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Judgments - Attorney General's Reference No 5 of 2002 (On Appeal from the Court of Appeal (Criminal Division))




Attorney General's Reference No 5 of 2002 (On Appeal from the Court of Appeal (Criminal Division))

[2004] UKHL 40


My Lords,

    1.  By this reference under section 36(1) of the Criminal Justice Act 1972 the Attorney General sought the opinion of the Court of Appeal on the correct construction of section 17(1) of the Regulation of Investigatory Powers Act 2000. Although the points of law which he referred were more elaborately expressed, the essential thrust of his questions was whether, and if so to what extent, a criminal court may investigate whether intercept material relied on by the Crown has been obtained by tapping a private as opposed to a public telecommunications system. The Court of Appeal (Clarke LJ, Morison J and Dame Heather Steel) considered the questions referred in considerable detail and accepted the argument advanced for the Attorney General: [2003] EWCA Crim 1632, [2003] 1 WLR 2902. The court however recognised the difficulty and complexity of the 2000 Act and exercised its power under section 36(3) of the 1972 Act to refer the Attorney General's questions to the House.

    2.  The acquittal which is necessary to trigger the Attorney General's power to refer under section 36(1) of the 1972 Act came about in this way. It was believed that Detective Sergeant W and two other police officers were supplying confidential and sensitive information to a known criminal, C, and that W had provided sensitive and confidential information to another man, L, and also to journalists. On 30 May 1996 the chief constable of the force to which W and the other officers belonged gave his consent in writing for the interception of communications to take place on a number of telephone extensions used by W and others. It is agreed between counsel that the telephone system used to make the interceptions was a system which linked several police stations and which comprised several Private Automated Branch Exchanges linked together via BT Megastream lines, which were component parts of the public telecommunications system operated by BT under licence from the Secretary of State pursuant to section 9 of the Telecommunications Act 1984. The equipment used to carry out the interception was a system known as "Dial Up" which worked in the following way. A telephone call received on or made from the telephones in question activated the interception equipment. The interception equipment created a duplicate call which was relayed through a BT telephone line to another police station where equipment capable of recording the calls had been installed. The telephone calls were thus monitored and recorded.

    3.  The product of this interception confirmed the suspicion that W was supplying information of a confidential and sensitive nature to persons who had no entitlement to receive it. The interception continued until 21 June 1997 and the three officers and C were prosecuted in reliance on the material thus obtained. An indictment was preferred, charging all the defendants (in count 1) with conspiring to commit misconduct in a public office. Additional counts alleging misconduct in public office were laid against W alone.

    4.  The prosecution case at trial was that the interceptions had taken place within a private telecommunications system, and it served evidence on the defence before the trial to prove that fact. The defence case was that the interception had taken place on a public telecommunications system. At the trial in May 2002, before the prosecution evidence had been called, the defence submitted that section 17 of the 2000 Act prevented any investigation into the circumstances of the interception and, in particular, into whether the interception had taken place on the public side of the telecommunications system. Having heard argument, the judge ruled that section 17 prevented the defence from asserting that the interception had taken place on the public side of the system, although it did not prevent the prosecution from adducing evidence that it had taken place on the private side. The defence then submitted that the judge should exclude the prosecution evidence that the interception had taken place within a private telecommunications system under section 78 of the Police and Criminal Evidence Act 1984, since it would not be fair to admit that evidence and shut out the defence case that it had taken place on the public side of such a system. To this submission the judge acceded. This obliged the prosecution to offer no evidence, with the result that W and his co-defendants were acquitted on the judge's direction.

    5.  It is unnecessary to trace the history of official interception in the United Kingdom before 1985, which is uncontroversial and has been summarised on other occasions: see, for example, R v Preston [1994] 2 AC 130, 142, 147-148; R v P [2002] 1 AC 146, 155-157; The Interception of Communications in the United Kingdom (Cmnd 9438, 1985). It is enough to draw attention to four features of the practice as it then existed. First, telephones had for many years been tapped, and mail intercepted, pursuant to warrants issued by an appropriate secretary of state. Secondly, in cases culminating in criminal prosecution the tap or intercept was used for purposes of preventing and detecting crime, and not for the purpose of prosecuting culprits: the product of the tap or intercept was not relied on as evidence. Thirdly, there was no rule of law or practice which rendered inadmissible in criminal proceedings the product of any unofficial or private eavesdropping activity. While a trial judge might exclude such evidence in the exercise of his overriding discretion to ensure the fairness of a trial, he would not in the absence of special circumstances have been at all likely to do so. Fourthly, the process of interception, by whatever means, official or unofficial, of communications, whether public or private, was wholly unregulated by statute.

    6.  It was this last feature of the prevailing practice which led the European Court of Human Rights to hold, in the context of warranted police tapping of Mr Malone's telephone, that the interference with his right to privacy which the facts disclosed was not, as required by article 8 of the European Convention, "in accordance with the law": Malone v United Kingdom (1984) 7 EHRR 14. This adverse finding obliged the United Kingdom under articles 1 and 46 of the Convention to secure the protection of article 8 rights to all within its jurisdiction and to abide by the judgment. This it sought to do by enacting the Interception of Communications Act 1985. It is unnecessary for present purposes to cite the detailed provisions of that Act, but certain cardinal features of it should be noted. First, the United Kingdom did not respond to the adverse decision in Malone by enacting a comprehensive scheme to regulate the whole field of interception. The scheme embodied in the 1985 Act was directed to interception which was or should have been warranted, such as Mr Malone had successfully challenged. Thus section 1 of the Act made it an offence to intercept, intentionally, a communication in the course of its transmission by post or by means of a public telecommunication system (subject to an exception in section 1(3)), but the Act did not address interception otherwise than within the post or such a system. Secondly, the Act preserved the existing practice for issuing interception warrants by an appropriate secretary of state. The practice was very greatly formalised, and detailed provisions were made to govern the issue, form, contents, duration and effect of warrants, to provide for access to a tribunal to resolve complaints and to provide for retrospective judicial invigilation of the new practice. But it was a reform of the old warrant regime in order to comply with the Strasbourg decision, not the establishment of a new regime. Thirdly, it remained the rule that, in the context of criminal activity, interception was to be an instrument of prevention and detection, not an instrument of prosecution. This was made clear by section 2(2)(b) of the Act which, in the criminal field, empowered a secretary of state to issue a warrant only if he judged it to be necessary "for the purpose of preventing or detecting serious crime", and by section 6(3) which required destruction of the interception product as soon as its retention was no longer necessary for that purpose. Fourthly, the Act was drafted in terms plainly intended to preclude any forensic enquiry into any aspect of the procedure of applying for or giving effect to warrants. This was made clear by section 9 of the Act, the terms of which must be quoted. As enacted, the section read:

    "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; 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;

      (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."

The prohibition in subsection (1) applied both to interception which had been duly warranted and to interception which should have been duly warranted but had not, if in either case any person within subsection (2) had been involved. The obvious purpose of this prohibition was to preserve the secrecy of what had, to be effective, to be a covert operation.

    7.  These last two features of the regime established by the 1985 Act have been judicially recognised on a number of occasions: see, for example, R v Preston [1994] 2 AC 130, 143-144, 167-168, 170; Morgans v Director of Public Prosecutions [2001] 1 AC 315, 321, 337-339; R v Sargent [2001] UKHL 54, [2003] 1 AC 347, para 28; R v P [2002] 1 AC 146, 163-164. As Lord Hobhouse of Woodborough said in the last cited case, page 164,

    " … the dominant principle guiding the interpretation of the provisions of the [1985] Act was the policy of preserving the secrecy of the surveillance operations to which the Act applied and, to that end, preventing as far as possible any evidence relating to such operations ever reaching the public domain".

He added, pages 165-166:

    "In this country it is, in the judgment of the Government, the necessity to have a fully effective interception system which creates the necessity for secrecy and consequently the need to keep the evidence of it out of the public domain. But where secrecy is not required, the necessity is that all relevant and probative evidence be available to assist in the apprehension and conviction of criminals and to ensure that their trial is fair. The latter necessity exists in both cases but in the former case it is trumped by the greater necessity for secrecy, as the speeches in R v Preston [1994] 2 AC 130 explain".

    8.  Following enactment of the 1985 Act, the courts were more than once called upon to consider whether evidence on which it was sought to rely was the product of interception of a public or private telecommunications system: see R v Ahmed (Court of Appeal, 29 March 1994, unreported); R v Effik [1995] 1 AC 309, 314. The focus of the enquiry in the latter of these cases is shown by the ruling of Lord Oliver of Aylmerton, with which all members of the committee agreed (page 317):

    "Once again, one sees the emphasis on the duty of the person running the public system and the transmission through that system.

    My Lords, in the light of these statutory provisions, I do not, for my part, entertain any doubt that the trial judge was right in concluding that the Geemarc cordless telephone used by Miss Sumer was a privately run system. The apparatus was clearly not 'comprised in' the public British Telecommunications system although it was connected to it by means of the socket at which, on the judges' finding, that system ended. A communication through a telecommunication system consists of a series of electronic impulses and what was actually intercepted by the use of the police officers' radio receiver consisted of the impulses transmitted between the base unit and the handset, both of which formed part of a telecommunication system 'run' by Miss Sumer (Act of 1983, section 4(2)) but formed no part of the public telecommunication system run by British Telecommunications."

In none of these cases does it appear to have been suggested that the enquiry whether the system was public or private was one which should not, or could not, be carried out.

    9.  The United Kingdom suffered a further reverse in the European Court of Human Rights in Halford v United Kingdom (1997) 24 EHRR 523. On this occasion the successful challenge related not to warranted interception of a public telecommunications system but to unwarranted interception by the police of a senior police officer's office telephone. But the outcome was very much the same. It was held that the interception, being wholly unregulated by statute, was not "in accordance with the law" and was thus an interference with the officer's article 8(1) right not saved by article 8(2). Thus the need for statutory intervention again arose, this time of unwarranted interception. It might, no doubt, have been decided to introduce a measure designed simply to provide the statutory regulation which had been found to be lacking in Halford. But the years since 1985 had been a time of rapid technological advance in the telecommunications field, and had moreover seen a proliferation of commercial service providers in the postal and telecommunications field which had formerly been the preserve of public monopoly providers. So the decision was made to introduce a measure, which became the 2000 Act, covering (in Chapter I) the whole field of interception, and also regulating other forms of surveillance. Chapter I was drafted to apply to postal as well as telecommunications services; to public as well as private systems; to interception requiring the issue of a warrant as well as interception not requiring such a warrant; to warrants requiring to be certified and warrants not requiring certification; to interception outside the United Kingdom as well as within it; to civil remedies as well as criminal liability. The draftsman faced a daunting task. If, however, as Lord Mustill suggested in R v Preston [1994] 2 AC 130, 148, the 1985 Act was a "short but difficult statute", the 2000 Act is both longer and even more perplexing. The trial judge and the Court of Appeal found it difficult to construe the provisions of the Act with confidence, and the House has experienced the same difficulty.

    10.  In seeking to overcome these problems, it is in my opinion helpful to begin by recognising the objects which, as I think plainly, Parliament was seeking to achieve in Chapter 1 of this Act. First of all, it was seeking to make good the deficiency identified in Halford by regulating the tapping of private telephones. It did not do so by prohibiting such interception altogether. The European Court in Halford had not held such a prohibition to be necessary: see paragraph 49 of its judgment. But it was necessary that such interception by a public authority should be regulated by law, and it was also necessary for the subject of such interception, if it was unjustified, to have a civil remedy. This was provided by section 1(3) of the Act, which read:

    "(3) Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either -

      (a) an interception of that communication in the course of its transmission by means of that private system; or

      (b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system."

    11.  Secondly, and for present purposes less importantly, the 2000 Act attempted to provide for past and continuing technological advance in the telecommunications field. Whereas the 1985 Act had offered no definition of interception, the 2000 Act did so in section 2(2).

    12.  Thirdly, the 2000 Act made express provision for private as well as public service providers. This was evidenced by use of the expressions, defined in section 2(1), "postal service", "public postal service", "private telecommunication system", "public telecommunications service" and "public telecommunication system."

    13.  Fourthly, sections 5-11 and 15 of the 2000 Act preserved all the essential features of the regime established by the 1985 Act for the issue of warrants by a secretary of state. Section 65 established a Tribunal with greatly enlarged jurisdiction as compared with that established under the 1985 Act, but the new Tribunal was still to have jurisdiction to entertain complaints about conduct for or in connection with the interception of communications in the course of their transmission by means of a postal service or telecommunication system. There was still to be a judicial invigilator of the interception process: section 57 of the 2000 Act.

    14.  There are three further points, all of them negative, but all of them in my opinion very important, which should guide the construction of the 2000 Act. First, there is nothing whatever which suggests an intention to depart from the principle that the issue of warrants by a secretary of state and all matters pertaining to such warrants should not be the subject of enquiry in the course of a criminal trial. Secondly, there was nothing in the 2000 Act, nor in the consultation paper which preceded it (Interception of Communications in the United Kingdom, Cm 4368, 1999), nor in the Hansard references to which the House was referred, which questioned or threw doubt on the decisions in R v Ahmed and R v Effik (see paragraph 8 above) in which the court had examined whether an interception had been made within a public or a private system. Since the 2000 Act was passed, there have been further Court of Appeal decisions in which the same enquiry has been conducted: R v Allan [2001] EWCA Crim 1027 (6 April 2001, unreported); R v Goodman [2002] EWCA Crim 903 (4 March 2002, unreported). Thirdly, there is nothing in the 2000 Act or in any other materials the House has been shown to suggest a parliamentary intention to render inadmissible as evidence in criminal proceedings any material which had previously been admissible, save to the extent explained in paragraph 20 below. As already shown, the United Kingdom practice has been to exclude the product of warranted interception from the public domain and thus to preclude its use as evidence. But this has been a policy choice, not a requirement compelled by the Convention, and other countries have made a different policy choice. Article 8(2) of the European Convention permits necessary and proportionate interference with the right guaranteed in article 8(1) if in accordance with the law and if in the interests of national security, public safety, the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals or the protection of the rights and freedoms of others. Save where necessary to preserve the security of warranted interception, there is no reason why it should have been sought to exclude the product of any lawful interception where relevant as evidence in any case whether civil or criminal.

    15.  Section 1(1) of the 2000 Act re-enacts, with immaterial differences of language, the offence created by section 1(1) of the 1985 Act of intentionally and without lawful authority intercepting in the United Kingdom any communication in the course of its transmission by means of a public postal service or a public telecommunication system. Lawful authority derives from a warrant duly issued by a secretary of state under section 5. Section 1 continues:

    "(2)  It shall be an offence for a person -

      (a) intentionally and without lawful authority, and

      (b) otherwise than in circumstances in which his conduct is excluded by subsection (6) from criminal liability under this subsection,

    to intercept, at any place in the United Kingdom, any communication in the course of its transmission by means of a private telecommunication system".

This subsection is of course new, as is the subsection on civil liability, quoted in paragraph 10 above, which follows. The references to lawful authority and exclusion from criminal liability are clarified in subsections (5) and (6):

    "(5)  Conduct has lawful authority for the purposes of this section if, and only if -

      (a) it is authorised by or under section 3 or 4;

      (b) it takes place in accordance with a warrant under section 5 ('an interception warrant'); or

      (c) it is in exercise, in relation to any stored communication, of any statutory power that is exercised (apart from this section) for the purpose of obtaining information or of taking possession of any document or other property;

    and conduct (whether or not prohibited by this section) which has lawful authority for the purposes of this section by virtue of paragraph (a) or (b) shall also be taken to be lawful for all other purposes.

    (6) The circumstances in which a person makes an interception of a communication in the course of its transmission by means of a private telecommunication system are such that his conduct is excluded from criminal liability under subsection (2) if -

      (a) he is a person with a right to control the operation or the use of the system; or

      (b) he has the express or implied consent of such a person to make the interception."

    16.  The first source of lawful authority to tap a private telecommunication system is defined in section 3, which so far as material provides:

    "(1)  Conduct by any person consisting in the interception of a communication is authorised by this section if the communication is one which, or which that person has reasonable grounds for believing, is both -

      (a) a communication sent by a person who has consented to the interception; and

      (b) a communication the intended recipient of which has so consented.

    (2) Conduct by any person consisting in the interception of a communication is authorised by this section if -

      (a) the communication is one sent by, or intended for, a person who has consented to the interception; and

      (b) surveillance by means of that interception has been authorised under Part II.

    (3) Conduct consisting in the interception of a communication is authorised by this section if -

      (a) it is conduct by or on behalf of a person who provides a postal service or a telecommunications service; and

      (b) it takes place for purposes connected with the provision or operation of that service or with the enforcement, in relation to that service, of any enactment relating to the use of postal services or telecommunications services.

The last of these subsections reproduces the effect (although not the language) of section 1(3)(a) of the 1985 Act, the subject matter of which was considered in depth by the House in Morgans v Director of Pubic Prosecutions [2001] 1 AC 315, without any suggestion that this was a subject matter into which it could not enquire.

    17.  The second source of lawful authority to tap a private, domestic, telecommunication system is defined in section 4(2) and (3), which provide:

    "(2) Subject to subsection (3), the Secretary of State may by regulations authorise any such conduct described in the regulations as appears to him to constitute a legitimate practice reasonably required for the purpose, in connection with the carrying on of any business, of monitoring or keeping a record of -

      (a) communications by means of which transactions are entered into in the course of that business; or

      (b) other communications relating to that business or taking place in the course of its being carried on.

      (3) Nothing in any regulations under subsection (2) shall authorise the interception of any communication except in the course of its transmission using apparatus or services provided by or to the person carrying on the business for use wholly or partly in connection with that business."

In subsection (7), "business" is defined to include any activities of a government department, or any public authority, or any person or office holder on whom functions are conferred by or under any enactment. The section makes special provision for the authorisation of conduct taking place in prisons, high security hospitals and certain Scottish hospitals. Plainly, the provisions of this section are apt to permit an employer to monitor such matters as insider-dealing, money-laundering or compliance with regulatory requirements.