Button & Anor, R v

A court does not itself breach article 8 of the ECHR by admitting evidence that was obtained through an earlier unlawful interference with private life. The article 8 breach occurs when the covert surveillance takes place. The court’s duty is to ensure a fair trial under article 6 and to apply the fairness discretion in section 78 of PACE.

Evidence obtained in breach of article 8 is not automatically excluded. Its unlawfulness is a relevant circumstance, but exclusion depends on whether admission would adversely affect the fairness of the proceedings so that it ought not to be admitted. Section 6 of the Human Rights Act 1998 does not impose a separate rule requiring exclusion.

The appellants were convicted of murder at Newcastle Crown Court before Royce J and a jury. The prosecution relied in part on covert video and audio surveillance made while the appellants were alone in a police-station room.

Audio surveillance had been authorised, but video surveillance had not. The prosecution conceded that the video surveillance breached article 8 of the ECHR. The trial judge nevertheless admitted the recording.

Button appealed against conviction. Tannahill sought an extension of time to renew his application for leave to appeal, which depended upon Button succeeding. The common issue was whether section 6 of the Human Rights Act 1998 prohibited a court from admitting evidence obtained in breach of article 8.

1. Button’s appeal was dismissed, and Tannahill’s dependent application was dismissed. The court rejected the submission that section 6 of the Human Rights Act 1998 required automatic exclusion of evidence obtained in breach of article 8 of the ECHR.

2. The relevant article 8 breach was the unauthorised covert intrusion into private life when the surveillance was undertaken. The court played no part in that intrusion. Its later task was to decide whether the resulting evidence was admissible.

3. The admissibility question was governed by the requirement of a fair trial under article 6 and by section 78 of PACE. Although the unlawful method of obtaining evidence was a relevant circumstance, it did not itself make the proceedings unfair or require exclusion. The court applied the approach reflected in Schenk v Switzerland [1998] 13 EHRR 242, R v P [2002] 1 AC 146 and the domestic authorities on covert surveillance.

4. Accordingly, when a court fairly determines admissibility under article 6 and section 78, it acts compatibly with Convention rights. Admitting evidence after an earlier article 8 breach does not repeat or continue that breach. The trial judge’s ruling therefore stood.

• Court of Appeal (Criminal Division): Button’s appeal against conviction was dismissed in [2005] EWCA Crim 516. Tannahill’s application, dependent on that appeal succeeding, was also dismissed.

• Newcastle Crown Court: Royce J and a jury convicted both appellants of murder on 4 December 2003.