Regina v P. and Others

This appeal concerned the admissibility in English criminal proceedings of recorded telephone intercepts lawfully obtained by the authorities of another state (referred to as country 'A'). The House of Lords held that intercepts lawfully obtained abroad in accordance with that state's law and the European Convention on Human Rights are not automatically inadmissible in England. The judge must apply the discretion in section 78 of the Police and Criminal Evidence Act 1984 (exclusion of unfair evidence) and assess whether admission would render the trial unfair, taking into account the circumstances in which the material was obtained and the other safeguards that applied. The court held there was no breach of Article 8 or Article 6 of the Convention where the foreign law complied with Convention standards, the material was obtained and transferred with judicial supervision, and its use was limited to the prosecution purpose; the appeals were therefore dismissed.

The defendants were prosecuted in England for assisting drug offences committed in other countries. Intercepts of telephone communications involving one of their alleged co-conspirators, 'X', had been lawfully authorised and recorded in country 'A' in accordance with that country's law and Convention standards. The recordings were obtained by country 'A' authorities and, following a judicial order in country 'A', handed over to the English prosecuting authorities. The Crown intended to disclose and to adduce these recordings at the defendants' trial.

(i) Nature of the claim: The defendants sought to exclude the foreign-obtained intercepts from evidence, arguing they were inadmissible as a matter of English public policy and/or because their admission would contravene Articles 8 and 6 of the European Convention on Human Rights and the Human Rights Act 1998.

(ii) Issues framed:

• Whether intercepts obtained lawfully in another state but used in English proceedings are inadmissible as contrary to English policy (including under the Interception of Communications Act 1985);
• Whether use of such intercepts in the English trial infringes Article 8 (right to private life) or Article 6 (right to a fair trial) of the Convention;
• How the court should apply the discretion in section 78 of PACE when considering evidence obtained by interception abroad.

(iii) Reasoning and outcome: The House of Lords accepted the factual findings of the Crown Court and Court of Appeal that the interceptions were authorised and carried out in accordance with country 'A''s law and that country 'A''s law met Convention requirements. The Lords reasoned that Article 8 governs the lawfulness of the interference with privacy but does not determine admissibility of evidence in domestic criminal proceedings; admissibility and fairness are principally matters for national law and, in criminal trials, for the exercise of the court's discretion under s.78 PACE. Article 6 requires a fair trial but does not impose a rule excluding unlawfully obtained evidence as such; instead the fairness of the trial as a whole must be assessed. Applying those principles, the court found no breach of Articles 8 or 6 and no misdirection in the exercise of the s.78 discretion: the recordings had been obtained subject to judicial supervision in country 'A', were used only for the prosecution purpose, and their exclusion would likely produce a miscarriage of justice. The appeals were dismissed.

The Lords also distinguished and considered authorities including Amann v Switzerland, Schenk v Switzerland and domestic authorities on interception and admissibility; they rejected the submission that English public policy required exclusion of such material in all circumstances. The decision confirms that foreign intercepts lawfully obtained may be admissible in England subject to the conventional fairness and discretion analyses.

Appeals dismissed. The House of Lords held that recorded telephone intercepts lawfully obtained in another state whose law complied with the European Convention on Human Rights were not automatically inadmissible in English proceedings. The appropriate test is the court's discretion under section 78 of the Police and Criminal Evidence Act 1984 and Article 6's requirement of a fair trial: having regard to the circumstances in which the evidence was obtained, its lawful origin under country 'A''s law, judicial supervision there, and its limited prosecutorial use, the admission of the material did not render the trial unfair and did not breach Article 8 or Article 6. The Court of Appeal's decision and the judge's exercise of discretion were upheld.

Preparatory hearing under section 29 Criminal Procedure and Investigations Act 1996 in the Crown Court (judge admitted the recordings and gave leave to appeal). The Court of Appeal (Criminal Division) upheld the Crown Court judge's findings and exercise of discretion (order of 16 May 2000 referenced). Questions were certified as of general public importance and the defendants appealed to the House of Lords, which dismissed the appeals (reported [2000] UKHL 69).