United Kingdom House of Lords Decisions

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

P. AND OTHERS

(APPELLANTS)

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

JUDGMENT: 8 JUNE 2000

REASONS: 11 December 2000

"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"

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 -

"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."

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 -

"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."

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 -

"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. ....... "

    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:

"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."

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

"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."

    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:

"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."

    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):

"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 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.

    Later judgments of the ECHR contain statements to the same effect. In Teixeira de Castro v Portugal (25829/94) 28 EHRR 101, an agent provocateur case, the court said (at paragraph 34):

"The Court reiterates that the admissibility of evidence is primarily a matter for regulation by national law and as a general rule it is for the national courts to assess the evidence before them. The Court's task under the Convention is not to give a ruling as to whether statements of witnesses were properly admitted as evidence, but rather to ascertain whether the proceedings as a whole, including the way in which evidence was taken, were fair."

    Khan v United Kingdom (35394/97) was the ECHR judgment which followed on from the decision of your Lordships' House in R v Khan (sup.). Three relevant complaints were made by Mr Khan. Firstly he said that the UK Government had breached his rights under Article 8. The police had installed covert listening devices on private property without the knowledge or consent of the owner. The ECHR held that this had not been done "in accordance with the law" as the relevant law lacked the requisite clarity and therefore qualitatively failed to meet the Malone test. The complaint under Article 8 was therefore upheld. This complaint had not been seriously contested by the Government and, indeed, your Lordships' House had proceeded on the basis that there had been a breach of Article 8.

    Secondly, Mr Khan complained that there had been a breach of Article 6 as a tape recording obtained in breach of Article 8 had been admitted in evidence against him at his trial. This complaint was rejected. Mr Khan recognised that the fact that the evidence had been obtained in breach of Article 8 did not require the conclusion that it should be excluded at the trial but argued that there must be an effective procedure during the trial by which the defendant can challenge its admissibility, that the trial court should have regard to the nature of the violation and that, in distinction to Schenk, the obtaining of the conviction was effectively based upon the unlawfully obtained evidence. In paragraph 34 of the judgment the ECHR repeated what it had said in previous judgments. The admissibility of evidence was primarily a matter for regulation under national law.

"It is not the role of the Court to determine, as a matter of principle, whether particular types of evidence - for example, unlawfully obtained evidence - may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the 'unlawfulness' in question and, where violation of another Convention right is concerned, the nature of the violation found."

Having recognised the differences between the case before it and the Schenk case, the ECHR continued (paragraphs 38-40) -

"The central question in the present case is whether the proceedings as a whole were fair. With specific reference to the admission of the contested tape recording, the Court notes that, as in the Schenk case, the applicant had ample opportunity to challenge both the authenticity and the use of the recording. He did not challenge its authenticity, but challenged its use at the 'voire dire' and again before the Court of Appeal and the House of Lords. The Court notes that at each level of jurisdiction the domestic courts assessed the effect of admission of the evidence on the fairness of the trial by reference to s.78 of PACE, and the courts discussed, amongst other matters, the non-statutory basis for the surveillance. The fact that the applicant was at each step unsuccessful makes no difference (see the above-mentioned Schenk judgment, paragraph 47.)

The Court would add that it is clear that, had the domestic courts been of the view that the admission of the evidence would have given rise to substantive unfairness, they would have had a discretion to exclude it under s.78 of PACE.

In these circumstances, the Court finds that the use at the applicant's trial of the secretly taped material did not conflict with the requirements of fairness guaranteed by Article 6(1) of the Convention."

    It should be noted that the ECHR again emphasised that the defendant is not entitled to have the unlawfully obtained evidence excluded simply because it has been so obtained. What he entitled to is an opportunity to challenge its use and admission in evidence and a judicial assessment of the effect of its admission upon the fairness of the trial as is provided for by s.78.

    Mr Khan's third complaint was that his right to an effective remedy under Article 13 had been violated. The ECHR upheld this complaint because the remedy provided - complaint to the Police Complaints Authority - was not a right of recourse to an independent body and therefore was not an effective remedy. The ECHR emphasised that this was a separate question from anything which happened at the criminal trial. It was not within the power of the criminal courts to provide such a remedy. S.78 was concerned with the fairness of the trial not with providing a remedy for a breach of Article 8. The Court's decision on the complaint under Article 13 further confirms and reinforces its decision and reasoning in relation to Article 6.

    The decision of the ECHR is accordingly to the like effect to that of your Lordships' House when it was considering the appeal of Mr Khan. An assessment and adjudication under s.78 is the appropriate and right way in which to respond to an application to exclude evidence on the ground of a breach of a right to privacy. Lord Nicholls of Birkenhead was right to conclude his speech by saying -

".... the discretionary powers of the trial judge to exclude evidence march hand in hand with Article 6.1 of the European Convention on Human Rights. Both are concerned to ensure that those facing criminal charges receive a fair hearing. ........ In the present case the decision of the ECHR in Schenk v Switzerland 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." (p.583)

    The decision of your Lordships' House was arrived at a time before the Human Rights Act 1998 had been enacted let alone introduced into Parliament. Therefore the Convention did not then have the place it now has in English law. The importance of the ECHR decision is that it confirms that the direct operation of Articles 8 and 6 does not invalidate their Lordships' conclusion or alter the vital role of s.78 as the means by which questions of the use of evidence obtained in breach of Article 8 are to be resolved at a criminal trial. The criterion to be applied is the criterion of fairness in Article 6 which is likewise the criterion to be applied by the judge under s.78. Similarly, the ECHR decision that any remedy for a breach of Article 8 lies outside the scope of the criminal trial and that Article 13 does not require a remedy for a breach of Article 8 to be given within that trial shows that their Lordships were right to say that a breach of Article 8 did not require the exclusion of evidence. Such an exclusion, if any, would have to come about because of the application of Article 6 and s.78.

    The defendants' argument under Article 6 also fails and does so independently of their argument under Article 8.

    The other way in which the defendants put their case was to submit that there is a rule of policy of English law as demonstrated by legislation and the decisions in R v Preston and Morgans v DPP that intercept and surveillance evidence should not be used at criminal trials. This rule applies, it is submitted, wherever the interception takes place and regardless of by whom it was carried out. It is accepted that none of the United Kingdom Acts has a relevant extraterritorial application or itself precludes the use of this evidence at the defendants' trial. The decision of the Divisional Court in R v The Governor of Belmarsh Prison ex parte Martin [1995] 1 WLR 412 that foreign intercept evidence may be used in support of extradition proceedings is very much in point. The Act of 1985 did not apply to the relevant intercepts therefore the exclusionary provision, s.9, did not apply either. The Divisional Court also rejected the argument that it was a rule of English law derived from the Act and R v Preston that intercept evidence was not admissible in an English court.

    Any developed society has to have a scheme for the surveillance of those who are liable to attack or prey upon the society or its members. Such schemes have throughout history included the interception of communications and in modern times this has included telecommunications. This in turn has led on to the need for laws to limit and control such interceptions particularly where publicly provided or sponsored means of communication are involved. Since the Royal Mail came into existence it has been a criminal offence to interfere with the mail. The primary purpose of the Interception of Communications Act 1985, despite the apparent universality of its title, was to update and revise in statutory form laws which prohibited the interference with communications by post and public telecommunications systems and the exceptions to that prohibition. This then leads on to the question: on what basis is the government to be permitted to carry out the surveillance necessary for the health and survival of the society in which we live? S.2 of the Act accordingly provided for the Secretary of State to issue warrants authorising and requiring interceptions of communications by post or public telecommunication systems to be carried out. This section limits the grounds upon which the Home Secretary can do so. One ground to which it will be necessary to refer again is 2(2)(b) "for the purpose of preventing or detecting serious crime".

    But then a further question arises. If the interception results, as no doubt will not infrequently be the case, in the obtaining of evidence which will assist in the conviction of criminals, are the authorities going to use that evidence in court to assist in the prosecution of the criminals concerned? Other things being equal all relevant and probative evidence is admissible. But where surveillance evidence is concerned the use of the evidence comes at a price. If the fairness of the trial is to be preserved the defendant must be permitted to probe the evidence and question the witnesses who come to court to provide the proof. This means that disclosure has to be made and the secrecy of the means and extent of the surveillance have to be sacrificed. This is a real problem for those involved in the prevention and detection of crime as the cases involving informers and concealed cameras have shown. The solution traditionally adopted by the authorities has been to elect for the maintenance of secrecy and to prefer this to the use of covertly obtained material in court. This was the choice made in the 1985 Act. S.9 of the Act prevents any questions being asked in court which tend to suggest that an official may or may not have had authority under the Act to intercept a communication. In making this choice the Government were following the same approach, making secrecy the paramount consideration, as they had urged upon the Birkett Committee in 1957 and was accepted by that Committee. (Cmnd. 283) Other provisions of the Act, most notably s.6 limiting the dissemination and requiring the destruction of intercept material, are also designed to preserve secrecy.

    The oblique wording of s.9 is clearly directed to preserving the secrecy of any surveillance operation covered by the Act. S.9 does not as such say that the intercept evidence may not be used. It was this oblique method of drafting which gave rise to the two cases on which the defendants rely and to which I must now refer. The first was R v Preston decided in 1993 in relation to a telephone intercept in 1989 which together with information supplied by an informer had led to the arrest of the defendants. At their trial the defendants demanded the disclosure of the identity of the informer and the contents of the intercept. Both requests were refused by the prosecution, as regards the intercept information on the ground that the relevant material had been destroyed as was required by s.6 of the Act. The defendants then submitted that they could not have a fair trial without having such disclosure. This submission was not accepted and the defendants were convicted. Their appeals failed.

    There had been an earlier decision of the Court of Appeal in R v Effik (1992) 95 Cr App R 427 which had in effect held that intercept evidence was admissible in criminal trials, giving a restricted interpretation to s.9 and declining to infer from the oblique wording of that section that to admit the evidence would be contrary to the scheme of the Act. In Preston your Lordships' House overruled Effik. As Lord Templeman said (at p.140), sections 6 and 9 of the Act make it "impossible for a record of a telephone conversation to be given in evidence and .... impossible for evidence to be given that a warrant was issued for a telephone conversation to be intercepted". Accordingly it was accepted that the drafting of the Act necessarily had the result that the prosecution could not rely upon the intercept evidence; but the House also held that although not admissible in evidence the material would still have had to have been disclosed if it were not for s.6 and the fact that it had been destroyed. The leading speech was that of Lord Mustill. At p.146 he recognised -

"Those who perform the interceptions wish to minimise the dissemination of the fact that they have been performed, since it is believed that this would diminish the value of activities which are by their nature clandestine. We need not consider to what extent this preoccupation with secrecy at all costs is soundly based for it has been treated as axiomatic for decades, if not longer."

At p.168, he came back to what he described as the plain intent and wording of the Act:

"The need for surveillance and the need to keep it secret are undeniable. So also is the need to protect to the feasible maximum the privacy of those whose conversations are overheard without their consent. Hence sections 2 and 6. These policies are in flat contradiction to current opinions on the 'transparency' of the trial process. Something has to give way, and the history, structure and terms of the statute leave me in little doubt that this must be the duty to give complete disclosure of unused materials."

    The argument had included different submissions as to the construction of s2(2)(b): "preventing or detecting serious crime". Did this include obtaining evidence for use at a trial? Construing the Act as a whole, in particular having regard to sections 6 and 9 and parliamentary material, Lord Mustill concluded that a narrow reading of s.2(2)(b) must be adopted:

"If the purpose of Parliament was to allow the intercept materials to become part of the prosecution process it is hard to see any point in a provision which would make it wholly or at least partially (according to how [s.9] is read) impossible to use them in that process ..... The narrower reading of s.2 is strongly supported by the history of the Act. I need not repeat this. The criticisms in Malone v United Kingdom which prompted the Government to change its mind and legislate were directed not to the long-established practice but to its inaccessibility, imprecision and lack of formal safeguards. The Act was plainly designed to put these matters right, and I can see no reason to suppose that the Government had suddenly and spontaneously decided to go much further and overturn the practice which had persisted for decades of separating the process of surveillance from the prosecution of offenders."

    This then was a decision upon material specifically falling within the scope of the 1985 Act - an interception of a telephone conversation. The construction of the Act adopted by your Lordships' House was that the dominant principle guiding the interpretation of the provisions of the Act was the policy of preserving the secrecy of the surveillance operations to which the Act applied and, to that end, preventing as far as possible any evidence relating to such operations ever reaching the public domain. The speech of Lord Mustill does not support the submission that there is a policy that defendants should be protected from having incriminated themselves in intercepted telephone calls. The decision by the House of Lords that 'metering' evidence, that is to say evidence of what calls were made to what numbers as opposed to what was said during such calls, is admissible confirms the true scope of the decision. As Lord Mustill put it at p.170: "Parliament has grasped the nettle and put the interests of secrecy first."

    In Preston, the telephone intercept was expressly covered by the 1985 Act. Where the Act did not apply surveillance evidence was in principle admissible subject to s.78 and the ordinary safeguards. Effik continued to be treated as an authority and the clear effect of the speeches in Preston was overlooked. The matter was brought back before your Lordships' House in Morgans v DPP. There was a further complication. The cases (R v Rasool [1977] 1 WLR 1092 and R v Owen [1999] 1 WLR 949) which had appeared to reinstate Effik had concerned intercepts of conversations where it was the Crown case that one of the parties to the intercepted conversation had (or, at least, was reasonably believed to have) given his consent to the intercept so taking the intercept outside the scope of s.1 of the 1985 Act. Those cases had held that the evidence was admissible even though there was an issue about the existence of the consent (or reasonable belief). Your Lordships' House held that s.9 and the speeches in Preston meant that the evidence could not be given because questions could not be asked about the consent and belief without tending to suggest that an offence had been committed under s.1 of the Act. Therefore, just as intercepts under a warrant were inadmissible, so also were intercepts said to have been by consent. Rasool and Owen were overruled. The broad interpretation of s.9 in Preston and its implication for the exclusion of intercept evidence falling with the scope of the Act were confirmed.

    Neither Preston nor Morgans support any principle of exclusion of evidence independently of the 1985 Act. Where as here, the intercept was made in a foreign country by the authorities of that country and the 1985 Act accordingly has no application, the reasoning of Preston and Morgans does not apply either. The law of country 'A' under which these intercepts were made does not treat secrecy as paramount; it permits, subject to judicial supervision, the use of intercepts in evidence. There is no basis for the argument that there is a rule of English public policy which makes this evidence, which is admissible in country 'A', inadmissible in England.

    There remains the point to which I said I would revert. It was argued that if it was not necessary in our democratic society for intercept evidence obtained under the 1985 Act to be admissible, it could not be necessary for intercept evidence obtained abroad to be admissible. There are two answers to this argument. First, the conclusion does not follow. In this country it is, in the judgment of the Government, the necessity to have a fully effective interception system which creates the necessity for secrecy and consequently the need to keep the evidence of it out of the public domain. But where secrecy is not required, the necessity is that all relevant and probative evidence be available to assist in the apprehension and conviction of criminals and to ensure that their trial is fair. The latter necessity exists in both cases but in the former case it is trumped by the greater necessity for secrecy, as the speeches in Preston explain. Secondly, Article 8(2) is concerned with justifiable and unjustifiable interferences with the exercise of the Article 8(1) right. It is not an abstract question. In the present case it is necessary that, the evidence having been obtained, it be used in England as it has been in country 'A'. This is further demonstrated by the fact that, other things being equal, it is necessary that the evidence be disclosed to the defence (as it has been) and that it be available to be referred to when 'X' comes to give evidence. The tape recordings and transcripts (about the accuracy of which, be it said, there is no dispute) will be the best evidence of what was said. The fairness of the trial of these defendants requires that the evidence be admissible.

    There is a related point which should also be referred to. S.2(2)(b) of the 1985 Act uses the expression "for the purpose of preventing or detecting serious crime". In Preston that expression was construed as not extending to the obtaining of evidence for use in the prosecution of criminals. A similar expression is used in Article 8(2) - "for the prevention of disorder or crime". The expression used in the Convention is wider and is not limited by its context as is the statutory expression. The breadth of the expression in the Convention is confirmed by the ECHR judgments to which I have referred, particularly that in the case of Khan.

    My Lords, it follows from what I have said that the appeals had to be dismissed. The case of Aujla was rightly decided. The decision of the ECHR in Khan shows that the coming into effect of the Human Rights Act does not invalidate in the relevant respects the decision of your Lordships' House in that case and that s.78 is an appropriate safeguard of the fairness of the trial.