Chapter 15: Illegally Obtained Evidence and Confessions
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(1) THE LAW BEFORE PACE 1984
At common law, confessions were excluded if made involuntarily. The test enunciated by Lord Sumner in Ibrahim v R and slightly modified by Lord Hailsham in DPP v Ping Lin was that: “[T]he contested statement was voluntary in the sense that it was not obtained by fear of prejudice or hope of advantage excited or held out by a person in authority.”
The principles relating to illegally or improperly obtained evidence evolved in a series of cases culminating in R v Sang . The first in this line of cases is R v Warickshall . In that case, a woman was charged as an accessory after the fact to theft and as a receiver of stolen goods. She was improperly induced to make a confession in the course of which she said that the property in question was in her lodgings where it was found. Counsel for the accused argued that the evidence of finding the stolen property in her custody should be excluded since it was obtained in consequence of the inadmissible confession. The trial judge rejected the argument.
In R v Voisin the accused was convicted of the murder of a woman, part of whose body was found in a parcel in which there was a piece of paper with the words “Bladie Belgiam”. The accused had been asked by the police if he had an objection to writing down the words “bloody Belgian” and he said: “Not at all” and had written down “Bladie Belgiam”. The accused appealed unsuccessfully on the ground that he had not been cautioned before being asked to write the words down. Again in Kuruma, Son of Kaniu v R where the accused had been convicted of being in unlawful possession of ammunition which had been discovered in consequence of a search of his person by a police officer below the rank of those who were permitted to make such searches and in R v Maqsud Ali, R v Ashiq Hussain where tape-recording of incriminating conversation was tendered in evidence, the appeals were dismissed because the probative value of the evidence tendered in each case outweighed the probative value. However, in R v Barker where incriminating books of account of impeccable reliability were obtained by deception, the evidence was excluded and in R v Payne where the accused was persuaded to submit to a medical examination which yielded perfectly reliable evidence, the conviction was quashed. Sang states the common law position as follows: (i) that a judge has a discretionary power to exclude relevant evidence if its prejudicial value to the accused outweighs its probative value; and (ii) that a judge does not have a discretionary power to exclude relevant evidence because it is illegally or improperly obtained. The common law position in cases such as R v Maqsud Ali, R v Ashiq Hussain , Kuruma , Barker and Payne is preserved by section 82 (3) of the Police and Criminal Evidence Act 1984 (PACE) which provides:
“Nothing in this Part of the Act shall prejudice any power of a court to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion.”
That this is so is highlighted by two relatively recent cases – R v Ali and R v Stagg . Section 76 (4) (a) and (b) of PACE also preserves the common law positions in Warickshall and Voisin .
It must be noted, however, that the regime under Sang is different from the discretion under section 78 (1) of PACE. Whilst the common law discretion preserved by sections 76 (4) (a) and (b) and 82 (3) is exercised to exclude the admission of evidence “prejudicial to the accused”, section 78 enjoins the judge to exercise his discretion to exclude relevant evidence if “the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.” That “prejudice to the accused” is a different concept from “adverse effect on the fairness of the proceedings” is succinctly put by Judge R. May in this illuminating passage:
“It is submitted, with respect, that the view expressed in Fulling accords with the intention of Parliament, which, in sections 78 (2) and 82 (3) of [PACE], preserved the common law rules. As a result, it would appear that section 78 [of PACE] must be considered on its wording.”
In a similar vein, Kean opined: “Although s.78 operates without prejudice to the common law discretion to exclude, s.78 has in very large measure superseded the common law power.”
(2) PACE 1984
The law relating to illegally obtained evidence and confessions as stated in PACE can be discussed under three headings: (i) confessions that are obtained by oppressive means or are unreliable; (ii) confessions by mentally handicapped persons; and (iii) entrapment. Each category is worthy of consideration.
(B) Confessions that are obtained by oppressive means or are unreliable
(i) Discretion to exclude evidence obtained by oppression
Section 76 (1) of PACE provides that a confession made by an accused person may be given against him in any proceedings. Section 76A (1) of PACE (inserted by section 128 of the Criminal Justice Act 2003 (CJA 2003) allows an accused person to adduce the evidence of a co-accused but makes no further provision for a third party who is neither before the court nor charged with the offence in question .
While section 76 (2) (a) of PACE confers on judges the discretion to exclude relevant evidence because it was obtained by oppression, section 76 (2) (b) allows the judge to exclude relevant evidence “in consequence of anything said or done which renders it unreliable.” This discretion can be exercised under section 78 of PACE or triggered by breaches of the Codes of Practice promulgated by the Home Secretary pursuant to section 66 of PACE or a combination of these provisions.
In R v Fulling the Court of Appeal held that the word “oppression” should be given its ordinary meaning as stated in the Oxford English Dictionary : “The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors etc.; the imposition of unreasonable or unjust burdens.” In that case, the Court decided that it was not oppressive for the police to tell the defendant that her lover had been having an affair with another woman which so affected her that she made a confession. However, in R v Samuel the Court of Appeal recognised the fact that the denial of access to a solicitor might be oppressive even though the counsel for S had not suggested that was such a case. Again, in R v Davison D had been arrested at home at 6.30 a.m. for handling a stolen ring, the proceeds of an armed robbery. He was questioned at various stages during the course of the day both about the offence and a bullion robbery. Eventually he confessed but there were breaches of the rules of PACE and the Codes of Practice. It was held that all the evidence after the interview had to be excluded under section 76 (2) (a).
The problem with section 76 (2) (a), as intimated by Professor I. Dennis , is that although the issue of torture has been contested in Republic of Ireland v United Kingdom , it has surprisingly been overlooked in cases decided in municipal courts before the passage into law of the Human Rights Act 1998 (HRA 1998). And yet, the issue should have been raised in, at least, three English cases. In R v Miller the Court of Appeal considered a confession of a paranoid schizophrenic who confessed to killing his girlfriend. At the trial, it was argued that the confession should be excluded under section 76 (2) (a) because it had been obtained as a result of protracted interviews which had caused him to suffer an episode of schizophrenic terror. Medical evidence was given that the style and length of questioning had produced a state of involuntary insanity in which his language reflected hallucinations and delusions. The trial judge refused to exclude the evidence and the defendant was found guilty of manslaughter. On appeal, the Court of Appeal held that although questions which were asked deliberately with the intention of producing a disordered state of mind would amount to oppression, the mere fact that questions addressed to the defendant triggered hallucinations was not evidence of oppression. But the new section 76A (7) of PACE (inserted by section 128 of the CJA 2003) re-enacts section 76 (8) of PACE by stating that “oppression” includes torture, inhuman or degrading treatment and the use of threat of violence (whether or not amounting to torture) and Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the Convention) provides:
“No one shall be subjected to torture or to inhuman or degrading treatment as punishment.”
The pertinent question is: what is inhuman and degrading treatment? In The Greek Case the Commission defined “inhuman treatment” to be such “as deliberately causes severe suffering, mental or physical” and “degrading treatment” as that which “grossly humiliates the individual before others or drives him to act against his conscience.” Again, in Republic of Ireland v United Kingdom the European Court of Human Rights held that for the purpose of Article 3 of the Convention “torture” included particular intense and cruel forms of inhuman or degrading treatment. In that case, the five techniques of interrogation practised for a short period in 1971 on a group of terrorist suspects in Northern Ireland were aimed at disorientation or sensory deprivation of suspects and involved wall-standing, hooding, subjection to continuous noise, deprivation of sleep and deprivation of food and drinks. The court held that all these techniques amounted to inhuman and degrading treatment.
More recently, in Keenan v United Kingdom it was held that lack of adequate medical supervision before the death of a known suicide risk prisoner combined with internal disciplinary punishment amounted to degrading treatment and a violation of Article 3 of the Convention. In Napier v The Scottish Ministers it was held by the Court of Session that denial of toilet facilities to a person in detention violated Article 3. Again, in McGlinchey v United Kingdom it was held that the prison authorities' treatment of a heroin addict who died after suffering withdrawal symptoms contravened the prohibition against inhuman and degrading treatment contained in Article 3 of the Convention. This case must be contrasted with Peers v Greece where the applicant was arrested at Athens airport on suspicion of drugs-related offences and held in Karidallos prison first on remand and then following conviction until his release on probation. It was held that the conditions of his detention in a segregation unit did not amount to inhuman and degrading treatment under Article 3. And yet, in R (Limbuela) v Secretary of State for the Home Department it was held that to require an asylum seeker to sleep rough was inhuman or degrading treatment. Finally, one case on torture is worthy of note. In Veznedaroglu v Turkey the applicant alleged that she was tortured after being arrested on suspicion of membership of Kurdistan Workers Party. It was held that there had been a violation of Article 3 on account of the failure of the authorities to investigate the applicant's complaint of torture. The two other cases on oppression within the meaning of section 76A (7) of PACE are Barry v Trussler and R v Crampton . In the former, the judge excluded the confession of drug addict because he had been in police custody for 18 hours without any rest whereas the Codes of Practice required that he be given at least eight hours' rest in any twenty-four hours. That made the confession unreliable. In the latter, it was held on appeal that the trial judge had rightly refused to exclude admissions made in an interview by a heroin addict suffering from withdrawal symptoms because nothing had been said or done within the terms of section 76 (2) (b) to render the admission unreliable.
Whilst the decision in Barry v Trussler was right, even though the European Convention jurisprudence was ignored, the decision in Crampton remains suspect. It is submitted that the confession of a drug addict suffering from withdrawal symptoms violates Article 3 of the Convention. The desperate need of the addict for a fix “drives him to act against his conscience” and comes within “degrading treatment” as defined above.
Finally, in Saadi v Italy , the Government of the United Kingdom intervened in the case to try to overturn the absolute prohibition on torture and ill-treatment. The European Court of Human Rights held that the transfer of individuals to countries where they face a real risk of torture and ill-treatment is prohibited absolutely by Article 3 of the Convention and that the law cannot allow for exceptions.
Section 76 (2) (b) of PACE gave the court a discretion to exclude from evidence a confession which was or might have been obtained “in consequence of anything said or done” which was “likely, in the circumstances”, to render unreliable “any confession” which the accused might make “in consequence thereof”.
The words “in consequence of anything said or done” were interpreted in R v Goldenberg as meaning anything said or done by someone other than the suspect. Denial of access to a solicitor as in Samuel or a confession extracted from a drug addict suffering from drug withdrawal symptoms as in Barry v Trussler were things said and done.
In a line of cases, it has been decided that the test for the interpretation of “which was likely in the circumstances existing at the time” was objective and hypothetical. It is objective because it is not what police officers thought about the mental state of the suspect that is relevant but what it actually was. It is hypothetical because the court would have to consider whether any confession made would be likely to be unreliable and not whether they were in fact true. In R v Everett the appellant pleaded guilty to indecent assault after the trial judge ruled that evidence of admissions to the police should not be excluded. The appellant was aged 42 but tests revealed that he had a mental age of 8. His appeal against conviction was allowed because the trial judge erred in law by deciding the question of admissibility only by reference to the tapes of the interviews and not by taking into account the medical evidence of the mental condition of the appellant. Again, in R v Harvey and R v Delaney the conviction of defendants with low I.Q. have been quashed on the basis of psychiatric evidence which showed in the former it was possible that hearing her lover's confession had caused her to confess and in the latter that the defendant was poorly equipped to cope with sustained interrogation and that the longer the pressure the greater the confusion. In both cases the confessions were unreliable within the meaning of section 76 (2) (b). More recently, in Re Proulx, R v Bow Street Magistrates' Court, ex p Proulx , an extradition proceeding, it was stated, inter alia, that a magistrate ought only to exclude evidence under powers conferred on him by section 78 of PACE where to admit it would outrage civilised values. In that case P, who was living in England , was suspected by the Canadian police of having committed a murder in Canada . During the course of undercover police operation, P made some statements to the Canadian police confessing to the killing. The question that arose in the extradition proceeding was whether the statement was unreliable within the meaning of section 76 (2) (b) and should be excluded under section 78 of PACE. It was held that provided the magistrate had correctly directed himself on the law, the Divisional Court would not interfere with the decision.
Finally, the words “any confession” mean “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise.”
(C) Confessions by mentally handicapped persons
Section 77 (1) of PACE provides:
“77 (1) … where at such a trial –
(a) the case against the accused depends wholly or substantially on a confession by him; and
(b) the court is satisfied –
(i) that he is mentally handicapped ; and
(ii) that the confession was not made in the presence of an independent person ,
the court shall warn the jury that there is a special need for caution before convicting the accused in reliance on the confession …”
The term “independent person” does not include “a police officer or a person employed for, or engaged on, police purposes”. “Police purposes” within the ambit of section 77 (1) is defined as having the meaning assigned to it by section 101 (2) of the Police Act 1996. The term “mentally handicapped” in relation to a person is liberally defined as including any person “in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning.” In other words, persons with low I.Q.s whose confessions were held unreliable under section 76 (2) (b) discussed above such as in Everett , Harvey and Delaney were subject to the provisions in section 77 and the Codes of Practice.
In R v Lamont the Court of Appeal quashed a conviction for attempted murder and assault occasioning bodily harm where the judge had failed to give warning. The defendant was mentally sub-normal with the reading age of a child of eight and an I.Q. of 73. Again, in R v Cox C was handicapped with an I.Q. of 58. He was charged with burglary. In an interview with the police in the absence of an independent person he admitted being party to two burglaries. C was unable to read and the notes of his interview were read to him and he signed them. C himself gave evidence. In a voir dire (a trial within a trial) police officers were called to give evidence, three of whom did not know C and the fourth said the he was unaware that C was backward. C also confessed to being a party to one of the burglaries in the voir dire and pleaded guilty following the judge's ruling that the interview should be admitted. He was convicted and the appeal was allowed on two grounds. The first was that since it has been conceded that C was mentally handicapped within section 77 of PACE there was a breach of Code C of the Codes of Practice (absence of an independent person at the police station) and because the judge should have asked himself not whether the confession in the police interview was true but whether it was made in consequence of anything done likely to render it unreliable in accordance with section 76 (2) (b) of PACE. The second ground was that the purpose of the voir dire was to decide the admissibility of the interview notes and that confessions made in a voir dire were inadmissible.
This raises the question: What is an interview for the purpose of Code C of the Codes of Practice? In R v Matthews, Voss and Dennison the Court of Appeal said that normally any discussion or talk between a suspect or a prisoner and a police officer would amount to an interview whether instigated by the suspect or prisoner or police officer. Again, in R v Absolam A who had been arrested for threatening behaviour was asked by the custody officer to empty his pocket and he did so. The officer, knowing that he had previous convictions for possession of cannabis, then asked him to put the drugs on the table whereupon A produced a bag containing cannabis from his trousers and admitted selling drugs. It was held that the altercation between A and the police officer was an interview which should have been recorded contemporaneously. The conviction was quashed. More recently, in Batley v DPP where the police suspected after hours drinking and asked the publican to explain what the arrangements were in the public house, it was held that the question amounted to an interview under Code C of the Codes of Practice.
Hitherto, the courts have consistently declared that the defence of entrapment was not recognised in English law in spite of occasional dicta in favour of its existence and the trenchant critiques of the preponderance of English authorities. However, with the passage into law of the Human Rights Act 1998 which incorporated Convention rights, we are beginning to notice a sea change. This change is discussed under two headings, viz. (i) the use of tricks or ruse by the police; and (ii) secretly-taped conversation.
(ii) The use of tricks or ruse by the police
The position at common law which is preserved by section 82 (3) of PACE is that evidence obtained by trick is excluded not because on balance the probative value does not outweigh the prejudicial value – in fact, it does – but because of the deterrence factor: the exclusion removes the incentive for the police to engage in deceptive practice or in a ruse. In Barker and Payne , two pre-PACE cases, a radically different position was taken. In the former incriminating books of account of impeccable reliability were obtained by deception whereas in the latter the accused was persuaded by similar means to submit to a medical examination which yielded perfectly reliable evidence. In Barker the evidence was excluded as inadmissible written confession and in Payne the conviction was quashed because the trial jury should have exercised his discretion to exclude the confession.
The position adopted under section 78 of PACE is fundamentally different from the common law position summarised in Sang , as explained above. And, what is more, section 78 of PACE can be invoked on its own without being triggered by section 58 (denial of access to a solicitor) , section 76 (2) (a) (oppression) , section 76 (2) (b) (unreliability) and section 77 (interviewing a mentally handicapped person in the absence of an independent person as defined) as in R v Mason . Mason is also authority for the proposition that where the police practice a deception on the defendant or his counsel, the evidence obtained by deception will be excluded. In that case, the police practised a deception upon the defendant and his solicitor by telling them untruthfully that the defendant's fingerprint had been found on the fragment of broken bottle used in starting a fire. The solicitor then advised the defendant to answer police questions and the defendant confessed. The Court of Appeal held that, because of the deceit practised on the defendant and his solicitor, the evidence should have been excluded. Again, in R v H where the police instigated a telephone conversation between a complainant and inculpatory statements were secretly recorded, Gatehouse J exercised his discretion under section 78 of PACE to exclude the evidence.
Fairness within the meaning of section 78 of PACE must now be construed subject to Article 6(1), (2) and (3) (d) of the Convention. The position in Australia as well as Canada is to exclude the evidence where the defendant is deliberately tricked into surrendering his right to silence at the instance of law enforcement officers who seek the defendant's confidence as a friend and not as a police agent. In Stagg , S was charged with murdering Rachel Nickell on Wimbledon Common on 15 July 1992. The evidence tendered by the prosecution consisted of correspondence and taped conversations between S and an undercover policewoman (“Lizzie James”) who induced S to reveal his sexual fantasies to her and a psychological profile of S was compiled by an eminent psychologist. Ognall J held that the conduct of fair trial required the exclusion of the evidence under the powers preserved by section 82 (3) or under section 78 of PACE. He added:
“The notion that a psychological profile is in any circumstance admissible in proof of identity is to my mind redolent with considerable danger; first because of the rule against evidence going solely to propensity; and second because the suggested analogy between this case and the authorities on the so-called similar fact evidence is prima facie highly questionable; and third because of the question of whether this is truly described as expert evidence at all.”
Finally, one must consider the adoption of a ruse in Williams v DPP . In that case, plain clothes police officers placed a van containing an apparently valuable load of cartons of cigarettes which were in dummy cartons and watched the defendants walking around and then removing the cartons. Although the defendants were rightly convicted under the Criminal Attempts Act 1981, the issue raised by a conviction obtained by a ruse is whether the police officers involved were investigating a crime or exercising an influence such as to incite the commission of a crime. To this and other related issues we must now turn.
(iii) Secretly-taped conversations
The principal statutory provisions which regulate the admissibility of secretly-taped conversations are sections 78 and 82 (3) of PACE and sections 2 and 9 of the Interceptions of Communications Act 1985 (IOCA 1985) as amended by sections 17 and 18 of the Regulation of Investigatory Powers Act 2000 (RIPA 2000).
The 1985 Act was enacted following the decision in Malone v United Kingdom to provide a clear statutory framework within which the interception of communications or public systems would be authorised in a manner commanding public confidence. Part III of the Police Act 1997 creates a legal framework for the authorisation of entry upon and search of property by the police, Customs and Excise officers, the National Criminal Intelligence Service Authority and the New Crime Squad. Constables, Crown servants and members of Her Majesty's forces have been added to that list.
Section 1 of the IOCA 1985 makes it a criminal offence to intentionally and without lawful authority, intercept a communication in the course of its transmission by means of a public postal service or a public telecommunication system. Section 9 of the IOCA, which is now replaced by s.17 of RIPA 2000, provides that no evidence shall be adduced which tends to suggest that an offence has been committed under section 1, or that a warrant has been issued for an interception. An offence is not committed under section 1 (2) of IOCA 1985 [now replaced by sections 3 and 5 of RIPA 2000] if the interceptor has lawful authority or where the person by whom or to whom the communication is sent had consented and the interception took place in the course of authorised surveillance.
Before the passage into law of the HRA 1988, it was firmly established that entrapment was not a defence in English law. In R v Bailey it was held that evidence of secretly taped conversations between two remand prisoners who had been placed in the same cell were admissible and did not trigger the discretion to exclude under section 78 of PACE. Again, in R v Smurthwaite and Gill and R v Dixon and Mann the appellants in both cases were charged with soliciting to murder their spouses. In both cases the persons solicited were undercover police officers passing as contract killers. The appellants contended that the undercover officers were agent provocateurs and the secretly taped conversations should be excluded under section 78 of PACE. In both cases the Court of Appeal held that a judge had no discretion to exclude evidence merely on the ground that they were improperly or unfairly obtained and the evidential requirement in section 78 that evidence might be excluded, having regard to the circumstances in which it was obtained, had not altered the rule of substantive law that entrapment and the use of agent provocateur did not per se afford a defence in law to a criminal charge.
Under the old law, the principle on the construction of section 9 of IOCA 1985 was stated in R v Effik , namely, that the law did not prevent the admission of the product of telephone intercept to which the Act applied provided, as modified in R v Preston , it related to a warranted intercept.
However, technological development has advanced since the passage into law of IOCA 1985. As the 1985 Act is limited to interception of communications in the course of their transmission by post or by means of public telecommunications systems, it did not cover the new technologies, viz. (i) e-mails; (ii) the use of secret listening devices; (iii) “the international simple resale” by which companies buy international line space and resell it to the public; and (iv) the encryption of data. This lacuna in the law was exposed by two cases which we now discuss.
The first is R v Khan (Sultan) . In that case the appellant was secretly taped by attaching a listening device to a house he visited to discuss a drug deal with another man. The tape showed that the appellant was involved in the importation of drugs. He appealed to the House of Lords on the following grounds: (i) that the installation of the bugging device amounted to civil trespass; (ii) that the admission of the tapes violated his right to private and family life guaranteed by Article 8 of the Convention; (iii) that the tape was in breach of the IOCA 1985; and (iv) that the tape should have been excluded under section 78 of PACE. The House of Lords, dismissing the appeal, held that under English law there was nothing unlawful about a breach of privacy. It was also held that the common law rule that relevant evidence obtained by improper and unfair means was admissible in criminal trial applied to evidence obtained by the use of surveillance devices invading a person's privacy and that there was no defence of entrapment in English law. Finally, it was held that the fact that evidence was obtained in circumstances amounting to a breach of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion. Lord Browne Wilkinson, however, entered a caveat:
“Whether or not such right exists is currently a matter of considerable public debate. This country is a party to the European Convention on Human Rights …, art. 8 of which provides for a right of privacy, but always subject to exceptions.”
Counsel of prudence, presciently and succinctly put! The right to privacy antedates the promulgation of Article 8 of the Convention. It is traceable to two eighteenth century English cases – Wilkes v Wood and Entick v Carrington (the so-called “search and seizure” cases). Unfortunately, this right was left to atrophy in the UK but was incorporated into the Constitution of the United States of America through the Fourth Amendment.
True, Article 8 is a factor to be considered; the fact that conversations are covered by the notions of “private life” and “correspondence” referred to in Article 8 (1) is incontrovertible. The pertinent question is: When is the violation of the right to privacy “necessary in a democratic society”? For Kempees there are two indicia of what is necessary in a democratic society, viz. (i) the existence of a “pressing need” for the interference in question; and (ii) the margin of appreciation left to the State which remains subject to review by the court. These indicia were applied in Teixeira De Castro v Portugal where the European Court of Human Rights stated:
“While the rise in organised crime undoubtedly requires that appropriate measures be taken, the right to fair administration of justice nevertheless holds such a prominent place that it cannot be sacrificed for the sake of expedience. The general requirements of fairness embodied in Article 6 (of the Convention) apply to proceedings concerning all types of criminal offence, from the most straightforward to the most complex. The public interest cannot justify the use of evidence obtained as a result of police incitement.”
In that case, the applicant complained that he had been deprived of a fair trial due to his conviction being based mainly on the statements of two police officers who had incited the commission of the offence. He also claimed that there had been violations of Articles 3 and 8 of the Convention. By eight votes to one, it was held that Article 6 (1) of the Convention had been violated. Again, in Khan v United Kingdom it was held that the covert policing in Khan (Sultan) violated Article 8 of the Convention. The European Court held that it was not disputed that the surveillance carried out by the police interfered with Article 8 (1). The principal issue was whether it was justified under Article 8 (2) as being “in accordance with the law” and “necessary in a democratic society.” The Court found that at the time of the events in that case, there existed no statutory system to regulate covert policing although the Police Act 1997 now provides such a framework. In accordance with Govell v United Kingdom the Court found that the listening device invaded the applicant's privacy.
In Halford v United Kingdom European Court held unanimously that there had been a violation of Article 8 in relation to the interception of calls made on the applicant's office telephones but that there was no violation of Article 8 in relation to the interception of calls made on the applicant's home telephone. Recently, in Armstrong v United Kingdom it was held that covert surveillance violated Article 8 (1) of the Convention because the covert measures were not used in accordance with the law within Article 8 (2).
The two issues raised in Khan (Sultan) namely, the provenance of materials obtained by telephone intercept and entrapment have been resolved by judicial pragmatism and by statute. The law relating to interception of communications has been adapted to the technological age by sections 17 and 18 of the RIPA 2000. Evidence of materials obtained by interception for which no warrant had been issued were held inadmissible and inconsistent with the defendant's right to fair trial by the House of Lords in Morgans v DPP . Similarly, in R v Sargent , the House of Lords held that a telephone engineer who for unauthorised purposes in breach of section 1 (1) of IOCA 1985 recorded a conversation implicating the appellant in a crime was a person within section 9 (2) (c) of the 1985 Act and accordingly the evidence was inadmissible by virtue of section 9 (1) of the Act.
The principle enunciated in R v Aujla that foreign intercept was admissible was elaborated in R v P . In P it was held that where telephone conversations between a national of a Country A and the appellant had been lawfully monitored in Country A by the prosecuting authorities of that country, the tape recordings of the conversations were admissible in evidence at the appellant's trial in England on drug charges. Lord Hobhouse enunciated the principles applicable under IOCA 1985 as follows :
1 All relevant and probative evidence is admissible but where surveillance is concerned the use of evidence comes at a price.
2. This means that disclosure has to be made and the secrecy of the means and extent of the surveillance has to be sacrificed.
3. The object of section 9 of the IOCA 1985 is to preserve secrecy. Therefore, the section prevents any questions being asked which tend to suggest that an official may or may not have had authority under the Act to intercept a communication.
4. There is no basis for the argument that there is a rule of English public policy which makes this evidence, which is admissible in country A, inadmissible in England .
We must now discuss, at some length, sections 17 and 18 of RIPA 2000 which bristle with evidential problems as highlighted in two recent cases. In R v E , one of a number of defendants accused of drugs-related offences, challenged at a preliminary hearing the admissibility of telephone conversations recorded as a result of a surveillance device installed in the appellant's car. The judge ruled that the evidence was admissible. On appeal, the appellant's contention that the consequence of section 17 of RIPA 2000 was to make the material derived from the device inadmissible or, alternatively, that it should be excluded under section 78 of PACE was rejected. In Attorney General's Reference (No. 5 of 2002) where the conversations of three police officers suspected of passing confidential and sensitive information to known criminals were intercepted pursuant to IOCA 1985, which did not apply to private communication system, and were charged with conspiring to commit misconduct in a public office and tried in May 2002 when IOCA 1985 had been replaced by RIPA 2000. The telephone system used to make the interception linked several police stations and comprised private automated branch exchanges linked together via BT Megastream lines which were part of the public telephone system. The trial judge ruled that section 17 of the RIPA prevented the defence from asserting that the interception had taken place on the public side of the system and prevented the prosecution from adducing evidence that it had taken place on the private side. He also ruled that pursuant to section 78 of PACE it would be adverse to the fairness of the proceedings to allow the prosecution to adduce evidence that the interception was on a private side if the defence were not allowed to adduce evidence to the contrary. The three defendants were acquitted on the judge's direction and the Attorney General referred to the Court of Appeal the following questions:
“(1) whether s.17 (1) of RIPA operated so as to prevent, in criminal proceedings, any questions being asked, evidence being adduced, assertion or disclosure made so as to ascertain whether a telecommunications system was a public or a private telecommunications system;
(2) whether the answer to question (1) was different if the questions being asked etc. related to events which took place before RIPA came into force; and
(3) whether an interception of a communication had taken place on a private telecommunications system, it was permissible, in criminal proceedings, to ask questions or adduce evidence etc. to establish that interception had been carried out by or on behalf of the person with the right to control the operation or the use of the system.”
The Court of Appeal answered the first two questions in the negative and the third question in the affirmative. This decision was affirmed by the House of Lords in a judgment which is illuminating and problematic. The decision of the House of Lords can be summarised as follows:
That section 1 (1) of RIPA 2000 re-enacted the offence created by section 1 (1) of IOCA 19085 of intentional interception without authority in respect of public telephone system;
that section 1 (2) of RIPA 2000 created an offence of intentional and without lawful authority making an interception in respect of a private system; and that references to lawful authority and criminal liability were clarified in sections 1 (5) and 1 (6).
that the first source of lawful authority to tap a private system, as defined in section 3, is where consent was given by a party to the communication, and the second source, defined in section 4, permitting an employer to monitor compliance with regulatory requirements;
that if the court concluded that it was public, that was the end of the matter, and that if it was private but unlawful that would also be the end of the matter;
but if it was private but unlawful, the court might, subject to any other argument, admit the evidence; and
that the European Convention on Human Rights permitted necessary and proportionate interference with the right to privacy (Article 8 (1) and (2) of the Convention).
The problem with RIPA 2000 is with section 17 (1) which sets out the rules of admissibility and section 17 (2) which lists five forbidden categories of information about provenance. As these rules are blanket rules of inadmissibility, it is difficult to see how the section can be interpreted in a manner compatible with Articles 6 and 8 of the Convention.
Again, section 18 bristles with evidential problems. Although section 18 (7) of RIPA 2000 deals with the procedure where disclosure is made to the judge alone, there are no circumstances in which prohibited materials may be disclosed to the defence and there is a real prospect of violation of Article 6 of the Convention.
Recently, the House of Lords had to consider in In re McE whether s.27 (1) of RIPA 2000 and the Code authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. Section 27 (1) provides:
“(1) Conduct to which this Part applies shall be lawful for all purposes if –
(a) an authorisation under this Part confers an entitlement to engage in that on the person whose conduct it is; and
(b) his conduct is in accordance with the authorisation.”
Section 28 governs the authorisation of direct surveillance.
In this case, a solicitor called Manhoman Sandhu was charged with incitement to murder and four counts of doing acts tending and intended to prevert the course of justice. The case against him was based on covert electronic surveillance carried out by the police of conversations between himself and his clients who were purporting to consult him in the serious crime suite at Antrim Police Station in Northern Ireland . This led to request made of the police on behalf of each of the appellants for assurances that no such monitoring was to take place in respect of their consultations with their lawyers or psychiatrist. The police declined to give such assurances. The Divisional Court held that monitoring of legal consultations in police stations or prisons cannot be lawfully authorised under the Code [for authorisation of surveillance] in its present form. The Home Secretary chose not to appeal against this finding of law but regarded the finding as a “concern” and felt that it was open to her to “take steps necessary to remedy the concern identified by the Court.”
In answering the question certified for the opinion of the House of Lords on the impact of RIPA on legal professional privilege, the majority of the Law Lords, after considering Brennan v United Kingdom and other Strasbourg cases but excluding S and Marper v United Kingdom , discussed in Chapter 9, held that RIPA permits the Code to authorise surveillance of communications between solicitors and their clients both in custody and outside it in those exceptional circumstances where this will be compatible with the Convention. Lord Phillips noted that the monitoring of legal consultations in police stations or prisons cannot lawfully be authorised in its present form until the Home Secretary took appropriate steps to ensure that such authorisation complies in all respects with the requirements of the Convention. This is problematic. The fact that such surveillance is prescribed by law is not sufficient to bring the statutory provision and the Code within the ambit of Article 8 (2) of the Convention. The law, as clarified by amendment made by the Home Office, must also be proportionate to the legitimate interests of the State and necessary in a democratic society as stated in S and Marper v United Kingdom which, regrettably, was passed over in silence by the House of Lords.
Finally, we must consider R v Loosely, Attorney General's Reference (No. 3 of 2000) , a case on entrapment where Lord Nicholls categorically stated:
“It is simply not acceptable that the state through its agents should lure its citizens into committing acts forbidden by the law and to then seek to prosecute them for doing so. That would be entrapment … The role of the courts is to stand between the state and its citizens and make sure this does not happen.”
In that case, the first defendant, Loosely, was convicted of supplying a class A controlled drug contrary to section 4 of the Misuse of Drugs Act 1971. The second defendant was charged with supplying heroin to an undercover police officer known as “Rob”. Rob was given the defendant's name and telephone number and told that the defendant could obtain drugs. Rob telephoned the defendant who agreed to supply heroin. Undercover officers offered contraband cigarettes to the defendant at a cheap price and asked him if he could get them some heroin. The trial judge stayed the proceedings on the ground that the police officers had incited the commission of the offence and the defendant would be deprived of his right to fair trial guaranteed by Article 6 of the Convention. The case was referred by the Attorney-General to the Court of Appeal and the Court ruled that the trial judge had erred in staying the proceedings. On appeal by the defendant in the first case and on further reference by the Court of Appeal at the request of the defendant in the second case, the House of Lords dismissed Loosely's appeal and held that the judge was entitled to conclude that the officers' conduct did not constitute incitement but in the Attorney-General's Reference the judge was right to rule that the prosecution should be stayed on the ground that the police officers had instigated the offence.
The principles of law were stated as follows: (i) that it would be unfair and an abuse of process if a person had been incited or pressurised by an undercover police officer into committing crime; but (ii) it would not be objectionable if the officer, behaving as an ordinary member of the public would, gave a person an unexceptional opportunity to commit a crime, and that person freely took it.
 AC 599 at 609.
 3 All ER 175 at
 AC 402 at
(1783) 1 Leach 263.
 1 KB 531, [1918-19] All ER Rep 491.
 AC 197,  1 All ER 236, PC.
 1 QB 688,  2 All ER 464. Cf. PG and JH v United Kingdom (2001) The Times, 19 October; (2008) 46 EHRR 51 where the use of covert listening devices at a police station violated Articles 8 and 13 of the Convention.
 2 KB 381.
 1 WLR 637.
(1991) The Times, 19 February, CA. In that case, recordings of conversation between the accused and his family taken in an interview room where the police had planted a microphone was held admissible in evidence. Cf . Brennan v United Kingdom  Crim LR 216 where it was held that the presence of the police at D's consultation with his lawyer violated Article 6 (1) read in conjunction with Article 6 (3) (c).
See D.W. Elliot, Manual of the Law of Evidence (London: Sweet & Maxwell, 1987), at 201. See also Li Shu-Ling v R ( AC 270,  3 All ER 138, PC; Lam Chi-Ming v R  Crim LR 914, PC; and Commentary  Crim LR 914-915.
R. May, “Fair Play at Trial: An Interim Assessment of section 78 of the Police and Criminal Evidence Act 1984”  Crim LR 722 at 723.
A. Keane, The Modern Law of Evidence ( London : Butterworths, 2000), at 373.
See R v Hayter  1 WLR 605, HL and R v Johnson (2007) 171 JPR 574. Cf. R v Finch  1 Cr App R 33.
 QB 426.
 QB 615.
 Crim LR 442.
I. Dennis, “The Admissibility of Confessions under sections 84 and 85 of the Evidence Act 1995: An English Perspective”  18 Syd LR 34 at 44.
(1978) 2 EHRR 25.
 1 WLR 1192.
(1969) 12 Yearbook of the European Convention on Human Rights 186.
(2001) 33 EHRR 38.
(2001) The Times, 15 November. See also R v Secretary of State for the Home Department, ex p Turgut  HRLR 337 and Bensaid v United Kingdom (2001) 33 EHRR 10.
(2003) The Times, 1 May.
(2001) 33 EHRR 51.
See also R (Nasseri) v Secretary of State for the Home Department  1 All ER 411.
(2001) 33 EHRR 59.
 Crim LR 416.
 Crim LR 277.
(Application no 37201/06), 28 February 2008 (European Court of Human Rights).
 Crim LR 678.
 Crim LR 826.
 Crim LR 241.
(1989) 88 Cr App R 338. Cf. R v Crampton , supra n.31.
 1 All ER 57, DC.
PACE, s.82 (1). See R v Sat-Bhambra  Crim LR 453. Cf . R v Watson  1 WLR.
PACE, s.77 (3).
Supra n.30. See also R v Silcott, Braithwaite and Raghip (1991) The Times, 9 December.
Annex E, Code C. See also R v Campbell  1 Cr App R 522.
 Crim LR 813.
 Crim LR 276. Note also that in R v Bailey  2 Cr App R 262 the confession in the absence of an independent person was excluded.
Section 76 of PACE requires the issue of admissibility to be determined in a voir dire before evidence is given ( F v Kent Chief Constable  Crim LR 682).
See Wong Kam-Ming v R  AC 247, PC.
 Crim LR 190.
(1989) 88 Cr App R 332, CA.
(1998) The Times, 5 March, DC.
See R v H  Crim LR 47 and R v Stagg  9 Arch News 4.
See P.B. Carter, “Evidence Obtained by the Use of a Covert Listening Device” (1997) 113 LQR 468; A. Ashworth, “Should the Police be Allowed to Use Deceptive Practices?” (1998) 114 LQR 108; and A.F. Jennings and D. Friedman, “The Future of Covert Policing: Will it rest in peace?”  8 Arch News 6-8.
R v Samuel  QB 615.
R v Miller  1 WLR 1191.
R v Goldenberg  Crim LR 678 and R v Everett  Crim LR 826.
PACE, s.77 (3).
(1988) 86 Cr App R 349. See also Matto v DPP  Crim LR 641 where mala fides was found in the police. It was suggested to him that he could sue if wrongly arrested. The evidence was excluded under section 78 of PACE.
[1997 Crim LR 47.
See Swaffield and Pavic v R  HCA 1 (20 January 1998): available on the Internet at http://www.austlii.edn.au/do/displ./au
Hebert v R  2 SCR 151 and R v Broyles  3 SCR 595 (Supreme Court of Canada).
 3 All ER 365.
For an overview, see P. Mirfield, “Regulation of Investigatory Powers Act 2000 (2): Evidential Aspects”  Crim LR 91.
(1985) 7 EHRR 14.
Interception of Communications in the United Kingdom . February 1985, HMSO, Cmnd. 9438.
RIPA 2000, ss.17 (3) (b) and 81 (6) (a).
 3 All ER 512, (1993) 143 NLJ 579, CA.
 1 All ER 898.
(1994) The Times, 31 December. See also R v Latif and Shahzad  Crim LR 415 where the use of an undercover officer in Pakistan and a customs officer in the UK to entrap the importers of heroin in the UK did not trigger the judge's discretion under section 78 of PACE to exclude the evidence obtained.
(1992) 95 Cr App R 427, CA.
 2 AC 130, HL. See also R v Rasool, R v Choudhary (1997) The Times, 17 February, CA.
 3 All ER 289, HL.
In both Nottingham City Council v Amin  1 Cr App R 426 and R v Shannon  1 Cr App R 168 this position was affirmed. The House of Lords also relied on the authority in Schenk v Switzerland (1988) 13 EHRR 242 and Ludi v Switzerland (1993) 15 EHRR 173 that Article 8 of the Convention is not violated on interception of communication if it is done “according to the law” even though in Ludi it was held by eight votes to one that there had been a violation of Article 6 (1) in conjunction with Article 6 (3) (d).
 3 All ER 289 at 291.
(1763) 19 St Tr 1153.
(1765) 19 St Tr 1029.
The Fourth Amendment to the US Constitution enacts: “The right of people to be secure in their person, houses, papers, and effects, against unreasonable searches and seizure shall not be violated.”
See Klass v Germany (1978) 2 EHRR 24, Malone v United Kingdom , supra n.62 and Niemetz v Germany (1993) 16 EHRR 97.
Article 8 (2) of the Convention.
P. Kempees, A Systematic Guide to the Case-law of the European Court of Human Rights, 1960-1994 (The Hague: Martinus Nijhoff, 1996), Vol. 1, at 601.
(1999) 28 EHRR 101.
Ibid., at para. 36.
 Crim LR 684.
 EHRLR 121. In that case, the police drilled a hole into the applicant's living room wall from the adjoining house that would enable someone to listen from the next door or attach a listening device. The evidence gathered as a result of this surveillance was not sufficient to justify a prosecution though the applicant was arrested in possession of Class A drug during an unrelated matter. The Commission found (unanimously) that there had been a violation of Articles 8 and 13 of the Convention.
(1998) 24 EHRR 523.
(2002) The Times, 6 August.
 2 Cr App R 113, HL.
 3 WLR 992, HL.
(1997) The Times, 24 November.
 2 WLR 462, HL.
Ibid., at 476-478.
See Armstrong v United Kingdom , note 91 above. See also Allan v United Kingdom (2002) The Times, 12 November.
 ECWA Crim 1243, ] 2 Cr App R 29.
 UKHL 40,  12 Cr App R 20.
See R v Togher, Doran and Parsons  3 All ER 463 at 467 ( Per Lord Woolf CJ).
See Edwards and Lewis v United Kingdom (2003) The Times, 29 July where E and L complained that they had been deprived of a fair trial because they had been entrapped into committing offences by agent provocateurs and the procedure followed by the domestic courts concerning non-disclosure of evidence had been unfair. In its Chamber judgment, the European Court held that the fair trial provisions of Article 6 (1) of the Convention had been breached. The UK Government then informed the European court that it no longer wished to pursue the case to the Grand Chamber and the Court concluded that there had been a violation of Article 6 (1) for reasons stated by the Chamber and awarded the applicants €47,000 for costs and expenses under Article 41 of the Convention (see The Times, 3 November 2004).
 UKHL 15.
Ibid, para 52.
(2001) 34 EHRR 507.
(Applications nos 30562/04 and 30566/04), 4 December 2008 (European Court of Human Rights).
 1 WLR 2060, HL.
Ibid., at 2063-2064.