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.

PROMOTED VIDEO
News
ebooksAn unforgettable anthology of contemporary reportage
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

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Finance Manager - Recruitment Business (Media & Entertainment)

£28000 - £32000 per annum + negotiable: Sauce Recruitment: We have an exciting...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

HR Advisor - North London / North West London

£30000 - £35000 per annum + Benefits: Ashdown Group: HR Advisor - North London...

Day In a Page

Indiana serial killer? Man arrested for murdering teenage prostitute confesses to six other murders - and police fear there could be many more

A new American serial killer?

Police fear man arrested for murder of teen prostitute could be responsible for killing spree dating back 20 years
Sweetie, the fake 10-year-old girl designed to catch online predators, claims her first scalp

Sting to trap paedophiles may not carry weight in UK courts

Computer image of ‘Sweetie’ represented entrapment, experts say
Fukushima nuclear crisis: Evacuees still stuck in cramped emergency housing three years on - and may never return home

Return to Fukushima – a land they will never call home again

Evacuees still stuck in cramped emergency housing three years on from nuclear disaster
Wildlife Photographer of the Year: Intimate image of resting lions claims top prize

Wildlife Photographer of the Year

Intimate image of resting lions claims top prize
Online petitions: Sign here to change the world

Want to change the world? Just sign here

The proliferation of online petitions allows us to register our protests at the touch of a button. But do they change anything?
Ed Sheeran hits back after being labelled too boring to headline festivals

'You need me, I don’t need you'

Ed Sheeran hits back after being labelled too boring to headline festivals
How to Get Away with Murder: Shonda Rhimes reinvents the legal drama

How to Get Away with Murder

Shonda Rhimes reinvents the legal drama
A cup of tea is every worker's right

Hard to swallow

Three hospitals in Leicester have banned their staff from drinking tea and coffee in public areas. Christopher Hirst explains why he thinks that a cuppa is every worker's right
Which animals are nearly extinct?

Which animals are nearly extinct?

Conservationists in Kenya are in mourning after the death of a white northern rhino, which has left the species with a single male. These are the other species on the brink
12 best children's shoes

Perfect for leaf-kicking: 12 best children's shoes

Find footwear perfect to keep kids' feet protected this autumn
Anderlecht vs Arsenal: Gunners' ray of light Aaron Ramsey shines again

Arsenal’s ray of light ready to shine again

Aaron Ramsey’s injury record has prompted a club investigation. For now, the midfielder is just happy to be fit to face Anderlecht in the Champions League
Comment: David Moyes' show of sensitivity thrown back in his face by former Manchester United manager Sir Alex Ferguson

Moyes’ show of sensitivity thrown back in his face... by Ferguson

Manchester United legend tramples on successor who resisted criticising his inheritance
Two super-sized ships have cruised into British waters, but how big can these behemoths get?

Super-sized ships: How big can they get?

Two of the largest vessels in the world cruised into UK waters last week
British doctors on brink of 'cure' for paralysis with spinal cord treatment

British doctors on brink of cure for paralysis

Sufferers can now be offered the possibility of cure thanks to a revolutionary implant of regenerative cells
Ranked seventh in world’s best tourist cities - not London, or Edinburgh, but Salisbury

Lonely Planet’s Best in Travel 2015

UK city beats Vienna, Paris and New York to be ranked seventh in world’s best tourist destinations - but it's not London