PROCEDURE

The case originated in an application (no. 35394/97) against the United Kingdom of Great Britain and Northern Ireland lodged with the European Commission of Human Rights (“the Commission”) under former Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr Sultan Khan (“the applicant”), a United Kingdom national, on 1 January 1997.

On 3 December 1997 the Commission (First Chamber) decided to give notice of the application to the United Kingdom Government (“the Government”) and invited them to submit observations on its admissibility and merits.

The Government submitted their observations on 2 March 1998. The applicant replied on 30 September 1998, after an extension of the time-limit fixed for that purpose. On 16 October 1998 the Government made comments on the applicant's observations in reply.

Following the entry into force of Protocol No. 11 to the Convention on 1 November 1998, and in accordance with the provisions of Article 5 § 2 thereof, the case was examined by the Court.

In accordance with Rule 52 § 1 of the Rules of Court, the President of the Court, Mr L. Wildhaber, assigned the case to the Third Section.

On 24 April 1999 the Court declared the application admissible and decided to invite the parties to a hearing on the merits.

On 7 July 1999 the President granted leave to the non-governmental organisations Justice and Liberty to submit joint written comments in connection with the case (Article 36 § 2 of the Convention and Rule 61 § 3).

The hearing took place in public in the Human Rights Building, Strasbourg, on 26 October 1999. There appeared before the Court: (a) for the Government Mr C. Whomersley, Foreign and Commonwealth Office, Agent, Lord Williams of Mostyn QC, Attorney-General, Mr J. Crow, Counsel, Ms R. Collins-Rice, Ms K. Jones, Advisers; (b) for the applicant Mr B. Emmerson, Mr K. Starmer, Counsel, Mr J. Dickinson, of the Sheffield Bar, Solicitor. The Court heard addresses by Mr Emmerson and Lord Williams.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

On 17 September 1992 the applicant arrived at Manchester Airport on a flight from Pakistan. On the same flight was his cousin, N. Both men were stopped and searched by customs officials. N. was found to be in possession of heroin with a street value of almost 100,000 pounds sterling. He was interviewed and then arrested and charged. No drugs were found on the applicant. He too was interviewed, but made no admissions. He was released without charge. On 26 January 1993 the applicant visited a friend, B., in Sheffield. B. was under investigation for dealing in heroin. On 12 January 1993 the installation of a listening device on B.'s premises had been authorised by the Chief Constable of South Yorkshire on the grounds that the conventional methods of surveillance were unlikely to provide proof that he was dealing in drugs. It was not expected or foreseen that the applicant would visit the premises. Neither B. nor the applicant was aware of the aural surveillance equipment which had been installed by the police.

By means of that device the police obtained a tape recording of a conversation, in the course of which the applicant admitted that he had been a party to the importation of drugs by N. on 17 September 1992. The applicant was arrested on 11 February 1993. Again he made no admissions when interviewed, but subsequently he and N. were jointly charged with offences under the Customs and Excise Management Act 1979 and the Misuse of Drugs Act 1991 and committed for trial.

The trial took place in December 1993. The applicant pleaded “not guilty”. The applicant admitted that he had been present at the Sheffield address and that his voice was one of those recorded on the tape. It was admitted on behalf of the Crown that the attachment of the listening device had involved a civil trespass and had occasioned some damage to the property. Thereupon, the trial judge conducted a hearing on the voir dire (submissions on a point of law in the absence of the jury) as to the admissibility in evidence of the conversation recorded on the tape. The Crown accepted that without it there was no case against the applicant.

The trial judge ruled that the evidence was admissible. Following an amendment to the indictment, the applicant was re-arraigned and pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin. On 14 March 1994 the applicant was sentenced to three years' imprisonment.

The applicant appealed to the Court of Appeal on the ground that the evidence ought to have been held to be inadmissible. On 27 May 1994 the Court of Appeal dismissed the applicant's appeal against conviction but also certified, as a point of law of general public importance, the question whether evidence of tape-recorded conversations, obtained by a listening device attached by the police to a private house without the knowledge of the owners or occupiers, was admissible in a criminal trial against the defendant.

On 4 October 1994 the Appeal Committee of the House of Lords granted the applicant leave to appeal from the decision of the Court of Appeal dismissing his appeal against conviction. On 2 July 1996 the House of Lords dismissed the applicant's appeal. The House of Lords noted that the question before it gave rise to two separate issues, the first being whether evidence of the taped conversations was admissible at all and the second whether, if admissible, it should nonetheless have been excluded by the trial judge in the exercise of his discretion at common law or under the powers conferred by section 78 of the Police and Criminal Evidence Act 1984 (“PACE”). As to the former issue, the House of Lords held that there was no right to privacy in English law and that, even if there were such a right, the common-law rule that relevant evidence which was obtained improperly or even unlawfully remained admissible applied to evidence obtained by the use of surveillance devices which invaded a person's privacy. As to the latter issue, it was held that the fact that evidence had been obtained in circumstances which amounted to a breach of the provisions of Article 8 of the Convention was relevant to, but not determinative of, the judge's discretion to admit or exclude such evidence under section 78 of PACE. The judge's discretion had to be exercised according to whether the admission of the evidence would render the trial unfair, and the use at a criminal trial of material obtained in breach of the right to privacy enshrined in Article 8 did not mean that the trial would be unfair. On the facts, the trial judge had been entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constituted a breach of Article 8, were not such as to require the exclusion of the evidence. Lord Nolan, giving the opinion of the majority of the House, added: “The sole cause of this case coming to your Lordship's House is the lack of a statutory system regulating the use of surveillance devices by the police. The absence of such a system seems astonishing, the more so in view of the statutory framework which has governed the use of such devices by the Security Service since 1989, and the interception of communications by the police as well as by other agencies since 1985. I would refrain from other comment because counsel for the respondent was able to inform us, on instructions, that the government proposes to introduce legislation covering the matter in the next session of Parliament.”

The applicant was discharged from prison on 11 August 1994. His release was on licence until 12 May 1995.