It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 27th day of May 1994 complained of in the said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal be, and the same is hereby, dismissed this House.
Cler: Parliamentor:
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
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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