R v P & Ors

Foreign intercept evidence is not inadmissible merely because equivalent evidence obtained under the Interception of Communications Act 1985 could not be used in an English criminal trial. The statutory exclusion protects the secrecy of interception operations governed by that Act. It creates no wider rule of English public policy.

Article 8 does not govern admissibility as such. Article 6 and section 78 of the Police and Criminal Evidence Act 1984 require an assessment of whether the proceedings as a whole are fair. Evidence obtained unlawfully or through an interference with privacy is therefore not automatically excluded. The accused must have a proper opportunity to challenge its authenticity and use, and the trial judge must assess the effect of admission upon trial fairness.

Three defendants were prosecuted for assisting the commission of serious drug offences abroad. The prosecution proposed to rely on recordings of their telephone conversations with a suspected trafficker. The authorities of country A had intercepted and recorded the calls there under judicial authorisation conforming to that country's law and the Convention. A court in country A later authorised their release to the British authorities.

At a preparatory hearing under section 29 of the Criminal Procedure and Investigations Act 1996, the Crown Court held that the recordings were admissible. The Interception of Communications Act 1985 did not apply to interceptions abroad, and exclusion under section 78 of the Police and Criminal Evidence Act 1984 was unwarranted. The Court of Appeal dismissed the defendants' appeals.

The House considered whether using the recordings in an English trial was contrary to Articles 6 or 8 of the Convention, or to a rule of English public policy derived from domestic interception legislation.

1. Appeals dismissed unanimously. Lord Hobhouse of Woodborough delivered the leading speech. Lord Hutton, Lord Goff of Chieveley, Lord Browne-Wilkinson and Lord Cooke of Thorndon agreed with his reasons. The judgment of the Court of Appeal was upheld.

2. Per Lord Hobhouse, Article 8 was not infringed. The interceptions occurred in country A, complied with its Convention-compatible law and were judicially supervised. Their release to the British authorities was also judicially authorised. Although later use of private information can itself amount to an interference, the recordings were used only for the prosecution for which they had lawfully been obtained and were retained no longer than necessary. The relevant statutory arrangements were not open to qualitative criticism.

3. Article 6 and section 78 of the Police and Criminal Evidence Act 1984 apply the criterion of trial fairness. Admissibility is primarily governed by national law, and unlawfully obtained evidence is not automatically excluded. The court must assess whether the proceedings as a whole are fair. The accused must be able to challenge the evidence, and the judge must assess the effect of admission upon fairness. A remedy for an Article 8 violation lies outside the criminal trial unless the violation also makes the trial unfair.

4. The recordings were important, relevant and probative. Their authenticity was undisputed, they had been disclosed to the defence, and a participant in the conversations was to give evidence. Their availability would assist proper testing of that witness's account. The Crown Court judge had made the required section 78 assessment and committed no error of principle.

5. The Interception of Communications Act 1985 contains no general policy protecting defendants from incriminating intercepted conversations. Sections 6 and 9 instead preserve the secrecy of operations governed by the Act. That policy makes domestic intercept material within its scope unavailable at trial, but it does not extend to lawful foreign interceptions outside the Act.

6. R v Preston [1994] 2 AC 130 and Morgans v DPP [2000] 2 WLR 386 were confined to interceptions governed by the 1985 Act. They established no independent exclusionary rule. R v Aujla [1998] 2 Cr App R 16 was rightly decided.

1. House of Lords: The defendants' appeals were dismissed unanimously and the Court of Appeal's judgment was upheld.

2. Court of Appeal (Criminal Division): The court upheld the Crown Court's findings on the lawfulness of the foreign interceptions and the exercise of discretion under section 78 of the Police and Criminal Evidence Act 1984. It approved and followed R v Aujla [1998] 2 Cr App R 16 and dismissed the appeals.

3. Crown Court: At a preparatory hearing, the judge ruled that the foreign recordings were admissible. The Interception of Communications Act 1985 applied only to interceptions in the United Kingdom, and the evidence should not be excluded under section 78.