Morgans v DPP
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE SULLIVAN |
| Judgment Date | 07 December 1998 |
| Neutral Citation | [1998] EWHC J1207-8 |
| Judgment citation (vLex) | [1998] EWHC J1207-2 |
| Docket Number | CO 2557/98 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 07 December 1998 |
[1998] EWHC J1207-2
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Lord Justice Kennedy
(Vice President of the Queens Bench Division) and
Mr Justice Sullivan
CO 2557/98
MR L BLACKMAN (Solicitor Advocate) (instructed by Lionel Blackman, Epsom, Surrey KT18 5DH) appeared on behalf of the Applicant.
MR I BROOK (instructed by Central Casework, CPS, 50 Ludgate Hill, London EC4M 7EX) appeared on behalf of the Respondent.
Monday, 7th December 1998
This is an appeal by way of case stated from a decision of the Crown Court sitting at Southwark which, on 29th May 1997, dismissed the appellant's appeal against his conviction by a stipendiary magistrate on seven charges. Five of the charges alleged that the appellant had obtained unauthorised access to a computer system, contrary to section 1(1) of the Computer Misuse Act 1990. The particulars of the offence in each case stated that on a given date the appellant had without due authority knowingly caused a computer belonging to one of three trading companies to allow him access to the private network of that computer. Two of the charges alleged fraudulent use of a telecommunication system contrary to section 42 of the Telecommunications Act 1984. Those two offences alleged that on two different occasions the appellant had dishonestly obtained a telephone service by means of a telecommunication system belonging to Mobil Data Services Limited with intent to avoid payment of the applicable charge.
History
The history as it emerges from the case stated is as follows. In 1995 the appellant was an unemployed man living with his wife at an address in Colliers Wood, London where his telephone number was 0181�540-5407, and where he had a lot of computer equipment. His wife came from the Philippines, so he and she obviously had an interest in making telephone calls to her relatives there.
On 30th June 1995 Peter Hoath, a B.T. Network Special Investigations Manager, was asked by Detective Constable Waller of the Computer Crime Unit of New Scotland Yard for assistance in a case of suspected hacking. As the Crown Court found, D.C. Waller and Mr Hoath suspected that the appellant was using a public telecommunications system for the purpose of hacking, that is to say, to obtain unauthorised access to computer systems, including systems (not ultimately the subject of charges) in the United States of America. In response to the police officer's request, Mr Hoath arranged for a call logger, called a Monolog, to be fitted to the appellant's telephone number on 3rd July 1995. It logged all digits dialled, whether manually or otherwise, in printed form and the print out was continued up to the 6th September 1995. At quite an early stage, the call logger developed a fault, and was replaced, but nothing turns on that. The print out showed:
(1) Time and date of use of telephone:
(2) duration of call time:
(3) digits dialled, whether before or after connection to another line.
Those last five words are significant, because the rest of the information would normally be recorded for the benefit of a subscriber, and would appear on a subscriber's account.
By comparing the print outs provided by the Monolog with computer print outs recording the telecommunications networks of three companies�Hogg Robinson Ltd, GBC UK Ltd and Mobil Data Services Ltd�it was possible to show that the appellant's telephone number was responsible for accessing the computer controlled telephone networks of those companies and securing access to the part of the victim company's computer system which enables an authorised user to telephone an outside line at the company's expense. Thus many lengthy calls were seen to be made to the Philippines.
In addition it could be seen that the appellant's telephone number was being used to trawl through "freephone" (0800) telephone numbers apparently in search of a mail box with a default password identical to its extension number. Again the object would seem to be to use the 0800 number to dial out free of charge.
On 13th September 1995, some time after misuse of the victim companies' systems had apparently come to an end, the appellant was arrested by D.C. Waller and interviewed. He was then granted bail. He was further interviewed on 8th January 1996. He admitted being the principal user of his home telephone number, and he also admitted scanning 0800 numbers. He said he was looking for free information and testing out software. When he gave evidence he repeated his explanation to the police saying that he was innocently using a number given to him by a friend to obtain reduced charge calls. The Crown Court rejected that explanation, and found that he knew that he was acting dishonestly to avoid the payment for calls made.
By the end of January 1996, D.C. Waller had all the material evidence on which the prosecution was brought. On 16th February 1996 the matter was submitted to the Crown Prosecution Service for advice. D.C. Waller, who was the police officer in charge of the case, then fell ill, and in his absence on 5th August 1996 the appellant was charged by another officer with what became charges 5, 6 and 7 (three of the charges of obtaining unauthorised access to a computer system). Meanwhile, on 18th July 1996, Mr Robinson, a principal Crown Prosecutor with the CPS, obtained advice from counsel, and by 20th August 1996 he formed the opinion that he had sufficient evidence to warrant proceedings. In due course he signed a certificate to that effect.
Legal Issues
Three questions are identified in the case stated for consideration by this Court. They are:�
"(1) Were we right in ruling that section 9 of the Interception of Communications Act 1985 did not preclude us from receiving in evidence the print outs from the logging devices placed upon the appellant's line?
(2) Were we right in holding that the prosecutor for the purposes of section 11 of the Computer Misuse Act 1990 was the Crown Prosecution Service, and therefore in the light of the certificate signed under that section all charges under that Act were brought within the relevant time limit?
(3) Did the time limit under section 11 of the Computer Misuse Act 1990 run from when the evidence came into the possession of the prosecutor, or from when he came to his opinion that the evidence was sufficient to warrant proceedings?
Admissibility of Evidence
In order to deal with the first question it is necessary to say something about the background to the 1985 Act and about its effect, as explained in the authorities to which our attention has been invited.
Before the Act was passed, telephones were tapped from time to time at the behest of the police and others, but in practice intercepted material was never employed in court (see R v Preston and others (1994) 98 Cr App R 405 per Lord Jauncey at 411 and per Lord Mustill at 415). In Malone v United Kingdom (1984) 7 EHRR 14, the European Court of Human Rights found against the United Kingdom on the basis that English Law did not sufficiently define the circumstances in which, and the manner in which, a public authority might intercept, as well the way in which the product of an interception might properly be used. So the Government produced a White Paper (1985 Command 9438) paragraph 7 of which reads:�
"The Government's aim in introducing legislation is to provide a clear statutory framework within which the interception of communications on public systems will be authorised and controlled in a manner commanding public confidence. It is not seeking through the introduction of this legislation to broaden the scope of existing practices �"
At paragraph 12(f) the White Paper continues:�
"The Bill will provide for controls over the use of intercepted material. By making such material generally inadmissible in legal proceedings it will ensure that interception can be used only as an aspect of investigation, not of prosecution."
Turning now to the Act itself, section 1 makes it an offence, subject to exceptions, intentionally to intercept a communication in the course of its transmission by means of a public telecommunication system.
Section 1(2) provides:�
"A person shall not be guilty of an offence under this section if�
(a) the communication is intercepted in obedience to a warrant issued by the Secretary of State under section 2 below; or
(b) that person has reasonable grounds for believing that the person to whom, or the person by whom, the communication is sent has consented to the interception."
In the present case there was no warrant, and we know of no evidence to suggest that any person to whom a communication was sent had (and the use of the past tense may be significant) consented to the interception.
The prosection contended that this interception fell within section 1(3) which provides:
"A person shall not be guilty of an offence under this section if:�
(a) the communication is intercepted for purposes connected with the provision of postal or public telecommunications services or with the enforcement of any enactment relating to the use of those services.."
Section 2(1) enables the Secretary of State to issue a warrant requiring an interception, but by section 2(2)(b) the Secretary of State must not issue a warrant unless he considers it necessary "for the purposes of preventing or detecting serious crime". There are other permitted purposes which, in the context of this case, are irrelevant. In Preston's case those words in section 2(2)(b) were held to be limited to forestalling potential crimes not yet committed and seeking out crimes...
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