PARTLY CONCURRING, PARTLY DISSENTING OPINION OF judge LOUCAIDES

I agree with the majority that there have been violations of Articles 8 and 13 of the Convention in this case for the reasons set out in the judgment. However, I disagree with the finding of the majority that there has not also been a violation of Article 6.

This is the first case which comes before the Court where the only evidence against an accused in a criminal case which also led to his conviction was evidence secured in a manner contrary to the provisions of Article 8 of the Convention.

The Court has already found unanimously that the collection of the evidence against the applicant, through the use of a covert listening device, amounted to a violation of his right to respect for his private life because it was not regulated by any domestic law. However, the majority found that the admission of the evidence in question and the conviction of the applicant on the basis of that evidence did not conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention, even though it was the only evidence against the applicant.

I cannot accept that a trial can be “fair”, as required by Article 6, if a person's guilt for any offence is established through evidence obtained in breach of the human rights guaranteed by the Convention. It is my opinion that the term “fairness”, when examined in the context of the European Convention on Human Rights, implies observance of the rule of law and for that matter it presupposes respect of the human rights set out in the Convention. I do not think one can speak of a “fair” trial if it is conducted in breach of the law. It is true that the Convention is not part of the domestic legal system of the United Kingdom , but for the purposes of the question in issue, it should be treated as such, in view of its ratification by that country and the ensuing obligation to enforce its provisions through its State organs. In other words, in assessing whether a trial was “fair” I can see no reason to make allowances for a State which ratified the Convention but has failed to incorporate it into its system.

It is correct that the evidence obtained in this case through the installation of a listening device on the applicant's premises was not contrary to any specific law in the United Kingdom . It was, however, taken contrary to the Convention. The United Kingdom authorities have an obligation under Article 1 of the European Convention on Human Rights to “secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention”. I believe that this casts an obligation on the United Kingdom courts not to admit or rely on evidence in judicial proceedings which was obtained contrary to the Convention. This

applies a fortiori in cases where such evidence is the only evidence against an accused person in a criminal case like the present one.

Moreover, if it is accepted that the admission of evidence obtained in breach of the Convention against an accused person is not necessarily a breach of the required fairness under Article 6, then the effective protection of the rights under the Convention will be frustrated. This is well illustrated by cases like the present one, where evidence was secured by the police in a manner incompatible with the requirements of Article 8 of the Convention, and yet it was admitted in evidence against the accused and led to his conviction. If violating Article 8 can be accepted as “fair” then I cannot see how the police can be effectively deterred from repeating their impermissible conduct. And, I must repeat here, I cannot accept that a trial and a conviction resulting from such conduct can be considered as just or fair.

The exclusion of evidence obtained contrary to the protected right to privacy should be considered as an essential corollary of the right, if such right is to be of any value. It should be recalled here that the Court has on many occasions stressed “that the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”. The exclusion of such evidence, in my view, becomes even more imperative in cases like the present one, where no alternative effective remedy exists against the breach of the relevant right.

The basic argument against such an exclusionary rule is the pursuit of the truth and the public interest values in effective criminal law enforcement which entail the admission of reliable and trustworthy evidence, for otherwise these values may suffer and guilty defendants may escape the sanctions of the law. Breaking the law, in order to enforce it, is a contradiction in terms and an absurd proposition. In any event the argument has no place in the context of the issues in this case because evidence amounting to an interference with the right to privacy can be admitted in court proceedings and can lead to a conviction for a crime, if the securing of such evidence satisfies the requirements of the second paragraph of Article 8, including the one at issue in the present case, that is, that it was obtained “in accordance with the law”.

The majority, in reaching their conclusion, took into account the fact 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 PACE” (see paragraph 39 of the judgment). I cannot see the relevance to our question of the approach of the domestic courts as regards the question of fairness of admitting the evidence in issue, given that under English law the concept of “fairness” as regards the relevant test of admissibility of evidence was never incompatible with illegality. According to the relevant English law of evidence, unfairness has been narrowly defined as arising only when prejudice to the

accused from the admission of improperly obtained evidence outweighed its probative value. What is more, according to English law, there is nothing unlawful about a breach of privacy like the one which occurred in the present case.

In the light of all of the above I find that the use at the applicant's trial of the secretly taped material, and his conviction on the basis thereof, conflict with the requirements of fairness guaranteed by Article 6 § 1 of the Convention.

[1] . Note by the Registry . The Court’s decision is obtainable from the Registry.