R v Khan (Sultan)

The House of Lords held that contemporaneous tape-recorded admissions captured by a covert listening device installed by the police in a private dwelling were, as a matter of English law, admissible in evidence. The court applied the principle in Reg. v. Sang [1980] A.C. 402 that unlawfully or improperly obtained evidence is not automatically excluded, subject to the judge's discretion to exclude under the common law or section 78 of the Police and Criminal Evidence Act 1984. The court further held that while the European Convention on Human Rights (notably article 8) and its jurisprudence are relevant in exercising the section 78 discretion, a breach of the Convention does not of itself require exclusion of evidence; the decisive question is whether admission would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted.

The appellant arrived in the United Kingdom and, following related police inquiries into an importation of heroin, was recorded by a covert listening device installed by the police in a third party's house. The recorded conversation contained admissions implicating the appellant. At trial the judge found the recording admissible; the appellant pleaded guilty but reserved the right to challenge admissibility. The Court of Appeal dismissed the appeal and certified a question of public importance regarding admissibility of such tape-recorded conversations obtained by a police-attached listening device.

The issues for the House of Lords were:

• whether evidence obtained by attaching a listening device to private premises without the occupier's or defendant's knowledge was admissible at trial; and
• whether, if admissible in principle, the evidence should nevertheless be excluded in the exercise of the judge's common law discretion or under section 78 of the Police and Criminal Evidence Act 1984, having regard to the European Convention on Human Rights (notably article 8 and article 6).

The House of Lords concluded (i) that English law, under Reg. v. Sang, does not render relevant evidence inadmissible solely because it was improperly or unlawfully obtained, and (ii) that the section 78 discretion permits the court to take into account apparent breaches of article 8 but does not oblige the court to determine whether a Convention breach has occurred and does not render a Convention breach an automatic ground for exclusion. The court therefore affirmed that the recording was admissible and that the trial judge had correctly exercised his discretion not to exclude it. The Lords also noted the absence of statutory regulation of police use of listening devices and observed that legislation was proposed.

Appeal dismissed. The House of Lords affirmed that (1) unlawfully or improperly obtained evidence is not automatically inadmissible under English law (following Reg. v. Sang), (2) the judge may, under section 78 PACE 1984, take account of circumstances including apparent breaches of the European Convention on Human Rights, but a breach of the Convention does not of itself require exclusion; and (3) on the facts the judge properly exercised his discretion and the taped evidence was rightly admitted.

Appeal from conviction at Sheffield Crown Court where the trial judge admitted taped evidence obtained by a covert listening device. Appeal to the Court of Appeal (Criminal Division) was dismissed on 27 May 1994; the Court of Appeal certified the question of general public importance (see Court of Appeal judgment reported at [1995] Q.B. 27). The case then proceeded to the House of Lords which dismissed the appeal on 2 July 1996.