Judgments - Regina v. P. and others

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    Later judgments of the ECHR contain statements to the same effect. In Teixeira de Castro v Portugal (25829/94) 28 EHRR 101, an agent provocateur case, the court said (at paragraph 34):

    "The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair."

    Khan v United Kingdom (35394/97) was the ECHR judgment which followed on from the decision of your Lordships' House in R v Khan (sup.). Three relevant complaints were made by Mr Khan. Firstly he said that the UK Government had breached his rights under Article 8. The police had installed covert listening devices on private property without the knowledge or consent of the owner. The ECHR held that this had not been done "in accordance with the law" as the relevant law lacked the requisite clarity and therefore qualitatively failed to meet the Malone test. The complaint under Article 8 was therefore upheld. This complaint had not been seriously contested by the Government and, indeed, your Lordships' House had proceeded on the basis that there had been a breach of Article 8.

    Secondly, Mr Khan complained that there had been a breach of Article 6 as a tape recording obtained in breach of Article 8 had been admitted in evidence against him at his trial. This complaint was rejected. Mr Khan recognised that the fact that the evidence had been obtained in breach of Article 8 did not require the conclusion that it should be excluded at the trial but argued that there must be an effective procedure during the trial by which the defendant can challenge its admissibility, that the trial court should have regard to the nature of the violation and that, in distinction to Schenk, the obtaining of the conviction was effectively based upon the unlawfully obtained evidence. In paragraph 34 of the judgment the ECHR repeated what it had said in previous judgments. The admissibility of evidence was primarily a matter for regulation under national law.

    "It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the 'unlawfulness' in question and, where violation of another Convention right is concerned, the nature of the violation found."

Having recognised the differences between the case before it and the Schenk case, the ECHR continued (paragraphs 38-40) -

    "The central question in the present case is whether the proceedings as a whole were fair. With specific reference to the admission of the contested tape recording, the Court notes that, as in the Schenk case, the applicant had ample opportunity to challenge both the authenticity and the use of the recording. He did not challenge its authenticity, but challenged its use at the 'voire dire' and again before the Court of Appeal and the House of Lords. The Court notes that at each level of jurisdiction the domestic courts assessed the effect of admission of the evidence on the fairness of the trial by reference to s.78 of PACE, and the courts discussed, amongst other matters, the non-statutory basis for the surveillance. The fact that the applicant was at each step unsuccessful makes no difference (see the above-mentioned Schenk judgment, paragraph 47.)

    The Court would add that it is clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it under s.78 of PACE.

    In these circumstances, the Court finds that the use at the applicant's trial of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6(1) of the Convention."

    It should be noted that the ECHR again emphasised that the defendant is not entitled to have the unlawfully obtained evidence excluded simply because it has been so obtained. What he entitled to is an opportunity to challenge its use and admission in evidence and a judicial assessment of the effect of its admission upon the fairness of the trial as is provided for by s.78.

    Mr Khan's third complaint was that his right to an effective remedy under Article 13 had been violated. The ECHR upheld this complaint because the remedy provided - complaint to the Police Complaints Authority - was not a right of recourse to an independent body and therefore was not an effective remedy. The ECHR emphasised that this was a separate question from anything which happened at the criminal trial. It was not within the power of the criminal courts to provide such a remedy. S.78 was concerned with the fairness of the trial not with providing a remedy for a breach of Article 8. The Court's decision on the complaint under Article 13 further confirms and reinforces its decision and reasoning in relation to Article 6.

    The decision of the ECHR is accordingly to the like effect to that of your Lordships' House when it was considering the appeal of Mr Khan. An assessment and adjudication under s.78 is the appropriate and right way in which to respond to an application to exclude evidence on the ground of a breach of a right to privacy. Lord Nicholls of Birkenhead was right to conclude his speech by saying -

    ".... the discretionary powers of the trial judge to exclude evidence march hand in hand with Article 6.1 of the European Convention on Human Rights. Both are concerned to ensure that those facing criminal charges receive a fair hearing. ........ In the present case the decision of the ECHR in Schenk v Switzerland 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." (p.583)

    The decision of your Lordships' House was arrived at a time before the Human Rights Act 1998 had been enacted let alone introduced into Parliament. Therefore the Convention did not then have the place it now has in English law. The importance of the ECHR decision is that it confirms that the direct operation of Articles 8 and 6 does not invalidate their Lordships' conclusion or alter the vital role of s.78 as the means by which questions of the use of evidence obtained in breach of Article 8 are to be resolved at a criminal trial. The criterion to be applied is the criterion of fairness in Article 6 which is likewise the criterion to be applied by the judge under s.78. Similarly, the ECHR decision that any remedy for a breach of Article 8 lies outside the scope of the criminal trial and that Article 13 does not require a remedy for a breach of Article 8 to be given within that trial shows that their Lordships were right to say that a breach of Article 8 did not require the exclusion of evidence. Such an exclusion, if any, would have to come about because of the application of Article 6 and s.78.

    The defendants' argument under Article 6 also fails and does so independently of their argument under Article 8.

The Policy of English Law:

    The other way in which the defendants put their case was to submit that there is a rule of policy of English law as demonstrated by legislation and the decisions in R v Preston and Morgans v DPP that intercept and surveillance evidence should not be used at criminal trials. This rule applies, it is submitted, wherever the interception takes place and regardless of by whom it was carried out. It is accepted that none of the United Kingdom Acts has a relevant extraterritorial application or itself precludes the use of this evidence at the defendants' trial. The decision of the Divisional Court in R v The Governor of Belmarsh Prison ex parte Martin [1995] 1 WLR 412 that foreign intercept evidence may be used in support of extradition proceedings is very much in point. The Act of 1985 did not apply to the relevant intercepts therefore the exclusionary provision, s.9, did not apply either. The Divisional Court also rejected the argument that it was a rule of English law derived from the Act and R v Preston that intercept evidence was not admissible in an English court.

    Any developed society has to have a scheme for the surveillance of those who are liable to attack or prey upon the society or its members. Such schemes have throughout history included the interception of communications and in modern times this has included telecommunications. This in turn has led on to the need for laws to limit and control such interceptions particularly where publicly provided or sponsored means of communication are involved. Since the Royal Mail came into existence it has been a criminal offence to interfere with the mail. The primary purpose of the Interception of Communications Act 1985, despite the apparent universality of its title, was to update and revise in statutory form laws which prohibited the interference with communications by post and public telecommunications systems and the exceptions to that prohibition. This then leads on to the question: on what basis is the government to be permitted to carry out the surveillance necessary for the health and survival of the society in which we live? S.2 of the Act accordingly provided for the Secretary of State to issue warrants authorising and requiring interceptions of communications by post or public telecommunication systems to be carried out. This section limits the grounds upon which the Home Secretary can do so. One ground to which it will be necessary to refer again is 2(2)(b) "for the purpose of preventing or detecting serious crime".

    But then a further question arises. If the interception results, as no doubt will not infrequently be the case, in the obtaining of evidence which will assist in the conviction of criminals, are the authorities going to use that evidence in court to assist in the prosecution of the criminals concerned? Other things being equal all relevant and probative evidence is admissible. But where surveillance evidence is concerned the use of the evidence comes at a price. If the fairness of the trial is to be preserved the defendant must be permitted to probe the evidence and question the witnesses who come to court to provide the proof. This means that disclosure has to be made and the secrecy of the means and extent of the surveillance have to be sacrificed. This is a real problem for those involved in the prevention and detection of crime as the cases involving informers and concealed cameras have shown. The solution traditionally adopted by the authorities has been to elect for the maintenance of secrecy and to prefer this to the use of covertly obtained material in court. This was the choice made in the 1985 Act. S.9 of the Act prevents any questions being asked in court which tend to suggest that an official may or may not have had authority under the Act to intercept a communication. In making this choice the Government were following the same approach, making secrecy the paramount consideration, as they had urged upon the Birkett Committee in 1957 and was accepted by that Committee. (Cmnd. 283) Other provisions of the Act, most notably s.6 limiting the dissemination and requiring the destruction of intercept material, are also designed to preserve secrecy.

    The oblique wording of s.9 is clearly directed to preserving the secrecy of any surveillance operation covered by the Act. S.9 does not as such say that the intercept evidence may not be used. It was this oblique method of drafting which gave rise to the two cases on which the defendants rely and to which I must now refer. The first was R v Preston decided in 1993 in relation to a telephone intercept in 1989 which together with information supplied by an informer had led to the arrest of the defendants. At their trial the defendants demanded the disclosure of the identity of the informer and the contents of the intercept. Both requests were refused by the prosecution, as regards the intercept information on the ground that the relevant material had been destroyed as was required by s.6 of the Act. The defendants then submitted that they could not have a fair trial without having such disclosure. This submission was not accepted and the defendants were convicted. Their appeals failed.

    There had been an earlier decision of the Court of Appeal in R v Effik (1992) 95 Cr App R 427 which had in effect held that intercept evidence was admissible in criminal trials, giving a restricted interpretation to s.9 and declining to infer from the oblique wording of that section that to admit the evidence would be contrary to the scheme of the Act. In Preston your Lordships' House overruled Effik. As Lord Templeman said (at p.140), sections 6 and 9 of the Act make it "impossible for a record of a telephone conversation to be given in evidence and .... impossible for evidence to be given that a warrant was issued for a telephone conversation to be intercepted". Accordingly it was accepted that the drafting of the Act necessarily had the result that the prosecution could not rely upon the intercept evidence; but the House also held that although not admissible in evidence the material would still have had to have been disclosed if it were not for s.6 and the fact that it had been destroyed. The leading speech was that of Lord Mustill. At p.146 he recognised -

    "Those who perform the interceptions wish to minimise the dissemination of the fact that they have been performed, since it is believed that this would diminish the value of activities which are by their nature clandestine. We need not consider to what extent this preoccupation with secrecy at all costs is soundly based for it has been treated as axiomatic for decades, if not longer."

At p.168, he came back to what he described as the plain intent and wording of the Act:

    "The need for surveillance and the need to keep it secret are undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. Hence sections 2 and 6. These policies are in flat contradiction to current opinions on the 'transparency' of the trial process. Something has to give way, and the history, structure and terms of the statute leave me in little doubt that this must be the duty to give complete disclosure of unused materials."

    The argument had included different submissions as to the construction of s2(2)(b): "preventing or detecting serious crime". Did this include obtaining evidence for use at a trial? Construing the Act as a whole, in particular having regard to sections 6 and 9 and parliamentary material, Lord Mustill concluded that a narrow reading of s.2(2)(b) must be adopted:

    "If the purpose of Parliament was to allow the intercept materials to become part of the prosecution process it is hard to see any point in a provision which would make it wholly or at least partially (according to how [s.9] is read) impossible to use them in that process ..... The narrower reading of s.2 is strongly supported by the history of the Act. I need not repeat this. The criticisms in Malone v United Kingdom which prompted the Government to change its mind and legislate were directed not to the long-established practice but to its inaccessibility, imprecision and lack of formal safeguards. The Act was plainly designed to put these matters right, and I can see no reason to suppose that the Government had suddenly and spontaneously decided to go much further and overturn the practice which had persisted for decades of separating the process of surveillance from the prosecution of offenders."

    This then was a decision upon material specifically falling within the scope of the 1985 Act - an interception of a telephone conversation. The construction of the Act adopted by your Lordships' House was that the dominant principle guiding the interpretation of the provisions of the Act was the policy of preserving the secrecy of the surveillance operations to which the Act applied and, to that end, preventing as far as possible any evidence relating to such operations ever reaching the public domain. The speech of Lord Mustill does not support the submission that there is a policy that defendants should be protected from having incriminated themselves in intercepted telephone calls. The decision by the House of Lords that 'metering' evidence, that is to say evidence of what calls were made to what numbers as opposed to what was said during such calls, is admissible confirms the true scope of the decision. As Lord Mustill put it at p.170: "Parliament has grasped the nettle and put the interests of secrecy first."

    In Preston, the telephone intercept was expressly covered by the 1985 Act. Where the Act did not apply surveillance evidence was in principle admissible subject to s.78 and the ordinary safeguards. Effik continued to be treated as an authority and the clear effect of the speeches in Preston was overlooked. The matter was brought back before your Lordships' House in Morgans v DPP. There was a further complication. The cases (R v Rasool [1977] 1 WLR 1092 and R v Owen [1999] 1 WLR 949) which had appeared to reinstate Effik had concerned intercepts of conversations where it was the Crown case that one of the parties to the intercepted conversation had (or, at least, was reasonably believed to have) given his consent to the intercept so taking the intercept outside the scope of s.1 of the 1985 Act. Those cases had held that the evidence was admissible even though there was an issue about the existence of the consent (or reasonable belief). Your Lordships' House held that s.9 and the speeches in Preston meant that the evidence could not be given because questions could not be asked about the consent and belief without tending to suggest that an offence had been committed under s.1 of the Act. Therefore, just as intercepts under a warrant were inadmissible, so also were intercepts said to have been by consent. Rasool and Owen were overruled. The broad interpretation of s.9 in Preston and its implication for the exclusion of intercept evidence falling with the scope of the Act were confirmed.

    Neither Preston nor Morgans support any principle of exclusion of evidence independently of the 1985 Act. Where as here, the intercept was made in a foreign country by the authorities of that country and the 1985 Act accordingly has no application, the reasoning of Preston and Morgans does not apply either. The law of country 'A' under which these intercepts were made does not treat secrecy as paramount; it permits, subject to judicial supervision, the use of intercepts in evidence. There is no basis for the argument that there is a rule of English public policy which makes this evidence, which is admissible in country 'A', inadmissible in England.

    There remains the point to which I said I would revert. It was argued that if it was not necessary in our democratic society for intercept evidence obtained under the 1985 Act to be admissible, it could not be necessary for intercept evidence obtained abroad to be admissible. There are two answers to this argument. First, the conclusion does not follow. In this country it is, in the judgment of the Government, the necessity to have a fully effective interception system which creates the necessity for secrecy and consequently the need to keep the evidence of it out of the public domain. But where secrecy is not required, the necessity is that all relevant and probative evidence be available to assist in the apprehension and conviction of criminals and to ensure that their trial is fair. The latter necessity exists in both cases but in the former case it is trumped by the greater necessity for secrecy, as the speeches in Preston explain. Secondly, Article 8(2) is concerned with justifiable and unjustifiable interferences with the exercise of the Article 8(1) right. It is not an abstract question. In the present case it is necessary that, the evidence having been obtained, it be used in England as it has been in country 'A'. This is further demonstrated by the fact that, other things being equal, it is necessary that the evidence be disclosed to the defence (as it has been) and that it be available to be referred to when 'X' comes to give evidence. The tape recordings and transcripts (about the accuracy of which, be it said, there is no dispute) will be the best evidence of what was said. The fairness of the trial of these defendants requires that the evidence be admissible.

    There is a related point which should also be referred to. S.2(2)(b) of the 1985 Act uses the expression "for the purpose of preventing or detecting serious crime". In Preston that expression was construed as not extending to the obtaining of evidence for use in the prosecution of criminals. A similar expression is used in Article 8(2) - "for the prevention of disorder or crime". The expression used in the Convention is wider and is not limited by its context as is the statutory expression. The breadth of the expression in the Convention is confirmed by the ECHR judgments to which I have referred, particularly that in the case of Khan.

    My Lords, it follows from what I have said that the appeals had to be dismissed. The case of Aujla was rightly decided. The decision of the ECHR in Khan shows that the coming into effect of the Human Rights Act does not invalidate in the relevant respects the decision of your Lordships' House in that case and that s.78 is an appropriate safeguard of the fairness of the trial.

 
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