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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> R v Khan (Sultan) [1996] UKHL 14 (02 July 1996)
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Cite as: [1997] AC 558, [1996] 3 WLR 162, [1996] UKHL 14, [1996] 3 All ER 289

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JISCBAILII_CASE_ENGLISH_LEGAL_SYSTEM

    Parliamentary Archives,
    HL/PO/JU/18/256

    Regina v Khan (Appellant)
    (On Appeal from the Court of Appeal (Criminal Division))


    JUDGMENT

    Die Martis 2° Julii 1996

    Upon Report from the Appellate Committee to whom was referred the Cause
    Regina against Khan, That the Committee had heard Counsel as well on Wednesday the
    6th as on Thursday the 7th day of March last upon the Petition and Appeal of Sultan
    Khan, of 157 Wensley Street, Sheffield, praying that the matter of the Order set forth in
    the Schedule thereto, namely an Order of Her Majesty's Court of Appeal (Criminal
    Division) of the 27th day of May 1994, might be reviewed before Her Majesty the Queen
    in Her Court of Parliament and that the said Order might be reversed, varied or altered or
    that the Petitioner might have such other relief in the premises as to Her Majesty the
    Queen in Her Court of Parliament might seem meet; as upon the case of the
    Commissioners of Her Majesty's Customs and Excise lodged in answer to the said
    Appeal; and due consideration had this day of what was offered on either side in this
    Cause:

    It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of
    Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's
    Court of Appeal (Criminal Division) of the 27th day of May 1994 complained of in the
    said Appeal be, and the same is hereby, Affirmed and that the said Petition and Appeal
    be, and the same is hereby, dismissed this House.

    Cler: Parliamentor:

    HOUSE OF LORDS

    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

    IN THE CAUSE

    REGINA

    v.

    KHAN
    (APPELLANT)

    (ON APPEAL FROM THE COURT OF APPEAL
    (CRIMINAL DIVISION))

    ON 2 JULY 1996

    Lord Keith of Kinkel
    Lord Browne-Wilkinson
    Lord Slynn of Hadley
    Lord Nolan
    Lord Nicholls of Birkenhead


    LORD KEITH OF KINKEL

    My Lords,

    For the reasons given in the speech to be delivered by my noble and
    learned friend Lord Nolan, which I have read in draft and with which I agree.
    I would dismiss this appeal.

    LORD BROWNE-WILKINSON

    My Lords,

    I have had the advantage of reading in draft the speech of my noble
    and learned friend Lord Nolan. Subject to one caveat, I agree that the appeal
    should be dismissed for the reasons which he gives.


    It is not necessary in the present case for your Lordships to decide
    whether the law of England recognises a right of privacy and, if so. whether
    the use by the police in the present case of a listening device constituted a
    breach of such right. Whether or not such a right of privacy exists is
    currently a matter of considerable public debate and one of great importance.
    This country is a party to the European Convention for the Protection of

    - 1 -

    Human Rights and Fundamental Freedoms (1953) (Cmd. 8969), article 8 of
    which provides for a right of privacy but always subject to certain exceptions.
    Further, article 13 of the Convention requires that the law of this country
    must provide an effective remedy for any breach of article 8. In the
    circumstances, the question whether English law recognises a right of privacy,
    and if so what are the limitations of such right, is likely to come before your
    Lordships for decision in the future. Until then I prefer to express no view
    on the question.

    In the present case, as Lord Nolan demonstrates, even if there was an
    infringement of a right of privacy the decision in Reg. v. Sang [1980] A.C.
    402 shows that the evidence so obtained would be admissible. Moreover the
    judge, in exercising his discretion under section 78 of the Police and Criminal
    Evidence Act 1984, properly took into consideration any possible breach of
    article 8. Therefore there is no need to decide whether or not there is a right
    of privacy in the present case.

    LORD SLYNN OF HADLEY

    My Lords,

    I have had the advantage of reading in draft the speech prepared by my
    noble and learned friend Lord Nolan. I do not repeat his analysis of the facts
    and issues involved and I state my own view briefly.

    In the present case there were two separate acts which it is said
    constitute invasions of privacy, one in fixing the device to the wall of the flat
    of the occupier who is not the appellant and the other to record what the
    appellant said. The justification for these two acts was said to be the need to
    detect and obtain evidence to support a conviction for a very serious crime.
    Whether or not a right of privacy does or should exist and in what
    circumstances is obviously a question of major importance but it became plain
    during the hearing of this appeal that the existence of a right of privacy was
    not the key issue and that it was really unnecessary to decide it. The key
    issue was whether, assuming that there was here a breach of a right to privacy
    which could not be justified, the evidence of what the appellant said was
    admissible. On the basis of Reg. v. Sang [1980] AC 402 the evidence was
    admissible and I have not been persuaded that we should depart from Sang in
    the present case.

    But the question has also been raised as to whether in exercising his
    discretion under section 78 of the Police and Criminal Evidence Act 1984 as
    to whether the evidence should be admitted a judge can have regard to articles
    6 and 8 of the European Convention on Human Rights and their application
    by the Court of Human Rights. In my view he can even if the Convention is

    - 2 -

    not binding on him as a matter of domestic law. On that basis it seems to me
    that it is relevant to note that in Schenk v. Switzerland (1988) 13 E.H.R.R.
    242 where both articles 6 and 8 were in issue the European Court of Human
    Rights attached primary importance to the question whether the admission of
    evidence alleged to have been improperly obtained constituted a violation of
    the right to a fair trial under article 6. They did not decide that evidence
    improperly obtained was always admissible but that the right approach was to
    consider whether the trial as a whole was fair having regard to the admission
    of the evidence. They said that the rights of the defence in that case were not
    disregarded and they added at paragraph 47: (p. 266)

    "The applicant was not unaware that the recording complained of was
    unlawful because it had not been ordered by the competent judge. He
    had the opportunity - which he took - of challenging its authenticity
    and opposing its use, having initially agreed that it should be heard.
    The fact that his attempts were unsuccessful makes no difference."

    There are differences between that case and the present one but the
    essential thrust of that judgment is pertinent to the present case. I do not
    consider, looking at the matter in the round, that there was here a breach of
    a right to a fair trial based on an analogy with article 6 of the Convention.

    Like Lord Nolan I would accordingly dismiss the appeal.

    Though I have no doubt in this case that the Chief Constable exercised
    his discretion fairly and bona fide I consider that fairness both to accused
    persons and to those who have to exercise this discretion make it highly
    desirable that such interceptions should be governed by legislation.

    LORD NOLAN

    My Lords,

    On 17 September 1992 the appellant arrived at Manchester Airport on
    a flight from Pakistan. On the same flight was his cousin, Farooq Nawab.
    Both men were stopped and searched by customs officials. Nawab was found
    to be in possession of heroin with a street value of almost £100,000. He was
    interviewed, and then arrested and charged. No drugs were found on the
    appellant. He, too, was interviewed, but made no admissions. He was
    released without charge.

    On 26 January 1993 the appellant went to an address in Sheffield, the
    home of a man named Bashforth, on the outside of which a listening device
    had been installed by the South Yorkshire Police. Neither the appellant nor
    Mr. Bashforth were aware of its presence. By means of that device, the

    - 3 -

    police obtained a tape recording of a conversation which took place between
    Mr. Bashforth, the appellant and others. In the course of the conversation,
    the appellant made statements which amounted to an admission that he was a
    party to the importation of drugs by Nawab on 17 September 1992.

    As a result, the appellant was arrested on 11 February 1993. Again,
    he made no admissions when interviewed, but subsequently he and Nawab
    were jointly charged with offences under the Customs and Excise Management
    Act 1979 and the Misuse of Drugs Act 1971. They were committed for trial
    at the Sheffield Crown Court.

    At the trial it was admitted on behalf of the appellant that he had been
    present at the Sheffield address and that his voice was one of those recorded
    on the tape. It was admitted on behalf of the Crown that the attachment of the
    listening device had involved a civil trespass, and had occasioned some
    damage to the property. Thereupon, the judge conducted a hearing on the
    voir dire as to the admissibility in evidence of the conversation recorded on
    the tape. The Crown accepted that without it there was no case against the
    appellant.

    The judge ruled that the evidence was admissible. Following an
    amendment to the indictment, the appellant was re-arraigned and pleaded
    guilty to being knowingly concerned in the fraudulent evasion of the
    prohibition on the importation of heroin. He was sentenced to three years
    imprisonment. It was made clear that his plea of guilty was tendered only on
    the basis of the judge's ruling, and that he reserved the right to challenge that
    ruling.

    His appeal to the Court of Appeal was dismissed on 27 May 1994 but
    the Court certified the following question as being one of general public
    importance:

    "Whether in a criminal trial evidence as to the terms of tape recorded
    conversations obtained by means of an electronic listening device
    attached by the police to a private house without the knowledge of the
    owners or occupiers was admissible against the defendant."

    It became clear in the course of argument, however, that this question
    raised two separate issues, the first being whether the evidence was admissible
    at all, and the second whether, if admissible, it should none the less have been
    excluded by the Judge in the exercise of his discretion at common law or
    under the powers conferred upon him by section 78 of the Police and Criminal
    Evidence Act 1984. That is how the matter had been approached both by the
    Judge and by the Court of Appeal. But although the issues are separate, the
    focal point of the appellant's case upon each of them was the fact that there
    is no legal framework regulating the installation and use by the police of
    covert listening devices. This is in contrast to the use of such devices by the

    -4-

    Security Service which has been regulated by statute since 1989 under the
    Security Service Act of that year.

    That is a matter to which I shall return. It should not be assumed,
    however, that the use by the police of such devices is wholly arbitrary and
    undisciplined. They are the subject of guidelines which were issued to police
    authorities by the Home Office in 1984, entitled "Guidelines on the use of
    Equipment in Police Surveillance Operations." They are also dealt with in
    standing orders issued by the South Yorkshire Police, but it is unnecessary to
    refer to these since they do not differ materially from the Home Office
    guidelines.

    The guidelines amount to a detailed and comprehensive code restricting
    the authorised use of the devices in question. For present purposes it is, I
    think, sufficient to quote paragraphs 4, 5 and 6 which read as follows:

    "4. In each case in which the covert use of a listening device is
    requested the authorising officer should satisfy himself that the
    following criteria are met: a) the investigation concerns serious

    crime . . . ; b) normal methods of investigation must have been tried
    and failed, or must, from the nature of things, be unlikely to succeed
    if tried; c) there must be good reason to think that use of the
    equipment would be likely to lead to an arrest and a conviction, or
    where appropriate, to the prevention of acts of terrorism; d) use of
    equipment must be operationally feasible.

    "5. In judging how far the seriousness of the crime under
    investigation justifies the use of particular surveillance techniques,
    authorising officers should satisfy themselves that the degree of
    intrusion into the privacy of those affected by the surveillance is
    commensurate with the seriousness of the offence. Where the targets
    of surveillance might reasonably assume a high degree of privacy, for
    instance in their homes, listening devices should be used only for the
    investigation of major organised conspiracies and of other particularly
    serious offences, especially crimes of violence.

    "6. The covert use in operations of listening, recording and
    transmitting equipment (for example microphones, tape recorders and
    tracking equipment) requires the personal authority of the chief
    officer."

    In certain circumstances, which do not exist in the present case, this
    authority may be delegated to an assistant chief constable. As appears from
    the facts found by the Judge, after the hearing on the voir dire, the installation
    of the listening device in Mr. Bashforth's premises was authorised by the
    Chief Constable of South Yorkshire on the grounds that there was good reason
    to suppose that Mr. Bashforth was dealing in heroin, but that conventional
    methods of surveillance were unlikely to provide proof that he was doing so.

    - 5 -

    No suggestion was made in Your Lordships' House that the South Yorkshire
    Police had operated otherwise than in accordance with the Home Office
    guidelines.

    Even so, it was argued for the appellant, the evidence was
    unacceptable in principle and should not be admitted. Private conversations
    on private property of a kind which could not be overheard save by means of
    listening devices should be inviolate save where intrusion upon them was
    authorised by law. The procedure adopted in the present case should not be
    accepted as a means of obtaining evidence, the more so in a case, such as the
    present, where it involved trespass and, at least arguably, criminal damage to
    property.

    Mr. Muller Q.C., representing the appellant, likened the case of a
    private conversation conducted in a private house to that of a private telephone
    conversation by means of the public telecommunications system. The
    interception of the latter was strictly regulated by the provisions of the
    Interception of Communications Act 1985. This Act had been passed as a
    result of the decision of the European Court of Human Rights in Malone v.
    United Kingdom
    (1984) 7 E.H.R.R. 14. In that case, the applicant's
    telephone calls and correspondence had been intercepted by the police. The
    interception had been carried out pursuant to a warrant issued by the Home
    Secretary, but there was no authority in statute or common law for such a
    warrant. The applicant had brought civil proceedings against the police in the
    High Court, but without success. Megarry J. concluded, after an extensive
    review of the authorities, that the applicant had no right of action against the
    police under English law: Malone v. Metropolitan Police Commissioner
    [1979] Ch 344. In the course of his judgment, however, Megarry J.
    commented (p. 380E-H) that telephone tapping was a subject which cried out
    for legislation, and that the requirements of the European Convention for the
    Protection of Human Rights and Fundamental Freedoms (1953) should provide
    a spur to action.

    These comments were resoundingly echoed by the European Court of
    Human Rights. The Court held that the tapping of the applicant's telephone
    amounted to a breach of his rights under article 8 of the Convention. That
    article provides as follows:

    "1. Everyone has the right to respect for his private and family
    life, his home and his correspondence.

    There shall be no interference by a public authority with the
    exercise of this right except such as is in accordance with the
    law and is necessary in a democratic society in the interests of
    national security, public safety or the economic wellbeing of
    the country, for the prevention of disorder or crime, for the
    protection of health or morals, or for the protection of the
    rights and freedoms of others."

    - 6 -

    At paragraph 66 of its judgment (pp. 39-40) the Court held that article
    8.2. imposed requirements over and above compliance with the domestic law.
    These included the requirement that the law must be adequately accessible.
    At paragraph 67 the court added (pp. 40-41) that

    "... the law must be sufficiently clear in its terms to give citizens an
    adequate indication as to the circumstances in which and the conditions
    on which public authorities are empowered to resort to the secret and
    potentially dangerous interference with the right to respect for private
    life and correspondence."

    Mr. Mulier contended that in the present case there had been
    interception which was not in accordance with the law and further that there
    had been a breach of the requirement of accessibility to information about the
    conditions in which it took place. The Home Office circular was placed in the
    library of the House of Commons, but knowledge of its terms was not
    available to the general public.

    Reverting to the Interception of Communications Act 1985, Mr. Muller
    pointed out that the use in evidence of material obtained by the interception
    of communications was expressly forbidden by section 9. He added that there
    had evidently been a similar restriction on material obtained by the use of
    surveillance devices in the years prior to 1984. He referred us in this
    connection to a Home Office letter dated 1 July 1977, addressed to chief
    constables, which appears to have been the precursor to the 1984 guidelines,
    and which stated that "the primary purpose of using equipment for aural or
    visual surveillance should be to help confirm or dispel a suspicion of serious
    crime, and not to collect evidence (except where, as in blackmail, the spoken
    word is the kernel of the offence)." This is to be contrasted with the opening
    sentence of paragraph 10 of the 1984 guidelines which reads

    "It is accepted that there may be circumstances in which material
    obtained through the use of equipment by the police for surveillance
    as a necessary part of a criminal investigation could appropriately be
    used in evidence at subsequent court proceedings. ..."

    In Reg. v. Preston [1994] 2 A.C. 130, 148 Lord Mustill. referring to
    paragraph 10, had said that this departure from previous practice was itself
    contradicted a few weeks later by the Home Office White Paper. The
    Interception of Communication in the United Kingdom (Cmnd. 9438) designed
    to lay the ground for the Bill which became the Interception of
    Communications Act 1985. Paragraph 12(f) of the White Paper had stated
    that

    "The Bill will provide for controls over the use of intercepted material.
    By making such material generally inadmissible in legal proceedings
    it will ensure that interception can be used only as an aspect of
    investigation, not of prosecution."

    - 7 -

    It is true that the Home Office guidelines were concerned with aural
    and visual surveillance devices whereas the 1985 Act is concerned with
    telephone tapping and the interception of postal communications, but it is
    difficult to see why different rules should apply to the admissibility of
    evidence gained from these sources. The difficulty is compounded by the
    provisions of the Intelligence Services Act 1994 which govern the activities
    of the Secret Intelligence Service, the Government Communications
    Headquarters and the Security Service. One of the effects of section 2(2)(a)
    and section 5(4) of the Act is that information obtained by the Secret
    Intelligence Service or the Security Service through the use of listening
    devices may be disclosed not only for the purpose of preventing or detecting
    serious crime but also for the purpose of any criminal proceedings.

    Finally, Mr. Muller turned to the decision of Your Lordships' House
    in Reg. v. Sang [1980] AC 402. That decision is, of course, authority for
    the proposition that a judge has no discretion to refuse to admit relevant
    evidence on the ground that it was obtained by improper or unfair means.
    Lord Diplock said, at p. 437:

    "(1) A trial judge in a criminal trial has always a discretion to refuse
    to admit evidence if in his opinion its prejudicial effect outweighs its
    probative value. (2) Save with regard to admissions and confessions
    and generally with regard to evidence obtained from the accused after
    commission of the offence, he has no discretion to refuse to admit
    relevant admissible evidence on the ground that it was obtained by
    improper or unfair means. The court is not concerned with how it was
    obtained."

    As to this, Mr. Muller submitted firstly that the general rule in Sang
    did not apply to the evidence with which the present case was concerned
    because that evidence fell within the category of admissions, confessions, and
    other evidence obtained from the accused after commission of the offence.
    In my judgment, this submission has no force. It is clear from an earlier
    passage in the speech of Lord Diplock, at p. 436B, that the exceptional
    category which he had in mind consisted of

    "evidence tantamount to a self-incriminatory admission which was
    obtained from the defendant, after the offence had been committed, by
    means which would justify a judge in excluding an actual confession
    which had the like self-incriminating effect."

    He continued, at p. 436c

    "My Lords, I propose to exclude, as the certified question does,
    detailed consideration of the role of the trial judge in relation to
    confessions and evidence obtained from the defendant after commission
    of the offence that is tantamount to a confession. It has a long history
    dating back to the days before the existence of a disciplined police

    - 8 -

    force, when a prisoner on a charge of felony could not be represented
    by counsel and was not entitled to give evidence in his own defence
    either to deny that he had made the confession, which was generally
    oral, or to deny that its contents were true. The underlying rationale
    of this branch of the criminal law, though it may originally have been
    based upon ensuring the reliability of confessions is, in my view, now
    to be found in the maxim nemo debet prodere se ipsum, no one can be
    required to be his own betrayer or in its popular English mistranslation
    'the right to silence'. That is why there is no discretion to exclude
    evidence discovered as the result of an illegal search but there is
    discretion to exclude evidence which the accused has been induced to
    produce voluntarily if the method of inducement was unfair."

    In the present case, I would regard it as a misuse of language to
    describe the appellant as having been "induced" to make the admissions which
    were recorded on the tape. He was under no inducement to do so. But if this
    be too narrow a view, the only result would be to bring into play the judge's
    discretion as to whether or not the evidence should in fairness be admitted.
    It would not make the evidence intrinsically inadmissible.

    Secondly Mr. Muller submitted that the rule in Reg v. Sang [1980]
    A.C. 402 must be taken to have been modified by the enactment of section 9
    of the Interception of Communications Act 1985, prohibiting the admission of
    what would otherwise be admissible evidence. This too appears to me to be,
    with respect, a wholly unsustainable submission. If we were to have regard
    to the provisions of the Act of 1985 which prohibit the admission of evidence
    obtained by comparable means to those used in the present case why should
    we not also have regard to the provisions of the Intelligence Services Act 1994
    which authorise the admission of evidence obtained by identical means? I am
    satisfied, for my part, that neither of these statutes should be regarded as
    affecting the common law principles laid down by your Lordships' House in
    Reg. v. Sang.

    In truth, in the light of Reg. v. Sang, the argument that the evidence
    of the taped conversation is inadmissible could only be sustained if two wholly
    new principles were formulated in our law. The first would be that the
    appellant enjoyed a right of privacy, in terms similar to those of article 8 of
    the Convention, in respect of the taped conversation. The second, which is
    different though related, is that evidence of the conversation obtained in
    breach of that right is inadmissible. The objection to the first of these
    propositions is that there is no such right of privacy in English law. The
    objection to the second is that even if there were such a right the decision of
    Your Lordships' House in Reg. v. Sang and the many decisions which have
    followed it make it plain that as a matter of English law evidence which is
    obtained improperly or even unlawfully remains admissible, subject to the
    power of the trial judge to exclude it in the exercise of his common law
    discretion or under the provisions of section 78 of the Police and Criminal
    Evidence Act 1984.

    - 9 -

    If evidence obtained by way of entrapment is admissible, then a fortiori
    there can hardly be a fundamental objection to the admission of evidence
    obtained in breach of privacy. In Reg. v. Sang itself, at pp. 429-430,
    Lord Diplock noted that if evidence obtained by entrapment were inadmissible
    this would have the effect of establishing entrapment as a defence to a
    criminal charge. By parity of reasoning, if evidence obtained by a breach of
    privacy were inadmissible then privacy too would become a defence to a
    criminal charge where the substance of the charge consisted of acts done or
    words spoken in private. Such a proposition does not bear serious
    examination.

    I conclude, therefore, that the appellant fails upon the first issue. The
    evidence of the taped conversation was clearly admissible as a matter of law.

    I turn, then, to the second issue, namely whether the judge should
    nevertheless have excluded it in the exercise of his common law discretion or
    under the powers conferred upon him by section 78. The only element of the
    common law discretion which is relevant for present purposes is that part of
    it which authorises the judge "to exclude evidence if it is necessary in order
    to secure a fair trial for the accused", as Lord Griffiths put it in Scott v. The
    Queen, Barnes v. The Queen
    [1989] A.C. 1242, 1256. It is therefore
    unnecessary to consider the common law position separately from that which
    arises under section 78, I would respectfully agree with Lord Taylor of
    Gosforth C.J. that the power conferred by section 78 to exclude evidence in
    the interests of a fair trial is at least as wide as that conferred by the common
    law.

    I hope that I do not unduly condense the case put forward by
    Mr. Muller if I say that, whereas his submissions upon the first issue placed
    indirect reliance upon article 8 of the Convention, his submissions upon the
    second issue were based directly and almost exclusively upon the terms of that
    article read with section 78. In considering the second issue I have been
    much assisted by the written submission put forward with the consent of Your
    Lordships' House and of the parties by the National Council for Civil
    Liberties ("Liberty"). As Liberty has observed, this case raises for the first
    time the question whether a criminal court, in considering its power under
    section 78 of the Police and Criminal Evidence Act 1984, is required to have
    regard to the European Convention and the jurisprudence of the European
    Court of Human Rights, and if so whether a violation of the Convention is to
    be regarded per se as a ground for excluding otherwise admissible evidence.

    I take first the submissions on this question which were put forward by
    Mr. Muller on behalf of the appellant. He referred to the full terms of section
    78(1), which reads as follows

    "In any proceedings the court may refuse to allow evidence on which
    the prosecution proposes to rely to be given if it appears to the court
    that, having regard to all the circumstances, including the

    - 10 -

    circumstances in which the evidence was obtained, the admission of
    the evidence would have such an adverse effect on the fairness of the
    proceedings that the court ought not to admit it."

    The appellant contends that these words plainly require the court, in
    considering whether or not to allow the relevant evidence, to have regard to
    "all the circumstances, including the circumstances in which the evidence was
    obtained." If the circumstances in which the evidence was obtained amounted
    to an apparent invasion of the appellant's rights of privacy under article 8, that
    is accordingly something to which the court must have regard. The only
    remaining question is whether the evidence which was obtained in such
    circumstances would have such an adverse effect on the fairness of the
    proceedings that the court ought not to admit it. As to that, the appellant
    submits that since the proceedings themselves are only possible because of the
    improper conduct of the executive, the court should conclude that the
    admission of evidence obtained in these circumstances would have such an
    adverse effect on the fairness of the proceedings that the court ought not to
    admit it.

    The argument put forward by Liberty similarly started from the
    premise that the duty of the court under section 78 to have regard to the
    circumstances in which the evidence was obtained necessarily included a duty
    to have regard to the fact that the evidence was apparently obtained in
    circumstances which amounted to a breach of the provisions of article 8. As
    a result, the appellant was entitled to invoke article 13 of the Convention
    which provides

    "Everyone whose rights and freedoms as set forth in this Convention
    are violated shall have an effective remedy before a national authority

    In Reg. v. Secretary' of State for the Home Department, Ex parte Brind
    [1991] 1 AC 696, 747 Lord Bridge of Harwich had accepted that

    "The United Kingdom is obliged to secure the rights which the
    Convention guarantees, including ... the right under article 13 to an
    effective remedy for any violation."

    But the remedy which article 13 required, according to the submissions of
    Liberty, need not go so far as to exclude evidence obtained in breach of
    article 8. It is sufficient if the national law provides an effective means of
    reviewing the admissibility of the evidence in the light of the provisions of
    article 8. Section 78 provides for just such a review, and therefore satisfies
    the requirements of article 13.

    In the present case the trial judge had substantially followed the view
    of the law advocated by Liberty. He had accepted that there was at any rate
    an arguable breach of article 8, but had concluded that neither this nor any of

    - 11 -

    the other circumstances of the case required the exclusion of the taped
    evidence. In the Court of Appeal, however, Lord Taylor of Gosforth C.J.
    [1995] Q.B. 27, 40 had expressed himself somewhat differently. He said

    "As to the argument based on article 8 of the European Convention on
    Human Rights, counsel for the Crown rightly pointed out that it is not
    (as yet) part of the law of the United Kingdom since it has not been
    enacted into our statutory law. He referred to Chundawadra v.
    Immigration Appeal Tribunal
    [1988] Imm. A.R. 161 and Pan-
    American World Airways Inc v. Department of Trade
    [1976] 1 Lloyd's
    Rep. 257. From these authorities it is clear that it is permissible to
    have regard to the Convention, which is of persuasive assistance, in
    cases of ambiguity or doubt. In the circumstances of the present case
    the position is neither ambiguous nor doubtful: nor is it incumbent on
    us to consider whether there was a breach of article 8, and we do not
    propose to do so."

    Both Liberty and the respondent have taken these words as amounting
    to an assertion that article 8 is irrelevant to a court's exercise of its powers
    under section 78. On that basis, say Liberty, the Lord Chief Justice has fallen
    into error. If article 8 were irrelevant to the exercise of the section 78 power,
    then that power could not amount to an effective remedy for the purposes of
    article 13. The respondent, on the other hand, argues that the Lord Chief
    Justice was quite right to regard the Convention as irrelevant. In my
    judgment, both of these arguments proceed on a fallacious assumption. The
    Lord Chief Justice did not describe article 8 as "irrelevant" On the contrary
    he referred to it twice in the paragraph of his judgment immediately following
    that which I have quoted, and in which he sets out the ratio of the decision of
    the Court of Appeal. In the passage which I have quoted the Lord Chief
    Justice as I understand him was saying simply that article 8 forms no part of
    our law, that this was not a case of ambiguity or doubt in which it could be
    invoked as an aid to construction, and that it was no part of the function of the
    Court of Appeal to consider whether there was a breach of the article. The
    question whether there was a breach, and if so what the consequences should
    be, is solely one for the European Court of Human Rights.

    That is not to say that the principles reflected in the Convention on
    Human Rights are irrelevant to the exercise of the section 78 power. They
    could hardly be irrelevant, because they embody so many of the familiar
    principles of our own law and of our concept of justice. In particular, of
    course, they assert the right of the individual to a fair trial, that is to say, in
    the words of article 6.1. "a fair and public hearing within a reasonable time
    by an independent and impartial tribunal established by law."

    My Lords, I think it is of interest in the present case that the appellant
    makes no complaint of an infringement of his rights under article 6.1. I also
    note with interest the decision of the European Court of Human Rights in
    Schenk v. Switzerland (1988) 13 E.H.R.R 242. In that case the applicant had

    - 12 -

    complained that the making and use as evidence against him of an unlawfully
    obtained recording of a telephone conversation violated his right to a fair trial
    under article 6 and his right to confidentiality of telephone communications
    under article 8. Rejecting the complaint under article 6 the Court said this,
    at paragraphs 46 and 47 (pp. 265-266) of its judgment:

    "46. While article 6 of the Convention guarantees the right to a fair
    trial, it does not lay down any rules on the admissibility of
    evidence as such, which is therefore primarily a matter for
    regulation under national law.

    The Court therefore cannot exclude (sic) as a matter of
    principle and in the abstract that unlawfully obtained evidence
    of the present kind may be admissible. It has only to ascertain
    whether Mr. Schenk's trial as a whole was fair.

    "47. Like the Commission it notes first of all that the rights of the
    defence were not disregarded.

    The applicant was not unaware that the recording complained
    of was unlawful because it had not been ordered by the
    competent judge. He had the opportunity - which he took - of
    challenging its authenticity and opposing its use, having
    initially agreed that it should be heard. The fact that his
    attempts were unsuccessful makes no difference."

    The Court went on to hold at paragraph 53 (p. 268) of its judgment
    that it was not necessary to consider the complaint under article 8 "as the
    issue is subsumed under the question (already dealt with from the point of
    view of article 6) of the use made of the cassette during the judicial
    investigation and the trial."

    The submission put forward on behalf of Liberty suggests that the
    European Court of Human Rights would not necessarily have reached the
    same conclusion under article 6 in the circumstances of the present case,
    firstly because in the present case (unlike Schenk) there was no evidence
    against the accused other than the tape-recorded conversation and secondly
    because whilst the interception in Schenk was conceded by the Swiss
    government to have been in breach of domestic law safeguards, in the present
    case there are no domestic law safeguards and for that reason the breach is
    arguably of a more fundamental character. I would, for my part, find it
    difficult to attach very great significance to either of these distinguishing
    features, but in any event we are not concerned with the view which the
    European Court of Human Rights might have taken of the facts of the present
    case. Its decision is no more a part of our law than the Convention itself.
    What is significant to my mind is the Court's acceptance of the proposition
    that the admissibility of evidence is primarily a matter for regulation under

    - 13 -

    national law. and its rejection of the proposition that unlawfully obtained
    evidence is necessarily inadmissible.

    Further, it is to be noted in this connection that although the recording
    of the relevant conversation in the present case was achieved by means of a
    civil trespass and, on the face of it, criminal damage to property, Mr. Muller
    accepted at the outset that these matters were not fundamental to his argument.
    His submissions would have been essentially the same if the surveillance
    device had been lawfully positioned outside the premises, or, for that matter,
    if the conversation had been overheard by a police officer with exceptionally
    acute hearing listening from outside the window.

    This brings one back to the fact that, under English law, there is in
    general nothing unlawful about a breach of privacy. The appellant's case rests
    wholly upon the lack of statutory authorization for the particular breach of
    privacy which occurred in the present case, and the consequent infringement,
    as the appellant submits, of article 8.

    My Lords, I am satisfied, for my part, that in these circumstances the
    appellant can no more succeed upon the second issue than upon the first. I
    am prepared to accept that if evidence has been obtained in circumstances
    which involve an apparent breach of article 8, or, for that matter an apparent
    breach of the law of a foreign country, that is a matter which may be relevant
    to the exercise of the section 78 power. This does not mean that the trial
    judge is obliged to decide whether or not there has been a breach of the
    Convention or of the foreign law. That is not his function, and it would be
    inappropriate for him to do so. By the same token, it would have been
    inappropriate for the judge in the present case to have decided whether the
    admitted damage caused by the police to Mr. Bashforth's property amounted
    to a criminal offence under section 1 of the Criminal Damage Act 1971. But
    if the behaviour of the police in the particular case amounts to an apparent or
    probable breach of some relevant law or convention, common sense dictates
    that this is a consideration which may be taken into account for what it is
    worth. Its significance, however, will 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. The fact that the
    behaviour in question constitutes a breach of the convention or of a foreign
    law can plainly be of no greater significance per se than if it constituted a
    breach of English law. Upon the facts of the present case, in agreement with
    the Court of Appeal, I consider that 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.

    I confess that I have reached this conclusion not only quite firmly as
    a matter of law, but also with relief. It would be a strange reflection on our
    law if a man who has admitted his participation in the illegal importation of

    - 14 -

    a large quantity of heroin should have his conviction set aside on the grounds
    that his privacy has been invaded.

    There is only one further word which I would add. The sole cause of
    this case coming to your Lordships' House is the lack of a statutory system
    regulating the use of surveillance devices by the police. The absence of such
    a system seems astonishing, the more so in view of the statutory framework
    which has governed the use of such devices by the Security Service since
    1989, and the interception of communications by the police as well as by other
    agencies since 1985. I would refrain, however, from further comment
    because counsel for the respondent was able to inform us, on instructions, that
    the government proposes to introduce legislation covering the matter in the
    next session of Parliament.

    My Lords, I would dismiss the appeal.

    LORD NICHOLLS OF BIRKENHEAD

    My Lords,

    I have had the opportunity to read in advance a draft of the speech of
    my noble and learned friend Lord Nolan. I agree that this appeal should be
    dismissed. I add only two observations of my own. First, the appellant
    contended for a right of privacy in respect of private conversations in private
    houses. I prefer to express no view, either way, on the existence of such a
    right. This right, if it exists, can only do so as part of a larger and wider
    right of privacy. The difficulties attendant on this controversial subject are
    well-known. Equally well-known is the continuing, widespread concern at the
    apparent failure of the law to give individuals a reasonable degree of
    protection from unwarranted intrusion in many situations. I prefer to leave
    open for another occasion the important question whether the present,
    piecemeal protection of privacy has now developed to the extent that a more
    comprehensive principle can be seen to exist. It is not necessary to pursue
    this question on this appeal. Even if the right for which the appellant
    contended does exist, this would not lead to the consequence that obtaining
    evidence for the purpose of detecting or preventing serious crime was an
    infringement of the right or, even if it were, that the evidence was
    inadmissible at the trial.

    Second, the discretionary powers of the trial judge to exclude evidence
    march hand in hand with article 6.1 of the European Convention of Human
    Rights. Both are concerned to ensure that those facing criminal charges
    receive a fair hearing. Accordingly, when considering the common law and
    statutory discretionary powers under English law the jurisprudence on article
    6 can have a valuable role to play. English law relating to the ingredients of

    - 15 -

    a fair trial is highly developed. But every system of law stands to benefit by
    an awareness of the answers given by other courts and tribunals to similar
    problems. In the present case the decision of the European Court of Human
    Rights in Schenk v. Switzerland (1988) 13 E.H.R.R. 242 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.

    - 16 -


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