationale
of this branch of the criminal law, though it may originally have been
based upon ensuring the reliability of confessions is, in my view, now
to be found in the maxim nemo debet prodere se ipsum, no one can be
required to be his own betrayer or in its popular English mistranslation
‘the right to silence’. That is why there is no discretion to exclude
evidence discovered as the result of an illegal search but there is
discretion to exclude evidence which the accused has been induced to
produce voluntarily if the method of inducement was unfair.”
In the present case, I would regard it as a misuse of language to
describe the appellant as having been “induced” to make the admissions which
were recorded on the tape. He was under no inducement to do so. But if this
be too narrow a view, the only result would be to bring into play the judge’s
discretion as to whether or not the evidence should in fairness be admitted.
It would not make the evidence intrinsically inadmissible.
Secondly Mr. Muller submitted that the rule in Reg v. Sang [1980]
A.C. 402 must be taken to have been modified by the enactment of section 9
of the Interception of Communications Act 1985, prohibiting the admission of
what would otherwise be admissible evidence. This too appears to me to be,
with respect, a wholly unsustainable submission. If we were to have regard
to the provisions of the Act of 1985 which prohibit the admission of evidence
obtained by comparable means to those used in the present case why should
we not also have regard to the provisions of the Intelligence Services Act 1994
which authorise the admission of evidence obtained by identical means? I am
satisfied, for my part, that neither of these statutes should be regarded as
affecting the common law principles laid down by your Lordships’ House in
Reg. v. Sang.
In truth, in the light of Reg. v. Sang, the argument that the evidence
of the taped conversation is inadmissible could only be sustained if two wholly
new principles were formulated in our law. The first would be that the
appellant enjoyed a right of privacy, in terms similar to those of article 8 of
the Convention, in respect of the taped conversation. The second, which is
different though related, is that evidence of the conversation obtained in
breach of that right is inadmissible. The objection to the first of these
propositions is that there is no such right of privacy in English law. The
objection to the second is that even if there were such a right the decision of
Your Lordships’ House in Reg. v. Sang and the many decisions which have
followed it make it plain that as a matter of English law evidence which is
obtained improperly or even unlawfully remains admissible, subject to the
power of the trial judge to exclude it in the exercise of his common law
discretion or under the provisions of section 78 of the Police and Criminal
Evidence Act 1984.
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If evidence obtained by way of entrapment is admissible, then a fortiori
there can hardly be a fundamental objection to the admission of evidence
obtained in breach of privacy. In Reg. v. Sang itself, at pp. 429-430,
Lord Diplock noted that if evidence obtained by entrapment were inadmissible
this would have the effect of establishing entrapment as a defence to a
criminal charge. By parity of reasoning, if evidence obtained by a breach of
privacy were inadmissible then privacy too would become a defence to a
criminal charge where the substance of the charge consisted of acts done or
words spoken in private. Such a proposition does not bear serious
examination.
I conclude, therefore, that the appellant fails upon the first issue. The
evidence of the taped conversation was clearly admissible as a matter of law.
I turn, then, to the second issue, namely whether the judge should
nevertheless have excluded it in the exercise of his common law discretion or
under the powers conferred upon him by section 78. The only element of the
common law discretion which is relevant for present purposes is that part of
it which authorises the judge “to exclude evidence if it is necessary in order
to secure a fair trial for the accused”, as Lord Griffiths put it in Scott v. The
Queen, Barnes v. The Queen [1989] A.C. 1242, 1256. It is therefore
unnecessary to consider the common law position separately from that which
arises under section 78, I would respectfully agree with Lord Taylor of
Gosforth C.J. that the power conferred by section 78 to exclude evidence in
the interests of a fair trial is at least as wide as that conferred by the common
law.
I hope that I do not unduly condense the case put forward by
Mr. Muller if I say that, whereas his submissions upon the first issue placed
indirect reliance upon article 8 of the Convention, his submissions upon the
second issue were based directly and almost exclusively upon the terms of that
article read with section 78. In considering the second issue I have been
much assisted by the written submission put forward with the consent of Your
Lordships’ House and of the parties by the National Council for Civil
Liberties (“Liberty”). As Liberty has observed, this case raises for the first
time the question whether a criminal court, in considering its power under
section 78 of the Police and Criminal Evidence Act 1984, is required to have
regard to the European Convention and the jurisprudence of the European
Court of Human Rights, and if so whether a violation of the Convention is to
be regarded per se as a ground for excluding otherwise admissible evidence.
I take first the submissions on this question which were put forward by
Mr. Muller on behalf of the appellant. He referred to the full terms of section
78(1), which reads as follows
“In any proceedings the court may refuse to allow evidence on which
the prosecution proposes to rely to be given if it appears to the court
that, having regard to all the circumstances, including the
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circumstances in which the evidence was obtained, the admission of
the evidence would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it.”
The appellant contends that these words plainly require the court, in
considering whether or not to allow the relevant evidence, to have regard to
“all the circumstances, including the circumstances in which the evidence was
obtained.” If the circumstances in which the evidence was obtained amounted
to an apparent invasion of the appellant’s rights of privacy under article 8, that
is accordingly something to which the court must have regard. The only
remaining question is whether the evidence which was obtained in such
circumstances would have such an adverse effect on the fairness of the
proceedings that the court ought not to admit it. As to that, the appellant
submits that since the proceedings themselves are only possible because of the
improper conduct of the executive, the court should conclude that the
admission of evidence obtained in these circumstances would have such an
adverse effect on the fairness of the proceedings that the court ought not to
admit it.
The argument put forward by Liberty similarly started from the
premise that the duty of the court under section 78 to have regard to the
circumstances in which the evidence was obtained necessarily included a duty
to have regard to the fact that the evidence was apparently obtained in
circumstances which amounted to a breach of the provisions of article 8. As
a result, the appellant was entitled to invoke article 13 of the Convention
which provides
“Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national authority
In Reg. v. Secretary’ of State for the Home Department, Ex parte Brind
[1991] 1 AC 696, 747 Lord Bridge of Harwich had accepted that
“The United Kingdom is obliged to secure the rights which the
Convention guarantees, including … the right under article 13 to an
effective remedy for any violation.”
But the remedy which article 13 required, according to the submissions of
Liberty, need not go so far as to exclude evidence obtained in breach of
article 8. It is sufficient if the national law provides an effective means of
reviewing the admissibility of the evidence in the light of the provisions of
article 8. Section 78 provides for just such a review, and therefore satisfies
the requirements of article 13.
In the present case the trial judge had substantially followed the view
of the law advocated by Liberty. He had accepted that there was at any rate
an arguable breach of article 8, but had concluded that neither this nor any of
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the other circumstances of the case required the exclusion of the taped
evidence. In the Court of Appeal, however, Lord Taylor of Gosforth C.J.
[1995] Q.B. 27, 40 had expressed himself somewhat differently. He said
“As to the argument based on article 8 of the European Convention on
Human Rights, counsel for the Crown rightly pointed out that it is not
(as yet) part of the law of the United Kingdom since it has not been
enacted into our statutory law. He referred to Chundawadra v.
Immigration Appeal Tribunal [1988] Imm. A.R. 161 and Pan-
American World Airways Inc v. Department of Trade [1976] 1 Lloyd’s
Rep. 257. From these authorities it is clear that it is permissible to
have regard to the Convention, which is of persuasive assistance, in
cases of ambiguity or doubt. In the circumstances of the present case
the position is neither ambiguous nor doubtful: nor is it incumbent on
us to consider whether there was a breach of article 8, and we do not
propose to do so.”
Both Liberty and the respondent have taken these words as amounting
to an assertion that article 8 is irrelevant to a court’s exercise of its powers
under section 78. On that basis, say Liberty, the Lord Chief Justice has fallen
into error. If article 8 were irrelevant to the exercise of the section 78 power,
then that power could not amount to an effective remedy for the purposes of
article 13. The respondent, on the other hand, argues that the Lord Chief
Justice was quite right to regard the Convention as irrelevant. In my
judgment, both of these arguments proceed on a fallacious assumption. The
Lord Chief Justice did not describe article 8 as “irrelevant” On the contrary
he referred to it twice in the paragraph of his judgment immediately following
that which I have quoted, and in which he sets out the ratio of the decision of
the Court of Appeal. In the passage which I have quoted the Lord Chief
Justice as I understand him was saying simply that article 8 forms no part of
our law, that this was not a case of ambiguity or doubt in which it could be
invoked as an aid to construction, and that it was no part of the function of the
Court of Appeal to consider whether there was a breach of the article. The
question whether there was a breach, and if so what the consequences should
be, is solely one for the European Court of Human Rights.
That is not to say that the principles reflected in the Convention on
Human Rights are irrelevant to the exercise of the section 78 power. They
could hardly be irrelevant, because they embody so many of the familiar
principles of our own law and of our concept of justice. In particular, of
course, they assert the right of the individual to a fair trial, that is to say, in
the words of article 6.1. “a fair and public hearing within a reasonable time
by an independent and impartial tribunal established by law.”
My Lords, I think it is of interest in the present case that the appellant
makes no complaint of an infringement of his rights under article 6.1. I also
note with interest the decision of the European Court of Human Rights in
Schenk v. Switzerland (1988) 13 E.H.R.R 242. In that case the applicant had
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complained that the making and use as evidence against him of an unlawfully
obtained recording of a telephone conversation violated his right to a fair trial
under article 6 and his right to confidentiality of telephone communications
under article 8. Rejecting the complaint under article 6 the Court said this,
at paragraphs 46 and 47 (pp. 265-266) of its judgment:
“46. While article 6 of the Convention guarantees the right to a fair
trial, it does not lay down any rules on the admissibility of
evidence as such, which is therefore primarily a matter for
regulation under national law.
The Court therefore cannot exclude (sic) as a matter of
principle and in the abstract that unlawfully obtained evidence
of the present kind may be admissible. It has only to ascertain
whether Mr. Schenk’s trial as a whole was fair.
“47. Like the Commission it notes first of all that the rights of the
defence were not disregarded.
The applicant was not unaware that the recording complained
of was unlawful because it had not been ordered by the
competent judge. He had the opportunity – which he took – of
challenging its authenticity and opposing its use, having
initially agreed that it should be heard. The fact that his
attempts were unsuccessful makes no difference.”
The Court went on to hold at paragraph 53 (p. 268) of its judgment
that it was not necessary to consider the complaint under article 8 “as the
issue is subsumed under the question (already dealt with from the point of
view of article 6) of the use made of the cassette during the judicial
investigation and the trial.”
The submission put forward on behalf of Liberty suggests that the
European Court of Human Rights would not necessarily have reached the
same conclusion under article 6 in the circumstances of the present case,
firstly because in the present case (unlike Schenk) there was no evidence
against the accused other than the tape-recorded conversation and secondly
because whilst the interception in Schenk was conceded by the Swiss
government to have been in breach of domestic law safeguards, in the present
case there are no domestic law safeguards and for that reason the breach is
arguably of a more fundamental character. I would, for my part, find it
difficult to attach very great significance to either of these distinguishing
features, but in any event we are not concerned with the view which the
European Court of Human Rights might have taken of the facts of the present
case. Its decision is no more a part of our law than the Convention itself.
What is significant to my mind is the Court’s acceptance of the proposition
that the admissibility of evidence is primarily a matter for regulation under
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national law. and its rejection of the proposition that unlawfully obtained
evidence is necessarily inadmissible.
Further, it is to be noted in this connection that although the recording
of the relevant conversation in the present case was achieved by means of a
civil trespass and, on the face of it, criminal damage to property, Mr. Muller
accepted at the outset that these matters were not fundamental to his argument.
His submissions would have been essentially the same if the surveillance
device had been lawfully positioned outside the premises, or, for that matter,
if the conversation had been overheard by a police officer with exceptionally
acute hearing listening from outside the window.
This brings one back to the fact that, under English law, there is in
general nothing unlawful about a breach of privacy. The appellant’s case rests
wholly upon the lack of statutory authorization for the particular breach of
privacy which occurred in the present case, and the consequent infringement,
as the appellant submits, of article 8.
My Lords, I am satisfied, for my part, that in these circumstances the
appellant can no more succeed upon the second issue than upon the first. I
am prepared to accept that if evidence has been obtained in circumstances
which involve an apparent breach of article 8, or, for that matter an apparent
breach of the law of a foreign country, that is a matter which may be relevant
to the exercise of the section 78 power. This does not mean that the trial
judge is obliged to decide whether or not there has been a breach of the
Convention or of the foreign law. That is not his function, and it would be
inappropriate for him to do so. By the same token, it would have been
inappropriate for the judge in the present case to have decided whether the
admitted damage caused by the police to Mr. Bashforth’s property amounted
to a criminal offence under section 1 of the Criminal Damage Act 1971. But
if the behaviour of the police in the particular case amounts to an apparent or
probable breach of some relevant law or convention, common sense dictates
that this is a consideration which may be taken into account for what it is
worth. Its significance, however, will normally be determined not so much
by its apparent unlawfulness or irregularity as upon its effect, taken as a
whole, upon the fairness or unfairness of the proceedings. The fact that the
behaviour in question constitutes a breach of the convention or of a foreign
law can plainly be of no greater significance per se than if it constituted a
breach of English law. Upon the facts of the present case, in agreement with
the Court of Appeal, I consider that the judge was fully entitled to hold that
the circumstances in which the relevant evidence was obtained, even if they
constituted a breach of article 8, were not such as to require the exclusion of
the evidence.
I confess that I have reached this conclusion not only quite firmly as
a matter of law, but also with relief. It would be a strange reflection on our
law if a man who has admitted his participation in the illegal importation of
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a large quantity of heroin should have his conviction set aside on the grounds
that his privacy has been invaded.
There is only one further word which I would add. The sole cause of
this case coming to your Lordships’ House is the lack of a statutory system
regulating the use of surveillance devices by the police. The absence of such
a system seems astonishing, the more so in view of the statutory framework
which has governed the use of such devices by the Security Service since
1989, and the interception of communications by the police as well as by other
agencies since 1985. I would refrain, however, from further comment
because counsel for the respondent was able to inform us, on instructions, that
the government proposes to introduce legislation covering the matter in the
next session of Parliament.
My Lords, I would dismiss the appeal.
LORD NICHOLLS OF BIRKENHEAD
My Lords,
I have had the opportunity to read in advance a draft of the speech of
my noble and learned friend Lord Nolan. I agree that this appeal should be
dismissed. I add only two observations of my own. First, the appellant
contended for a right of privacy in respect of private conversations in private
houses. I prefer to express no view, either way, on the existence of such a
right. This right, if it exists, can only do so as part of a larger and wider
right of privacy. The difficulties attendant on this controversial subject are
well-known. Equally well-known is the continuing, widespread concern at the
apparent failure of the law to give individuals a reasonable degree of
protection from unwarranted intrusion in many situations. I prefer to leave
open for another occasion the important question whether the present,
piecemeal protection of privacy has now developed to the extent that a more
comprehensive principle can be seen to exist. It is not necessary to pursue
this question on this appeal. Even if the right for which the appellant
contended does exist, this would not lead to the consequence that obtaining
evidence for the purpose of detecting or preventing serious crime was an
infringement of the right or, even if it were, that the evidence was
inadmissible at the trial.
Second, the discretionary powers of the trial judge to exclude evidence
march hand in hand with article 6.1 of the European Convention of Human
Rights. Both are concerned to ensure that those facing criminal charges
receive a fair hearing. Accordingly, when considering the common law and
statutory discretionary powers under English law the jurisprudence on article
6 can have a valuable role to play. English law relating to the ingredients of
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a fair trial is highly developed. But every system of law stands to benefit by
an awareness of the answers given by other courts and tribunals to similar
problems. In the present case the decision of the European Court of Human
Rights in Schenk v. Switzerland (1988) 13 E.H.R.R. 242 confirms that the use
at a criminal trial of material obtained in breach of the rights of privacy
enshrined in article 8 does not of itself mean that the trial is unfair. Thus the
ECHR case law on this issue leads to the same conclusion as English law.
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Source: https://www.bailii.org/
