Khan v UK

[Donald Ramsbottom]

Another case! This one on covert listening devices. Again disregard if not
interested.




Khan v United Kingdom=20
  (Application No 35394/97)=20

  Before J.-P.Costa, President, and Judges W. Fuhrmann,
  L. Loucaides, P. Kuris, Sir Nicolas Bratza, H. S. Greve
  and K. Traja=20

  Section Registrar: S. Doll=E9=20

  [Judgment May 12, 2000]=20

  As domestic law did not regulate the use of covert
  listening devices at the time of the applicant's conviction,
  the European Court of Human Rights held unanimously
  that the applicant's right to respect for private and family
  life, as guaranteed by article 8 of the European
  Convention of Human Rights, had been violated.=20

  Furthermore, as the applicant did not have an effective
  remedy in respect of his claim under article 8, the Court
  also held unanimously that article 13 of the Convention
  had been breached.=20

  Sultan Kahn, a British national born in 1957 and living in
  Sheffield, was sentenced, on March 14, 1994, to three
  years imprisonment for drug dealing on the basis of
  evidence improperly obtained by a secret listening device
  installed by the police.=20

  The Court of Appeal (The Times June 1, 1994)
  dismissed his appeal against conviction but certified, as a
  point of law of general public importance, the question
  whether evidence of tape-recorded conversations,
  obtained by a listening device attached by the police to a
  private house without the knowledge of the owners or
  occupiers, was admissible in a criminal trial against the
  defendant.=20

  The House of Lords (The Times July 5, 1996) dismissed
  the applicant's appeal. The House noted that the question
  gave rise to two separate issues, the first being whether
  evidence of the taped conversations was admissible at all
  and the second whether, if admissible, it should none the
  less have been excluded by the trial judge in the exercise
  of his discretion at common law or under the powers
  conferred by Section 78 of the Police and Criminal
  Evidence Act 1984.=20

  As to the former issue, the House held that there was no
  right to privacy in English law and that, even if there were
  such right, the common-law rule that relevant evidence
  which was obtained improperly or even unlawfully
  remained admissible, applied to evidence obtained by the
  use of surveillance devices which invaded a person's
  privacy.=20

  As to the latter issue, it was held that the fact that
  evidence had been obtained in circumstances which
  amounted to a breach of the provisions of article 8 of the
  Convention was relevant to, but not determinative of the
  judge's discretion to admit or exclude such evidence under
  section 78 of of the 1984 Act.=20

  The judge's discretion had to be exercised according to
  whether the admission of the evidence would render the
  trial unfair, and the use at a criminal trial of material
  obtained in breach of the right to privacy enshrined in
  article 8 did not mean that the trial would be unfair.=20

  On the facts, the trial judge had been entitled to hold that
  the circumstances in which the relevant evidence was
  obtained, even if they constituted a breach of article 8
  were not such as to require the exclusion of the evidence.=20

  Lord Nolan, giving the opinion of the majority of the
  House, added:=20

  "The sole cause of this case coming to your Lordship's
  House is the lack of a statutory system regulating the use
  of surveillance devices by the police.=20

  "The absence of such a system seems astonishing, the
  more so in view of the statutory framework which has
  governed the use of such devices by the Security Service
  since 1989, and the interception of communications by the
  police as well as by other agencies since 1985.=20

  "I would refrain from other comment because counsel for
  the respondent was able to inform us, on instructions, that
  the government proposes to introduce legislation covering
  the matter in the next session of Parliament."=20

  The applicant was discharged from prison on August 11,
  1994. His release was on licence until May 12, 1995.=20

  The application was lodged with the European
  Commission of Human Rights on January 1, 1997. He
  complained that his trial was unfair, in breach of article 6.1
  of the Convention, that there had been a violation of his
  right to respect for his private life, as guaranteed in article
  8, and that his right to an effective remedy, as guaranteed
  by article 13 of the Convention, had likewise been
  breached.=20

  In accordance with the transitional provisions of Protocol
  No 11 to the Convention, a panel of the Grand Chamber
  of the Court decided that the case should be examined by
  a chamber constituted within one of the sections of the
  Court. On April 24, 1999 the Court (Third Section)
  declared the application admissible.=20

  In its judgment, the European Court of Human Rights
  held:=20

  I Alleged violation of article 8=20

  Article 8 provides: "1 Everyone has the right to respect for
  his private ... life ... and his correspondence.=20

  "2 There shall be no interference by a public authority with
  the exercise of this right except such as is in accordance
  with the law and is necessary in a democratic society in
  the interests of national security, public safety or the
  economic well being of the country, for the prevention of
  disorder or crime, for the protection of health or morals,
  or for the protection of the rights and freedoms of others."

  The Court noted that it was not disputed that the
  surveillance carried out by the police in the present case
  had amounted to an interference with the applicant's rights
  under article 8.1 of the Convention.=20

  The principal issue was whether that interference was
  justified under article 8.2, notably whether it was "in
  accordance with the law" and "necessary in a democratic
  society", for one of the purposes enumerated in that
  paragraph.=20

  The Court recalled, as the European Commission had in
  Govell No 27237/95 (paragraphs 61 and 62 of
  Commission Report, January 14, 1998), that the phrase
  "in accordance with the law" not only required compliance
  with domestic law but also related to the quality of that
  law, requiring it to be compatible with the rule of law: see
  Halford v United Kingdom No 20605/92 (The Times
  July 3, 1997; paragraph 49, ECHR 1997-III).=20

  In the context of covert surveillance by public authorities,
  in this instance the police, domestic law must provide
  protection against arbitrary interference with an
  individual's right under article 8.=20

  Moreover, the law must be sufficiently clear in its terms to
  give individuals an adequate indication as to the
  circumstances in which and the conditions on which public
  authorities were entitled to resort to such covert measures:
  see Malone v United Kingdom No 8691/79 (paragraph
  67, European Court of Human Rights, 1984).=20

  At the time of the events in the present case, there existed
  no statutory system to regulate the use of covert listening
  devices, although the Police Act 1997 now provides such
  a statutory framework. The Home Office guidelines at the
  relevant time were neither legally binding nor were they
  directly publicly accessible.=20

  The Court also noted that Lord Nolan commented that
  under English law there was, in general, nothing unlawful
  about a breach of privacy. There was, therefore, no
  domestic law regulating the use of covert listening devices
  at the relevant time.=20

  It followed that the interference in the present case could
  not be considered to be "in accordance with the law", as
  required by article 8.2 of the Convention.=20

  Accordingly, the Court found unanimously that there had
  been a violation of article 8. In the light of that conclusion,
  the Court was not required to determine whether the
  interference was "necessary in a democratic society"
  under article 8.2.=20

  II Alleged violation of article 6=20

  The applicant also alleged a breach of article 6.1 of the
  Convention, on the ground that the use as the sole
  evidence in his case of the material which had been
  obtained in breach of article 8 was not compatible with
  the "fair hearing" requirements of article 6.=20

  Article 6.1 provides: "In the determination of ... of any
  criminal charge against him, everyone is entitled to a fair
  and public hearing..."=20

  The Court noted that it was not its role to determine, as a
  matter of principle, whether particular types of evidence,
  for example, unlawfully obtained evidence, might be
  admissible or, indeed, whether the applicant was guilty or
  not.=20

  Furthermore, it recalled earlier case law to the effect that it
  would not exclude as a matter of principle and in the
  abstract that unlawfully obtained evidence might be
  admissible: see Schenk v Switzerland No 10862/84
  (paragraphs 45 and 46, ECHR 1988-II) and, for a more
  recent example in a different context, Teixeira de Castro
  v Portugal No 25829/94 (paragraph 34, ECHR
  1998-IV).=20

  In examining whether, in all the circumstances, including
  the way in which evidence was obtained, the proceedings
  as a whole were unfair, the Court observed that the
  recording of the applicant's conversation had not been
  unlawful in the sense of being contrary to domestic
  criminal law, even though it had been obtained in breach
  of article 8 of the Convention.=20

  The Court then considered the fact that the contested
  material in the present case was in effect the only evidence
  against the applicant. However, where as here, there was
  no risk of the recording being unreliable, the need for
  supporting evidence was correspondingly weaker.=20

  Returning to the central question whether the proceedings
  as a whole were fair, the Court noted that the applicant
  had had ample opportunity to challenge both the
  authenticity and the use of the recording.=20

  He did not challenge its authenticity, but challenged its use
  before the trial court and again before the Court of
  Appeal and the House of Lords.=20

  At each level of jurisdiction the domestic courts assessed
  the effect of admission of the evidence on the fairness of
  the trial and discussed, among other matters, the
  non-statutory basis for the surveillance.=20

  In the Court's view it was clear that, had the domestic
  courts been of the view that the admission of the evidence
  would have given rise to substantive unfairness, they
  would have had a discretion to exclude it under section 78
  of the 1984 Act.=20

  In these circumstances, the Court found, Judge Loukaides
  dissenting, that the use at the applicant's trial of the
  secretly taped material did not conflict with the
  requirements of fairness guaranteed by article 6.1.=20

  III Alleged violation of article 13=20

  The applicant also alleged a breach of article 13 of the
  Convention on the ground that the courts should have
  taken into account that the evidence had been obtained in
  breach of the Convention.=20

  Article 13 provides: "Everyone whose rights and freedoms
  ... are violated shall have an effective remedy before a
  national authority notwithstanding that the violation has
  been committed by persons acting in an official capacity."=20

  The Court recalled that article 13 guaranteed the
  availability of a remedy at national level to enforce the
  substance of Convention rights and freedoms in whatever
  form they might happen to be secured in the domestic
  legal order.=20

  Thus, its effect was to require the provision of a domestic
  remedy allowing the competent national authority both to
  deal with the substance of the relevant Convention
  complaint and to grant appropriate relief, without,
  however, requiring incorporation of the Convention: see
  Smith and Grady v United Kingdom Nos 33985/96
  and 33986/96 (The Times October 11, 1999; paragraph
  135, ECHR 1999).=20

  In the present case, the article 13 claim had to be taken to
  be an allegation that the applicant did not have an effective
  remedy in respect of his claims under article 8 of the
  Convention.=20

  The Court noted at the outset that the courts in the
  criminal proceedings were not capable of providing a
  remedy because, although they could consider questions
  of the fairness of admitting the evidence in the criminal
  proceedings, it was not open to them to deal with the
  substance of the Convention complaint that the
  interference with the applicant's right to respect for his
  private life was not "in accordance with the law"; still less
  was it open to them to grant appropriate relief in
  connection with the complaint.=20

  As regards the various other avenues open to the
  applicant in respect of the article 8 complaint, the Court
  observed, again with the Commission in the case of
  Govell, that complaints only had to be referred to the
  Police Complaints Authority in circumstances where they
  contained allegations that the relevant conduct resulted in
  death or serious injury or where the complaint was of a
  type specified by the Home Secretary.=20

  In other circumstances the chief constable of the area
  would decide whether or not he was the appropriate
  authority to decide the case. If he concluded that he was
  the correct authority, then the standard procedure was to
  appoint a member of his own force to carry out the
  investigation.=20

  Although the Police Complaints Authority could require a
  complaint to be submitted to it for consideration under
  section 87 of the 1984 Act, the extent to which the Police
  Complaints Authority oversaw the decision-making
  process undertaken by the chief constable in determining if
  he was the appropriate authority was unclear (paragraph
  68 of Govell).=20

  The Court also noted the important role played by the
  secretary of state in appointing, remunerating and, in
  certain circumstances, dismissing members of the Police
  Complaints Authority.=20

  In particular, the Court observed that under section
  105(4) of the Act the Police Complaints Authority was to
  have regard to any guidance given to it by the secretary of
  state with respect to the withdrawal or preferring of
  disciplinary charges and criminal proceedings (paragraph
  69 of Govell).=20

  Accordingly, the Court found that the system of
  investigation of complaints did not meet the requisite
  standards of independence needed to constitute sufficient
  protection against the abuse of authority and thus provide
  an effective remedy within the meaning of article 13.=20

  It therefore held, unanimously that there had been a
  violation of article 13 of the Convention.=20

  IV Application of article 41=20

  The Court awarded the applicant the sum of =A311,500 plus
  value-added tax for costs and expenses less sums
  received by way of legal aid.=20
Donald Ramsbottom LL.B, BA (Hons).

RAMSBOTTOM & Co. Solicitors

Internet Law & Global Cryptology Law Specialists