R v Khan (Sultan)

Relevant evidence does not become inadmissible merely because it was obtained improperly or unlawfully, including through an invasion of privacy. Subject to any specific statutory prohibition, admissibility is governed by ordinary evidential rules and the trial judge’s powers to secure a fair trial.

Under section 78 of the Police and Criminal Evidence Act 1984, an apparent breach of law or of article 8 of the European Convention may be considered among the circumstances in which evidence was obtained. The decisive question is whether admission would adversely affect the fairness of the proceedings. A breach does not require exclusion by itself, and the criminal court need not determine conclusively whether the breach occurred.

The police attached a covert listening device to the outside of a private home, involving civil trespass and property damage. It recorded the appellant admitting participation in heroin importation. The trial judge admitted the recording after a voir dire. The appellant then pleaded guilty while reserving his right to challenge that ruling.

The Court of Appeal dismissed his appeal: [1995] QB 27. It certified whether conversations recorded by a police listening device attached to a private house without the occupants’ knowledge were admissible against a defendant.

The House considered two issues: whether the recording was legally admissible and, if so, whether it should have been excluded under the common law or section 78 of the Police and Criminal Evidence Act 1984.

1. The appeal was dismissed unanimously. Lord Nolan delivered the leading speech. Lord Keith agreed with his reasons; Lord Browne-Wilkinson agreed subject to a caveat concerning privacy; and Lord Slynn and Lord Nicholls reached the same result while adding observations of their own.

2. Per Lord Nolan, applying Reg v Sang [1980] AC 402, relevant evidence remains admissible even when obtained improperly or unlawfully. The recorded statements were not induced admissions within the exceptional category concerning confessions or evidence tantamount to a confession. Even if that category had applied, it would have engaged a discretion to exclude the evidence rather than made it intrinsically inadmissible.

3. Neither section 9 of the Interception of Communications Act 1985 nor the provisions of the Intelligence Services Act 1994 altered the common-law rule governing a police listening device outside those statutory regimes. Evidence obtained in breach of privacy was therefore not automatically inadmissible. The House did not need to decide whether English law recognised a general right of privacy.

4. Per Lord Nolan, section 78 of the Police and Criminal Evidence Act 1984 was at least as wide as the common-law power to exclude evidence where necessary to secure a fair trial. An apparent breach of article 8, foreign law or domestic law may be considered under section 78. Its significance ordinarily depends on its effect upon the fairness of the proceedings as a whole, rather than on unlawfulness or irregularity by itself. The trial judge need not determine conclusively whether the alleged breach occurred.

5. Lord Slynn and Lord Nicholls considered that the article 6 jurisprudence could assist the fairness inquiry. Schenk v Switzerland (1988) 13 EHRR 242 confirmed that the use of material obtained in breach of privacy does not of itself make a criminal trial unfair. Lord Nolan held that the trial judge was entitled to admit the recording even if its acquisition breached article 8.

6. Lord Browne-Wilkinson and Lord Nicholls expressly left open whether English law recognised a general right of privacy. Lord Slynn and Lord Nolan considered legislation regulating covert police listening devices highly desirable. The order of the Court of Appeal was affirmed.

1. House of Lords: The appeal was dismissed unanimously and the order of the Court of Appeal was affirmed: [1997] AC 558.

2. Court of Appeal (Criminal Division): The appeal against conviction was dismissed on 27 May 1994. The court’s decision is reported at [1995] QB 27, and it certified a question of general public importance concerning the admissibility of conversations recorded by a covert police listening device.

3. Sheffield Crown Court: The trial judge ruled that the recording was admissible. The appellant then pleaded guilty while reserving his right to challenge that ruling and was sentenced to three years’ imprisonment.