Unauthorised tapping into or hacking of mobile communications - Home Affairs Committee Contents

Correspondence from Director of Public Prosecutions to the Chair

During the course of my evidence to the Committee on 5 April, Mr Reckless MP asked me about the case of R (NTL Group Limited) v Ipswich Crown Court and another [2002] EWHC 1585 (Admin) ("the NTL case") and the analysis of that case as set out by me in my letter of 29 October 2010.

I undertook to provide a copy of the judgement[7] and to comment further on the analysis of it.

In that case, NTL had been served with a production order which required the company to carry out activity defined in section 2(2) of RIPA 20000 in respect of emails which had not been collected by their intended recipients. The company argued that the production order did not provide lawful authority for such activity, and therefore compliance with its terms would amount to an offence contrary to section 1(1). In analysing NTL's argument, Lord Woolf CJ stated that the activity NTL was required to carry out came within section 2(2) (and therefore within the offence creating provision in section 1(1)) by reason of the extended definition in section 2(7). Without that subsection, the communications in question, namely transmitted but uncollected emails stored on NTL's network were not to be regarded as being in the course of their transmission: paragraphs 17-18. Lord Woolf CJ then went on to state (at paragraph 19):

"Subsection (7) has the effect of extending the time of communication until the intended recipient has collected it. It is essential on the evidence in this case that if NTL are to preserve the material, they take action before the intended recipient has collected the email. Subsection (7) means that we are here concerned with what happens in the course of transmission."

Against that background, I have given further thought to the matter; my view is that the CPS' analysis is correct, namely that the judgement of Lord Woolf CJ appeared to suggest that once the intended recipient had collected the message, the communication was no longer in the course of transmission, and therefore there could be no interception and no offence committed under section 1.

With respect, Mr Reckless was in error when he said not once but twice, that the NTL case was concerned with emails which had already been read. In fact, the case concerned the converse position; it was because the emails could only be collected before they were read (because once they were read the system automatically overwrote them) that the issue had arisen for determination in this case.

It follows that the passage from my October letter (referred to above), with which Mr Reckless took issue, is legally accurate, and is consistent with both the CPS' analysis and the judgement of Lord Woolf.

15 April 2011

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