P & Ors, R. v [2000] UKHL 69

House of Lords

Between

P & Ors, R. vAppellant

Before

Lord Hutton

Date 8 June 2000

P. AND OTHERS JUDGMENT: 8 JUNE 2000 These speeches have been edited so as to conform with the Order of the House of 24th May 2000. This Order confirmed the Order of the Court of Appeal (Criminal Division) of 16th May 2000, which states that the Court of Appeal has:

"Directed that reporting restrictions in accordance with section 37 of the Criminal Procedure and Investigations Act 1996 shall apply, provided that: (a) a copy of this Judgment may be circulated among practitioners for the limited purpose of reference to any Court or Judge concerned with the issues dealt with and provided that, in producing or referring to the Judgment before any court, the practitioner reminds the Court of the need not to refer to the names of the Defendants or the Court from which the appeal emanate. (b) For the purposes of reporting the Court's decision, the order does not prohibit reports of the Judgment, the contents of which are limited to identifying and reporting the legal issues; all references to the names and details of the police operations concerned, the Court of trial, and the identity of [the country] in which the intercepts were made being omitted"

LORD HUTTON "Intercepts of this kind are known to [the law of country 'A'] as coercive measures and notwithstanding that they represent an invasion of privacy have been acceptable to the European Court in Strasbourg who have expressed themselves satisfied with the domestic remedies available to protect the individual in [country 'A'] even though under [the law of country 'A'] the content of the intercepted calls is admissible evidence in a criminal case." "The telephone transcripts provide important relevant probative and admissible evidence which the jury could and should consider in coming to their conclusions and to deprive them of that material would almost certainly result in a miscarriage of justice." "Article 8 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. 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 interests of national security, public safety or the economic well-being 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." "Article 6 1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ....... " The Convention : Article 8 "Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct; he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." "The Court would reiterate its opinion that the phrase 'in accordance with the law' does not merely refer back to domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, which is expressly mentioned in the preamble to the Convention. The phrase thus implies - and this follows from the object and purpose of Article 8 - that there must be a measure of legal protection in domestic law against arbitrary interferences by public authorities with the rights safeguarded by paragraph 1. Especially, where a power of the executive is exercised in secret, the risks of arbitrariness are evident. Undoubtedly, as the Government rightly suggested, the requirements of the Convention, notably in regard to foreseeability, cannot be exactly the same in the special context of interception of communications for the purposes of police investigations as they are where the object of the relevant law is to place restrictions on the conduct of individuals. In particular, the requirement of foreseeability cannot mean that an individual should be enabled to foresee when the authorities are likely to intercept his communications so that he can adapt his conduct accordingly. Nevertheless, 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 this secret and potentially dangerous interference with the right to respect for private life and correspondence." The Convention : Article 6 :

"Exclusion of Unfair Evidence (1) 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 circumstances in which the evidence was obtained, the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. (2) Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence." "

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 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. 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. ...."

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

(APPELLANTS)

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

REASONS: [ ] 2000

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with it and it was for the reasons which he gives that I dismissed these appeals.

LORD GOFF OF CHIEVELEY

My Lords,

I have had the opportunity of reading in draft the opinion prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with the reasons given by him for dismissing the appeals.

LORD BROWNE-WILKINSON

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with it and it was for the reasons he gives that I dismissed the appeals.

LORD COOKE OF THORNDON

My Lords,

Having had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse of Woodborough, I agree with the reasons given by him for the dismissal of these appeals.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

In March of this year a Crown Court Judge sitting in London held a preparatory hearing under s.29 of the Criminal Procedure and Investigations Act 1996 at the request of the parties to decide a question of the admissibility of evidence in connection with a prosecution of three defendants for serious alleged offences contrary to s.20 of the Misuse of Drugs Act 1971. The indictment contained three counts each charging all three defendants with assisting in the United Kingdom in the commission of drug offences in European Union countries 'A' and 'B' contrary to the laws of those countries.

The Crown case is that the defendants (who are British citizens) had, together with 'X', a national of country 'A', and 'Y', a national of country 'B', (and presumably others) been concerned in the smuggling of a substantial quantity of a class A drug of a high purity into and out of country 'A', it is said with a view to its later being smuggled into the United Kingdom. The defendant 'P' was alleged to have been the ringleader in the United Kingdom using the defendants 'Q' and 'R' as his 'employees'. Between October 1998 and January 1999 all three defendants made separate visits to country 'A' and met (among others) 'X'. Towards the end of January 'Q' and 'R', it is alleged on 'P''s instructions, collected the drugs from 'X' in country 'A' and 'Q' took it to country 'B' and gave it to 'Y' who worked on a ship so that he could bring it into England. 'Y' was arrested in country 'B' before he could leave and 'X' was arrested in country 'A'. The defendants were arrested in England.

The authorities in country 'A' had suspected 'X' of being concerned in drug trafficking for some time and in October 1998 the Public Prosecutor in country 'A' had lawfully obtained from an Examining Magistrate in country 'A' an order authorising the interception of 'X''s telephone calls on certain identified telephones which he was known to use. One of these was a mobile telephone which used a network in country 'A'. The result was that, when he made or received calls on this telephone, they could be monitored by the country 'A' authorities in that country even though he might at the time be in England or elsewhere outside country 'A'. The authorities in country 'A' were thus able to record in that country telephone calls made or received by 'X' anywhere using his mobile telephone or using one of the other identified land lines in country 'A' which was covered by the order. Under the law of country 'A' such orders were valid for 4 weeks and after the expiry of that period had to be renewed on fresh applications to the Magistrate. The Prosecutor thereafter duly applied for and obtained the requisite renewals.

The intercepts from country 'A' resulted in recordings being made of various telephone conversations between 'X' and each of the defendants. The telephone calls were made from country 'A' to the United Kingdom, or from the United Kingdom to country 'A', or when 'X' was using his mobile telephone while visiting England and both parties to the recorded conversation were in England, or when the relevant defendant was visiting country 'A' and both parties were in that country. But in all cases the intercepts and recordings were made in country 'A' in accordance with the law of that country.

Since these recorded conversations involved persons who appeared to be English and 'X' had also been observed by the police of country 'A' meeting persons whom they could not identify, the Prosecutor, with the approval of the Magistrate, authorised the police to seek the assistance of the United Kingdom authorities. This cooperative approach paid off, ultimately leading to the arrests to which I have already referred and the seizure of the cocaine. The exchange of information was formalised in an exchange of requests between the English prosecuting authorities and the prosecuting authorities in country 'A' in January 1999. The English request was sent pursuant to the provisions of the Criminal Justice (International Co-operation) Act 1990. By a document dated simply "May 1999" addressed to "The Competent Judicial Authorities of [country 'A']" and sent by a designated Crown Prosecutor, he requested inter alia that officers of the National Crime Squad should be allowed to travel to country 'A' and obtain all the interception material and evidence relating to the case of 'X' which concerned the three defendants. The relevant recordings could not under the law of country 'A' be lawfully released to the British authorities without an order of a judge of the relevant District Court in Country 'A'. On 29 June 1999 a judge of that court made the requisite order and the recordings were then handed over. These recordings were included in the material disclosed to the defence in the English prosecutions and the Crown proposed to put them in evidence as part of the Crown case at the trial of the defendants.

It was in these circumstances that the question of the admissibility of these recordings was raised before the Crown Court Judge. He heard evidence of how the intercepts had been authorised and the recordings made, of the law of country 'A' and of the part played by the British police and how the recordings and transcripts had come into the possession of the Crown Prosecution Service. He rejected the defendants' submission that the recordings were inadmissible in English law and should be excluded from the evidence at the trial. He held that they were not made inadmissible by the Interception of Communications Act 1985 since that Act only applied to interceptions in this country. He followed the case of R v Aujla

[1998] 2 Cr App R 16

. He declined to exercise his discretion to exclude the evidence under s.78 of the Police and Criminal Evidence Act 1984.

As regards the law of country 'A', he found that "the European Convention on Human Rights has been part of the law of country 'A' for some years"; that the intercepts had been made with the prescribed judicial authority; and that -

There had been no infringement of the requirements of the Convention. The intercepts had been lawful under the law of country 'A'.

As regards the question of fairness under s.78, he referred to the fact that there was no criticism of the role of the police forces in either country, that the evidence was admissible in country 'A' and had already been used in support of the successful prosecution of 'X' and that it was intended to call 'X' as a prosecution witness at the defendants' trial. He concluded that -

He gave the defendants leave to appeal because he had considered himself bound by the decision in Aujla and the Court of Appeal (Criminal Division) might wish to review that case.

In the Court of Appeal the defendants accepted that the law of country 'A' complied with the Convention but challenged the Judge's finding that the intercepts had been in accordance with that law. The Court of Appeal considered the evidence and the arguments of counsel in support of this ground of appeal: the Court of Appeal upheld the Judge's finding. The defendants also submitted that whatever may have been the position under the law of country 'A' it was contrary to the public policy of the United Kingdom as evidenced by the Interception of Communications Act 1985 to admit evidence of intercepts in English proceedings no matter where the intercepts had been made. This overlapped with an argument presented by another counsel in support of the appeals that the protection provided by the Convention extended also to the use of private material lawfully obtained and that its use in English proceedings without express authorisation by English law constituted an infringement of the defendants' rights. The defendants submitted that Aujla should not be followed.

The Court of Appeal rejected these arguments. They reviewed the authorities, applied what had been said by your Lordships' House in Khan

[1997] AC 558

and approved and followed Aujla . They upheld the judge's exercise of his discretion under s.78. They dismissed the appeals but, before they had delivered their reasons, the ECHR published its judgment in Khan (35394/97). The Court of Appeal considered that what the ECHR had there said provided further support for their approach to the interrelation of the Convention and s.78. The Court of Appeal certified questions of general public importance and the defendants have, with leave, appealed to your Lordships' House.

Before your Lordships the defendants have accepted (as they were in practical terms bound to) the findings of fact of the judge upheld by the Court of Appeal; similarly they were not in a position further to challenge the judge's exercise of his discretion under s.78 unless they could establish that it was vitiated by some error of principle or mistake of law. The defendants have thus argued their appeals upon the basis that, although the intercept evidence was properly obtained in accordance with the Convention and the law of country 'A', its use in the English trial of the defendants will be contrary to the policy of English law and to the Convention. In relation to the policy of English law, they relied particularly upon R v Preston

[1994] 2 AC 130

and Morgans v DPP

[2000] 2 WLR 386

. In relation to the Convention, arguments are advanced under both Article 8 and Article 6. These Articles provide -

Paragraphs 2 and 3 of Article 6 give more specific rights to those charged with criminal offences but do not impinge upon the question which your Lordships have to consider. The defendants also relied upon Article 13 and sections 6 and 7 of the Human Rights Act. These further arguments were dependent upon their establishing breaches of Articles 8 or 6. The hearing, like that in the Court of Appeal, was conducted on the basis that the Human Rights Act had come fully into force since it was to be anticipated that the criminal proceedings would not have been concluded before it did.

At the conclusion of the hearing, at the request of all the parties and so that the criminal trial of the defendants could proceed without further adjournment, your Lordships announced that they would report to the House that the appeals should be dismissed and the judgment of the Court of Appeal upheld. It remains for your Lordships to give their reasons for this conclusion. I will take the Convention points first.

Before the passing of the Interception of Communications Act 1985, the power to intercept postal and telephone communications in this country was effectively without substantive legal regulation. Intercepts were carried out on the warrant of the Home Secretary. His power to authorise such intercepts was recognised in successive statutes but not otherwise defined. From time to time the interception of communications was the subject of parliamentary report as, for example, the Report of the Committee of Privy Councillors under the chairmanship of Lord Birkett in 1957 (Cmnd. 283). They were impressed by the value of the work done by those carrying out the interceptions in safeguarding the security of the realm and the frustration of the activities of criminals. But they also accepted the view of "all the authorities" that any disclosure of the extent of the use of interceptions would impair their effectiveness and be contrary to the public interest ( eg. paragraph 119). Thus, the culture was that maintaining secrecy was the paramount consideration. This had the consequence that the intercepts were not used in criminal prosecutions nor disclosed in any other way.

In 1977 an antique dealer, Mr James Malone, was prosecuted for receiving stolen goods. After two trials at which the jury could not agree, he was acquitted. But at his first trial there were found in one of the police witnesses' notebooks a note which appeared to be (and was) a transcript of a telephone intercept. Mr Malone then started civil proceedings in the Chancery Division to establish the extent of the tapping which had taken place and obtain a declaration that it was unlawful. He failed to obtain the declaration he was seeking but Megarry V-C was openly critical of the lack of any statutory regulation of the power,

[1979] Ch 344

. Mr Malone then made a claim against the UK Government in the ECHR alleging breaches of Articles 8 and 13 (8691/79). The Court held

(1985) 7 EHRR 14

that there had been a breach of Article 8 because English law did not satisfy the qualitative test necessary to meet the requirement that any interference with the right of privacy must be "in accordance with the law". (paragraphs 80 and 87) The Court (paragraph 66) applied what it had said in Sunday Times v. United Kingdom 2 EHRR 245 , paragraph 49:

Rejecting the Government's arguments, the Court said (paragraph 67):

This conclusion made it unnecessary for the Court to rule upon the other points raised under Article 8(2). However, it specifically accepted that in Great Britain the increase in crime and particularly the growth in organised crime, the increasing sophistication of criminals and the ease and speed with which they can move about had made telephone interception an indispensable tool in the investigation and prevention of serious crime. But it was open to abuse. "This being so, the resultant interference can only be regarded as 'necessary in a democratic society' if the particular system of secret surveillance adopted contains adequate guarantees against abuse." (paragraph 81, citing Klass v. Federal Republic of Germany 2 EHRR 214 , paras. 49-50)

This decision made it clear that the enactment of a statutory provision which was sufficiently accessible and precise was essential if the UK Government was to comply with its obligations under the Convention. Telephone interception was justifiable but must be based on legal provisions of the requisite quality which would preclude abuse. The 1985 Act was the Government's response.

A similar decision was arrived at by the ECHR in relation to covert surveillance devices planted by the police on private property in the case of Khan v UK ( sup .). English law failed the qualitative test.

As explained earlier, it is now accepted that interception of the calls received and made by 'X' on his mobile did not involve any breach of Article 8. The intercepts were made in country 'A' by the authorities of that country. The law of country 'A' satisfied the requirements of the Convention. The intercepts and the use made of them were subject to judicial supervision. Judicial authority to hand them over to the British prosecuting authorities was sought and given. Any criticisms which may be made of the telephone tapping laws of the UK are irrelevant. They do not apply to anything occurring in country 'A' nor do they need to be invoked in order to justify what occurred there.

The defendants therefore based their argument upon what occurred in the United Kingdom, that is to say, the use made of the intercepts in the United Kingdom. The defendants relied upon the decision of the ECHR in Amann v Switzerland (27798/95). In October 1981 a telephone call was intercepted by a woman at the Soviet Embassy in Berne to Mr Amann ordering a depilatory device from him. It was the practice of the Swiss authorities at that time to carry out counter-intelligence surveillance measures in relation to the Soviet Embassy. This was legitimate. Mr Amann was investigated and the authorities were satisfied that his activities were wholly innocent; he had been involved fortuitously in a telephone conversation recorded in the course of surveillance measures directed against others. The grievance of Mr Amann arose because notwithstanding his non-involvement in any material activity, his name and some details were placed upon a card and stored in the national security index. Nine years later the existence of this card index became public knowledge and led to his making a claim against the Swiss Government, first unsuccessfully in the Federal Court and then successfully in the ECHR. The ECHR held that the details on the card related to his private life and that "the storing by a public authority of data relating to the private life of an individual amounts to an interference within the meaning of Article 8"; "the subsequent use of the stored information has no bearing on that finding". (paragraphs 68-70) Neither the creation of the card nor its storage were 'in accordance with the law'.

It is not in dispute that the use made of an intercept can amount to an "interference" for the purposes of Article 8. But it will be appreciated that what has occurred in the present case is very different from what occurred in Amann . In the present case the relevant information, having been lawfully obtained for the purpose of assisting the prosecution of alleged smugglers of class A drugs, has not been used for any other purpose and has not been kept for longer than is necessary for that purpose. All that has been done has been done pursuant to statutory authority and subject to judicial supervision. No qualitative criticism can be made of the relevant statutory provisions. No breach of Article 8 has been shown. The Court of Appeal's conclusion was correct.

It will be necessary to refer to a further argument which was advanced by the defendants in relation to Article 8(2). It supported a submission that it is not "necessary" for the intercepts to be used for these prosecutions because equivalent intercepts obtained in England under English law would not be used for prosecutions: see R v Preston and Morgans v DPP. I will revert to this point when discussing those authorities and the policy argument.

The right in issue is the right to a fair trial - a fair hearing. This involves the same criterion as is applied in s.78:

As was observed by your Lordships' House in agreeing with the speech of Lord Nolan in Khan , s.78 requires the judge, when he exercises his discretion, to have regard to, among other things, the circumstances in which the evidence was obtained. The judge must take into account that the evidence was obtained by intercepting telephone conversations but he must base his decision upon the effect the admission of the evidence would have on the fairness of the trial.

The ECHR has explained the inter-relation of Articles 8 and 6 in the same way. The leading authority is Schenk v Switzerland (10862/84) 13 EHRR 242. The allegation against Mr Schenk was that he hired a man to kill his wife. Part of the evidence against him was a tape recording of a telephone conversation between Mr Schenk and the man he had hired. The tape recording had been made by the man. The Swiss courts admitted the evidence. Mr Schenk argued that the evidence had been obtained unlawfully and its admission made his trial unfair in breach of Article 6. The Swiss Government did not dispute that the recording had been obtained unlawfully. The ECHR said (paragraphs 46-7):

The ECHR also emphasised the fact that the Swiss courts, besides having the recording, had the man as a witness to give evidence of what Mr Schenk had said during the telephone conversation. The ECHR also rejected an argument that the use made of the recording, that is to say the use of it as evidence at Mr Schenk's trial, was contrary to Article 8. (paragraphs 52-3) The ECHR said that that question was subsumed in the answer it had given to the complaint under Article 6. Mr Schenk's complaints failed.

This decision of the ECHR therefore provides a highly persuasive authority in favour of the Crown. The critical question is the fairness of the trial. Questions of the admissibility of evidence are not governed by Article 8. The fair use of intercept evidence at a trial is not a breach of Article 6 even if the evidence was unlawfully obtained. It is a cogent factor in favour of the admission of intercept evidence that one of the parties to the relevant conversation is going to be a witness at the trial and give evidence of what was said during it.