LAW REPORT: Evidence from bugging device admissible

Regina v Khan; House of Lords (Lord Keith of Kinkel, Lord Browne- Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Nicholls of Birkenhead) 2 July 1996

Evidence of tape-recorded conversations obtained by means of an electronic listening device attached by the police to a private house without the know-ledge of its owners or occupiers was admissible in a criminal trial.

The House of Lords dismissed an appeal by Sultan Khan and affirmed the decision of the Court of Appeal ([1995] QB 27) dismissing his appeal against conviction for being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin, for which he was sentenced to three years' imprisonment.

The Crown's case depended on the admissibility of evidence as to the terms of tape-recorded conversations, implicating the defendant, which had been obtained by the attachment of a listening device at a private address. It was admitted that this had involved a civil trespass and had occasioned some damage to the property. Having conducted a voir dire, the judge ruled that the evidence was admissible. The defendant was rearraigned and pleaded guilty.

Franz Muller QC and Mark George (Graysons, Sheffield) for the defendant; Alan Moses QC and Stephen Gullick (Customs & Excise Solicitor, Salford) for the Crown.

Lord Nolan said there were two issues. The first was whether the evidence was admissible at all. The second was whether it should none the less have been excluded by the judge in exercising his discretion at common law or under section 78 of the Police and Criminal Evidence Act 1984.

The focal point of the defendant's case was that there was no legal framework regulating the installation and use by the police of covert listening devices.

Mr Muller likened this case to Malone v United Kingdom (1984) 7 EHRR 14, where the European Court of Human Rights held that the tapping of the applicant's telephone amounted to a breach of his rights, under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953), to "respect for his private and family life, his home and his correspondence".

As a result of that decision, telephone tapping was strictly regulated under the Telecommunications Act 1985. The use in evidence of material obtained by the interception of communications was now expressly forbidden by section 9.

In the light of R v Sang [1980] AC 402 (where it was held that a judge had no discretion to refuse to admit relevant evidence on the ground that it had been obtained by improper or unfair means), the argument that the evidence of the taped conversations in this case was inadmissible could only be sustained if two wholly new principles were formulated in English law. First, that the defendant enjoyed a right of privacy, similar to article 8 of the Convention, in respect of the taped conversations. Second, that evidence of a conversation obtained in breach of that right was inadmissible.

The objection to the first was that there was no such right of privacy in English law. The objection to the second was that even if there were such a right, the decision in R v Sang and others following it made it plain that as a matter of English law, evidence obtained improperly or unlawfully remained admissible, subject to the trial judge's power to exclude it in the exercise of his common law discretion or under section 78 of the Police and Criminal Evidence Act 1984.

His Lordship concluded that the defendant failed on the first issue. Evidence of the taped conversations was clearly admissible as a matter of law.

As to the second issue, his Lordship accepted that if evidence had been obtained in circumstances which involved 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. Its significance would 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.

In this case 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.

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Ashdown Group: HR Manager - West London - £50,000

£40000 - £50000 per annum + bonus: Ashdown Group: HR Manager - West London - £...

Recruitment Genius: Recruitment & HR Administrator

£17000 - £18000 per annum: Recruitment Genius: This is an exciting opportunity...

Guru Careers: HR Manager / HR Business Partner

£55 - 65k (DOE) + Benefits: Guru Careers: A HR Manager / HR Business Partner i...

Recruitment Genius: Senior HR Assistant

£23000 - £25000 per annum: Recruitment Genius: The Company's vision is to be t...

Day In a Page

Is this the future of flying: battery-powered planes made of plastic, and without flight decks?

Is this the future of flying?

Battery-powered planes made of plastic, and without flight decks
Isis are barbarians – but the Caliphate is a dream at the heart of all Muslim traditions

Isis are barbarians

but the Caliphate is an ancient Muslim ideal
The Brink's-Mat curse strikes again: three tons of stolen gold that brought only grief

Curse of Brink's Mat strikes again

Death of John 'Goldfinger' Palmer the latest killing related to 1983 heist
Greece debt crisis: 'The ministers talk to us about miracles' – why Greeks are cynical ahead of the bailout referendum

'The ministers talk to us about miracles'

Why Greeks are cynical ahead of the bailout referendum
Call of the wild: How science is learning to decode the way animals communicate

Call of the wild

How science is learning to decode the way animals communicate
Greece debt crisis: What happened to democracy when it’s a case of 'Vote Yes or else'?

'The economic collapse has happened. What is at risk now is democracy...'

If it doesn’t work in Europe, how is it supposed to work in India or the Middle East, asks Robert Fisk
The science of swearing: What lies behind the use of four-letter words?

The science of swearing

What lies behind the use of four-letter words?
The Real Stories of Migrant Britain: Clive fled from Zimbabwe - now it won't have him back

The Real Stories of Migrant Britain

Clive fled from Zimbabwe - now it won’t have him back
Africa on the menu: Three foodie friends want to popularise dishes from the continent

Africa on the menu

Three foodie friends want to popularise dishes from the hot new continent
Donna Karan is stepping down after 30 years - so who will fill the DKNY creator's boots?

Who will fill Donna Karan's boots?

The designer is stepping down as Chief Designer of DKNY after 30 years. Alexander Fury looks back at the career of 'America's Chanel'
10 best statement lightbulbs

10 best statement lightbulbs

Dare to bare with some out-of-the-ordinary illumination
Wimbledon 2015: Heather Watson - 'I had Serena's poster on my wall – now I'm playing her'

Heather Watson: 'I had Serena's poster on my wall – now I'm playing her'

Briton pumped up for dream meeting with world No 1
Wimbledon 2015: Nick Bollettieri - It's time for big John Isner to produce the goods to go with his thumping serve

Nick Bollettieri's Wimbledon Files

It's time for big John Isner to produce the goods to go with his thumping serve
Dustin Brown: Who is the tennis player who knocked Rafael Nadal out of Wimbeldon 2015?

Dustin Brown

Who is the German player that knocked Nadal out of Wimbeldon 2015?
Ashes 2015: Damien Martyn - 'England are fired up again, just like in 2005...'

Damien Martyn: 'England are fired up again, just like in 2005...'

Australian veteran of that Ashes series, believes the hosts' may become unstoppable if they win the first Test