Right to Privacy Denied by the House of Lords: R v Khan

DOIhttps://doi.org/10.1108/eb025803
Publication Date01 Feb 1997
Pages349-351
AuthorJohn Breslin
SubjectAccounting & finance
Journal of Financial Crime Vol. 4 No. 4 Investigations
INVESTIGATIONS
Right to Privacy Denied by the House of Lords:
R v Khan
John Breslin
In R v Khan (Sultan)1 the House of Lords had to
consider the legality of a conviction based on
evidence obtained by means of an electronic listen-
ing device attached to a private house without the
knowledge of either the owners or occupiers. This
invasion of privacy was said to have two aspects:
first, the placing of the device on the premises of
the occupier without his consent; and secondly,
the act of listening to the defendant's conversa-
tions.
The House of Lords held that the provisions
of the European Convention on Human Rights
and Fundamental Freedoms (the 'ECHR') were
'relevant' to the exercise of the trial judge's dis-
cretion under the Police and Criminal Evidence
Act 1984 whether to exclude the evidence. How-
ever, their Lordships emphatically rejected the
proposition that an identifiable right to privacy
existed under English law.2
The ECHR addresses the question of the right
to privacy. Article 8 of the ECHR provides as fol-
lows:
'1.
Everyone has the right to respect for his pri-
vate and family life, his home and his corre-
spondence.
2.
There shall be no interference by a public
authority with the exercise of this right except
such as is in accordance with the law and is
necessary in a democratic society in the interests
of national security, public safety or the eco-
nomic well-being of the country, for the pre-
vention of disorder or crime, for the protection
of health or morals, or for the protection of the
rights and freedoms of others.'
Article 13 of the ECHR requires signatory states to
afford citizens an effective remedy for the protec-
tion of the rights guaranteed by the ECHR.
The collection of evidence in the circumstances
relevant to the decision is not regulated by statute.
Accordingly the defendant argued that there was
an analogy with the decision of the European
Court in
Malone
v
United
Kingdom.3 In that case the
UK was held to be in breach of the Convention
because the interception of private telephone and
mail communications was unregulated. This led to
the passing of the Interception of Communications
Act 1985. The defendant in Khan argued that the
interference with his right to privacy was not
carried out in accordance with the law, as required
by the ECHR.
Lord Browne-Wilkinson concluded that the case
did not raise the controversial and important ques-
tion as to whether a right to privacy exists in
English law: this was because the trial judge had
properly taken into account the terms of the
ECHR in deciding whether or not to admit the
evidence. Lord Slynn of Hadley agreed. The
former judge implicitly confirmed, and the latter
expressly confirmed, that the provisions of the
ECHR were proper matters to be taken into
account by the trial judge when deciding whether
to admit such evidence under s. 78 of the Police
and Criminal Evidence Act 1984. By way of con-
trast, Lord Nicholls preferred to leave open the
question whether the piecemeal development of
rights of privacy under English law had reached
the stage where it is not possible to say that a
definable right definitely exists. He saw the right
to privacy as another facet of the right to a fair
trial, also enshrined in the ECHR. He also noted
that the European Court of Human Rights had
held in 'Schenk v Switzerland4 that merely because
material obtained by the prosecution is in breach
of the defendant's right to privacy does not mean
that the trial is accordingly unfair.
The principal judgment was handed down by
Lord Nolan. He noted that there was no legal
framework under English law regulating the instal-
lation by the police of covert listening devices
Page 349

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