Gordon Newbold v The Commissioner of Police

JurisdictionUK Non-devolved
JudgeLord Mance
Judgment Date16 April 2014
Neutral Citation[2014] UKPC 12
Date16 April 2014
Docket NumberAppeal Nos 0034, 0035, 0036, 0037 and 0059 of 2011
CourtPrivy Council
Gordon Newbold
(Appellant)
and
The Commissioner of Police
(Respondent)
Shanto Curry
(Appellant)
and
The Commissioner of Police
(Respondent)
Sheldon Moore
(Appellant)
and
The Commissioner of Police
(Respondent)
Trevor Roberts and Devroy Moss
(Appellants)
and
The Attorney General of the Commonwealth of the Bahamas and the Government of the United States of America
(Respondents)
Melvin Maycock Senior
(Appellant)
and
The United States of America and another
(Respondents)

[2014] UKPC 12

before

Lord Mance

Lord Sumption

Lord Hughes

Lord Toulson

Lord Hodge

Appeal Nos 0034, 0035, 0036, 0037 and 0059 of 2011

Privy Council

Maycock

Edward Fitzgerald QC

Ruth Brander

Maurice O Glinton Paul Moss

(Instructed by Simons Muirhead & Burton)

Newbold, Curry, Moore, Roberts and Moss

Maurice O Glinton

The Commissioner of Police, the Attorney General of the Commonwealth of the Bahamas and the United States of America

Howard Stevens QC

Navjot Atwal

(Instructed by Charles Russell LLP)

Heard on 12 and 13 February 2014

Lord Mance
1

The appellants are the subject of extradition requests by the United States of America on suspicion of having committed drug trafficking offences. Extradition proceedings were commenced against them by the United States and the Attorney General ("the respondents") as long ago as nine years. During such proceedings before Magistrate Mrs Carolita Bethell, the respondents sought to adduce evidence obtained by the interception by the Bahamian police of the appellants' telephone conversations. The present appeal concerns the legitimacy and, now, constitutionality of their so doing.

2

In intercepting the appellants' conversations, the respondents relied upon authorisations issued by the Commissioner of Police in purported compliance with section 5(2)(a) of the Listening Devices Act 1972 (the "LDA"). The LDA makes it an offence for any person to use a listening device "to hear, listen to or record a private conversation to which he is not a party" other than unintentionally or "where the person using the listening device does so in accordance with an authorisation given to him under section 5 of this Act". Section 2(1) contains these definitions:

""listening device" means any instrument, apparatus, equipment or device capable of being used to hear, listen to or record a private conversation while it is taking place;

"private conversation" means any words spoken by one person to another in circumstances indicating that those persons or either of them desire the words to be heard or listened to only by themselves or by themselves and some other person, but does not include a conversation made in circumstances under which the parties to the conversation ought reasonably to expect the conversation to be overheard."

3

Section 5 contains inter alia these subsections:

"(2) Where the Commissioner of Police after consultation with the Attorney-General is satisfied –

(a) that for the purpose of the conduct by a police officer of an investigation into an offence that has been committed or that the Commissioner believes to have been committed, the use of a listening device is necessary; or

(b) that an offence is about to be, or is reasonably likely to be, committed and that, for the purpose of enabling a police officer to obtain evidence of the commission of the offence or the identity of the offender, the use of a listening device is necessary,

the Commissioner after consultation with the Attorney-General, may in writing authorise the use by a police officer of a listening device for that purpose in such manner and for such period (not exceeding fourteen days) as may be specified in the authorisation. …..

(4) A record of the particulars of every authorisation given by any person under this section shall be kept by him."

4

The LDA contains various further provisions regulating, and sanctioning misuse of, listening devices or information obtained by their means. These include in section 3 a provision making it an offence (punishable under section 9 by fine of up to $2000 or imprisonment for up to six months, or both) for any person to use "a listening device to hear, listen to or record a private conversation to which he is not a party" save "where the person using the listening device does so in accordance with an authorisation given to him under section 5 of this Act" and save in the case of "the unintentional hearing of a private conversation over a telephone". Section 7 provides that:

"Where any record is made, whether in writing or otherwise, of information obtained by the use of a listening device pursuant to an authorisation given by any person under section 5 of this Act, that person shall, as soon as possible after that record has been made, cause to be destroyed so much of the record as does not relate directly or indirectly to the purpose for which the authorisation was given."

Section 10(1) provides that:

"Where a private conversation has come to the knowledge of person (sic) as a result, direct or indirect, of the use of a listening device used in contravention of section 3 of this Act, evidence of that conversation may not be given by that person in any civil or criminal proceedings."

5

In the present case, each of the authorisations was in like form:

" AUTHORIZATION PURSUANT TO THE

LISTENING DEVICES ACT, CHAPTER 83

I Paul H. FARQUHARSON, Commissioner of Police, Royal Bahamas Police Force. after consultation with the Honourable Attorney General, Mr. Alfred SEARS, am satisfied that it is necessary for listening devices to be used to enable the conduct of an investigation by the Officer-In-Charge of the Drug Enforcement Unit and any subordinate officers into the commission of illegal drug trafficking crimes. Accordingly for that purpose, I authorize the use of listening devices for a period of fourteen (14) days with effect from [DATE], 2003.

CELLULAR AND HARD LINE NUMBERS

[NUMBERS]

[SIGNATURE]

Paul H. Farquharson

Commissioner of Police"

Each authorisation listed a series of between eight and twenty-four numbers, all of them in fact cellular (mobile) telephone numbers. In many cases, the authorisations for later fourteen day periods covered at least some numbers included in one or more of the earlier authorisations.

6

Various objections have been raised and have contributed to the extreme length of the extradition proceedings. The present appeal concerns objections to the validity of the LDA and/or of seventeen authorisations issued under it. The Magistrate in this respect referred six questions to the Supreme Court, and this led to judgments given by Isaacs J on 9 October 2008 and by the Court of Appeal on 28 January 2010. The appeal to the Privy Council was originally listed to be heard in the summer of 2012, but even then the record was not complete, and it had to be relisted.

7

The six questions referred by the Magistrate were as follows:

"1. Whether to pass the test of constitutionality, a document purporting to be an Authorization given by the Commissioner of Police to the police officer to use a listening device in accordance with section 5 (2) of the Listening Devices Act must in order to authenticate itself in law in manner and form provide or specify the following particulars:

(a) the identity of the person authorized to use a listening device to conduct an investigation into an offence that has been committed;

(b) the date as from when such authorized use of a listening device was given;

(c) the offence that has been committed or that is about to be, or is reasonably likely to be committed, it being the very reason for the authorized use of a listening device in the police officer's conduct of the investigation.

2. If the answer to question (1) is in the affirmative, whether the Authorizations comply in such manner and form as required by law.

3. If the answer to question (2) is in the affirmative, whether the use now known to have been made of the Authorizations as given is lawful.

4. Whether to pass the test of constitutionality, the power to authorize the use of a listening device to "here [sic], listen and record" a private conversation in accordance with section 5(2) of the Listening Devices Act, may lawfully avail any authority or person for its or his (or her) use or purpose at their absolute discretion (as in the instance of the Commissioner of Police under the section) or for any use or purpose without prior judicial supervision.

5. Whether the law as represented and regulated by the provision of the Listening Devices Act, particularly by section 5 (2) therefore [sic], satisfies a qualitative test in that it provides essential safeguards and protections consistent with the rule of law in a democratic society.

6. Whether the powers and discretion availing the Commissioner of Police under section 5 (2) of the LDA violate Article 23 of the Constitution."

8

The first three questions therefore go to the requirements of the LDA and the lawfulness of the authorisations and of their use under its terms. The remaining three go to more fundamental questions regarding the constitutionality of the LDA itself. Isaacs J answered question 1 as follows: (a) Yes; (b) No, but the period during which the Authorisation is to operate must be stated in the Authorisation; and (c) Yes. As regards (b) his judgment proceeded on the misapprehension that the authorisations did not specify a period. It appears, however, that, following previous first instance authority, he treated the requirement that an authorisation specify a period as merely directory. He was more troubled by what he saw as a failure to specify the manner in which the listening devices were to be used, but felt bound to regard the authorisations as valid by the Court of Appeal authorities of Butterfield v Commissioner of Police (Crim App No...

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