R v P & Ors

The House of Lords held that recordings of telephone intercepts lawfully obtained by the authorities of a foreign State (country 'A'), and transferred to the Crown with judicial authorisation in that State, were not rendered inadmissible in English criminal proceedings by the Interception of Communications Act 1985. The proper test for exclusion under both Article 6 of the European Convention on Human Rights and domestic law is whether admission of the material would render the trial unfair; that test is implemented in domestic law by s.78 of the Police and Criminal Evidence Act 1984. The 1985 Act and the policy reasoning in R v Preston and Morgans v DPP apply where the Act itself governs the interception; they do not create a general rule of English public policy excluding foreign intercepts which were lawfully obtained abroad. Relevant ECHR authorities (including Schenk, Teixeira de Castro and Khan v UK) support the view that admissibility is primarily a matter for the national courts and that unlawfully obtained material is not automatically excluded if the trial as a whole is fair.

The appellants were three defendants charged with assisting in serious drug offences. Intercepted telephone communications involving a foreign national 'X' were recorded by the authorities of country 'A' under domestic warrants and judicial supervision in that State. Those recordings captured conversations between 'X' and the defendants and were later handed to the United Kingdom authorities after a domestic order in country 'A'. The Crown disclosed the recordings and intended to adduce them at the defendants' trial. The defendants sought exclusion of the material on grounds of domestic policy and Convention rights.

The procedural history was: a Crown Court judge ruled the material admissible, holding the Interception of Communications Act 1985 did not apply extraterritorially and declining to exclude the material under s.78 PACE; the Court of Appeal (Criminal Division) upheld that ruling and certified questions of general importance; the defendants appealed to the House of Lords.

The issues before the House were (i) whether the foreign intercepts were inadmissible as a matter of English public policy or as a consequence of the 1985 Act; (ii) whether admission of the material would breach Article 8 or Article 6 of the European Convention on Human Rights; and (iii) whether s.78 PACE provided the correct mechanism to assess fairness and admissibility.

The House reasoned that the 1985 Act applied to intercepts within the United Kingdom and its statutory scheme (including ss.2, 6 and 9) reflected a domestic policy favouring secrecy for interceptions covered by the Act; where the Act did not apply (as here) there was no statutory bar to admission. The court applied ECHR authorities (notably Schenk, Teixeira de Castro and Khan v UK) to conclude that admissibility is primarily a matter for national courts and that Article 6 requires an assessment of fairness of the proceedings as a whole rather than automatic exclusion of material obtained under Article 8 complaints. The House distinguished Amann and related authority and explained that where foreign law provided adequate safeguards and judicial supervision, and the material was used for the same prosecutorial purpose, there was no Article 8 breach in admitting the material. The judges therefore dismissed the appeals, upholding the lower courts' application of s.78 and their conclusion that admission was compatible with Convention rights and English law.

Remedial and subsidiary findings included that the Human Rights Act and ECHR jurisprudence do not displace s.78 as the vehicle for assessing fairness in criminal trials, and that Preston and Morgans govern only interceptions within the statutory scope of the 1985 Act.

Appeals dismissed. The House held that lawfully obtained intercepts made under the law of a foreign State and handed over under judicial authority were admissible in English criminal proceedings. The admissibility question is governed by the fairness test in Article 6 and by s.78 of PACE; the Interception of Communications Act 1985 and the policy in R v Preston and Morgans v DPP do not create a general rule excluding foreign intercepts when the 1985 Act does not apply.

Crown Court (preparatory hearing under s.29 Criminal Procedure and Investigations Act 1996) — judge admitted the foreign intercepts and refused to exclude under s.78 PACE; Court of Appeal (Criminal Division) — upheld the Crown Court decision and certified questions of general public importance (decision 16 May 2000); appealed to the House of Lords — [2000] UKHL 72 (8 June 2000), appeals dismissed.