Rosenberg v R.

Private surveillance does not become police surveillance merely because the police know of it and use its fruits. It must have been initiated or encouraged by them. Surveillance is not covert under Regulation of Investigatory Powers Act 2000 where it is not calculated to keep the subject unaware and the subject knows it may be occurring.

An European Convention on Human Rights article 8 breach is relevant, but does not itself determine admissibility. The question is whether admission would make the trial unfair under article 6 and section 78 of the Police and Criminal Evidence Act 1984, after balancing all the circumstances.

Before interview, the police need not disclose their full evidence where the suspect has been told the nature of the case. Expert evidence is unnecessary where a jury can fairly assess a witness's credibility and reliability with an adequate judicial direction.

The appellant was convicted at the Crown Court at Kingston-upon-Thames of possessing class A drugs, including with intent to supply, and received a total sentence of six years' imprisonment.

The prosecution relied partly on CCTV footage recorded by neighbours who had a camera directed towards her home. The appellant challenged the admission of that footage and of police interviews conducted before she had been shown it. She also sought to call a clinical psychologist to explain her manner of giving evidence.

The appeal raised whether the neighbours' surveillance was attributable to the police, whether the evidence should have been excluded, whether pre-interview disclosure was required, and whether exclusion of the proposed expert evidence was unfair.

1. The appeal against conviction was dismissed. Leave to appeal on the additional grounds was refused. The renewed application for leave to appeal against sentence was also refused.

2. The neighbours' CCTV activity was not police surveillance for the purposes of the Regulation of Investigatory Powers Act 2000. The police neither initiated nor encouraged it. Their knowledge of the activity and willingness to receive the recordings did not alter that conclusion. Their degree of involvement could nevertheless be relevant to the discretionary admissibility exercise under section 78 of the Police and Criminal Evidence Act 1984.

3. There was no breach of section 26 because the surveillance was not covert within section 26(9)(a). Although the camera was concealed, the appellant knew that the neighbour was observing inside her house. The surveillance was therefore not carried out in a manner calculated to keep her unaware of it.

4. Even assuming an article 8 breach, admission of the footage did not make the trial unfair. Applying R v P [2000] 1 AC 146, the court held that unlawful acquisition of evidence is assessed for admissibility under article 6 and section 78, rather than article 8 alone. The judge was entitled to balance the intrusion, the limited police complicity, the appellant's awareness of the recording, and the seriousness of the alleged offending. The evidence was properly admitted.

5. The police were not obliged before the first interviews to reveal the full extent of their evidence. It was sufficient that the appellant was told the nature of the case arising from the search. The later interviews, conducted after she had seen the footage and had an opportunity to obtain advice, were not unfairly tainted.

6. The proposed psychological evidence concerned matters within ordinary jury experience. The judge's direction adequately required the jury to assess the appellant's evidence fairly despite her garrulous manner. The six-year sentence was not manifestly excessive.

• Court of Appeal (Criminal Division) — Dismissed the appeal against conviction, refused leave on additional grounds, and refused renewed leave to appeal against sentence.
• Crown Court, Kingston-upon-Thames — On 10 February 2005, the appellant was convicted of class A drug-possession offences, including possession with intent to supply, and sentenced to a total of six years' imprisonment.