THE DRUG BUG BUST WORTH ARGUING ABOUT

Last week the European Court of Human Rights heard argument on an issue of
much importance: is it a breach of the right to a fair trial of a criminal
charge for the prosecution to rely on evidence obtained by illegal means?

In January 1993 Sultan Khan visited a house in Sheffield. Unknown to him,
the police were bugging the premises. They obtained a tape-recording of a
conversation in which Khan admitted that he had been involved in the import
into the United Kingdom of heroin with a street value of pounds 100,000.

Khan was charged with the offence of being knowingly concerned in the
fraudulent evasion of the prohibition on the import of a class A drug. He
argued that the tape-recording was inadmissible evidence because the
bugging was not authorised by law, it involved trespass to the property,
and there was no other evidence against him. But the judge decided that the
unlawful means used to obtain the evidence did not prevent the prosecution
from relying on it. In the light of that ruling, Khan pleaded guilty and
was sentenced to three years' imprisonment.

In 1996 the House of Lords dismissed Khan's appeal. Lord Nolan commented
that it was "astonishing" that there was no statutory system regulating the
use of surveillance devices by the police, a defect in English law that has
since been remedied by the Police Act 1997. But, Lord Nolan concluded, the
fact that the police had breached the privacy of Khan and acted unlawfully
did not make the evidence obtained inadmissible. Whether the evidence could
be used depended upon its effect on the fairness of the trial, and not on
the irregular or illegal steps taken by the police.

The trial judge was entitled to rule that the use of the evidence did not
make the trial unfair.

Lord Nolan added that he had reached these conclusions "with relief", as it
would be "a strange reflection on our law" if a man who admitted his
participation in the illegal importation of a large quantity of heroin
should have his conviction set aside on the ground that his privacy had
been invaded.

Khan has considerable difficulty in seeking to persuade the judges of the
European Court to take a different view. In Schenk v Switzerland in 1988,
the Court dismissed a complaint that it was a breach of the right to a fair
criminal trial, as guaranteed by Article 6 of the European Convention on
Human Rights, for the prosecution to rely on an unlawfully obtained
recording of a telephone conversation.

The court said that Article 6 does not lay down any rules on the
admissibility of evidence, which is primarily a matter for regulation under
national law. Therefore, there is no general principle that unlawfully
obtained evidence must be excluded. The task of the European Court is
simply to ascertain whether the trial as a whole was fair. It sufficed that
the defendant knew, at the time of the trial, that the recording was
unlawful and had an opportunity to challenge its admissibility in the
domestic court.

Three main arguments are being advanced on behalf of Khan for departing
from Schenk and finding a breach of Article 6. First, that English law
provides no effective procedure for challenging the admissibility of
evidence obtained in breach of the right to privacy as guaranteed by
Article 8 of the Convention. Secondly, the present case involved a
fundamental defect in that there was, at the time, no statutory regulation
of listening devices. And thirdly, that the tape-recording was the only
evidence against Khan.

None of these arguments is likely to succeed unless the European Court is
persuaded to adopt the "exclusionary rule" that applies, subject to
exceptions, in American law: that evidence obtained by the Government in
violation of a defendant's constitutional rights may not be used by the
prosecution in a criminal trial. The principle is based on the theory that
it is a central function of the courts to encourage lawful action by the
State. Or as Mr Justice Holmes suggested in 1928, it is "a less evil that
some criminals should escape than that the Government should play an
ignoble part".

The European Court is unlikely to adopt that approach. Article 6 is
concerned with a fair trial, not with ensuring the achievement of other
objectives, however laudable they may be. The means by which evidence was
obtained is relevant to the fairness of the trial, but is not the only
relevant factor.

As Mr Justice Cardozo explained for the US Supreme Court in 1933, the rules
of evidence are framed "for ordinary minds, and not for psychoanalysts".
They usually have their source "in considerations of administrative
convenience, of practical expediency, and not in rules of logic".

It will be a surprise if, on this occasion, the expediency of English law
is found to violate human rights.

The author is a practising barrister and a Fellow of All Souls College,
Oxford. He is the editor, with Lord Lester of Herne Hill, QC, of the
textbook Human Rights Law and Practice (Butterworths).