Attorney General's Reference No 5 of 2002 (On Appeal from the Court of Appeal (Criminal Division))
18. Section 17 of the 2000 Act, to which this reference by the Attorney General is directed, must be quoted in full. It provides:
Section 18, to which section 17(1) is expressed to be subject, provides for the disapplication or partial disapplication of section 17(1) in certain situations which need not for present purposes be examined. Subsections (4) and (5) of section 18 should, however, be noted:
19. These provisions plainly have the effect of excluding from the public domain in legal proceedings any product of any interception by a person falling within section 17(3) for which a warrant had been or should have been issued. If a warrant had not been obtained there would be an offence within subsection (2)(a). If it had, the matter would fall within subsection (2)(c), (d) or (e). In either event, the matter would fall within subsection (2) and therefore within the prohibition in section 17(1).
20. The inclusion in section 17(2) of an offence under section 1(2) of the Act poses an obvious problem of interpretation given the very sweeping language in which section 17(1) is expressed. The requirement in section 17(2)(a) that the conduct must be by a person falling within subsection (3), and the listing in that subsection of persons and bodies involved in the warrantry regime, strongly suggest that the focus of the prohibition is, as in the 1985 Act, on that regime. It is also relevant to recall that interception of a private telecommunication system is only criminal under section 1(2)(a) if without lawful authority and section 18(4) expressly provides that section 17(1)(a) shall not prohibit the disclosure of the contents of a communication if the interception of that communication was lawful by virtue of section 3 or section 4. In other words, disclosure is not prohibited if the interception was lawfully authorised under those sections. It would be absurd to conclude that there could be no enquiry to establish whether the interception was lawfully authorised or not, and whether or not the interceptor's conduct was excluded from criminal liability under section 1(6). In a civil claim under section 1(3) such an enquiry would be inevitable. Given the obvious public interest in admitting probative evidence which satisfies the requirements of sections 1(6), 3 and 4, and the absence of any public interest in excluding it, I am satisfied that a court may properly enquire whether the interception was of a public or private system and, if the latter, whether the interception was lawful. If the court concludes that it was public, that is the end of the enquiry. If the court concludes that it was private but unlawful, that also will be the end of the enquiry. If it was private but lawful, the court may (subject to any other argument there may be) admit the evidence.
21. This construction is, in my opinion, strongly supported by the Explanatory Notes issued on the 2000 Act following its receipt of the Royal Assent in July 2000. That reference may properly be made to such material as an aid to construction of a Bill was established in R (S) v Chief Constable of the South Yorkshire Police  UKHL 39,  1 WLR 2196, 2199-2200, para 4, following R (Westminster City Council) v National Asylum Support Service  UKHL 38,  1 WLR 2956, 2957-2959, paras 2-6, and I have no reason to think that these Explanatory Notes on the Act differed from those on the Bill. The commentary on section 17 reads:
The note on section 18(4) provides:
22. In the case of W the interception took place before the passing of the 2000 Act and the trial took place after it. This affected the questions referred by the Attorney General which, as amended during argument in the Court of Appeal, were these:
To the first two questions the Court of Appeal answered No, and I agree with those answers. To question 3(a) it answered Yes, and again I agree. To question 3(b) it answered "Yes, subject to the facts of a particular case". While I am unsure that the qualification is really necessary, I would accept this answer also. On each of these points, I agree with the opinion of all my noble and learned friends.
LORD NICHOLLS OF BIRKENHEAD
23. I agree with the views expressed by all your Lordships. The problem arises out of section 17 of the Regulation of Investigatory Powers Act 2000. The basic object of this provision appears to be to preserve the secrecy of the warrant system. Section 17(1) seeks to achieve this object by excluding evidence on several points. It excludes evidence tending to suggest that an interception warrant has been issued. It also excludes evidence tending to suggest that the police or other persons listed in section 17(3) have committed an offence under section 1(1) or (2) by making an intercept without lawful authority.
24. This latter provision is widely drawn. Indeed, if section 17 were to stand alone it would apply too widely. It would apply to cases where the warrant system was not in any way involved in obtaining the intercept. Interception pursuant to a warrant issued under section 5 is only one of the circumstances where a person may have lawful authority to intercept a communication. Interception may also be authorised under sections 3 or 4 of the Act, or section 1(5)(c).
25. Take a case where the prosecution assert that both the sender and the intended recipient agreed to the interception, as envisaged by section 3(1). Court investigation of whether that was the position and, if it was, disclosure in court of the contents of the intercept would not damage the warrant system. It would not damage the warrant system even if a challenge by the defendant to the assertion that the interception was authorised under section 3(1) suggested that an offence had been committed under section 1(1) or (2).
26. So section 18(4) cuts down the width of section 17 in such cases. Section 17(1)(a) does not prohibit disclosure of the contents of a communication if interception was lawful by virtue of section 1(5)(c), 3 or 4. Section 18(5) takes the further, consequential step of permitting the doing of anything in legal proceedings relating to the question whether disclosure was authorised on one of those grounds. This enables the defendant to have a proper opportunity to test the prosecution evidence that the interception was duly authorised as alleged.
27. Thus far there is no difficulty. The difficulty which has arisen concerns other ingredients of the offence created by section 1(2). No offence is committed under section 1(2) if the interception is in course of transmission by a private telecommunication system and the interception was made by the person in charge of the system ('with a right to control the operation or the use of the system') or with his consent: section 1(2), (6). The question which arises is this: if the prosecution seeks to give evidence of the contents of an intercept as properly admissible on the basis that the interception was of a communication in the course of transmission by means of a private telecommunication system carried out with the consent of the person in charge of that system, can the defence advance a case that the place where the intercept occurred was part of a public telecommunication system even though this might involve the suggestion that an offence had been committed under section 1(1) by a person mentioned in section 17(3)?
28. Like all your Lordships I am in no doubt that the answer to this question is 'yes'. Investigating this issue, essential to the conduct of a fair trial, would not imperil the secrecy of the warrant system. Investigation of the 'lawful authority' grounds specified in section 1(5)(c), 3 or 4, essential to a fair trial when those issues are raised, would not imperil the secrecy of the warrant system, and Parliament has expressly cut down the width of section 17 to enable such an investigation to take place. The Act makes no comparable provision on the point now under consideration but it is impossible to suppose Parliament intended the position should be different. The rationale underlying the exclusionary provision in section 17 is as much absent in the case now under consideration as it is in the 'lawful authority' instances mentioned in sections 1(5)(c), 3 and 4. Section 17 must therefore be interpreted as inapplicable as much in the type of case now under consideration as it is in the cases specifically mentioned in section 18(4). Any other result would lack rational justification. It would serve no useful purpose, and would have the bizarre effect of rendering the offence-creating provision of section 1(2) nugatory in circumstances where disclosure would not jeopardise the operation of the warrant system. It would also make the civil liability provision in section 1(3) unworkable. A statute should be interpreted so as to avoid such results if at all possible. I would therefore answer the questions raised by the Attorney General in the way proposed by my noble and learned friend Lord Bingham of Cornhill.
29. The Regulation of Investigatory Powers Act 2000 is not easy to understand. On the other hand, there is a foothold or two to which one can cling in regard to the central question posed by the Attorney General, viz whether a court may investigate whether intercept material relied on by the Crown has been obtained by tapping a private as opposed to a public telecommunication system.
30. For my part, the critical matter is that explained in para 14 of the opinion of my noble and learned friend Lord Bingham of Cornhill. Before the statute of 2000 was enacted the clear understanding was that a court may examine whether an interception was made within a public or private system. Of course, Parliament could have legislated to place such an examination beyond the power of the court. If that had been intended, one would have expected the structure and scheme of the 2000 Act to have made that crystal clear. Neither the text of the 2000 Act, nor any of the external aids to its construction, give any indication that such a radical change of policy was intended.
31. It is true, as Lord Bingham has pointed out, that the inclusion in section 17(2) of an offence under section 1(2) of the Act creates a linguistic difficulty given the language in which section 17(1) is expressed. In my view, however, this point is decisively outweighed by a purposive interpretation of the statute. No explanation for resorting to purposive interpretation of a statute is necessary. One can confidently assume that Parliament intends its legislation to be interpreted not in the way of a black letter lawyer, but in a meaningful and purposive way giving effect to the basic objectives of the legislation. So approached the answer to the central question is obvious: a court may enquire into the question whether tapping took place on a private system.
32. I am in full agreement with the opinion of Lord Bingham. I would answer the Attorney General's questions as Lord Bingham proposes.
LORD HOPE OF CRAIGHEAD
33. The crux of the problem that your Lordships have been asked to resolve in this case is to be found by comparing section 1(6) with section 18(4) of the Regulation of Investigatory Powers Act 2000. Section 1(2) of the Act creates a new offence, which is the unlawful interception of a communication in the course of its transmission by means of a private telecommunication system. With this in mind, section 1(6) provides:
Section 18(4) provides:
34. Section 17(1)(b) of the Act provides that, subject to section 18, no evidence shall be adduced, question asked, assertion or disclosure made or other thing done in, for the purposes of or in connection with any legal proceedings which tends to suggest that anything falling within subsection (2) of that section has or may have occurred or be going to occur. The conduct referred to in section 17(2) includes conduct that was or would be an offence under section 1(2). Section 18 provides a list of exceptions to the prohibitions that are set out in section 17(1). Absent from that list is a reference to section 1(6). As has been shown, section 1(6) is not mentioned in section 18(4). That is however where a reference to this subsection might have been expected. Nowhere else is it provided in terms by the Act that an interception of a communication without a warrant in the course of its transmission by a private telecommunication system by a person with the right to control that system or with the express or implied consent of such a person is lawful. The furthest the Act goes is to provide in section 1(6) that an interception in these circumstances is excluded from criminal liability.
35. Mr Roberts QC for the acquitted person submits that the Act is so carefully drawn that the list of exceptions in section 18 must be treated as comprehensive. He points out that nowhere in the Act is the situation that has arisen in this case provided for. The place where one would expect that provision to have been made, he says, is section 18(4). But there is no reference there to section 1(6) and, when it is read on its own, all section 1(6) does is provide a defence to a criminal prosecution. It does not provide that an interception in the circumstances which it describes is to be regarded for all purposes as lawful. It could not, of course, go that far. That would be to preserve the defect in the pre-existing system of statutory control that was identified in Halford v United Kingdom (1997) 24 EHRR 523. That defect has been remedied by section 1(3). That subsection provides that an interception in the circumstances which it describes which is made without lawful authority shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication. The conclusion must be that it would not have been consistent with the way in which the Act has been drafted to include section 1(6) in the list of exceptions that section 18(4) sets out.
36. The question then is whether what Steyn LJ helpfully described in R v Effick (1992) 95 Cr App R 427, 432 as "the forbidden territory" is drawn in this Act in such a fashion as to preclude any evidence being adduced or question asked in order to ascertain whether a telecommunication system which has been used to transmit a communication that has been intercepted is a public or a private telecommunication system. One has only to look at section 1(3)(a) to see that there can be only one answer to that question. As Mr Perry for the Attorney General was right to point out, the question whether the interception of the communication with the consent of a person having the right to control the operation or use of a private telecommunication system was made in the course of its transmission by means of the private system must be capable of being explored in the civil proceedings which are provided for by that subsection. Otherwise the mere assertion that the system was a public and not a private system would defeat the right of action. The Act does not say in terms that this is a question that can be explored in evidence in these proceedings, and the absence of a reference in section 18 to section 1(3) in its list of exceptions to section 17 might be said, if Mr Roberts is right, to indicate that this is prohibited. But it is plain that the question must be capable of being explored in evidence if effect is to be given to section 1(3).
37. One answer to the problem which this case raises, therefore, might be to say that a rectifying construction should be given to the Act of the kind described by Lord Herschell LC in Institute of Patent Agents v Lockwood  AC 347, 360, when he said:
But I do not think that it is necessary to go that far. The statute does not in terms prohibit the line of questioning that was sought to be developed in this case. On the contrary, section 1(3) opens the door to it in civil proceedings. And, if the door is open in civil proceedings, why should it not be open in criminal proceedings too in a case where the question whether the communication was by means of a public or a private telecommunication system is a relevant question?
38. In Morgans v Director of Public Prosecutions  1 AC 315 Lord Mackay of Clashfern explored the problem of reconciling the prohibition in section 9 of the Interception of Communications Act 1985 with the exception to the offence created by section 1(1) of that Act which was set out in section 1(3). He said, at pp 319-320, that a construction of section 9 should be sought which gave effect to the limits of the scheme of the Act described by Lord Mustill in R v Preston  2 AC 130, namely that the scheme described did not apply except to situations in which a warrant was required and where, without it, the interception would be without statutory authority:
39. The particular problem which Lord Mackay was discussing in Morgans has been dealt with expressly by section 18(4) of the 2000 Act, which provides that section 17(1)(a) - which has replaced section 9(1) of the 1985 Act - shall not prohibit the disclosure of any of the contents of a communication if the interception of that communication was lawful by virtue of sections 1(5)(c), 3 or 4. Section 3(3) authorises the interception when it takes place for a purpose associated with the provision or operation of a telecommunications service. It puts that material expressly into the permitted territory. But the way in which Lord Mackay solved the problem is, I believe, open to your Lordships in this case also. That was the view of the Court of Appeal, and I too would adopt it: see  1 WLR 2902, 2928, paras 93-95.
40. The forbidden territory is now much more closely and carefully defined by the 2000 Act than it was by the 1985 Act. Nevertheless I think that a workable boundary between what is forbidden and what is not can be said to exist where the only questions to be explored in evidence are whether a telecommunication system is a public or a private telecommunication system and, if so, whether the interception was made by or with the consent of the person with the right to control the operation or use of that system: see section 1(6). These, plainly, are questions that can be explored as a defence to a prosecution under section 1(2) of the Act, and as has already been said the question whether the telecommunication system was a private system must be capable of being explored if effect is to be given in civil proceedings to the remedy which is provided by section 1(3). So it cannot be said to be contrary to the policy of the Act to hold that these questions are outside the forbidden territory. The policy of the Act, as the conduct referred to in section 17(2) and the list of the persons referred to in section 17(3) indicate, is to regulate and protect the surveillance process. It will not be impeded by permitting evidence to be adduced or questions asked and answered simply in order to ascertain whether a particular telecommunication system is a public or a private system in any proceedings in which an answer to that question is relevant.
41. For these reasons, and those in the speech of my noble and learned friend Lord Bingham of Cornhill with which I am in full agreement, I too would answer the questions referred by the Attorney General as Lord Bingham proposes.
LORD WALKER OF GESTINGTHORPE
42. I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Bingham of Cornhill. I agree with it and for the reasons which Lord Bingham gives I would answer the Attorney General's questions as he proposes.
43. I add one brief footnote to the problem of why section 17(2)(a) of the Regulation of Investigatory Powers Act 2000 ("the Act") refers to an offence under section 1(2) (as well to an offence under section 1(1)) of the Act. By section 5(1)(a) of the Act the Secretary of State may issue a warrant for interception of communications transmitted by means of a private telecommunication system (see the definitions in section 2(1)). The House was told that such action would be very unusual, if not unprecedented, but it is at least a theoretical possibility.