Attorney General's Reference (No 5 of 2002)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BINGHAM OF CORNHILL
Judgment Date14 Oct 2004
Neutral Citation[2004] UKHL 40

[2004] UKHL 40

HOUSE OF LORDS

LORD BINGHAM OF CORNHILL

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:

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.

  • "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)...

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    • 1 October 2007
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    ...Materials, 2ndedn (Sweet & Maxwell: London, 2006) 265–7.138 Mirfield, above n. 120.139 Attorney-General’s Reference (No. 5 of 2002) [2005] 1 AC 167 at 184, per Lord Nicholls.140 Ormerod and McKay, above n. 137 at 31.141 Ashworth, above n. 71.142 Ibid. at 725.143 I. Dennis, The Law of Ev......
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