ECHR and the exclusion of evidence: trial remedies for..., Crim. L.R. 2003, Feb,...

For educational use only

ECHR and the exclusion of evidence: trial remedies for Article 8

breaches?
David Ormerod

Journal Article

Criminal Law Review

Crim. L.R. 2003, Feb, 61-80

Subject
Human rights

Other related subjects

Criminal evidence; Police

Keywords
Criminal evidence; Police powers and duties; Right to effective remedy; Right to fair trial; Right to respect for private and family life;
Surveillance

Cases cited
R. v Mason (Adrian Craig) [2002] EWCA Crim 385; [2002] 2 Cr. App. R. 38; [2002] 2 WLUK 322 (CA (Crim Div))
R. v Khan (Sultan) [1997] A.C. 558; [1996] 7 WLUK 26 (HL)
R. v P (Telephone Intercepts: Admissibility of Evidence) [2002] 1 A.C. 146; [2000] 6 WLUK 110 (HL)
R. v Sargent (Ian Michael) [2001] UKHL 54; [2003] 1 A.C. 347; [2001] 10 WLUK 693 (HL)
Khan v United Kingdom (35394/97) (2001) 31 E.H.R.R. 45; [2000] 5 WLUK 326 (ECHR)
PG v United Kingdom (44787/98) (2008) 46 E.H.R.R. 51; [2001] 9 WLUK 349 (ECHR)
R. v Mullen (Thomas) [2000] Crim. L.R. 873; [2000] 5 WLUK 127 (CA (Crim Div))

Legislation cited
Regulation of Investigatory Powers Act 2000 (c.23)
Human Rights Act 1998 (c.42) s.6
Police Act 1997 (c.50)
Bill of Rights Act 1990 (New Zealand)
Police and Criminal Evidence Act 1984 (c.60) s.78
European Convention on Human Rights 1950 Art.6, Art.8, Art.13

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*Crim. L.R. 61 Summary: An examination of approaches to exclusion of evidence obtained in breach of Art.8 of the ECHR.

I. Introduction
”Murder trial five freed as judge condemns police bugging abuse,” exclaimed the front page of The Times 1 reporting the stay
of proceedings in Sutherland against five men accused of an horrific murder. Immediate responses ranged from those
expressing outrage that “guilty” people were allowed to go free, to those condemning the allegedly widespread practice (at
least in that police force) of recording legally-privileged conversations. Similar controversy was provoked by Mason 2 where
incriminating conversations covertly recorded in police cells were admitted, resulting in convictions of four defendants for a
series of armed robberies. Legal commentators were surprised that evidence in that case obtained in breach of Art.8 of the
ECHR and in “flagrant”3 breach of PACE should be admitted.

These and similar recent cases decided here 4 and in Strasbourg5 highlight the many complex issues underpinning debates
about the appropriate limits of covert policing and judicial responses to improperly obtained evidence. On the one hand there
is a pressing need for the police to employ covert and intrusive tactics to tackle *Crim. L.R. 62 crime6; on the other, it is
recognised that secrecy in policing produces a grave risk of miscarriages of justice in individual cases and a pernicious threat
for civil liberties generally.7 The dangers include not just the infringement of fair trial rights, but other fundamental rights
including especially the right to respect for privacy.

This article examines the extent to which breaches of Art.8 of the ECHR occurring in a criminal investigation should render
inadmissible the evidence obtained as a result. This is an important dimension of the general debate about the appropriate
limits of covert policing, because without adequate regulation of the uses to which evidence obtained might be put, any
regulation of the policing technique itself might be seen as at best deficient, and at worst useless. 8

A sketch of the scope of the problem

The growth of intelligence-led policing where information has become a major weapon in targeting offenders and managing
criminal risks9 has led to an escalation of pressure for effective regulation of surveillance powers. The frequency with which
the police now use covert techniques in response to a broad range of crimes is common knowledge; bugging houses is no
longer the preserve of James Bond and the security services. Many would commend the willingness to exploit such
techniques in routine policing given the State’s obligation to investigate crime and protect its citizens. There are numerous
consequences flowing from the police use of covert techniques in preference to orthodox and heavily regulated methods of
investigation and interviewing. This preference may be because the officers know the limits to which the courts will stretch in
admitting evidence under PACE, and they anticipate an even more receptive response when the evidence is derived from
covert tactics governed by regulations for which the courts have yet to establish clear precedents. In particular, the police can
avoid the strictures of the PACE interviewing regime, and yet secure voluntary reliable recordings of incriminating
conversations. The police may also feel that covert tactics will produce quicker results, especially in serious crimes where
defence advisers would be at their most alert in orthodox investigations. In addition, the police may perceive a greater
pressure to outwit the suspect in the espionage stakes, 10 particularly as perpetrators of serious offences are now likely to be
“surveillance conscious”.11 Such pressures pose unwelcome risks that the police will be “led into temptation”--to act illegally
in their use of covert techniques--which is especially undesirable because the *Crim. L.R. 63 potential consequences of
wrongful convictions for serious offences call for the propriety in investigation to be at its strictest.
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Turning to the admissibility of the evidence obtained, at a superficial level most of the recent decisions are arguably
applications of established precedent, presenting no legal controversy, as distinct from public concern. However, this
superficiality ignores the underlying complexity of exclusionary discretion and its familiar problems which have been
rendered more acute by the Human Rights Act 1998.

II. Current Approaches to Remedies?

To facilitate a more meaningful scrutiny of the appropriate remedy for breaches of Art.8, it is worth outlining some
preliminary issues: the Convention rights at stake, Convention requirements for remedies, and the current approaches to these
issues in English and ECHR case law.

Article 8
Article 8 provides a right to respect for private and family life, subject to the qualification in Art.8(2) that interference may
occur where it is “in accordance with the law and is necessary in a democratic society in the interests of”, inter alia, the
prevention of disorder or crime. The interrelationship between Arts.8(1) and (2) is not one of balancing the legitimate
interferences against the right 12; the Art.8(2) qualifications clearly represent exceptions to Art.8(1). This substantive hierarchy
is reflected in the process of evaluating the Art.8 protection in any given case. The court determines whether surveillance
interfered with privacy rights as broadly interpreted in Art.8(1)13 before assessing the Art.8(2) elements in turn.

Article 13
Article 13 provides that “everyone whose rights and freedoms as set forth in this Convention are violated shall have an
effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an
official capacity.” In the face of considerable opposition, this provision was not incorporated in the Human Rights Act. 14 The
Government regarded the Act as providing sufficient and adequate remedies to protect the Convention rights. 15 In Convention
terms, Art.13 requires an “effective remedy” whenever there is a breach of Art.8. 16 Logically, the effectiveness of the available
remedy must lie in its ability to secure the protection offered by the Article--in this context a respect for privacy. The fact that
the Human Rights Act does not incorporate Art.13 does not negate domestic obligations to provide an effective remedy
because the Convention must always be read as a whole, 17 and s.8 of the Act provides a right to just and *Crim. L.R. 64
appropriate remedy. It may still be open to argument that the Human Rights Act 1998 is incompatible with Art.13 unless the
courts apply s.6 of the Human Rights Act 1998 in such a way as to secure effective remedies.

Current English approaches to remedies for breach of Art.8

At present, those whose Art.8 rights are infringed by police surveillance may pursue a civil claim with a view to financial
compensation.18 This is implicitly endorsed by the House of Lords in: Khan, P and Sargent 19; and recognised by the ECtHR
in Khan v UK and PG v UK. There is, however, no guarantee of exclusion at trial of the evidence improperly obtained.

The traditional English approach to the admissibility of improperly obtained nonconfession evidence 20 needs no more
introduction than the oft-quoted dictum of Crompton J.: “it matters not how you get it, if you steal it even, it would be
admissible”.21 The admissibility of such evidence now turns on the discretion in s.78 of PACE, which expressly provides for
consideration of the manner in which the evidence was obtained. 22 It is trite law to recount that s.78 provides a broad and
unstructured discretion23 with the (non-exhaustive and non-obligatory) list of factors judges are likely to consider, including: a
review of the legality of the police actions; the seriousness of the offence; the bad faith of the investigators 24; the type of
evidence and its potential reliability; the existence of other evidence; the opportunity to challenge the evidence at trial; the
type of impropriety involved; and the type of right or protection infringed. This notoriously vague discretion and its
application in given cases has met with academic bewilderment, and on occasion some fierce criticism. 25 For present purposes
it is important to recall that the ultimate s.78 question is not whether there is a breach of a specific domestic provision or even

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a Convention right, but whether the breach will affect the fairness of the proceedings.

What trial remedy does the European Court require for breaches of Art.8?
The court has held, repeatedly and in forthright terms, but for some “unconvincingly”, 26 that the admission of evidence
obtained in breach of Art.8 will not *Crim. L.R. 65 necessarily affect the fairness of the trial. 27 For example, in Khan v UK
and PG v UK evidence covertly obtained28 led to unanimous findings of a breach of Art.8. Nevertheless, the European Court
held that:

”it is not the role of the Court to determine as a matter of principle whether particular types of evidence--for example,
unlawfully obtained evidence--may be admissible or, indeed, whether the applicant was guilty or not. The question which
must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.
This involves an examination of the “unlawfulness’ in question and, where violation of another [i.e. not Art.6] right is
concerned, the nature of the violation found” (para.34).

At one level, it is impossible to regard Strasbourg rulings otherwise than as pronouncements of the very minimum protection
to be afforded.29 In the context of Art.8, the ECtHR refuses to assess the adequacy of the particular operational policing
decisions in any given case, or of the domestic courts’ reaction on the facts. The margin of appreciation afforded to States in
all aspects of the Convention is well established, and reflects the fact that the ECtHR sits as an international court and not as
a “fourth Court of Appeal”. Despite this generality, there are at least two bases for arguing that the court’s refusal to require
exclusion of evidence for Art.8 breaches is more than merely a manifestation of the margin of appreciation. First, the court
employs explicit language denying the need to exclude evidence, in the face of powerful dissents, and in cases involving
serious breaches of Art.8. Secondly, in other circumstances the ECtHR has taken the bold step of pronouncing that exclusion
of evidence in the domestic court should have occurred.30

Criticisms of the current approaches

Although there is no conflict between the domestic and Strasbourg approaches, neither is seen as offering a coherent body of
developed jurisprudence.

The ECtHR position has been criticised for adopting a laissez faire attitude to this problem,31 with critics relying on the strong
dissenting judgments. In Khan, Judge Loucaides stated that:

””fairness’ when examined in the context of the ECHR implies observance of the rule of law and for that matter it
presupposes respect of the human rights set out in the Convention. I do not think one can speak of a fair trial if it is conducted
in breach of the law.”

This was emphatically endorsed by Judge Tulkens dissenting in PG v UK.

*Crim. L.R. 66 The majority in Khan and PG based their decisions on the separation between Art.8 and Art.6, emphasising
that a breach of a substantive right (Art.8) gives rise to a substantive remedy rather than a procedural one. The minority on
the other hand regarded a breach of Art.8 as sufficient in itself to vindicate the exclusion of evidence. 32 Read literally, the
dissenting opinions arguably overstate the position. Many would reject the idea that every State breach of any ECHR
provision would deprive the accused of a fair trial; technical breaches especially of qualified rights might not impact on
fairness. The minority do not explore the type of breach. The ECtHR readily distinguishes between the levels of privacy
afforded to different activities and as to the degrees of permissible infringement, and this might suggest that if the substance
of the right is not absolute, nor should there be an absolute rule as to remedies. This argument can be readily countered by the
fact that it confuses the question of whether a breach arises with that of the appropriateness of remedy. It remains arguable
therefore that once the scope of the right has been declared, an infringement found, and no justification is accepted, an
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effective remedy for that breach may need to be cast in absolute terms.

The minority judges in these cases assert the claim for exclusion on a clear rights basis, viewing the Convention holistically.
The English courts, however, are notorious for failing to offer any coherent justification for the discretionary exclusionary
approach,33 nor for their retention of that position in the face of Human Rights Act challenges. The English courts
acknowledge the “public interest” that it would be undesirable for “guilty” people to escape conviction in such
circumstances.34 Predictably, they rely on the majority views in Strasbourg, as for example in P 35 where Lord Hobhouse
interpreted Khan v UK as providing that:

”any remedy for a breach of Article 8 lies outside the scope of the criminal trial and that Article 13 does not require a remedy
for a breach of Article 8 to be given within that trial … their Lordships [in Khan] were right to say that a breach of Article 8
did not require the exclusion of evidence.”36

His lordship clearly echoes the majority view that the substantive right involved requires a substantive remedy and not a
procedural one.

*Crim. L.R. 67 Despite these categorical (and perhaps overly-broad 37) statements from the House of Lords, and the absence
of any pressure from Strasbourg, calls for automatic exclusion of evidence obtained in breach of ECHR rights persist, being
fuelled by the absence in domestic law of coherent guidance for trial judges faced with blatant breaches of Art.8. The courts
routinely admit covert surveillance evidence owing to its reliability, despite acknowledged breaches of Art.8. 38 For some, this
spectacle in the era immediately after the Human Rights Act demonstrates a disappointing failure by the English courts in
their guardianship of human rights.

III: In Search of the Most Effective Remedy?

Although this discussion focuses on the merits of various means by which evidence obtained in breach of Art.8 might be
excluded, two related matters are worth outlining here: the means by which “effectiveness” of these remedies might be
assessed, and the remedies other than exclusion of evidence that might be offered as “just and appropriate” ones.

Measures of Effectiveness
Identifying the optimal measure of effectiveness for domestic remedies for breaches of Convention rights lies beyond the
scope of this paper. Since there is no clearly pronounced rationale for the provision of a remedy for breaches of Art.8 other
than because of its status as a fundamental right, this would distract the present inquiry into broader issues of identifying the
rationale for a remedy (e.g. infringing autonomy) and examining the merits of a range of remedies purporting to promote
each stated rationale. What is more important for present purposes is that the effectiveness of the different remedial
approaches scrutinised below is measured consistently against the same range of indicators.

Remedial effectiveness could be assessed by focusing on the individual victim. This could involve asking whether the remedy
places the victim back in the position before the Convention breach occurred. 39 An alternative, and intuitively less appealing
version of this, would be for effectiveness to depend on the subjective satisfaction of the individual victim. A very different
measure of effectiveness could be cast in terms of the remedy’s likely impact on preventing future abuses, with the
underlying deterrent rationale reflecting the so-called disciplinary principle of the exclusionary rule. A further alternative with
a more attractive rationale would be to focus on the success of the remedy in optimising the moral integrity of the judicial
process. This doctrine has gained considerable support in the criminal trial context. 40 It might also be possible to postulate a
broader rights-based measure of effectiveness focusing on whether the remedy secures better protection for the rights of
citizens, both individually and collectively. An attraction with such measures is *Crim. L.R. 68 that they are forward-looking,
aiming to secure prospective respect, rather than focusing on satisfaction in the given case.

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Remedies other than exclusion

Damages. The most obvious remedy in civil law would be monetary compensation. There may be practical difficulties in
ensuring that the extended category of “victims” under Art.8 also qualify as claimants in tort. 41 Moreover, the value of awards
might be difficult to quantify, rendering it impossible to return the claimant to his position before the breach occurred. 42 In
terms of effectiveness, the individual victim is unlikely to be satisfied by financial reward if he languishes in prison. It is
submitted that it is also unlikely that awards of substantial sums against police authorities would deter individual officers
from breaches of Art.8. Further, there is also little scope for arguing that the award of damages maintains the integrity of the
criminal process. Even the ECtHR has on occasion shied away from making awards because the “victims” were criminals. 43
Similarly, the promotion of respect for Art.8 for all members of society does not seem to be greatly advanced by damages
awards. Damages awards might also be regarded as ineffective where the rights breached were those of someone other than
the convicted person.

Public law remedies. A more deep-seated problem with compensation is that it is a purely private law remedy. Arguably, for a
remedy to be effective it should be an explicitly “public” law remedy. The basis for this argument is that the rights in question
need to be respected as higher-order rights--they are constitutional rights. 44 Thus, it can be argued that to allow the police
retrospectively to “buy off” such rights with compensation is undesirable, 45 even if they have obtained reliable evidence
leading to a conviction.46 The desirability of providing “public” law remedies gains support from the case law of other
jurisdictions, including the Canadian Supreme Court’s approach to breaches of the Charter 47 and decisions under the New
Zealand Bill of Rights.48 However, compensation might have a sufficiently public dimension if it is accompanied by a
“declaration” of the State’s breach of the fundamental right. A combined remedy of this nature is one that could arguably be
seen as effective on many fronts, and there is nothing wrong in principle *Crim. L.R. 69 with cumulative remedies.49 This
approach might deter future breaches by explicitly exposing the police wrongdoing and triggering internal disciplinary
mechanisms. It might thereby secure greater future protection for members of society generally. 50 It would also arguably
contain the degree of censure necessary to maintain the moral integrity of the criminal process. What it would be unlikely to
do is satisfy the individual victim who still languishes in prison with his damages--but this time embellished with a
declaration.

A further category of remedy with at least a public “flavour” that might be regarded as similarly effective on these bases is
the possibility of ordering disciplinary proceedings to be brought against the police officer(s) involved. 51 As a related quasi-
public remedy, challenges could be brought before the Surveillance Tribunal relating to action under RIPA and the Police Act
1997.52

For present purposes, it is unnecessary to disentangle the respective merits of public and private remedies in the context of
Art.8--not least because it could be frustratingly inconclusive. 53 Merely labelling one of a range of remedies as “public” does
not produce a perfect remedy for Art.8 breaches.

Remedies in the criminal trial other than exclusion. Before turning to the merits of exclusionary remedies, a brief mention
should also be made of sentencing discounts as a possible remedy. Discounts have been applied in cases in which police
behaviour, although it did not lead to the exclusion of evidence, was such that the court felt that the punishment should be
less than would ordinarily be appropriate.54 This scheme raises many serious issues lying beyond the scope of this paper. Will
the discount depend on the seriousness of the breach? What if the sentence is one fixed by law? etc. In terms of satisfying the
individual victim, this remedy might be more attractive than compensation, but its impact on deterring future abuse by the
police is uncertain. More broadly, discounts in sentencing are at best unproven to engender a culture of future respect for such
rights,55 and might be seen to be undermining the moral integrity of the process with the courts manipulating the system to
strike pragmatic compromises.

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Trial remedies involving exclusion of evidence

In order to assess comprehensively the merits of exclusion as a remedy, it is worth examining a range of possible
exclusionary approaches. Numerous models could be proposed from points along the spectrum ranging from automatic
exclusion to mandatory inclusion, and this section of the article examines four from across that range, each displaying
particular merits.

*Crim. L.R. 70 1. Automatic exclusion

2. Automatic exclusion where there is a “serious” breach of Art.8

3. Automatic exclusion where Art.8 breaches fall into categories which affect fair trial guarantees

4. Exclusion based on judicial discretion.

1. Automatic exclusion for all Art.8 breaches

English courts take account of Art.8 infringements when deciding whether to exclude evidence under section 78 or to stay
proceedings for an abuse of process.56 Where English law falls short, some argue, is in not requiring exclusion in the face of a
breach.57 Ironically, although Art.8 is regarded as protecting a “fundamental human right” (although admittedly one that is
heavily qualified), a breach of its terms is at present no more likely to lead to exclusion of evidence than is a “significant and
substantial” breach of a mere Code of Practice provision. 58 Should English law adopt an exclusionary rule for Convention
breaches?

The pros. The argument for automatic exclusion can be put succinctly and powerfully, and has an immediate appeal: if the
designation of the Convention rights (including Art.8) as “fundamental” has any substance, it should provide effective
protection for those who are vulnerable to having such rights breached. 59 This approach also relies on the idea that the
Convention should be read as a whole. A further dimension to this powerful claim is that the courts cannot condone police
illegality in the shape of breaches of Convention rights without also jeopardising the integrity of the criminal process. The
courts themselves, as public authorities could be seen to acting contrary to the Human Rights Act in condoning Convention
breaches.

An additional argument for automatic exclusion would be to suggest that English law should afford special status to breaches
of Art.8 because of the lack of prior independent judicial supervision of much privacy-intruding police activity. In particular,
there is no requirement that judicial authority is sought for covert surveillance techniques to be deployed. However this
argument is a relatively easilyrebutted red-herring: not all Art.8 breaches will arise as a result of a type of activity that ought
to involve prior independent supervision.

The cons. It can be argued that the main difficulty with the claim for automatic exclusion is that it conflates substantive
privacy rights and procedural trial rights. Accepting for the argument that rights are paramount, 60 that does not support the
conclusion that a breach of a right “A” should lead to the remedy that would flow from a breach of right “B”, unless the
infringement of right “A” has some impact on *Crim. L.R. 71 right “B” or the remedy is effective for right “A”. Breaches of
the substantive Art.8 right should give rise to an effective remedy (which arguably they do in the form of damages) and not
necessarily to a procedural right deriving from Art.6 fair trial guarantees, unless that is shown to be effective.

The language of the minority in Khan and PG is explicitly phrased in terms of the breach of Art.8 denying a fair trial, but
their relationship may need to be more precisely articulated. Arguing that all breaches of Art.8 deny a fair trial appears to be
over-simplistic and over-inclusive. For example, a minor breach of a search power which produces nothing of evidential
significance does not have any practical impact on the fairness of proceedings. In addition it may be necessary to explain the
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concept of “unfairness” with greater precision in this argument. The concept of a fair trial extends beyond those guarantees
specifically included in Art.6. It is unclear whether the claim is then that an Art.8 breach automatically affects Art.6, or that it
affects a broader collection of trial rights existing independently of the Convention. If it is the latter, the argument for
automatic exclusion is weakened considerably because the argument loses any direct ECHR anchorage. A more selective
argument could be that breaches of Art.8 are qualitatively different from breaches of other non-Convention rights, but this
argument might undermine exclusionists claims that Convention rights should, as a consequence of their being “rights”
produce remedies without further refinement.

The argument for automatic exclusion might also be impeded by the fact that the “right” infringed is one of privacy. English
law’s historical refusal to recognise strong privacy rights might continue to exert an influence on judicial attitudes, 61 with the
heavily qualified Art.8 not being regarded as a “strong” right. Regulation of police powers in England has been rooted in
public law, with the emphasis on negative liberties not on positive rights of privacy, 62 and this has promoted arguments for
remedies based on judicial obligations to maintain the moral integrity of the criminal process. 63

Claims based on process-integrity may well prove stronger than those simply asserting the privacy right. Claims to maintain
integrity often invoke the remedy of a stay for abuse of process, and it is worth noting that an automatic stay for abuse of
process might seem the paradigm remedy for exclusionists because it would terminate all proceedings in the wake of a
Convention breach. At present, no specific category of abuse of process for breach of Convention rights has been created. 64
Arguably, the courts are adopting a more proactive stance in this regard, as for example in Looseley 65 where, despite the
reliability of the evidence and its clear indication of the accused’s guilt, the House of Lords acknowledged the value of the
stay in maintaining the integrity of the process. 66 Nevertheless, it is submitted that there is no indication of a move towards
automatic stays for every Convention *Crim. L.R. 72 breach. Indeed, the tenor of the House of Lords’ opinions in Latif 67
accentuates the discretionary nature of abuse even more forcefully than in seminal pronouncements such as Ex p. Bennett. 68 It
is submitted that the stay for abuse is, even more so than exclusion, a procedural remedy. As with automatic exclusion, a trial
remedy in the shape of a stay for every breach would appear overbroad, potentially undermining judicial integrity, and as
with automatic exclusion, its effectiveness would need to be demonstrated.

In terms of effectiveness, an objection to the automatic exclusionary approach is that although clothed in the language of
protection of the suspect, it would really amount to sanctioning the courts’ use of disciplinary powers to penalise police
impropriety. In many cases this would frustrate otherwise bona fide operations which lead to Art.8 breaches because, for
example, of the lack of clarity in the legislation. 69 The rejoinder to this argument would be that although the courts repeatedly
deny the use of any such disciplinary approach 70 examples of it in operation are plentiful. 71 Disciplinary exclusion might seem
appropriate for ECHR breaches, but the immediate problem is that this involves an application of the familiar arguments used
to support a disciplinary function in excluding improperly obtained evidence. 72 There is little evidence to substantiate the
claim that excluding evidence has any practical deterrent effect on police practices. 73 More fundamentally, there are serious
doubts as to whether it is appropriate for the courts to adopt this role of policing the police. These are familiar arguments that
need not be revisited here. Even if deterrent/discipline were accepted as a legitimate and effective basis for exclusion, it
would be easy for the courts to create an exception based on the “good faith” of the officers. 74 The result of this might be to
diminish the effective protection of the rights in Art.8.

There are also more subtle but worrying dangers in the automatic exclusionary approach. If there is a rule, rather than a
discretion to exclude evidence, a court faced with a hard case might be tempted to evade that rule by denying any Art.8
breach on which that exclusionary rule can bite. This would diminish the scope of the protection of Art.8 for all. In addition,
there are potentially greater hidden costs than with other remedies. An exclusionary rule may have indeterminate effects on
the number of cases that are discontinued by the CPS and unquantifiable effects on the victims of crimes for which the
factually guilty are “let off”.

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*Crim. L.R. 73 2. Categorisation based on the severity of Art.8 breach

One general problem with the automatic approach stems from its refusal (or rather denial of the need) to differentiate between
the subtleties of the types of breach involved. It is therefore worth considering an alternative model which would require
automatic exclusion of evidence obtained only in cases involving a serious breach of Art.8.

Three problems are immediately apparent. First, such a model would not address the concerns expressed above regarding the
over-inclusiveness which stems from the conflation of substantive privacy and procedural trial rights. Secondly, and equally
problematic, how can the breaches be categorised as “serious”? Thirdly, since the Convention does not categorise breaches of
individual rights by their seriousness, the desirability of domestic courts introducing such a scheme is highly questionable.

Nevertheless, subject to an effective means of differentiating on the basis of seriousness, such an approach would allow the
courts to recognise more explicitly the fact that Art.8 operates to respect privacy in two ways. First, there are the differing
categories of activity that are protected by different levels of privacy. 75 Second, there are the different levels of permitted
infringement or intrusion into the different categories of private life protected. This brings us to the pragmatic question--could
the English courts differentiate adequately between these subtly different Art.8 breaches? To be of value the model must do
more than encourage courts to employ simple factual comparisons since that would be no guarantee of certainty,
predictability or consistency in the decision-making and the evaluation would be an undeniably subjective one.

How can the seriousness of Art.8 breaches be assessed? It might be possible to rely on the ECtHR case law to distinguish
between the various aspects of private life that deserve different levels of protection. 76 Distinguishing between the levels of
intrusion is not so easy. To incorporate some objectivity into the assessment of “seriousness” in this scheme, and to avoid
assessing the severity of the breach on factual bases, a distinction could be based on the qualifications of the privacy right
found in Art.8(2). This would distinguish breaches that are “not in accordance with law” (what might be called “illegal
breaches”), and those where the activity was in accordance with law but was not in this instance necessary and proportionate
(hereafter labelled “evaluative breaches”). This hierarchy has no strict place in the substantive Strasbourg jurisprudence.
However, it does echo the ECtHR’s sequential approach to processing each aspect of an Art.8 claim: consideration is first
given to whether the activity was in accordance with law, before any evaluation of the necessity and proportionality is made. 77

The pros. The ECtHR has interpreted the “in accordance with law” requirement as providing a benchmark for not merely the
existence, but also the quality of law *Crim. L.R. 74 involved.78 In Sunday Times v UK 79 it was recognised that domestic law
must be accessible and sufficiently precise to be foreseeable in its consequences, 80 and the interference must have a clear basis
in domestic law--whether statutory or common law.81

Breaches of Art.8 stemming from action that was not “in accordance with law” could be regarded as necessarily involving a
failure to respect the integrity of the criminal process, and one that should always lead to automatic exclusion or a stay for
abuse. This supremacy of illegal breaches would resonate with public law limitations of police action generally. There is,
moreover, an instinctive logic to the claim that illegal breaches should be regarded as more serious than those evaluative
breaches in which the assessment of necessity and proportionality is subsequently found to be flawed. At the risk of reading
too much into the short but powerful dissenting judgements, this could also be said to reflect the minority approach in Khan
and PG. In particular, Loucaides J. explained that fairness

”implies observance of the rule of law and for that matter it presupposes respect of the human rights set out in the
Convention. I do not think one can speak of a “fair” trial if it is conducted in breach of the law.” 82

The cons. There are, however, strong objections to adopting this scheme in this context. 83 It is over-simplistic to argue that all
“illegal’ breaches are more serious because they involve purely legal failings. Often the breach of Art.8 will involve the
police knowingly failing to comply with the established law, (which would connote bad faith), but not always: many breaches
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could be a consequence of Parliamentary failings to enact statutes guaranteeing adequate protection. Moreover, the breach of
Art.8 by the police may just as commonly relate to the necessity and proportionality of the action with or without such mala
fides. 84 The individual would be unlikely to be satisfied with exclusion dependent on such technical distinction, nor is it
likely that future observance of respect for the right be secured thereby.

An equally telling objection to this form of re-categorisation is that it focuses on the breach of Art.8 per se, rather than on the
impact of that breach on the fair trial. As such, it misses the significance of the relationship between substantive privacy
rights and procedural trial rights discussed above. Finally, at present, the Convention draws no such distinction between the
manner in which fundamental rights are breached, and to adopt such a distinction domestically could be seen as undermining
the overall protection afforded. Indeed, concern has already been expressed that Convention rights are being inappropriately
differentiated with a hierarchy developing.85

*Crim. L.R. 75 3. Categorisation based explicitly on the relationship between Articles 8 and 6
The discussion so far has highlighted the undesirability of adopting wholesale automatic exclusion, and the unfeasibility of
categorising breaches of Art.8 in terms of relative seriousness. Building on this understanding, an alternative approach would
be to examine more closely which breaches of Art.8 do affect trial fairness. To aid exposition, the interrelationship can be
broken down into four simple categories:

(a) Art.8 breaches intrinsically involving breaches of fair trial guarantees under Art.6 (e.g. unauthorised surveillance where a
lawyer client conversation is recorded86);

(b) Invasions of privacy which do not breach Art.8, but which involve a fair trial guarantee under Art.6 (e.g. authorised
surveillance which records lawyer-client conversations);

(c) Art.8 breaches raising no fair trial issues directly (e.g. an unauthorised search and seizure revealing material but with all
other procedures complied with);

(d) Police action neither breaching Art.8 nor any fair trial guarantee (e.g. authorised covert operation which does not generate
any incriminating information).

Obviously those cases in category (a) are unlikely to be controversial since the Art.6 “fair trial” issues will be addressed
directly in the trial process,87 as would those in category (b). Those in category (d) will not present a problem, at least for the
criminal courts. The controversy is most acute in category (c). With this in mind, would the most effective remedy lie in a
structured exclusionary scheme based on explicit recognition of the separation but interrelationship of Articles 8 and 6?

The pros. Attempts such as this to untangle the precise relationship between Art.8 breaches and the fair trial emphasise that
what is most important is not the breach per se, but the way that breach impacts on the proceedings. It is worth reiterating the
explicit recognition of this relationship as set out by the majority in Khan v UK:

”it is not the role of the Court to determine, as a matter of principle, whether particular types of evidence--for example,
unlawfully obtained evidence--may be admissible or, indeed, whether the applicant was guilty or not. The question which
must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.”88

At present the English approach to evaluating the relationship between Art.8 breaches and the impact on fairness forms part
of the nebulous s.78 balancing exercise. This approach does offer the opportunity for the courts to take due account of all the
circumstances of the proceedings as a whole, (but in consequence it is heavily fact dependent.)

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*Crim. L.R. 76 Cons. Leaving aside particular difficulties with category “c” cases, there are obviously more fundamental
problems with these categorisations. Although examples of each can be identified, 89 not all of the categories could be drawn
with sufficient precision to accommodate the diverse circumstances in which Art.6 issues arise. Even if appropriate categories
could be identified, there is no guarantee that they could be applied easily and consistently in all cases. As with any model of
categorisation there is a risk that the system becomes a matter of form over substance. The subtleties and sophistication of the
individual cases are lost and iniquitous results are inevitable.

Even accepting that categories could be accurately defined, there remains the overriding question of what remedy should be
applied to each category. In the controversial category “c”, the battle between strict exclusionists and discretionary
exclusionists would persist. Moreover, it is questionable whether a rigid scheme of categorisation represents any
improvement on the present law which already distinguishes between Articles 8 and 6 in terms of available remedies, whilst
acknowledging their interrelationship. English law accepts, and indeed demands, that Art.8 cannot be completely ignored for
the purposes of the criminal proceedings--breaches are always relevant under s.78, even if there is no automatic right to
exclusion.90 In addition, introducing a further layer of technicality with the overlap between Articles 6 and 8 might serve only
to aggravate an already perplexing problem.

4. Discretionary exclusion/stay of proceedings?

The analysis of the preceding approaches suggests that no panacea is readily identifiable because the circumstances of Art.8
breaches vary infinitely, and the potential impact these have on fairness is equally unpredictable. Several issues have been
highlighted as being of importance:

• what impact the breach has on the fairness of proceedings

• how significant the breach is

• what impact the breach has on the trial rights of the accused

To what extent does the discretionary exclusion of evidence offer an effective remedy and accommodate these important
issues?

The pros. None of the three alternative models discussed above allow sufficient flexibility for the most important matters to
be weighed in every individual case. The present discretionary approach to exclusion does. Section 78 of PACE is such an all
encompassing discretion that it requires the court to have regard to Convention breaches whether they arise in the manner in
which the evidence was obtained or otherwise.

This combines with the discretionary remedy to stay proceedings. Initially the courts seemed reluctant to extend that
jurisdiction to matters within the s.78 *Crim. L.R. 77 discretion. In ex p. Bennett, 91 the House of Lords regarded the power as
being strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are
dealing, such as delay or unfair manipulation of court procedures. More recently, the courts have accepted a broader role for
the abuse motion, and in Latif and Shahzad, 92 Lord Steyn remarked on the overlap between s.78 principles and those
applicable to the abuse of process doctrine.

The interrelationship with s.78 is important. Recent cases demonstrate the potential to rely on the abuse of process doctrine to
stay proceedings where there is no direct challenge to the fairness of the trial. This could be an important remedy where the
emphasis is on the breach of Art.8 per se. In Mullen 93 for example, there was no suggestion that the actual conduct of the trial
itself was unfair, yet the Court of Appeal condemned the British authorities’ behaviour in securing M’s presence in the
jurisdiction as “so unworthy or shameful that it was an affront to the public conscience to allow the prosecution to succeed”.
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This adds an important dimension to the claim that the present approach combining s.78 and the abuse jurisdiction 94 is
effective in remedying Art.8 breaches. The flexibility of the s.78 discretion coupled with the expanding abuse doctrine allow
the courts to take due account of the breach of the right and its potential impact on the fairness of proceedings.

The cons. The well-documented problems with the failings of the courts to develop any systematic jurisprudence under s.78
or even to disclose an underlying rationale are as apposite here as elsewhere. Moreover, any argument for retention of the
orthodox discretionary approach is dependent on proof of the appropriate application of that discretion in individual cases. An
examination of the exercise and review95 of the use of the s.78 discretion in recent cases such as Mason reveals the
shortcomings of the discretionary approach. In that case, the court acknowledged a breach of Art.8, but admitted the evidence
because the police actions were within the “spirit of PACE”. Such applications of the discretion dilute the significance of
Convention protection, particularly as it was apparently traded off against commonplace factors likely to be present in most
covert surveillance cases: e.g. the seriousness of the offence, the reliability of the evidence, the lack of bad faith and the lack
of oppression. Such a narrow application of s.78 might also have a significant impact on defence strategies in Art.8 cases by
encouraging claims of bad faith and attacks on the authorisation procedure rather than the evidence. Most worrying of all, the
narrow approach to s.78 allows substantial scope for police abuse of PACE and its Codes. It sends the wrong message to the
police as well as to the suspect.

*Crim. L.R. 78 A Refined Discretionary Approach

Refinements of the current model can be offered in an attempt to diminish the risks of such unduly narrow application of the
discretion. One such refinement would be for breaches of Convention rights to be treated as giving rise to a prima facie case
for exclusion. The advantage of a presumption of exclusion for all breaches of Art.8 is that the Convention rights would be
afforded special status, but the court would retain its discretion to admit the evidence at the trial with flexibility to take
appropriate account of the type of infringement: the trivial or technical breach can thus be accommodated. 96

The presumption would compel the prosecution to justify admissibility in the face of a breach and would place a clear burden
on them to do so.97 It would also force the courts to offer more transparent bases for decisions. It may cause the courts to
develop a clearer stance on whether fairness relates to the accused or the public. 98 Although not satisfying those demanding
automatic exclusion, this could be viewed as more than a mere suggestion of compromise. It represents a realistic and
achievable development, with effect being possible by simple statutory amendment of s.78. Ironically, this would represent
something like Lord Scarman’s version of s.78 in the PACE Bill 99 whereby the prosecution had to establish that the public
interest was best served by the evidence being admitted.

How to achieve a refined discretion?

A presumptive approach to exclusion should be achievable without trying to fit Convention breaches into existing vague
common law categories in which the courts lean towards exclusion. Taylor and Fitzpatrick, in their discussion of Khan v UK,
examine the possibility of treating Convention breaches as equivalent to “significant and substantial breaches” of the Codes
of Practice under PACE. There are, it is submitted a number of reasons why the English courts should be encouraged to step a
little deeper and create a formal presumption of exclusion rather than to fit Art.8 breaches within PACE Code case law. First,
treating the Art.8 breach as equivalent to a PACE breach produces the desired consequences, but sends a weak signal and
lacks the symbolic significance of a special doctrine of presumptive exclusion. Second, the courts have not always been clear
about what constitutes a “significant and substantial breach”, and about what the consequences of such categorisation should
be. Third, the “significant and substantial” breach formula has grown rather haphazardly in the specific context of denial of
access to legal advice and the reliability of subsequent confessions. Thus, the formula has developed in the context of
potential fair trial breaches under Art.6. Finally, a further problem is *Crim. L.R. 79 determining whether all breaches of
Art.8 would qualify for this special categorisation.100

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Refinements from the Commonwealth?

Refinement of the discretionary approach in this manner derives support from Commonwealth jurisprudence, for example the
New Zealand101 courts’ interpretation of their Bill of Rights. 102 Against a background of discretionary exclusion of evidence, 103
the courts have developed a model based on “prima facie” exclusion of evidence obtained as a result of a Bill of Rights
infringement.104 The test has evolved into a number of stages. First, there should be proof of a breach of the right in question.
Second, it must be established that there is a “real and substantial” connection between the breach and the obtaining of the
evidence.105 Third, once the defendant has raised the evidential foundation for the breach, the prosecution bears the burden of
proving, on the balance of probabilities, that the prima facie rule of exclusion is displaced on the facts. 106 This involves a
“rights based”107 evaluation of the public interest in admitting the evidence. The factors that might be sufficient to displace the
presumption of exclusion include the waiver of the right by the accused, a reasonable/imminent apprehension of danger to a
person if the infringement does not occur, and possibly the triviality of the breach. 108 If such a model were adopted, such
matters would fall to be determined on a case by case basis as the domestic human rights jurisprudence develops.

Although the New Zealand approach was rejected by the Privy Council in considering an appeal from Trinidad and Tobago 109
Lord Steyn acknowledged the approach as one of formidable principle.110

Conclusion
”A robust and rights-centred approach to individual rights is not necessarily inconsistent with the flexibility of remedies
where rights are breached.”111

The s.78 discretion has been criticised for failing to focus on the breach of Art.8 (or indeed any protective rule) and for undue
reliance on the evidence produced. By incorporating a presumptive exclusion for ECHR breaches of Art.8, there would be a
significant move away from that stance. Art.8 protection would no longer be dismissed as “hollow” in the context of the
criminal trial. Admittedly, there is a *Crim. L.R. 80 danger that the courts would exercise the discretion in such a way that the
presumption becomes meaningless, but this is too pessimistic a view to inhibit the attempt to provide a more effective
remedy.

It is submitted that a doctrine of prima facie exclusion for breaches of Convention rights should be reconsidered. Although
desirable, it is not necessary that the initiative for such reform emanate from Parliament. There may even be some merit in
the appellate courts--as guardians of Human Rights--being first seen to be taking a proactive role in engendering respect for
rights within the criminal process. Not only would the adoption of this approach be easy to achieve, but it would have a
substantial symbolic significance. It would resonate with the ECtHR approach to Art.8 breaches in which the Court requires
the State to justify its interference as necessary and proportionate. 112 As the icing on the cake, the government might even be
supportive of such a measure. It would not run directly contrary to the policy of ardent crime control currently in vogue.
Parliament would not be introducing legislation guaranteeing “guilty” people would be acquitted and the government could
be seen to be “bringing rights home” … within limits.113

I am grateful for comments to colleagues in the Centre for Criminal Justice Studies and to Peter Carter Q.C. and Patrick
Twomey, and especially to Profs Andrew Ashworth and Ian Dennis for their usual advice on earlier drafts. Errors remaining
are mine.

Footnotes

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1 January 30, 2002, p.1. Sutherland et al. (2002) Jan 29, Nottingham Crown Court.

2 Mason [2002] EWCA Crim 385; [2002] Crim.L.R. 841. The court distinguished Sutherland as turning on
the officers’ bad faith.

3 See Richardson (2002) Criminal Law Week 02/11/03; Padfield [2002] 3 Archbold News 4.

4 See also recent examples such as Perry (2000) April 3, 99-2968-Y2; McLeod [2002] May 3, 04920/X4.

5 Taylor-Sabori v UK, The Times October 31, 2002; PG v UK [2002] Crim.L.R. 308; Allan v UK (2002) The
Times November 12. See also Ashworth, “Police Stations, Legal Advice and Privacy” [2002] 2 Archbold
News 5; Khan v UK (2000) 31 E.H.R.R. 1016; [2000] Crim.L.R. 684.

6 See generally on covert policing HMIC Policing with Intelligence (1999); Justice, Under Surveillance
(1998); Uglow, “Covert Surveillance and the ECHR” [1999] Crim.L.R. 287; Garland, “Surveillance and the
State” (1995) 20 Crim. Justice Matters 3.

7 Klass v Germany (1978) 2 E.H.R.R. 214, para.49.

8 Commentators criticised heavily the latest attempts to ensure English covert policing meets ECHR
standards. See especially on RIPA, Akdeniz, Taylor and Walker, “www.bigbrother.gov.uk” [2001]
Crim.L.R. 73, and Mirfield “RIPA: the Evidential Aspects” [2001] Crim.L.R. 91.

9 See especially Ericson and Haggerty, Policing the Risk Society (1997).

10 One reason for extensive surveillance in Lawrence [2002] Crim.L.R. 584 was the suspects’ willingness to
resort to deception. On the dangers of legitimising police action on this “tit for tat” rationale see Ashworth,
“Should the Police be Allowed to Use Deceptive Practices?” (1998) 114 L.Q.R. 108, 116. Note also that in
PG v UK [2002] Crim.L.R. 308 the ECtHR rejected claims that the police could only resort to covert
techniques as a “last resort”.

11 e.g. In Mason (2002) and in PG v UK, the suspects discovered the hidden devices. See also the ECtHR’s
recognition of this surveillance consciousness in PG v UK [2002] Crim.L.R. 308, para.40.

12 For an interesting examination of the interrelationship between the public interest and rights in the ECHR
see McHarg, “Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal
Uncertainty in the Jurisprudence of the ECHR” (1999) 62 M.L.R. 671. See more generally the discussion
by Ashworth, Human Rights, Serious Crime and Criminal Procedure (2002), expecially Ch.1.

13 Kopp v Switzerland (1998) 27 E.H.R.R. 91; Klass v Germany (1978) 2 E.H.R.R. 214.

14 See generally Emmerson and Ashworth, Human Rights and Criminal Justice (2001) Ch.3.

15 Hansard HC, May 20, 1998, col.976.

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16 See generally, Harris, O’Boyle and Warbrick, The Law of the European Convention on Human Rights
(1995), Ch.14.

17 See, e.g. Abdulaziz, Cabales and Balkandali v UK (1985) 7 E.H.R.R. 471, para.60.

18 See ss.7 and 8 of the Human Rights Act 1998.

19 [2001] 2 W.L.R. 463; [1997] A.C. 558; [2001] 3 W.L.R. 992.

20 The distinction between confession and non-confession evidence was always crucial in this regard. The
dangers of false and unreliable confessions and the element of self-incrimination justified a stricter
exclusionary approach than with improperly obtained real evidence. However, the use of covert devices
means that a hybrid form of evidence is now prevalent--recorded confession evidence which is
presumptively reliable because the suspect is making the incriminating statements in ignorance of the
police “presence”.

21 Leathem (1861) 8 Cox C.C. 498.

22 Superseding the narrower approach in Sang [1980] A.C. 402.

23 See, however, the denials in Chalkley and Jeffries [1998] 2 Cr.App.R. 79 of any true discretion and see Sir
John Smith’s comments [1999] Crim.L.R. 215.

24 Mason (1988) 86 Cr.App.R. 349.

25 See especially Choo and Nash “What’s the Matter with Section 78” [1999] Crim.L.R. 929; Dennis, The
Law of Evidence (2nd ed., 2002), pp.249-283; K. Grevling, “Fairness and the Exclusion of Evidence Under
s.78 of PACE” (1997) 113 L.Q.R. 667 and for a comprehensive analysis of the section and the broader
issues, P. Mirfield, Silence, Confessions and Improperly Obtained Evidence (1997) Chs. 6 and 7.

26 See Ashworth, commenting on PG v UK [2002] Crim.L.R. 308.

27 See Schenk v Switzerland (1988) 13 E.H.R.R. 242; Khan v UK (2000) 31 E.H.R.R. 1016; PG v UK [2002]
Crim.L.R. 308.

28 Under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations then in
force. See now Police Act 1997 Part III and RIPA 2000 Part II. See also Govell v UK [1999] E.H.R.L.R.
101.

29 This language of the ECHR offering at least minimum protections not operating as a “ceiling” was echoed
recently by the L.C.J. in Marper v CC South Yorks [2003] Crim.L.R. 39 relating to the retention of DNA
samples.

30 See Teixeira de Castro v Portugal (1998) 28 E.H.R.R. 101, although this could be an aberration.

31 See, e.g. Ashworth, commenting on PG v UK [2002] Crim.L.R. 308; Friedman, “From Due Deference to
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Due Process” [2002] E.H.R.L.R. 216.

32 This approach assumes that the same consequences derive from a breach of a qualified right (e.g. Art.8) as
for a breach of an absolute right (e.g. Art.2). Presumably if the police breached the fundamental guarantees
in Arts 2 or 3, English courts would exclude the evidence automatically. In the case of confessions this
would flow from s.76(2)(a) of PACE (see s.76(8) and Fulling [1987] Q.B. 426).

33 For surveys of various rationales see the discussion in Mirfield, op cit, n.25; Ashworth, “Excluding
Evidence as Protecting Rights” [1977] Crim.L.R. 723; and Dennis, op cit, n.25, Ch.3.

34 See e.g. the statements in the House of Lords in Khan [1997] A.C. 558, and Attorney General’s Reference
No.3 of 1999 [2001] 2 A.C. 91 and the dictum in Mason [2002] Crim.L.R. 841 that the behaviour of the
accused was more offensive than the unattractive policing (para.60). Evaluating the seriousness of offence
in these terms has been deprecated by the ECtHR--e.g. Teixeira de Castro v Portugal (1988) 28 E.H.R.R.
101, para.39.

35 [2001] 2 W.L.R. 463.

36 ibid., at 475. See also the statements of Lord Nolan in Khan [1997] A.C. 558, 579 and the endorsement in
Sargent [2001] 3 W.L.R. 992, 1006 per Lord Hobhouse; and Lord Steyn in Attorney General’s Reference
No.3 of 1999 [2001] 2 A.C. 91, 119.

37 Remedies of exclusion are not “required”, but it is not true to say that all remedies lie outside the criminal
trial--the judge may in some cases exclude the evidence on this basis.

38 See e.g. Mason [2002] Crim.L.R. 891; Khan (above). See also on the difficulty of admitting reliable
evidence obtained overtly but in breach of Art.8 e.g. Veneroso [2002] Crim.L.R. 306 cf. Bigwood ((2001)
Current Law, January), stay of proceedings where V withdrew complaint in domestic violence case and
prosecution reliance on her medical notes would have breached Art.8.

39 cf. Piersack v Belgium (1984) 7 E.H.R.R. 251, para.12 on the awards of damages.

40 See especially Ashworth, “Redrawing the Boundaries” [2002] Crim.L.R. 161.

41 The “victims” will include those who claim that they are under surveillance: Klass v Germany (1978) 2
E.H.R.R. 214 cf. Johnston v Ireland (1986) 9 E.H.R.R. 203.

42 Only in the same way that it is difficult to compensate meaningfully a personal injury claimant.

43 See Mowbray, “The ECHR Approach to Just Satisfaction” [1997] P.L. 647, 653. Objectors might also draw
comparisons with “deserving” victims of civil law wrongs who have received less (or no) compensation.

44 cf. Feldman, “The Human Rights Act 1998 and Constitutional Principles” [1999] E.H.R.L.R. 165, 178, and
Mirfield, op cit, n.8, 104. It is submitted that this is the preferable view to that taken by commentators such
as Walker, discussing the New Zealand approach, who regards the remedy as being primarily concerned to
maximise the quality of the evidence. See Walker, “Wilkes and Liberty: A Critique of the Prima Facie

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Exclusionary Rule” (1998) 17 N.Z.U.L.R. 69, pp.77-78. See also Jeffries [1994] 1 N.Z.L.R. 290.

45 cf. the view of Walker, above: “a straightforward damages remedy is the rational response”, p.88.

46 cf. Dennis, “Fair trials and safe convictions” (forthcoming, Current Legal Problems 2003).

47 See the approach of the Canadian Supreme Court in Collins (1987) 38 D.L.R. 4th 508; Stillman [1997] 1
S.C.R. 607.

48 In particular, see Simpson v Attorney-General [1994] 3 N.Z.L.R. 667.

49 See also Silver v UK (1983) 5 E.H.R.R. 347.

50 See Mirfield’s discussion of “public attitude integrity” op cit, n.25, pp.23-28.

51 In particular this might serve as a more direct deterrent to the police.

52 See also Taylor Sabori v UK, The Times October 31, 2002.

53 ”[I]ndividual rights and civil liberties are not advanced and society suffers where the violation of a right is
used as an excuse to impose an unrelated remedy” per Richardson J. in Te Kira, [1993] 3 N.Z.L.R. 257,
271.

54 See Springer [1999] 1 Cr.App.R (S) 217 and Ashworth, “Defending the Entrapped” [1999] 9 Archbold
News 5. It has also been employed in relation to unreasonable trial delays: see Attorney-General’s
Reference No.2 of 2001 [2001] EWCA Crim 1568 and Webster, “Delay and Article 6(1): An end to the
requirement of prejudice” [2001] Crim.L.R. 786.

55 This derives some limited ECtHR support, but in the context of providing remedies for procedural defects
insufficient in itself to constitute an unfair trial: Eckle v FRG (1982) 5 E.H.R.R. 1.

56 See Khan [1997] A.C. 558 and Latif [1996] 2 Cr.App.R. 92.

57 See e.g. Feldman, “Remedies for Violations of Convention Rights under the Human Rights Act” [1998]
E.H.R.L.R. 691, pp.705-706--who regards the exclusion of evidence as “often the most effective”, and
“sometimes the only effective” remedy, p.705.

58 See Taylor and Fitzpatrick, “Human Rights and the Discretionary Exclusion of Evidence” (2001) J.Crim.
Law 349 arguing that a breach of Art.8 should be analogous to a significant and substantial breach of a
PACE Code: p.357.

59 See the dissenting views in Khan v UK (above). See also Scheichelbauer v Austria (1970) 14 Y.B. 902.

60 It is unnecessary for these purposes to engage in a closer analysis of the rights jurisprudence.

61 See especially Lord Nolan in Khan [1997] A.C. 558, 581.

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62 Classic examples include Entick v Carrington (1765) 17 St Tr 1029 and more recently Malone v MPC
[1979] 2 All E.R. 620.

63 For an illuminating discussion see Ashworth, “Exploring the Integrity Principle in Evidence and
Procedure” (2003) forthcoming.

64 cf. the Canadian Supreme Court in Collins (1987) 38 DLR 4th 508.

65 [2001] 4 All E.R. 897.

66 See especially Lord Hoffmann at para.45. See generally on the moral legitimacy argument Dennis,
“Reconstructing the Law of Evidence” [1989] C.L.P. 21; Mirfield, op cit, n.25 pp.23-28 discussing refined
principles based on public and court-centred integrity.

67 [1996] 2 Cr.App.R. 92.

68 [1994] A.C. 42.

69 See Mason [2002] Crim.L.R. 841.

70 e.g. Delaney (1989) 88 Cr.App.R 338.

71 Mason [1988] 1 W.L.R. 139. Sutherland could be viewed as a particularly strong example, since, the
element of mala fides in the breach stemmed from the officers’ intention to record privileged material.

72 See Mirfield, op cit, n.25 pp.19-22.

73 The classic study is that of Oaks, “Studying the Exclusionary Rule in Search and Seizure” (1970) 37 Uni.
Chicago L.R. 665; and see Posner, “Rethinking the Fourth Amendment” (1981) Sup.Ct.Rev. 49.

74 This element of “good faith”, which is of questionable significance, has been taking prominence: see e.g.
Mason [2002] Crim.L.R. 841. Exceptions to the exclusionary rule for improperly obtained evidence were
developed by the US Supreme Court on the basis of “good faith”, see US v Leon (1984) 468 U.S. 897.

75 Private life is broadly defined: Niemietz v Germany (1992) 16 E.H.R.R. 97.

76 e.g. Private information is better protected than business information etc.

77 See e.g. the clear statement to this effect in PG v UK [2002] Crim.L.R. 308, para.38. “Necessary” implies
the existence of a “pressing social need” for the State interference: Sunday Times v UK (1979) 2 E.H.R.R.
245 at para.59.

78 See Malone v UK (1984) 7 E.H.R.R. 14, para.67; Amuur v France (1996) 22 E.H.R.R. 533, para.50.

79 (1979) 2 E.H.R.R. 245.

80 ibid., para.49.
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81 Silver v UK (1984) 5 E.H.R.R. 347, para.86.

82 (2000) 31 E.H.R.R. 1016.

83 The distinction between illegal and evaluative breaches might be developed valuably elsewhere in
situations in which it is necessary to assess the severity of breaches of qualified Convention rights.

84 These evaluative breaches could under this model be a ground for discretionary exclusion of the evidence.

85 See e.g. the dissent of Judge Tulkens in PG v UK.

86 On the significance of the lawyer-client privilege, see Niemietz v Germany (1992) 16 E.H.R.R. 97 para.37.

87 It is arguable that the appropriate remedy is a stay of proceedings, since for there to have been a breach of
Art.8, the police must have known of the regulations governing their covert operation and of their
obligation to comply with them. An infringement can then be viewed as involving a degree of knowing
fault in relation to a fundamental guarantee.

88 Para.34.

89 As an example of category “a”, see recent cases including Brennan v UK (2001) 34 E.H.R.R. 507; PG and
JH v UK; Allan v UK, The Times, November 12, 2002. See also S v Switzerland (1992) 14 E.H.R.R. 670;
Huvig v France (1990) 12 E.H.R.R. 528.

90 There may come a point where the extent of the Art.8 breach generates a claim for abuse, e.g. where the
extent of surveillance raises questions about the bona fides of the operation.

91 [1994] 1 A.C. 42.

92 [1996] 1 W.L.R. 104.

93 [2000] Q.B. 520.

94 Their interrelationship has not been fully developed: see e.g. Looseley [2001] 4 All E.R. 897 which
suggests that a s.78 application regarding entrapment is in effect a belated abuse of process application: see
Lord Nicholls, para.18; Lord Hoffmann, para.44; and Lord Hutton, para.104.

95 Under s.78. It is extremely rare for appellate courts to interfere with the judge’s decision other than where
Wednesbury-unreasonable: O’Leary (1988) 87 Cr.App.R. 387, 391.

96 Admittedly, this brings its own problems of delineating points on the slippery slope from trivial to serious,
etc.

97 The “burden” in s.78 remains elusive: R. (Saifi) v Governor of Brixton Prison [2001] 1 W.L.R. 1134; cf.

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ECHR and the exclusion of evidence: trial remedies for..., Crim. L.R. 2003, Feb,...

Barbera Messagne Jabardo v Spain (1989) 11 E.H.R.R. 360.

98 See Grevling, “Fairness and Exclusion of Evidence under s.78(1) of PACE” (1997) 113 L.Q.R. 667.

99 See Hansard HL Debate Vol.454, col.932-933, July 11, 1984.

100 Fitzpatrick and Taylor, op cit n.58, suggest that “technical” breaches would not be included.

101 See Emmerson and Ashworth, op cit, n.14 paras15-13--15.15.

102 This has been heavily criticised in part for the court’s broad interpretation of search and seizure and the
concept of reasonableness rather than explicitly on the presumptive remedy of exclusion: see Optican,
“Search and Seizure in the Court of Appeal: An essay on the uses and misuses of s.21 of the Bill of Rights”
(1999) 18 N.Z.U.L.R. 411.

103 See France, “Exclusion of Improperly Obtained Evidence” (1985) 11 N.Z.U.L.R. 334.

104 See Butcher [1992] 2 N.Z.L.R. 257; Kirifi [1992] 2 N.Z.L.R. 8. Recent cases have demonstrated something
of a retreat: Grayson and Taylor [1997] 1 N.Z.L.R. 399.

105 This has been criticised as lacking in theoretical foundation. The causal requirement is not based on a need
for deterrence or compensation or fairness. See Walker, op cit, n.44.

106 Jeffries [1994] 1 N.Z.L.R. 290.

107 Richardson J. in Goodwin [1993] 2 N.Z.L.R. 153, 193.

108 See Cooke P., in Goodwin [1993] 2 N.Z.L.R. 153, 171.

109 Mohammed v The State [1999] 2 A.C. 111

110 p.122.

111 Grayson and Taylor [1997] 1 N.Z.L.R. 399, 412.

112 See Jersild v Denmark (1994) 19 E.H.R.R. 1.

113 I would like to dedicate this article to the memory of the late Sir Rodney Klevan Q.C. who would, I hope,
have welcomed at least the pragmatic proposal.

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