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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