The police had obtained the evidence against the defendant by fixing a covert listening device at an apartment visited by the defendant, and by recording his conversations there. The defendant appealed, saying that the court should have regard to his rights of privacy as enshrined in articles 6 and 8 of the Convention.
Held: There is no right of privacy which is sufficient to justify the exclusion of evidence which had been obtained by electronic bugging of a private house.
Lord Nolan said: ‘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.’
Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Nicholls of Birkenhead
Gazette 24-Jul-1996, Times 05-Jul-1996, [1997] AC 558, [1996] UKHL 14, [1996] 3 All ER 289, [1996] 3 WLR 162, (1996) 2 CHRLD 125, [1996] 2 Cr App R 440
Bailii
Interception of Communications Act 1985, Police and Criminal Evidence Act 1984 78, European Convention on Human Rights 6 8
England and Wales
Citing:
Appeal from – Regina v Khan (Sultan) CACD 1-Jun-1994
An unlawful bug of a private conversation on private property, was nevertheless correctly admitted into evidence if it was not unfair to do so within the context of the trial. . .
Cited – Regina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
Cited – Malone v The United Kingdom ECHR 2-Aug-1984
The complainant asserted that his telephone conversation had been tapped on the authority of a warrant signed by the Secretary of State, but that there was no system to supervise such warrants, and that it was not therefore in ‘accordance with law’. . .
Cited – Schenk v Switzerland ECHR 12-Jul-1988
The applicant had faced charges of hiring someone to kill his wife. He complained about the use of a recording of his telephone conversation with the man he hired recorded unlawfully by that man.
Held: The ECHR does not address issues about . .
Cited – Regina v Preston, Preston, Clarke Etc HL 5-Nov-1993
Telephone tapping evidence consisting of tapping records are to be destroyed after their use for the purpose obtained, but a prosecution was not within that purpose. The underlying purpose of the 1985 Act is to protect information as to the . .
Cited by:
Modified – Jones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
Appealed to – Regina v Khan (Sultan) CACD 1-Jun-1994
An unlawful bug of a private conversation on private property, was nevertheless correctly admitted into evidence if it was not unfair to do so within the context of the trial. . .
Appeal from – Khan v The United Kingdom ECHR 12-May-2000
Evidence was acknowledged to have been obtained unlawfully and in breach of another article of the Convention. The police had installed covert listening devices on private property without the knowledge or consent of the owner. UK national law did . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Cited – Attorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .
Cited – Regina v P and others HL 19-Dec-2000
Where communications had been intercepted in a foreign country, and the manner of such interceptions had been lawful in that country, the evidence produced was admissible in evidence in a trial in England. An admission of such evidence was not an . .
Cited – Public Prosecution Service v McKee SC 22-May-2013
Non-approval didn’t devalue fingerprints
The court was asked: ‘what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence, Human Rights
Leading Case
Updated: 09 November 2021; Ref: scu.87074