R v P (Telephone Intercepts: Admissibility of Evidence)

JurisdictionEngland & Wales
JudgeLORD GOFF OF CHIEVELEY,LORD BROWNE-WILKINSON,LORD COOKE OF THORNDON,LORD HOBHOUSE OF WOODBOROUGH
Judgment Date11 December 2000
Judgment citation (vLex)[2000] UKHL J0608-1
Date11 December 2000
CourtHouse of Lords

[2000] UKHL J0608-1

HOUSE OF LORDS

Regina
and
P.

And Others

(Appellants)
(On Appeal From the Court of Appeal (Criminal Division)
1

These speeches have been edited so as to conform with the Order of the House of 24th May 2000. This Order confirmed the Order of the Court of Appeal (Criminal Division) of 16th May 2000, which states that the Court of Appeal has:

"Directed that reporting restrictions in accordance with section 37 of the Criminal Procedure and Investigations Act 1996 shall apply, provided that:

2

(a)a copy of this Judgment may be circulated among practitioners for the limited purpose of reference to any Court or Judge concerned with the issues dealt with and provided that, in producing or referring to the Judgment before any court, the practitioner reminds the Court of the need not to refer to the names of the Defendants or the Court from which the appeal emanate.

3

(b)For the purposes of reporting the Court's decision, the order does not prohibit reports of the Judgment, the contents of which are limited to identifying and reporting the legal issues; all references to the names and details of the police operations concerned, the Court of trial, and the identity of [the country] in which the intercepts were made being omitted" LORD HUTTON

My Lords,

4

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with it and it was for the reasons which he gives that I dismissed these appeals.

LORD GOFF OF CHIEVELEY

My Lords,

5

I have had the opportunity of reading in draft the opinion prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with the reasons given by him for dismissing the appeals.

LORD BROWNE-WILKINSON

My Lords,

6

I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Hobhouse of Woodborough. I agree with it and it was for the reasons he gives that I dismissed the appeals.

LORD COOKE OF THORNDON

My Lords,

7

Having had the advantage of reading in draft the speech of my noble and learned friend Lord Hobhouse of Woodborough, I agree with the reasons given by him for the dismissal of these appeals.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

8

In March of this year a Crown Court Judge sitting in London held a preparatory hearing under s.29 of the Criminal Procedure and Investigations Act 1996 at the request of the parties to decide a question of the admissibility of evidence in connection with a prosecution of three defendants for serious alleged offences contrary to s.20 of the Misuse of Drugs Act 1971. The indictment contained three counts each charging all three defendants with assisting in the United Kingdom in the commission of drug offences in European Union countries 'A' and 'B' contrary to the laws of those countries.

9

The Crown case is that the defendants (who are British citizens) had, together with 'X', a national of country 'A', and 'Y', a national of country 'B', (and presumably others) been concerned in the smuggling of a substantial quantity of a class A drug of a high purity into and out of country 'A', it is said with a view to its later being smuggled into the United Kingdom. The defendant 'P' was alleged to have been the ringleader in the United Kingdom using the defendants 'Q' and 'R' as his 'employees'. Between October 1998 and January 1999 all three defendants made separate visits to country 'A' and met (among others) 'X'. Towards the end of January 'Q' and 'R', it is alleged on 'P''s instructions, collected the drugs from 'X' in country 'A' and 'Q' took it to country 'B' and gave it to 'Y' who worked on a ship so that he could bring it into England. 'Y' was arrested in country 'B' before he could leave and 'X' was arrested in country 'A'. The defendants were arrested in England.

10

The authorities in country 'A' had suspected 'X' of being concerned in drug trafficking for some time and in October 1998 the Public Prosecutor in country 'A' had lawfully obtained from an Examining Magistrate in country 'A' an order authorising the interception of 'X'' telephone calls on certain identified telephones which he was known to use. One of these was a mobile telephone which used a network in country 'A'. The result was that, when he made or received calls on this telephone, they could be monitored by the country 'A' authorities in that country even though he might at the time be in England or elsewhere outside country 'A'. The authorities in country 'A' were thus able to record in that country telephone calls made or received by 'X' anywhere using his mobile telephone or using one of the other identified land lines in country 'A' which was covered by the order. Under the law of country 'A' such orders were valid for 4 weeks and after the expiry of that period had to be renewed on fresh applications to the Magistrate. The Prosecutor thereafter duly applied for and obtained the requisite renewals.

11

The intercepts from country 'A' resulted in recordings being made of various telephone conversations between 'X' and each of the defendants. The telephone calls were made from country 'A' to the United Kingdom, or from the United Kingdom to country 'A', or when 'X' was using his mobile telephone while visiting England and both parties to the recorded conversation were in England, or when the relevant defendant was visiting country 'A' and both parties were in that country. But in all cases the intercepts and recordings were made in country 'A' in accordance with the law of that country.

12

Since these recorded conversations involved persons who appeared to be English and 'X' had also been observed by the police of country 'A' meeting persons whom they could not identify, the Prosecutor, with the approval of the Magistrate, authorised the police to seek the assistance of the United Kingdom authorities. This cooperative approach paid off, ultimately leading to the arrests to which I have already referred and the seizure of the cocaine. The exchange of information was formalised in an exchange of requests between the English prosecuting authorities and the prosecuting authorities in country 'A' in January 1999. The English request was sent pursuant to the provisions of the Criminal Justice (International Co-operation) Act 1990. By a document dated simply "May 1999" addressed to "The Competent Judicial Authorities of [country 'A']" and sent by a designated Crown Prosecutor, he requested inter alia that officers of the National Crime Squad should be allowed to travel to country 'A' and obtain all the interception material and evidence relating to the case of 'X' which concerned the three defendants. The relevant recordings could not under the law of country 'A' be lawfully released to the British authorities without an order of a judge of the relevant District Court in Country 'A'. On 29 June 1999 a judge of that court made the requisite order and the recordings were then handed over. These recordings were included in the material disclosed to the defence in the English prosecutions and the Crown proposed to put them in evidence as part of the Crown case at the trial of the defendants.

13

It was in these circumstances that the question of the admissibility of these recordings was raised before the Crown Court Judge. He heard evidence of how the intercepts had been authorised and the recordings made, of the law of country 'A' and of the part played by the British police and how the recordings and transcripts had come into the possession of the Crown Prosecution Service. He rejected the defendants' submission that the recordings were inadmissible in English law and should be excluded from the evidence at the trial. He held that they were not made inadmissible by the Interception of Communications Act 1985 since that Act only applied to interceptions in this country. He followed the case of R v Aujla [1998] 2 Cr App R 16. He declined to exercise his discretion to exclude the evidence under s.78 of the Police and Criminal Evidence Act 1984.

14

As regards the law of country 'A', he found that "the European Convention on Human Rights has been part of the law of country 'A' for some years"; that the intercepts had been made with the prescribed judicial authority; and that –

"Intercepts of this kind are known to [the law of country 'A'] as coercive measures and notwithstanding that they represent an invasion of privacy have been acceptable to the European Court in Strasbourg who have expressed themselves satisfied with the domestic remedies available to protect the individual in [country 'A'] even though under [the law of country 'A'] the content of the intercepted calls is admissible evidence in a criminal case."

15

There had been no infringement of the requirements of the Convention. The intercepts had been lawful under the law of country 'A'.

16

As regards the question of fairness under s.78, he referred to the fact that there was no criticism of the role of the police forces in either country, that the evidence was admissible in country 'A' and had already been used in support of the successful prosecution of 'X' and that it was intended to call 'X' as a prosecution witness at the defendants' trial. He concluded that –

"The telephone transcripts provide important relevant probative and admissible evidence which the jury could and should consider in coming to their conclusions and to deprive them of that material would almost certainly result in a miscarriage of justice."

17

He gave the defendants leave to appeal because he had considered himself bound by the decision in Aujla and the Court of Appeal (Criminal Division) might wish to review that case.

18

In the Court of Appeal the defendants accepted that the law of country 'A' complied with the Convention but challenged the Judge's...

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