Law Report: Bugged recording is admissible: Regina v Khan - Court of Appeal (Criminal Division) (Lord Taylor of Gosforth, Lord Chief Justice, Mr Justice Hutchison and Mr Justice Pill), 27 May 1994

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The Independent Culture
Evidence of tape recorded conversations obtained by an electronic listening device attached by the police to a private house without the knowledge of the owners or occupiers is admissible against the defendant in a criminal trial.

The Court of Appeal dismissed an appeal by the appellant, Sultan Khan, against his conviction of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin.

The Crown's case against the appellant consisted of conversations showing he was involved in the importation of heroin which were tape recorded using an aural surveillance device installed by the South Yorkshire Police at a private house. Neither the appellant nor the occupants were aware of the device.

The trial judge accepted the Crown's evidence that authority for use of the device was given under Home Office guidelines of 1984, Covert Listening Devices and Visual Surveillance (Private Place), for a serious criminal investigation concerning the supply of heroin on a large scale, where normal surveillance was impracticable and the use of the device would lead to arrest and conviction. The trial judge decided the tape recorded conversations were admissible and exercised his discretion to admit them. The appellant appealed on the grounds that the evidence of private conversations on private property was inadmissible.

Franz Muller QC and Mark George (Registrar of Criminal Appeals) for the appellant; Stephen Gullick and Simon Haring (Customs & Excise Solicitor) for the Crown.

LORD TAYLOR LCJ, giving the court's judgment, said that in the United Kingdom there were no statutory provisions which governed the use of secret listening devices on private property. That was to be contrasted with the position in relation to the interception of public telephone calls or postal communications, now governed by the Interception of Communications Act 1985.

The submission that the evidence was inadmissible must be rejected. It was an established rule of English law that the test of admissibility was relevance: relevant evidence, even if illegally obtained, was admissible. To establish the inviolability of the home by rendering inadmissible statements made within it would be to introduce a new principle into English law. There was a strong public interest in the detection of crime and in the use by the police of up-to-date technical devices in appropriate circumstances.

There were only two bases on which such evidence could be excluded. The first was if it were possible to argue (which was not in the present case) the prejudicial effect of the evidence exceeded its probative value. The second was by reliance on the judge's disrection to exclude it.

The factors of civil trespass to the outside of the building, some damage to it, the matters relating to article 8 of the European Convention on Human Rights and the intrusion of privacy were of insufficient gravity to outweigh other factors which militated in favour of concluding that fairness to both sides required the admission of the evidence.

The police proceeded in accordance with the relevant Home Office guidelines. A type of criminal conduct of great gravity was under investigation. Article 8 recognised circumstances in which intrusion to privacy was necessary and justifiable in a democratic society. The 1984 guidelines embodied a new approach to information obtained otherwise than by the interception of the public telephone system. The judge had ample material to refuse to exclude the evidence under section 78 of the Police and Criminal Evidence Act 1984.