Jeremy Brooke

This was a case where the police in Sheffield placed a listening device in the house of a private individual in the hope of hearing evidence relating to offences involving the dealing of Class A drugs.  The police entered the property and placed a listening device without the knowledge or permission of the home owner and without a warrant from the Home Secretary.  The law at the time was governed by the Interception of Communications Act 1985. 

Whilst gathering evidence in relation to other people a conversation was heard between Khan and another man which led to Khan’s arrest and subsequent conviction before the Sheffield Crown Court of importing a quantity of Class A drug to the UK.  The defence team argued that the evidence had been admitted to the trial regardless of the fact that it had apparently been obtained improperly or even unlawfully.  English Law provides that evidence which is obtained improperly or unlawfully remains admissible subject to the power of the trial Judge to exclude that evidence in exercise of his common law discretion under the Provisions of Section 78 of the Police and Criminal Evidence Act 1984. The Defence team said that the admission of this evidence was unlwful and the UK court should have regard to Articles 6 and 8 of the Euopean Convention on Human Rights. Article 8 only allowed interefrence with private lives in circumstances which were clear and unambiguos, which the Interception of COmmunications Act was not. 

The case was appealed to the Court of Appeal where there Lordships agreed with the trial Judge and then on to the House of Lords where again their Lordships appeal agreed with the Judge.  The matter then progressed to the European Court of Human Rights where the Court found that UK National Law did not regulate with sufficent clarity the use of covert listening devices in order to protect the individuals' right under the Convention to respect for private and family life, and nor did the law give any effective remedy for such intrusion. 

The European Court of Human Rights found that the UK Government had been in breach of article 8 of the European Convention on Human Rights (the right to a private and family life) but did not uphold condesertion that he had been deprived of the right to a fair trial.

Whilst this case revolved around a man who had been convicted of the importation of a substantial quantity of Class A drugs, and therefore general public sympathy may not be on his side, it is important that underlying principals regarding the admissibility, or otherwise, of evidence are challenged and examined by the higher courts in order to determine the correct and appropriate course of conduct by state bodies such as the police.  It is challenges such as these that leave us living in a fair and democratic society.  In response to the decision of the European Court of Human Rights the Government altered its legislation to sit more consistently with the Convention thus providing greater clarity and fairness to the UK Law

Kitchen was one of two men alleged to have committed a robbery at a small business.  The occupants of the business were threatened with a screwdriver and as the offenders fled the scene the police were called.  One of the policemen making a search of the local area spotted two men one of whom was Kitchen.  He knew Kitchen and knew of his past convictions for offences such as robbery. Photographs of various people were shown to the people who had been subjected to the robbery and they picked out Kitchen.

Kitchen was arrested and appeared on an identification parade where he was again identified by the victims. Kitchen argued that his identification parade was prejudiced by the showing of the photographs and tha he had been picked out not because the victims had seen him in the premises but because they had been shown photographs of him. He was convicted in the Crown Court where the trial judge refused the Defence teams application to exclude evidence of the identification parade.

The Court of Appeal disallowed Mr Kitchen’s appeal and upheld his conviction on the basis that at the time that the photographs were shown the officer showing the photographs was simply showing a number of photographs to the occupants of the business to determine the likelihood or not of Kitchens (and others) potential involvement in the crime such that their arrest and detention could be effectively made.

The showing of the photographs did not mean that the Judge was wrong to refuse the Defence application to exclude the evidence under S78 of Police and Criminal Evidence Act 1984.

Here the facts related to a man who had died as a consequence of his exposure to asbestos whilst working as a welder in power stations between 1961 and 1985.  He was engaged in maintenance and repair works.  During that time Mr Cox was exposed to atmospheric asbestos dust and fibre by several employers including a company called International Combustion, whose liabilities were now held by Rolls Royce Industrial Power.

The Defendant company argued at trial and again on appeal that the Court should specify a minimum period of exposure to asbestos which a Claimant must satisfy in order for a claim of this sort to succeed.  The Court of Appeal agreed with the Trial Judge in finding that it was not necessary to formulate a test otherwise than by reference to an exposure that was not “de minimus”.  In other words, the Claimant has to show that the asbestos to which he was exposed creates a material increase in the risk of contracting mesothelioma.