R v Aujla (Ajit Singh)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROCH,MR JUSTICE BUCKLEY |
| Judgment Date | 24 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Crim J1107-10 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 9706863 S3 9706864 S3 9706865 S3 |
| Date | 24 November 1997 |
[1997] EWCA Crim J1107-10
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Roch
Mr Justice Buckley
and
Mrs Justice Hale
No: 9706863 S3 9706864 S3 9706865 S3
MR LATIF appeared on behalf of the Applicant AJ AUJLA
MR R DE MELLO & MR L DANIEL appeared on behalf of the Applicant HK AUJLA
MR S DAVIS appeared on behalf of the Applicant IS AUJLA
MR P COOKE appeared on behalf of the Crown
Friday 7th November 1997
The three applicants are charged with conspiracy to facilitate the illegal entry of persons into the United Kingdom contrary to section 1(1) of the Criminal Law Act 1977. It is alleged that they, together with Carl Albert Joseph, conspired with other persons between 1st January 1990 and 12th March 1996 to facilitate the illegal entry of persons into the United Kingdom. Their trial is due to commence at the Birmingham Crown Court on 11th November 1997.
On 9th October 1997 his Honour Judge Alan Taylor, who will try this case, gave a ruling in a preparatory hearing exercising the power given by section 31(3) of the Criminal Procedure Investigations Act 1996. The ruling was on the admissibility of evidence. The applicants applied for leave to appeal against that ruling under section 35(1) of that Act. This Court has power to confirm, reverse or vary the judge's ruling if we grant leave. We do grant leave, and we have heard submissions.
The nature of the conspiracy alleged against the appellants is that they were parties to the bringing of illegal immigrants into this country from the Netherlands by means of light aircraft. It is the prosecution's case that Carl Albert Joseph was the pilot who flew the light aircraft. He has pleaded guilty to this offence. It is also the prosecution's case that the appellants conspired with two persons resident in the Netherlands, Kuldip Singh Sunar and Dogar Singh. The two persons resident in Holland have been tried by the Dutch courts for being involved in facilitating the illegal entry of immigrants into the United Kingdom, convicted and sentenced to substantial periods in prison.
Part of the evidence against those persons were tapes of telephone conversations between the two Dutch offenders and the three appellants. Those telephone calls were recorded by means of a telephone intercept being placed on the telephone of the Dutch offenders in Holland. Authorisation for that intercept had been applied for by the Dutch police and granted by the appropriate judicial authority in Holland. The phone calls that were intercepted were phone calls made by the Dutch offenders to the three appellants in this country.
That intercept was applied for without the knowledge of the English police. That process in Holland was neither instigated by the English police nor was its continuation requested or required by the English police. Indeed, it would seem that the English police had no knowledge of the process until the process of interception was complete.
It was accepted for the purposes of application before his Honour Judge Taylor by counsel for Inderpal Singh Aujla that the intercept had been properly applied for, and granted in, Holland, that the products of such an intercept could be used as evidence in criminal proceedings in Holland, and that the police in this country had been alerted to the activities of the Dutch offenders, Mr Joseph and the appellants by the Dutch police and informed of the fact of the intercept and the contents of the calls after the process of interception in Holland was completed.
The evidence gathered by the police in Holland consisted of the tapes of the phone calls, together with transcripts and translations. Consequently the contents of the phone calls are now in the public domain.
There is no question but that the appellants were the persons who were telephoned by the Dutch offenders and who maintained one side of the conversations recorded. Neither is there any dispute that the tapes and transcripts accurately record what was said, and that the translations made are accurate translations.
The Dutch authorities have offered to make available to the West Midlands Police, the force who are investigating this matter, for use in the prosecution of the appellants the tapes and the transcripts and the persons who effected the intercepts. It is accepted that this conspiracy charge does represent serious crime.
The submission made on behalf of the appellants is that the judge was wrong not to rule that this material should be excluded as evidence at the appellants' trial; that the judge's ruling ignored Article 8 of the European Convention on Human Rights and breached the spirit and intent of the Interception of Communications Act 1985. It is submitted that the law and practice in England and Wales has consistently been to exclude evidence of the contents of telephone calls which have come to the knowledge of the prosecuting authority by virtue of interception of calls as they pass through the public telecommunications system in this country.
Prosecuting authorities have been permitted to use such information as intelligence in order to prevent or detect crime, but they have never been permitted by the courts of this country to rely upon such material as evidence of the guilt of those who were parties to the telephone calls. That approach was maintained by Parliament when it enacted the Interception of Communications Act 1985, and we were referred to the case of R. v. Preston [1994] 2 A.C. 130. It is necessary for the purpose of these appeals to refer to only one sentence in the speech of Lord Jauncey at page 144A:
"My Lords, I have no doubt that Parliament intended that the existing practice of not using intercepted material as evidence should continue."
Care has to be taken when applying this decision. The House of Lords were not saying that the Act forbids the use of all intercepted material, as the case of Rasool and Choudhary (1997) 2 Cr.App.R. 190, demonstrates. Where a person agrees to his telephone being tapped, the conversations so recorded can be used in evidence. Were it otherwise the successful prosecution of certain crimes, such as blackmail and kidnapping, would be severely hampered. Moreover, a purpose of the 1985 Act, as stated by Lord Mustill following his analysis of the Act's provisions at page 167B of his speech, is to this effect:
"…..the purpose of section 9 can be seen as the protection, not of the fruits of the intercepts, but of information as to the manner in which they were authorised and carried out. Inquiries as to these matters were to be confined to the tribunal under section 7, and the defendant was not to have the opportunity to muddy the waters at a trial by cross-examination designed to elicit the Secretary of State's sources of knowledge or the surveillance authorities' confidential methods of work. Evidently the proscription of questioning on the existence of warrants was seen as an economical means of achieving this result."
The interception of these telephone calls in Holland do not represent a breach of the 1985 Act. Although the phone calls were made to this country, the intercept occurred in Holland. In R. v. Effik and Another [1995] 1 A.C. 309, Lord Oliver, in the only speech delivered in that case, approved the decision of this Court in Ahmed, decided on 29th March 1994, and this passage in the judgment of this Court delivered by Evans LJ:
"Our conclusions are as follows: first, we hold that the interception of a communication takes place when, and at the place where, the electrical impulse or signal which is passing along the telephone line is intercepted in fact."
We notice that the Act itself distinguishes between external communications and communications confined to the United Kingdom. A further authority for the proposition that the interception of these telephone calls by the tapping of the line in Holland does not represent a breach of section 1 of the 1985 Act is to be found in the decision of the Divisional Court consisting of McCowan LJ and Gage J in R. v. Governor of Belmarsh Prison, Ex p. MARTIN [1995] 1 WLR 412. In that case the United States Government sought the extradition of Martin to face trial in the United States for conspiracy to cause explosions and attempting to procure arms and munitions for use in terrorism in Ireland. At the extradition proceedings before the Stipendary Magistrate the evidence against the applicant consisted largely of three telephone calls alleged to have been made from the United States to the applicant in the Republic of Eire, which had been intercepted in the United States by United States government agents. Relying on that evidence, the Magistrate found that there was a prima facie case against the applicant and committed him to await the directions of the Secretary of State. The applicant applied for a writ of habeas corpus on the grounds that the evidence obtained by intercepting telephone calls was, by virtue of the 1985 Act, inadmissible in all proceedings in the United Kingdom. That argument was rejected by the Divisional Court in a judgment delivered by McCowan LJ. The Court referred to the passage in the speech of Lord Oliver in Effik to which we have already referred. At page 420E McCowan LJ said:
"First, giving the Act of 1985 the most favourable construction to the applicant and taking into account the purposes for which it was passed, we cannot accept that it can bear the wide interpretation for which Mr Emmerson contended. In our judgment, the language of the statute is incapable of being...
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