Covert listening device evidence admissible in criminal trial, R v Sang applied.
Regina v Khan (Sultan)
(1996) The Times, July 5 House of Lords
THE FACTS
Kerr v Director of Public Prosecutions (1994) The Times, 5th August the Queen's Bench DivisionLORD NOLAN said Khan had arrived from Pakistan at Manchester airport on the same flight as his cousin Nawab. When stopped and searched and Nawab was found to be in possession of heroin with a very high street value. He was interviewed, arrested and charged. No drugs were found on Khan who made no admissions on interview and was released without charge.Later Khan was in Sheffield, at the home of a man named Bashforth. Police installed a listening device outside. Neither Khan not Bashforth was aware of its presence. The police obtained a tape recording of a conversation. In the course of the conversation, Khan made statements which amounted to an admission that he was a party to the importation of drugs by Nawab.
He was arrested and jointly charged with Nawab. It was admitted that Khan had been present at the address and that it was his voice 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.
The judge admitted the evidence and Khan was rearraigned and pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. His guilty plea was tendered only on the basis of the judge's ruling, and that he reserved the right to challenge that ruling.
The Court of Appeal dismissed his appeal.
THE LAW
The matter raised two issues: (1), was the evidence was admissible at all, and (2), if admissible, it should none the less have been excluded by the judge in the exercise of his discretion under common law or S.78 PACE 1984.
There was no legal framework regulating the installation and use by the police of covert listening devices. That was in contrast to the use of such devices by the Security Service.
They were the subject of Guidelines on the use of Equipment in Police Surveillance Operations (Home Office 1984).
Police had authorised surveillance on the grounds that there was good reason to suppose Bashforth was dealing in heroin, but that conventional methods of surveillance were unlikely to provide proof that he was doing so.
Khan said that 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 instant case should not be accepted as a means of obtaining evidence, the more so in a case where it involved trespass and, at least arguably, criminal damage to property.
Counsel for Khan had likened the case of private conversation 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 Interception of Communications Act 1985, passed as a result of the decision of the European Court of Human Rights in Malone v United Kingdom[1984] 7 EHRR 14
Counsel for Khan pointed out that the 1985 Act by section 9 expressly forbade the use in evidence of material obtained by the interception of communications. Before 1984 there had been a similar restriction on the use of material from surveillance devices.
In the light of R v Sang [1980] AC 402, (See Illegal Evidence: The Fruit of the Poisioned Tree, R R Jerrard 147 JPN 725 for a discussion on Sang, Also published in shorter form [1983] CPU Digest 217) the argument that the evidence of the taped conversation was inadmissible could only be sustained if two wholly new principles were formulated: The first would be that Khan enjoyed a right of privacy in respect of the taped conversation. The second, that evidence of the conversation obtained in breach of that right was inadmissible.
There was no such right of privacy in English law, and even if there were, evidence obtained improperly or even unlawfully remained admissible, subject to the judge's power to exclude it at his discretion.
Turning to the issue whether the judge should nevertheless have excluded it in the exercise of his common law discretion or his section 78 powers, his Lordship said the only relevant element of the common law discretion was that part which authorised the judge "to exclude evidence if it is necessary in order to secure a fair trial for the accused": Scott v The Queen; Barnes v The Queen [1989] AC 1242, 1256 per Lord Griffiths. It was unnecessary to consider the common law position separate from that under section 78.
Counsel for Khan's submissions on that issue were based directly on the terms of article 8 of the European Convention, read with section 78 of the 1984 Act.
The case raised for the first time the question whether a criminal court, in considering its power under section 78 was 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 was to be regarded per se as a ground for excluding otherwise admissible evidence.
If the circumstances in which the evidence was obtained amounted to an apparent invasion of Khan's rights of privacy under article 8, that was accordingly something to which the court must have regard.
That argument had 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 article 8.
As a result Khan was entitled to invoke article 13 of the Convention which provided that there should be an effective remedy before a national authority for everyone whose rights under the Convention were violated.
In R v Secretary of State for the Home Department, Ex parte Brind [1991] 1 AC 696, 747 Lord Bridge had accepted that the United Kingdom was obliged to secure the rights guaranteed by the Convention, including the right under article 13.
But the remedy which article 13 required, according to the submissions need not go so far as to exclude evidence obtained in breach of article 8. It was sufficient if the national law provided an effective means of reviewing the admissibility of evidence in the light of the provisions of article 8. Section 78 provided for just such a review.
The principles reflected in the Convention could hardly be irrelevant to the exercise of the section 78 power because they embodied so many of the familiar principles of English law and concept of justice. In particular, they asserted the right of an individual to a fair trial.
It was interesting that Khan made no complaint of an infringement of his right under article 6.1 to fair trial. The European Court of Human Rights in Schenk v Switzerland [1988] 13 EHRR 242 had rejected a complaint under article 6 brought by a defendant against whom an unlawfully obtained recording of a telephone conversation had been used in evidence.
Under English law, there was in general nothing unlawful about a breach of privacy. Knan's case rested wholly upon the lack of statutory authorisation for the particular breach of privacy which occurred in the instant case and the alleged consequent infringement of article 8.
Lord Nolan was satisfied that in those circumstances Khan could no more succeed upon the second issue than on the first. He was prepared to accept that if evidence had been obtained in circumstances involving an apparent breach of article 8, or, for that matter an apparent breach of the law of a foreign country, that was a matter which might be relevant to the exercise of the section 78 power.
The fact that the behaviour in question constituted a breach of the Convention or of a foreign law could plainly be of no greater significance per se than if it constituted a breach of English law. Upon the facts of the instant case his Lordship considered 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.
It would be a strange reflection on our law if a man who had admitted his participation in the illegal importation of a large quantity of heroin should have his conviction set aside on the ground that his privacy had been invaded.
The sole cause of the case coming to the House of Lords was the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seemed astonishing, the more so in view of the statutory framework which had 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.
THE DECISION
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.
The provisions of the European Convention on Human Rights and Fundamental Freedoms could be relevant to the exercise of the discretion at common law or under S.78 PACE1984 to exclude otherwise admissible evidence on the ground of unfairness. But on the facts, that discretion had been correctly exercised to admit the taped evidence.
The House of Lords found it unnecessary to consider whether and if so to what extent English law provided a right of privacy.
The House dismissed an appeal from the Court of Appeal, The Times June 1, 1994; [1995] QB 27 which had dismissed an appeal by Khan against conviction after pleading guilty at Crown Court, to being knowingly concerned in the fraudulent evasion of a prohibition on the importation of Class A controlled drugs.
COMMENT
GENERAL CONSIDERATIONS of EXCLUSION RULES
At Common Law the courts have a general discretion to exclude relevant evidence in order to ensure a fair trial. S.78 PACE Act 1984 is an additional (statutory) discretion. The development may be traced from Christie [1914] AC 545, 559 and 564 respectively. Modern statements continue with Noor Mohamed [1949] AC 182; Harris v DPP [1952] AC 694,707; Selvey v DPP [1970] AC 304 and the landmark decision of R v Sang [1980] AC 402.
"The duty of the court is to decide whether the appellant has committed the offence with which he is charged and not to discipline the police", Fox v Chief Constable of Gwent [1985] 3 ALL E R 392,397.
In Mason (1988) 86 Cr.App.R. 349,354, the court said that in its opinion S.78 did no more than re-state the common law, but in Fulling (1987) 85 Cr.App.R. 136, 141 the court said the Act was a codifying Act and courts should decide uninfluenced by any previous state of the law.
The government planned to introduce legislation covering the matter in the next session of Parliament.