England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM NEWCASTLE CROWN COURT
MR JUSTICE ROYCE
T. 2003. 7231

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th March 2005

LORD JUSTICE TUCKEY:

1. On 4^th December 2003 Christina Marina Button and Simon David Tannahill were convicted of murder at the Newcastle Crown Court (Royce J. and a jury). Button appeals against conviction by limited leave of the full court. Tannahill applies for an extension of time in which to renew his application for leave to appeal against conviction following refusal by the single judge.
2. The single issue raised on both the appeal and the application is whether section 6 of the Human Rights Act 1998 prevents a court from admitting evidence obtained in breach of article 8 of the ECHR. Whilst the courts have considered whether the admission of such evidence is a breach of article 6 of the Convention they have not, expressly at least, considered whether it is a breach of section 6 of the Act. The bald submission is that evidence obtained in breach of article 8 can never be admitted because if it allowed this to happen the court itself would be acting in a way which was incompatible with that Convention right. It can therefore be seen that if this submission is correct it will have a very considerable impact on the criminal process.
3. For present purposes the facts can be shortly stated. The victim was Button's husband; Tannahill was her nephew. The attack which led to the victim's death took place on the evening of March 3 2003 whilst he was taking his dog for a walk near to the estate in West Rainton where he lived with the defendants. He was found lying in a road suffering from serious head injuries and the police first thought that he had been injured in a road accident. The defendants were initially interviewed as witnesses and gave accounts of their movements that evening. Several days later Tannahill's uncle contacted the police to say that shortly before March 3 Tannahill had asked him to find someone to kill a big man and that the best time to kill him was when he was walking his dog. As it had earlier been arranged that the two defendants would attend the police station on March 10 the police decided to use their visit to try and obtain evidence which either proved or disproved their involvement. To this end they sought the approval of the Chief Constable under the provisions of the Regulation of Investigatory Powers Act 2000 for covert audio and video surveillance of the defendants while they were alone in a room in the police station. Unfortunately the application to the Chief Constable could not be made by an officer involved in the inquiry and by a mistake it was only made for approval of audio surveillance, which was granted. Those involved at the police station believed that both kinds of surveillance had been authorised and, acting in good faith, videoed the meeting between the defendants thus producing both a pictorial and sound record of it. The video showed Button looking toward the door mouthing something to Tannahill and then wiggling her ear and touching the wall suggesting, so the prosecution alleged, that she was indicating that walls had ears. The two were then seen whispering to one another.
4. Apart from the evidence of Tannahill's uncle the case against the defendants was largely circumstantial. Enquiries revealed that Button had debts approaching £200,000 and stood to gain nearly £½m from her husband's death.
5. Button's case was that she had been driving her car at the time of the attack. She did not give evidence at trial. Tannahill, who was alleged to have attacked the victim at the instigation of Button, gave evidence that he was out getting a newspaper at the time. The conversation with his uncle had been a coincidence – he had been having problems with other members of his family, not the victim.
6. The judge ruled that the video was admissible although it was conceded that it had been made in breach of article 8. He later gave reasons for this ruling saying that the argument of Mr Webster Q.C., for Button then as now, was that a breach of article 8 meant that there was automatically a breach of article 6 so the evidence had to be excluded. After referring to a number of the cases to which we refer later the judge said:

Mr Webster realistically recognised that he was treading a new path. He will, on this aspect have to tread it beyond Newcastle Crown Court. I do not accept his argument.

At the end of his ruling the judge acknowledged that Mr Webster's main point had been that because there was a breach of article 8 section 6 of the Act required the evidence to be excluded. He did not deal specifically with this point but his earlier decision to admit the evidence stood.

7. Section 6 (1) of the Act says that:

It is unlawful for a public authority to act in a way which it is incompatible with a Convention right.

It is common ground that a court is a public authority for this purpose.

8. Article 8 of the Convention says:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(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 interest of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

9. The prosecution concede that covert surveillance of the defendants by video was an interference with their private life and, because it had not been authorised, was not in accordance with the law. So there was a breach of article 8. If the video had been authorised (and the sound recording was), there can be no doubt that the surveillance would have passed the test of necessity in article 8 (2). It is important to note that the breach of article 8 is the interference with or intrusion upon private life which is involved in the covert surveillance. Crucial to Mr Webster's submission is that the breach is continued or repeated by anyone who makes use of the evidence obtained from such surveillance. However, before considering this submission further we turn to the authorities to see what light they shed upon the issue we have to decide.
10. Mr Webster's submission to the judge and this court was inspired by the decision of the House of Lords in Attorney General's Reference (No. 2) of 2001 [2003] UKHL 68, [2004] 2 AC 72. This was an article 6 case about delay in the criminal process. The essence of the decision (by a majority of 7 to 2) was that it would only be appropriate for a court to stay or dismiss proceedings because of delay if either a fair hearing was no longer possible or for some other compelling reason it would be unfair to try the defendant at all. Unless either of these conditions applied the prosecutor and the court did not act incompatibly with the defendant's Convention right in prosecuting or entertaining the proceedings. It had been contended that holding the trial after there had been a breach of the reasonable time requirement in article 6 would be a breach of section 6 of the Act. This contention was rejected. Although pre-trial delay was a breach of article 6, for which appropriate remedies might be given, the holding of the trial was not (paras. 24, 40, 120, and 135).
11. In what he called an epilogue to his judgment Lord Bingham said (para. 30):

I cannot accept that it can ever be proper for a court, whose purpose is to uphold, vindicate and apply the law, to act in a manner which a statute (here, section 6 of the Human Rights Act 1998) declares to be unlawful. Thus a prosecutor may pursue proceedings against a criminal defendant after the lapse of a reasonable time (in the absence of unfairness) and a court may entertain such proceedings if to do so is compatible with the defendant's Convention rights and so lawful but not if to do so is incompatible with the defendant's Convention rights and so unlawful.

It is this passage (and passages to the same effect in the other judgments – paras 35, 125 and 130) which Mr Webster relies on. However, with all due respect to the minority, there is nothing new or surprising about what Lord Bingham said. It is what the statute says and, (dare we say it), what most people thought it meant.

12. As a matter of English domestic law relevant evidence unlawfully obtained is admissible (R v Sang [1980] AC 402). The court in its discretion may however refuse to allow such evidence to be given under the provisions of section 78 (1) of PACE if, having regard to all the circumstances "including the circumstances in which the evidence was obtained", it would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
13. The cases show that exactly the same principles apply where the evidence has been obtained in breach of article 8. We will deal with them chronologically.
14. In Schenk v Switzerland [1998] 13 EHRR 242 the applicant complained about the use of an unlawfully recorded telephone conversation in criminal proceedings against him. The ECtHR said that this did not constitute a breach of article 6. Such evidence might be admissible. Its admissibility was a matter for regulation under national law. The Strasbourg court had only to ascertain whether the applicant's trial as a whole was fair. At para. 53 the court said that it was unnecessary to consider the complaint under article 8

as the issue is subsumed under the question (already dealt with from the point of view of article 6) of the use made of the cassette during the judicial investigation and the trial.

15. In R v Khan (Sultan) [1997] AC 558 an electronic listening device had been used to record a conversation between alleged drug importers. The House decided that evidence of the conversation was admissible even if it had been illegally obtained. After referring to Schenk Lord Nolan (with whom the other members of the House agreed) said (p. 582B-D):

But if the behaviour of the police in the particular case amounts to an apparent or probable breach of some relevant law or Convention, common sense dictates that this is a consideration which may be taken into account for what it is worth. Its significance however, will normally be determined not so much by its apparent unlawfulness or irregularity as upon its effect, taken as a whole, upon the fairness or unfairness of the proceedings. The fact that the behaviour in question constitutes a breach of the Convention or of a foreign law can plainly be of no greater significance per se than if it constituted a breach of English law. Upon the facts of the present case, in agreement with the Court of Appeal, I consider that the judge was fully entitled to hold that the circumstances in which the relevant evidence was obtained, even if they constitute a breach of article 8, were not such as to require the exclusion of the evidence.

16. On appeal to the ECtHR (Khan v United Kingdom 31 EHRR 1016) the court held that there had been a breach of article 8, but it followed what it had said in Schenk by looking at whether the proceedings as a whole were fair. As the applicant had had the opportunity to challenge both the authenticity and the use of the recording at his trial and on appeal and the court could have excluded the evidence under section 78 of PACE there had been no breach of article 6.
17. In R v P [2002] 1 AC 146 the House was concerned with evidence obtained from telephone intercepts of calls made between those suspected of drug offences in this country and in the European Union. The trial judge's decision to admit the evidence obtained in this way was upheld. After referring to the decisions in Schenk and Khan Lord Hobhouse (with whom the other members of the House agreed) said (p. 161 H- 162C):

The decision [in Khan] was arrived at a time before the 1998 Act had been enacted let alone introduced into Parliament. Therefore the Convention did not then have the place it now has in English law. The importance of [Schenk] is that it confirms that the direct operation of articles 8 and 6 does not invalidate their Lordships conclusion or alter the vital role of section 78 as the means by which questions of the use of evidence obtained in breach of article 8 are to be resolved at a criminal trial. The criterion to be applied is the criterion of fairness in article 6 which is likewise the criterion to be applied by the judge under section 78. Similarly the ECtHR decision that any remedy for a breach of article 8 lies outside the scope of criminal trial … shows that their Lordships were right to say that a breach of article 8 did not require the exclusion of evidence. Such an exclusion, if any, would have to come about because of the application of article 6 and section 78.

18. In R v Loveridge & ors. [2001] 2 Cr. App. R 591 this court was concerned with a video of the defendants made covertly at a magistrates court in breach of article 8. At para. 33 Lord Woolf said that so far as the outcome of the appeal was concerned the breach of article 8 was only relevant if it interfered with the right of the applicants to a fair trial.
19. The last case we refer to is R v Mason & ors. [2002] 2 Cr. App. R. 628. One of the issues in that case was the admissibility of evidence obtained by covert surveillance of the defendants in the custody suite of a police station which had been conducted in breach of article 8. Lord Woolf giving the judgment of this court said (para. 74) that non-compliance with article 8 did not mean that the evidence could not be relied on. In para. 75 he said:

It is the responsibility of the Government to provide remedies against … violation of article 8. However, the remedy does not have to be the exclusion of the evidence. The remedy can be the finding which we have now made, that there has been a breach of article 8 or it can be an award of compensation. The ECtHR recognises that to insist on the exclusion of evidence could in itself result in a greater injustice to the public than the infringement of article 8 creates for the appellants. The infringement is, however, a matter which the trial judge is required to take into account when exercising his decision under section 78 of PACE.

20. Mr Webster readily accepted that none of these cases gave any support to his submissions. His answer was simply that the courts appeared to have overlooked section 6 of the Act. Each of the cases had focused on article 6 and the court's duty to ensure a fair trial. No case had dealt specifically with the court's obligation not to act in breach of article 8 which section 6 of the Act imposed. The decisions of the ECtHR shed no light on this point because it was concerned only with the articles of the Convention and not with section 6.
21. We do not believe that the courts which have had to consider whether evidence obtained in breach of article 8 is admissible or those who have appeared before them are likely to have overlooked the possible effect of section 6; it would be remarkable if the many judges who have been involved in these decisions and who are each particularly conscious of the impact of the Human Rights Act generally had overlooked what is said to be such an obvious point. This, of itself, suggests that the novel submission made in this case is not a good one although that, of course, cannot be determinative. We think it is not a good submission for the simple reason that any breach of article 8 is subsumed by the article 6 duty to ensure a fair trial. This was the way the ECtHR put the matter in Schenk and is the way the English courts have looked at the matter ever since in all the cases to which we have referred. Through its obligation to ensure that there is a fair trial in accordance with article 6 the court is acting compatibly with the Convention.
22. Mr Webster submits that it is not enough to view a breach of article 8 "through the prism of article 6". The article 8 right is not merely a facet of a fair trial. Material obtained in breach of the right should not have come into existence outside the private domain in the first place. The right should not be lost by being unlawfully interfered with and so any subsequent use of the material is a breach of the right. By permitting the prosecution to make use of the material the court is acting in a way which is inconsistent with the enjoyment of the right.
23. Persuasively though they were put we do not accept these submissions. We come back to what we said in para. 9 that the breach of article 8 is the interference with or intrusion upon private life which is involved in covert surveillance. The court has played no part in this. Its function is to determine whether the evidence obtained in this way is admissible. In performing this task it must act fairly and article 6 and section 78 of PACE set the standards by which it must proceed. If it decides to admit the evidence it is not itself acting in breach of article 8. The intrusion or interference has already occurred, the evidence obtained is admissible under English law and so the court's obligation is confined to deciding whether or not, having regard to the way in which the evidence was obtained, it would be fair to admit it.
24. The far reaching consequences of Mr Webster's submissions also support the view that they cannot be correct. What he is saying is that the court is bound to exclude any evidence obtained in breach of article 8 because otherwise it would be acting unlawfully. This is a startling proposition and one which we are pleased and relieved to be able to reject.
25. For these reasons Button's appeal against conviction must be dismissed. Tannahill's application for leave to appeal against conviction was solely dependent upon the success of Button's appeal so it also must be dismissed.