Morgans v Director of Public Prosecution (pet. all.)

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD NICHOLLS OF BIRKENHEAD,LORD MACKAY OF CLASHFERN,LORD STEYN,LORD HOPE OF CRAIGHEAD,LORD CLYDE
Judgment Date17 Feb 2000
Judgment citation (vLex)[2000] UKHL J0217-3

[2000] UKHL J0217-3

HOUSE OF LORDS

Lord Nicholls of Birkenhead

Lord Mackay of Clashfern

Lord Steyn

Lord Hope of Craighead

Lord Clyde

Morgans
(Appellants)
and
Director of Public Prosecutions
(Respondent)

(On Appeal from a Divisional Court of The Queen's Bench Division)

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

I have had the advantage of reading in draft the speeches of my noble and learned friends Lord Mackay of Clashfern and Lord Hope of Craighead. For the reasons they give I would allow this appeal.

LORD MACKAY OF CLASHFERN

My Lords,

2

I gratefully adopt the narrative and explanation of the issues in this case which is contained in the speech of my noble and learned friend, Lord Hope of Craighead, which I have had the advantage of reading in draft.

3

In view of the considerable importance of this case and its possible impact in other cases, I wish to add these observations.

4

The decision in this House in Reg. v. Preston [1994] 2 A.C. 130 was concerned with the question whether there was an obligation on the prosecutor to disclose to the defence material which had been obtained as a result of the interception of a telephone under a warrant issued by the Secretary of State under section 2 of the Interception of Communications Act 1985. The House unanimously reached the conclusion that section 2(2)(b) of the Act of 1985 "for the purpose of preventing or detecting serious crime" did not include the purpose of gathering evidence for criminal proceedings in respect of such crime. They held that the use of material gathered under warrant as evidence in such a prosecution was prohibited by the scheme of the Act including section 6 and section 9. In particular, section 9(1)(a) prohibited in any proceedings before any court or tribunal evidence being adduced which tended to suggest that a warrant had been issued. This prevented it being admitted as a matter of fact on which the court should proceed that a warrant had been issued and it also prevented evidence being adduced and questions in cross-examination being asked which in either case tended to suggest that an offence under section 1 of the 1985 Act had been, or was to be, committed by any of the persons listed in section 9 sub-section 2, being persons holding office under the Crown, the Post Office and any person engaged in the business of the Post Office, any public communications operator and any person engaged in the running of a public telecommunications system. In the course of their consideration of these issues the members of the House who took part in the decision were led to the view that the scheme of the Act in relation to warranted interceptions was intended to continue the previous practice and that no use in evidence of the product of such intercepts is permissible. In my opinion this conclusion carries with it the consequence that where a warrant has not been obtained and where the interception without a warrant would be unlawful the same consequence must apply. It would be quite extraordinary and unacceptable if the contents of an intercept which had been unlawfully made could be used, whereas the content of an intercept lawfully made could not.

5

This leaves for consideration the precise limits within which this scheme derived from the Act extends. In his speech in Preston after narrating the general prohibitions in section 1 of the 1985 Act Lord Mustill goes on, at page 149

"To these general prohibitions section 1(2) creates exceptions in the case of (a) an interception made in obedience to a warrant issued by the Secretary of State, and (b) an interception made by someone who has reasonable grounds for believing that the person to or by whom the communication is sent has consented to the interception. Subsection 3 creates further exceptions, not here material."

6

This leads me to the conclusion that Lord Mustill, with whom the other members of the House agreed, did not have to consider whether the provisions of subsection (1)3 fell within the scheme which he later described. This is important in the present case since this appeal relates to two convictions of the appellant for offences contrary to section 42 of the Telecommunications Act 1984. However, it was conceded by the Crown in the Divisional Court that the interception that took place was not to detect telephone fraud but to "investigate a case of suspected computer hacking". And therefore in this case the Crown accepted that the interception was not for purposes connected with provision of postal or public telecommunications services or with the enforcement of any enactment relating to the use of those services, although the purpose of adducing the content of the intercepts was for the latter purpose. In consequence section 1(3) did not apply to it.

7

When following the decision of Malone v. United Kingdom (1984) 7 E.H.R.R. 14 in the European Court of Human Rights, it was decided to introduce legislation to provide a statutory authority for what had previously been done on the authority of Secretaries of State without such authority, the pre-existing system in relation to interception in the postal and public telecommunication services and with regard to the use of wireless telegraphy did not require to be provided for in a new way. Just to take one example, interception by staff of the Post Office who have authority to open postal packets in certain circumstances, for example under section 8(3) of the Post Office Act 1953 was a pre-existing statutory authority for interception. In my opinion therefore it is reasonable to conclude that the House in Preston was not concerned with matters covered under section 1(3). And therefore a construction of section 9 should be sought which gives effect to the limits of the scheme of the Act described, in particular, by Lord Mustill in Preston namely that the scheme described does not apply except to situations in which a warrant is required and where without it, the interception would be without statutory authority. The challenge is to find a construction of section 9 which would provide a workable boundary. The difficulty is that any discussion in evidence of the question whether a particular exception to section 1 applied would be in essence a discussion of whether or not the interception resulted from an offence under that section. I have reached the view that this is best dealt with by saying that in construing section 9, it should not apply where the proceedings are for the enforcement of any enactment relating to the use of postal or public telecommunications services or where the proceedings relate to a communication being transmitted by wireless telegraphy and the communication is intercepted by the authority of the Secretary of State.

8

In my view, some such restriction on the scope of section 9 is required to give effect to the obvious intention of Parliament to exempt from the new regime set up under the Act of 1985 the existing statutory arrangements for postal public telecommunications services and wireless telegraphy. However, it is possible as this case illustrates, that although proceedings are for the enforcement of one of these specified enactments the interception was not made for purposes connected with such enforcement but for some other purpose, in which case it would be right to allow that to be the subject of evidence and if it were demonstrated that the purpose was not connected with the enforcement of a specified enactment then the communication intercepted should not be admitted in evidence. I have not found it possible to propose a form of words to be implied in section 9 to accord with what I believe to be the true construction of the Act as a whole which would give effect to the exception in section 1(2)(b) since this could arise in any form of proceedings and therefore the discussion in evidence cannot be related to the form of the proceedings. If the prosecutor and the accused were agreed that the interception had been consented to, so as to bring the case within section 1(2)(b), I see no objection to evidence being led on the basis of that admission, since I do not consider that section 9 would prohibit that admission being made and once made section 9 would not have any residual application. However, if agreement between the prosecutor and the accused was not forthcoming I find it difficult to see how the question whether section 2(1)(b) applied could be explored in evidence without transgressing the provisions of section 9, and I can see no reasonable implication that can be formulated on section 9 to prevent this.

9

I should add that I entirely agree with my noble and learned friend that what has been founded on by the Crown in this case is a communication within the meaning of section 1 of the Act of 1985.

10

Subject to the views I have expressed on the scope of the decision in Preston, I agree with the reasoning of my noble and learned friend Lord Hope of Craighead and would allow this appeal.

LORD STEYN

My Lords,

11

In giving the judgment of the Court of Appeal (Criminal Division) in Reg. v. Effik (1992) 95 Cr. App. R. 427 I gave a restrictive interpretation to section 9 of the Interception of Communications Act 1985, by holding that it contains no provision making clear that any evidence obtained as a result of an interception will be inadmissible. Eight years later, aided by the incisive arguments of counsel in the present case, I have had an opportunity to re-examine the point. I am now fully persuaded that my earlier interpretation was wrong. And I agree with the speech of Lord Hope of Craighead. But it is appropriate, if only for the historical record, that I explain shortly the reasons for my conversion.

12

The starting point is the language of section 9 of the Act of 1985. I now accept that even if one concentrates only on the language of section 9 of...

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