Lexploria

Information Note on the Court’s case-law 18

May 2000

Khan v. the United Kingdom - 35394/97

Judgment 12.5.2000 [Section III]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Use in criminal trial of evidence obtained in violation of the Convention: no violation

Facts : A conversation in the course of which the applicant admitted to being party to the importation of drugs was recorded by the police, who had installed a listening device in the house of B., which the applicant was visiting. The police had not been expecting the applicant to visit B., who was under surveillance. The applicant pleaded not guilty, although he admitted that his voice was one of those recorded. The prosecution admitted that the installation of the listening device had involved a civil trespass and occasioned some damage and accepted that there was no case without the recorded conversation. The trial judge ruled that the evidence was admissible and the applicant pleaded guilty to an alternative charge. He was sentenced to three years’ imprisonment. The applicant’s appeals were dismissed successively by the Court of Appeal and the House of Lords. The House of Lords held that even if there were a right of privacy in English law, the common law rule that relevant evidence obtained improperly or even illegally remained admissible applied to evidence obtained by the use of surveillance devices which invaded a person’s privacy. It further held that the use in a criminal trial of material obtained in breach of Article 8 of the Convention did not render the trial unfair.

Law : Article 8 - It was undisputed that the surveillance constituted an interference with the applicant’s rights. At the t ime of the events in question there existed no statutory system to regulate the use of covert listening devices and the Home Office guidelines were neither legally binding nor directly accessible to the public. There was therefore no domestic law regulatin g the use of covert listening devices and the interference was not “in accordance with the law”.

Conclusion : violation (unanimous).

Article 6 § 1 - It is not the Court’s role to determine, as a matter of principle, whether particular types of evidence may be admissible or, indeed, whether the applicant was guilty or not; the question is whether the proceedings as a whole were fair, and this involves an examination of the “unlawfulness” of the evidence admitted and, where a violation of another Convention r ight is concerned, the nature of that violation. In contrast to the Schenk case (judgment of 12 July 1988), the recording of the conversation was not unlawful under domestic law, the “unlawfulness” relating only to the absence of a legal basis satisfying p aragraph 2 of Article 8 of the Convention. Furthermore, the contested material in the present case was the only evidence against the applicant, whose guilty plea was made only after the judge ruled that the evidence was admissible. However, in the circumst ances, where the recording was acknowledged to be very strong evidence and there was no risk of it being unreliable, the need for supporting evidence was correspondingly weaker. The applicant had ample opportunity to challenge both the authenticity and the use of the recording and at each level of jurisdiction the courts assessed the effect of admitting the evidence on the fairness of the trial and discussed the non-statutory basis for the surveillance. It is clear that if they had considered that the admis sion of the evidence would have given rise to substantive unfairness they would have had a discretion to exclude it. Consequently, the use of the recording did not conflict with the requirements of fairness.

Conclusion : no violation (6 votes to 1).

Article 13 - The domestic courts were not capable of providing a remedy in respect of the claims under Article 8, since although they could consider questions of the fairness of admitting the evidence they could not deal with the substance of the Conventio n complaint, nor could they grant appopriate relief. Moreover, the system of investigation of complaints by the Police Complaints Authority - in particular, in view of the role of the Secretary of State - does not meet the requisite standards of independen ce needed to constitute sufficient protection against abuse of authority and thus provide an effective remedy.

Conclusion : violation (unanimous).

Article 41 - The Court considered that the finding of a violation constituted in itself sufficient just satisf action for any damage which the applicant may have suffered. It made an award in respect of costs and expenses.

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