9.6 THE USE OF EVIDENCE OBTAINED ABROAD
9.6.3 Evidence obtained in breach of foreign law
InGovernor of Pentonville Prison ex pChinoy,100the Divisional Court was asked to consider the admissibility of evidence obtained in France in breach of French law and sovereignty and the European Convention on Human Rights. The court was of the opinion that the admissibility of foreign evidence was primarily a matter of relevance and reliability.101The applicant in this case was the manager of the BCCI
94 For further discussion, see M Mackarel and C Gane, ‘Admitting Irregularly or Illegally Obtained Evidence From Abroad into Criminal Proceedings: A Common Law Approach’,Crim LR[1997], 720;
and C Murray, ‘The Protection of Fundamental Rights in Mutual Assistance Cases’,Oxford Conference on International Co-operation in Criminal Matters,1998, Oxford: Christ Church.
95 For further discussion on the development of the abuse of process doctrine, see A Choo,Abuse of Process and Judicial Stays of Criminal Proceedings,1993, Oxford: OUP.
96 [1994] 1 AC 42.
97 [1999] 2 Cr App R 143.
98 [1994] SCCR 902.
99 (1890) 17 R(J) 38.
100 [1992]! All ER 317.
bank in Paris. Following his arrest in the UK, he had been committed to prison to await extradition to the USA on the basis of evidence obtained by US agents operating in France. The magistrate allowed the US Government to adduce as evidence transcripts of telephone conversations recorded in France without the knowledge of the French authorities, in breach of French sovereignty, in breach of Art 8 of the European Convention on Human Rights and without recourse to the available mutual legal assistance provisions. Counsel for Chinoy argued that the transcripts should have been excluded on the ground that US authorities had engineered the applicant’s presence in the UK in order to avoid French proceedings, which amounted to an abuse of process of the English court, and, in the alternative, the trial judge should have exercised his exclusionary discretion under s 78(1) of the Police and Criminal Evidence Act 1984 (PACE).
In dismissing this application, Nolan J noted that ‘crucial evidence against the applicant has been obtained by means which are criminal in France and, at any rate according to French law, are in breach of the European Convention on Human Rights’.102He proceeded to ask: ‘If (subject to s 78 of PACE) evidence unlawfully obtained in England is admissible, as Sang declares, then why should a different rule apply with regard to evidence obtained unlawfully in another country?’103 Holding that evidence obtained abroad in breach of foreign law or international law ‘formed part of the circumstances in which the evidence was obtained’,104Nolan J considered it relevant that ‘all the misconduct of which complaint is made took place before the matter came within the jurisdiction of the magistrates’ court, and involved no abuse of process before that court’.105The fact that the court may find the manner in which the evidence was obtained objectionable is relevant to, but not determinative of, the judge’s discretion to admit or exclude such evidence.106 Accordingly, the magistrate was entitled to take the view that these breaches carried
‘no more weight than breaches of English law and therefore did not constitute sufficient reason for excluding the evidence’.107The court chose to adopt a policy of non-inquiry into the manner in which evidence was obtained outside the UK by foreign law enforcement agencies and has been criticised for engaging in the laundering of evidence.108In presenting evidence obtained in breach of foreign law for use in the criminal process in another jurisdiction, the manner in which the evidence was obtained can be more easily overlooked than if it was obtained within the jurisdiction. Gane and Mackarel argue that, in Chinoy, evidence obtained unlawfully by US agents was effectively ‘laundered’ through local admissibility rules.
101 PACE, s 78, applies to extradition proceedings. Whilst the Criminal Procedure and Investigations Act (CPIA) 1996, para 26, Sched 1, removed committal proceedings from the scope of PACE, s 78 by inserting s 78(3), it is arguable that in extradition proceedings the magistrate is not sitting in the same capacity as an examining magistrate in criminal proceedings.
102 [1992] 1 All ER 317, p 330.
103 Ibid.
104 Ibid,p 332.
105 Ibid,p 330.
106 Interestingly, inChinoy v UK,Application No 15199/89, the European Commission for Human Rights dismissed the application that the committal to prison was in breach of Art 5 on the ground that the domestic court’s decision to allow the prosecution to rely on unlawfully obtained evidence complied with national rules and could not, therefore, be considered arbitrary.
107 [1992] 1 All ER 317.
108 Seeop cit,Gane and Mackarel, note 12, p 116;op cit,Mackarel and Gane, note 94, p 725.
InChinoy,109the impugned conduct was attributable to US agents; there was no suggestion that English prosecuting authorities were party to the illegal acts of the foreign law enforcement officers. However, inUSA v Verdugo-Urquidez,110the US Supreme Court was prepared to admit evidence obtained from outside the jurisdiction by US agents acting in deliberate breach of the law of a foreign State.
Following the arrest of a Mexican citizen for drug offences, US Drug Enforcement Agency (DEA) agents, working with Mexican police officers, conducted a search of the respondent’s premises in Mexico. A Federal District Court held that the evidence seized during the search should be excluded on the ground that the search was unlawful under the Fourth Amendment to the Constitution. The DEA failed to obtain a warrant and did not have sufficient grounds for conducting a search without a warrant. On appeal, the Supreme Court held that the Fourth Amendment, which provided citizens with protection against unlawful search and seizure, did not apply to searches of property that was owned by non-resident foreigners located in a foreign State and, thus, the evidence was admissible.
In a powerful dissenting opinion, Brennan J warned that ‘the behaviour of our law enforcement agents abroad sends a powerful message about the rule of law to individuals everywhere—when US agents conduct unreasonable searches, whether at home or abroad, they disregard our nation’s values’.111In holding that the respondent was entitled to the protections of the Fourth Amendment, he reminded the court that a judicial warrant was intended to protect suspects from the ‘unbridled discretion of investigating officers’ which was ‘no less important abroad than at home’.112He considered that, in sanctioning the unlawful actions of the DEA, there was a danger that the court was lending support to the argument that in the administration of criminal law the end justifies the means. It is arguable that, by failing to exclude this evidence, the Supreme Court missed an opportunity to discourage future illegal investigations by US agents. The Canadian courts have also demonstrated a willingness to accept evidence obtained by irregular methods.
InUSA v Langlois,113the Ontario Court of Appeal, during extradition proceedings, was asked to consider whether to admit evidence obtained by a search considered unlawful in the State of Maryland in the United States. Complying with the rule of non-enquiry in relation to the issue of double jeopardy, the court held that it was inappropriate and unwise to inquire into foreign procedural and evidentiary rules, unless principles of ‘fundamental justice’ had been violated. InR v Filonov,114the court held that, subject to certain exceptions, all relevant evidence was admissible.
Furthermore, the 1982 Canadian Charter of Rights and Freedoms does not have extra-territorial effect. InR v Terry,115the court also held that the Charter of Rights has no effect on law enforcement officials abroad, and as such does not render illegally obtained evidence inadmissible. Under Art 24(2) of the Charter, evidence not taken
109 [1992] 1 All ER 317.
110 108 L Ed 2d 222 (1990).
111 Ibid,p 246.
112 Ibid,p 252.
113 USA v Langlois(1989) 50 CCC 3d 445, Ontario Court of Appeal.
114 R v Filonov(1993) 82 CCC 3d 516, Ontario Court, General Division.
115 R v Terry(1994) 91 CCC 3d 209, British Columbia Ct of Appeal.
under the protection of the Charter should be excluded only ‘if it would bring the administration of justice of this country into disrepute’.
Whilst the majority of the court inVerdugo-Urquidez116sought to justify not only misconduct by law enforcement agencies engaged in investigating criminal offences abroad but also the illegal activity of US personnel involved in ‘other foreign policy operations which might result in “searches or seizures”’,117the same criticism cannot be made against the Divisional Court inChinoy. Domestic prosecuting authorities were beyond reproach and it is doubtful whether an English court can exert any influence over the activities of foreign agents. However, the failure to reject evidence, which was obtained not merely in breach of foreign law, but also in violation of international human rights standards, on the ground that the misconduct took place outside the jurisdiction of the English court, is lamentable and demonstrates a lack of sensitivity and understanding of the rules operating in other legal systems. Whilst the court may decide to disregard a breach of local rules when considering the admissibility of evidence obtained within the jurisdiction, to take the same approach to a blatant disregard for the rules applicable in another State is an entirely different matter. In effectively disregarding the infringement of the sovereign rights of French law and the violation of rights guaranteed by the European Convention on Human Rights, the court failed to take account of generally recognised principles and rules of international law and international comity.118However, this case illustrates the reluctance to exclude relevant, reliable evidence and exposes the English court’s commitment to a reliability principle. Following the enforcement of the Human RightsAct (HRA) 1998, the English judiciary has maintained its resistance to rejecting evidence.119