Regina v P. and Others

Evidence obtained by lawful telephone interception abroad is not inadmissible merely because equivalent interception in the United Kingdom would be governed by a different statutory regime. Its use in criminal proceedings does not breach article 8 where the material was lawfully obtained for the prosecution, retained only as necessary, transferred under statutory authority and subject to judicial supervision.

Article 6 governs the fairness of the trial as a whole rather than prescribing rules of admissibility. Under section 78 of the Police and Criminal Evidence Act 1984, the court must consider the circumstances in which interception evidence was obtained, but the decisive question is its effect on the fairness of the proceedings.

Three defendants were prosecuted for assisting in the United Kingdom in the commission of serious drug offences abroad. Authorities in another European country lawfully intercepted telephone conversations involving a suspected trafficker and the defendants. The recordings were transferred to the British prosecuting authorities under judicial authority.

Following a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, the Crown Court held that the recordings were admissible and declined to exclude them under section 78 of the Police and Criminal Evidence Act 1984. The Court of Appeal dismissed the defendants’ appeals.

The House considered whether using the recordings at an English trial was contrary to domestic public policy or infringed articles 8 or 6 of the European Convention on Human Rights.

1. Appeals dismissed unanimously. Lord Hobhouse of Woodborough delivered the substantive speech. Lord Hutton, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Cooke of Thorndon agreed with his reasons.

2. Per Lord Hobhouse, the foreign interceptions involved no breach of article 8 of the European Convention on Human Rights. They were undertaken abroad in accordance with a Convention-compliant legal system and were subject to judicial supervision. Judicial authority was also obtained before the recordings were transferred to the British prosecuting authorities. Criticisms of the United Kingdom’s interception laws did not affect conduct occurring abroad.

3. Per Lord Hobhouse, subsequent use of intercepted information may itself amount to interference with private life. There was nevertheless no article 8 breach here. The information was used for the purpose for which it had lawfully been obtained, was retained only for so long as that purpose required, and was handled under statutory authority and judicial supervision. Amann v Switzerland was materially different because it concerned the unjustified recording and prolonged storage of information about an innocent person.

4. Per Lord Hobhouse, article 6 does not prescribe rules governing the admissibility of evidence. The controlling question is whether the criminal trial, considered as a whole, is fair. Evidence is not necessarily inadmissible merely because it was obtained unlawfully. Schenk v Switzerland provided highly persuasive support for that conclusion.

5. Per Lord Hobhouse, section 78 of the Police and Criminal Evidence Act 1984 applies the same central criterion. The trial judge must consider all the circumstances, including that the evidence was obtained by intercepting telephone conversations. The decision must ultimately turn on the effect that admission would have on trial fairness. It was also a cogent consideration favouring admission that a participant in the conversations would testify about what was said.

1. House of Lords: Dismissed the defendants’ appeals unanimously and upheld the Court of Appeal’s judgment.

2. Court of Appeal (Criminal Division): Upheld the finding that the interceptions complied with foreign law, approved and followed R v Aujla [1998] 2 Cr App R 16, upheld the exercise of discretion under section 78 of the Police and Criminal Evidence Act 1984, and dismissed the appeals.

3. Crown Court: At a preparatory hearing, held that the foreign recordings were admissible and declined to exclude them under section 78.