R v Governor of Belmarsh Prison, ex parte Martin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE McCOWAN |
| Judgment Date | 21 October 1994 |
| Judgment citation (vLex) | [1994] EWHC J1021-4 |
| Docket Number | CO 1657/94 |
| Date | 21 October 1994 |
| Court | Queen's Bench Division (Administrative Court) |
[1994] EWHC J1021-4
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice McCowan -and- Mr Justice Gage
CO 1657/94
MR B EMMERSON (Instructed by Messrs. BM Birnberg & Co., London NW1 7HJ) appeared on behalf of the Applicant.
MR J LEWIS (Instructed by the Crown Prosecution (Headquarters)London EC4) appeared on behalf of the Governor of Belmarsh & the Government of the United States of America.
.
This is the judgment of the court.
The Applicant, Michael Martin, applies for a writ of habeas corpus, challenging his committal on 14th July 1994 to await the Secretary of State's decision as to his return to the United States of America. His extradition is sought so that he can face charges of conspiracy to cause explosions and attempting to procure various arms and munitions from the United States of America for use by the Provisional Irish Republican Army. The evidence against him is contained in three telephone calls which were intercepted in the United States of America.
The chronology of events is as follows. On 20th November 1989 two men, McKinley and Moley, met US undercover agents and began negotiations for purchase of a Stinger missile. On 31st December 1989 McKinley and Moley made a telephone call from Florida in the United States of America to the Applicant in Eire. That telephone call was the first of the intercepted conversations.
On 3rd January 1990 the second and third telephone calls were made from Florida by McKinley and Moley to the Applicant. These two calls were intercepted by agents in the United States of America. On 7th January 1990 a man called McColgan arrived in the United States of America. On 12th January 1990 Moley, McKinley and McColgan were arrested in the United States of America.
On 7th June 1991, Moley and McKinley and McColgan were convicted of conspiracy to receive and export munitions.
In August 1992 proceedings were launched against six further alleged co-conspirators which ended in their acquittal in April 1994.
On 14th April 1994 the Applicant was arrested in South Armagh. On 26th June 1994 the Secretary of State issued authority to start extradition proceedings against the Applicant. As we have indicated, on 14th July 1994, Mr Jeremy Conner, a Metropolitan Magistrate, committed the Applicant to await the Secretary of State's decision on his return to the United States of America.
Before the Magistrate a number points were taken. Before this court the Applicant abandoned all the points which he had previously taken and relied on a new point not taken in the court below. We have been told by counsel that this point has not previously been taken in any extradition proceedings. The point which counsel for the Applicant, Mr Emmerson, has taken, relates to the admissibility of the evidence of the three telephone calls. As we have already indicated, that evidence came from material intercepted in the United States of America by US Government agents. Put shortly, Mr Emmerson contended that by virtue of the provisions of the Interception of Communications Act 1985 ("the 1985 Act"), evidence obtained by intercepting or tapping telephone calls was rendered inadmissible in all proceedings in the United Kingdom, including extradition proceedings.
In order to understand his argument, he told us of three different methods by which telephone calls can be made between the United States of America and Eire. They are by satellite communication, by cable, or through the usual designated systems of British Telecommunications PLC or some other designated operator. It was explained to us that in the cases of satellite communication and by cable, the call is made direct from the United States of America to Eire. However, in the case of a call made through one of the designated systems, the call from the United States of America to Eire is channelled through one of the United Kingdom systems. As to which of the three routes was used at any time, that was dependent upon the amount of traffic at the time when the call was made. We were told that the selection of one of the three routes of communication was made randomly, and that no records were made as to which of the routes were used for any particular call.
Accordingly, it was accepted by both the Applicant and the Respondent that it was now impossible to prove which of the routes had been used, and hence impossible for the Respondent to prove that the system routing calls through the United Kingdom had not been used in respect of the three intercepted telephone calls. Mr Emmerson submitted that this court should approach this matter on the basis that the Respondent was unable to prove that these calls had not been routed through a designated United Kingdom system. We shall refer to that route as "the United Kingdom route".
Mr Emmerson put the case for the Applicant that the evidence of the three telephone calls was inadmissible on two bases. First, he contended (in an argument to which we have already referred) that the provisions of the 1985 Act rendered that evidence inadmissible. Secondly, he contended that even if such evidence was admissible in proceedings in the United States of America, in extradition proceedings in this country the court had to deal with the case against the Applicant as if it were a case made against him in this country. Accordingly, submitted Mr Emmerson, had such evidence been obtained in this country, it would be inadmissible by virtue of the 1985 Act, and for that reason was inadmissible in these proceedings. We shall refer to this argument as the "transposition argument".
Before dealing with either of these two contentions, it is necessary to set out the statutory framework of the 1985 Act. We look first at section 1 of the Act:
"(1) Subject to the following provisions of this section, a person who intentionally intercepts a communication in the course of its transmission by post or by means of a public telecommunication system shall be guilty of an offence and liable -
(a) on summary conviction, to a fine not exceeding the statutory maximum;
(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine or to both.
(2) 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."
Next, we look at section 2:
"(1) Subject to the provisions of this section and section 3 below, the Secretary of State may issue a warrant requiring the person to whom it is addressed to intercept, in the course of their transmission by post or by means of a public telecommunication system, such communications as are described in the warrant; and such a warrant may also require the person to whom it is addressed to disclose the intercepted material to such persons and in such manner as are described in the warrant.
(2) The Secretary of State shall not issue a warrant under this section unless he considers that the warrant is necessary -
(a) in the interests of national security;
(b) for the purpose of preventing or detecting serious crime; or
(c) for the purpose of safeguarding the economic well-being of the United Kingdom."
It is unnecessary to refer specifically to section 3. It deals with the scope of warrants issued by the Secretary of State. In subsections (2) and (3) it provides for the Secretary of State to issue a certificate to the warrant in cases involving the interception of transmissions of "external communications". Mr Emmerson relied on this section in support of his submission that the 1985 Act was much wider in its scope than merely being confined to events within the United Kingdom.
Section 6 provides for safeguards in respect of warrants, and reads:
"(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing-
(a) that the requirements of subsections (2) and (3) below are satisfied in relation to the intercepted material; and
(b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person.
(2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely-
(a) the extent to which the material is disclosed;
(b) the number of persons to whom any of the material is disclosed;
(c) the extent to which the material is copied; and
(d) the number of copies made of any of the material is limited to the minimum that is necessary as mentioned in section 2(2)above."
(3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2(2) above."
In the context of these proceedings section 9, which deals with the exclusion of evidence, is of great importance. It reads:
"(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...
To continue reading
Request your trial
-
R v Taylor-Sabori
...across three cases where appellants had sought unsuccessfully to put a wide construction on Section 10(2). 55 First, R v Governor of Belmarsh Prison ex parte Martin [1995] 1 WLR 433. There the evidence on which the United States sought to extradite the appellant consisted on telephone calls......