9.6 THE USE OF EVIDENCE OBTAINED ABROAD
9.6.4 Evidence obtained in compliance with foreign law but which is
Although acknowledging that its exclusionary discretion extends to foreign evidence, English courts have been reluctant to lay down guidelines as to when it would be appropriate to refuse to admit such evidence. InQuinn,120the Court of Appeal held that identification evidence obtained abroad as a result of arrangements made by a foreign police force was admissible. Several weeks after the shooting of a police officer in London, Quinn stood trial in Dublin for offences committed in the Republic of Ireland. A witness to the shooting went to Dublin and identified the appellant.
The fact that this identification was carried out in a manner which did not correspond with PACE and the codes of practice, should not be ‘disregarded in so far as it affects the intrinsic fairness of the identification procedure adopted’.121Noting that ‘English
116 108 L Ed 2d 222 (1990).
117 Ibid,p 238.
118 In 1975, over 30 Member States of the Council of Europe signed the Helsinki Declaration and agreed to abide by their obligations under international law including those ‘arising from the generally recognised principles and rules of international law… In exercising their sovereign rights, including the right to determine their laws and regulations’.
119 For further discussion, see A Choo and S Nash, ‘Evidence Law in England and Wales: The Impact of the Human Rights Act 1998’, 7E & P(2003), 31.
120 Crim LR[1990], 581.
121 Ibid.
courts cannot expect English procedural requirements to be complied with by police forces operating abroad, even if, as in the present case, they have similar procedural requirements’,122Lord Lane considered that for the purposes of s 78(1) the critical factor was the fairness of the subsequent English proceedings. In dismissing this appeal, he was satisfied that when exercising his discretion the trial judge had taken into account relevant factors such as the lack of an opportunity to cross-examine the witness and the fact that the disputed evidence was not the sole evidence in the case. Interestingly, the court noted that ‘the present case was not one where the procedural departures…were the responsibility of the British authorities’.123
The possibility of at least some control over evidence obtained as a result of serious extra-territorial irregularity is raised by the Scottish case ofHM Advocate v McKay.124 The court was required to consider the admissibility of evidence that had been obtained in Eire under an Irish search warrant. In accordance with the practice in Eire, documents were seized which were not in the name of the accused. At the subsequent trial in Scotland, objection was taken to the admissibility of the documents. It was submitted that it would be improper to admit the evidence because the search offended against the principles governing the search of premises in Scotland. Lord Wheatley took the view that:
The procedure followed was regular according to the law of the land where it took place [and that] does not in itself necessarily constitute a sufficient justification for the admission of the evidence. I can visualise circumstances where the practice followed by the law and procedure of the local country was so offensive to our own fundamental principles of justice and fair play that the admissibility of such evidence would not be tolerated. It seems to me, therefore, to be a question of facts and circumstances in each case.125
The court held that, as far as Scottish procedure was concerned, the search was irregular.
However, the irregularity was not necessarily fatal to the admissibility of the evidence.
In this case the court was satisfied that in the circumstances the irregularity could be excused and the evidence admitted. The submission regarding the admissibility of evidence was not based on the premise that foreign police officers behaved improperly or that the evidence was gathered in breach of foreign procedures.
Unlike the court inMcKay,the English court has so far failed to contemplate what would happen if foreign evidence gathering rules did offend English sensibilities. Citing Quinnwith approval, the English court, inKonscol,126was prepared to admit evidence obtained outside the UK in accordance with local law, notwithstanding that it was obtained in a manner which did not correspond with English practice. Konscol was arrested in Belgium and subsequently convicted of conspiracy to import drugs into the UK. At his trial, he objected to the prosecution adducing in evidence a note of an interview obtained in Belgium by a customs officer, acting under the instruction of a Belgian magistrate. In accordance with local procedures, the Belgian authorities did not offer the suspect the services of a lawyer and did not administer a caution. In refusing to exclude this evidence, the trial judge considered it relevant that there was
122 Ibid,p 582.
123 Ibid.
124 1961 SLT 176.
125 Ibid,p 179.
126 Crim LR[1993], 950.
no dishonesty or bullying behaviour by the Belgian authorities and at no time did the appellant deny that he said what was recorded. On appeal, the appellant submitted that as the interview was not conducted in accordance with the provisions of PACE and would have been excluded had it been taken in England, the judge was wrong to permit the prosecution to adduce it. In dismissing the appeal, the Court of Appeal assumed that the interview was conducted lawfully in accordance with Belgian procedures. It is of note that in bothQuinnandKonscolthe issue before the court was the application of its discretionary exclusionary power under s 78 of PACE. It is questionable whether the court’s reasoning would be sustainable if the evidence had been a confession obtained by oppression and the submission was based on the exercise of the mandatory exclusionary power under s 76 of PACE.
InMacNeil and Others v HM Advocate,127the Scottish court again used the principle of urgency to justify the admission of evidence obtained outside the jurisdiction.
However, on this occasion the court moved to consider the admissibility issue without ruling on the legality of the search. The appellants were convicted of offences relating to the importation of cannabis. Following the discovery of drugs on a yacht moored on the Clyde, customs officers obtained a warrant under the Customs and Excise Management Act 1979. Material was seized from an address in Liverpool that was not covered by the warrant. Objection was taken to the admissibility of this material on the ground that it had been obtained irregularly and there were no circumstances which might excuse the irregularity. Proceeding on the basis that the items were irregularly obtained, the court held that the sheer urgency of the situation excused any potential irregularity and that, in the circumstances, the trial judge was correct in holding that the items should be admitted as evidence. It is unfortunate that the court did not deliver its opinion on the legality of the search before proceeding to consider the issue of admissibility. In cases involving evidence obtained outside the jurisdiction, it is important to distinguish between rules regulating the gathering of evidence and rules relating to the admissibility of evidence. In this case, if evidence was obtained unlawfully in Liverpool it could not be rendered lawful by the application of the principle of urgency, since this is not a principle recognised in English law. However, since the principle of urgency relates to the admissibility of evidence, the court in Scotland could consider whether it was appropriate in the circumstances to excuse the irregularity, which took place in England, and admit the evidence at trial.
InTorres v HM Advocate,128the court reaffirmed that it would exclude evidence obtained by means which offended fundamental principles of justice and fair play, irrespective of what was legal according to foreign law. However, nothing in this case suggested that the appellant had been denied a right of any kind. The prosecution alleged that cocaine had been transported to Scotland, by ship, from South America via Halifax, Nova Scotia, and sought to rely on a note discovered by Canadian Customs officials during a search of the vessel. A Canadian court granted an order for the transfer of the note to Scotland. The objection to its use at trial was based on the circumstances in which it had been obtained and transmitted to Scotland. The appellant submitted that the Canadian search warrant did not authorise the removal
127 [1986] SCCR 288.
128 [1997] SCCR 491.
of the note. Seizure of evidence in these circumstances would represent a breach of the fundamental principle of justice and fair play which was recognised in Scotland.
Where a foreign official sought to justify a departure from the terms of the warrant, this was required to be supported by evidence of practice in his country. Furthermore, there were no circumstances which indicated that the principle of urgency could be used to excuse the irregularity. The Scottish court should apply the same principles to the admissibility of evidence obtained abroad as it does to evidence obtained as a result of an unlawful search in Scotland. In dismissing this appeal, the Lord Justice Clerk considered there was no basis to suggest the evidence was obtained in a manner which offended Scottish principles of justice and fair play. Any irregularity was ‘one of the most technical kind’129and related to the execution of a search warrant on a vessel, which at the time was under the control of the Canadian authorities. Thus, it was inappropriate for the court to exercise its discretion to exclude evidence. In this case, the court was not prepared to look behind the decision of the Canadian court to the transfer of items of evidence to see whether the procedure was in accordance with foreign law. Interestingly, inSchreiber v Canada,130the Canadian Supreme Court was asked to consider whether the Canadian standard for the issuance of a search warrant was required before the federal Department of Justice submitted a letter of request to the Swiss authorities. The court held that a search carried out by foreign authorities, in a foreign country, in accordance with foreign law did not infringe a defendant’s reasonable expectation of privacy, as a foreigner cannot expect greater privacy than is provided by national law.
On occasion prosecuting authorities have been able to use evidence obtained outside the UK in accordance with foreign law, notwithstanding a prohibition on the use of evidence obtained in the same manner within the jurisdiction. The Court of Appeal has ruled that the provisions of the Interception of Communications Act (ICA) 1985 which render telephone intercepts effected within the UK inadmissible at trial do not apply to foreign telephone intercepts. Relying on evidence consisting of telephone calls intercepted in the US, the US Government, inGovernor of Belmarsh Prison ex p Martin,131sought the applicant’s extradition to stand trial for conspiracy to cause explosions. Having considered the intercepts, the magistrate found that there was aprima faciecase against him and committed him to await the directions of the Secretary of State. The applicant applied for a writ of habeas corpus on the grounds that telephone intercepts were, by virtue of the ICA 1985, inadmissible in proceedings in the UK. In this case, the Divisional Court did not concern itself with the question whether the intercept was obtained in accordance with foreign law. It was satisfied that a foreign telephone intercept obtained in the US, by US Government agents, could be adduced in evidence in England because the ICA 1985 had no extra- territorial jurisdiction.132Relevant to the court’s decision was the fact that no offence had been committed by any person concerned in the operation of the public communications system in the UK.
129 Ibid,p 499.
130 [1998] 1 SCR 841.
131 [1995] 1 WLR 412.
132 For further discussion of the ICA 1985, see S Nash, Interception of Communications in the European Union’, 5Juridical Review(1996), 321.
Similarly, in Aujla,133the Court of Appeal held that evidence of an intercept obtained outside the UK in accordance with local law was admissible in an English trial notwithstanding the provisions of the ICA 1985. The applicants were charged with conspiracy to facilitate the illegal entry of persons into the UK. During the course of a preparatory hearing,134the trial judge ruled that an intercept obtained in The Netherlands in accordance with Dutch law and procedure was admissible as evidence. Having obtained the appropriate judicial authority to intercept telephone calls, Dutch police officers recorded conversations made between Dutch residents and the appellants. These transcripts were eventually used as evidence in criminal proceedings in The Netherlands. Following the conviction of the Dutch residents, the transcripts were made available to the English police for use in the prosecution of the appellants in England. There was no challenge to the authenticity of the transcripts or the accuracy of the translations. The appellants argued that the trial judge’s ruling breached the spirit of the ICA 1985 and ignored Art 8 of the European Convention on Human Rights.
In dismissing this interlocutory appeal, the Court of Appeal held that the operation of the ICA 1985 did not bar the use of material obtained by foreign phone tapping as evidence in proceedings in England. Furthermore, the court was satisfied that this evidence was obtained without violating the appellants’ right to privacy, which is guaranteed by Art 8 of the Convention. Relevant to the court’s decision was the fact that the evidence had been obtained in accordance with Dutch law and Dutch procedure which was presumed to meet the requirements of the Convention; the transcripts were part of a record of proceedings before a Dutch court and, thus, open to public scrutiny and no issue was taken as to the relevance or the reliability of the transcripts which had been obtained in a manner which did not conflict with English law. Whilst the primary issue, inAujla,was whether the ICA 1985 had extra-territorial effect, it is authority for the proposition that evidence obtained in accordance with the law of a foreign country isprima facieadmissible in an English trial.
This issue has also been addressed by the BelgianCour de Cassationin relation to telephone intercepts obtained outside the jurisdiction, but made available for use in criminal proceedings in Belgium. The court was asked to consider whether a transcript of a telephone intercept obtained in The Netherlands at the request of the Belgian authorities was correctly admitted at trial, notwithstanding the prohibition on the interception of telephones in Belgium.135In upholding the conviction, the court ruled that an intercept obtained in The Netherlands in accordance with Dutch law and procedure was compatible with the European Convention on Human Rights.136Similarly, no objection was taken to the admissibility of transcripts obtained by French police in connection with a French criminal investigation which were made available to Belgian authorities for use in Belgium.137Whilst the court was not
133 [1998] 2 Cr App R 16.
134 CPIA 1996, s 31(3), provides that a trial judge may make a ruling as to the admissibility of evidence and under s 35(1) of that Act, the accused can apply for leave to appeal to the Court of Appeal against this ruling. If leave is granted, the Court of Appeal has the power to confirm, reverse or vary the judge’s ruling.
135 Loi du 13 Octobre 1930, Art 17.
136 Cour de Cassation (2ème ch, sect Néel) 26 January 1993 (en cause de Co D) Revue de droit penal, 1993.
prepared to determine the legality of foreign procedures, providing the transcript was obtained lawfully according to French law and did not conflict with rights guaranteed by the Convention, the evidence could be received by a Belgian court.
The enforcement of the HRA 1998 has required courts in the UK to consider carefully arguments based on compatibility with Convention rights. In a series of interlocutory appeals brought under s 35(1) of the CPIA 1996, the Court of Appeal considered questions concerning the admissibility of evidence of foreign telephone intercepts involving an international element and the effect upon such admissibility of Arts 6 and 8 of the European Convention on Human Rights. InR v X; R v Y; and R v Z,138the appellants argued that as a matter of public policy, transcripts of telephone conversations obtained by intercepting telephones outside the jurisdiction which by reason of the operation of the ICA 1985 would be inadmissible if obtained in the UK should not be adduced at trial, whether or not the interception was in accordance with foreign law, and whether or not such evidence would be received in foreign criminal proceedings. The Court of Appeal was satisfied with the trial judge’s finding that the foreign law enforcement agencies had acted lawfully throughout the proceedings. The telephone calls, which were recorded by means of an intercept being placed on a telephone in another country, were in accordance with the law of that country, as was the subsequent handing over to the British authorities for the purposes of prosecution and, any interference with the appellant’s right to privacy was justifiable under Art 8 of the Convention.
Giving the judgment of the court, Potter LJ139held that whilst the consideration of an application to exclude evidence under s 78(1) obliged the court to attach considerable importance to a violation of a right guaranteed by the Convention, it remained necessary for the judge to engage in a consideration of all the circumstances surrounding the gathering of the evidence.140The question whether the interference with the appellant’s right to privacy was in violation of Art 8 did not depend simply upon the legality of the gathering of the evidence, which was a matter of the foreign country’s law, but also upon the subsequent use of the material. The court was satisfied that the judge was correct in treating the circumstances of this case as being not materially different from those ofAujlaand found no fault with the exercise of discretion. Any risk that, as a consequence of this decision, English police officers would be tempted to ask foreign law enforcement agencies to arrange an intercept at the foreign end of a telephone line to circumvent the provisions of the ICA 1985 was not considered relevant to this case since there was no evidence that such a request had been made or such a purpose contemplated. Whether the court would move to exclude evidence obtained by collusion between prosecuting authorities remains to be seen. Current jurisprudence indicates that any intentional
137 Cour de Cassation (2ème ch, sect Néel) 12 October 1993 (en cause de Co D) Revue de droit penal, 1994.
138 (2000)The Times,23 May.
139 The judge heard the application to exclude as though the HRA 1998 was already in force, since any appeal would be heard after its enforcement date. SeeEx p Kebeline[1999] 4 All ER 801.
140 InKhan v UK(2001) 31 EHRR 45, the court held that the use of evidence, which had been obtained in breach of a right guaranteed by the Convention, was not necessarily in violation of the right to a fair trial.
circumventing of rules would be considered as relevant to, but not determinative of, the exercise of the discretionary power to exclude evidence.
The courts in the US have consistently reaffirmed the principle that the actions of foreign law enforcement officials and evidence obtained outside the US by those actions are not subject to the usual constitutional protections afforded by the Bill of Rights. InBrulay v USA,141for example, the defendant was arrested in Mexico for the possession of drugs and subsequently convicted in the US for conspiracy to smuggle narcotics into the United States. On appeal, he claimed that statements taken from him by Mexican police and searches and seizures made by them did not conform to standards set out by the constitution, that such evidence was therefore irregularly obtained and should be excluded. The court disagreed, maintaining that applying exclusionary rules to the actions of Mexican police would not alter their search policies and that the exclusionary rules relating to evidence improperly obtained were intended to require US police officers to obey US law. Notwithstanding a breach of Mexican law, the Fourth and 14thAmendments to the US Constitution did not apply to evidence obtained by Mexican police officers, or indeed to foreign law enforcement officials in general.
Providing the actions of foreign officials did not ‘shock the conscience’ of the court142or involve the participation of US officials so as to represent a joint venture, this principle has been acknowledged by the US courts on many occasions.143 Arguably, the court has taken a rather disingenuous view of the concept of ‘joint venture’. InUSA v Marzano,144a suspect wanted for substantial bank thefts in the United States fled to the Cayman Islands. A police officer in Grand Cayman allowed two FBI agents to accompany him during the investigation, in the course of which the suspect was arrested and searches of a legally dubious nature carried out. He was then put on a plane destined for Miami. Thus, without any recourse to the formal procedures required under extradition or mutual assistance arrangements, prosecuting authorities in the US were in possession of the fugitive and the incriminating evidence. The FBI agents claimed that their role in the operation had been completely passive and this was supported by the Cayman police officer involved. The Court of Appeals, Seventh Circuit, accepted that the role of the US agents was entirely passive and found no evidence to support the view that the investigation involved a joint venture with the foreign agents. Accordingly, the evidence was properly admitted at trial.
Taking a similar standpoint, the Canadian courts have held that the rights set out in the Canadian Charter of Rights and Freedoms have no extra-territorial effect. In R v Terry,145for example, at the request of the Canadian authorities the defendant was arrested and questioned in the US by US police officers and a statement taken.
141 383 F 2d 345 (1967), 9th Cir, Ct of Appeals.
142 No express guidance has been set down as to what constitutes malpractice severe enough to shock the conscience of the court; however, inUSA v Toscanino,500 F 2d 267 (1974), the court was ‘shocked’
by the torture of the respondent by US officials, but was not shocked by his forcible abduction.
143 SeeStonehill v USA,405 F 2d 738 (1968), 9th Cir Ct of Appeals;USA v Marzano,537 F 2d 257 (1975), 7th Cir Ct of Appeals;USA v Cotroni,527 F 2d (1975), 2nd Cir Court of Appeals;USA v Busic,587 F 2d 577 (1978), 3rd Cir Ct of Appeals.
144 537 F 2d 257 (1975), 7th Cir Ct of Appeals.
145 (1994) 91 CCC 3d 209, British Columbia Ct of Appeal.