Khan v. The United Kingdom

The applicant was a United Kingdom national and on his arrival at Manchester from Pakistan with N, N was found possessing heroin with the value of 100,000 pounds sterling. The applicant was released as he hadn’t possessed heroin. The police installed a listening device on B’s (a friend of the applicant’s) house without his knowledge, on the belief that B’s drug dealing wouldn’t be proved otherwise. From the listening device’s record, the applicant was heard saying that he took part in the importation of the heroin by N. The applicant was then charged with N under the Customs and Excise Management Act of 1979 and the Misuse of Drugs Act of 1991. On trial before the Crown, the applicant pleaded not guilty, admitted that he was present at B’s house and one of the voices from the record was his. The Crown held that the attachment of the listening device was a civil trespass and resulted in a damage to property. The trial judge then ordered a hearing on the admissibility of the evidence from the device and later ruled that it was admissible.The applicant pleaded guilty to the amended charge of knowingly concerned in the fraudulent evasion of the prohibition on the importation of heroin, and then sentenced to 3 years of imprisonment.

The applicant appealed from the decision on the ground that the evidence should have been rendered inadmissible. The court of appeal dismissed the appeal on the ground that the evidence was admissible. It also stressed that an evidence obtained from a recording of a device that was installed at a private house by the police and without the owner’s knowledge was admissible in a criminal case when done for the public’s benefit.

The applicant’s appeal with the House of Lords was dismissed. The House of Lords held that an evidence obtained from surveillance devices (such as the one taken from the device in the present case) was admissible even when it was improperly or unlawfully obtained by intruding in a person’s privacy. It further held that the judge had the discretion to admit such evidence or exclude it with due consideration be given to the question whether its admission would result in an unfair trial.

The applicant lodged his claim with the European Court of Human Rights (the ECHR) that his right to privacy protected under Article 8 of the European Convention on Human Rights (the Convention) had been violated. He asserted that the recording obtained in his case didn’t fall under the exceptions of Article 8(2) as it wasn’t obtained in accordance with the law. He further alleged the use of an inadmissible evidence was incompatible with the fair trial requirements of Article 6 of the Covenant. He also alleged that the courts failed to consider the fact that the evidence had been obtained in violation of a provision of the Covenant.

The government argued that although the surveillance against the applicant constituted an interference against his privacy, it was justified as it was lawful, proportionate and necessary in prevention of crime. The government also stated that arbitrary interference could be complained with the Police Complaints Authority which constituted a sufficient procedural safeguard for the applicant.

The ECHR noted that there was no domestic law governing the use of hidden listening devices by the police at the time the events of the case occurred, and held that the interference couldn't be considered as done in accordance with the law as required under Article 8(2) of the Convention. The ECHR thus held that there had thus been a violation of Article 8(2) of the Convention.

The ECHR held that Article 6 of the Convention didn't govern the admissibility of evidences as this matter was governed under national laws. It noted that domestic courts had assessed the admissibility of the evidence and could have excluded the recording on evidence if they believed it had affected the fairness of the case. The ECHR thus decided that the use of the recording by domestic courts in the decision of the applicant's case was not a violation of Article 6(1) of the Convention.

The ECHR noted that the extent to which the Police Complaint Authority supervised the conduct of Investigating police officers wasn't clear. It also noted that the existing investigation system wasn't in compliance with the level of independence required to protect the applicant against the potential abuse of power and thus effective domestic remedy hadn't been provided to the applicant in violation of Article 13 of the Convention.

"In the context of covert surveillance by public authorities, ...., domestic law must provide protection against arbitrary interference with an individual's right under Article 8. Moreover, the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to such covert measures." [Para. 26]