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|Judgments - Morgans v. Director of Public Prosecutions (On Appeal from a Divisional Court of The Queen's Bench Division)
HOUSE OF LORDS
Lord Nicholls of Birkenhead Lord Mackay of Clashfern Lord Steyn Lord Hope of Craighead Lord Clyde
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
DIRECTOR OF PUBLIC PROSECUTIONS
(ON APPEAL FROM A DIVISIONAL COURT OF THE QUEEN'S BENCH DIVISION)
ON 17 FEBRUARY 2000
LORD NICHOLLS OF BIRKENHEAD
I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Mackay of Clashfern and Lord Hope of Craighead. For the reasons they give I would allow this appeal.
LORD MACKAY OF CLASHFERN
I gratefully adopt the narrative and explanation of the issues in this case which is contained in the speech of my noble and learned friend, Lord Hope of Craighead, which I have had the advantage of reading in draft.
In view of the considerable importance of this case and its possible impact in other cases, I wish to add these observations.
The decision in this House in Reg. v. Preston  2 A.C. 130 was concerned with the question whether there was an obligation on the prosecutor to disclose to the defence material which had been obtained as a result of the interception of a telephone under a warrant issued by the Secretary of State under section 2 of the Interception of Communications Act 1985. The House unanimously reached the conclusion that section 2(2)(b) of the Act of 1985 "for the purpose of preventing or detecting serious crime" did not include the purpose of gathering evidence for criminal proceedings in respect of such crime. They held that the use of material gathered under warrant as evidence in such a prosecution was prohibited by the scheme of the Act including section 6 and section 9. In particular, section 9(1)(a) prohibited in any proceedings before any court or tribunal evidence being adduced which tended to suggest that a warrant had been issued. This prevented it being admitted as a matter of fact on which the court should proceed that a warrant had been issued and it also prevented evidence being adduced and questions in cross-examination being asked which in either case tended to suggest that an offence under section 1 of the 1985 Act had been, or was to be, committed by any of the persons listed in section 9 sub-section 2, being persons holding office under the Crown, the Post Office and any person engaged in the business of the Post Office, any public communications operator and any person engaged in the running of a public telecommunications system. In the course of their consideration of these issues the members of the House who took part in the decision were led to the view that the scheme of the Act in relation to warranted interceptions was intended to continue the previous practice and that no use in evidence of the product of such intercepts is permissible. In my opinion this conclusion carries with it the consequence that where a warrant has not been obtained and where the interception without a warrant would be unlawful the same consequence must apply. It would be quite extraordinary and unacceptable if the contents of an intercept which had been unlawfully made could be used, whereas the content of an intercept lawfully made could not.
This leaves for consideration the precise limits within which this scheme derived from the Act extends. In his speech in Preston after narrating the general prohibitions in section 1 of the 1985 Act Lord Mustill goes on, at page 149
This leads me to the conclusion that Lord Mustill, with whom the other members of the House agreed, did not have to consider whether the provisions of subsection (1)3 fell within the scheme which he later described. This is important in the present case since this appeal relates to two convictions of the appellant for offences contrary to section 42 of the Telecommunications Act 1984. However, it was conceded by the Crown in the Divisional Court that the interception that took place was not to detect telephone fraud but to "investigate a case of suspected computer hacking". And therefore in this case the Crown accepted that the interception was not for purposes connected with provision of postal or public telecommunications services or with the enforcement of any enactment relating to the use of those services, although the purpose of adducing the content of the intercepts was for the latter purpose. In consequence section 1(3) did not apply to it.
When following the decision of Malone v. United Kingdom (1984) 7 E.H.R.R. 14 in the European Court of Human Rights, it was decided to introduce legislation to provide a statutory authority for what had previously been done on the authority of Secretaries of State without such authority, the pre-existing system in relation to interception in the postal and public telecommunication services and with regard to the use of wireless telegraphy did not require to be provided for in a new way. Just to take one example, interception by staff of the Post Office who have authority to open postal packets in certain circumstances, for example under section 8(3) of the Post Office Act 1953 was a pre-existing statutory authority for interception. In my opinion therefore it is reasonable to conclude that the House in Preston was not concerned with matters covered under section 1(3). And therefore a construction of section 9 should be sought which gives effect to the limits of the scheme of the Act described, in particular, by Lord Mustill in Preston namely that the scheme described does not apply except to situations in which a warrant is required and where without it, the interception would be without statutory authority. The challenge is to find a construction of section 9 which would provide a workable boundary. The difficulty is that any discussion in evidence of the question whether a particular exception to section 1 applied would be in essence a discussion of whether or not the interception resulted from an offence under that section. I have reached the view that this is best dealt with by saying that in construing section 9, it should not apply where the proceedings are for the enforcement of any enactment relating to the use of postal or public telecommunications services or where the proceedings relate to a communication being transmitted by wireless telegraphy and the communication is intercepted by the authority of the Secretary of State.
In my view, some such restriction on the scope of section 9 is required to give effect to the obvious intention of Parliament to exempt from the new regime set up under the Act of 1985 the existing statutory arrangements for postal public telecommunications services and wireless telegraphy. However, it is possible as this case illustrates, that although proceedings are for the enforcement of one of these specified enactments the interception was not made for purposes connected with such enforcement but for some other purpose, in which case it would be right to allow that to be the subject of evidence and if it were demonstrated that the purpose was not connected with the enforcement of a specified enactment then the communication intercepted should not be admitted in evidence. I have not found it possible to propose a form of words to be implied in section 9 to accord with what I believe to be the true construction of the Act as a whole which would give effect to the exception in section 1(2)(b) since this could arise in any form of proceedings and therefore the discussion in evidence cannot be related to the form of the proceedings. If the prosecutor and the accused were agreed that the interception had been consented to, so as to bring the case within section 1(2)(b), I see no objection to evidence being led on the basis of that admission, since I do not consider that section 9 would prohibit that admission being made and once made section 9 would not have any residual application. However, if agreement between the prosecutor and the accused was not forthcoming I find it difficult to see how the question whether section 2(1)(b) applied could be explored in evidence without transgressing the provisions of section 9, and I can see no reasonable implication that can be formulated on section 9 to prevent this.
I should add that I entirely agree with my noble and learned friend that what has been founded on by the Crown in this case is a communication within the meaning of section 1 of the Act of 1985.
Subject to the views I have expressed on the scope of the decision in Preston, I agree with the reasoning of my noble and learned friend Lord Hope of Craighead and would allow this appeal.
In giving the judgment of the Court of Appeal (Criminal Division) in Reg. v. Effik (1992) 95 Cr. App. R. 427 I gave a restrictive interpretation to section 9 of the Interception of Communications Act 1985, by holding that it contains no provision making clear that any evidence obtained as a result of an interception will be inadmissible. Eight years later, aided by the incisive arguments of counsel in the present case, I have had an opportunity to re-examine the point. I am now fully persuaded that my earlier interpretation was wrong. And I agree with the speech of Lord Hope of Craighead. But it is appropriate, if only for the historical record, that I explain shortly the reasons for my conversion.
The starting point is the language of section 9 of the Act of 1985. I now accept that even if one concentrates only on the language of section 9 of the Act of 1985 the words "no evidence shall be adduced" are at least capable of amounting to a general provision that any evidence obtained as a result of any interception will be inadmissible. The second factor was lucidly and compellingly explained by Woolf L.J. (now Lord Woolf of Barnes, M.R.) in Reg. v. Preston (1992) 95 Cr. App R. 355. The point is that in practice "to lay the goundwork for material to be admissible in evidence the manner in which the material has been obtained will normally have to be given in evidence in court and this will in turn tend to suggest either an offence under section 1 has been committed or a warrant has been issued which therefore contravenes section 9": at 365. As Woolf L.J. observed this practical consideration would "other than possibly in the most exceptional case, prevent any material derived from an interception of the communication being adduced in evidence." This observation about the way in which the section would operate in the real world of trials tends to support a wider construction of section 9 of the Act of 1985. Thirdly, before the passing of the Act of 1985 the invariable practice was that material intercepted as a result of telephone-tapping was not used in evidence: see the White Paper on The Interception of Communications in the United Kingdom (1985) (Cmnd. 9438); Reg. v. Preston  2 A.C. 130, at 142F and 144B, per Lord Jauncey of Tullichettle. If Parliament in enacting the Act of 1985 had not intended the practice to continue one would have expected a clear provision to that effect. The importance of this contextual aid to the interpretation of section 9 was not considered by the Court of Appeal in Effik. In combination these three substantive factors demonstrate that my narrow interpretation of section 9 was wrong.
In any event, as a matter of precedent the issue appeared to be finally and comprehensively settled by the decision of the House of Lords in Reg. v. Preston  2 A.C. 130 in which the decision of the Court of Appeal (Criminal Division) in Effik was expressly overruled. But two decisions in the Court of Appeal have breathed new life into the decision in Effik. This result was achieved by holding that the House of Lords in Preston only overruled Effik to the extent that it related to warranted intercepts: Reg. v. Rasool  1 W.L.R. 1092 and Reg. v. Owen  1 W.L.R. 949. My Lords, this will not do. In the leading judgment by Lord Mustill in Preston, crafted with his customary clarity and precision, the overruling of Effik was expressly announced in general terms. In Cross and Harris, Precedent in English Law, 4th Edn., 127-128 it is stated:
The ratio decidendi of Effik was that section 9 does not contain a sufficiently clear provision for the exclusion of evidence of an interception, i.e. Effik did not differentiate between cases where a warrant was obtained or not. The decision of the House in Preston destroyed the foundation of this reasoning. It would, of course, have been possible for the House to hold that the ruling in Effik was wrong only in respect of warrant cases. But it did not do so. Like Lord Hope of Craighead I find the idea that Effik was only overruled in part quite implausible. Moreover, as counsel for the appellant rightly emphasised, it would have been remarkable if the House, by only overruling Effik in part, sanctioned the absurd distinction that any evidence obtained pursuant to a warrant is inadmissible but evidence obtained without a warrant is admissible. Rightly in the present case Kennedy L.J. observed that such a result would be "a somewhat astonishing state of affairs:" Morgans v. Director of Public Prosecutions  1 W.L.R. 968, at 977G. It is perfectly plain that the decisions in Rasool and Owen cannot stand and must be overruled.
I would allow the appeal.
LORD HOPE OF CRAIGHEAD
The appellant was convicted by the Bow Street Stipendiary Magistrate of five charges of obtaining unauthorised access to a computer system, contrary to section 1(1) of the Computer Misuse Act 1990 and two charges of fraudulent use of a telecommunications system, contrary to section 42 of the Telecommunications Act 1984. He appealed against his conviction to the Crown Court at Southwark, which dismissed his appeal. He then appealed by way of case stated to the Divisional Court. His appeal was allowed by the Divisional Court (Kennedy L.J. and Sullivan J.)  1 W.L.R. 968 in respect of all five charges under section 1(1) of the Computer Misuse Act 1990, on the ground that these charges had been brought against him when they were out of time. No appeal has been taken against that decision by the prosecutor. His appeal was dismissed in respect of the two charges under section 42 of the Telecommunications Act 1984.
The question in the appeal against his conviction on the charges under section 42 of the 1984 Act related to the admissibility of evidence resulting from the interception of telephone calls on which his conviction had been based. This is the matter which is now before your Lordships. It raises important questions as to the effect of the Interception of Communications Act 1985 on the admissibility of such evidence.
The charges which were brought against the appellant under section 42 of the Telecommunications Act 1984 alleged that on two occasions in July 1995 he dishonestly obtained a telephone service by means of a telecommunication system belonging to Mobil Data Services Ltd. with intent to avoid payment of the charge which was applicable. Section 42 of the 1984 Act provides that a person who dishonestly obtains a service provided by means of a licensed telecommunications system with intent to avoid payment of any charge applicable to the provision of that service shall be guilty of an offence. Prosecution for that offence may be summary or on indictment. In this case the offences which the appellant was said to have committed were prosecuted summarily.
In 1995 British Telecommunications plc (BT) were asked by the Computer Crime Unit of New Scotland Yard to provide assistance in connection with a case of suspected computer hacking. The appellant was suspected of using the telephone line provided to him by BT to obtain unauthorised access to the computer systems operated by a number of different companies. At that stage it was not suspected that he was engaged in telephone fraud, that is to say, the obtaining of telecommunication services without paying for them. Arrangements were made for a call logging device, called "Monolog," to be fitted to the appellant's telephone line at the telephone exchange. Its function was to log all the digits dialled on that line, whether manually or otherwise. The first device which was fitted developed a fault after a few days, so it was replaced by another one which remained in place until it was removed after about two months.
The information which these devices obtained was reproduced in the form of a printout. This showed (1) the time and date of the use of the telephone, (2) the duration of each call time and (3) the digits dialled, whether before or after connection to another telephone line. Information as to the time and date, the call time and the digits dialled before connection is recorded as a matter of course by BT for the purposes of rendering an account for the service to the subscriber. A significant feature of the Monolog device is that it is capable of recording the digits dialled after a connection has been made to another telephone line.
Three companies, Hogg Robinson Ltd., G.B.C. U.K. Ltd. and Mobil Data Services Ltd., provided computer generated printouts which recorded the operation of their computer controlled Meridien telecommunications networks for the relevant period. A comparison of these printouts with the printout of the information obtained by means of the Monolog showed that the appellant's telephone number was responsible for accessing the Meridien telecommunication networks of these companies. The Monolog showed that repeated attempts had been made to guess the personal identification number, or "PIN," that was needed to gain access to the part of the computer system that enabled authorised users to telephone an outside line at the expense of the company. There was evidence that, having identified the correct PIN, a caller was able to abuse the Meridien system by dialing into it without authority, listen in on messages which had been recorded on voice mail and make use of that part of the system which enabled authorised users to telephone outside lines free of charge. By linking the system to an 0800 number the caller was able to dial out free of charge to BT from his own telephone line. The appellant's telephone number had been used to make calls free of charge by means of this system to telephone numbers with the international dialling code for the Philippines.
The Crown Court had before it evidence from representatives of BT and each of the three companies whose computer systems had been accessed, all of whom were specialist telecommunications experts. They produced the computer generated printouts which enabled the Crown Court, with the assistance of another expert witness, to make findings of fact to the effect that the appellant's telephone number had been used to make numerous calls of significant length to the Philippines at the expense of the companies without incurring any charge on his own account with BT. These findings were based on a comparison of the printouts of the information which the Monolog had obtained by intercepting the digits dialled on the appellant's telephone and the printouts from the telephone networks of the three companies.
The appellant had admitted when he was interviewed by the police that he was the principal user of the telephone line and that he had scanned for 0800 numbers in order to search for free information from computers and to test out software. He said that he had been provided by a friend with a telephone number through which he could obtain discounted telephone calls and that, as his wife came from the Philippines, he had been making telephone calls at reduced charges to relatives there. He told the police that he stopped this practice when his BT telephone account showed that no charges at all had been made for the calls which he had made in the belief that they would be charged for at a discount. He repeated this explanation when he gave evidence, but the Crown Court held that he knew that his access to the Meridien systems was for the dishonest purpose of enabling him to avoid having to pay for the telephone calls.
The evidence which had been obtained by means of the fitting of the Monolog devices to the appellant's telephone line was an essential element in the case for the prosecutor. Without that evidence it would not have been possible for the Crown to prove that the telephone calls made free of charge to the user by means of the companies' Meridien systems had been made from the appellant's telephone number. At the outset of the hearing in the Crown Court a challenge was made to the admissibility of this evidence. It was argued that section 9 of the Interception of Communications Act 1985 prohibited the court from allowing in evidence the product of the intercept on the appellant's telephone line because to do so would be to adduce evidence which tended to suggest that that an offence had been committed under section 1 of the Act.
Subsections (1), (2) and (3) of section 1 of the Act of 1985 provide:
Subsections (1) (2) and (3) of section 9 of the Act are in these terms:
The expression "relevant office" is defined in subsection (4) of section 9. It includes various statutory offences relating to the interception and disclosure of postal and telecommunication messages. This is in contrast to the offences mentioned in section 1(3)(a), which relate to the use of these services.
The argument that section 9 of the Act of 1985 precluded the leading of this evidence was rejected by the Crown Court, which held that the evidence was admissible. In the case stated for consideration by the Divisional Court the following question (this was the first of three questions in the stated case, the other two of which are no longer in issue) was identified by the Crown Court:
The Divisional Court answered that question in the affirmative. It certified that the following points of law of general public importance were involved in the decision: