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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.