Human Rights and the Discretionary Exclusion of Evidence
| Author | Nick Taylor,Ben Fitzpatrick |
| DOI | 10.1177/002201830106500409 |
| Published date | 01 August 2001 |
| Date | 01 August 2001 |
| Subject Matter | Article |
Human
Rights
and
the
Discretionary
Exclusion
of
Evidence
Ben
Fitzpatrick
and
Nick
Taylor*
Across
the
Contracting States to
the
European
Convention
on
Human
Rights, Article 6,
the
right to a fair trial,
has
proved
the
most
fertile
Convention
right for litigation. A fair trial
under
Article 6 is
an
over-
arching
concept
which
encompasses a
wide
variety of
criminal'
justice
procedures
and
decisions,
both
extending
beyond
the
'trial'
itself,
into
the
appeals
and
post-appeals
process.'
and
also
taking
in
relevant
pre-
trial events.
One
significant
element
in consideration of
the
fairness of a
trial is
the
gathering
of evidence by
contentious
means,
and
the
sub-
sequent
use of
that
evidence at trial. In this piece
we
will discuss
the
relatively
recent
decision of
the
European
Court
of
Human
Rights in
Khan vUnited Kingdom in relation to
the
use of
evidence
at trial
gathered
in
breach
of Article 8
(the
right to privacy) of
the
Convention;
we will go
on
to consider
the
congruence
of
the
decision
with
domestic law;
and
finally,
we
will
consider
the
implications of Khan
and
other
decisions for
future
cases raising
relevant
fair trial issues.
The
decision
in
Khan
v
United
Kinqdom'
In
September
1992
the
applicant
and
his cousin,
Farooq
Newab, arrived
at
Manchester
Airport
on
aflight from Pakistan. On arrival
customs
officials searched
both
men
and
Newab
was
found
to be in possession of
heroin
with
astreet
value
of
almost
£100,000. No drugs
were
found
on
Khan
and
he was released
without
charge after
an
interview
in
which
he
denied
having
committed
any
offence.
In
January
1993
Khan
visited afriend
named
Bashforth
in Sheffield
who
was, at
the
time,
under
investigation for dealing in
heroin.
Earlier
that
month
the
Chief Constable of
South
Yorkshire
had
granted
author-
ity in accordance
with
Home
Office Guidelines for
an
aural
surveillance
device to be placed
on
Bashforth's property.
Neither
Bashforth
nor
Khan
was
aware
of
the
presence
of
the
device. The police
had
not
foreseen
that
Khan
would
visit
the
house,
but,
by
means
of
the
surveillance device,
*Lecturers in Law, University of Leeds. We are grateful to
our
colleague Clare
Furniss, for
her
helpful
comments
on an earlier draft of this piece. Responsibility for
errors remains
our
own.
I Article 6 also covers
the
civil process. This piece is exclusively
concerned
with
criminal law matters.
2See Edwards vUnited Kingdom
(1993)
15 EHRR
417;
Rowe and Davis vUnited
Kingdom
(2000)
30 EHRR
l.
3 8 BHRC 310;
[2000]
Crim LR
684.
For further discussion, see N. Taylor,
[2000]
Journal of Civil Liberties
338.
349
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