R v Khan (Sultan)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,MR JUSTICE PILL |
| Judgment Date | 27 May 1994 |
| Judgment citation (vLex) | [1994] EWCA Crim J0527-5 |
| Docket Number | No. 94/0195/X3 |
| Court | Court of Appeal (Criminal Division) |
[1994] EWCA Crim J0527-5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Hutchison and Mr Justice Pill
No. 94/0195/X3
MR FRANZ MULLER QC and MR MARK GEORGE appeared on behalf of THE APPELLANT
MR STEPHEN GULLICK and MR SIMON HARING appeared on behalf of THE CROWN
Friday 27 May 1994
THE LORD CHIEF JUSTICE: The issues to which this appeal gives rise are: (i) whether in a criminal trial evidence as to the terms of tape recorded conversations obtained by means of an electronic listening device attached by the police to a private house without the knowledge of the owners or occupiers was admissible against the defendant; and (ii) if it was admissible, whether the judge should in his discretion have excluded it, having regard to the terms of Section 78 of the Police and Criminal Evidence Act 1984.
On 10 December 1993, in the Crown Court at Sheffield before His Honour Judge Barber, the appellant pleaded guilty on re-arraignment to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class A drug, heroin. He is now serving a sentence of 3 years imprisonment which was imposed on 14 March 1994. His plea of guilty followed the judge's ruling, the correctness of which is challenged in this appeal, brought with the leave of the Single Judge.
The facts
On 21 July 1992, the appellant and a man called Farooq Nawab, both travelling on the same flight, arrived at Manchester airport from Pakistan. They had been seated in separate parts of the aeroplane and both went, separately, through the Green channel. Both were stopped, searched and interviewed. Nawab was found to be in possession of heroin with a street value of almost £100,000, and a small amount of cannabis resin. He said that he was travelling alone, but admitted knowing the appellant, a distant relative, and said that he had spent a night with the appellant in Pakistan. He did not implicate him in the offence. Nawab was, naturally, arrested and charged.
No drugs were found in the possession of the appellant, who made no admissions and was released without charge. On interview at the police station the following day, he denied any offence and declined to answer most of the questions that were put to him.
On 26 January 1993, the appellant went to an address in Sheffield, the home of a man named Bashforth, on the exterior of which an aural surveillance device had been installed by, or at the instance of, the South Yorkshire police. Neither the appellant nor Bashforth nor any occupant of the premises was aware of its presence. It was not expected or foreseen that the appellant would visit the premises. By means of that device, the police obtained a tape recording of the conversation that took place between Bashforth, Nawab's brother, a woman and the appellant. In the course of that conversation, things were said by the appellant which plainly (as his subsequent change of plea confirms) showed that he was involved in the importation of the heroin.
As a result, the appellant was arrested on 11 February 1993. He was interviewed, but made no admissions and was subsequently charged. At the trial, it was admitted on his behalf that he had been present at the Sheffield address and that his voice was one of those recorded on the tape. On behalf of the prosecution, who for obvious reasons did not wish to disclose details of the circumstances pertaining to the attachment of the listening device, it was admitted that its attachment had involved a civil trespass and occasioned some degree of damage to the property.
In the absence of the jury, the judge heard evidence to enable him to decide whether to admit the tape recording of the conversations. The Crown accepted that without it there was no case against the appellant, and had it been ruled out would have offered no evidence. The judge admitted it and, following an amendment to the indictment to add a further count, the appellant pleaded guilty. It was made clear that he did so only on the basis of the judge's ruling, and reserved the right to challenge that ruling.
The evidence at the Voir Dire
The evidence established that on 9 December 1992, Detective Chief Superintendent Burdiss submitted to the Chief Constable of South Yorkshire, Mr Wells, a request on Form CID/62, dated 2 December 1992, for authority to install the listening device. The reason for the request was said to be that Bashforth was dealing heavily in heroin. It was said that the police had concluded that conventional surveillance methods would be totally inadequate to combat his activities and that the position of the premises was such that policemen, whether on foot or in vehicles, who attempted to watch the premises would easily be seen.
The evidence of the Chief Constable was that the matter was discussed over some fifteen to twenty minutes —though he did not keep a note of the conversation —and that as a result he was satisfied that authority should be granted, as it was. This involved that Mr Wells was satisfied (a) that the investigation concerned serious crime; (b) that normal methods of investigation had been tried and failed, or must from the nature of things be unlikely to succeed if tried; (c) that there was good reason to think that the use of the equipment would lead to arrest and conviction; and (d) that the use of the equipment was operationally feasible.
Detective Chief Superintendent Burdiss, who was head of the Drug Squad, also gave evidence. He spoke of the discussions he had had with other officers in relation to Bashforth, and said that he was satisfied that the supply of heroin on a large scale was involved, and accepted his officers' assessment that normal surveillance was impracticable. Bashforth, he said, was someone in respect of whom the police desired to gather evidence for a prosecution.
Both these witnesses were cross-examined, with a view to testing their assessment of the situation, and challenging the propriety of the authorisation that was given. Since, in the event, the judge accepted the material parts of their evidence, and it is not on this appeal suggested that his decision in that regard is open to challenge, it is unnecessary to rehearse details of the cross-examination. There were also some other witnesses who gave largely formal evidence, to whom again it is unnecessary specifically to refer.
Material Documents
There are, in the United Kingdom, no statutory provisions which govern the use by police of secret listening devices on private property. This is to be contrasted with the position in relation to the interception of public telephone calls or postal communications, now (following the decision of the European Court of Human Rights in Malone v United Kingdom (1984) 7 EHRR 14) governed by the Interception of Communications Act 1985. It is also to be contrasted with controls in the use of surveillance devices by the Security Service laid down in the Security Service Act 1989.
There are, however, Home Office Guidelines on the subject, and in addition the South Yorkshire Police have issued Standing Orders which plainly are intended to be complementary to the Home Office Guidelines.
We must refer to some of the provisions to be found in each of these documents. The Home Office Guidelines of 1984 are entitled "Covert Listening Devices and Visual Surveillance (Private Place)". They make it clear that only Chief Constables (in cases such as the present) or Assistant Chief Constables (in cases exhibiting features not present in the instant case) are entitled to give authority for the use of such devices. Under the heading "General" appears the following:
"Surveillance equipment has a valuable role to play in many police operations, and the police have a duty to employ appropriate surveillance measures where necessary for the prevention and detection of crime. But it must also be recognised that the use of equipment in police surveillance operations may involve encroachment on privacy. The circumstances in which the equipment is used are generally the key factor in determining public attitudes. Most concern is directed towards the use of equipment in circumstances where targets of surveillance might reasonably assume a high degree of privacy, for example in their homes or in a hotel bedroom. …. Careful consideration at a senior level in the police service therefore needs to be given in each case to all the circumstances of the particular investigation or operation before the use of equipment for surveillance operations is authorised."
In relation to the use of covert listening devices the Guidelines embody the following statements of principle, among others:
"4. In each case in which the covert use of a listening device is requested the authorising officer should satisfy himself that the following criteria are met:
(a) the investigation concerns serious crime ….;
(b) normal methods of investigation must have been tried and failed, or must, from the nature of things, be unlikely to succeed if tried;
(c) there must be good reason to think that use of the equipment would be likely to lead to an arrest and a conviction, or where appropriate, to the prevention of acts of terrorism;
(d) use of equipment must be operationally feasible.
5. In judging how far the seriousness of the crime under investigation justifies the use of particular surveillance techniques, authorising officers should satisfy themselves that the degree of intrusion into the privacy of those affected by the surveillance is commensurate with the seriousness...
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Subject Index
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