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Judgments - Regina v Sargent

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    27. For present purposes the important section is s.9:

"Exclusion of evidence

9.  (1) In any proceedings before any court or tribunal no evidence shall be adduced and no question in cross-examination shall be asked which (in either case) tends to suggest -

  (a) that an offence under section 1 above has been or is to be committed by any of the persons mentioned in subsection (2) below; or

    (b) that a warrant has been or is to be issued to any of those persons.

(2) The persons referred to in subsection (1) above are

(a) any person holding office under the Crown;

(b) the Post Office and any person engaged in the business of the Post Office; and

(c) any public telecommunications operator and any person engaged in the running of a public telecommunication system.

(3) Subsection (1) above does not apply

(a) in relation to proceedings for a relevant offence or proceedings before the Tribunal [established under the Act]; or  

(b) where the evidence is adduced or the question in cross-examination is asked for the purpose of establishing the fairness or unfairness of a dismissal on grounds of an offence under section 1 above or of conduct from which such an offence might be inferred;

and paragraph (a) of that subsection does not apply where a person has been convicted of the offence under that section.

(4) In this section "relevant offence" means

(a) an offence under section 1 above or under section 45 of the Telegraph Act 1863, section 20 of the Telegraph Act 1868, section 58 of the Post Office Act 1953 or section 45 of the 1984 Act

(b) an offence under section 1 or 2 of the Official Secrets Act 1911 relating to any sketch, plan, model, article, note, document or information which tends to suggest as mentioned in subsection (1) above;

(bb) an offence under section 4 of the Official Secrets Act 1989 relating to any such information, document or article as is mentioned in subsection (3)(a) of that section;  

(c) perjury committed in the course of proceedings for a relevant offence;

(d) attempting or conspiring to commit, or aiding, abetting, counselling or procuring the commission of, an offence falling within any of the preceding paragraphs; and

(e) contempt of court committed in the course of, or in relation to, proceedings for a relevant offence."

    28. This is a statutory provision which has the effect of excluding evidence which would otherwise be admissible under the principle in R v Sang [1980] AC 402 . It reflects the statutory policy of preserving secrecy identified in R v Preston [1994] 2 AC 130 and later cases (eg R v P [2001] 2 WLR 463). As Lord Mustill put it in Preston at p.170:

    "Parliament has grasped the nettle and put the interests of secrecy first."

It also has the indirect consequence of necessitating the exclusion of evidence of the results of the interception (Morgans v DPP [2001] AC 315 overruling R v Rasool [1997] 1 WLR 1092 and R v Owen [1999] 1 WLR 949). In Morgans, Lord Hope of Craighead, giving the leading speech, referred to the fact that the exclusions in s.9 and the necessity for a fair trial provided a strong indication that it had not been the intention of Parliament that evidence obtained by unlawful interceptions should be admissible. He said, at p.338:

    " … evidence of material obtained by the interception by the persons mentioned in s.9(2) of the Act of 1985 of communications of the kind described in s.1(1) of that Act, except for the purposes described in s.1(3), will always be inadmissible. It is not possible to say that s.9(1) of the Act provides this in express language. But, in the context of the Act as a whole, the prohibitions which it contains lead inexorably to that result. So I would hold that it has that effect by necessary implication."

    29. Therefore, unless the present case can be brought within one of the limitations to the operation of s.9(1), the evidence of Neil Page's telephone tap had to be excluded. The exclusion in s.9(1) is limited by the provisions of subsections (2) and (3). Under subsection (3) the exclusion does not apply to the giving of evidence in proceedings under s.1 of the Act or under a number of similar statutory provisions listed in subsection (4) nor to proceedings before the statutory tribunal constituted under s.7. Similarly, once a person has been convicted of the offence under s.1, the prohibition ceases to apply presumably because that means that the relevant facts have entered the public domain. These limitations do not apply to the present case because the prosecution of the Appellant was for an offence unrelated to any interception and because Neil had never been prosecuted for his offence under s.1, merely cautioned. That leaves subsection (2). This restricts the persons to whose involvement in the interception s.9(1) applies. The person has to fall within one of the three classes set out in s.9(2). Neil was not an officeholder under the Crown nor was he employed by or engaged in the business of the Post Office. The question is therefore whether he was a person engaged in the running of a public telecommunication system. It is not in dispute that Nynex's system was a public telecommunication system. It is also not in dispute that the question whether he was so engaged must be answered by reference to the time when he was committing the offence under s.1, ie intercepting the telephone call between the Appellant and Christine.

    30. The Court of Appeal held that what Neil did did fall outside s.9. Differing from the trial judge, Lord Bingham LCJ delivering the judgment of the court said:

    "It is argued by Mr McClure [counsel for the Appellant] that Mr Page fell within subsection (2), not as a telecommunications operator but as a person engaged in the running of a public telecommunication system. In our judgment that is not a sound argument, although the judge accepted it, because, as we construe the section, it is plain that subsection (2)(c) must refer to a person engaged in the running of a public telecommunication system acting as such. It has no reference, as we read the subsection, to a person like Mr Page acting entirely off his own bat for his own private purposes. Accordingly, on our reading of s.9, there is nothing to preclude the introduction into evidence of the product of an interception such as this." (emphasis supplied)

This approach adopts a criterion similar to scope of employment and the inclusion of the phrase "acting as such" (which I have emphasised) confirms this.

    31. There is a reference to the purpose for which the interception has been made in s.1(3)(a) already referred to. If the call had been intercepted for a purpose connected with the provision of a public telecommunication service, it would have not come within s.1 and no offence under that section would have been committed. The question in the present case under s.9 only arises because the intercept was for an alien purpose. S.9(2) is concerned with defining the three categories of persons to whom s.9(1) refers. It already presupposes that they have (or may have) committed an offence under s.1, ie that, where a public telecommunications employee is concerned, his purpose was not connected with the services which his employers provided. It is in this context that s.9(2)(b) and (c) have to be construed. The effect of the Court of Appeal's interpretation would be to confine these paragraphs to authorised acts of the employee done in the interests of his employer. This focus upon the act or conduct of the person both detracts from the force of s.1(3)(a) and conflicts with the drafting of s.9(2) which is concerned with categorising the person. The words "engaged in" denote the person's employment at the relevant time not whether he was acting within his authority.

    32. On the facts of the present case, on the morning of 28 July, Neil was at his place of work, engaged on doing his job, using his employer's equipment and having access there to the Nynex lines. There is no suggestion that what he did in putting a tester on to Christine's line and then monitoring it was not the same as or similar to the acts which he was ordinarily employed to do for his employers nor that they did not ordinarily form part of acts incidental to the provision of a public telecommunication system. What distinguished what he did that morning from what he did on other mornings was not what he did but his purpose in doing it; the acts were done for an unlawful and unauthorised purpose. But this does not alter the fact that he was that morning a person engaged in the running of a public telecommunication system. Sections 1 and 9 clearly contemplate and cover the misuse of an employee's position. Further the clear and express intent of s.9(1) is to exclude evidence which touches upon whether the person concerned was acting lawfully or not, that is to say, whether he was acting with lawful authority or not. The interpretation put on s.9(2) by the Court of Appeal would require the court to inquire into the lawfulness of the interceptor's conduct before deciding whether he was a person who came within s.9(2). Such an inquiry would expressly conflict with s.9(1). The interpretation adopted by the Court of Appeal cannot stand.

    33. On the facts of this case Neil was at the material time a person engaged in the business of running a public telecommunication system. He took advantage of the opportunity it gave to intercept the Appellant's communication with Christine contrary to s.1. The evidence of his having done so and the fruits of his interception were accordingly inadmissible under s.9(1) and the statute required that they be excluded from the evidence adduced at the trial. The Appellant was convicted in part on inadmissible evidence.

    34. At the trial the defence moved to exclude both the intercept evidence and the confessions in interview. Judge Lewis held that Neil was a person falling within s.9(2)(c). He did not have the advantage of the decision in Morgans. He therefore held that the exclusion of evidence did not extend to the fruits of the interception. There was nothing which made the interview confessions inadmissible. He considered the fairness of admitting the evidence and decided, in the exercise of his discretion under s.78, to allow the intercept and confession evidence to be given. In his summing up, the judge reminded the jury of this evidence.

    35. In the Court of Appeal, the question under s.9 was, as I have stated, decided in favour of the Crown. The remaining question for the Court of Appeal was therefore whether the evidence should be excluded on the ground of some rule of policy to be derived from the 1985 Act or human rights law or the common law or under s.78. The Court of Appeal upheld the judge's ruling that it was fair to admit the evidence.

    36. Before your Lordships' House the Appellant has argued that the Court of Appeal was wrong on both of the issues before it - both the narrower question under s.9 and the broader question of the exclusion of evidence on one or more of the grounds mentioned. The evidence upon which the Appellant was convicted included both the intercept and the interview. If the exclusion of the intercept should have led to the exclusion of the interview, or at least the incriminating parts of the interview, there would be no sufficient evidence to support the conviction of the Appellant and his appeal should clearly be allowed. It is therefore appropriate to refer briefly to the hypothetical situation of what the judge should have done about the interview evidence if he had ruled (as he should have done) that the intercept evidence was inadmissible. The interview transcript would have had to be edited so as to remove the direct and indirect references to the intercept. This could have been done. In my judgment what was then left could have been properly put before the jury. D.C. Hussey conducted the interview in essentially three sections. First he obtained the Appellant's accounts of his movements and his blanket denials of any involvement saying that he had known nothing of the incident until he had driven past Neil's house the following morning on his way to work and seen the burnt out car. Secondly, he told the Appellant of the arrest of Christine and the existence of the taped conversation and questioned the Appellant more closely as to his involvement in the incident, the Appellant making detailed and incriminating admissions. Finally, he took the Appellant through the transcript of the taped conversation obtaining confirmation of what the Appellant had said earlier in the interview. The incriminating admissions made during the second part of the interview were freestanding, although no doubt motivated by the Appellant's knowledge that he had incriminated himself during the telephone conversation. To exclude all reference to the telephone conversation would in no way have been adverse to the Appellant. There was no entrapment, oppression or deceit of the Appellant. No problem of non-disclosure arose. The Appellant clearly understood what had happened, that Neil had acted illegally and that the tape contained, as it did, a recording of the bulk of his telephone conversation the following morning with Christine. His case at the trial was that he had made the admissions to D.C. Hussey which he did because he was seeking to shield Christine not because they were true. Therefore, had the Judge appreciated that he must exclude the evidence of the intercept, he could have required the transcript of the interview to be edited accordingly and the oral evidence of Neil and D.C. Hussey to be similarly limited. In my judgment a fair trial would have been possible on that basis. The Judge was not required to exclude the evidence of the confessions made in interview.

    37. However that was not what occurred. The inadmissible evidence was admitted. The jury were therefore left with an almost unanswerable case against the Appellant. He had incriminated himself twice, once in the telephone conversation and a second time in interview. He could try to explain away what he said in interview by suggesting that he was trying to shield Christine but this provided no explanation for what he had said during the telephone conversation. The comment made by the judge during his summing up was inevitable:

    "Or, alternatively, as the prosecution say, as soon as the police revealed their knowledge of his telephone call with Christine Page and revealed the fact that it had been tape recorded, did he then realise, in effect, that the game was up and made admissions in the light of that knowledge?"

If the intercept evidence had been excluded, the jury would have heard of only one set of admissions, those made during the second part of the interview. The case against him would have still been strong and, it may be thought, would have been likely to have led to his conviction. But it is far from impossible that the exclusion of the intercept evidence would have enabled the defence case to be put more convincingly, perhaps with evidence from the Appellant himself, and might have enabled the defence to raise a doubt in the minds of the jury. In my judgment the evidence which was wrongly admitted was relevant and cogent. The statute required that it be excluded. The Appellant's trial cannot be said to have been in accordance with the law nor can it be said that his conviction was in the circumstances safe.

    38. It follows that the Appellant's appeal should be allowed and his conviction set aside. The answers to the certified questions have in substance been provided by earlier decisions of your Lordships' House. The exclusion of evidence required by s.9 of the Interception of Communications Act 1985 extend to the fruits of the interception as well as to the interception itself: Morgans v DPP (sup). The fact that an interception was unlawful does not itself preclude the use of the material so obtained; the criteria to be applied are those contained in s.78 of the Police and Criminal Evidence Act 1984: R v Khan [1997] 2 AC 558 and the same case in the European Court of Human Rights, Khan v United Kingdom (2000) 8 BHRC 310 and R v P (sup).

    39. I have had the advantage of reading the speech of my noble and learned friend Lord Hope of Craighead in which he gives his reasons for agreeing that the appeal should be allowed. I agree with what he says. As regards the submission of counsel for the Appellant that the unlawfulness of the intercept itself, ipso facto, meant that evidence could not have been given of the police interview, the submission was clearly unsound and contrary to established authority. Cases such as Sang and Khan (sup) decide that the use of illegally obtained material in the course of the investigation of a suspected crime does not, without more, render any evidence obtained as a result of such use inadmissible. As previously stated, s.78 (which has been upheld by the ECHR) provides the criterion for deciding whether to exclude such evidence. It requires the trial judge to assess the fairness of admitting it "having regard to all the circumstances, including the circumstances in which the evidence was obtained". Neither the inadmissibility of the intercept evidence nor the fact that it was obtained unlawfully would necessitate the exclusion of the interview evidence provided that its admission would not have such an adverse effect on the fairness of the proceedings that the judge ought not to admit it. This is the point I have discussed in paragraph 36 above.


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Prepared 25 October 2001