Chapter 9: Mutual Legal Assistance
255
standards. Thus, although human rights jurisprudence has only limited impact on
admissibility, the prohibition on torture which is generally recognised as an
internationally accepted standard and enshrines one of the fundamental values of
democratic societies,
160
guarantees that evidence obtained in this manner will be
excluded from a criminal trial regardless of its reliability.
161
In
Burgos v Uruguay,
162
the Human Rights Committee found that the use at trial of evidence obtained under
torture infringed the right to a fair trial.
163
Refusing to accept that fair trial rights can
be sacrificed for the sake of expediency, the European Court of Human Rights has
rejected the use of evidence on the ground that it was obtained in breach of procedural
safeguards inherent in Art 6.
164
This approach led to an expectation that the Court
would not support convictions based on evidence obtained in breach of fundamental
principles of fairness, despite its relevance and reliability. However, recent authority
suggests that when assessing evidence obtained in breach of Convention rights, other
than fair trial rights, the Court is prepared to focus on the nature of the evidence
rather than the fact that human rights standards have been breached.
In
Khan v UK,
165
the Court accepted that the admission of evidence obtained in
breach of privacy rights did not conflict with the applicant’s right to a fair trial. The
applicant complained that the use at trial of evidence obtained in violation of a right
guaranteed by Art 8 of the Convention was incompatible with the requirements of
fairness guaranteed by Art 6(1). The court was satisfied that the evidence, which
consisted of a tape-recorded conversation acquired by the use of a listening device
attached to a private house without the knowledge of the owner or occupier, was
obtained in violation of the applicant’s right to respect for private and family life.
The applicant argued that a conviction based solely on evidence obtained in
consequence of the unlawful acts of prosecuting authorities was incompatible with
the right to a fair trial. The court reiterated that its primary function was to determine
whether the applicant’s trial as a whole was fair and not to rule whether evidence of
this type must, as a matter of principle, be excluded. Whilst Art 6 guarantees fair
trial rights, it does not lay down any rules relating to the exclusion of evidence,
which is primarily a matter for regulation under national law. Acknowledging that
the secret recording was, in effect, the only evidence tendered for the prosecution,
the court considered it relevant that there was no suggestion that this evidence was
unreliable and that the applicant had had ample opportunity to challenge the
authenticity of the recording. Where there was no risk of unreliability, the need for
the court to look for supporting evidence was less important. The admissions on the
tape-recording were made voluntarily and did not result from any entrapment or
inducement on the part of the authorities. Noting that, under English law there was
nothing unlawful about a breach of privacy, the court was satisfied that the recording
of the applicant’s conversation was not contrary to domestic criminal law. In rejecting
160 See, eg, European Convention on Human Rights, Art 3; ICCPR, Art 7; and American Convention on
Human Rights, Art 5.
161 See discussion in
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