Khan & Ors v R

A breach of an authorisation for covert surveillance, and the resulting interference with Article 8 privacy rights, does not of itself require exclusion of evidence under section 78 of the Police and Criminal Evidence Act 1984. The decisive question is whether admission would adversely affect the fairness of the proceedings as a whole.

Post-charge covert recording of a conversation between suspects is not automatically inconsistent with the right to silence or the PACE Codes. The absence of coercion, questioning, entrapment, trickery or impairment of the defence may support admission. For hearsay, the court must identify the matter asserted and ask whether the speaker intended another to believe or act on it. A name used merely as evidence of the speaker's acquaintance with its bearer is not hearsay.

The three appellants were convicted at Reading Crown Court, following a second trial, of the attempted murder of Quadir Hussain. The prosecution case was substantially circumstantial, but at the second trial it also relied on a covert recording of a conversation between Mahmood and Kajla while they were being transported in a police van after charge.

The surveillance had been authorised under the Regulation of Investigatory Powers Act 2000 to assist a charging decision. The Crown accepted that its post-charge use exceeded that authority, although the trial judge found that the officers had acted without bad faith. She admitted the recording under section 78 of the Police and Criminal Evidence Act 1984.

The appeals challenged that ruling and, for Khan, the admissibility of references in the conversation to “Bana”, his nickname. The central issues were whether the unlawful surveillance rendered the trial unfair and whether the references were hearsay or unfairly prejudicial.

1. The appeals against conviction were dismissed. The judge correctly admitted the van recording. Although the surveillance exceeded its RIPA authorisation and thereby breached Mahmood's and Kajla's Article 8 privacy rights, section 78 of the Police and Criminal Evidence Act 1984 concerns the fairness of the trial, not the provision of a remedy for an Article 8 breach.

2. The decisive inquiry was the effect of obtaining the evidence on the proceedings as a whole. The breach was negligent and brief, not deliberate or in bad faith. There was no coercion, questioning, misrepresentation, entrapment or trickery. The appellants knew that the van might be bugged, could challenge the recording, and could explain what had been said. Its admission therefore did not make the trial unfair.

3. The court rejected the contention that post-charge recording undermined the PACE Codes or the right to silence. Covert recording may be admissible after charge. Its use remains subject to the broad section 78 discretion, particularly where there is oppression or a risk of unreliable admissions, but none arose here. The gravity of the attempted murder and the continuing risk to the victim reinforced the propriety of admitting the relevant evidence.

4. The references to “Bana” were not hearsay under sections 114 and 115 of the Criminal Justice Act 2003. The relevant evidential use was the speakers' use of the name, from which their acquaintance with Khan could be inferred. The word was not used to cause either speaker to believe or act on the proposition that the other knew Khan. It was relevant evidence admissible generally, and its peripheral effect on Khan did not make the trial unfair.

5. There was no sustainable no-case submission once the recording was admitted. Applications for leave to appeal against sentence were to be relisted.

• Court of Appeal (Criminal Division): Appeals from conviction dismissed in [2013] EWCA Crim 2230.
• Reading Crown Court: The appellants were convicted, after a second jury trial, of attempted murder and sentenced to life imprisonment with minimum terms. The first jury had not reached verdicts.