Turner v R.

Lawful covert surveillance does not require a stay for abuse of process merely because limited legally privileged material is incidentally recorded. A stay is justified only where interference with privilege is so serious that it undermines the integrity of the administration of justice.

Under section 78 of the Police and Criminal Evidence Act 1984, admissions obtained by covert surveillance may fairly be admitted where privileged material is excluded, officers act in good faith, and no privileged information informs the investigation or the evidence adduced. The fact that a suspect spoke because he did not know he was being recorded is not, without more, unfairness.

The appellant was convicted at the Crown Court at Winchester of the murder of his girlfriend and sentenced to life imprisonment with a minimum term of 16 years. He also pleaded guilty to doing an act tending and intended to pervert the course of justice.

Following his arrest and legally represented interview, covert audio surveillance was authorised in his parents’ home. The recordings contained admissions concerning the death and evidence of attempts by the appellant and his parents to pervert the course of justice. The appellant contended that limited interception of discussions concerning legal advice required the indictment to be stayed for abuse of process or the surveillance evidence to be excluded under section 78.

He separately challenged the minimum term imposed for murder.

1. The appeals against conviction and sentence were dismissed. The conviction was safe. The appellant had received a fair and proper trial on overwhelming evidence.
2. Legal privilege is an essential common-law right and covert surveillance must be subject to safeguards which protect it. Although surveillance may lawfully be authorised despite a risk that privileged material will be acquired, the risk must be addressed and, where it cannot be eliminated, the arrangements must prevent its investigative or trial use.
3. The court accepted that there could be an extreme case in which prosecuting authorities interfered with privilege so seriously that the integrity of the administration of justice required a stay. This was not such a case. The limited references to legal advice, and occasional brief listening after recording had stopped, were minor, short and inconsequential. The surveillance officers acted in good faith. No privileged material was disclosed to investigators, used to widen the investigation, or adduced at trial.
4. By section 91(10) of the Police Act 1997, the lawfulness of the Surveillance Commissioner’s approval could not be impugned. The prosecution had considered its disclosure obligations, and there was no basis to require disclosure of the underlying authorisation material.
5. The section 78 application, including the Article 6 and Article 8 complaints, failed. The admitted family conversations were not tainted by unfairness. Privileged material was excluded, and the appellant’s ignorance that he was being recorded was the ordinary consequence of lawful covert surveillance, not unfairness.
6. The sentencing judge was entitled to move above the 15-year statutory starting point. Premeditated murderous thoughts, against a background of bullying, harassment and violence, justified the 16-year minimum term. The judge also allowed for the appellant’s relative youth, and no basis for appellate intervention was shown.

• Court of Appeal (Criminal Division): Dismissed the appeals against conviction and sentence in Turner v R., [2013] EWCA Crim 642.
• Crown Court at Winchester: On 21 May 2012, Dobbs J and a jury convicted the appellant of murder. On the following day, he was sentenced to life imprisonment with a 16-year minimum term.